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.

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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.

13 Years of Big Drama Ends With a Small Note

India is a country which expresses freedom of thought and expression and other human rights which has acquired unique identity of India all over the world. It is the respect for human values through which India has attracted global attention, but at the same time it has also let to inordinate delay in dispensation of justice which has been questioned.

India is referred in the list of countries where no legal battle is decided in less than 10 years or perhaps more than that which itself has put question on the functions of the judicial system. This has been corroborated with the hit and rum case of actor Salman Khan who was involved. The Sessions Court in Mumbai held him guilty of culpable homicide on May, 6th 2015 and sentenced him to 5 years of imprisonment and fine of Rs. 25,000/- , 13 years after the incident which happened in the year 2002. In the case, a Toyata land Rover, owned by him ran over 5 people who were sleeping on the pavement in Bandra on September 28, 2002 which left one man dead and other four injured.

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On the same day the Hon’ble High Court of Bombay granted the actor interim bail until 8th May 2015. Newspaper editorial devoted at least a half column lauding equality before law as a lodestone of democracy. But at the same time, all lamented the tardiness of law. They wanted to know whether it takes 13 years to judge who was driving the car and whether or not Salman Khan was under the influence of alchol. This delay is not seen for the first time and it has become vogue for all the cases present and past particularly those concerning the rich and the influential. Those having amole cases are the examples of cases against sedition by politician and industrialists, cases related disproportionate assets, rioting and others. So far as Bollywood is concerned it is one of the high profile case after the Sanjay Dutt case who is supposed to be languishing behind bars.

The case is not important because it involved Salman Khan but it showed the delay our judicial system is facing in giving justice. By the time a judgment comes out people forget what has actually happened. Salman Khan was charged with culpable homicide not amounting to murder and arrested and thereafter granted bail on October 2002. The Court on May 2003 rejected the plea to drop culpable homicide charges, but in June Hon’ble Bombay High Court dropped culpable homicide charges and tried Salman Khan was rash and negligent driving. In March 2015, Salman stated in the court that he was not drunk and his driver was behind the wheel. On May 6, 2015 he was found guilty by the court and awarded five years jail term. This time Court appeared to be convined by the evidence put forward by prosecution that Salman was driving the vehicle, the authenticity of the test showed that he had time the amount of alcohol in his blood stream at the time of the accident, and that the actor did not possess a valid driving license when the accident took place.

In the lead up to the final verdict, the prosecution has demanded a maximum punishment of ten years and prayed to the Court that deterrence and correction were important factors in awarding sentence to the famous actor.

Sexual Harassment of Women at Work

In 1997, the Honorable Supreme Court of India, in Vishaka and Others Vs. State of Rajasthan and Others (“Vishaka Judgment”) acknowledged the gravity of sexual harassment of the working women at the workplaces and laid down guidelines making it mandatory for employers to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. The guidelines issued by the Hon’ble Supreme Court were treated as law declared by the Hon’ble Supreme Court under Article 1412 of the Constitution of India. It was held by the Hon’ble Supreme Court that the guidelines framed by the Supreme Court would be strictly observed in all work places for the prevention and enforcement of the right to gender equality of the working women.

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It was observed by various Courts from time to time in the past that the guidelines and norms framed by the Hon’ble Supreme Court in Vishaka Judgment have not been followed in workplaces strictly.
The increasing work participation rate of women made it imperative for enacting a comprehensive legislation focusing on prevention of sexual harassment as well as providing a redressal mechanism.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 & Rules made therein

In 2013, after a span of 16 years, India finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the ‘Act’) for prevention of sexual harassment against women at the workplaces. The Central Government vide notification SO 3606 (E) appointed 9 December 2013 as the date on which the provisions of the Act came into force and on the same day, the Central Government made the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”).

Objectives of the Act
The Act is enacted by the Indian Parliament to provide protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Sexual harassment is termed as a violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and right to life and to live with dignity under Article 21 of the Constitution of India. Sexual harassment is also considered a violation of a right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.

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Definitions

Sexual Harassment

The Act has adopted the definition of ‘sexual harassment’ from Vishaka Judgment and the term sexual harassment includes any unwelcome acts or behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

In, Apparel Export Promotion Council Vs. A.K. Chopra, the Honorable Supreme Court while deciding an issue whether the act of a superior officer (wherein such superior officer tried to molest his junior woman employee) would amount to sexual harassment, the Court relied on the definition of the term ‘sexual harassment’ laid down by the Supreme Court in the Vishakha Judgment (which is similar to the definition of the Sexual Harassment provided in the Act) held that “the act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment…”.

Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any workplace. This section further provides the circumstances which if present or connected with any act or behaviour of sexual harassment may amount to sexual harassment such as implied or expressed promise to preferential treatment or implied or explicit threat of detrimental treatment in her employment, implied or explicit threat about her present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, humiliating treatment likely to affect health or safety of a woman.

Complaints Committee & Complaint Procedure

Internal Complaints Committee:
The Act makes it mandatory for every employer to constitute an internal complaints committee (“ICC”) which entertains the complaints made by any aggrieved women. The members of the ICC are to be nominated by the employer and ICC should consist of i) a Presiding Officer, ii) not less than two members from amongst employees preferably committed to the cause or women or who have had experience in social work or have legal knowledge and iii) one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. In order to ensure participation of women employees in the ICC proceedings, the Act requires that at least one-half of the members of ICC nominated by employer are women.

Local Complaints Committee:

Provisions are provided under the Act to form Local Complaints Committee (LCC) for every district for receiving complaints of sexual harassment from establishments where the ICC has not been formed due to having less than 10 workers or if the complaint is against the employer himself.

Complaint procedure:

the Act stipulates that aggrieved woman can make written complaint of sexual harassment at workplace to the ICC or to the LCC (in case a complaint is against the employer), within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident. If the aggrieved woman is unable to make complaint in writing, reasonable assistance shall be rendered by the presiding officer or any member of the ICC (or in case the aggrieved woman is unable to make complaint in writing to the LCC, the reasonable assistance shall be rendered by the Chairperson or any member of the LCC) for making the complaint in writing.

As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 , in case the aggrieved woman is unable to make a complaint on account of her physical incapacity, a complaint may be filed inter alia by her relative or friend or her co-worker or an officer of the National Commission for Woman or State Women’s Commission or any person who has knowledge of the incident, with the written consent of the aggrieved woman.

Right to Litigate Must be Replaced with Right to Justice!

Our legal system is one of the most inefficient in the world is not a secret, with bottom ranking on contract enforce-ability in ease of doing business index. Even CJIs have been record predicting complete breakdown of our legal system since time immemorial (I recall justice PN Bhagwati saying this in 1985). That we are still surviving as a sovereign and democratic nation is nothing short of a miracle. How long could it go on is a big question mark, given that legal reforms have never been a priority for any government in India so far.

From my personal experience, I have learnt that our legal system is tailor made for the blackmailers in property cases which has made it extremely easy to embroil anybody in court for decades, preventing him from using or selling his property even if injunction is not granted, and ultimately succeeding through forced compromise at some stage. Kindly consider the following:-

Legal presumptions/bias in suits under Specific Relief Act 1963

1. Law assumes that money is not an adequate relief for breach of contract for sale of immovable property.

a. In most suits, plaintiff is claiming monetary loss due to breach of contract, and his intention/purpose of buying the property was to sell the same as it is or after development/construction.

b. Very rarely, plaintiff will have anything more than monetary consideration where the above assumption could be justified.

c. Plaintiff targets and will invariably reach compromise with monetary compensation at some stage.

d. Since suit for compensation does not prevent a defendant from selling his property, enough pressure is not created on him. Hence, plaintiff has been armed with this legal assumption which either through injunction or the principle of lis pendence effectively prevents seller from selling his property until this case is settled.

e. Even if defendant wins trial court, plaintiff will invariably go into appeals, and thus, armed with weapon to publicize to whole world that the subject property is disputed, and scare the buyers away. Eventually, defendant will succumb one day regardless of merits in the case.

2. Law assumes that time is not essence of the contract for sale of immovable property.

a. This allows a plaintiff to default on his payment obligations, and yet come to court which assumes that time is not essence of the contract.

b. Even if contract specifically means payment to be within this particular month, courts interpret that not to be essence of
the contract.

3. Law allows enforcement of oral contracts.

a. This is despite provisions of Stamp Act and Registration Act requiring contracts for sale of property to be registered and properly stamped.

b. This is also despite the provisions of evidence act stating that an oral contract which needs to be executed in writing by law cannot be taken as evidence.

c. Since in most suits, proper stamp duty has not been paid, the plaintiff concocts the story of there being an oral contract for enforcement.

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d. Registration Act proviso to Sec 49 which provides an exception to bar on production of any unregistered document as evidence in court, has been mis-interpreted by courts giving boost to such frivolous litigation. The section states.

4. Law only wants plaintiff to state that he was willing and capable to discharge his obligation, but there is no need for him to actually tender the payment. Even case laws have repeatedly held that plaintiff need not actually tender payment.

a. It allows plaintiff who actually has no means to pay for the property under the contract to come to court. Of course, he will not win the trial but he is still entitled to file an appeal, and then, second appeal. His lawyers can easily buy him one or two decades in court to enable him to scare buyers of the property that long, and ultimately force seller to come to terms with him.

b. The defendant is not allowed to demand depositing of the purchase consideration in court. Consequently, buyer’s property (the money) remains free while seller’s property remains stuck. This is inbuilt injustice in the legal system.

5. Supreme Court has held that there could be no counter claim for damages on the plaintiff who manages to secure injunction on defendant’s property which is ultimately held to be unnecessary or unjust. This makes the entire litigation lopsided.

6. Courts are extremely reluctant and strict in accepting applications under order 7 rule 11 for dismissal. They do not consider probability of the suit succeeding but they only want to see extremely strictly as to why the suit is legally barred. This allows every frivolous suit a direct right to trial which means another right to appeal, and so on.

It is high time we replace right-to-litigate with right-to-justice !!!

Justice Hurried is Justice Denied

Nirbhaya’s case shook the entire nation particularly young generation from head to toe. The brutal assault on Delhi based physiotherapist raised large number of voices against Justice Delivery System. This led to certain revolutionary reforms in Judiciary which includes setting up of Fast Track Courts for disposing of the cases relating to heinous crime against women such as abduction, rape, dowry death etc. Chief Justice of India had written to all the High Court of the Country which resulted in creation of such exclusive courts presided over by women Judicial officers in most of the courts so that the large number of cases relating to women pending in various courts are disposed of expeditiously.

On the direction of the High Courts, subordinate judiciary at District level started disposing such cases in speedy mode even in few days. Very often in the print media, we studied about decision of various courts particularly in Punjab that cases relating rape and other crime against women are disposed of by a court within 7 days, 5 days or amazing in 2 days!

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Such a sensitivity of Judicial Officers can be understood particularly when there is huge pressure of High Courts. However, we need to see the scenario from the other side of the wall also. Can such a case, on a very serious matter that too when authenticated investigation is required and live and liberty of accused is at stake should be decided in a haste. No doubt, justice to the prosecute/victim should be provided at any cost and without delay, but sometimes trial by media and social pressure may lead to miscarriage of justice also. A sessions trial such as rape, murder which normally takes months to conclude, if decided within few days to reduce the pend-ency anticipating that if accused in innocent then an appeal to the High Court or the Apex Court may set the person free, is misconceived. If an under trial is economically poor, he may not be able to appeal to superior court and this can confine him behind the bars for years which is violation of his fundamental right to life and liberty provided to every citizen by the Constitution of India under Article 21.

We also come across number of cases when personal enmity can lead to innocent persons booked for rape cases. Recently, Punjab Police has exposed number of such cases where innocent persons were falsely implicated in rape cases and ultimately police withdrew the charges of rape and sexual assault.

When the public outcry wants death sentence to be imposed on perpetrators of such inhuman acts, then sentencing accused in such a small time ignoring other cases in the cause list is not an ideal course of action. What we want is quality in quantity for which Indian Judiciary is acknowledged in the international legal sphere and not just quantity in a hurry to reduce the pend-ency of more than 3 crore cases pending in various courts at all levels for which reforms, known to everybody, like filling up of the existing vacancies of Judges, staff and adequate infrastructure is required and good news is that the necessary steps in this regard have been initiated.

High Court Orders CBI Probe for Child Trafficking

Acting on a public interest litigation, a division bench of the Kerala High Court on Monday ordered a CBI probe into the trafficking of children from north and northeastern states to orphanages in Kerala.The division bench of Chief Justice Ashok Bhushan asked the CBI to step in despite the state government opposing probe by a central agency.

While saying that all orphanages in Kerala should be brought under the purview of the Juvenile Justice Act, the court added that district administration and child welfare committees at the district-level must ensure that proper legal procedure is followed while bringing children from other states.

Trafficking of children from other states to Kerala orphanages hit the headlines last year when 450 children from Bihar and Jharkhand were brought to a few Muslim-run orphanages in North Kerala. The railway police in Palakkad had then booked the ‘agents’ involved on charges of trafficking children without proper documents and even railway tickets.

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Subsequently, police and several agencies began investigating the conduct of other orphanages in Kerala. Two months back, police detained several children in Kochi, who were brought to some orphanages in central Kerala.

Kerala has around 1800 orphanages, recognised by the State Orphanage Control Board, and many of these institutions — especially in north Kerala — have several north Indian children as inmates.

According to sources, children from other states are in demand because of shrinking enrollment of local students, which threatens to lead to the closure of schools run by orphanage trusts. Some trusts that run schools have actually opened orphanages only to ensure steady flow of students to their schools and to stay in business. Agents, claim sources, find ‘eligible’ children in north Indian villages — in Uttar Pradesh, Bihar, West Bengal, Assam, Manipur, Jammu and Gujarat — and at the start of an academic year bring them in batches to Kerala.

In the past, the Indian Union Muslim League (IUML), an ally of the Congress-led Government, had alleged that the state government was trying to prevent the functioning of institutes meant for destitute Muslim children. The IUML had then stated that the orphanages were not involved in the sale of children for sexual exploitation or organ trade and the government should desist from oppressing them by pointing out procedural lapses.

Orphanages in Kerala, particularly those run by Muslim organisations, have been regularly bringing destitute Muslim boys and girls from other states. Many of these orphanages, like JDP Islam Orphanage in Kozhikode, have over the years grown into hubs of professional and technical institutes, increasing the demand for more inmates.