5 Tips For Reading Judgments IN FULL

Judgments make the law.

There is perhaps nothing more important for a lawyer than to have the ability to closely and critically read judgments – often, many of them in a very short time. And ironically, this is not something that is prioritised in law schools: case notes and case summaries are often used as substitutes for reading judgments. This is perhaps because it is quite natural to think that, as long as one knows the holding of a case, one knows the law.

This, however, is a mistake.

You will see it for yourself if you first read the SCC headnotes of a case, then read the judgment itself, and note the difference in your understanding. Reading judgments in full allows you to develop your own unique perspective on the development of the law, as well as giving you a much deeper and clearer analytical grasp of the law as a whole.

[Watch a video on understanding and using judgments as legal authorities. This video is a part of our course on Legal Research.]

Reading judgments is often a thankless task, especially if it involves reading recent judgments of the Supreme Court, which are often very long. There are a few techniques that can make your task easier.

  1. Understand how the case reached the court

The first is to have a clear map in your mind about how the case got to the Supreme Court. Did it begin life as an Article 226 petition before the High Court, and is there a reasoned judgment of the High Court that is being appealed? You may not have time to go back and read the High Court’s judgment itself, but it is important to pay close attention to the Supreme Court’s summary of what the High Court held. Sometimes, the chain will go back even further, beginning in the trial court or a tribunal. In each of these situations, understanding the history of the case will make it far easier for you to grasp what the Supreme Court is doing, and why it’s doing it.

  1. Separate the submissions for the parties (with colours!)

The second thing is something rather more practical: colour-code the document you’re reading, in order to differentiate the submissions of the two sides, and the judicial analysis itself. For example, I highlight the petitioner’s submissions in red, the respondent’s submissions in blue, and the judicial analysis in green. This ensures that you have a clear sense of the structure of the judgment, and its logical flow, especially in cases where the court doesn’t structure its judgments in sequence, but repeatedly moves back and forth between the parties’ submissions, and its own analysis.

  1. Keep statutory provisions handy

Thirdly, keep copies of the laws and statutes that the judgment is referring to with you, either in hard copy, or open in a separate window on your laptop. Normally, judgments will cite the legal provision in full the first time they refer to it, and not after that. Often, however, statutory provisions will be long and complicated, full of “notwithstandings” and “provided that”, and you will not be able to remember them as you go through the judgment. Moreover, many statutes are too complicated to even fully grasp on a first read. So, having them with you, and re-reading them every time the judgment refers back to the statutes, is an excellent way of both following the train of thought in the judgment, as well as allowing yourself to completely grasp – through repeated readings – the nuances and complexities of the laws that the court is dealing with.

  1. Know whether the ruling remains law

Fourthly, when you’re reading a case, it is good to be generally aware of whether the legal position continues to hold. Often, judgments are overruled or reversed by later cases, or overtaken by lawmaking. Case databases often give you tools to help you in this task. For example, SCCOnline will let you know if a judgment has been overruled or reversed. Both Manupatra and IndianKanoon have a particularly useful tool: Manupatra has an icon above the judgment called “Mentioned in”, which gives you a list of all the subsequent cases that have cited the judgment you’re reading. IndianKanoon has a link titled “Cited by”, which does the same. After you finish reading your judgment, it’s a good policy to quickly skim through the list of cases that appears in the “Mentioned in” or “Cited by” column, just to ensure that there has been no fundamental change in the law.

  1. Remember that the court’s analysis is still the most important part of the judgment

And lastly – if your research involves reading recent judgments, you will find them to be of inordinate length, often running into hundreds of pages. This is because the Supreme Court has taken to reproducing the parties’ submissions at length before moving on to its own analysis. In such a situation, the best way out might be to read as much of the submissions as is necessary for you to attain a grasp of the key arguments (on both sides), skim the rest, and then move straight on to the Court’s analysis. It is not ideal, but there is perhaps no other way to do it.

How to Register Cyber Crime Complaint With Cyber Cell of Police – Online Complaint Procedure

cyber crime complaint

Cybercrime is a criminal activity which is carried on by the use of computers and the Internet. Some of the common cyber crimes are hacking, cyber stalking, denial of service attack(DoS), virus dissemination, software piracy, credit card fraud & phishing.

To tackle the issue of cyber crimes, CIDs (Criminal Investigation Departments) of various cities opened up Cyber Crime Cells in different cities. The Information Technology Act of India states clearly that when a cyber crime has been committed, it has a global jurisdiction. and hence a complaint can be filed at any cyber cell.

Step by Step Procedures to File a Cyber Crime Complaint

Step 1 -One may need to provide name, mailing address & telephone number along with an application letter addressing the head of a cyber crime investigation cellwhen filing a complaint.

Step 2-One must provide certain documents in order to register a complaint. List of documents varies with the type of cyber crime.

Documents / Information You Need to Provide while Filing a Hacking Complaint

In the case of hacking, the following information should be provided:

  1. Server Logs
  2. A copy of the defaced web page in soft copy as well as hard copy format, if victim’s website is defaced
    If data are compromised on the victim’s server or computer or any other network equipment, soft copy of original data and soft copy of compromised data.
  3. Access control mechanism details i.e.- Who had the access to the computer or email of the victim?
  4. List of suspects if the victim is having any suspicion on anyone.
  5. All relevant information leading to the answers to following questions.

 

  • What is compromised?
  • Who might have compromised the system?
  • When was the system compromised?
  • Why might have been the system compromised?
  • Where is the impact of the attack-identifying the target system from the network?
  • How many systems have been compromised by the attack?

Documents / Information You Need to Provide while Filing an Email Related Cyber Crime Complaint

In the case of e-mail abuse, vulgar e-mail, etc. the following information should be provided:

  • The extended headers of offending e-mail and
  • The offending e-mail from

 Contact information of different Cyber Cells

 

 AssamCID HQ,Dy.SP.

Assam Police

contact Details

Ph: +91-361-252-618

+91-9435045242

E-mail: ssp_cod@assampolice.com

Chennai
Address:
Asst. Commr. of Police,
Cyber Crimes Cell,
Vepery, Chennai 7
Contact Details: 04423452348
04423452350
E-mail id: cybercrimechn@yahoo.comFor Rest of Tamil Nadu,Address: A-Wing, III rd Floor,
Rajaji Bhawan, Besant Nagar,
Chennai-600090
ph: 044-24461959
24468889
24463888E-mail id: hobeochn@cbi.gov.in
Bangalore 
(for whole of the Karnataka)
Address:
Cyber Crime Police Station
C.O.D Headquarters,
Carlton House,
# 1, Palace Road,
Bangalore – 560 001
Contact Details:
+91-80-2220 1026
+91-80-2294 3050
+91-80-2238 7611 (FAX)Web site: http://www.cyberpolicebangalore.nic.in/
Email-id:
 ccps@blr.vsnl.net.inccps@kar.nic.in
Hyderabad
Address:
Cyber Crime Police Station
Crime Investigation Department,
3rd Floor, D.G.P. office
Lakdikapool,
Hyderabad – 500004Contact Details:
+91-40-2324 0663
+91-40-2785 2274+91-40-2785 2040
+91-40-2329 7474 (Fax)Web site:http://www.cidap.gov.in/cybercrimes.aspx
E-mail id: cidap@cidap.gov.ininfo@cidap.gov.incybercell_hyd@hyd.appolice.gov.in
Delhi
CBI Cyber Crime Cell:
Superintendent of Police,
Cyber Crime Investigation Cell
Central Bureau of Investigation,
5th Floor, Block No.3,
CGO Complex,
Lodhi Road,
New Delhi – 3Contact Details:
+91-11-4362203, 011-26851998
011-26515229, +91-11-4392424Web site: http://cbi.nic.in/Asst. Commissioner of Police,
Cyber Crime Cell,
EOW, Crime Branch,
2nd Floor,
Police Training School,
Malaviya Nagar,
New Delhi-110 017
E-Mail: 
cbiccic@bol.net.in,dcp-eow-dl@nic.in
Thane
Address:
3rd Floor, Police Commissioner Office
Near Court Naka,
Thane West,
Thane 400601.Contact Details: +91-22-25424444Web site: www.thanepolice.orgE-Mail: police@thanepolice.org
Pune
Deputy Commissioner of Police(Crime)
Office of the Commissioner Office,
2, Sadhu Vaswani Road,
Camp,Pune 411001
Contact Details:
+91-20-26123346+91-20-26127277
+91-20-2616 5396
+91-20-2612 8105 (Fax)Website:
www.punepolice.gov.in
E-Mail:
 crimecomp.pune@nic.inpunepolice@vsnl.com
Gujarat
DIG, CID, Crime and Railways
Fifth Floor
Police Bhavan
Sector 18, Gandhinagar 382 018Contact Details:
+91-79-2325 4384+91-79-2325 0798
+91-79-2325 3917 (Fax)
JharkhandIG-CID,Organized Crime

Rajarani Building,Doranda Ranchi,

834002

Ph: +91-651-2400 737/ 738

E-mail: a.gupta@jharkhandpolice.gov.in

 

 Mumbai 
Address:
Cyber Crime Investigation Cell
Office of Commissioner of
Police office,Annex -3 Building,
1st floor, Near Crawford Market,
Mumbai-01.
Contact Details:
+91-22-22630829
+91-22-22641261
Web site: http://www.cybercellmumbai.com
E-mail id: officer@cybercellmumbai.com
 HaryanaCyber Crime and Technical Investigation Cell,

Joint Commisioner of Police

Old S.P.Office complex,Civil Lines

Gurgaon

E-mail: jtcp.ggn@hry.nic.in

 Kerala

Hitech Cell

Police Head Quarters

Thiruvananthapuram

Contact Details

Ph: +91-471 272 1547

+91-471 272 2768

E-mail: hitechcell@keralapolice.gov.in

JammuSSP,Crime

CPO Complex,Panjtirthi

Jammu-180004

Contact Details

Ph: +91-191-257-8901

E-mail: sspcrmjmu-jk@nic.in

OdishaCyber Crime Police Station,
CID, Crime Branch, Odisha, Cuttack-753001
Ph. No.0671-2305485
E-mail ID:- sp1cidcb.orpol@nic.in
MeghalayaSCRB,Superintendent of Police

Meghalaya

Ph: +91 98630 64997

E-mail: scrb-meg@nic.in

Punjab

Cyber Crime Police Station

DSP Cyber Crime,

S.A.S Nagar,Patiala,

Punjab

Ph: +91 172 2748 100

BiharCyber Crime Investigation Unit

Dy.S.P.Kotwali Police Station, Patna

Ph: +91 94318 18398

E-mail: cciu-bih@nic.in

West BengalCID, Cyber Crime
West Bengal
Ph: +9133 24506163
e-mail:occyber@cidwestbengal.gov.in
Uttar Pradesh

Cyber Complaints Redressal Cell,
Nodal Officer Cyber cell Agra,
Agra Range 7,Kutchery Road,
Baluganj,Agra-232001
Uttar Pradesh
Ph:919410837559
e-mail: info@cybercellagra.com

Himachal PradeshSuperintendent of Police (cyber Crime)

State CID

Shimla- 171002, Himachal Pradesh

Ph: 0177- 2621714 (Ext. 191), 0177- 2627944 (direct)

Email- cybercell-hp@nic.in

UttaraKhandSpecial Task Force Office
Sub Inspector of Police, Dehradoon
Ph: +91 135 2640982
+91 94123 70272
e-mail:dgc-police-us@nic.in
 
Attacks on journalistts

Editorial: Mumbai’s Journalists Show the Way

The nine journalists who filed the petition challenging the media gag in the Sohrabuddin case acted to uphold a principle – and the victory is a vindication of the fundamental values of the profession.

“The rights of the press are intrinsic with the constitutional right that guarantees freedom of expression. In reporting from an open trial, the press not only makes use of its own right, but serves the larger purpose of making such information available to the general public.” With these ringing words, Justice Revati Mohite-Dere of the Bombay high court has set aside the restrictions imposed by a Central Bureau of Investigation (CBI) court on the media’s coverage of the proceedings in the Sohrabuddin fake encounter case.

Apart from stressing the constitutional issue at stake, Justice Mohite-Dere also noted that the CBI special judge had overreached his powers by issuing the gag order. There is simply no provision in the Criminal Procedure Code for such an order, she pointed out.

Justice Mohite-Dere’s is a landmark judgment on press freedom that comes at a time when the media is under tremendous pressure. Defamation suits, often on very flimsy grounds, have become the order of the day. Even more worryingly, journalists doing their jobs face physical threats and violence. The nine journalists who filed the petition challenging the CBI court acted in their individual capacities – to uphold a principle – and the victory in the high court is a vindication of the fundamental values of the profession.

The Sohrabuddin case has had a chequered history. The Supreme Court’s order to investigate his killing in an extra-judicial ‘encounter’, along with that of 21 others, between 2003 and 2006 had led to the resignation and arrest of the then Gujarat home minister Amit Shah. Shah was discharged in December 2014 by the CBI court, but the questions raised by the family about the death of CBI judge, B.H. Loya, have brought the case back into the public limelight. Public interest has been heightened by the unprecedented press conference of four Supreme Court judges who indicated that the chief justice was assigning cases to specific judges without any rational basis, including the Loya one. The CBI’s refusal to appeal Shah’s discharge and its opposition to a PIL challenging its stand lend credence to the belief that justice has been subverted in the case.

Against this backdrop, the CBI judge’s order clearly compromised the public’s right to be informed about a matter it has an inherent interest in. In any case, press gags have no place in a democracy; in this particular instance it was gratuitous and akin to censorship. From now on, all the details of the hearings will be reported in detail, as it should be.

However, it is imperative that Justice Mohite-Dere’s assertion that the “press is the most powerful watchdog in Indian democracy” does not remain an empty platitude. The judiciary, the government, the law and order machinery and last but not the least media managements, must take it seriously. Threats to the press are not going to vanish – they come not just from the state, but also from the corporate sector and influential individuals – and must be resisted. The journalists who took on the CBI court for its illegal order have shown the way.

Rough Edges: The Vanishing Tribe of Labour Reporters

A column reflecting on contemporary society and politics.

When and if the media chooses to focus on risky working conditions, it is mostly prompted by perverse reasons like, for example, large-scale loss of lives or incidents of violence. Credit: Reuters

Over the last two decades, the labour beat has all but disappeared from media newsrooms. The labour reporter belongs to a journalistic tribe which is today virtually non-existent. Unfortunately, the only time that we become aware of this this void is when tragedies like the one in Bawana hog headlines. At least 17 workers died when a fire engulfed an illegal firecracker packaging unit in there last month. It appears that the media acknowledges the existence of workers only when such catastrophic events take place.

On such occasions, we encounter workers as flesh and blood persons, women, men, and children, who spend inordinately longs hours working in innumerable illegal factories. More often than not, these factories operate in dangerously hazardous conditions. Yet these conditions and the lack of enforcement of any kind of labour rules in unregulated workplaces mostly go unreported.

When and if the media chooses to focus on risky working conditions, it is mostly prompted by perverse reasons like, for example, large-scale loss of lives or incidents of violence. Recall in this context, the reporting of the violence by workers at Manesar’s Maruti Suzuki car manufacturing plant in July 2012, which left a senior HR executive dead and scores of officials and workers injured. More than a hundred workers were arrested, of whom the court convicted 31 and acquitted 117 last year.

While the workers’ violence was reported at great length, long-term reportage that could have given the incident some context was largely missing from the headlines and coverage. What was presented as a question of justifiable or unjustifiable violence should, in fact, have been one of trying to understand what led to the violence in the first place.

The fact was that workers at the Manesar plant had been agitating for months on a series of important issues, such as removing discrepancies in the salaries of permanent and contractual workers, better work conditions etc. Even as issues were building up at the factory, there was no sustained media reporting of them. By not reporting the violence that erupted against this background, the media de-contextualised the conditions they were challenging.

On such crucial issues, the media narrative of the working class always remains unfinished. This is primarily because of a lack – if not absence – of sustained coverage of labour-related issues over months, years and even decades. In the face of such huge gaps in the spectrum of information and knowledge, the questions that surface in times of tragedy or violence, hang in a vacuum. The media fails to connect immediate tragedies to larger, long-term processes that govern the spheres of economy and labour, particularly the informal sector, which employs more than 90% of India’s workers.

In addition to dehumanising the working class, media invisibility of such a large section of the country’s population, renders our knowledge about them and their  lives sketchy and abstract. Paradoxically, even though phrases like informalisation of labour are regularly bandied about in public discourse, workers themselves are conspicuously missing from the narrative. At best, they are reduced to statistical numbers to buttress one argument or another.

Employees work inside a garment factory in Mumbai. Credit: Reuters/Danish Siddiqui

Consider the broader political-economic scenario in which the labour beat was first marginalised and then gradually effaced in most newspapers. Before the onset of liberalisation, labour occupied a prime position in the roster of beats. A quintessential labour reporter used to keep track not just of the labour ministry, but also of trade unions and workers. Even then, there were problems in the way media reported issues related to labour. Much of the reportage centred around economic demands – primarily steered by political party-affiliated trade unions – and little on occupational and workplace health hazards. But the important thing to note here is that workers’ issues weren’t totally excluded from media coverage then.

That slowly changed after liberalisation began in the early 1990s. Downgrading of the labour reporter and the labour ministry went hand-in-hand as the economy was restructured. The subsequent weakening of central trade unions – particularly Left trade unions like the Centre of Indian Trade Unions (CITU) and the All India Trade Union Congress (AITUC) – further helped delegitimise the labour beat.

As public discourse became more skewed towards identifying GDP rates as the sole marker of the country’s economic well-being, the condition of workers in the informal sector seemed to increasingly matter less. The media became enamoured by growth rates, and the labour ministry became a shadow of its former self. Labour reportage became “business journalism.”

One of the themes has that frequently come up in media and government circles since the 1990s, is labour law reform. At the centre of the discussion is the issue of rationalising labour. This entails amending the Industrial Disputes Act, bringing in an exit policy to facilitate worker retrenchment – a move enthusiastically backed by business and government.

The demand has not gone out of vogue. The Narendra Modi government, too, frequently talks about the need to reform labour laws. What is of interest here are the different ways in which the subject has been reported over the years. Two decades ago, there was extensive reporting about the exit policy and its implications for workers, particularly in the informal sector.

The labour portfolio had still not been downgraded at the government level. Unlike today, when the labour minister is often a weak or dismissible leader in the party, the Narasimha Rao government had a powerful labour minister in P.A. Sangma. Liberalisation opened up new spaces of engagement and conflict with labour leaders and workers. One of the primary issues of dispute was the exit policy. Faced with the trade unions’ intractable opposition to the policy, the Rao government had to finally withdraw it. What’s important to note is that the media diligently reported the discussion.

Two important things have happened since then. First, with liberalisation turning to dogma, workplaces started to change, and major trade unions found themselves unable to adapt to the changed context. Gradually, labour leaders made themselves irrelevant, as the informal sector came to be regarded as the main sector of the economy. Second, alongside the growing irrelevance of the labour minister and trade union leaders, the tribe of labour reporters also disappeared.

This is not a phenomenon peculiar to India. A report in the Columbia Journalism Review in March 2015 says: “The ranks of the labor beat have indeed hollowed out alongside the atrophy of organized labor, continuing as news organizations have more recently hemorrhaged cash. But the beat historically focused on unions, a focus unsuited for an economy in which just 11 percent of American workers belong to them. ‘The old fashioned idea that you’re covering just organized labor went away a long time ago,’ said Dean E. Murphy, business editor of the New York Times.”

Ominously, as discontent among working people grows, and the media fixates on violent tragedies when they occur, millions of people around the country become mere statistics, their lives disappearing further from our view with each passing day.

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.

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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.