ABROGATION OF ARTICLE 370

ABROGATION OF ARTICLE 370

1.      Article 370 (3)-  Notwithstanding anything in the foregoing provisions of this article, the PRESIDENT MAY, BY PUBLIC NOTIFICATION, declare that this article shall CEASE TO BE OPERATIVE or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that THE RECOMMENDATION OF THE CONSTITUENT ASSEMBLY of the State referred to in clause (2) shall be necessary before the President issues such a notification.

2.      Constituent Assembly of Jammu and Kashmir was dissolved on 26 January 1957 and the Jammu and Kashmir Constitution came into effect.

3.      ORIGINAL VIEW OF THE PIONEER CAMPAIGNERS OF ABROGATION OF ARTICLE 370: Constituent Assembly of Jammu and Kashmir stands dissolved on 26 January 1957. Hence no occasion and question whatsoever of obtaining any recommendation of the Constituent Assembly of Jammu and Kasmir arise for any purpose. Presidential (i.e. Central Government) notification simpliciter would suffice to do away with Article 370 by invoking doctrines of impossibility of performance and executive necessity.

4.      OTHER VIEWS

-          Reconvene the Constituent Assembly of Jammu & Kashmir (consisting of surviving members, if any, of the erstwhile Constituent Assembly dissolved on 26 January 1957 and remaining vacancies duly filled through election based on adult suffrage) and persuade it to give a recommendation for the abrogation of Article 370 followed by requisite presidential notification in terms of Article 370(3).

-          The Parliament of India may bring out a Constitutional Amendment under Article 368 of the Constitution qua repeal of Article 370. It will be followed by a Presidential order to that effect in terms of Section 15, Part XX of the Constitution (Application to Jammu and Kashmir) Order, 1954 and it reads thus- to clause (2) of article 368, the following proviso shall be added, namely: — “Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370.”                                                                                            In view of Article 370(1), such Presidential order may be issued only with the concurrence of Government of the State (i.e. the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Rayasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office).

-          According to Clause (1) (c) of Article 370, the only Articles of the Constitution of India which applied of their own force to the State were Articles 1 and 370. Clause (1) (d) of Article 370 provides that the other provisions of the Constitution of India applicable to the State could be determined by the President of India- in consultation re “matters specified in the Instrument of the Accession of the State” and - with the Concurrence re “other matters”-  with the Government of the State. Exceptions and modifications could be made in the same manner and the provisions could be enlarged too. Power to modify includes a power to enlarge or add to an existing provision. Therefore, the term 'temporary' has been used in Article 370 so as to minimise the difficulty in the way of the amendment of the Constitution of India, whenever the necessity arises to modify or extend the scope of other provisions of the Constitution of India.

At the time of their accession, it was made clear to all Indian States that their internal autonomy would be safeguarded and they would not be obliged to accept the Constitution of India. But whereas other Indian States lost their independence by supplementary instruments and by agreeing to the settlement of their constitutional position and powers by the Constituent Assembly of India, Kashmir chose to remain a unit of the Indian Federation only on the terms and conditions specified in the Instrument of Accession. The State, if it chose to assimilate its status to that of other Indian States, could do so by a supplementary instrument signed by the Sadar-i-Riyasat (as advised by elected Council of Ministers headed by Prime Minister i.e. ELECTED GOVERNMENT ) on the recommendation of the State legislature. (Note:  On April 10, 1965, the nomenclatures of Sadar-e-Riyasat (Head of the State) and Wazir-e-Azam (Prime Minister) changed to Governor and Chief Minister in State Constitution.  From 17 November 1952 to 30 March 1965, Sh. Karan Singh was the head of State of Jammu and Kashmir. On 30 March 1965 he became first Governor of Jammu and Kashmir and remained in office till 15 May 1967). This legal position was set at rest by the Supreme Court of India in the case of Prem Nath Kaul v. the State of Jammu and Kashmir (AIR 1959 SC 749) wherein it was observed: “We must, therefore, reject the argument that the execution of the Instrument of Accession, affected in any manner the legislative, executive and judicial power in regard to the Government of the State, which then vested in the Ruler of the State.” Again, the Supreme Court of India in the case of Rehman Shagoo v. State of Jammu and Kashmir (AIR 1960 SC 1) said: “When certain subjects were made over to the Government of India by the Instrument of Accession, the State retained its power to legislate even on those subjects so long as the State law was not repugnant to any law made by the Central Legislature.”(Adarsh Sein Anand, former Chief Justice of India; former Chairman, National Human Rights Commission; and former Chief Justice of the J&K High Court)

-          It  is no doubt true that Article 370(3) provides that the President may by notification declare that this article shall cease to be operative, but the proviso clearly lays down a limitation that the recommendation of the Constituent Assembly of the state shall be necessary before the President issues such a notification. It is not disputed that the Constituent Assembly of J&K never gave any such recommendation before its dissolution on 26 January 2016. In that view Article 370 cannot be withdrawn by Parliament purporting to exercise the power of amendment given by Article 368. That the power to amend the Constitution is not totally unfettered admits of no disputes vide the famous case of Keshvanand Bharthi, (1973) in which the Supreme Court held that a "Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed" (Rajindar Sachar, retired Chief Justice of the High Court of Delhi)

-          Article 371 provides for a special responsibility of the Governor for the establishment of separate development boards for Saurashtra and Kutch (in Gujarat) and Vidharba in Maharashtra for an equitable allocation of funds for the development of the area. (Also see Articles 371A(1)(b), 371C, 371H qua special responsibility of the Governors in the States of Nagaland, Manipur, Arunachal Pradesh respectively  in certain matters). Articles 371A and 371G provide that no Act of Parliament in respect of the ownership and transfer of land shall apply to the States of Nagaland and Mizoram unless the Legislative Assemblies of Nagaland and Mizoram by  resolutions so decide. The Articles 371A and 371G  further provide that no parliamentary law- dealing with religious or social practices of Nagas/Mizos, Naga/Mizo customary law and procedure, administration of civil and criminal justice involving decisions according to Naga/Mizo customary law- unless the Legislative Assemblies of Nagaland and Mizoram by  resolutions so decide. These provisions are identical, to some extent, to Article 370 of the Constitution regarding J & K. It may be pertinent to mention herein that In the USA such is the extent of State autonomy that an advocate getting his law degree from Washington University cannot as a matter of right practice in the State of New York.

NOTE:

Case law worth reading:-

Prem Nath Kaul v. the State of Jammu and Kashmir (AIR 1959 SC 749);  Sant Singh v. State (AIR 1959 J & K 35); Rehman Shagoo v. State of Jammu and Kashmir (AIR 1960 SC 1); Division bench judgment of J&K High Court re Bhupinder Singh Sodhi and Ors, Santosh Gupta v.  Union of India and Ors (OWP No. 530 of 2007 and OWP No. 1031 of 2004), DOD 16/07/2015; Division bench (Justice Hasnain Massodi and Justice Janak Raj Kotwal) Judgment of J&K High Court on Oct 09, 2015

JAMMU AND KASHMIR DEMOGRAPHICS

KASHMIR DIVISION: Area: 15,948 km²  (15.73%), Population:  6888475 (54.93%)

JAMMU DIVISION: Area: 26,293 km²  (25.93%), Population: 5378538 (42.89%)

LADAKH DIVISION: Area: 59,146 km² (58.33%), Population: 274289 (2.18%)

PAKISTAN OCCUPIED KASHMIR: Area: 13,297 km², Population: approximately 55 lakh

“Delhi Judge ALLEGED Bribery” case should become a “Test Case”

“Delhi Judge ALLEGED Bribery” case should become a “Test Case” in the matters of seeking the police custody /remand of the accused by the CBI, Police etc and grant of bail by the judiciary in vindication of oft-repeated Constitutional, statutory and judicial dicta viz. ‘paramount sanctity of life & personal liberty’, ‘presumption of innocence’, ‘bail is rule-jail is exception’. Hopefully, CBI (and other law enforcement agencies) and judiciary would make it a rule in all cases and strongly guard against it being reduced a single, solitary and stray incident. It would be in the fitness of the things for the Hon’ble Supreme Court to take a suo moto cognizance of the case and record a formal order encapsulating the exuberant spirit and underlying rationale of the case and said order be sent to all authorities concerned for strict compliance. BCI should also prescribe it as compulsory legal case study as part of course content of LL.B. Students. Needful may also be done by judicial training academies.

FACTS OF THE CASE:

A case was registered at CBI/ACB/Delhi on 28.09.2016 on the basis of a written complaint dated 27.09.2016 lodged by complainant Sh.…..wherein it was alleged that Sh……(Advocate) (hereinafter A1), Local Commissioner, Court  no…., in the court of Mrs……(hereinafter A2),……Tis Hazari Courts, Delhi, was demanding bribe of Rs.10 Lakhs on behalf of above ….Judge for disposing off an Execution Petition bearing No…..in favour of the complainant, which was pending disposal before the said Court of Ld Judge. It was also alleged that A1 had also demanded a bribe of Rs.1 Lakh for submitting favourable report in the said Execution Petition. The complainant has also paid an amount of Rs.15,000/ to A1 as Local Commissioners fee on 26.09.2016, as directed by the above Court. The said complaint was verified by Dy.SP, CBI/ACB/Delhi on 27.09.2016 in the presence of independent witness including one witness from BSNL. The verification duly corroborated the facts mentioned in the complaint and the verification also revealed that A1 Local Commissioner has demanded a fresh bribe of Rs.20 Lakhs on behalf of A2…Judge for disposing off the above Execution Petition in favour of the complainant and Rs.2 Lakhs for himself. Subsequent to this, A1 agreed to accept the bribe of Rs. 5 Lakhs as part payment of total bribe of Rs.20 lakhs from the complainant on behalf of A2 on 28.09.2016. On the basis of said complaint and verification conducted by Dy.SP, an FIR bearing RC No…..was registered in this case. Thereafter, a trap was laid on 28.09.2016 and A1 was caught red handed while accepting bribe amount of Rs.5 Lakhs from the complainant as first installment in the presence of independent witnesses on behalf of (A2) and the said bribe amount was recovered from his possession on 28.09.2016 itself. It is further alleged that on being asked, A1 stated that he had demanded and accepted the bribe on behalf of A2 and he was about to call Sh…..(hereinafter A3), husband of A2. He voluntarily offered that he will pass on the bribe amount of Rs.5 Lakhs to A3 or A2 on 28.09.2016 itself. He further sent a whatsap message to A2 mentioning that he had received the said amount of Rs.5 Lakhs and he wanted to meet her on that day only. A2 had seen the said message. Thereafter, A1 made a call to A3, but his mobile was switched off. Thereafter, on the mobile phone of A1, a call was received from the mobile phone of A3, which was being simultaneously recorded through a DVR. In the said call, A3 asked A1 to meet him either at Daryaganj or at his residence.Thereafter, A1 made a subsequent call on the mobile phone of accused A3 at around 9.05 P.M and reconfirmed about the place of meeting. This time A3 asked A1 to come to his residence. This call was also recorded through DVR in the presence of independent witnesses. Thereafter, A1 voluntarily offered to hand over the bribe amount of Rs.5 Lakhs to A3 or A2, as he had collected the same from the complainant for A2. Accordingly, it was decided to proceed to the residence of A3 and A2 alongwith the said accused and independent witnesses. Thereafter, the CBI team alongwith independent witnesses, complainant and his partner and A1 reached at the residence of A2 and A3 at about 10.15 P.M. At around 10.21 P.M, A1 went inside the house of above mentioned persons and kept the DVR in switched on mode, which was given to him. After 10 minutes, he came out from the house of above persons and informed that he had handed over the bribe amount of Rs.5 Lakhs, received from the complainant to A3 in the presence of A2. He also stated that after receiving the said bribe amount of Rs. 5 Lakhs, A3 returned Rs.1 Lakh to him and kept the remaining Rs.4 Lakhs with him in a orange coloured plastic bag. The said Rs.1 Lakh was recovered from A1 in the presence of both the independent witnesses. Thereafter, all the members of the CBI team rushed to the residence i.e. flat of A2 and rang the door bell, after some time, the door was opened and both A3 and A2 were found inside the house and they were asked to hand over the bribe amount, but they did not cooperate. Thereafter, following the searches in the backyard of the house, one orange coloured plastic bag containing Rs. 4 Lakhs was recovered in the presence of independent witnesses. Thereafter, hand washes of both the accused persons were obtained in a colourless solution of Sodium Carbonate which turned into pink colour. Thereafter, further searches were made in the premises of the above accused persons and huge amount of cash of Rs.94 Lakhs was recovered. It was also alleged that the message box of mobile of A3 revealed that he was working as a tout for collecting huge amount of money from various persons in lieu of delivering favourable judgments from his wife i.e. A2.

JUDICIAL ORDERS:

ROUND 1:

The CBI didn’t seek Police custody/remand of the Judge (A2) but sought for 3 days Police custody/remand of the A1 and A3. The primary ground for which the PC remand was being sought by the CBI for the accused persons A1 and A3 was that the investigation was at a very crucial stage and ramification of conspiracy between the Judge Mrs....(A2) and A3 (husband of A2 and also a practicing lawyer) and A1 (practicing lawyer and also a local commissioner in the concerned case in the concerned court) was yet to be established. The concerned Special Judge, CBI, Delhi vide order dated 29.09.2016 sent the Judge (A2) in judicial custody and granted 2 days PC of the A1 and A3. The Special judge allowed 2 advocates as named by the A1 and A3 to be present between 10.00 AM to 11.00 AM on each day during interrogation of the A1 and A3 in the police custody purportedly under Section 41D of the CrPC (I think said Section not yet notified and enforced. Nevertheless, the Supreme Court in the case of DK Basu, Ashok K Johri vs State of WB, State of UP, 1996 had held that the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation).

ROUND 2:

The Judge (A2) applied for bail in the concerned Court of Special Judge, CBI, Delhi. It was argued by Ld. Senior Counsel for A2, that there was no initial demand nor there was any demand at the time of actual trap flowing from A2 nor there is any acceptance on behalf of A2. He has also argued that A2, as per the case of prosecution, had neither contacted the complainant nor A1. Therefore, he has argued that Section 7 and 13(2) r/w Sec.13(1)(d) of PC Act, 1988 are not made out in the present case. He has also argued that in the present case benefit of proviso to Section 437 Cr.P.C be extended to A2, as A2 is a female having two minor children, aged 9 years and 7 years respectively, one of them is studying in 3rd class and other child is studying in first class and there is no one to look after them, as her husband i.e. A3 is also under incarceration. He has also argued that the mother of A2 is seriously sick, having to undergo dialysis on regular basis. He has also argued that entire court record of A2 has been sealed, therefore there are no chances of tampering with evidence, nor there are chances of A2 fleeing from justice. Therefore, he has argued that it is a fit case where bail should be extended to A2. In support of his contention(s) he  relied upon following judgments:(I) 2003(70) DRJ 327 titled as Shameet Mukherjee Vs. CBI  (ii) 1986(23) ACC 10 titled as Smt. Shakuntala Devi Vs. State of Uttar Pradesh. (iii) 2016 SCC Online Del. 4533 titled as Nisha Arya Vs. The State(NCT of Delhi)

Per contra, Ld. Public Prosecutor for CBI strongly opposed the bail application of A2 on the ground that, though there may be no direct demand on behalf of A2, but the entire facts presented before the Court clearly demonstrates demand flowing from A2, A1 was only acting on behalf of A2 as a conduit or agent to extract money. In any case, A1 was not in a

position to give any favour to the complainant, it was only A2 who was in a position to give favour to the complainant by passing a favourable judgment with regard to the case of the complainant, which was pending before A2. He has also argued that it is not necessary that to make out Section 7 of PC Act, 1988 a public servant should directly accept the bribe money. Said bribe money can be accepted either by himself or through any other person on his behalf and Section 7 of PC Act is even otherwise attracted where a public servant agrees to accept the said bribe money. He has also argued that investigations are at a very initial stage and

considering the fact that the entire judicial institution has been defamed, it is a fit case where bail should not be granted to A2 nor proviso to Section 437 Cr.P.C is applicable to the facts of the present case considering the gravity of the offence(s) for which she has been booked. He has also argued that huge amount of 94 lakhs was recovered from the house search of A2.

After going through the rival contentions of the both sides the court noted that there is no initial demand made by A2 during the verification proceeding(s) nor there was any demand

flowing from A2 during the actual trap nor there is any recorded conversation of A2 in this regard. The acceptance of bribe money was made by the husband of A2 i.e. A3. Regarding recovery of Rs.94 Lakhs from the house in possession of A2, admittedly the said house was in joint possession of A2 and her husband A3, as A3 is a practicing Advocate, the source to whom the said money belongs, is a matter of investigation and trial. This amount of Rs.94 Lakhs in any case, does not pertain to the present trap case. The Court further noted that ratio of the judgment by the Supreme Court in the case of Nisha Arya Vs. The State (supra) is squarely applicable to the facts of the present case as A2 is a female having two minor children, aged 7 and 9 years respectively, her husband A3 is also under incarceration, there is

nobody to look after them, as admittedly the Investigating Agency had not sought any police custody remand of A2, therefore investigation qua A2 is complete and she is no more required for further investigation. There is no apprehension of absconding of A2, as she belongs to respectable strata of society nor there are any chance of tampering of evidence by her, as the entire records pertaining to her Court have already been sealed.

 The Hon’ble Supreme Court in said case had held that “be that as it may, the fact of the matter is that both the applicants are female being married women having minor children to support and to be looked after by them. They are undisputedly no more required for their custodial interrogation and appropriate conditions can always be imposed upon them in order to allay the apprehension raised on behalf of complainant. Out of the offences charged in this case, all offences except offences under Section 308/452 IPC are bailable in nature. So far as, offence under Section 308 IPC is concerned, it is informed to the Court that complainant was discharged from the hospital on the same day. Trial may take considerable time and thus, no useful purpose would be served by keeping the applicants behind the bars”.

Eventually, vide order dated 3.10.2016, the Hon’ble Special Judge, CBI, Delhi held that it was a fit case where accused should be on bail. Accordingly, the Judge (A2) Mrs…..was admitted to bail on execution of personal bond in the sum of Rs.50,000/with one surety in the like amount.

FIR, Arrest and Sanction for Prosecution Re Judicial officers/Judges vis-a-vis Independence of Judiciary

LOWER JUDICIARY:-

In Delhi Judicial Service vs State Of Gujarat And Ors. Etc-Etc (1991), the Supreme Court held that a Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think that the following guidelines should be followed:

(A) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.
(B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.

(C) The facts of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.

(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.

(E) Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge.

(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher rank, it' available.

(G) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and' handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be

personally liable for compensation and/or damages as may be summarily determined by the High Court.

The above guidelines are not exhaustive but these are minimum safeguards which must be observed in case of arrest of a judicial officer. These guidelines should be implement- ed by the State Government as well as by the High Courts. We, accordingly, direct that a copy of the guidelines shall be forwarded to the Chief Secretaries of all the State Governments and to all the High Courts with a direction that the same may be brought to the notice of the concerned officers for compliance.

HIGHER JUDICIARY:-

In K. Veeraswami v. Union of India (1991), the Supreme Court directed that no criminal case shall be registered under Section 154, CrPC against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Thus, in order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filling FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with the advice given by the Chief Justice of India. If the Chief Justice of India is of the opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned the President shall not accord sanction to prosecute the Judge. This will save the Judge concerned from unnecessary harassment as well as from frivolous prosecution against him. Similarly in the case of Chief Justice of India the President shall consult such of the Judges of the Supreme Court as he may deem fit and proper and the President shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court.

SNAPSHOTS FROM PATNA HIGH COURT JUDGMENT DATED 30 SEPTEMBER 2016 STRIKING DOWN THE SECTION 19 (4) OF THE BIHAR EXCISE ACT, 1915 (AS AMENDED BY BIHAR EXCISE (AMENDMENT) ACT, 2016)

SNAPSHOTS FROM PATNA HIGH COURT JUDGMENT DATED 30 SEPTEMBER 2016 STRIKING DOWN THE SECTION 19 (4) OF THE BIHAR EXCISE ACT, 1915 (AS AMENDED BY BIHAR EXCISE (AMENDMENT) ACT, 2016)

Confederation of Indian Alcoholic Beverage Companies etc etc   vs The State of Bihar etc etc  (Civil Writ Jurisdiction Case No.6675 of 2016) Bench: CHIEF JUSTICE  Iqbal Ahmed Ansari and JUSTICE NAVANITI PRASAD SINGH

1.       Just to illustrate the unreasonableness, consider a case of a person born and brought to the Metropolis like Bombay or Delhi, educated there and serving there. Consumption of liquor to him is a part of his life and part of his relaxation, he is accustomed to it. If he has to move to this State and has an option, he would not do so, because he would have to give up his life style. That would infringe not only Article 21 but also Article 19 (1) (d) and Article 19 (1) (e) of the Constitution. He would be inhibited from coming to this State. India is one country.

2.      A person traveling by car or by train and traversing the territory of Bihar, he is caught in a predicament that he is going from a State, where there is no prohibition, and going to State, where there is no prohibition. He may be an army or defence personnel carrying his liquor ration or a ordinary citizen carrying his drink to his destination. Neither of them consumed the same in this State; still they are to be persecuted and prosecuted why? Their only sin is that they chose or perforce traversed the territory of Bihar. Similar would be the case of liquor being transported from one State to another, but crossing through Bihar.

3.      A citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well. While holding so, the Patna High Court referred to a writ petitions filed by a Retired Lt. Colonel of Army wherein he has pleaded that all along, his long career in the defence forces, he was used to taking liquor regularly. Even after retirement, his liquor ration continues. Being domicile of this State, upon retirement, he is living in Patna. He picks up his ration of liquor from Danapur Cantonment within the district of Patna; but, now, all of a sudden, he cannot bring it home nor can he drink at home and his long habit has come to an end, considerably upsetting him. He cannot even go to the Cantonment to have a drink for fear of being hounded on way back to home outside the Cantonment. Then, turned to the case of Dr. Priya Ranjan and Dr. Anil Kumar Prasad Sinha, who not only consume alcohol responsibly, but consider it to be good and helpful in certain medical conditions

4.      The presumption of innocence is totally taken away and the burden of proof thereof is put on the accused. Such provisions are found in many laws; but here a person, charged with any offence under the Act, starts with a presumption of guilt against him till he proves himself innocent. For any reason, if he fails to prove his innocence, he would straightway be liable to punishment, which would be of minimum 10 years imprisonment with astronomical fine and would lose his entire property by virtue of confiscation and the Courts are rendered helpless in the matter even though there may be mitigating circumstances.

5.      Provision of collective fine is entirely depended upon subjective satisfaction of the Collector. What is the fine is left totally to the discretion of the Collector. How and what would constitute a group and how an area would be identified, in a town or a village, is neither known nor defined. No one has to be heard before fine is imposed. There is no provision for appeal. It is a piece of substantive law. Substantive law without guidance and without procedural safeguards can only be termed as draconian, it being completely vague, uncertain and unlimited. Even though it may professed to have a social objective to attend, the means to achieve the same - are clearly unconstitutional. The provision is, thus, clearly ultra vires the Constitution being in violation of Articles 14 and 21 of the Constitution.

6.      The Court adverted to the Narcotic Drugs and Psychotropic Substances Act, 1985. With reference to Sections 15, 17, 18 and 22 thereof, it is shown that while providing for punishment in relation to poppy straw, opium, opium poppy and psychotropic substances respectively, there is graded punishment in the sense where contravention involves small quantity, the maximum punishment is six months imprisonment or with fine, which may extend to Rs. 10,000.00 or both. For contravention involving quantities more than small quantity, but less then commercial quantity, the punishment extends to 10 years with fine, which may extend to Rs. one lakh and when it involves commercial quantity the punishment is not less than 10 years imprisonment with fine not less than Rs. one lakh, but may extend to Rs. 2 lakhs. Reference then made to Section 27 of the Act, which is punishment in relation to consumption of Narcotic Drugs or Psychotropic Substances, the punishment is maximum one year with fine up to Rs.20,000.00. The provisions would show that, except for commercial quantity, there is ample discretion on the Court. It is not that any quantity is found, the punishment of imprisonment would be mandatory and, that too, like in the Bihar Excise Act, minimum of 10 years. Thus, a humble rickshaw-puller found with only a bottle or a pouch of country liquor would, now, be exposed to minimum of 10 years of imprisonment with a fine of Rs. one lakh, an amount, which he had ever never possessed or seen. This has to be seen in juxtaposition of presumption clause.

7.      Where any premises or part thereof is or has been used for committing any offence under this Act, the same can be sealed but liable to be confiscated also. The arbitrariness of the provision is apparent from the fact that even when the owner of the premises may not at all be aware of what is being done in his premises, premises being rented out, in view of presumption clause, for an offence committed by his tenant or anyone in his permissive possession, over which he has no control, his premises would be confiscated. There may not be a more draconian provision. A house may consist of several rooms occupied by different members of the family. A particular member violates the law, the family premises is up for confiscation. If two neighbours are on inimical terms, one could easily plant liquor in the neighbours premises, the neighbour, being unaware; still, by virtue of the presumption clause, not only he gets convicted but his premises also get confiscated. These common day illustrations can be multiplied to show the draconian effect of the law. The effect of these provisions is virtually that we are converting the State into a Police State. Citizens would always be living under a threat or, at least, a threat perception of being easily implicated. That surely is not conducive and should not be permitted.

8.      Where restrictions imposed upon the carrying on of a business are so stringent that the business cannot in practice be carried on, the Court will regard the imposition of restrictions as unreasonable.

9.      Where a licensee is stopped, not by reason of licensees’ default, but pursuant to any policy of the State and, licences stands revoked prematurely in law, he is entitled to two reliefs (i) the proportionate refund of the licence fee and (ii) other compensation, which could only mean reasonable compensation for investments made and liabilities incurred for exploitation of licence.

10.  Curious to note that toddy (Tari), which is available in abundance and tapped freely without any licence or permit and sold freely not only in the rural areas but urban areas and which has alcohol content, undisputedly matching or above beer, has not been prohibited. It is freely available even today. There is no notification barring it. Then to say, that on one hand toddy can be freely tapped and sold unchecked, but foreign liquor or IMFL including beer cannot be sold or consumed does not stand to reason, if the true object of the State was to implement Article 47 of the Constitution. Further, State has not prohibited manufacture of IMFL/beer. Apart from others, Article 14 would clearly be violated here. 
11. Even if we consider Article 47 of the Constitution, it does not make it obligatory to impose prohibition. The use of expression “endeavour” therein shows that it has to come in a phased manner and not over night to make something, which was legal for centuries, illegal suddenly without warning of time to readjust. In view of the facts aforesaid, rights, inter alia, under Articles 14, 19 and 21 would come into play and, thus, we would have to see the reasonableness of restriction both in respect of the trade and in respect of the individuals

NOTE:

The Supreme Court (a Bench comprising Justices AK Sikri and NV Ramana)  on 30 September 2016  refused to entertain a PIL  (filed by Ashwini Kumar Upadhyay) for banning or containing consumption of alcohol in the interest of people’s health and quality of living while observing that “it is not for the court to say liquor should be banned or not. It is for the government to decide”.  The petitioner persisted with his plea as it was judiciary’s duty to protect people’s health by restraining them from consuming liquor which was hazardous. The Bench remarked that “How do you say it is hazardous? It poses problem only when taken in excess. Even medicines have side effects”.  The petitioner pleaded that studies had shown liquor was a health risk, irrespective of the quantity consumed. Unconvinced, the Bench said studies had thrown up conflicting findings and some had even suggested that red wine was good for health. It was not for the judiciary to identify the correct studies. The PIL had maintained that judiciary was supposed to protect the living standard as mandated under Articles 21 (right to quality life) and 47 (liquor prohibition) of the Constitution. In the petition, he had extensively cited instances of ruined families and people getting cancer and various other life threatening ailments due to addiction to liquor. He had provided news reports to highlight the need for enforcing at least part prohibition. Article 47 prohibited consumption of alcohol except for medicinal purposes, he pleaded. The state governments should be asked to create health awareness by declaring the first Sunday of every month as Health Day for educating people about the ill-effects of cigarettes, tobacco, liquor and other intoxicants. There should be a chapter in the school curricula for educating children in the 6-14 age group on the health and economic problems arising from substance abuse. (Source: The Tribune, 1 October 2016)

Abetment of suicide

Abetment of suicide (Ss. 306, 107 IPC)

Chitresh Kumar Chopra vs State, Criminal Appeal No. 1473 of  2009 (DOD 10 August, 2009)

In order to prove that the accused abetted commission of suicide by a person, it has to be established that: (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

NOTE:-  1. I think suicide note comes within the purview of Dying Declaration as contemplated in Section 32 clause 1 of the Indian Evidence Act, 1872. And Dying declaration can be the sole basis of conviction if it inspires the FULL CONFIDENCE of the Court. 2. In the case of married woman committing suicide within a period of seven years from the date of her marriage and it is shown that her husband or relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by relative of her husband (S. 113A, The Indian Evidence Act, 1872)

Need and Legal Possibility of Abrogation of Instant Triple Talaq vis-à-vis Skepticism on Practical Possibility of Uniform Civil Code in India

Need and Legal possibility of Abrogation of  Instant Triple Talaq vis-à-vis Skepticism on Practical Possibility of  Uniform Civil Code in India

Instant Triple Talaq (Talaq-ul-Biddat) encompasses both social and legal issues.  Right to freedom of religion enshrined in the Article 25(1) of the Constitution is circumscribed by the considerations of public order, morality and health and to the other provisions of the Part 111 thereof (ie other fundamental rights viz. equality, non-arbitrariness, non-discrimination, dignity, gender justice etc). Assuming that Instant Triple Talaq finds sanction in Islamic Sharia Law and further validated by the Muslim Personal Law (Shariat) Application Act, 1937, nevertheless, being a lesser right will have to give way to aforesaid constitutional right(s).  Moreover, the Article 25(2) fully empowers the State to make any law providing for social welfare and reform.  It is no gainsaid to emphasize that Triple Talaq is an archaic & retrogressive practice and a social vice grossly violating the dignity of women. If the State does away with this by enacting a law, any challenge to such measure of social welfare and reform on the premise that it impinges upon the religious freedom of any section may not survive in view of the said Article 25(2). (Note: Somewhat similar contentions may also be put-forth qua polygamy and Nikah Halala. Nikah Halala: If the woman after being divorced and after observing her waiting period (Iddat period) wished to marry another man, she can do so. This second husband by total coincidence and on his own accord also divorced her or died after having sexual intercourse with her, then after observing the full waiting period, she can remarry her first husband).

However, idea of Uniform Civil Code in India per se is highly intricate and debatable issue. In India, we have different set of laws for various religious communities relating to personal matters like marriage, divorce, adoption, maintenance and property known as personal laws.  UNIFORM CIVIL CODE is the proposal to replace the  PERSONAL LAWS of each  religious community in India with a common set governing every citizen irrespective of religion.  Article 44 of the Constitution exhorts the State to endeavor to secure for the citizens a UNIFORM CIVIL CODE throughout the territory of India. However, even a cursory glance through the Hindu Law-mostly codified (applicable on about 81% Indian population) and Mohammedan Law-mostly uncodified (applicable on largest minority i.e. Muslims constituting about 15% of Indian population) reveals that these laws vary in myriad ways both in theory and practice as applicable on people belonging to different caste, race, sects etc within a religious community. 

Notwithstanding having codified enacted Hindu laws (on inheritance, succession, adoption, marriage, divorce etc), customs/usages having force of law (as saved by said laws) govern different castes among Hindus as discernible from some examples given below:

1.   The Section 3 (g) of Hindu Marriage Act, 1955 enumerating the “Degree of Prohibited Relationship” prohibits the marriage with a widowed bhabhi. However, Kareva marriage (also known as लत्ता/चादर उढ़ाना, चूड़ी पहनाना, हाथ रखना ) is prevalent in certain castes among Hindus and same has been saved by Section 5(iv) of HMA, 1955 (ie giving primacy to liberal custom/usage). The legal position qua Hindu Marriage may be summed up as “stricter enacted law gives way to liberal customs”.

2.   Section 29(2) of HMA, 1955 saves customary divorce prevalent in certain castes.

3.   Under Mitakshara Law a son (although now daughter also) can ask for partition of ancestral/HUF property from the father during his lifetime.  However, customary law in agriculturist communities among Hindus in northern India does not recognize such right of a son.

4.   Conditions governing adopted child and adoptive person as prescribed by Sections 10 & 11 of the Hindu Adoption and Maintenance Act, 1956 are subject to customs or usages applicable to parties.

Likewise, the Sunni and the Shia schools of Mohammedan Law  do have important points of differences on the matters of Marriage,  Talaq, Dower, Maternity, Guardianship, Maintenance, Gift, Waqf, Pre-emption, Wills, Inheritance e.g.  

1.    Among the Shias temporary marriage (Muta) is lawful but not so among the Sunnis.

2.    The Sunni law prescribes the presence of two male witnesses at the time of marriage which the Shia law does not deem it a necessary condition.

3.    Talaq under Sunni  laws may be effected orally or by a written document. Under Shia law a Talaq must be pronounced orally in the presence of two witnesses and a Talaq communicated in writing is not valid unless the husband is physically incapacitated. Most importantly, Shia Law does not recognize Talaq-ul-Biddat (Instant Triple Talaq).
   Khojas and Cutchi Memons Muslims are governed in the matters of inheritance and succession by old Hindu Law.
 The Articles 371A and 371G  further provide that no parliamentary law- dealing with religious or social practices of Nagas/Mizos, Naga/Mizo customary law and procedure, administration of civil and criminal justice involving decisions according to Naga/Mizo customary law- unless the Legislative Assemblies of Nagaland and Mizoram by  resolutions so decide.
Uniform Civil Code may indeed be a good proposition. Nonetheless, it's immensely pertinent to mention herein that The Hindu Marriage Act, 1955 clearly enumerates the persons who are out of bounds in the form of ‘sapinda relationship’ and 'degree of prohibited relationship' for the purposes of marriage. At the same time it does not prohibit the same gotra marriage in toto. Marriage with a person placed beyond the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father is valid and legal.However, ultra sensitive disposition of certain people among Hindus especially in northern India over the issue of same gotra/same village/bhaichara/ghwand marriages sometimes even leading to bloodshed (Honour Killings) although Hindu Marriage Act, 1955  unequivocally permitting such marriages since 1955 shows that every good idea is not necessarily practicable and acceptable to all.

Hence, instead of chasing after an elusive and politically loaded notion of UNIFORM CIVIL CODE, need of hour is to remove the social vices (gender discrimination, archaic & retrogressive practices etc) from the different personal laws governing the different religious communities and to modernize (reform) them in sync with  the demand and challenges of the modern age to attain UNIFORMITY OF RIGHTS/EQUALITY OF LAWS (distinguishable from uniformity of laws) as far as possible in tune with fundamental rights enshrined in part 111 of the Constitution.

 NOTE:

1. Personal law is not included in the expression "laws in force" used in Articles 13(1) and 372(1) - Bombay High Court in the State Of Bombay vs Narasu Appa Mali, 1951; Supreme Court in the Ahmedabad Women Action Group vs Union Of India, 1997.

2.The Prohibition of Child Marriage Act, 2006 and The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 apply to all citizens of India (except in Jammu and Kashmir) irrespective of their religious adherence. Moreover, vide Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced woman and her former husband may declare, by affidavit or any other declaration in writing in such form as may be prescribed either jointly or separately, that they would prefer to be governed by the provisions of Section 125-128 of the CrPC, 1973.

3. (i) The Special Marriage Act, 1954 providing for a special form of marriage (vide S. 12 (2) the marriage may be solemnized in any form which the parties may choose to adopt subject to the conditions enumerated in the proviso thereto), for registration of such and certain other marriages and for divorce may be availed of by all citizens of India (except Jammu and Kashmir) irrespective of religion, ethnicity and linguistic affiliation. Moreover, vide S. 22 succession to the property of any person whose marriage is solemnized under said Act and to the issue of such marriage shall be regulated by the provisions of the Indian Succession Act, 1925. However, the Section 21A (inserted by Act 68 of 1976 in the said Act of 1954) has exempted the Hindu, Buddhist, Sikh, Jaina inter alia from the effects of section 21. (ii) The Indian Succession Act, 1925 and The Guardian and Wards Act, 1890 dealing with intestate and testamentary succession, and guardianship respectively applies to all citizens to varying degree

4. The Goa Uniform Civil Code (Goa Family Law):

(Source: https://en.wikipedia.org/wiki/Goa_civil_code)

It  is a  set of civil laws that governs the residents of the Indian state of Goa  irrespective of religion, ethnicity or linguistic affiliation. The Goa civil code is largely based on the Portuguese Civil Code of 1867, which was introduced in Goa in 1870. Later, the code saw some modifications via  the Portuguese Gentile Hindu Usages Decrees of 1880, the Portuguese Decrees on Marriage and Divorce of 1910, the Portuguese Decrees on Canonical Marriages of 1946. The civil code was retained in Goa after its merger with the Indian Union in 1961. In 1981, the Government of India appointed a Personal Law Committee to determine if the non-uniform laws of the Union could be extended to Goa. The Goa Muslim Shariah Organization supported the move, but it was met with stiff resistance from the Muslim Youth Welfare Association and the Goa Muslim Women's Associations.

(i) SOME WAYS IN WHICH THE GOA CIVIL CODE IS DIFFERENT FROM OTHER INDIAN LAWS INCLUDE: A married couple jointly holds ownership of all the assets owned (before the marriage) or acquired (after the marriage) by each spouse. In case of a divorce, each spouse is entitled to a half share of the assets. However, the law also allows ante-nuptial agreements, which may state a different division of assets in case of a divorce. These agreements also allow the spouses to hold the assets acquired before marriage separately. Such agreements cannot be changed or revoked. A married person cannot sell the property without the consent of his/her spouse.The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children compulsorily. This inherited property must be shared equally among the children. Muslim men, who have their marriages registered in Goa, cannot practice polygamy. Also, there is no provision for a verbal divorce.

(ii) THE GOA CIVIL CODE IS NOT STRICTLY A UNIFORM CIVIL CODE, AS IT HAS SPECIFIC PROVISIONS FOR CERTAIN COMMUNITIES. FOR EXAMPLE: The Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits bigamy. The Roman Catholics can solemnize their marriages in church after obtaining a No Objection Certificate from the Civil Registrar. For others, only a civil registration of the marriage is accepted as a proof of marriage. The Catholics marrying in the church are excluded from divorce provisions under the civil law.  For Hindus, the divorce is permitted only on the grounds of adultery by the wife. The law has inequalities in case of adopted and illegitimate children.

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