The Constitution as a Living Document

A party or a government which comes to power swearing on the constitution but does not share its vision is not only committing perjury, but is profoundly anti-republic.

Credit: Wikimedia Commons

The republic has never felt more endangered than it does at 69. When Union minister Anant Kumar Hegde let slip the public secret that the BJP/RSS government is here to change the constitution, the problem is not that the constitution cannot and should not be changed, but what direction that change will take, and whether it will destroy the very basis of the republic or strengthen it.

Justice, liberty, equality, fraternity – these progressive values in the constitution are the last defence of the republic. It is clear, however, that these are not values shared by the RSS from the moment of its inception and that indeed, the RSS regards these as an obstacle to realising its own vision of the country.

In the last couple of years, the ABVP, supported by pliant university authorities, has stopped several campus events which explicitly set out to celebrate the constitution or Indian democracy, such as one at the Delhi School of Economics in August 2017 and another at Allahabad in September 2017, titled Jashn-e- Samvidhan. It is only an organisation which is itself deeply anti-national and anti-democratic that can object to others celebrating the constitution or democracy.

If people are to be reduced to their caste or religious identity, as Hegde, the Karni Sena, and various other fronts of the RSS want, it is not only the term secularism which will go, but equality, liberty and fraternity as well. For secularism is nothing but the equality of all religions in the public sphere and fraternity across religions and caste as practiced by individuals in their public and personal capacities.

Authoring the constitution

The constitution has never been a frozen document, and it has always had multiple authors. Notwithstanding the sterling role played by the drafting committee and Babasaheb Ambedkar, the constitution as it exists today is a product of interactions between three elements: the text, the courts and above all, ‘the people’.

Even at the time it was framed, the text was not a closed document. There were at least four elements that informed the making of the constitution – existing administrative provisions such as those embodied in the Government of India Act of 1935, internationally accepted constitutional principles, the ideals of the freedom struggle, including universal adult suffrage, and the events that were taking place in a country slowly emerging out of World War II, famine and above all, Partition. As the chronicler of the constitution, Granville Austin, famously wrote, “Fundamental rights were to be framed among the carnage of fundamental wrongs.”

At one level, the similarities with the 1935 Act make the constitution appear almost pre-ordained. But the final product came out of sometimes deeply-contested arguments between deeply-opposed individuals. Not every shade of opinion was equally represented, especially the Communists, and the franchise on the basis of which members were elected was less than 30% of the adult population.

Chauvinism was rife, for instance, when Shri RV Dhulekar declared that he would only speak in Hindi as “People who do not know Hindustani have no right to stay in India” or when Muslim members were heckled, for example, on their demand for proportional representation. The great adivasi leader Jaipal Singh was taunted about his elite lifestyle, and simultaneously accused of being parochial, forcing him to list the multiple languages he could speak and the tribal areas he had visited. Women like Sarojini Naidu were courteously infantilised, but also managed to turn the tables on their male colleagues.

In all, the constituent assembly was just as much as a space of conflict and collegiality, as many current assemblies, and its hallowed status in the country’s history should not blind us to the fact that real individuals and not mythic heroes populated it.

The final shape the constitution took was often weaker than it could have been, and this is very visible in the 5th Schedule, where the original proposal gave far more power to the Tribes Advisory Council than it currently has (where the council can only consider matters referred to it by the governor). In response to Jaipal Singh’s demand that the powers of the Tribes Advisory Councils be preserved, KM Munshi declared that the tribes could not be allowed to advise on questions of law and order or forests.

But those are precisely the issues that have subsequently agitated adivasi movements. Had Jaipal Singh’s suggestion to use the term adivasi in the constitution not been rejected, we would not have had absurd judgments like the one in Prem Mardi vs Union of India, 2015, where the judge rejected the demand to ban MSG 2 for glorifying the killing of adivasis on the grounds that the constitution did not mention the term adivasi anywhere.

The constitution makers had much to answer for, including the neglect of villages. But what is equally amazing is how much they got right, especially in terms of fundamental rights, universal suffrage and a host of other features.

And where they missed out, the citizenry has intervened to expand the constitution in meaningful directions.

The courts

Much of the work on the Constitution, such as Granville Austin’s Working a Democratic Constitution or the Oxford Handbook of the Indian Constitution, has focused on the landmark judgments by which the courts have interpreted and extended the constitution.

In particular, we recall with a sense of relief and gratitude the outcome of the 13-judge bench which decided Kesavanand Bharati upholding a ‘basic structure’ to the constitution, or the several PILs which have extended the Right to Life to life with dignity. But the constitutional statements of the courts, as we all know, are themselves a medley of factors.

The most important, perhaps, is the text of the constitution itself, which in principle at least, shapes judicial activism. The caste, class and gender backgrounds of the judges matter, even though in India we have relatively little information on how these influence their judgments, at all levels of the judiciary, not just the Supreme Court. At the same time, there is a certain kind of common habitus that professional training develops in them. The text of the constitution and a certain professional fidelity to interpreting its spirit means that judges often go beyond their background in remarkable ways.

The recent judges’ press conference was such a remarkable event, precisely because of the psychological hurdles that judicial professionalism imposes. If judges who are trained to be silent start speaking, we must assume that things are seriously amiss for them to have taken this step. Finally, the court’s contribution to shaping the constitution depends heavily on the kind of cases that are brought before them, even though there are also many instances of lawyers (and even judges) mobilising petitioners when they want certain principles argued.

And this is where the people come in – for without petitioners to bring a complaint against Aadhaar, against Section 377, for the right to food, or for the freedom of expression, the judges would have no occasion to exercise their craft. Rohit De’s work on the early years of the Supreme Court provides a fascinating glimpse into how people engaged with the constitution and transformed it. It is true that often the courts are closed off to the poor, but citizens have a responsibility to try and force the judiciary and legislature to attend to sections of the public or take up issues that they would not otherwise have cared about.

The people

The role of ‘the people’ in preserving and extending the constitution, however, goes far beyond bringing cases to court, or electing representatives once every five years. While the ideologies and programmes of successive governments are clearly important to the functioning of the constitution, through the various amendments they have brought in (land reform, abolition of privy purses, 73rd and 74th amendment etc.), in the end, they seek legitimacy for their changes in the name of public opinion.

The ‘public’ is clearly not homogenous, and while corporates can quietly get an SEZ act passed, other citizens have to struggle for years to get an act on the Right to Information, or the Right to Education. Some states are almost handed over to their elites on a platter like Chhattisgarh, while others like Jharkhand, Uttarakhand and Telangana have been long in the making.

When Dalit groups memorialise their caste histories as in Bhima Koregaon, youth are rounded up and arrested for having taken part, compared to the kid gloves with which dominant castes are treated. When it comes to the constitution, however, it is important to remember that the goal of Dalit or adivasi mobilisation is usually towards greater equality.

On the other hand, when traditionally dominant communities take umbrage at imagined slights or demand reservation for themselves, they do so in order to perpetuate inequality. Not all mobilisations are, therefore, in keeping with the values of the constitution, but the constitution has grown because all of these issues have been debated. In some respects like the Citizenship Act, which now makes citizenship conditional on having an Indian parent, rather than on birth alone, the constitution has actually shrunk from the vision of its founders.

As Ranabir Sammadar points out in an essay titled “Sovereignty and the dialogic subject”, when governments say that they will talk to insurgents in the Northeast or Kashmir only “within the framework of the constitution” they tend to forget that the constitution is not just a set of administrative provisions but also embodies the spirit of dialogue. The year 1950 cannot and does not represent a closure on what can or cannot be discussed, since the constitution is a living document.

Ultimately, the only thing that is not negotiable in the constitution is the hope for justice, equality, liberty and fraternity. A party or a government which comes to power swearing on the constitution but does not share this vision, and which believes in the supremacy of one religion or one language, is not only committing perjury, but is profoundly anti-republic.

Kerala HC Issues Notice to Centre on Orange Passports for ‘Unskilled’ Workers

The court was hearing a PIL which says the decision to introduce orange passports for those who are non-matriculate is discriminatory on several grounds.

Credit: Twitter

New Delhi: Kerala High Court on Monday issued a notice to the Centre on a public interest litigation over the Ministry of External Affair’s decision to introduce orange colour jackets for passports of ‘unskilled’ workers, terming it as a violation of the fundamental right to privacy and dignity.

According to media reports, a lawyer, Shamsuddeen Karunagappally along with a co-petitioner, Shajahan, who is an ECR passport holder, have filed the PIL. Both are residents of Kollam district in Kerala. A bench of acting chief justice Antony Dominic and justice Seshadri Naidu issued the notice.

Earlier this month, the MEA had announced that it planned to stop printing the last page of the passport booklet which listed several details including address and ECR status. “As the last page of the passport would not be printed now, the passport holders with ECR status would be issued a passport with orange colour passport jacket and those with non-ECR status would continue to get a blue passport,” MEA said on January 12.

The decision was criticised by opposition parties, including Congress and Left parties.

Under this new decision, Indian citizens who want to travel for employment in 17 countries would be given an ECR passport if their educational qualification is less than Class 10 and have less than taxable income.

According to Live Law, the PIL said that the visibility given to ECR passport holders with an orange jacket would increase discriminatory practices and also invade the privacy and dignity of the person.

“The move is targeting migrant workers in Middle Eastern countries. To make their underprivileged status known publicly through separate colour code is a grave invasion of their fundamental right to privacy and dignity. There is no rational objective to be achieved through this segregation. The segregation is demeaning and shockingly violative of the principle of equality,” said the petition.

As per a News 18 report, the decision not only “falls foul of the constitutional test of equality under Article 14 of the constitution of India”, but it also amounts to “hostile and unreasonable classification”.

The lawyer, in his petition, pointed out that no country has made instituted “discrimination” based on educational qualifications a possibility in their passports.

More than anything, he said it would increase the vulnerability of ECR passport holders, who are often targeted by recruiting agencies with false promises of employment.

“There could arise situations whereby it is easily revealed to the foreign authorities that the persons is uneducated and unskilled, and by making the vulnerable state of the person so evident and apparent, chances of such persons being exploited will be increased,” the petition said.

A report by the Press Trust of India on the petition added that the PIL also protested the government’s decision to omit last page of the passport containing details including the holder’s address.

national flag

Of Flags and Anthems: The Evolving Politics of Right-Wing Patriotism

A dig through the archives reveals just how curious it is for RSS and BJP to dictate to all Indians how and when they need to display their patriotism.

The RSS had favoured the Bhagwa Dhwaj, the saffron ‘split flag’ over the national tricolour, as it represents only Hinduism. Credit: Pixabay

The recent press conference of the four seniormost judges of the Supreme Court brought into the open, rather uncomfortably, certain defined positions within the highest court of the land that were hitherto discussed only in whispers.

The pronouncement made by justice Dipak Misra’s bench on November 30, 2016, directing “all cinema halls in India (to) play the national anthem before the feature film starts” appears, therefore, to represent one point of view. The honourable judge, who is now the Chief Justice of India, declared then that “all present in the hall are obliged to stand up to show respect to the national anthem” as it was an opportunity for citizens to express their “love for the motherland.”

The other point of view was voiced by justice D.Y. Chandrachud of the Supreme Court 11 moths later when he declared it was unnecessary for a citizen to “wear his patriotism on his sleeve”.

This October 27, 2017, order remarked that “the next thing will be that people should not wear t-shirts and shorts to movies because it will amount to disrespect to the national anthem… where do we stop this moral policing?” He had, incidentally, shared justice Misra’s bench in November 2016 and this subsequent categorical judgement is, therefore, an interesting example of the dynamics of India’s judicial system and the evolving concept of ‘justice’.

Anti-socials masquerading as ultra-nationalists soon utilised the mandatory order to play the national anthem to rough up those they suspected as not being sufficiently ‘patriotic’. To be frank, staring at a rather unaesthetic digital display of a fluttering synthetic flag didn’t generate sufficient voltage either.

A walk through history

The behaviour pattern of the current dispensation also contrasts rather sharply with the sensitivity that government had displayed earlier in 1963 when cinema halls were first advised to play the national anthem. This was just after the shocking attack by China when strong national sentiment had gripped India spontaneously without the need for patriotic injections.

From the archived files of the period, it appears that the Public Relations Committee set up by the National Defence Council to improve the mood of a demoralised nation recommended that a standard recorded version of the national anthem be played in film auditoria, with the national flag if possible.

But the 1963 order of the Home ministry issued on June 29, 1963, was only advisory rather than a diktat. Its wordings were “state governments are requested to persuade the cinema houses” with the expectation that it would work. Besides, the anthem was only to be played at the end of two shows, the matinee and evening, when audiences got up anyway, to leave: with no element of compulsion or vigilantism.

As no standard short film of the moving national flag was readily available, the films division was directed to produce two versions, a colour film for the “main halls in the big cities” and a black and white one for all other halls in these cities. Cinema halls in the rest of India could play only an authorised gramophone record.

The profuse notes kept on files and the numerous letters exchanged between officials of the Home ministry, the Information & Broadcasting ministry, All India Radio and the Gramophone Company of Kolkata during these eight months of 1963 presents us with insights into the bureaucratic obsession for being correct, detailed and, of course, free from controversy.

The files also preserve for posterity nuggets of history like how babus sitting in distant Delhi knew which 26 film theatres of Kolkata qualified as “main halls”. These included Metro, Elite, Globe, New Empire, Lighthouse, Minerva, Hind, Paradise, Priya, Basusree, Bijoli, Bharati, Indira, Purna, Sri and a few others. The second category of 71 ‘other halls’ of Kolkata included Aleya, Ajanta, Bharati, Chitra, Regent, Prachi, Uttara, Tiger, etc, but most names of both categories are just memories, except rare exceptions like Priya. People may soon forget the origins of Ujjalar Chanachur and Bijoli Grill.

In 1963, the films division promptly produced the desired films that were sold to the halls, at Rs 50 for the colour and Rs 32 for the black and white. The gramophone record that was marketed for cinema halls outside the metropolitan towns carried three sound tracks of 52 seconds each of the choral version of the national anthem where 60 artistes participated. As the reverse side of this record carried the same national anthem played by the military band, records tell us how bureaucrats spent sleepless nights wondering what calamity would befall if the cinema halls played that side by mistake.

Atonement for past failures?

As we all know, during wars patriotism rises to a peak but the fact that the wave recedes when national crises are over does not mean that citizens become unpatriotic. Playing the national anthem in cinema halls followed such patterns and since India has fortunately been free of wars since 1971, the practice was discontinued.

But as a sudden akal bodhan of patriotism is now sought, it may be appropriate to look up a bit of our history. It is matter of record that the Rashtriya Swayamsevak Dal or the RSS that gave birth to the Jana Sangh and its successor, the Bharatiya Janata Party, did not participate in the nation’s freedom struggle quite deliberately.

We cannot, therefore, be certain whether the current overdrive of pumped up patriotism is an act of atonement or an attempt to superimpose on historical memory with retrospective effect. In fact, in August 1947, the RSS’s mouthpiece, Organiser declared that the Indian national tricolour will “never be respected and owned by the Hindus. The word three is in itself an evil, and a flag having three colours will certainly produce a very bad psychological effect and is injurious to a country.”

The logic is flawed as several holy Hindu symbols have three and even the post Vedic trinity of Brahma, Vishnu and Maheshwar are integral to Hindu belief and worship. Even the earlier issues of Organiser dated July 17 and 22 had also stated the RSS’s opposition to many such national issues.

In fact, the second sarsangh-chalak or head of the RSS, MS Golwalkar bemoaned in his book, Bunch of Thoughts, that “our leaders have set up a new flag for the country. Why did they do so?… Ours is an ancient and great nation with a glorious past. Then, had we no flag of our own? Had we no national emblem at all these thousands of years? Undoubtedly we had. Then why this utter void, this utter vacuum in our minds?”

Golwalkar did not, however, tell us what ancient flag or national emblem of India we had lost. The RSS has all along favoured the Bhagwa Dhwaj, the saffron ‘split flag’ over the national tricolour, as it represents only Hinduism without any doubt. When exactly did the RSS remove its opposition to the national flag and why? History tells us that Sardar Patel, whose statue the ruling party now plans to set up as the tallest in the world, had slammed down on the RSS and banned it immediately after Mahatma Gandhi’s assassination on January 30, 1948. He did not budge in the next one and a half years despite pleas from Golwakar.

It was only on July 11, 1949 that he lifted the ban after the RSS pledged to stay away from politics; not be secretive and abjured violence. More important, it had to profess “loyalty to the constitution of India and the national flag”. It is strange, therefore, for the RSS and its political creation called the BJP to be dictating after 70 years to all Indians how and when they need to display their patriotism.

Criminal Law

Criminal Defamation and the Supreme Court’s Loss of Reputation

The Supreme Court’s refusal, in Subramanian Swamy v. Union of India, to strike down the anachronistic colonial offence of criminal defamation is wrong. Criminalising defamation serves no legitimate public purpose; the vehicle of criminalisation – sections 499 and 500 of the Indian Penal Code, 1860 (IPC) – is unconstitutional; and the court’s reasoning is woolly at best.

Politics and censorship

Two kinds of defamation actions have emerged to capture popular attention. First, political interests have adopted defamation law to settle scores and engage in performative posturing for their constituents. And, second, powerful entities such as large corporations have exploited weaknesses in defamation law to threaten, harass, and intimidate journalists and critics.

The former phenomenon is not new. Colonial India saw an explosion of litigation as traditional legal structures were swept away and native disputes successfully migrated to the colonial courts. These included politically-motivated defamation actions that had little to do with protecting reputations. In fact, defamation litigation has long become an extension of politics, in many cases a new front for political manoeuvring.

The latter type of defamation action is far more sinister. Powerful elites, both individuals and corporations, have cynically misused the law of defamation to silence criticism and chill the free press. By filing excessive and often unfounded complaints that are dispersed across the country, which threaten journalists with imprisonment, powerful elites frighten journalists into submission and vindictively hound those who refuse to back down. Such actions are called Strategic Lawsuits against Public Participation (SLAPPs) which Rajeev Dhavan warns have created a new system of censorship.

Petitions and politicians

Defamation originates from the concept of scandalum magnatum – the slander of great men – which protected the reputations of aristocrats. The crime was linked to sedition, so insulting a lord was akin to treason. In today’s neo-feudal India, political leaders are contemporary aristocrats. Investigating them can invite devastating consequences, even death. Most of the time, they retaliate through defamation law. Since the criminal justice system is most compromised at its base, where the police and magistrates directly interact with people, the misuse of criminal defamation law hurts ordinary citizens.

This is different from politicians prosecuting each other since they rarely, if ever, suffer punishment. Of all the petitions before the Supreme Court concerning the decriminalisation of defamation, the three that received the most news coverage were those of Subramanian Swamy, Rahul Gandhi, and Arvind Kejriwal. They are all politicians, their petitions were made in response to defamation complaints filed by rival politicians. On the other hand, there are numerous cases which politicians have filed against private members of civil society to silence them. When presented with these concerns, the Supreme Court simply failed to seriously engage with them.

The architecture of defamation

Defamation has many species, a convoluted history, and complex defences. Defamation can be committed by the spoken word, which is slander, or the written word, which is libel. The historical distinction between these two modes of defamation is based on the permanence of written words. Before the invention of the printing press, the law was chiefly concerned with slander. But as written ideas proliferated through mass publication technologies, libel came to be viewed as more malevolent and the law visited serious punishments on writers and publishers.

Such a distinction presumes a literate readership. In largely illiterate societies, the spoken word was more potent. This is why films and radio have long attracted censorship and state control in India. Before mass publishing forked defamation into libel and slander, there existed only the historical crime of libel. Historical libel had four species: seditious libel, blasphemous libel, obscene libel, and defamatory libel.

Seditious libel, which has been repealed in Britain, prospers in India as the offence of sedition which is criminalised by section 124A of the IPC. Blasphemous libel, repealed in Britain, fares well in India as the offence of blasphemy under section 295A of the IPC. Obscene libel, as the offence of obscenity, is criminalised by section 294 of the IPC. And defamatory libel, repealed in Britain, which is the offence of criminal defamation that the Subramanian Swamy case upheld, continues to exist under section 499 of the IPC.

supreme court view 4

Confusing harms

Of the many errors that litter the Supreme Court’s May 13, 2016 judgment in the Subramanian Swamy case, perhaps the most egregious is the failure to recognise the harm that criminal defamation poses to a healthy civil society in a free democracy. At the crux of this mistake is the Supreme Court’s failure to distinguish between private injury and social harm. Two people may, in their private capacities, litigate a civil suit to recover damages if one feels the other has injured her reputation. This private action of defamation was not in issue before the court.

On the other hand, by criminalising defamation, why should the state protect the reputations of individuals while expending public resources to do so? This goes to the concept of crime. When an action is serious enough to harm society it is criminalised. Rape strikes at the root of public safety, human dignity, equality, and peace, so it is a crime. A breach of contract only injures the party who was expecting the performance of contractual duties; it does not harm society, so it is not a crime. Similarly, a loss of reputation, which is by itself difficult to quantify, does no harm to society and so it should not be a crime.

Truth and the public good

It may be argued, and the Supreme Court hints, that at its fundament, society is premised on the need for truth; so lies should be penalised. This is where defamation law wanders into moral policing. In Indian and European philosophies, truth is consecrated as a moral good. The Supreme Court quotes from the Bhagavad Gita on the virtue of truth. But while quotes like these are undoubtedly meaningful, they have no utility in a constitutional challenge. In reality, society is composed of truth, lies, untruths, half-truths, rumour, satire, and a lot more. In fact, the more shades of opinion there are, the livelier that society is. So lies should not invite criminal liability.

If we concede the moral debate and arrive at a consensus that the law must privilege truth over lies, then truth alone should be a complete defence to defamation. If the law criminalises untruth, then it must sanctify truth. That means when tried for the crime of defamation, a journalist must be acquitted if her writing is true. But the law and the Supreme Court require more. In addition to proving the truth, the journalist must prove that her writing serves the public good. So speaking truth is illegal if it does not serve the public good.

In fact, truth has only recently been recognised as a defence to defamation, albeit not a complete defence. This belies the social foundations of criminal defamation law. The purpose of the offence is not to uphold truth, it is to protect the reputations of the powerful. But what is reputation? The Supreme Court spends 25 pages trying to answer this question with no success. Instead, the court declares that reputation is protected by the right to life guaranteed by Article 21 of the Indian Constitution but it offers no sound reasoning to support this claim. The court also fails to explain why the private civil action of defamation is insufficient to protect reputation.

The constitution and constitutionalism

There are two core constitutional questions posed by the Subramanian Swamy case. They are:

  • Does the crime of defamation fall within one of the nine grounds listed in Article 19(2) of the constitution; and
  • Are sections 499 and 500 of the IPC which criminalise and punish defamation reasonable restrictions on the right to free speech?

Article 19(2) contains nine grounds in the interests of which a law may reasonably restrict the right to free speech. Defamation is one of the nine grounds, but the provision is silent as to which type of defamation, civil or criminal, it considers. However, B.R. Ambedkar’s comments in the Constituent Assembly arguably indicate that criminal defamation was intended to be a ground to restrict free speech.

The answer to the second question lies in measuring the reasonableness of the restriction criminal defamation places on free speech. If the restriction is proportionate to the social harm caused by defamation, then it is reasonable. However, restating an earlier point, criminalising defamation serves no legitimate public purpose because society is unconcerned with the reputations of a few individuals. Even if society is concerned with private reputations, the private civil action of defamation is more than sufficient to protect private interests. Further, the danger that current criminal defamation law poses to India’s free speech environment is considerable. Dhavan says: “Defamation cases [are] a weapon by which the rich and powerful silence their critics and censor a democracy.”

The Subramanian Swamy case highlights several worrying trends in India’s constitutional jurisprudence. The judgment is delivered by one judge speaking for a bench of two. Such critically significant constitutional challenges cannot be left to the whims of two unelected and unaccountable men. Moreover, from its position as the guarantor of individual freedoms, the Supreme Court appears to be in retreat. This will have far-reaching and negative consequences for India’s citizenry. If the court fails to enhance individual freedoms, what is its constitutional role? The judiciary would do well to stay away from policy mundanities and focus on promoting India’s democratic project, lest it injure its own reputation.

Judge Loya Case

Supreme Court Bench Headed by CJI to Hear Judge Loya Case

New Delhi: The Supreme Court bench headed by Chief Justice Dipak Misra will hear two petitions on Monday, seeking independent probe into the death of Special CBI Court judge B.H. Loya who was holding trial in the Sohrabuddin Sheikh fake encounter case.

Judge B.H. Loya. Credit: Facebook

The supplementary cause list issued on Saturday lists the petitions by social activist Tehseen Poonawala and Maharashtra-based journalist Bandhuraj Sambhaji Lone before the bench of the CJI, and justices A.M. Khanwilkar and D.Y. Chandrachud.

Earlier, the two petitions were being heard by the bench headed by justice Arun Mishra.

The allocation of Loya’s matter to a relatively junior bench was one of the bones of contention raised by four rebel judges in their unprecedented press conference on January 12.

The bench headed by Arun Mishra on January 17 recused itself from hearing the matter after the bench directed that all the documents furnished by the Maharashtra government to the court relating to the death of Loya be shared with the petitioners seeking independent probe.

The case came into limelight as BJP president Amit Shah was allegedly one of the accused in the case. Shah was later discharged by the special CBI court trying the Sohrabuddin Sheikh case.

SC Agrees to Hear ‘Padmaavat’ Producers’ Plea Against Ban in Four States

New Delhi: The Supreme Court on Wednesday agreed to hear the plea of producers of Bollywood movie Padmaavat, Bhansali Productions and Viacom18 Motion Pictures, against the ban imposed on its release by various state governments.

Image result for SC Agrees to Hear ‘Padmaavat’ Producers’ Plea Against Ban in Four States

A bench comprising Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud considered the submission of the counsel of the producer that the matter be heard urgently in view of the ban on its release by various state governments.

Rajasthan, Haryana, Gujarat and Madhya Pradesh have banned the movie citing law and order issues.

The movie is scheduled to be released on January 25.

In a Prevention of Corruption Act trial, the bribe-giver’s evidence and financial records are most important

The Prevention of Corruption Act, 1988 is the newest iteration of India’s anti-corruption laws. It criminalises the taking and the giving of bribes, the latter as abetment of the main offence of corruption, which consists of the following:

– Section 7 of the Act criminalises the act of taking gratification other than legal remuneration “as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person”.
– Section 8 criminalises the taking of gratification, “for himself or for any other person” to influence a public servant.
– Section 9 criminalises taking gratification for exercise of personal influence with a public servant.

– Section 10 provides for punishment for abetment by a public servant of the offences defined in Sections 8 and 9, that is, when any other person takes gratification for influencing a public servant

– Section 11 criminalises the act of a public servant obtaining a valuable thing, without consideration (or for inadequate consideration) from a person concerned in any proceeding or business transacted by such public servant.

– Section 12, which stipulates the punishment for abetting the offences defined in Sections 7 and 11, criminalises the act of giving a bribe.

– Section 13 defines the offence of criminal misconduct, which is essentially a more aggravated form of the offences criminalised through the previous sections and includes the famous offence of holding ‘disproporationate assets’.

– Section 14 provides for enhanced punishment for habitual offenders committing offences defined in Sections 8, 9, and 12.

Together, these sections describe the various offences that are considered ‘corruption’ in Indian law.

Public servant

Private-sector corruption is excluded. A concessionaire developing an airport for example, may have employees taking kickbacks for granting contracts, but that is not considered corruption. An offender has to be a “public servant”, that is, an employee of the Central or state governments, government companies, public sector banks, or an elected official.

Speedy trial

Trials have to be conducted quickly before a “special judge”, which is also why records cannot be called in a revision petition (Section 22) unless there are reasons to do so. When a superior revisionary court calls for the records of a case, there is an automatic stay on proceedings as case files are transferred to the revisionary court. Taking away any real possibility of this happening ensures a speedy trial.

Reversal of burden of proof

The biggest hurdle while defending someone accused under this statute is the reversal of the burden of proof in cases where any gratification, other than legal remuneration, has been accepted by a public servant. This presumption also applies, under Section 20, where gratification has been offered by a bribe-giver, that is, where the gratification given was a bribe. While the prosecution still has to prove that a public servant has accepted such an amount or any other thing with some financial value, once it is proven, it is completely up to the accused to prove that such an amount or gratification was not a bribe. This has to be done in detail and a cursory explanation will not suffice.

After fulfilling the initial evidentiary burden, the prosecution no longer has to prove their case ‘beyond reasonable doubt’. Section 20 (3) however, specifies that the court may decline to make this presumption if the gratification is so ‘trivial’ that no inference of corruption may be drawn.

Special investigative scheme

Cases under the Prevention of Corruption Act, at least in Delhi, are usually investigated by the CBI. Under Section 17, only an officer of the rank of an Inspector in the CBI (or an Assistant Commissioner of Police or Deputy Superintendent of Police in case of the state police) can investigate. Investigative officers do not have many special powers beyond those provided by the Code of Criminal Procedure, 1973 apart from the crucial power to inspect bankers’ books (that is, accounts and ledgers) at any time as long as the investigating officer believes that those accounts are relevant to any ongoing investigation of any person. There is no requirement of a warrant, apart from a determination by an officer of the rank of Superintendent or above that some accounts need to be inspected. This section also empowers such officers to take immediate certified copies of relevant entries and a bank has to assist them with it. This extraordinary power is very useful in a swift investigation.

Most offences under this Act (apart from petty ones) rely on the financial record and the money trail. As result of this, the Prevention of Corruption Act is not one of the harsher statutes regarding grant of bail. Since most of the evidence is record based and the severity of the punishments are not very high (six months to ten years imprisonment), bail is usually granted as a matter of course after some days in custody.

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Prosecution and protection of the bribe-giver

An interesting aspect of the Prevention of Corruption Act is the criminalisation of the act of giving a bribe. While Section 12 provides for punishing the abetment of bribe-taking, Section 24 seeks to protect bribe-givers when they becomes complainants or even witnesses. Under Section 24, a statement made by a person admitting to having offered illegal gratification cannot be used to prosecute him. So the (alleged) bribe-giver may, depending on the case, be a witness or a co-accused.

Cases under the Prevention of Corruption Act are usually of two kinds. They are either based on financial records of large amounts (these cases usually involved a conspiracy to defraud the government or a public sector bank) or what are known as ‘trap cases’. A trap case is where a person approaches the State Anti-Corruption Bureau or the CBI stating that there has been a demand of illegal gratification on the part of a public servant and the investigating agency then lays a trap for the accused officer along with the complainant. The trap may feature impartial witnesses (usually low-ranking government servants) and specially treated currency notes that leave a residue on the hands of people handling them so that they change colour when introduced into a particular solution. Apart from oral evidence, the prosecution uses this method to prove the incidence of the bribe.

However, the cornerstone of such cases remains the bribe-giver’s evidence. Since the bribe-giver is often an interested witness, that is, he asked the public servant to do or not do something, the bribe-giver’s testimony is also the focus for the defence. The credibility of the bribe-giver is often crucial to the result of a case.

Prior sanction to prosecute

Prior sanction is needed to prosecute public servants under Sections 7, 10, 11, 13, and 15. It has to be based on the original complaint as well as materials gathered during investigation and cannot be lightly or automatically given. It can only be given by the “Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.” However, the requirement of sanction is diluted to a large extent by the provisions of Section 19, which states that no conviction or finding can be altered on the ground of a defective sanction unless it has caused an actual failure of justice. It is not enough therefore, to show that a sanction is defective. The defence needs to show that it prejudiced the trial. So unlike some other statutes like the UAPA where it goes to the root of the matter, sanction under the Prevention of Corruption Act, once granted, is quite difficult to question.