It has to be exclaimed right at the start with considerable degree of satisfaction that in one of the most landmark judgment that Supreme Court which is the highest court in India has delivered since independence which has garnered not just national headlines but also international headlines, the Apex Court on September 28, 2018 in Indian Young Lawyers Association & Ors v The State of Kerala & Ors in Writ Petition (Civil) No. 373 of 2006 by a 4:1 majority in one of the most keenly awaited judgment has very laudably permitted entry of women of all age groups to the Sabarimala temple, holding that ‘devotion cannot be subjected to gender discrimination’. It is one of the most progressive and path breaking judgment that we have witnessed in last many decades just like in the Shayara Bano case where Supreme Court not long time back had upheld triple talaq as unconstitutional! Very rightly so!

                                   Be it noted, the lone women in the Bench, Justice Indu Malhotra, dissented. Chief Justice Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar and Justice DY Chandrachud constituted the majority. The Bench was delivering this landmark and laudable judgment in a 2006 PIL filed by Indian Young Lawyers Association challenging the centuries-old tradition of Sabrimala Temple banning entry of women of menstruating age inside the temple. Why do we forget that even in temples of Lord Hanuman who as per mythological beliefs was a bachelor yet no women of any age has ever been stopped from entering his temple and even Muslims and people from other religions are not barred from paying their respect to him if anyone of them so desire?

                                 At the very outset, this landmark  judgment written by the CJI Dipak Misra for himself and Justice AM Khanwilkar notes that, “The irony that is nurtured by the society is to impose a rule, however unjustified, and proffer explanation or justification to substantiate the substratum of the said rule. Mankind, since time immemorial, has been searching for explanation or justification to substantiate a point of view that hurts humanity. The theoretical human values remain on paper. Historically, women have been treated with inequality and that is why, many have fought for their rights. Susan B Anthony, known for her feminist activity, succinctly puts, “Men, their rights, and nothing more; women, their rights, and nothing less.” It is a clear message.”

                               More importantly, para 2 then rightly touches the raw nerve by pointing out clearly and categorically that, “Neither the said message nor any kind of philosophy has opened up the large populace of this country to accept women as partners in their search for divinity and spirituality. In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature. There is inequality on the path of approach to understand the divinity. The attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender. The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and degradation of their status. The society has to undergo a perceptual shift from being the propagator of hegemonic patriarchal notions of demanding more exacting standards of purity and chastity solely from women to be the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man. The law and the society are bestowed with the Herculean task to act as levellers in this regard.”

            Continuing in the same vein, para 3 then minces no words in saying that, “Any relationship with the Creator is a transcendental one crossing all socially created artificial barriers and not a negotiated relationship bound by terms and conditions. Such a relationship and expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed tests. Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practise and profess one’s religion. The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality.”

                                 Going forward, para 4 then enunciates that, “It is a universal truth that faith and religion do not countenance discrimination but religious practices are sometimes seen as perpetuating patriarchy thereby negating the basic tenets of faith and of gender equality and rights. The societal attitudes too centre and revolve around the patriarchal mindset thereby derogating the status of women in the social and religious milieu. All religions are simply different paths to reach the Universal One. Religion is basically a way of life to relaize one’s identity with the Divinity. However, certain dogmas and exclusionary practices and rituals have resulted in incongruities between the true essence of religion or faith and its practice that has come to be permeated with patriarchal prejudices. Sometimes, in the name of essential and integral facet of the faith, such practices are zealously propagated.”        

                                          It cannot be lost on us that para 5 then observes that, “Having stated so, we will focus on the factual score. The instant writ petition preferred under Article 32 of the Constitution seeks issuance of directions against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, “the 1965 Act”) as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to pass directions for the safety of women pilgrims.”

                                     It would be pertinent to mention here that para 6 then illustrates that, “The three-Judge Bench in Indian Young Lawyers Association and others v. State of Kerala and others, (2017) 10 SCC 689, keeping in view the gravity of the issues involved, sought the assistance of Mr. Raju Ramachandran and Mr. K. Ramamoorthy, learned senior counsel as Amici Curiae. Thereafter, the three-Judge Bench analyzed the decision and the reasons ascribed by the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and others AIR 1993 Kerala 42 wherein similar contentions were raised. The Bench took note of the two affidavits dated 13.11.2007 and 05.02.2016 and the contrary stand taken therein by the Government of Kerala.” Para 9 says that, “It is also worthy to note here that the Division Bench of the High Court of Kerala, in S. Mahendran (supra), upheld the practice of banning entry of women belonging to the age group of 10 to 50 years in the Sabarimala temple during any time of the year.”

                                  Having said this, let us now turn to see what Para 95 enunciates. It says that, “Though, the respondents have urged that the pilgrims coming to visit the Sabarimala temple being devotees of Lord Ayyappa are addressed as Ayyappans and, therefore, the third condition for a religious denomination stands satisfied, is unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. We have also been apprised that there are other temples for Lord Ayyappa and there is no such prohibition. Therefore, there is no identified sect. Accordingly, we hold, without any hesitation, that Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult.”

                                       To put things in perspective, para 96 then stipulates that, “Coming to the first and the most important condition for a religious denomination, i.e., the collection of individuals ought to have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, there is nothing on record to show that the devotees of Lord Ayyappa have any common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time does not make it a distinct religion on that account.”

                                      It is then brought out in para 97 that, “Having stated that the devotees of Lord Ayyappa do not constitute a religious denomination within the meaning of Article 26 and that Sabarimala Temple is a public temple by virtue of the fact that Section 15 of the 1950 Act vests all powers of direction, control and supervision over it in the Travancore Devaswom Board which, in our foregoing analysis, has been unveiled as ‘other authority’ within the meaning of Article 12, resultantly fundamental rights including those guaranteed under Article 25(1) are enforceable against the Travancore Devaswom Board and other incorporated Devaswoms including the Sabarimala Temple.”

                                    Now coming to para 100, it clearly and categorically says that. “The right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors, specifically attributable to women. Women of any age group have as much a right as men to visit and enter a temple in order to freely practise a religion as guaranteed under Article 25(1). When we say so, we are absolutely alive to the fact that whether any such proposed exclusion of women from entry into religious places form an essential part of a religion would be examined at a subsequent stage.”

                                    As it turned out, para 101 then spares no punches in explicitly stating that, “We have no hesitation to say that such an exclusionary practice violates the right of women to visit and enter  a temple to freely practice Hindu religion and to exhibit devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship. We concur with the view of the Amicus Curiae, learned senior counsel, Mr. Raju Ramachandran, that the right guaranteed under Article 25(1) is not only about inter-faith parity but it is also about intra-faith parity. Therefore, the right to practise religion under Article 25(1) in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion.”

                      Simply put, para 104 then elucidates that, “Therefore, it can be said without any hesitation or reservation that the impugned Rule 3(b) of the 1965 Rules, framed in pursuance of the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, is a clear violation of the right of such women to practice their religious belief which, in consequence, makes their fundamental right under Article 25(1) a dead letter. It is clear as crystal that as long as the devotees, irrespective of their gender and/or age group, seeking entry to a temple of any caste are Hindus, it is their legal right to enter into a temple and offer prayers. The women, in the case at hand, are also Hindus and so, there is neither any viable nor any legal limitation on their right to enter into the Sabarimala Temple as devotees of Lord Ayyappa and offer their prayers to the deity.”

                                      It was also clarified in para 105 that, “When we say so, we may also make it clear that the said rule of exclusion cannot be justified on the ground that allowing entry to women of the said age group would, in any way, be harmful or would play a jeopardizing role to public order, morality, health or, for that matter, any other provision/s of Part III of the Constitution, for it is to these precepts that the right guaranteed under Article 25(1) has been made subject to.”

                                 Needless to say, it is then underscored in para 110 that, “The right guaranteed under Article 25(1) has been made subject to, by the opening words of the Article itself, public order, morality, health and other provisions of Part III of the Constitution. All the three words, that is order, morality and health are qualified by the word ‘public’. Neither public order nor public health will be at peril by allowing entry of women devotees of the age group of 10 to 50 years into the Sabarimala temple for offering their prayers. As regards public morality, we must make it absolutely clear that since the Constitution was not shoved, by any external force, upon the people of this country but was rather adopted and given by the people of this country to themselves, the term public morality has to be appositely understood as being synonymous with constitutional morality.” Para 111 then seeks to make it clear that, “Having said so, the notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality.”

                          Conclusion

                              In a nutshell, it is then observed in para 144 that, “In view of our aforesaid analysis, we record our conclusions in seriatim:

(i)             In view of the law laid down by this Court in Shirur Mutt (supra) and S.P. Mittal (supra), the devotees of Lord Ayyappa do not constitute a separate religious denomination. They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination.

(ii)          Article 25(1), by employing the expression ‘all persons’, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. The right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors specifically attributable to women.

(iii)       The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.

(iv)       The impugned Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, is a clear violation of the right of Hindu women to practise their religious beliefs which, in consequence, makes their fundamental right of religion under Article 25(1) a dead letter.

(v)          The term ‘morality’ occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. Since the Constitution has been adopted and given by the people of this country to themselves, the term public morality in Article 25 has to be appositely understood as being synonymous with constitutional morality.     

(vi)       The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple.

(vii)    The practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala Temple cannot be regarded as an essential part as claimed by the respondent Board.

(viii)  In view of the law laid down by this Court in the second Ananda Marga case, the exclusionary practice being followed at the Sabarimala Temple cannot be designated as one, the non-observance of which will change or alter the nature of Hindu religion. Besides, the exclusionary practice has not been observed with unhindered continuity as the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children.

(ix)       The exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion.

(x)          A careful reading of Rule 3(b) of the 1965 Rules makes it luculent that it is ultra vires both Section 3 as well as Section 4 of the 1965 Act, for the simple pure reason that Section 3 being a non-obstante provision clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary.

(xi)       Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the proviso to Section 4(1) creates an exception to the effect that the regulations/rules made under Section 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class.

(xii)    The language of both the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and incrementally impair the fundamental right to practise religion guaranteed under Article 25(1). Therefore, we hold that Rule 3(b) of the 1965 Rules is ultra vires of the 1965 Act.”

                                         As things stand, Justice RF Nariman in his separate but concurring judgment too strongly backed the majority judgment that Sabarimala custom must yield to fundamental right of women to worship. He also rightly pointed out that although the rights claimed by the Thantri and the believers in the custom of the temple have protection under Article 25(1), the right of a woman believer is also protected under Article 25(1), and her right should prevail over the right to maintain the exclusionary custom.  

                                              Interestingly enough, Justice RF Nariman while concluding in para 32 notes that, “I, therefore, concur in the judgment of the learned Chief Justice of India in allowing the writ petition, and declare that the custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1), and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of the Constitution. Further, it is also declared that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution of India.”

                                            It is notable that another eminent Judge Dr DY Chandrachud also concurred with the majority judgment. He held in para 119 that, “I hold and declare that:

1)  The devotees of Lord Ayyappa do not satisfy the judicially enunciated requirements to constitute a religious denomination under Article 26 of the Constitution;

2)  A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality;

3) In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship;

4) The social exclusion of women, based on menstrual status is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order;

5) The notifications dated 21 October 1955 and 27 November 1956 issued by the Devaswom Board, prohibiting the entry of women between the ages of ten and fifty, are ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and are even otherwise unconstitutional; and

6) Hindu women constitute a ‘section of class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforce a custom contrary to Section 3 of the 1965 Act. This directly offends the right of temple entry established by Section 3. Rule 3(b) is ultra vires the 1965 Act.

                            Before concluding, it must be brought out that there was only one dissenting Judge – Indu Malhotra. Ironically, she was the only women Judge in the five-Judge Bench who delivered this landmark judgment. She summarized her analysis as follows in para 16:

1.  The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.

2.  The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.

3.  Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.

4.  The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction.

5.  The limited restriction on the entry of women during the notified age group does not fall within the purview of Article 17 of the Constitution.

6.  Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.

                                   

                                          All said and done, it is one of the most landmark, laudable and progressive judgment that I have ever read in recent times. This alone explains why most of the Judges barring Justice Indu Malhotra have been all unanimous in deciding that women aged between age group of 10 to 50 years should not be barred from entering Sabarimala temple in any way and are fully entitled to go there. No politics should be done over it but politicians love to dabble in everything and support this worst discrimination against women even while talking about providing women equality in all spheres! This landmark judgment must be implemented in letter and spirit and all devotees and politicians must appreciate that they have to respect this final judgment delivered by the highest court of our country which is the Supreme Court and should refrain from stopping the interested women devotees from having a darshan of the holy Sabarimala shrine! Those who feel aggrieved by this judgment have every right to go for review petition but no one has the right to take law in their hands and stop women from entering the holy shrine as permission has been granted to them by the top court of India that is the Supreme Court!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

In a striking departure from the past, a three-Judge Bench of the Supreme Court comprising of Justice Kurian Joseph, Justice Sanjay Kishan Kaul and Justice Navin Sinha in a landmark judgment titled Mohammed Imran v State of Maharashtra and others in Civil Appeal No(s). 10571 of 2018 (arising out of SLP(C) No. 6599 of 2018) delivered on October 12, 2018 has directed the state authorities to reconsider the candidature of a successful aspirant for judicial service, whose selection for appointment was cancelled on the ground of ‘moral turpitude’ and even high court had turned down his plea against cancellation. Now the state authorities have no option but to comply with this landmark judgment and reconsider the candidature of this successful aspirant for judicial service named Mohammad Imran! Very rightly so!

                                           To begin with, para 2 of this landmark judgment discloses that, “The appellant, a successful aspirant for judicial service, is aggrieved by the order dated 04.06.2010 cancelling his selection for appointment due to the character verification report of the police, and the refusal of the High Court to interfere with the same.” The appellant felt aggrieved by the refusal of the High Court. So he approached the Supreme Court for relief.

                           To be sure, it is then pointed out in para 3 that, “Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellant, submits that the denial of appointment on grounds of moral turpitude is wrong and unsustainable. The appellant has been acquitted of the charge under Sections 363, 366, 34, I.P.C. on 28.10.2004 much before he cleared the examination for appointment in the year 2009. He had truthfully and honestly disclosed his prosecution and acquittal by the Sessions Court, Sangli. According to the allegations, the appellant was in an auto-rickshaw along with another, following the auto-rickshaw in which the main accused was travelling with the girl. The main accused has also been acquitted of the charge under Section 376. In similar circumstances, another aspirant Sudhir Gulabrao Barde, who was prosecuted in Case No. 3022 of 2007 under Sections 294, 504, 34, I.P.C. but acquitted on 24.11.2009, has been appointed. The appellant has therefore been subjected to arbitrary and hostile discrimination. Reliance in support of the submissions was placed on Joginder Singh vs. Union Territory of Chandigarh and others, 2015 (2) SCC 377.”

                                Needless to say, para 4 then brings out that, “Learned counsel for the respondents submitted that the appellant being an aspirant for judicial service, the standards of behaviour and conduct, to consider suitability for appointment will have to be different from any other service. He was involved in an act of moral turpitude in kidnapping of the girl in question. The acquittal, because the prosecutrix turned hostile, cannot come to the aid of the appellant. The candidate referred to, for contending hostile discrimination, was not involved in an act of moral turpitude. Mere empanelment for appointment creates no rights to seek mandamus for appointment. The fact that he may have disclosed the alleged involvement in the attestation form, cannot be considered sufficient to ignore his conduct involving moral turpitude.”

                                 Simply put, after listening to the submissions made, it is then observed in para 5 that, “We have considered the submissions on behalf of the parties. The only allegation against the appellant in Sessions Case No. 173 of 2000 is that he along with another was travelling in an auto-rickshaw that was following the auto-rickshaw in which the prime accused Bilal, who was charged under Section 376 IPC was travelling with the girl in question. All the accused were acquitted because the prosecutrix did not support the allegations. The appellant was 21 years of age on the date of occurrence i.e. 25.05.2000.”    

                                        It is of utmost significance to note that it is then noted in para 6 that, “Employment opportunities is a scarce commodity in our country. Every advertisement invites a large number of aspirants for limited number of vacancies. But that may not suffice to invoke sympathy for grant of relief where the credentials of the candidate may raise serious questions regarding suitability, irrespective of eligibility. Undoubtedly, judicial service is very different from other services and the yardstick of suitability that may apply to other services, may not be the same for a judicial service. But there cannot be any mechanical or rhetorical incantation of moral turpitude, to deny appointment in judicial service simplicitor. Much will depend on the facts of a case. Every individual deserves an opportunity to improve, learn from the past and move ahead in life by self-improvement. To make past conduct, irrespective of all considerations, an albatross around the neck of the candidate, may not always constitute justice. Much will, however depend on the fact situation of a case.” Very rightly said! There can be no denying or disputing it!

                                          To put things in perspective, moral turpitude is then explained in para 7 of this landmark judgment saying “That the expression “moral turpitude” is not capable of precise definition was considered in Pawan Kumar vs. State of Haryana and other (1996) 4 SCC 17, opining:

          “12. “Moral turpitude” is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity……””

                                    Going forward, it is then appreciated in para 8 noting that, “The appellant by dint of hard academic labour was successful at the competitive examination held on 16.08.2009 and after viva voce was selected and recommended for appointment by the Maharashtra Public Service Commission on 14.10.2009. In his attestation form, he had duly disclosed his prosecution and acquittal. Mere disclosure in an appropriate case may not be sufficient to hold for suitability in employment. Nonetheless the nature of allegations and the conduct in the facts of a case would certainly be a relevant factor. While others so recommended came to be appointed, the selection of the appellant was annulled on 04.06.2010 in view of the character verification report of the police.”

                                   Truth be told, it is then acknowledged in para 9 that, “It is an undisputed fact that one Shri Sudhir Gulabrao Barde, who had been acquitted on 24.11.2009 in Case No. 3022 of 2007 under Sections 294, 504, 34, IPC, has been appointed. We are not convinced, that in the facts and circumstances of the present case, the appellant could be discriminated and denied appointment arbitrarily when both the appointments were in judicial service, by the same selection procedure, of persons who faced criminal prosecutions and were acquitted. The distinction sought to be drawn by the respondents, that the former was not involved in a case of moral turpitude does not leave us convinced. In Joginder Singh (supra), it was observed as follows:

            “25. Further, apart from a small dent in the name of this criminal case in which he has been honourably acquitted, there is no other material on record to indicate that the antecedents or the conduct of the Appellant was not up to the mark to appoint him to the post….”” 

                                      As it turned out, it is then noted in para 10 that, “In the present proceedings, on 23.03.2018, this Court had called for a confidential report of the character verification as also the antecedents of the appellant as on this date. The report received reveals that except for the criminal case under reference in which he has been acquitted, the appellant has a clean record and there is no adverse material against him to deny him the fruits of his academic labour in a competitive selection for the post of a judicial officer. In our opinion, no reasonable person on the basis of the materials placed before us can come to the conclusion that the antecedents and character of the appellant are such that he is unfit to be appointed as a judicial officer. An alleged single misadventure or misdemeanor of the present nature, if it can be considered to be so, cannot be sufficient to deny appointment to the appellant when he has on all other aspects and parameters been found to be fit for appointment. The Law is well settled in this regard in Avtar Singh vs. Union of India and others, (2016) 8 SCC 471. If empanelment creates no right to appointment, equally there can be no arbitrary denial of appointment after empanelment.”

                                      Finally and most importantly, let us now discuss the concluding paras. It is held in para 11 that, “In the entirety of the facts and circumstances of the case, we are of the considered opinion that the consideration of the candidature of the appellant and its rejection are afflicted by a myopic vision, blurred by the spectacle of what has been described as moral turpitude, reflecting inadequate appreciation and application of facts also, as justice may demand.” It is then held in para 12 that, “We, therefore, consider the present a fit case to set aside the order dated 04.06.2010 and the impugned order dismissing the writ petition, and direct the respondents to reconsider the candidature of the appellant. Let such fresh consideration be done and an appropriate decision be taken in light of the present discussion, preferably within a maximum period of eight weeks from the date of receipt and production of the copy of the present order. In order to avoid any future litigation on seniority or otherwise, we make it clear that in the event of appointment, the appellant shall not be entitled to any other reliefs.” Finally, it is held in para 13 that, “The appeal is allowed as above.”

                                     All said and done, it is a landmark judgment which makes it abundantly clear that there cannot be any mechanical denial of appointment in the judicial service on the ground of moral turpitude. It is certainly a big victory for Mohammad Imran who was a successful aspirant for judicial service but whose candidature was cancelled on the specious ground of ‘moral turpitude’! This landmark ruling made it crystal clear that past conduct cannot be allowed to hang like an albatross around the neck of a candidate! Very rightly so! It is certainly a very progressive and landmark judgment which believes in Justice Krishna Iyer’s concept of Operation Valmiki which enunciates clearly and categorically that, “Every saint has a past and every criminal has a future”! This landmark judgment certainly took into account all other factors like the appointment of another candidate who was acquitted in a criminal case and his not figuring in any other criminal case!   

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It has be said right at the beginning with considerable degree of satisfaction that the Supreme Court which is the top court of our country has in a latest landmark judgment titled Mallikarjun Kodagali (Dead) represented through Legal Representatives versus State of Karnataka and others in Criminal Appeal Nos. 1281-82 of 2018 [Arising out of S.L.P. (Cri.) Nos. 7040-7041 of 2014], the majority judgment delivered by Justice Madan B Lokur and Justice S. Abdul Nazeer on October 12, 2018 had no hesitation to concede right from the start while underscoring the rights of victims of crime that, “The rights of victims of crime is a subject that has, unfortunately, only drawn sporadic attention of Parliament, the judiciary and civil society. Yet, it has made great progress over the years. It is our evolving and developing jurisprudence that has made this possible. But we still have a long way to go to bring the rights of victims of crime to the centre stage and to recognise them as human rights and an important component of social justice and the rule of law.”

                                    Needless to say, in the majority judgment authored by Justice Madan B Lokur, it is rightly lamented in para 3 that, “The travails and tribulations of victims of crime begin with the trauma of the crime itself and, unfortunately, continue with the difficulties they face in something as simple as the registration of a First Information Report (FIR). The difficulties in registering an FIR have been noticed by a Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1. The ordeal continues, quite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the rule of law and justice delivery.”

                                        No doubt, these problems must be addressed by Centre on war footing and cannot be left unaddressed any longer! The one path breaking reform that needs to be ushered in right now is that the registration of FIR must be made most simplest and either the role of policemen in registering FIR must be totally eliminated or it must be made so strict that any policemen found not complying must be dismissed from service so that no policemen ever dares to refuse to lodge an FIR! It is criminals and law breakers who benefit most from this refusal of policemen to register FIR! How can any democratic country allow policemen to become conduits of criminals and law breakers? I would go so far to suggest that the right to registration of FIR must be made a fundamental right and those policemen who are found wanting in registering FIR must be immediately dismissed with no pension and other benefits! The worst thing a victim faces is when after suffering at the hands of criminals and offenders, he/she is further made to suffer more mental trauma when police refuses to lodge FIR on one pretext or the other or puts pressure on victim to register FIR on some less charge with the primary objective of ensuring that offender benefits and victim’s case is made weaker!

                                    As if this is not enough, the victim then faces more difficulties and traumas in court room battles spanning for many years first in lower courts, then in high court and then in top court which only serves to further rub salt to the victim’s wounds! It is rightly noted in para 4 that, “What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Indian Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both. [Girish Kumar Suneja v. Central Board of Investigation, (2017) 14 SCC 809]. The Courts have provided solace to the victim with monetary compensation but that is not enough. [Hari Singh v Sukhbir Singh AIR 1988 SC 2127; Bodhisattwa Gautam v Subhra Chakraborty, AIR 1996 SC 922; Ankush Shivaji Gaikwad v State of Maharashtra, (2013) 6 SCC 770]. There are victim compensation schemes in force due to the mandate of Section 357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even that is not enough, though they are being implemented in several parts of the country. We are of the view that the judiciary is obliged to go and has gone beyond merely awarding compensation and has taken into consideration the larger picture from the perspective of the victim of an offence, relating to infrastructure in court buildings and has recommended and implemented some recommendations such as the construction of child friendly courts and courts that address the concerns of vulnerable witnesses [Sampurna Behura v Union of India, (2008) 4 SCC 433]. The Courts have done and are continuing to do their best for the victims of crime.” This is best illustrated in para 5 which points out that, “In Sakshi v. Union of India (2004) 5 SCC 518 this Court passed significant directions for holding in camera proceedings, providing for a screen between the accused and the victim and placed restrictions, in a sense, on the cross examination of witnesses. It is true that these directions have been passed in a case relating to sexual offences but the trend of this Court has been to show concern for the rights of victims of an offence and to address them.”    

                                While appreciating the role of Parliament in no uncertain terms, it is then observed in para 6 that, “Parliament also has been proactive in recognising the rights of victims of an offence. One such recognition is through the provisions of Chapter XXIA of the Cr.P.C. which deals with plea bargaining. Parliament has recognised the rights of a victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim to participate in the proceedings of a non-compoundable case. Similarly, Parliament has amended the Cr.P.C. introducing the right of appeal to the victim of an offence, in certain circumstances. The present appeals deal with this right incorporated in the proviso to Section 372 of the Cr.P.C.” Para 7 goes further to add that, “In other words, a considerable amount has been achieved in giving life to the rights of victims of crime, despite the absence of a cohesive policy. But, as mentioned above, a lot more still needs to be done.”   

                               While dwelling on providing meaningful rights to the victims of an offence, para 8 then stipulates that, “Among the steps that need to be taken to provide meaningful rights to the victims of an offence, it is necessary to seriously consider giving a hearing to the victim while awarding the sentence to a convict. A victim impact statement or a victim impact assessment must be given due recognition so that an appropriate punishment is awarded to the convict. In addition, the need for psycho-social support and counseling to a victim may also became necessary, depending upon the nature of the offence. It is possible that in a given case the husband of a young married woman gets killed in a fight or a violent dispute. How is the young widow expected to look after herself in such circumstances, which could be even more traumatic if she had a young child? It is true that a victim impact statement or assessment might result in an appropriate sentence being awarded to the convict, but that would not necessarily result in ‘justice’ to the young widow – perhaps rehabilitation is more important to her than merely ensuring that the criminal is awarded a life sentence. There is now a need, therefore, to discuss these issues in the context of social justice and take them forward in the direction suggested by some significant Reports that we have had occasion to look into and the direction given by Parliament and judicial pronouncements.”  

                                        Going forward, it is then held in para 9 that, “The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worse, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.” Absolutely right!

                                       Now coming to para 10, it then goes on to add that, “With this background, we need to consider the questions that arise before us consequent to the introduction of the proviso to Section 372 of the Cr.P.C. with effect from 31st December, 2009. The questions are somewhat limited: Whether a ‘victim’ as defined in the Cr.P.C. has a right of appeal in view of the proviso to Section 372 of the Cr.P.C. against an order of acquittal in a case where the alleged offence took place prior to 31st December, 2009 but the order of acquittal was passed by the Trial Court after 31st December, 2009? Our answer to this question is in the affirmative. The next question is: Whether the ‘victim’ must apply for leave to appeal against the order of acquittal? Our answer to this question is in the negative.”

               Factual narrative

                                           Now let us deal with those paras which give the factual narrative in this landmark case. To begin with, para 11 first and foremost points out that, “The appellant ( Kodagali – now dead but represented by his legal representatives) was the victim of an attack on the night of 6th February, 2009. He lodged a First Information Report with the police and after investigations, necessary proceedings were taken before the District and Sessions Judge, Bagalkot against the accused persons under several sections of the Indian Penal Code (the IPC). Para 12 then states that, “In S.C. No. 49 of 2010 the District and Sessions Judge, Bagalkot (Karnataka) acquitted the accused by a judgment and order dated 28th October, 2013.”

                                      To be sure, para 12 then states that, “In S.C. No. 49 of 2010 the District and Sessions Judge, Bagalkot (Karnataka) acquitted the accused by a judgment and order dated 28th October, 2013. Para 13 then further states that, “Aggrieved thereby, Kodagali preferred an appeal in the High Court being Criminal Appeal No. 100016 of 2014. The appeal was preferred under the proviso to Section 372 of the Cr.P.C. but it was dismissed as not maintainable by a judgment and order dated 10th June, 2014. It was held by the High Court that the proviso to Section 372 of the Cr.P.C. came into the statute book with effect from 31st December, 2009 but the incident had occurred well before that date. Therefore, the appeal was not maintainable. Reliance was placed by the High Court on National Commission for Women v. State of Delhi and another (2010) 12 SCC 599.”

                                     As things stood, para 14 then reveals that, “Kodagali then preferred another appeal in the High Court being Criminal Appeal No. 100119 of 2014. This appeal was filed under the provisions of Section 378(4) of the Cr.P.C. By a judgment and order dated 4th July, 2014 the High Court held that the appeal was not mainatainable. The view taken by the High Court was on a plain reading of Section 378(4) of the Cr.P.C. namely, that the appeal was not filed in a case instituted upon a complaint before a Magistrate.”

                                     As it turned out, para 15 then brings out that, “Under these circumstances, Kodagali is before us challenging the judgment and orders dated 10th June, 2014 and 4th July, 2014. It is his contention that he has been left with no remedy against the acquittal of the accused. His submission is that one of the accused is a Member of the Legislative Assembly and it is for this reason that the State did not challenge the acquittal. It is not necessary for us to go into the merits of the controversy or the allegations made by Kodagali. Suffice it to say, we are only concerned with the question whether the appeal filed by Kodagali under the proviso to Section 372 of the Cr.P.C. was maintainable or not.”     

         Victims of crime and their rights

                                      It would be crucial to note that para 16 observes that, “In recent times, four Reports have dealt with the rights of victims of crime and the remedies available to them. The first Report in this sequence is the 154th Report of the Law Commission of India of August 1996. While this Report did not specifically deal with the right of a victim of crime to file an appeal, it did discuss issues of victims of crime, compensation to be paid to the victim and rehabilitation of the victim including the establishment of a Victim Assistance Fund.” Para 17 then observes that, “The second important Report is the March 2003 Report of the Committee on Reforms of Criminal Justice System commonly known as the Report of the Justice Malimath Committee. In the Chapter on Adversarial Rights, it is recommended under the sub-heading of Victims Right to Appeal as follows:

        “2.21. The victim or his representative who is a party to the trial should have a right to prefer an appeal against any adverse order passed by the trial court. In such an appeal he could challenge the acquittal, or conviction for a lesser offence or inadequacy of sentence, or in regard to compensation payable to the victim. The appellate court should have the same powers as the trial court in regard to assessment of evidence and awarding of sentence”.” 

                                    Moving forward, para 18 goes on to add that, “Thereafter, in the substantive Chapter on Justice to Victims, it is noted that victims of crime, in many jurisdictions, have the right to participate in the proceedings and to receive compensation for injury suffered. It was noted as follows:

     “6.3 Basically two types of rights are recognized in many jurisdictions particularly in continental countries in respect of victims of crime. They are, firstly, the victim’s right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings.” Para 19 then further states that, “Following up on this, and extending the rights of victims of crime, it was observed in paragraph 6.5 that “The right of the victim should extend to prefer an appeal against any adverse order passed by the trial court. The appellate court should have the same powers to hear appeals against acquittal as it now has to entertain appeal against conviction. There is no credible and fair reason why appeals against acquittals should lie only to the High Court.”

                                Simply put, para 20 observes that, “On this basis, the Justice Malimath Committee made the following recommendation enabling the victim of a crime to prefer an appeal. The recommendation (made in the Chapter having the same heading) reads as follows:

            “The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.”

                                   Of course, para 20 then stipulates that, “On this basis, the Justice Malimath Committee made the following recommendation enabling the victim of a crime to prefer an appeal. The recommendation (made in the Chapter having the same heading) reads as follows:

          “The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.”

                                It must be pointed out here that it is then ostensibly mentioned in para 21 that, “The third Report worth considering is the July 2007 Report of the Committee on the Draft National Policy on Criminal Justice also known as the Professor Madhava Menon Committee. While this Committee does not specifically deal with providing a right of appeal to the victim of a crime, it does refer to victim orientation to criminal justice and providing for a balance between the constitutional rights of an accused person and a victim of crime. One of the suggestions given by the Committee is to permit the impleadment of a victim in the trial proceedings. Obliquely, therefore, it follows that if a victim is impleaded as a party to the trial proceedings, the victim would certainly have a right to file an appeal against an adverse order, particularly an order of acquittal.”

                                 More importantly, para 22 then points out that, “The fourth Report that deserves a mention here is the 221st Report of the Law Commission of India April 2009. In this Report, the recommendation of the Law Commission of India was to the effect that as the law stands, an aggrieved person cannot file an appeal against an order of acquittal. However, a revision petition can be filed. The powers of a revisional court are limited and the process involved is cumbersome and it also involves a wastage of money and time. It was, therefore, recommended by the Law Commission that against an order of acquittal passed by a Magistrate, a victim should be entitled to file an appeal before the revisional court. It was also recommended that in complaint cases also an appeal should be provided in the Sessions Court instead of the High Court. In all such cases, the aggrieved person or complainant should have the right to prefer an appeal, though with the leave of the Appellate Court. The view of the Law Commission was expressed in the following words:

             “2.9 All appeals against orders of acquittals passed by Magistrates were being filed in High Court prior to amendment of section 378 by Act 25 of 2005. Now, with effect from 23.06.2006, appeals against orders of acquittal passed by Magistrates in respect of cognizable and non-bailable offences in cases filed on police report are being filed in the Sessions Court, vide clause (a) of sub-section (1) of the said section. But, appeal against order of acquittal passed in any case instituted upon complaint continues to be filed in the High Court, if special leave is granted by it on an application made to it by the complainant, vide sub-section (4) of the said section.”

             2.10 Section 378 needs change with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it.

             2.11 Further, at present, against orders of acquittal passed by Magistrates (where the offence is cognizable and non-bailable) or by Sessions Courts, appeal in cases filed on police reports can be filed only at the instance of the District Magistrate or the State Government, as the case may be, vide sub-section (1) of Section 378. In such matters, the aggrieved person or the informant cannot himself file an appeal. However, he can prefer a revision. If the revisional Court finds that the accused has been wrongly acquitted, it cannot convict him in view of sub-section (3) of section 401, but it has to remand the case. It is a cumbersome process and involves wastage of money and time. This provision also needs a change and in such matters also, where the District Magistrate or the State does not direct the Public Prosecutor to prefer appeal against an order of acquittal, the aggrieved person or the informant should have the right to prefer appeal, though with the leave of the Appellate Court. This will also give an opportunity to the aggrieved person to challenge the findings of fact recorded by lower court. Also, this will introduce more transparency and accountability in the lower judiciary, as at present, the percentage of acquittal is quite high.”

                                   Truth be told, para 23 then says that, “It is, apparently, on the basis of all these Reports and other material that Section 372 of the Cr.P.C. was amended on 30th December, 2009 with effect from 31st December, 2009. Section 372 of the Cr.P.C. as it stands today reads as follows: “372. No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

       Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

                   Our conclusions

                In a nutshell, after mentioning many notable decisions and also dissenting judgments of different High Courts, the majority judgment of Justice Madan B Lokur and Justice S. Abdul Nazeer then finally and most importantly came to mentioning their own conclusions. To begin with, in para 71, it was held that, “It was submitted by learned counsel for the accused that the right to file an appeal is a substantive right and it should not be easily recognized unless specifically conferred by statute. We agree. There is no doubt that from the time of the Constitution Bench decision of this Court in Garikapati Veeraya v. N. Subbiah Choudhry 1957 SCR 488 it has been held that the right to appeal is not a mere matter of procedure but is a substantive right. We are bound by this decision as well as other decisions following this view. The question is whether this substantive statutory right has been conferred on the victim in a case such as the present.”

                             Not stopping here, it is then held in para 72 that, “It was also submitted by learned counsel for the accused that in the present fact situation, if we were to hold that Kodagali was entitled to file an appeal against the acquittal of the accused, then we would be giving retrospective effect to the proviso to Section 372 of the Cr.P.C. It was submitted that if Parliament intended to confer a statutory right of appeal on a victim with retrospective effect, it would have specifically said so. Since the proviso to Section 372 of the Cr.P.C. was not specifically given retrospective effect, it must operate prospectively and the crucial date in a case such as the present would be the date of the alleged offence.”

                                Rebutting what has been stated above, para 73 then states that, “To  counteract this, it was submitted by learned counsel for Kodagali that the view expressed by this Court in National Commission for Women was only an obiter and is not binding upon this Court. It is not necessary for us to go into this aspect of the matter since we are of the view that the decision rendered in National Commission for Women has been misunderstood and misinterpreted and is clearly distinguishable on facts. Even otherwise, the decision has been rendered by a Bench of the two learned judges and while the view expressed therein certainly has great persuasive value but it would not be binding on a Bench of three Judges. Besides the obiter dicta of this Court would not bind us.”

                                    It cannot be lost on us what para 74 of the majority judgment enunciates. It is clearly and convincingly held that, “What is significant is that several High Courts have taken a consistent view to the effect that the victim of an offence has a right of appeal under the proviso to Section 372 of the Cr.P.C. This view is in consonance with the plain language of the proviso. But what is more important is that several High Courts have also taken the view that the date of the alleged offence has no relevance to the right of appeal. It has been held, and we have referred to those decisions above, that the significant date is the date of the order of acquittal passed by the Trial Court. In a sense, the cause of action arises in favour of the victim of an offence only when an order of acquittal is passed and if that happens after 31stDecember, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the conviction of the accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso.”  

                           Most importantly, it has to be borne in mind what para 75 of this majority judgment envisages. While referring to the Declaration adopted by the General Assembly of the United Nations, it envisages that, “In our opinion, the proviso to Section 372 of the Cr.P.C. must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96thPlenary Session on 29th November, 1985. The Declaration is sometimes referred to as the Magna Carta or the rights of victims. One of the significant declarations made was in relation to access of justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:

“4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

  5.  Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

  6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

      (a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

     (b)  Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

     (c)  Providing proper assistance to victims throughout the legal process;

    (d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

     (e)  Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

     7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims”.”       

                          Truly speaking, para 76 then goes forward to espouse victim’s rights thus declaring that, “Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal proceedings as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 of the Cr.P.C. must be given life, to benefit the victim of an offence.”   

                                To put things in perspective, para 77 then minces no words in holding unambiguously that, “Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2 (wa) of the Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits.” Para 78 then further adds that, “As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word ‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned.”   

                           Final order

                           Now coming to final order, it is illustrated in para 79 of the majority judgment. It held that, “For the reasons mentioned above, the appeals are allowed and the judgment and orders passed by the High Court are set aside and the matters are remitted back to the High Court to hear and decide the appeal filed by Kodagali against the judgment and order of acquittal dated 28th October, 2013 passed by the District and Sessions Judge, Bagalkot (Karnataka) in S.C. No. 49 of 2010.”

                                        Last but not the least, Justice Deepak Gupta in his separate judgment observed that the pain which the victim of a criminal offence suffers should be understood by the courts and keeping in view the emerging trends in law, the rights of the victim should not be trampled. Justice Deepak also sought to send across a loud and unequivocal message that, “Victims must be treated with sensitivity, compassion and respect. They also must be permitted to access justice because it is sometimes found that the investigating and prosecuting agencies do not follow up cases with the zeal which is required.” All that needs to be done now is to ensure that victims rights are not trampled upon and it ought not to be forgotten that the rights of accused far outweigh that of the victim and this needs some balancing so that the criminal proceedings are fair to both as very rightly underscored in this landmark and laudable judgment!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

To begin with, in a latest landmark judgment with far reaching consequences, the Apex Court Bench comprising of Justice R Banumathi and Justice Indira Banerjee in Ram Lal vs. State of Himachal Pradesh in Criminal Appeal No. 576 of 2010 with Criminal Appeal No. 577 of 2010, Criminal Appeal No. 578 of 2010 on October 3, 2018 minced no words in stating it clearly and convincingly that, “If the court is satisfied that if the confession is voluntary, the conviction can be based upon the same. Rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated.” Absolutely right! There can be no denying it!

                                      At the outset, this landmark judgment begins by first and foremost pointing out that, “These appeals arise out of the judgment dated 22.12.2008 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal Nos. 710-712 of 2000 in and by which the High Court affirmed the judgment passed by the trial court thereby affirming the conviction of the appellant under Section 13(1)(C) read with Section 13(2) of Prevention of Corruption Act, 1988 and under Sections 409 and 477-A IPC and the sentence of imprisonment imposed upon him.”

                               To recapitulate, para 2 of this landmark judgment points out that, “Briefly stated case of the prosecution is that accused was employed as a Peon in the United Commercial Bank in January 1987. He was assigned the job of the Clerk as there was a shortage of clerical staff in the bank and his job was of manning Saving Bank accounts counter. His job was to receive money from the account holders for deposit in Saving Bank accounts. He used to make entries in their pass books in his own hand but would not account money in the account banks of the bank nor did he pass it to the cashier. It is alleged that neither the appellant filled the pay-in-slips nor was any deposit made in the scroll, daily case receipt book and the cash payment book maintained by the cashier and he used to pocket that money. When the depositors approached him for withdrawals of money, he would make fake credit entries in the ledger accounts and fill in the withdrawal slips and submit the same to the officer concerned for payment. The Passing Officer misled by the fake credit entry would allow the withdrawals. This way, the appellant caused wrongful loss to the Bank to the tune of Rs 38,500/- during the year 1994. When the fraud came to light, a Committee of two officers namely, R.C. Chhabra (PW-3) and M.P. Sethi was deputed to hold a preliminary enquiry and the Committee noticed bungling of accounts by the appellant. After that, Enquiry Committee recommended thorough investigation in the matter. After the preliminary enquiry, FIR was registered against the appellant under Sections 409, 468, 471, 477-A IPC and under Section 13(1)(C) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act, 1988). After investigation, the appellant was charge sheeted for the said offences.”

                           Having said this, the Court then observes in para 3 that, “To prove the guilt of the accused, prosecution has examined thirteen witnesses and produced documentary evidence. Upon consideration of the oral and documentary evidence, the trial court held that the appellant in his capacity as a public servant, had misappropriated the money entrusted to him, in discharge of his duty, as a public servant. The trial court convicted him for the offences under Section 13(1)(c) read with Section 13(2) of the PC Act, 1988 and Section 477-A IPC for falsification of accounts with intent to defraud the Bank and he was sentenced to undergo rigorous imprisonment for a period of two years along with a fine of Rs 5,000/. For the offence under Section 409 IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of five years with a fine of Rs 5,000/- and all the sentences were directed to run concurrently. The appellant was, however, acquitted for the offences under Sections 468 and 471 IPC for the charge of forgery by holding that the opinion expert is not precise. Being aggrieved by the conviction, the appellant preferred the appeal before the High Court which was dismissed by the impugned judgment.”

                                   Be it noted, para 4 while putting forward the contention of the appellant points out that, “Learned counsel for the appellant contended that the appellant was working as Peon in the bank and as per bank rules, no clerical job can be assigned to Peon/sub-staff which was admitted by the officers of the bank viz. Prem Chand (PW-1), R.K. Soni (PW-2), R.C. Chhabra (PW-3) and A.K. Gupta (PW-10). It was contended that when any particular job is assigned to an employee different from his duty, then the Manager is supposed to issue office order/duty sheet whereas in the present case, no office order/duty sheet was placed on record to establish that the appellant was assigned the clerical job as alleged. The appellant mainly assails the confessional statement contending that he did not voluntarily make any confession statement and the confessional statement could not have been made the basis for conviction.”

                                 As it turned out, the Apex Court in para 5 while putting forward the contention of the State brought out that, “Learned counsel for the State contended that the appellant acted with dishonest intention to defraud the Bank by making false credit and debit entries in the accounts of various account holders thereby falsifying the account books of the Bank and the courts below rightly convicted the appellant for defrauding the Bank and the impugned judgment warrants no interference.”

                                  Truth be told, it is revealed in para 10 about the confessional statement that, “After the preliminary enquiry was conducted, the Divisional Office nominated two senior officers namely, R.K. Soni (PW-2) and H.O. Aggarwal, who submitted the report consisting of 202 pages, which has been made part of the investigation report, Ex-PW-2/A. R.K. Soni (PW-2) deposed in his evidence that the writings at pages (143) and (144) of report Ex-PW-2/A, was prepared by the appellant-accused voluntarily in his own handwriting, in his presence and in the presence of his co-investigator H.O. Aggarwal and the appellant-accused admitted having received money from various account holders, for being deposited in their Saving Bank accounts and having made entries in their pass books. In his confession statement, the appellant also admitted that he did not account for the money, but misappropriated the same and that when the account holder visited the bank for the withdrawal of the money, he used to make fake credit entries in the ledger folio of their accounts and on the basis of those fake entries, withdrawals used to be made.”

                                   Needless to say, in para 13, it was observed that, “Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction. Considering the admissibility and evidentiary value of extra-judicial confession, after referring to various judgments, in Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403, this Court held as under:-

   “15.1. In Balwinder Singh v State of Punjab 1995 Supp (4) SCC 259 this Court stated the principle that:

      “10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.”

   15.4 While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram (2003) 8 SCC 180 stated the principle that:

   “19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.”

  The Court further expressed the view that:

   “19 …Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused….”

    15.6 Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 held that:

    “29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore (1970) 2 SCC 105, Mulk Raj v State of U.P. AIR 1959 SC 902, Sivakumar v. State By Inspector of Police (2006) 1 SCC 714 (SCC paras 40 and 41: AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra (2009) 11 SCC 262 and Mohd. Azad alias Shamin v. State of W.B. (2008) 15 SCC 449).”  

                                        To put things in perspective, the Apex Court Bench then held in para 14 conclusively and convincingly that, “It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra-judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey and Another (1992)  3 SCC 204, this court after referring to Piara Singh and Others v. State of Punjab (1977) 4 SCC 452 held that the law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated.”   

                                Going forward, it is then further held in para 15 that, “As discussed above, if the court is satisfied that if the confession is voluntary, the conviction can be based upon the same. Rule of Prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused must be separately and independently corroborated. In the case at hand, as pointed out by the trial court as well as by the High Court, R.K. Soni (PW-2) and R.C. Chhabra (PW-3) were the senior officers of the bank and when they reached the bank for inspection on 23.04.1994, the accused submitted his confessional statement (Ex.-PW-2/A). Likewise, in the enquiry conducted by R.C. Chhabra (PW-3), the accused had given confession statement (Ex-PW-3/A).”

                    Not stopping here, it is then held in para 16 that, “Contention of the appellant is that PWs 2 and 3 being the higher officials, it cannot be said that the confession statement of the accused has been made voluntarily and it must have been under the inducement or under false promise of favour. Mere allegation of threat or inducement is not enough; in the court’s opinion, such inducement must be sufficient to cause a reasonable belief in the mind of the accused that by so confessing, he would get an advantage. As pointed out by the trial court and the High Court, though the confession statement has been initially made in the presence of R.C. Chhabra (PW-3) and M.P. Sethi by the appellant, no question was put to R.C. Chhabra (PW-3) that extra-judicial confession (Ex-PW3/A) was an outcome of any threat, inducement or allurement. The statement which runs to eleven sheets has been held to be made by the appellant voluntarily. Likewise, confession statement (Ex-PW-2/A) was in the handwriting of the appellant made in the presence of R.K. Soni (PW-2) and H.O. Agrawal, the then Assistant Chief Officer (Inspection). Here again, it was not suggested to R.K. Soni (PW-2) that Ex-PW-2/A was outcome of some threat or pressure. The trial court as well as the High Court concurrently held that the confession statements (Ex-PW-3/A and PW-2/A) were voluntarily made and that the same can form the basis for conviction. We do not find any good ground warranting interference with the said concurrent findings.”

          What does all this adds up to? It clearly vindicates what the trial court as well as the High Court held concurrently that the confession statements were voluntarily made and this can form the basis for conviction. Regarding conviction, it was clarified in para 17 that, “In so far as the conviction under Section 13(1)(c) read with Section 13(2) of PC Act, 1988, the appellant was sentenced to undergo rigorous imprisonment for two years. For conviction under Section 477-A IPC, the appellant was sentenced to undergo rigorous imprisonment for two years. For conviction under Section 409 IPC, the appellant was sentenced to undergo rigorous imprisonment for five years. The occurrence was of the year 1992-94. Considering the passage of time and the facts and circumstances of the case, the sentence of imprisonment imposed on the appellant is reduced to three years.”

                                                 Finally and most importantly, it is then held in the concluding para 18 of this landmark judgment that, “In the result, the conviction of the appellant under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentence of imprisonment of two years is confirmed. The conviction under Sections 477-A and 409 IPC is confirmed and the sentence of imprisonment under Section 409 IPC is reduced to three years. These appeals are accordingly partly allowed. The appellant shall surrender himself within four weeks from today to serve the remaining sentence, failing which the appellant shall be taken into custody.”  

                                       In conclusion, this landmark ruling explicitly states that, “Extra-judicial confession of accused need not in all cases be corroborated.” Conviction of an accused can be based even on uncorroborated extra-judicial confession if it inspires confidence. This is exactly what we see here also in this landmark case! All courts must abide by this landmark ruling and should ensure that conviction of an accused is not rejected just because it proceeds upon the uncorroborated extra-judicial confession of the accused!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It has to be stated at the very outset that in a landmark judgment with far reaching consequences which will go a long way in ensuring that leaders of outfits calling for mob violence are held liable for damages, the Supreme Court just recently on October 1, 2018 in the landmark case titled Kodungallur Film Society vs. Union of India in Writ Petition (Civil) No. 330 of 2018 has issued comprehensive guidelines to control vandalism by protesting mobs. Vandalism is vandalism and it cannot be justified under any circumstances! Those who indulge in it and those who instigate it must all be held clearly accountable and made to pay for what they have done most shamefully!

While issuing guidelines, the Apex Court Bench of CJI Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud has taken cue from the guidelines issued to control mob lynching in Tehseen Poonawala case. It ought to be mentioned here that the PIL filed by Kodungallur Film Society sought framing of guidelines to deter large scale acts of violence and hooliganism carried out rampantly by fundamentalist outfits and fringe elements in the name of public protests. The petitioner was compelled to file the PIL in the backdrop of rampant vandalism unleashed by goons of Karni Sena members during “Padmavat” agitation. The main prayer that was urged in the PIL was to direct the Central and State Governments to strictly implement the guidelines framed by the Court in the case In Re Destruction of Public and Private Properties v Govct of AP [(2009) 5 SCC 212]. 

At the outset, it must be mentioned that this landmark judgment notes in para 1 that, “The petitioners have filed the present writ petition on 25th January, 2018, in the backdrop of mob violence, protests and demonstrations which erupted across the nation in the recent past, especially against cultural programmes and establishments and the ensuing damage to public and private properties arising out of such violence. Petitioner No. 1 is a registered film society and petitioner no. 2, is a member of the petitioner no. 1 film society. They have highlighted law and order problems arising out of the release of several films, especially the violence surrounding the release of the film ‘Padmaavat’, and submit that fundamentalist outfits and fringe groups have been issuing threats and engaging in acts of violence against people and property to disrupt and prevent public exhibitions of these films on the pretext that they offend their cultural/religious sentiments. These groups engage in violence against artisitic expression, with utter impunity and show complete disregard for the rule of law and constitutional values. The films which are protested against are certified for public exhibition in accordance with law under the Cinematograph Act and by attempting to stop their exhibition, these groups operate as ‘super censors’, exercising unlawful authority and power outside the control and without the sanction of the State. These attacks on films are part of a larger problem whereby private individuals and groups impose unlawful restraints by threatening violence upon citizens’ artistic freedoms and thereby impinge on the freedom of speech and expression under Article 19(1)(a) of the Constitution of India. The petitioners contend that the respondent state governments then themselves ban the exhibition of such films, citing law and order problems, without clamping down on the root cause of such problems namely the individuals and groups who incite and commit violence. It is also contended that many such groups have tacit support from the political parties in power.” 

More importantly, this landmark judgment authored by Justice AM Khanwilkar for the Bench in para 7 then minces no words in stating it quite clearly, convincingly and categorically that, “The present petition highlights the disconcerting rise in the protests and demonstrations by private entities targeting, amongst others, exhibition of films and social functions and including sections of people, on moral grounds, in particular, using threats and actual violence. In addition to being patently illegal and unlawful, such acts of violence highlight a deeper malaise, one of intolerance towards others views which then results in attempts to suppress alternate view points, artistic integrity and the freedom of speech and expression guaranteed by the Constitution of India. Indeed, the people who perpetrate such actions, especially against private parties, do so without fear of consequence and reprisal, probably believing that private parties do not have the wherewithal to hold them accountable for such actions. In such situations, the State must step in and perform its duty by taking measures to prevent such actions from occurring in the first place, ensuring that law-enforcement agencies exercise their power to bring the guilty parties to book and imposing time-bound and adequate punishment for any lapses. This Court has time and again underscored the supremacy of law and that one must not forget that administration of law can only be done by law-enforcing agencies recognised by law. Nobody has the right to become a self-appointed guardian of the law and forcibly administer his or her own interpretation of the law on others, especially not with violent means. Mob violence runs against the very core of our established legal principles since it signals chaos and lawlessness and the State has a aduty to protect its citizens against the illegal and reprehensible acts of such groups. Very recently, we have dealt with almost similar grievances in Tehseen S Poonawalla vs Union of India & Ors [Judgment dated 17th July, 2018 in Writ Petition (Civil) No. 754 of 2016: AIR 2018 SC 3354].

As it turned out, the Apex Court conceded in para 15 that, “We are conscious of the fact that the crimes committed by groups of self-appointed keepers of public morality may be on account of different reasons or causes, but the underlying purpose of such group of persons is to exercise unlawful power of authority and that too, without sanction of State and create fear in the minds of the public or, in a given situation, sections of the community. The dispensation for preventing occurrences of such crimes or remedial measures and punitive measures would vest in the same police in the State. Therefore, a comprehensive structure will have to be evolved in the respective States so that the issues of accountability and efficiency in curbing incidents of peaceful protests turning into mob violence causing damage to property including investigation, remedial and punitive measures, are duly addressed. While doing so, the directions given by this Court in In Re: Destruction of Public and Private Properties (supra), Shakti Properties (supra), Shakti Vahini (supra) and Tehseen Poonawalla (supra) must be borne in mind.”

Finally and most importantly, in para 16 which is the last and most important para of this entire judgment and for which it will not be an exaggeration to say that, “It is the heart of this whole landmark judgment” makes it abundantly clear that, “There are overlapping areas of directions which albeit apply to the situations referred to in the concerned decision. For the purpose of the present writ petition, we have no hesitation in observing that the dispensation can be similar to the one decided recently in Tehseen Poonawalla (supra), for which reason the guidelines delineated in the said decision must apply proprio vigore in respect of peaceful protests turning into mob violence, causing damage to public and private properties.

A Ex abundant cautela, we may hasten to clarify that similar interim measures will operate in respect of any peaceful protest turning into mob violence, causing loss of life or damage to public and private properties, including violence designed to instill fear in the minds and terrorise the common man in the absence of any law to that effect. The recommendations/directions elucidated hereunder are not exhaustive but only to set out broad contour of the measures required to be taken and are in addition to the recommendations/directions given in In Re: Destruction of Public and Private Properties (supra):

A Structural and preventive measures 

a) In addition to the responsibilities ascribed to the responsibilities ascribed to the Nodal Officer(s) as set out in Tehseen Poonawalla (supra), the said Nodal Officer(s) would also be responsible for creating and maintaining a list containing the various cultural establishments, including theatres, cinema halls, music venues, performance halls and centres and art galleries within the district, and pin point vulnerable cultural establishments and property which have been attacked/damaged by mob violence over the past 5 (five) years. This list would be updated on a regular basis to account for any new openings/closings of establishments.

b) In addition to the prohibition against weaponry laid down in paragraph 12(11) of In Re: Destruction of Public and Private Properties (supra), any person found to be carrying prohibited weaponry, licensed or otherwise, during protests/demonstrations would prima facie be presumed to have an intention to commit violence and be proceeded in that regard as per law.

c) The State governments should set up Rapid Response Teams preferably district-wise which are specially trained to deal with and can be quickly mobilized to respond to acts of mob violence. These teams can also be stationed around vulnerable cultural establishments as mentioned hereinabove.

d) The State governments should set up special helplines to deal with instances of mob violence.

e) The State police shall create and maintain a cyber information portal on its website and on its internet-based application(s) for reporting instances of mob violence and destruction of public and private properties.

B. Remedies to minimize, if not extirpate, the impending mob violence

a) The Nodal Officer(s) will coordinate with local emergency services, including police stations, fire brigades, hospital and medical services and disaster management authorities during incidents of mob violence in order to have a comprehensive and consolidated response to the situation.

b) The authorities must consider the use of non-lethal crowd-control devices, like water cannons and tear gas, which cause minimum injury to people but at the same time, act as an effective deterrent against mob force.

c) The authorities must ensure that arrests of miscreants found on the spot are done in the right earnest.

d) The Nodal Officer(s), may consider taking appropriate steps as per law including to impose reasonable restrictions on the social media and internet-based communication services or mobile applications, by invoking enabling provisions of law during the relevant period of mob violence, if the situation so warrants.

e) The Nodal Officer(s) must take coordinated efforts and issue messages across various audio-visual mediums to restore peace and to stop/control rumours. This can extend to issuing communications on local TV channels, radio stations, social media like Twitter etc.

C. Liability of person causing violence

a) If a call to violence results in damage to property, either directly or indirectly, and has been made through a spokesperson or through social media accounts of any group/organization(s) or by any individual, appropriate action should be taken against such person(s) including under Sections 153A, 295A read with 298 and 425 of the Indian Penal Code, 1860. 

b) In instances where a group/organisation has staged a protest or demonstration resulting in violence and damage to property, the leaders and office bearers of such group/organisation should physically present themselves for questioning, on their own, within 24 (twenty four) hours, in the police station within whose jurisdiction the violence and damage occurred. Any such person(s) failing to present himself/herself in such manner without any sufficient reason should be proceeded against as a suspect and legal process must be initiated forthwith against him/her including for being declared an absconder in accordance with law.

c) A person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss. In case of more than one person involved in such act of violence, each one of them shall be jointly, severally and vicariously liable to pay the quantified loss. If the loss is yet to be quantified by the appropriate authority, the judge hearing the bail application may quantify the amount of tentative damages (which shall be subject to final determination thereof by the appropriate authority) on the principle stated in paragraph 15 of the decision in In Re: Destruction of Public and Private Properties (supra), after hearing the submissions of the State/agency prosecuting the matter in that regard.

D Responsibility of police officials

a) When any act of violence results in damage to property, concerned police officials should file FIRs and complete investigation as far as possible within the statutory period and submit a report in that regard. Any failure to file FIRs and conduct investigations within the statutory period and without sufficient cause should be considered as dereliction of duty on behalf of the concerned officer and can be proceeded against by way of departmental action in right earnest.

b) Since the Nodal Officer(s) holds the overall responsibility in each district to prevent mob violence against cultural establishments and against property, any unexplained and/or unsubstantiated delay in filing FIRs and/or conducting investigations in that regard should also be deemed to be inaction on the part of the said Nodal Officer(s).

c) With reference to the videography mentioned in paragraphs 5(iv), 10 and 12 of In Re: Destruction of Public and Private Properties (supra), the officer-in-charge should first call upon from the panel of local video operators maintained by the concerned police station to video-record the events. If the said video operators are unable to record the events for whatever reason or if the officer-in-charge is of the opinion that supplementary information is required, then he/she can also call upon private video operators to record the events and request the media for information on the incident in question, if need be.

d) Status reports of the investigation(s) trial(s) concerning such offences as set out hereinabove, including the results of such trial(s), shall be uploaded on the official website of the concerned State police on a regular basis.

e) In the event of acquittal of any person(s) accused of committing such offences as set out hereinabove, the Nodal Officer(s) must coordinate with the Public Prosecutor for filing appeal against such acquittal, in the right earnest.

E Compensation

a) The person/persons who has/have initiated, promoted, instigated or any way caused to occur any act of violence against cultural programmes or which results in loss of life or damage to public or private property either directly or indirectly, shall be made liable to compensate the victims of such violence.

b) Claims arising out of such acts of violence should be dealt with in the manner prescribed in paragraph 15 of In Re: Destruction of Public and Private Properties (supra).

c) This compensation should be with regard to the loss of life or damage done to any public or private properties, both movable or immovable.

To put things in perspective, the Bench of Apex Court in para 17 finally directed that, “The recommendations that we have made hereinabove be implemented by the Central and State governments as expeditiously as possible, preferably within a period of 8 (eight) weeks from today.” It must be strictly implemented as directed by the top court! It brooks no delay anymore!

In a nutshell, it has to be said that all those leaders who call for mob violence must not be just held liable for damages but also must be severely punished and they must also be banned from participating in any elections in future! The biggest misfortune of India is that leaders get away easily even after being directly involved in mob violence which claims not just destruction of property but also killings of thousands of innocent people as we saw during anti-Sikh riots of 1984, after demolition of Babri Masjid in 1992, Gujarat riots of 2002 etc! This is most disgraceful! All rules are relaxed in India for politicians as for instance even if they are a former dacoit still they can become MP or MLA but if the same person wants government job, he/she is barred completely because for that not a single case should even be registered in FIR in any police station!

Why this double standard for politicians and for the rest of the crowd? Why should politicians not be placed on higher probity? This alone explains why more and more criminals are entering politics and all parties give them tickets if they feel that such candidates with criminal background can win elections for them! This open treachery with the people of India and different parameters for those aspiring for government jobs and those aspiring to become MPs and MLAs must be consigned immediately to the dustbin of history and politicians too must be made equally accountable if not more and no exemptions of any kind should be given to them also on ground of political rivalry and other such specious excuses! But for this to happen, a strong political will power is needed which we currently don’t see nor in the past 70 years did we ever see this happening! Still let’s hope that some day this miracle happens and politicians too are made to be subjected to “Code of Conduct for MPs and MLAs” as advocated earnestly and very rightly by our Vice President Venkaiah Naidu some time back! What is wrong in it? It will do our democratic country a world of good! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

 “History owes an apology to members of this community and their family, for the delay in providing redressal for the ignominy and ostracism they suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’. ”

–        Justice Indu Malhotra who was one of the Five Judges along with CJI Dipak Misra, Justice DY Chandrachud, Justice RF Nariman, who delivered this landmark and path breaking judgment observed this in para 20 of her judgment

                                             What was for a long time just a mirage has now become a “living reality”! Yes, finally we see that the draconian 158-year-old Victorian era law – Section 377 of the IPC has been decriminalised partially by a Five Judge Constitution Bench of Supreme Court for sex between consenting adults on a batch of petitions filed by dancer Navtej Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, business executive Ayesha Kapur and 20 students of the IITs challenging its constitutional validity in its landmark and laudable decision titled Navtej Singh Johar & Ors v Union Of India Thr Secretary Ministry Of Law And Justice in Writ Petition (Criminal) No. 76 of 2016 With Writ Petition (Civil) No. 572 of 2016 Writ Petition (Criminal) No. 88 of 2018 Writ Petition (Criminal) No. 100 of 2018 Writ Petition (Criminal) No. 101 of 2018 Writ Petition (Criminal) No. 121 of 2018 which shall be remembered always! This landmark judgment was delivered with a prayer to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender, Queer) to forgive history for subjecting them to “brutal” suppression! We thus see that Constitutional morality finally trumps majoritarian suppressive notions! Even CJI Dipak Mishra himself said that, “I am what I am. So take me as I am… Denial of self-expression is like death”.

                                         No wonder, it has not just grabbed national headlines but international headlines also! But this has not happened overnight! A long gruelling battle has been fought for this to happen by the petitioners and they deserve all the credit for it! Hailing the Supreme Court judgment, Amnesty International India said that the verdict gave hope to everyone fighting for justice and equality. Asmita Basu who is Programmes Director of Amnesty International India said that, “The judgment closes the door on a dark chapter of Indian history. It marks a new era of equality for millions of people in India.”  

                                What a pity that Section 377 of IPC which was modelled after the 16th century Buggery Act of Britain has been continuing centuries later in same form in India till now even though it was discarded in Britain a long time back! It must be informed here that homosexual relations are legal in 25 countries besides India but 72 nations have continued to criminalise it. In Canada legal since 1969, marriage and adoption allowed. US legalized in 2003 and currently same-sex marriage, adoption legal. France legalized it in 1791 and same-sex marriage and adoption allowed. In UK legalized in 1967. Same-sex marriage and adoption allowed. In Russia legal since 1993 but no marriage allowed. In Japan legal since 1860 but no marriage or adoption. In China and Thailand legal since 1997 and 1956 but no marriage or adoption. In Nepal legal since 2007 but no marriage or adoption. In Australia legal since 1997 and marriage and adoption allowed. In 45, same sex relations between women are also outlawed. UP had the highest number of cases, 999, registered under Section 377 of the IPC during 2016. Kerala came second with 207 cases under the category of “unnatural offences”. Delhi followed with 182 cases.

                                         Truly speaking, in India too a long, gruelling legal battle had to be fought before this battle of decriminalizing consensual same sex could see the light of the day! Let us see the chronological order in which this happened:-

1994 – Delhi NGO AIDS Bhedbhav Virodhi Andolan moves High Court against Section 377.

2001 – Similar petition filed in Delhi High Court by NGO Naz Foundation. 1994 petition was dismissed.  

2003 – Naz Foundation moves Delhi High Court but its petition dismissed.

2006 – Supreme Court asks Delhi High Court to hear petition again.

July 2, 2009 – Delhi High Court decriminalizes homosexuality saying it violated Article 14, 15 and 21 of the Constitution and legalized consensual same gender sex for adults.

2013 – Several appeals filed in Supreme Court. A two-Judge Apex Court Bench of GS Singhvi and SJ Mukhopadhaya overturned the Delhi High Court judgment, claiming fewer than 200 people had been prosecuted under the law. Supreme Court finds Delhi High Court order “legally unsustainable”.

2014 – Supreme Court delivers NALSA judgment on the listed curative petition and recognizes rights of transgender persons.

2015 – MP Shashi Tharoor introduced a private member’s Bill to decriminalize homosexuality. BJP-majority Lok Sabha voted against it.

2016 – Fresh petitions in Supreme Court by Navtej Johar, Ritu Dalmia, Aman Nath and Ayesha Kapur move Supreme Court against Section 377. Others join later. Supreme Court refers pleas to 5-Judge Bench.

2017 – Supreme Court in Justice KS Puttaswamy ruling on right to privacy declares right to privacy a fundamental right, also observes “sexual orientation is an essential attribute of privacy”.

2018 – During Constitution Bench hearing leaves it to the wisdom of Supreme Court to decide the validity of Section 377.

September 6, 2018 – Constitution Bench of Supreme Court hears fresh batch of petitions against Section 377 and read down the colonial law thus decriminalizing homosexuality. It ruled consensual gay sex is not a crime. Says part of Section 377 that criminalized consensual unnatural sex are “irrational, indefensible and manifestly arbitrary”.

                                             Needless to say, the Five Judge Bench of Apex Court led by CJI Dipak Misra, unanimously held that criminalization of private consensual conduct between adults of the same sex under Section 377 of the IPC was clearly unconstitutional. The Court, however, held that the Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377 of IPC.

                                       To be sure, this landmark judgment begins first and foremost by quoting eminent thinkers. It begins by saying that, ‘Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said “I am what I am, so take me as I am” and similarly, Arthur Schopenhauer had pronounced, “No one can escape from their individuality”.In this regard, it would be profitable to quote a few lines from John Stuart Mill:-

         “But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”

           The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individual and identity is grant of respect to self. This realization is one’s signature and self-determined design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums.’   

                                         Be it noted, para 3 then points out that, “The overhauling ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society. The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the “less than equal” sections of the society. We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.”  

                                   Going forward, para 4 then points out that, “The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her.”  

                                    Now let us talk about para 9. It says that, “It has to be borne in mind that search for identity as a basic human ideal has reigned the mind of every individual in many a sphere like success, fame, economic prowess, political assertion, celebrity status and social superiority, etc. But search for identity, in order to have apposite space in law, sans stigmas and sans fear has to have the freedom of expression about his/her being which is keenly associated with the constitutional concept of “identity with dignity”. When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one’s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay. The question that is required to be posed here is whether sexual orientation alone is to be protected or both orientation and choice are to be accepted as long as the exercise of these rights by an individual do not affect another’s choice or, to put it succinctly, has the consent of the other where dignity of both is maintained and privacy, as a seminal facet of Article 21, is not dented. At the core of the concept of identity lies self-determination, realization of one’s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, “constitutionally permissible”. As long as it is lawful, one is entitled to determine and follow his/her pattern of life. And that is where the distinction between constitutional morality and social morality or ethicality assumes a distinguished podium, a different objective. Non-recognition in the fullest sense and denial of expression of choice by a statutory penal provision and giving of stamp of approval by a two-Judge Bench of this Court to the said penal provision, that is, Section 377 of the Indian Penal Code, in Suresh Kumar Koushal and another v Naz Foundation and others (2014) 1 SCC 1 overturning the judgment of the Delhi High Court in Naz Foundation v Government of NCT of Delhi and others (2009) 111 DRJ 1, is the central issue involved in the present controversy.”

                                       It may be recalled that the landmark judgment of the Delhi High Court in 2009 was delivered by the then Delhi High Court Chief Justice AP Shah and S Muralidhar in Naz Foundation case. They had held that, “We declare Section 377 of Indian Penal Code in so far as it criminalises consensual sexual act of adults in private is violative of Articles 21, 14 and 15 of the Constitution. In our view Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian, gay, bisexual & transgender) are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual. The provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex involving minors.”

                                      Let us now pay singular attention to what para 91 says. It says that, “The Supreme Court of Canada, while giving an expanisve interpretation to marriage by including same-sex unions within its encompass, in Re: Same Sex Marriage (2004) 3 SCR 698 has observed:-

           “The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”

    Transformative Constitutionalism And Rights Of LGBT                   

                         Now it is time to talk about transformative constitutionalism as explained in various paras. Para 95 says that, “For understanding the need of having a constitutional democracy and for solving the million dollar question as to why we adopted the Constitution, we perhaps need to understand the concept of transformative constitutionalism with some degree of definiteness. In this quest of ours, the ideals enshrined in the Preamble to our Constitution would be a guiding laser beam. The ultimate goal of our magnificent Constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution. The Court in State of Kerala and another and another v. N.M. Thomas and others AIR 1976 SC 490 observed that the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social science approach, not by pedantic, traditional legalism. The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformational constitutionalism.” 

                                     Now coming to para 96, it says that, “ The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution. The expression ‘transformative constitutionalism’ can be best understood by embracing a pragmatic lens which will help in recognizing the realities of the current day. Transformation as a singular term is diametrically opposed to something which is static and stagnant, rather it signifies change, alteration and the ability to metamorphose. Thus, the concept of transformative constitutionalism, which is an actuality with regard to all Constitutions and particularly so with regard to the Indian Constitution, is, as a matter of fact, the ability of the Constitution to adopt and transform with the changing needs of the times.”

                                             Moving ahead, in para 97 , it is stated that, “It is this ability of a Constitution to transform which gives it the character of a living and organic document. A Constitution continuously shapes the lives of citizens in particular and societies in general. Its exposition and energetic appreciation by constitutional courts constitute the lifeblood of progressive societies. The Constitution would become a stale and dead testament without dynamic, vibrant and pragmatic interpretation. Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments of the society. That is the raison d’ etre for the Constitution.” Very rightly said!

                                    Be it noted, para 98 then observes that, “The Supreme Court as well as other constitutional courts have time and again realized that in a society undergoing fast social and economic change, static judicial interpretation of the Constitution would stultify the spirit of the Constitution. Accordingly, the constitutional courts, while viewing the Constitution as a transformative document, have ardently fulfilled their obligation to act as the sentinel on qui vive for guarding the rights of all individuals irrespective of their sex, choice and sexual orientation.”

                Of course, para 99 then goes on to illustrate that, “The purpose of transformative constitutionalism has been aptly described in the case of Road Accident Fund and another v Moleyide 2008 (1) SA 535 (CC) wherein the Constitutional Court of South Africa, speaking in the context of the transformative role of the Constitution of South Africa, had observed:-

       “Our Constitution has often been described as “transformative”. One of the most important purposes of this transformation is to ensure that, by the realization of fundamental socio-economic rights, people disadvantaged by their deprived social and economic circumstances become more capable of enjoying a life of dignity, freedom and equality that lies at the heart of our constitutional democracy.”      

                                           Not stopping here, it is further stated in para 100 that, “In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others (2004) 2 ACC 15, the Constitutional Court of South Africa opined:-

       “The achievement of equality is one of the fundamental goals that we have fashioned for ourselves in the Constitution. Our constitutional order is committed to the transformation of our society from a grossly unequal society to one “in which there is equality between men and women and people of all races”. In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The efforts of discrimination may continue indefinitely unless there is a commitment to end it.”                                   

                         Now coming to para 103, it states that, “Again, the Supreme Court of South Africa in President of the Republic of South Africa v Hugo (1997) 6 BCLR 708 (CC) observed that the prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups but also that at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect, regardless of their membership of particular groups.”

                                       It would be worth pointing out here that it is very rightly noted by Apex Court in para 106 that, “The society has changed much now, not just from the year 1860 when the Indian Penal Code was brought into force but continuous progressive change. In many spheres, the sexual minorities have been accepted. They have been given space after the NALSA judgment but the offence punishable under Section 377 IPC, as submitted, creates a chilling effect. The freedom that is required to be attached to sexuality still remains in the pavilion with no nerves to move. The immobility due to fear corrodes the desire to express one’s own sexual orientation as a consequence of which the body with flesh and bones feels itself caged and a sense of fear gradually converts itself into a skeleton sans spirit.”

                                         It must be submitted here that in para 107, it is revealed that, “The question of freedom of choosing a partner is reflective from a catena of recent judgments of this Court such as Shafin Jahan (supra) wherein the Court held that a person who has come of age and has the capability to think on his/her life partner. It is apposite to reproduce some of the observations made by the Court which are to the following effect:-

       “It is obligatory to state here that expression of  choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.”

                                    Going forward, it is then revealed in para 108 that, “Recently, in Shakti Vahini (supra), the Court has ruled that the right to choose a life partner is a facet of individual liberty and the Court, for the protection of this right, issued preventive, remedial and punitive measures to curb the menace of honour killings. The Court observed:-

           “When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large.”

After this comes para 109 which states that, “An argument is sometimes advanced that what is permissible between two adults engaged in acceptable sexual activity is different in the case of two individuals of the same sex, be it homosexuals or lesbians, and the ground of difference is supported by social standardization. Such an argument ignores the individual orientation, which is naturally natural, and disrobes the individual of his/her identity and the inherent dignity and choice attached to his/her being.”

                                       Simply put, para 110 then goes on to state that, “The principle of transformative constitutionalism also places upon the judicial arm of the State a duty to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the avowed object. The idea is to steer the country and its institutions in a democratic egalitarian direction, where there is increased protection of fundamental rights and other freedoms. It is in this way that transformative constitutionalism attains the status of an ideal model imbibing the philosophy and morals of constitutionalism and fostering greater respect for human rights. It ought to be remembered that the Constitution is not a mere parchment; it derives its strength from the ideals and values enshrined in it. However, it is only when we adhere to constitutionalism as the supreme creed and faith and develop a constitutional culture to protect the fundamental rights of an individual that we can preserve and strengthen the values of our compassionate Constitution.”  

     Constitutional Morality and Section 377 IPC

                                             It would deem appropriate to now discuss some most relevant paras related with constitutional morality. In paras 112 and 114, it is explained as to what Dr BR Ambedkar meant by constitutional morality. Para 116 says that, “It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.” Para 117 then says that, “Any asymmetrical attitude in the society, so long as it is within the legal and constitutional framework, must at least be provided an environment in which it could be sustained, if not fostered. It is only when such an approach is adopted that the freedom of expression including that of choice would be allowed to prosper and flourish and if that is achieved, freedom and liberty, which is the quintessence of constitutional morality, will be allowed to survive.”

                                         Going a step ahead, para 119 then stipulates that, “The duty of the constitutional courts is to adjudge the validity of law on well-established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.”

                                  Of course, para 120 then goes further saying “We may hasten to add here that in the context of the issue at hand, when a penal provision is challenged as being violative of the fundamental rights of a section of the society, notwithstanding the fact whether the said section of the society is a minority or a majority, the magna cum laude and creditable principle of constitutional morality, in a constitutional democracy like ours where the rule of law prevails, must not be allowed to be trampled by obscure notions of social morality which have no legal tenability. The concept of constitutional morality would serve as an aid for the Court to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be. The idea of number, in this context, is meaningless; like zero on the left side of any number.”

                                            Now coming to para 121, it says “In this regard, we have to telescopically analyse social morality vis-à-vis constitutional morality. It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality.” The Apex Court in para 122 then minces no words in making it absolutely clear that, “In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher.” Para 124 then spells out that, “While testing the constitutional validity of impugned provision of law, if a constitutional court is of the view that the impugned provision falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional for the pure and simple reason that the constitutional courts exist to uphold the Constitution.”

             Perspective of human dignity

                                   It is time now to dwell on the perspective of human dignity. To start with, para 125 states that, “While discussing about the role of human dignity in gay rights adjudication and legislation, Michele Finck [ The role of human dignity in gay rights adjudication and legislation: A comparative perspective, Michele Finck, International Journal of Constitutional Law, Volume 14, Jan 2016, page no. 26 to 53] observes:-

         “As a concept devoid of a precise legal meaning, yet widely appealing at an intuitive level, dignity can be easily manipulated and transposed into a number of legal contexts. With regard to the rights of lesbian and gay individuals, dignity captures what Nussbaum described as the transition from “disgust” to “humanity”. Once looked at with disgust and considered unworthy of some rights, there is increasing consensus that homosexuals should no longer be deprived of the benefits of citizenship that are available to heterosexuals, such as the ability to contract marriage, on the sole ground of their sexual orientation. Homosexuals are increasingly considered as “full humans” disposing of equal rights and dignity functions as the vocabulary that translates such socio-cultural change into legal change.”

                                  While underscoring the invaluable importance of dignity, para 126 makes it clear that, “The Universal Declaration of Human Rights, 1948 became the Magna Carta of people all over the world. The first Article of the UDHR was uncompromising in its generality of application: All human beings are born free and equal in dignity and rights. Justice Kirby (Human Rights Gay Rights by Michael Kirly, Published in ‘Humane Rights’ in 2016 by Future Leaders) succinctly observed:-

     “This language embraced every individual in our world. It did not apply only to citizens. It did not apply only to ‘white’ people. It did not apply only to good people. Prisoners, murderers and even traitors were to be entitled to the freedoms that were declared. There were no exceptions to the principles of equality.”

                                            It is also rightly emphasized in para 127 that, “The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution. In the international sphere, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. The constitutional courts of our country have solemnly dealt with the task of assuring and preserving the right to dignity of each and every individual whenever the occasion arises, for without the right to live with dignity, all other fundamental rights may not realise their complete meaning.” Para 128 underscores that, “To understand a person’s dignity, one has to appreciate how the dignity of another is to be perceived. Alexis de Tocqueville [56, New York State Bar Journal (No. 3, April 1984), p. 50] tells us:-

          “Whenever I find myself in the presence of another human being, of whatever station, my dominant feeling is not so much to serve him or please him as not to offend his dignity.”

                                 Having said this, now let us see what para 129 says. It makes no bones to underline most unequivocally that, “Every individual has many possessions which assume the position of his/her definitive characteristics. There may not be any obsession with them but he/she may abhor to be denuded of them, for they are sacred to him/her and so inseparably associated that he/she may not conceive of any dissolution. He/she would like others to respect the said attributes with a singular acceptable condition that there is mutual respect. Mutual respect abandons outside interference and is averse to any kind of interdiction. It is based on the precept that the individuality of an individual is recognized, accepted and respected. Such respect for the conception of dignity has become a fundamental right under Article 21 of the Constitution and that ushers in the right of liberty of expression. Dignity and liberty as a twin concept in a society that cares for both, apart from painting a grand picture of humanity, also smoothens the atmosphere by promoting peaceful co-existence and thereby makes the administration of justice easy. In such a society, everyone becomes a part of the social engineering process where rights as inviolable and sacrosanct principles are adhered to; individual choice is not an exception and each one gets his/her space. Though no tower is built, yet the tower of individual rights with peaceful co-existence is visible.”         

                              Dwelling on an important ruling, para 130 then observes that, “In Common Cause (A Regd. Society) (supra), one of us has observed that human dignity is beyond definition and it may, at times, defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism, but what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling.” The next para 131 then dwelling on another landmark ruling observes that, “In Maneka Gandhi v Union of India and another (1978) 1 SCC 248, Krishna Iyer, J. observed that life is a terrestrial opportunity for unfolding personality and when any aspect of Article 21 is viewed in a truncated manner, several other freedoms fade out automatically. It has to be borne in mind that dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.”

                                  Moving on, para 132 then further elaborates on dignity. It says “Dignity is that component of one’s being without which sustenance of his/her being to the fullest or completest is inconceivable. In the theatre of life, without possession of the attribute of identity with dignity, the entity may be allowed entry to the centre stage but would be characterized as a spineless entity or, for that matter, projected as a ruling king without the sceptre. The purpose of saying so is that the identity of every individual attains the quality of an “individual being” only if he/she has the dignity. Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual’s natural and constitutional right is dented. Such a situation urges the conscience of the final constitutional arbiter to demolish the obstruction and remove the impediment so as to allow the full blossoming of the natural and constitutional rights of individuals. This is the essence of dignity and we say, without any inhibition, that it is our constitutional duty to allow the individual to behave and conduct himself/herself as he/she desires and allow him/her to express himself/herself, of course, with the consent of the other. That is the right to choose without fear. It has to be ingrained as a necessary pre-requisite that consent is the real fulcrum of any sexual relationship.”

                             It would be pertinent to mention here that para 133 then postulates that, “In this context, we may travel a little abroad. In Law v Canada (Minister of Employment and Immigration 1999 1 SCR 497) capturing the essence of dignity, the Supreme Court of Canada has made the following observations:-

             “Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society.”

                                        Back home, it is then enunciated clearly in para 134 that, “It is not only the duty of the State and the Judiciary to protect this basic right to dignity, but the collective at large also owes a responsibility to respect one another’s dignity, for showing respect for the dignity of another is a constitutional duty. It is an expression of the component of constitutional fraternity.” Para 135 then states that, “The concept of dignity gains importance in the present scenario, for a challenge has been raised to a provision of law which encroaches upon this essential right of a severely deprived section of our society. An individual’s choice to engage in certain acts within their private sphere has been restricted by criminalizing the same on account of the age old social perception. To harness such an essential decision, which defines the individualism of a person, by tainting it with criminality would violate the individual’s right to dignity by reducing it to mere letters without any spirit.”

                                   Reverting back to international fora, it is then revealed in para 136 that, “The European Court of Justice in P v. S (Judgment of 30 April 1996 P v S and of 30 April 1996 P v S and Cornwall County Council Case C-13/94, paras 21-22) in the context of rights of individuals who intend to or have undergone sex reassignment has observed that where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.”

                                    Going ahead, it is then revealed in para 137 that, “In Planned Parenthood of Southeastern Pa. v Casey SOS U.S. 833 (1992), the United States Supreme Court had opined that such matters which involve the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” The most important part of para 138 then states that, “Be it clarified that expression of choice, apart from being a facet of dignity, is also an essential component of liberty. Liberty as a concept has to be given its due place in the realm of dignity, for both are connected with the life and living of a persona.”

                         Sexual orientation

                                  To put things in perspective, para 140 states that, “Presently, we shall focus on the aspect of sexual orientation. Every human being has certain basic biological characteristics and acquires or develops some facets under certain circumstances. The first can generally be termed as inherent orientation that is natural to his/her being. The second can be described as a demonstration of his/her choice which gradually becomes an inseparable quality of his/her being, for the individual also leans on a different expression because of the inclination to derive satisfaction. The third one has the proclivity which he/she maintains and does not express any other inclination. The first one is homosexuality, the second, bisexuality and third, heterosexuality. The third one is regarded as natural and the first one, by the same standard, is treated to be unnatural. When the second category exercises his/her choice of homosexuality and involves in such an act, the same is also not accepted. In sum, the ‘act’ is treated either in accord with nature or against the order of nature in terms of societal perception.”

                               It would be imperative to mention here that para 141 then lays down that, “The Yogyakarta Principles define the expression “sexual orientation” thus:-

         “Sexual Orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.”

Para 142 then states that, “In its study, the American Psychological Association has attempted to define “sexual orientation” in the following manner:-

        “Sexual orientation refers to an enduring pattern of emotional, romantic and/or sexual attractions to men, women or both sexes. Sexual orientation also refers to a person’s sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions. Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex.” (American Psychological Association, “Answers to Your Questions For a Better Understanding of Sexual Orientation & Homosexuality”, 2008)

                                           In a nutshell, para 143 then states that, “From the aforesaid, it has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity. That apart, on occasions, due to a sense of mutuality of release of passion, two adults may agree to express themselves in a different sexual behaviour which may include both the genders. To this, one can attribute a bisexual orientation which does not follow the rigidity but allows room for flexibility.”

                                             As things stand, the Apex Court in para 144 then cites UNHCR guidelines which postulates that, “The society cannot remain unmindful to the theory which several researches, conducted both in the field of biological and psychological science, have proven and reaffirmed time and again. To compel a person having a certain sexual orientation to proselytize to another is like asking a body part to perform a function it was never designed to perform in the first place. It is pure science, a certain manner in which the brain and genitals of an individual function and react. Whether one’s sexual orientation is determined by genetic, hormonal, developmental, social and/or cultural influences (or a combination thereof), most people experience little or no sense of choice about their sexual orientation. [UNHCR GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees]

                               More importantly, para 145 then further vindicates this by saying that, “The statement of the American Psychological Association on homosexuality which was released in July 1994 reiterates this position in the following observations:-

       “The research on homosexuality is very clear. Homosexuality is neither mental illness nor moral depravity. It is simply the way a minority of our population expresses human love and sexuality. Study after study documents the mental health of gay men and lesbians. Studies of judgment, stability, reliability, and social and vocational adaptiveness all show that gay men and lesbians function every bit as well as heterosexuals. Nor is homosexuality a matter of individual choice. Research suggests that the homosexual orientation is in place very early in the life cycle, possibly even before birth. It is found in about ten percent of the population, a figure which is surprisingly constant across cultures, irrespective of the different moral values and standards of a particular culture. Contrary to what some imply, the incidence of homosexuality in a population does not appear to change with new moral codes or social mores. Research findings suggest that efforts to repair homosexuals are nothing more than social prejudice garbed in psychological accouterments.”

                                       (Emphasis is ours)

                                   Continuing in the same vein, para 146 then adds that, “In the said context, the observations made by Leonard Sax to the following effect are relevant and are reproduced below:-

        “Biologically, the difference between a gay man and a straight man is something like the difference between a left-handed person and a right-handed person. Being left-handed isn’t just a phase. A left-handed person won’t someday magically turn into a right-handed person….. Some children are destined at birth to be left-handed, and some boys are destined at birth to grow up to be gay.”

                        It cannot be lost on us that in para 147, it is then noted that, “The Supreme Court of Canada in the case of James Egan and John Norris Nesbit v Her Majesty The Queen in Right of Canada and another [1995] 2 SCR 513, while holding that sexual orientation is one of the grounds for claiming the benefit under Section 15(1) as it is analogous to the grounds already set out in the list in Section 15(1) and the said list not being finite and exhaustive can be extended to LGBTs on account of the historical, social, political and economic disadvantage suffered by LGBTs, has observed:-

       “Sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds.”

                 Privacy and its concomitant aspects

                               Truth be told, para 149 then lays down that, “While testing the constitutional validity of Section 377 IPC, due regard must be given to the elevated right to privacy as has been recently proclaimed in Puttaswamy (supra). We shall not delve in detail upon the concept of the right to privacy as the same has been delineated at length in Puttaswamy (supra). In the case at hand, our focus is limited to dealing with the right to privacy vis-à-vis Section 377 IPC and other facets such as right to choice as part of the freedom of expression and sexual orientation. That apart, within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual’s identity is innate to him/her. It is an inalienable part of his/her identity. The said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person’s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society. Non-acceptance of the same would tantamount to denial of human right to people and one cannot be oblivious to the saying of Nelson Mandela – “to deny people their human rights is to challenge their very humanity.”  

                                        Now let us discuss some points which are internationally acclaimed and appreciated. To start with, para 150 states that, “Article 12 of the Universal Declaration of Human Rights, (1948) makes a reference to privacy by stating:-

          “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Para 151 then points out that, “Similarly, Article 17 of the International Covenant of Civil and Political Rights, to which India is a party, talks about privacy thus:-

       “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation.”

                                  On similar lines, para 152 then reveals that, “The European Convention on Human Rights also seeks to protect the right to privacy by stating:-

        “1. Everyone has the right to respect for his private and family life, his home and his correspondence.

          2. There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”  

Now comes para 153 which states that, “In the case of Dudgeon v United Kingdom (1981) 4 EHRR 149, privacy has been defined as under:-

      Perhaps the best and most succinct legal definition of privacy is that given by Warren and Brandeis – it is “the right to be left alone”.”

                                     Back home, para 154 citing a landmark case decided by Apex Court states that, “In R. Rajagopal v State of Tamil Nadu and others (1994) 6 SCC 632, while discussing the concept of right to privacy, it has been observed that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21 and it is a “right to be let alone”, for a citizen has a right to safeguard the privacy of his/her own, his/her family, marriage, procreation, motherhood, child-bearing and education, among other matters.”

                                       In essence, para 155 then points out clearly, cogently and convincingly that, “The above authorities capture the essence of the right to privacy. There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”

                           Due to paucity of space, it is not possible to dwell on each and every aspect of this landmark judgment. For the sake of brevity, therefore, it is time now to come to the crux of the matter! CJI Dipak Misra and Justice AM Khanwilkar in their concluding part of judgment observed in para 253 that, “In view of the aforesaid analysis, we record our conclusions in seriatim:-

(i)  The eminence of identity which has been luculently stated in the NALSA case very aptly connects human rights and the constitutional guarantee of right to life with liberty and dignity. With the same spirit, we must recognize that the concept of identity which has a constitutional tenability cannot be pigeon-holed singularly to one’s orientation as it may keep the individual at bay. At the core of the concept of identity lies self-determination, realization of one’s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, “constitutionally permissible”.

(ii) In Suresh Koushal (supra), this Court overturned the decision of the Delhi High Court in Naz Foundation (supra) thereby upholding the constitutionality of Section 377 IPC and stating a ground that the LGBT community comprised only a minuscule fraction of the total population and that the mere fact that the said Section was being misused is not a reflection of the vires of the Section. Such a view is constitutionally impermissible.

(iii)  Our Constitution is a living and organic document capable of expansion with the changing needs and demands of the society. The Courts must commemorate that it is the Constitution and its golden principles to which they bear their foremost allegiance and they must robe themselves with the armoury of progressive and pragmatic interpretation to combat the evils of inequality and injustice that try to creep into the society. The role of the Courts gains more importance when the rights which are affected belong to a class of persons or a minority group who have been deprived of even their basic rights since time immemorial.  

(iv)  The primary objective of having a constitutional democracy is to transform the society progressively and inclusively. Our Constitution has been perceived to be transformative in the sense that the interpretation of its provisions should not be limited to the mere literal meaning of its words; instead they ought to be given a meaningful construction which is reflective of their intent and purpose in consonance with the changing times. Transformative constitutionalism not only includes within its wide periphery the recognition of the rights and dignity of individuals but also propagates the fostering and development of an atmosphere wherein every individual is bestowed with the adequate opportunities to develop socially, economically and politically. Discrimination of any kind strikes at the very core of any democratic society. When guided by transformative constitutionalism, the society is dissuaded from indulging in any form of discrimination so that the nation is guided towards a resplendent future.

(v)  Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.  

(vi)  The right to live with dignity has been recognized as a human right on the international front and by number of precedents of this Court and, therefore, the constitutional courts must strive to protect the dignity of every individual, for without the right to dignity, every other right would be rendered meaningless. Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice. The Constitution has ladened the judiciary with the very important duty to protect and ensure the right of every individual including the right to express and choose without any impediments so as to enable an individual to fully realize his/her fundamental right to live with dignity.

(vii)  Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression.

(viii)   After the privacy judgment in Puttaswamy (supra), the right to privacy has been raised to the pedestal of a fundamental right. The reasoning in Suresh Koushal (supra), that only a minuscule fraction of the total population comprises of LGBT community and that the existence of Section 377 abridges the fundamental rights of a very minuscule percentage of the total populace, is found to be a discordant note. The said reasoning in Suresh Koushal (supra), in our opinion, is fallacious, for the framers of our Constitution could have never intended that the fundamental rights shall be extended for the benefit of the majority only and that the Courts ought to interfere only when the fundamental rights of a large percentage of the total populace is affected. In fact, the said view would be completely against the constitutional ethos, for the language employed in Part III of the Constitution as well as the intention of the framers of our Constitution mandates that the Courts must step in when ever there is violation of the fundamental rights, even if the right/s of a single individual is/are in peril.  

(ix)  There is a manifest ascendance of rights under the Constitution which paves the way for the doctrine of progressive realization of rights as such rights evolve with the evolution of the society. This doctrine, as a natural corollary, gives birth to the doctrine of non-retrogression, as per which there must not be atavism of constitutional rights. In the light of the same, if we were to accept the view in Suresh Koushal (supra), it would tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights.  

(x)   Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person’s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual.

(xi)    A cursory reading of both Sections 375 IPC and 377 IPC reveals that although the former Section gives due recognition to the absence of “willful and informed consent” for an act to be termed as rape, per contra, Section 377 does not contain any such qualification embodying in itself the absence of “willful and informed consent” to criminalize carnal intercourse which consequently results in criminalizing even voluntary carnal intercourse between homosexuals, heterosexuals, bisexuals and transgenders. Section 375 IPC, after the coming into force of the Criminal Law (Amendment) Act, 2013, has not used the words “subject to any other provision of the IPC”. This indicates that Section 375 IPC is not subject to Section 377 IPC.

(xii)  The expression “against the order of nature” has neither been defined in Section 377 IPC nor in any other provision of the IPC. The connotation given to the expression by various judicial pronouncements includes all sexual acts which are not intended for the purpose of procreation. Therefore, if coitus is not performed for procreation only, it does not per se make it “against the order of nature”.

(xiii) Section 377 IPC, in its present form, being violative of the right to dignity and the right to privacy, has to be tested, both, on the pedestal of Articles 14 and 19 of the Constitution as per the law laid down in Maneka Gandhi (supra) and other latest authorities.

(xiv) An examination of Section 377 IPC on the anvil of Article 14 of the Constitution reveals that the classification adopted under the said Section has no reasonable nexus with its object as other penal provisions such as Section 375 IPC and the POCSO Act already penalize non-consensual carnal intercourse. Per contra, Section 377 IPC in its present form has resulted in an unwanted collateral effect whereby even “consensual sexual acts”, which are neither harmful to children nor women, by the LGBTs have been woefully targeted thereby resulting in discrimination and unequal treatment to the LGBT community and is, thus violative of Article 14 of the Constitution.

(xv) Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination.

(xvi) An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

(xvii) Ergo, Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.

(xviii) The decision in Suresh Koushal (supra), not being in consonance with what we have started hereinabove, is overruled.

                                As it turned out, Justice RF Nariman in para 1 of his judgment begins by saying that, “The love that dare not speak its name” is how the love that exists between same-sex couples was described by Lord Alfred Douglas, the lover of Oscar Wilde, in his poem Two Loves published in 1894 in Victorian England. In para 2, Justice Nariman clarifies that, “The word “homosexual” is not derived from “homo” meaning man, but from “homo” meaning same. The word “lesbian” is derived from the name of the Greek island of Lesbos, where it was rumored that female same-sex couples proliferated. What we have before us is a relook at the constitutional validity of Section 377 of the Indian Penal Code which was enacted in the year 1860 (over 150 years ago) in so far as it criminalises consensual sex between adult same-sex couples.”

                                 In para 17, Justice Nariman rightly points out that it is interesting to note that Lord Macaulay’s Draft was substantially different from what was enacted as Section 377 and also spelled out the original Section 361 and 362 meant to punish unnatural lust. How many of us are aware of this?

                                    Simply put, para 18 of his judgment then mentions that, “What is remarkable for the time in which he lived is the fact that Lord Macaulay would punish touching another person for the purpose of gratifying “unnatural lust” without their “free and intelligent consent” with a term of imprisonment extendable to life (but not less than seven years) while the penalty for the same offence, when consensual, would be imprisonment for a maximum term of fourteen years (but not less than two years). Even in this most prudish of all periods of English history, Lord Macaulay recognized a lesser sentence for the crime of “unnatural lust”, if performed with consent.” Para 19 then reveals that, “At what stage of the proceedings before the various persons and committees after 1837, Section 377 finally took shape is not clear. What is clear is that it is the Committee of Sir Barnes Peacock which finally sent the draft equivalent of Section 377 for enactment.”

                              Now coming to para 20, it says that, “The Indian Penal Code, given its long life of over 150 years, has had surprisingly few amendments made to it. The 42nd Law Commission Report, early in this country’s history, did not recommend the amendment or deletion of Section 377. But B.P. Jeevan Reddy, J’s Law Commission Report of the year 2000 (the 172nd Report) recommended its deletion consequent to changes made in the preceding sections, which made it clear that anal sex between consenting adults, whether same-sex or otherwise, would not be penalized.”

                                It would be imperative to mention here that in para 21, Justice Nariman points out that the first enactment prohibiting same-sex intercourse was passed in the year 1533 in the reign of Henry VII and death penalty was prescribed even for consenting adults who indulged in the ‘abomination’. It is also mentioned in same para that the trial of persons such as Oscar Wilde is what led to law reform in the U.K. albeit 60 years later.

                                 It is also worth mentioning that in para 28, Justice Nariman points out that, “Changes came slowly. It was only in 1967 that the Wolfenden Committee Report was acted upon by the British Parliament by enacting the Sexual Offences Act, 1967, which abolished penal offences involving consenting same-sex adults”. In para 29, it is pointed that, “In 2017, the United Kingdom passed the Policing and Crimes Act which served as an amnesty law to pardon persons who were cautioned or convicted under legislations that outlawed homosexual acts.”           

                          It cannot be lost on us that in para 92, Justice Nariman observes that, “The fact that the legislature has chosen not to amend the law, despite the 172nd Law Commission Report specifically recommending deletion of Section 377, may indicate that Parliament has not thought it proper to delete the aforesaid provision, is one more reason for not invalidating Section 377, according to Suresh Kumar Koushal (supra). This is a little difficult to appreciate when the Union of India admittedly did not challenge the Delhi High Court judgment striking down the provision in part. Secondly, the fact that Parliament may or may not have chosen to follow a Law Commission Report does not guide the Court’s understanding of its character, scope, ambit and import as has been stated in Suresh Kumar Koushal (supra). It is a neutral fact which need not be taken into account at all. All that the Court has to see is whether constitutional provisions have been transgressed and if so, as a natural corollary, the death knell of the challenged provision must follow.”

                      To say the least, Justice Nariman very rightly points in para 94 of his judgment that, “After 2013, when Section 375 was amended so as to include anal and certain other kinds of sexual intercourse between a man and a woman, which would not be criminalized as rape if it was between consenting adults, it is clear that if Section 377 continues to penalize such sexual intercourse, an anomalous position would result. A man indulging in such sexual intercourse would not be liable to be prosecuted for rape but would be liable to be prosecuted under Section 377. Further, a woman who could, at no point of time, have been prosecuted for rape would, despite her consent, be prosecuted for indulging in anal or such other sexual intercourse with a man in private under Section 377. This would render Section 377, as applied to such consenting adults, as manifestly arbitrary as it would be wholly excessive and disproportionate to prosecute such persons under Section 377 when the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution. If, by having regard to what has been said above, Section 377 has to be read down as not applying to anal and such other sex by a male-female couple, then the Section will continue to apply only to homosexual sex. If this be the case, the Section will offend Article 14 as it will discriminate between heterosexual and homosexual adults which is a distinction which has no rational relation to the object sought to be achieved by the Section – namely, the criminalization of all carnal sex between homosexual and/or heterosexual adults as being against the order of nature. Viewed either way, the Section falls foul of Article 14.”

                                  Without mincing any words, Justice RF Nariman in para 95 further held that, “The fact that only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there. When it is found that privacy interests come in and the State has no compelling reason to continue an existing law which penalizes same-sex couples who cause no harm to others, on an application of the recent judgments delivered by this Court after Suresh Kumar Koushal (supra), it is clear that Articles 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision.”

                             To put it succinctly, para 96 then sums up saying that, “For all the reasons therefore, we are of the view that, Suresh Kumar Koushal (supra) needs to be, and is hereby, overruled.” Para 97 further states that, “We may conclude by stating that persons who are homosexual have a fundamental right to live with dignity, which, in the larger framework of the Preamble of India, will assure the cardinal constitutional value of fraternity that has been discussed in some of our judgments (See (1) Nandini Sundar v State of Chhattisgarh, (2011) 7 SCC 547 at paragraphs 16, 25 and 52; and (2) Subramaniam Swamy v Union of India (2016) 7 SCC 221 at paragraphs 153 to 156). We further declare that such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further declare that Section 377 in so far as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional.”   

                               Finally, we see Justice RF Nariman winding up his judgment in para 98 directing that, “We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programs to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of such persons in the light of the observations in this judgment.” 

                           Now it is time to dwell on what Justice Dr Dhananjaya Y Chandrachud says in his judgment. First and foremost, he begins by quoting Justice Leila Seth from an editorial in ‘The Times of India’ dated 26 January 2014 titled “A mother and a judge speaks out on Section 377”: “What makes life meaningless is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane. To acquiesce in such criminalization or worse, to recriminalize it is to display the very opposite of compassion. To show exaggerated deference to a majoritarian Parliament when the matter is one of fundamental rights is to display judicial pusillanimity, for there is no doubt that in the constitutional scheme, it is the judiciary that is the ultimate interpreter.”

                         As expected, Justice Chandrachud in para 156 held that, “We hold and declare that:

To begin with, in a latest and significant judgment with far reaching consequences, the Bench of Apex Court comprising of Justice L Nageswara Rao and Justice Mohan M Shantanagoudar in State of Orissa v Mahimananda Mishra in Criminal Appeal No. 1175 of 2018 (Arising from SLP(Criminal) No. 5440/2017) With Criminal Appeal No. 1176 of 2018 (Arising from SLP (Criminal) No. 6006/2017 delivered on September 18, 2018  said clearly and convincingly that the court must not go deep into merits of the matter while considering an application for bail and all that needs to be established from the record is the existence of a prima facie case against the accused. It held that, “We are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the accused.” The Apex Court in this landmark case has cancelled the bail granted by the Orissa High Court to an ‘influential’ businessman accused in a murder case, taking into account his past attempt to evade the process of law, and also implications of the clout enjoyed by him in the community!

                                        To be sure, para 2 of this landmark judgment reveals that, “The two instant appeals have been preferred by the State of Orissa and the de-facto informant in FIR No. 180/2016, registered at Paradeep Police Station in Orissa State against the order dated 16.05.2017 of the High Court of Orissa at Cuttack, by which an application for bail filed by the respondent herein in connection with the aforementioned first information has been allowed.”

                                     It would be pertinent to mention here that para 3 while dwelling on the case of the prosecution mentions specifically that, “The case of the prosecution in brief, as seen from the first information report and the other connected material, is that on 26.10.2016 at about 09:00 a.m. while the deceased Mahendra Swain was heading to his office in his vehicle accompanied by the driver and his security guard, two unknown assailants hurled bombs on the vehicle, and when the inmates of the vehicle tried to escape, they opened indiscriminate firing on the deceased, leading to his death. According to the first information, the murder was committed at the behest of certain people including the respondent herein namely Mahimananda Mishra. The incident was mainly on account of business rivalry between the company of the deceased and the company of the respondent. The deceased was the Branch Manager of Seaways Shipping and Logistics Limited, Paradeep Branch. The respondent-accused is having a company, by name, Orissa Stevedores Limited. It has been alleged that the respondent had given death threats to the deceased directly and through the brother of the deceased.”

                             Going forward, para 4 discloses that, “During the course of investigation, the police found that the respondent went away to Thailand travelling via Chennai, Delhi and Nepal, before he could be arrested. Only after a Look Out Circular was issued, he was traced to Thailand and was deported therefrom to India, after which he was arrested.” It is further disclosed in para 5 that, “During the course of investigation, the police have recovered certain weapons as well as the motorcycle used for commission of the murder. According to the State, the investigation records so far, prima facie, reveal that the respondent had paid certain amount of money as advance amount for commission of the murder. The State also relies upon a letter written by the deceased to the Inspector, Paradeep Police Station, stating that he fears for his life and the life of his family, in as much as the respondent may make an attempt to take their life. According to the State, the said letter may be treated as a dying declaration of the deceased.” Para 6 states that, “The police have filed a charge sheet against the respondent and others. However, four accused are absconding. Further investigation is being proceeded with the permission of the Court.”

                            Needless to say, para 7 then states the submissions made by the learned advocates appearing from both sides. It says that, “Learned Advocates appearing on behalf of the State as well as the de-facto complainant, while taking us through the material on record, submit that the respondent is the kingpin of the conspiracy to murder the deceased and the murder has taken place as per his directions and plan. The preliminary chargesheet was filed for the offences punishable under Sections 302 and 120B of the Indian Penal Code, read with Sections 25(1)(B) and 27 of the Arms Act, as also under Sections 3 and 4 of the Explosive Substances Act. They further brought to the notice of  the Court that the respondent, being a powerful and rich person, may go to any extent to influence the witnesses by intimidating them. The very fact that he discreetly went outside India to avoid arrest would, prima facie, reveal that he is a person who can take the law into his hands. He may even abscond in the future, which may delay the process of justice. According to them, the witnesses are already frightened and consequently may not go before the Court to depose against the accused, in which event justice may suffer.

           Per contra, Shri Ranjit Kumar, learned Senior Advocate appearing on behalf of the accused argued in support of the judgment of the High Court. He contended that though the respondent was released on bail in May 2018, absolutely no allegations are forthcoming by the police that the respondent has since tried to tamper with the evidence by intimidating the witnesses. There is also no allegation of abscondence against the respondent. Merely on apprehension of the police, without any prima facie proof, the liberty of the respondent cannot be curtailed. He further submitted that any additional condition may be imposed on the respondent by this Court.”

                                Be it noted, para 8 then points out that, “It is brought to the notice of the Court by the learned Advocate for the State that though the impugned judgment of the High Court of Orissa granting the order of bail in favour of the respondent was passed as far back as 16.05.2017, the respondent was actually released from custody with effect from May 2018, in as much as he was in custody in two other cases till then.”   

                                Dwelling on why High Court proceeded to grant bail to the respondent, para 9 then goes on to say that, “The High Court proceeded to grant bail to the respondent on the ground that there is no prima facie material against the respondent to establish his involvement in the conspiracy to murder the deceased, that the undated letter of the deceased addressed to the police showing apprehension to his life cannot be treated as a dying declaration: the material on record does not indicate any motive on the part of the respondent to conspire towards the commission of murder in question, and that the confessions of the co-accused cannot be made used of against the respondent at this stage, in as much as they are admissible only to the extent that they lead to recoveries under Section 27 of the Indian Evidence Act.”

                                 Truly speaking, para 10 then very rightly argues that, “Since the investigation is yet to complete and trial is yet to begin, it would not be proper for us to dwell upon the subject matter in detail at this stage, lest it may prejudice the case of either of the parties during trial. However, prima facie, it is brought on record by the State that there was severe animosity between the deceased and the respondent, as is evidenced by the fact that at one point an intervention by the district administration was necessitated to keep the peace. The statement of the family members of the deceased discloses that the respondent had given death threats to the deceased. A letter of the deceased was seized from the house of the deceased during the course of investigation which discloses that the deceased was under the apprehension of his death by the respondent due to business rivalry. The respondent fled to Thailand to avoid arrest and was arrested only on deportation pursuant to the issuance of a Look Out Circular, which probabilises the apprehension of the police regarding future attempts of the accused to escape. A recovery of weapon has been made pursuant to the statement made by the co-accused. The respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges under Section 307, IPC and three under the Explosive Substances Act. However, during the course of arguments, it was brought to the notice of the Court that in one matter, the respondent has been acquitted.”

                               Having said this, it must be underscored here that the respondent has been acquitted in just one case as revealed in para 10 but still four serious criminal cases still remain pending against him. How can this be overlooked? Not stopping here, it is further revealed in para 10 that, “Since the respondent is a powerful and influential person in his locality, the investigating officer apprehends that he may influence the witnesses by intimidating them and if the respondent continues to remain at large, his presence may influence the trial by creating fear in the minds of the witnesses.” This all the more necessitates the cancellation of bail granted to the respondent by the Orissa High Court.    

                                      Simply put, para 11 then goes on to say that, “It is common knowledge that generally direct evidence may not be available to prove conspiracy, in as much as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, the Court, while evaluating the material, may rely upon other material which suggests conspiracy. Such material will be on record during the course of trial. However, at this stage, prima facie, the Court needs to take into consideration the overall material while considering the prayer for bail.”     

                                     To put things in perspective, para 12 then lays down what all must be looked into while granting or denying bail and it also lays down when the order of the High Court granting or rejecting bail may be cancelled by the Apex Court. It states that, “Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the accused, it is open for this Court to set aside the order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the judgment of this Court in the case of this Court in the case of Neeru Yadav vs. State of Uttar Pradesh, (2014) 16 SCC 508 and Prasanta Kumar Sarkar vs Ashis Chatterjee, (2010) 14 SCC 496. It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court must not go deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the accused. (See the judgment of this Court in the case of Anil Kumar Yadav vs State (NCT) of Delhi, (2018) 12 SCC 129.”  

                                      Taking a dig at the way in which the Orissa High Court handled this case, the Apex Court in para 13 then minces no words in stating it unambiguously that, “Keeping in mind the aforementioned principles, we are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the respondent.” Also, taking a dig at  the High Court for not taking into account his past record and the enormous clout which he wields in society, it is very rightly stated in para 14 that, “Since the respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility that there was no possibility of the respondent’s absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community.”     

                              As it turned out, in the final and last important para 15 of this landmark judgment, it is clearly held that, “Having regard to the totality of the facts and circumstances of the case and for the reasons mentioned supra, the impugned judgment of the High Court granting an order of bail in favour of the respondent herein is liable to be set aside. Accordingly, the same is hereby set aside. The respondent Mahimananda Mishra, s/o Late Rabindranath Mishra, R/o Odia Bazar, P.S. Dargha Bazar, District Cuttack (Orissa), be taken into custody forthwith.”

                                     All said and done, this judgment by the top court is really a commendable judgment. It is worth emulating by all the courts in India. All courts must always take into account while granting or denying bail the key factors laid down in this landmark case. The bottom line of this landmark judgment is that court must not go deep into merits of the matter while considering bail applications. This must now always be followed in letter and spirit by all the courts!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 

To begin with, it is most hurting and most shocking to learn that a top eminent former scientist of the Indian Space Research Organisation (ISRO) was harangued, humiliated and harassed not in Pakistan or China or any other foreign country but in his own motherland that is India where he worked tirelessly by traitors who laughed endlessly as India’s space programme suffered hugely and got behind by decades! Not just this, S Nambi Narayanan along with another former ISRO scientist D Sasikumar was arrested on November 30, 1994 and both spent 50 days in jail and were allegedly tortured in jail not by terrorists or dacoits but by police on charges of espionage. This was done at the behest of the State Intelligence Bureau Team in Thiruvananthapuram in Kerala. Neither the PM of India at that time nor the President of India at that time took any interest in this whole sordid saga which  witnessed the worst torture of our top scientists of ISRO for reasons known best to them! This should never have been allowed to happen but it happened in reality what was thought earlier as unfathomable!

                                             Needless to say, there can be no scintilla of doubt that the appellant who was a national top scientist having international reputation was compelled to undergo worst form of torture and false accusations which is a national shame! The Supreme Court, while ordering Rs 50 lakh compensation to former ISRO scientist Nambi Narayanan in this landmark judgment titled S. Nambi Narayanan v Siby Mathews & Others Etc In Civil Appeal Nos. 6637-6638 of 2018 delivered on September 14, 2018 by a  3 Judge Bench of Apex Court comprising of CJI Dipak Misra, Justice AM Khanwilkar and Dr DY Chandrachud minced absolutely no words in observing clearly, categorically and convincingly that, “Reputation of an individual is an insegregable facet of his right to life with dignity, and fundamental right of the scientist under Article 21 has been gravely affected.” The top court also very rightly constituted a committee headed by former Supreme Court Judge Justice DK Jain to inquire into the role of police officers in the diabolical conspiracy against him.  

                                    To be sure, the Bench of Apex Court headed by CJI Dipak Misra who delivered this landmark judgment noted right at the outset in para 1 that, “The appellant, a septuagenarian, a former Scientist of the Indian Space Research Organisation (ISRO), has assailed the judgment and order passed by the Division Bench of the High Court of Kerala whereby it has overturned the decision of the learned single Judge who had lacinated the order of the State Government declining to take appropriate action against the police officers on the grounds of delay and further remitted the matter to the Government. To say the least, the delineation by the Division Bench is too simplistic.” Rightly said! There can be no denying it!

                                          To recapitulate, para 2 goes on to illustrate saying: “The expose of facts very succinctly put is that on 20.1.1994, Crime No. 225/94 was registered at Vanchiyoor Police Station against one Mariam Rasheeda, a Maldivian National, under Section 14 of the Foreigners Act, 1946 and paragraph 7 of the Foreigners Order. The investigation of the case was conducted by one S. Vijayan, the respondent no. 6 herein, who was the then Inspector, Special Branch, Thiruvananthapuram.”

                                         It must be brought out here that para 3 then reveals that, “Mariam Rasheeda was arrested and sent to judicial custody on 21.10.1994. Her custody was obtained by the Police on 03.11.1994 and she was interrogated by Kerala Police and Intelligence Bureau (IB) officials. Allegedly, during interrogation, she, made certain ‘confessions’ which led to the registration of Crime No. 246/1994, Vanchiyoor Police Station on 13.11.1994 under Sections 3 and 4 of the Indian Official Secrets Act, 1923, alleging that certain official secrets and documents of Indian Space Research Organisation (ISRO) had been leaked out by scientists of ISRO.”

                                  It must also be brought out here that para 4 further reveals that, “Another Maldivian National Fousiya Hasan along with Mariam Rasheeda was arrested in Crime No. 246/1994. On 15.11.1994, investigation of both the cases was taken over by the Special Investigation Team (SIT) headed by one Mr. Siby Mathews, respondent no. 1 herein, who was the then DIG Crime of Kerala Police. On 21.11.1994, Sri D. Sarikumaran, a scientist at ISRO, was arrested and on 30.11.1994, S. Nambi Narayanan, the appellant herein, was arrested along with two other persons. Later, on 04.12.1994, consequent to the request of the Government of Kerala and the decision of the Government of India, the investigation was transferred to the Central Bureau of Investigation (CBI), the respondent no. 4 herein.”

                                      More importantly, para 5 vindicates that the allegations of espionage charges against these two ISRO scientists were false and not proved. It is disclosed in para 5 that, “After the investigation, the CBI submitted a report before the Chief Judicial Magistrate (CJM), Ernakulam, under Section 173(2) of Cr.P.C. stating that the evidence collected indicated that the allegations of espionage against the scientists at ISRO, including the appellant herein, were not proved and were found to be false. This report was accepted vide court’s order dated 02.05.1996 and all the accused were discharged.”

                                         To put things in perspective, what the CBI reveals in para 6 is that noner of the information against the ISRO scientists could be substantiated. It says that, “That apart, in the said report, addressed to the Chief Secretary, Government of Kerala, the CBI, the respondent no. 4 herein, had categorically mentioned: –

‘Notwithstanding the denial of the accused persons of their complicity, meticulous, sustain and painstaking investigations were launched by the CBI and every bit of information allegedly given by the accused in their earlier statement to Kerala Police/IB about the places of meetings for purposes of espionage activities, the possibility of passing on the drawing/documents of various technologies, receipt of money as a consideration thereof etc., were gone into, but none of the information could be substantiated’.”

                                   Truth be told, para 7 further throws unflattering light on the unbecoming conduct of SIT headed by Siby Mathew while probing this entire case as revealed by CBI in its report. It specifically points out that, “The CBI in its report, as regards the role of the respondent no. 1 herein, went on to state: –

1.           Sh. Siby Mathew was heading the Special Investigation Team and was, therefore, fully responsible for the conduct of investigation in the aforesaid two cases. Investigation conducted by the CBI has revealed that he did not take adequate steps either in regard to the thorough interrogations of the accused persons by Kerala Police or the verification of the so called disclosure made by the accused persons. In fact, he left the entire investigation to IB surrendering his duties. He ordered indiscriminate arrest of the ISRO scientist and others without adequate evidence being on record. It stressed that neither Sh. Siby Mathew and his team recovered any incriminating ISRO documents from the accused persons nor any monies alleged to have been paid to the accused persons by their foreign masters. It was unprofessional on his part to have ordered indiscriminate arrest to top ISRO scientists who played a key role in successful launching of satellite in the space and thereby caused avoidable mental and physical agony to them. It is surprising that he did not take any steps at his own level to conduct investigation on the points suggested by him. Since Sh. Mathew was based at Trivandrum, there was no justification for not having the searches conducted in the officials’ residential premises of the accused Nambi Narayanan was arrested by the Kerala Police on 30.11.1994.

          Vi Shri Siby Mathew and his team miserably failed even in conducting verification of the records of Hotels viz., Hotel Foret Manor, Hotel Pankaj, Hotel Luciya, etc., which were located at Trivandrum to ascertain the veracity of the statement of accused persons….            

               The above facts are being brought to the notice of the competent authority for their kind consideration and for such action as deemed fit.”

                                            [Emphasis added]      

                                      Moving ahead, para 8 states that, “On 27.06.1996, the State Government of Kerala being dissatisfied with the CBI report, issued a notification withdrawing the earlier notification issued to entrust the matter to CBI and decided to conduct re-investigation of the case by the State Police. This notification for re-investigation was challenged by the appellant herein, before the High Court of Kerala, in O.P. No. 14248/1996-U but the notification was upheld by the High Court of Kerala vide order dated 27.11.1996.”

                                    As things stand, we see how in para 9, it is further stated that, “Aggrieved by the aforesaid order of the Kerala High Court, the appellant herein, moved this Court by filing a special leave petition. This Court in K Chandrasekhar v State of Kerala and others (1998) 5 SCC 223 quashed the notification of the State of Kerala for re-investigation holding that the said notification was against good governance and consequently, all accused were freed of charges. The observations of this Court read thus:-

          ‘Even if we were to hold that State Government had the requisite power and authority to issue the impugned notification, still the same would be liable to be quashed on the ground of malafide exercise of power. Eloquent proof thereof is furnished by the following facts and circumstances as appearing on the record’….”

                  [ Emphasis added]

                                        It cannot be lost on us that in para 31, the Apex Court launched a scathing attack on the manner in which the Kerala State Police maliciously initiated the entire prosecution against the appellant. Para 31 says that, “As stated earlier, the entire prosecution initiated by the State police was malicious and it has caused tremendous harassment and immeasurable anguish to the appellant. It is not a case where the accused is kept under custody and, eventually, after trial, he is found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to the Central Bureau of Investigation. After comprehensive enquiry, the closure report was filed. An argument has been advanced by the learned counsel for the State of Kerala as well as by the other respondents that the fault should be found with the CBI but not with the State police, for it had transferred the case to the CBI. The said submission is to be noted only to be rejected. The criminal law was set in motion without any basis. It was initiated, if one is allowed to say, on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. This situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity.”  

                              It would be pertinent to mention here that para 32 then dwells on custodial torture. It stipulates that, “There has been some argument that there has been no complaint with regard to custodial torture. When such an argument is advanced, the concept of torture is viewed from a narrow perspective. What really matters is what has been stated in D.K. Basu v State of W.B. (1997) 1 SCC 416. The Court in the said case, while dealing with the aspect of torture, held: –

         “10. Torture has not been defined in the Constitution or in other penal laws. ‘Torture’ of a human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering. The word torture today has become synonymous with the darker side of human civilisation.

      ‘Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.’

                  – Adriana P Bartow 

                 11. No violation of any one of the human rights has been the subject of so many conventions and declarations as ‘torture’ – all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. Custodial torture is a naked violation of human dignity and degradation which destroys to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast.

                  12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law.”

                                       Not stopping here, para 33 then further goes on to illustrate saying that, “From the aforesaid, it is quite vivid that emphasis has been laid on mental agony when a person is confined within the four walls of a police station or lock up. There may not be infliction of physical pain but definitely there is mental torment. In Joginder Kumar v State of U.P. and others (1994) 4 SCC 260, the Court ruled:-

          “8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?

            9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider….”

           Right of good reputation

                                   Having said this, it is now time to dwell on the right to reputation. In this context, it would be useful to recollect first and foremost what para 34 says. It lays down that, “In Kiran Bedi v Committee of Inquiry and another (1989) 1 SCC 494, this Court reproduced an observation from the decision in D.F. Marion v Davis 217 Ala. 16 (Ala. 1927):-

       “25. …’The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property’.”    

                                         Now coming to para 35, it states that, “Reputation of an individual is an insegregable facet of his right to life with dignity. In a different context, a two Judge Bench of this Court in Vishwanath Agrawal v Sarla Vishwanath Agrawal (2012) 7 SCC 288 has observed:-

                 “55.  … reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity.”

                                In essence, para 36 then goes on to put it succinctly saying that, “From the aforesaid analysis, it can be stated with certitude that the fundamental right of the appellant under Article 21 has been gravely affected. In this context, we may refer with profit how this Court had condemned the excessive use of force by the police. In Delhi Judicial Service Association v State of Gujarat and others (1991) 4 SCC 406, it said:-

     “39. The main objective of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect the citizens’ life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police … [and it] must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated.”

                                To top it all, in para 37 of this landmark judgment, the 3 Judge Bench of Apex Court headed by CJI Dipak Misra clearly and convincingly held that, “If the obtaining factual matrix is adjudged on the aforesaid principles and parameters, there can be no scintilla of doubt that the appellant, a successful scientist having national reputation, has been compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody has made the appellant to suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. That warrants grant of compensation under the public law remedy. We are absolutely conscious that a civil suit has been filed for grant of compensation. That will not debar the constitutional court to grant compensation taking recourse to public law. The Court cannot lose sight of the wrongful imprisonment, malicious prosecution, the humiliation and the defamation faced by the appellant. In Sube Singh v. State of Haryana and others (2006) 3 SCC 178, the three-Judge Bench, after referring to the earlier decisions, has opined:-

      “38. It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of the Code of Criminal Procedure.”                 

                            Finally and most importantly, it would be instructive to narrate what the last two important paras 39 and 40 of this landmark judgment have to say. Para 39 says that, “In the instant case, keeping in view the report of the CBI and the judgment rendered by this Court in K. Chandrasekhar (supra), suitable compensation has to be awarded, without any trace of doubt, to compensate the suffering, anxiety and the treatment by which the quintessence of life and liberty under Article 21 of the Constitution withers away. We think it appropriate to direct the State of Kerala to pay a sum of Rs 50 lakhs towards compensation to the appellant and, accordingly, it is so ordered. The said amount shall be paid within eight weeks by the State. We hasten to clarify that the appellant, if so advised, may proceed with the civil suit wherein he has claimed more compensation. We have not expressed any opinion on the merits of the suit.”

                                 No doubt, the last and one of the most important paras 40 too deserves to be mentioned in detail. It says that, “Mr Giri, learned senior counsel for the appellant and the appellant who also appeared in person on certain occasions have submitted that the grant of compensation is not the solution in a case of the present nature. It is urged by them that the authorities who have been responsible to cause such kind of harrowing effect on the mind of the appellant should face the legal consequences. It is suggested that a Committee should be constituted to take appropriate steps against the erring officials. Though the suggestion has been strenuously opposed, yet we really remain unimpressed by the said repugnation. We think that the obtaining factual scenario calls for constitution of a Committee to find out ways and means to take appropriate steps against the erring officials. For the said purpose, we constitute a Committee which shall be headed by Justice D.K. Jain, a former Judge of this Court. The Central Government and the State Government are directed to nominate one officer each so that apposite action can be taken. The Committee shall meet at Delhi and function from Delhi. However, it has option to hold meetings at appropriate place in the State of Kerala. Justice D.K. Jain shall be the Chairman and the Central Government is directed to bear the costs and provide perquisites as provided to a retired Judge when he heads a committee. The Committee shall be provided with all logistical facilities for the conduct of its business including the secretariat staff by the Central Government.”

                           Conclusion

                               On a concluding note, what all has happened with Nambi Narayanan should not happen again with anyone. Those cops and others who are guilty of wrongly framing baseless charges against him must be punished with the most severe punishment. They must be made to pay heavy costs also as compensation to Nambi Narayanan and D Sasikumar who were both eminent ISRO scientists and yet were falsely implicated and faced worst kind of mental torture and social humiliation for no fault of theirs! Not just this, they must be made to cool their heels in prison for the rest of their lives because not just these 2 ISRO scientists suffered after being wrongly framed but India’s national interests too suffered badly. Arun Ram very rightly points out in The Times Of India dated September 2018 in his editorial titled “No Rocket Science, This” that, “The third conspiracy – the one yet to be proved – may be international, and details of this episode could bring out some very dirty liaisons between some IB officers and foreign intelligence agencies. Pertinent to note is the timing of the spy case. India had just launched its first PSLV, for which Nambi was the project director for two of the four stages of the rocket. He was also heading the cryogenic engine which was to fuel India’s future projects including interplanetary and manned missions. It is well known that India can launch satellites at a fraction of the cost of what the US and the European Space Agency charge. India mastering satellite launches, especially with the cryogenic engine that can power bigger rockets, would mean a lot of money flow into the country that would otherwise have gone West. And someone was clearly not happy with that. They partly won, as the spy case slowed down India’s cryogenic project by at least a decade. In his book ‘Russia in Space: The Failed Frontier’, prolific space writer Brian Harvey details how when Russia was about to hand over cryogenic technology to India, the US clamped sanctions on the two countries. It is also little known history that India had, through a smart circumvention of sanctions, flown crucial parts of the cryogenic engine from Russia in the underbelly of three Ural Airways flights less than a year before the spycase broke out. And the man India entrusted with the operation answers to the name Nambi Narayanan.” It is well known that the ISRO spy case was nothing but a figment of imagination by people having vested interests and this stood vindicated when on May 2, 1996, the Chief Judicial Magistrate of Ernakulam accepted a CBI report that found the case to be a fabricated one! Those guilty no matter how powerful must be brought to book and should not be spared under any circumstances! Why the successive Congress and Left Front governments stoutly refused to proceed against the cops since 1996 when the CBI closed the case leading to Nambi’s discharge must also be investigated impartially and they too must be held accountable!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 

It must be said right at the outset that in a landmark, exemplary and unprecedented decision which must be applauded by all, the Punjab and Haryana High Court in Nishan Singh v State of Punjab CRM No. 35406 of 2013 In CRA-D-781-DB of 2013 and CRM No. 34198 of 2013 IN CRA-D-722-DB of 2013 which was delivered on August 31, 2018 has ordered one Nishan Singh Brar, convicted of abduction and rape of a minor victim girl, and his mother Navjot Kaur to pay Rs 90 lakh towards compensation. This is truly laudable! Why should the rape victim and her parents not be compensated for such a heinous crime like rape which deserves the strictest punishment and zero tolerance because it completely ruins the reputation of victim and her family and leaves permanent scar on the mind of rape victim and her family from which it is very difficult to come out?

                                      It may be recalled here that Nishan Singh has already been convicted by the trial court and sentenced to life imprisonment. The Punjab and Haryana High Court ordered Nishan Singh to pay Rs 50 lakh to the victim whereas, Rs 20 lakh each to victim’s mother and father. The Bench of Punjab and Haryana High Court comprising of Justice AB Chaudhari and Justice Inderjit Singh was hearing an application filed by the rape victim’s father seeking compensation.

                                      Needless to say, by this common order, all the above noted both the applications for compensation are being disposed of. Para 2 of this landmark judgment reveals that, “These two applications arising out of different FIR No. 261 dated 24.09.2012 under Sections 452, 307, 363, 366-A, 376, 325, 323, 482, 420, 465, 467, 468, 471, 120-B, 212, 216 read with Section 149 of Indian Penal Code, 1860 (for short ‘IPC’) and FIR No. 166 dated 25.06.2012, under Sections 363, 366-A, 376, 120-B, 384, 328, 506, read with Section 34 IPC, registered at Police Station City Faridkot, have been field by the victim/complainant – Ashwani Kumar Sachdeva.” It is clarified in para 3 that, “Since the victims are same in both these matters wherein compensation has been claimed, it is necessary to pass common order regarding compensation in both these matters, though, separate applications for compensation have been made in separate matters.

                                  To be sure, para 4 further elaborates saying that, “In all, there are three victims in the present case. They are Ashwani Kumar Sachdeva, wife of the complainant and the prosecutrix ‘S’. This Court is convinced that the highest amount of compensation will have to be paid to the prosecutrix and thereafter, the remaining two victims also will have to be compensated by an order of compensation under Section 357 of Code of Criminal Procedure, 1973. This Court has referred to the facts, evidence as well as other aspects while deciding other connected appeals and in particular main appeal, i.e. CRA-D-781-DB of 2013, by common judgment. For the purposes of deciding these two applications for compensation, it would burden the record of the present order and therefore, reference to some facts etc. from the main judgment in main appeal, i.e. CRA-D-781-DB of 2013 may be made. However, for brevity, some of the facts are stated herein as under: –

                “On 24.09.2012, at about 9:45 A.M., Nishan Singh along with his some companions, barged their entry into the house of the complainant armed with pistol, kirches, kirpans and iron rods and tried to forcibly take away the prosecutrix ‘S’ with them. The complainant, his wife and other daughter Sakshi obstructed them, but they were subject to beatings. They dragged even the complainant in the courtyard and was assaulted with rods resulting into injuries on his left hand, left elbow and backside of neck. Prosecutrix ‘S’ was then forcibly taken away by them, though she was raising the alarm. Despite this, the complainant and his other daughter chased them when one of the companions of Nishan Singh fired from the pistol as a result of which, the complainant retracted. The complainant went ahead and found that they had bundled prosecutrix ‘S’ into Ford Ikon car of brown colour having tainted glass and fled away. Navjot Kaur mother of Nishan Singh and others had actively participated in the kidnapping and abduction of the prosecutrix minor girl.

            The complainant and his wife were admitted to the Hospital. Police recorded the statement of Ashwani Sachdeva, the complainant, on 24.09.2012 so also the supplementary statement. Since he was perplexed and in disturbed condition, he could not give the names and therefore, he stated again that along with Navjot Kaur, her relative Dimpy Samra had visited their house and threatened them to enter into compromise. He also stated that Ghali was armed with pistol and Dhalla and Poppy were having iron rods and it was Ghali who had fired from the pistol and others had caused injuries to them. Seema Arora, the wife of the complainant Ashwani Kumar, also stated on the same line……………….

              The Special Investigation Team, after thorough searches, on 21.10.2012, intercepted Nishan Singh in Goa and recovered victim prosecutrix ‘S’ from his custody. In the rented house that was taken by Nishan Singh in Goa, fake driving licences of Nishan Singh and prosecutrix ‘S’ were seized……………

               On 28.10.2012, prosecutrix ‘S’ expressed desire for medical examination and a medical board examined her and found that she was carrying intra uterine early pregnancy. After obtaining one Jar sample, pursuant to MTP of prosecutrix for DNA test, the same were sent. After making detailed investigation, the investigator prepared a challan and field in the competent Court. Charges were framed against all the accused persons. The prosecution examined as many as 52 witnesses, while the defence examined as many as 25 witnesses. Learned Trial Court, after hearing the evidence, recorded the conviction of all the accused persons as stated above.”

            “Now examining the evidence regarding rape as stated earlier by us, the question of consent is insignificant. Apart from the fact that the prosecutrix, in clear terms, deposed before the Court that despite resistance, the appellant – Nishan Singh had committed rape upon her. No other evidence is required to prove rape when there is a medical evidence on record that the prosecutrix had become pregnant and ultimately, when she was recovered from the custody of Nishan Singh, her MTP was performed and even DNA test was got conducted. The testimony of the prosecutrix on the aspect of the rape must be therefore, accepted as there is voluminous evidence for proof of the offence of rape. Our attention was drawn at the evidence of the prosecutrix to show her conduct namely, that, she was always willing and consenting from the inception till her recovery from Goa. We have also given serious thought to her evidence about her conduct to that effect. We do not want to describe that evidence lest it should occupy innumerable pages. Suffice it to say that the prosecutrix having been kidnapped on the strength of arms from her house with the episode of her family members being injured, the people being scared with firing taking place in the broad day light, and she being in custody of appellant – Nishan Singh throughout, what kind of consent/willingness is being propounded! Can one call this as consent? The minor girl herself was worried about her life. We reject the arguments in toto. That apart, we having held the girl being of the age of 15 years, 5 months, consent would be wholly irrelevant.”     

                                          Having said this, it would now deem appropriate to dwell on what para 5 says. It says that, “The portion quoted by us above throws light on the nature of the beastly actions on the part of the appellant – Nishan Singh and his family members in destroying the personality of minor girl prosecutrix ‘S’ and also subjecting her to pregnancy. The two incidents as stated in the facts above and the grisly acts committed by the appellant – Nishan Singh, his relative Maninderjit Singh alias Dimpy Samra and his mother Navjot Kaur clearly show as to what kind of mental torture/trauma, social stigma etc must have been undergone by the prosecutrix ‘S’ as well as her parents. The pregnancy was required to be terminated by medical termination of pregnancy and this fact became known to one and all in the city of Faridkot and also to the community of the complainant – Ashwani Kumar Sachdeva. Thus, the prosecutrix was completely ravaged because of the repeated beastly acts by the appellant – Nishan Singh, his relative Maninderjit Singh alias Dimpy Samra and his mother Navjot Kaur. We are thus fully convinced that, though, the victims have claimed compensation for prosecutrix and her parents in Para 5 (of the application, i.e. CRM No. 35406 of 2013) to the tune of Rs 20 lakhs, there is duty cast in this Court, in terms of decision of the Supreme Court in the case of Ankush Shivaji Gaikwad versus State of Maharashtra, (2013) 6 SCC 770, to award adequate compensation.”  

                                            Truth be told, in para 6 of this landmark judgment, the Court minced no words in stating it upfront that, “We think, we need not restrict ourselves to the amount of compensation mentioned by the victims in Para 5 (of the application, i.e. CRM No. 35406 of 2013) as it is for us to decide the adequate compensation. We have again recalled and revised the entire evidence which we have discussed in CRA-D-781-DB of 2013. We are aghast to see how a middle-class family of the complainant with two daughters was torn into due to rich rural and urban landholder Nishan Singh’s and his mother’s rowdy and cruel conduct.”  

                                     Finally and most importantly, para 7 which disposes of both the applications with operative order also runs as follows: “In our opinion, in the whole background, the prosecutrix ‘S’ would be entitled to the total compensation amount of Rs 50 lakh. The complainant – Ashwani Kumar Sachdeva and his wife-Seema shall be entitled to compensation in the sum of Rs 20 lakhs each, i.e. total Rs 40 lakhs from the appellant-Nishan Singh and his mother-Navjot Kaur. Thus, the total amount of compensation that is required to be recovered from the properties of the accused-Nishan Singh and his mother-Navjot Kaur themselves that they own and possess plenty of agricultural lands and urban properties. Not only that, the said statement has also been made in Para-4 (of the application, i.e. CRM No. 35406 of 2013). Obviously, the costs of properties in the State of Punjab is on pretty higher side. The appellant-Nishan Singh and his mother-Navjot Kaur own and possess large chunk of lands valued at far more than the amount of compensation that is being ordered to be paid by this Court. It is not difficult at all for both these accused to make good the compensation from the properties owned and possessed by them. We, therefore, think the total amount of compensation arrived at to be payable to the prosecutrix ‘S’, the complainant-Ashawani Kumar Sachdeva and his wife-Seema comes to Rs 90 lakhs. We thus, dispose of both these applications with following operative order: –

                                   ORDER  

(i)                         CRM No. 35406 of 2013 In CRA-D-781-DB of 2013 and CRM No. 34198 of 2013 IN CRA-D-722-DB of 2013 are disposed of;

(ii)                      The appellant-Nishan Singh (in CRA-D-781-DB of 2013) and Navjot Kaur (in CRA-D-722-DB of 2013) shall pay total compensation in the sum of Rs 90 lakhs (i.e. Rs 50 lakhs to the prosecutrix ‘S’ and Rs 20 lakh each to the complainant – Ashwani Kumar Sachdeva and his wife Seema);

(iii)                   The Collector of the District Faridkot is directed to attach the agricultural as well as urban properties of both Nishan Singh and his mother Navjot Kaur, forthwith, and proceed to recover from sale proceeds thereof the amount of compensation, i.e. Rs 90 lakhs as aforesaid and distribute the same as stated in the present order;

(iv)                   The entire procedure of attachment and sale of property of Nishan Singh and Navjot Kaur shall be commenced and completed within 10 weeks from today and the compliance shall be reported after 10 weeks to this Court about the payments having been made as aforesaid.”

       

                                    On a concluding note, it has to be said that it is an excellent and exemplary judgment which will send a very loud and stern message to all rapists and their helpers like mother in this case that, “You have to reap what you sow and you have to cough up a huge amount for committing or abetting a heinous crime like rape which under no circumstances can ever be condoned or compromised”. In this case, an unprecedented, laudable and landmark decision has been taken by the Division Bench of Punjab and Haryana High Court comprising of Justice AB Chaudhari and Justice Inderjit Singh who awarded a huge compensation of Rs 90 lakh to the victim and the complainant – Ashwani Kumar Sachdeva and his wife Seema even though the victim had just demanded Rs 20 lakh only! There can be no two opinions on this indisputable fact that this landmark and laudable judgment must be emulated by all courts and accused and all those helping him should similarly be not allowed to ever escape lightly under any circumstances!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

To start with, in a landmark judgment with far reaching consequences, the Uttarakhand High Court Bench comprising of Justice Rajiv Sharma and Justice Sudhanshu Dhulia in Chhitij Kishore Sharma v Mr Justice Lok Pal Singh in Criminal Contempt Petition No. 18 of 2018 delivered on September 4, 2018 while holding that contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court has dismissed as “not maintainable” the criminal contempt petition moved by an advocate against Justice Lok Pal Singh for allegedly losing his temper and using intemperate language against the petitioner in open court. Justice Sudhanshu Dhulia notes right at the outset of this landmark judgment that, “This petition before us has been filed by a practicing Advocate of this Court, bringing to our notice an alleged “Contempt of Court”, said to be committed by a sitting Judge of this Court, who is the present respondent.” The petition filed by Chhitij Kishore Sharma from Nainital came to be dismissed without going into the facts of the case as it was not accompanied by the statutory consent of the Advocate General.

                       Be it noted, in doing so, the Court answered two questions – first, whether a contempt petition is at all maintainable against a Judge of a High Court, where the allegations are that he has committed a contempt “of his own Court”. The second question was whether a contempt petition can be entertained by this Court under Section 15 of the Contempt of Courts Act, where the Advocate General of the State has not granted his “consent”, on a motion made by a person under sub-section (1)(b) of Section 15 of the Act. The Bench answered both the questions in negative as it held that “contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court” and in para 45 held that, “this petition which is before us cannot be treated as a contempt petition, as in the absence of a consent of the learned Advocate General, it is only in the nature of an “information”.”

                                      To be sure, it was held that from now, such petitions to be placed before Chief Justice. The Bench also directed the Registry in para 45 that “If any other person (i.e., any other person except the Advocate General of the State), moves a petition under Section 15 of the Act or under Article 215 of the Constitution of India, alleging a case of criminal contempt against any person, and if such a petition is not accompanied by the consent of the Advocate General then the Registry shall not list the case as a criminal contempt petition, as at this stage the petition is only in the nature of an “information”.” It further said in para 45 that, “Such matters shall always be captioned as “in Re….. (the name of the alleged contemnor)”, and be placed before the Hon’ble Chief Justice in the chamber. The Chief Justice may either himself or in consultation with other Judges of the Court may take further steps in the case as deem to be necessary.”

                        Truth be told, in para 2 it is revealed that, “The allegations are that on 09.05.2018 and 11.05.2018, while the petitioner was in the Court of the learned Judge, the learned Judge lost his temper and used intemperate language against the petitioner, his client, and even made sarcastic comments against his brother Judges.” In para 3 it is further revealed that, “The petitioner states that the learned Judge commented that “unlike other Judges he is not in a habit of changing orders in his chamber”. The petitioner gives two references of dates where such unsavory innuendos were allegedly used. On 09.05.2018, the petitioner was intimidated and threatened, and warned that he would be sent to jail.”

                             Going forward, in para 4 it is brought out that, “There is also an allegation that the learned Judge passed similar remarks against a Senior Advocate, who was also a former Judge of a High Court. These remarks were made in “Hindi”, but if loosely translated would read “Yes, I know what kind of a lawyer he is, and what kind of a Judge he was”! Furthermore, in para 5 it is brought out that, “There are also allegations that the learned Judge had used strong language against a high government official and threatened to send him to jail.”

                                     As if this was not enough, it is further pointed out in para 6 that, “Lastly there is an allegation that the respondent had dismissed a writ petition on 25.01.2018, in which was arrayed as one of the respondents, a former client of the present respondent. Instead of recusing from the case, the matter was heard and dismissed. The argument of the petitioner is simply that the learned Judge should not have heard the matter but still he did.” Now moving on to para 7, it is pointed out that, “The alleged behaviour of the learned Judge, according to the petitioner, tends to scandalize this Court and at least lowers the authority of the Court, such utterances and behaviour of the learned Judge also amount to an obstruction in the administration of justice, says the petitioner.”

                                 As was being widely anticipated, the Bench of Uttarakhand High Court comprising of Acting Chief Justice Rajiv Sharma and Justice Sudhanshu Dhulia while noting its dismay in this whole sordid saga lamented in para 8 that, “We must record that this whole exercise has not been pleasant for us. It is a very unusual case, to say the least. Still we must give a decision and we do that “with malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right.” [We found the reference of Abraham Lincoln’s speech in the seminal judgment of Justice Sabyaschi Mukherji in the case of P.N. Duda v P Shiv Shanker reported in (1988) 3 SCC 167, and that is to be taken as our source].” The Court also said that Justice CS Karnan’s case is not applicable in the instant petition as the charge against Justice Karnan was not of committing a contempt “of his own Court”.                

                                It is disclosed in para 9 that, “We have not sent any notice to the learned Judge, as before we do that, two questions must be answered. First question is whether a contempt petition is at all maintainable against a Judge of a High Court, where the allegations are that he has committed a contempt “of his own Court”. The second question, which is equally important, is whether a contempt petition can be entertained by this Court under Section 15 of the Contempt of Courts Act, where the learned Advocate General of the State has not granted his “consent”, on a motion made by a person under sub-section (1)(b) of Section 15 of the Act.”    

                                    As it turned out, the Uttarakhand High Court relied on a full Bench of Patna High Court decision in a case titled Shri Harish Chandra Mishra and others v The Hon’ble Mr Justice S Ali Ahmed wherein it was held that a criminal contempt would not lie against a judge of a Court of Record. The relevant para 11 pertaining to it elaborately explains this by disclosing that, “A Full Bench of Patna High Court has held that a criminal contempt would not lie against a Judge of a Court of Record. The reference here is of the majority opinion in Shri Harish Chandra Mishra and others v The Hon’ble Mr. Justice S. Ali Ahmed (AIR 1986 Patna 65 Full Bench). A similar view was taken later by a Division Bench of Rajasthan High Court in the case of Sikandar Khan v Ashok Kumar Mathur reported in 1991(3) SLR 236. This aspect was later settled by the Hon’ble Apex Court in the case of State of Rajasthan v Prakash Chand and others, (1998) 1 SCC 1, where a three-Judges Bench of Apex Court has held that a contempt petition does not lie against a Judge of Court of Record.” Going forward, in para 19, the Court further added that, “In our opinion, the reasoning given by the Full Bench of Patna High Court referred above, gives the correct position of law, and we wholly agree with it.”

                                    Needless to say, in para 20 while underscoring the need to protect Judges who have an onerous task to perform their duty without fear or favour from vexatious charges and malicious litigations, the Bench minced no words in stating clearly and convincingly that, “The duty of a Judge after all is to dispense justice – without fear or favour, affection or ill will, without passion or prejudice. It is not  a part of his duty to please litigants, or keep lawyers in good humour. The principal requirement for all Judges, and particularly for a Judge of Court of Record, is to maintain his independence. Often at times, he has to deal with cases having high stakes, which are fiercely contested by both sides. Lawyers and litigants sometimes can be cantankerous, even unruly. Unpleasant situations and angry exchange of words at the Bar, are not uncommon. A Judge can also be very helpless in situations like this. Irresponsible accusations may be thrown against a Judge by a disgruntled lawyer or litigant. Therefore, for the sake of the independence of judiciary, a Judge has to be protected, from vexatious charges and malicious litigations.”    

                             Now coming to para 21, it brilliantly cites pertinent case from other countries. It states that, “It is for this reason that common law also does not permit prosecution of a Judge of Court of Record for committing a contempt of his own Court. Oswald (Oswald’s contempt of court: Committal, attachment and arrest upon civil process: with an appendix of forms – James Francis Oswald.) refers to a case Anderson Vs Gorrie and others [Court of Appeal] (1895) 1 QB, 668 in order to elaborate this point. We must give a brief summary of the facts of this case.

                          It starts with an action which brought against three Judges of the Supreme Court of Trinidad and Tobago, which was then a British colony. The Court gave its decision in favour of the defendants on grounds that no action can lie against a judge of a Court of Record in respect of act done by him in his judicial capacity. Against this the plaintiff filed an appeal before the Court of Appeal in England, which was dismissed by a Three-Judges Bench, where the leading judgment is of Lord Esher M.R. It is a short order and the relevant portion of this needs to be stated:

              “The defendants were judges of a Supreme Court in a colony, and the first question is whether these matters were matters with which they had jurisdiction to deal. As to the contempt of Court, it cannot be denied that they had jurisdiction to inquire whether a contempt had been committed, and further, it cannot be denied that they had power to hold a person to bail in the cases provided for by the colonial statute which expressly gives that power. These two matters were obviously within the jurisdiction of the Court. No one can doubt that if any judge exercises his jurisdiction from malicious motives he has been guilty of a gross dereliction of duty; but the question that arises is what is to be done in such a case. In this country a judge can be removed from his office on an address by both Houses of Parliament to the Crown. In a colony such an address is not necessary. The governor of the colony represents the sovereign, and over him is the Secretary of State for the Colonies, who represents Her Majesty, and can direct the removal of the judge. But the existence of a remedy would not in either of these cases of itself prevent an action by a private person; so that the question arises whether there can be an action against a judge of a Court of Record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie. The ground alleged from the earliest times as that on which this rule rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice.”

                                              (Emphasis provided)

                    At another place in the order, Lord Esher emphasising the point further states as under:

                   “To my mind there is no doubt that the proposition is true to its fullest extent, that no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office. If a judge goes beyond his jurisdiction a different set of considerations arise. The only difference between judges of the Superior Courts and other judges consists in the extent of their respective jurisdiction.”

                  (Emphasis provided)

                                   Having said this, it must also be revealed here that para 22 makes it clear that, “The underlying principle behind this “immunisation” of Judges, is the ‘independence of judiciary’. This independence, we must add, is absolutely essential in a constitutional democracy. It is for this reason then that the findings given in the majority opinion of Full Bench of Patna High Court (referred earlier), becomes even more relevant, and in our humble opinion these findings are well supported by strong reasoning and common law principles.”

                                  Simply put, while referring to the immunity provided to the Judges in India, para 23 specifically points out that, “The philosophy as referred above also lies at the root of the principle which gives immunity to the Judges in India, under the Judges (Protection) Act, 1985, which is an immunity from any civil or criminal action in the judicial work of a Judge. The Statement of Objects and Reasons for introducing the Bill, when introduced read as under:

                            “Judiciary is one of the main pillars of parliamentary democracy as envisaged by the Constitution. It is essential to provide for all immunities necessary to enable Judges to act fearlessly and impartially in the discharge of their judicial duties. It will be difficult for the Judges to function if their actions in court are made subject to legal proceedings either civil or criminal.”

                                 More importantly, it would be useful to now discuss about the pertinent question of whether a Judge of Court of Record is liable for contempt of his own record or not? In this context, it would be instructive to go through para 24 to 28 of this landmark judgment. Para 24 says that, “The question whether a Judge of Court of Record is liable for a contempt of his own court stands settled now by a Three Judge Bench decision of the Apex Court in State of Rajasthan v Prakash Chand & others (1998) 1 SCC, pg 1. The above judgment arose out of proceedings from the Rajasthan High Court. A learned Judge of the High Court had issued a contempt notice to his Chief Justice, as in his view the Chief Justice had committed a contempt of court as a writ petition, which was part heard before the learned Judge was assigned to a Division Bench, which finally decided the matter after its assignment. While issuing notices a detail order was passed by Justice Shethna, making certain remarks against the Chief Justice, the Judges of the Division Bench who had decided the case, as well as against former Chief Justice of the High Court.”

                                       To put things in perspective, para 25 then goes further to say that, “A special appeal was thus filed by the State of Rajasthan against this order. The Hon’ble Apex Court while deciding the case had set up the following four questions before itself.

                    Did Shethna, J. have any judicial or administrative authority to send for the record of a writ petition which had already been disposed of by a Division Bench – that too while hearing a wholly unconnected criminal revision petition and pass “comments” and make “aspersions” against the Chief Justice of the High Court and the Judges constituting the Division Bench regarding the merits of the writ petition and manner of its disposal?

                    Can a Single Judge of a High Court itself direct a particular roster for himself, contrary to the determination made by the Chief Justice of the High Court? Is not such an action of the Single Judge subversive of judicial discipline and decorum expected of a puisne Judge?

                    Could a notice to show cause as to why contempt proceedings be not initiated against the Chief Justice of the High Court for passing a judicial order on the application of the Additional Advocate General of the State in the presence of counsel for the parties transferring Writ Petition No. 2949 of 1996, heard in part by Shethna, J., for its disposal in accordance with law to a Division Bench be issued by the learned Single Judge?

                   Did Shethna, J. have any power or jurisdiction to cast “aspersions” on some of the former Chief Justices of that Court, including the present Chief Justice of India, Mr. Justice J.S. Verma, behind their backs and that too on half-baked facts and insinuate that they had “illegally” drawn daily allowances at the full rate of “Rs 250” per day, to which “they were not entitled”, and had thereby committed “criminal misappropriation of public funds” while making comments on the merits of the disposed of writ petition?”

                                  In essence, para 26 explicitly points out that, “For our purposes what was essential is the following observation of the Hon’ble Apex Court.

                   ‘Even otherwise it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a Court of Record for a judicial act done by the Judge. The remedy of the aggrieved party against such an order is to approach the higher forum through appropriate proceedings. Their immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction. Immunity from any civil or criminal action or a charge of contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice’.”

                                    It must also be appreciated what is pointed out in para 27. It states that, “In arriving at the above findings, the Hon’ble Apex Court, inter alia, also referred to Salmond and Heuston [Salmond and Heuston on the Law of Torts, 21st Edn., 1996 in Chapter XIX]. The reference to Salmond and Heuston here would be relevant. It says: 

                     “A Judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions. His exemption from civil liability is absolute, extending not merely to errors of law and fact, but to the malicious, corrupt or oppressive exercise of his judicial powers. For it is better that occasional injustice should be done and remain unaddressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of judges to unfounded and vexatious charges of errors, malice, or incompetence brought against them by disappointed litigants – ‘otherwise no man but a beggar, or a fool, would be a judge’.”

                                    No prizes for guessing the palpable conclusion drawn by the Division Bench of Uttarakhand High Court in para 28. It clearly and convincingly states that, “In view of the above position of law, we hold that contempt proceedings cannot be initiated against a Judge of Court of Record, on allegations of committing a contempt of his own Court.”  

     Approval of Advocate General a statutory requirement

                                It cannot be lost on us that the Court explicitly held in para 30 that in deciding the maintainability of the petition in such case where allegations are in the nature of obstruction to the administration of justice or of scandalizing the court, then the approval of the Advocate General is a statutory requirement. Para 30 says that, “In a case where allegations are in the nature of obstruction to the administration of justice, or of scandalizing the Court, then an approval of the Advocate General of the State is a statutory requirement under sub-section (1) of Section 15 of the Act. Though we may add that in exceptional cases, the Court may dispense with it, but till it is done i.e. until such a requirement is dispensed with and a suo motu cognizance is taken by the Court, what is there before the Court is strictly speaking not even a contempt petition. We can call it merely an “information”.”

                               What also cannot  be lost on us is what has been stipulated in para 35 of this landmark judgment. It states that, “It is a statutory requirement of getting the consent of the Advocate General in a motion made by “any other person”. Until then it cannot be treated as a contempt petition. The statute mandates the inclusion of such a provision in the interest of justice and fair play, for obvious reasons as a motion for criminal contempt is a serious matter. It has penal consequences. Therefore unless the motion is made by the Advocate General himself, or the matter is taken suo motu, (or an act is committed in its presence or during hearing, i.e. under Section 14 of the Act), it must be accompanied by the consent of the Advocate General. The Advocate General is a Constitutional Authority. He is the leader of the Bar and therefore Parliament in its wisdom thought it best that a motion of criminal contempt must be screened by a proper and unbiased authority, before it becomes a motion for criminal contempt.”  

 Registry not following the correct procedure

                                      Truly speaking, the Uttarakhand High Court rightly apportioned the blame on the Registry for not following the correct procedure in this peculiar case. Para 28 points out that, “Firstly for the peculiar facts of the case, and secondly to set the procedure right, as we are also of the view that in these matters (matters relating to criminal contempt), the Registry has not followed the correct procedure.”

        No approval of Advocate General     

                                 Interestingly enough, it is pointed out in para 31 that, “Referring again to the Full Bench decision of Patna High Court, we find that one of the grounds taken by the majority Judges of Patna High Court for rejecting the petition which was before it was that in that case too there was no approval of the Advocate General, and hence it was not maintainable.” In this case too there was no approval of the Advocate General! So obviously the petition was bound to get rejected!

    AG’s opinion neither here, nor there

                            As things stood, the Bench noted in para 32 that, “Since, the present ‘contempt petition’, has been filed before us by a person other than the Advocate General of the State, it had necessarily to be accompanied by the consent of the Advocate General. There is no clear consent of the Advocate General before us. For the records, though we have to state here that on 27.06.2018, when the matter was first taken up before this Court, a pointed question was put to the learned Advocate General who was present in the Court, about his consent, to which the reply of the learned Advocate General was that under peculiar facts and circumstances of the case he has not granted his consent. The reason for putting this question to the learned Advocate General Sri Babulkar was essential, as the letter of the Advocate General is not a clear statement as to his consent. Let us see the language of the letter which has been annexed to the petition by means of a supplementary affidavit by the petitioner, which is said to be written by the learned Advocate General in reply to the request for his consent. The letter dated 30.05.2018 states as under:

      ‘I have gone through the contents of the contempt petition and the affidavit and I find that the instance of 11th May, 2018 occurred with myself and consequently the Hon’ble Judge has passed an order against me and the Government Advocate, hence, although the facts as mentioned do make out a case of sanction, yet in order to avoid any allegations of bias, I am not in a position to accord formal sanction’.”

                                    Moving forward, in para 33, it is revealed that, “According to the learned Advocate General, he was a witness to the incident which occurred in the courtroom on 11.05.2018, as he was present in the courtroom of Justice Lok Pal Singh on that fateful day. Later he was not allowed to appear in the matter and the behaviour of the Court towards him was rude, even offensive. Under these circumstances he is not giving his consent in the matter in order to avoid any allegation of bias against him.”  

                                  As if this is not enough, it is further revealed in para 34 that, “Be that as it may, the nature of the opinion given by the learned Advocate General in any case does not make this task any easier for us. The opinion is neither here nor there. The Advocate General has chosen to vacillate in the matter, rather than give a clear opinion. We are of the view, that if under the facts and circumstances of the present case, the learned Advocate General had reached a conclusion that he should not give his consent, then he should have simply said so. He would have been perfectly justified in not giving his consent on the facts and circumstances of the case, as his apprehensions for any allegation of bias are not unreasonable. All the same, he has not done that, instead he has recused himself by saying that he is not giving his consent as the remarks of the learned Judge were addressed against him as well. Till this point he was right, but he does not stop here as he adds, that though he is not giving his consent, the facts of the case do make out a case for consent! What do we do with this!”

     Court unhappy with Advocate General

                                 Unhesitatingly, the Bench while noting its unhappiness with the manner in which the Advocate General gave his opinion said in para 36 in no uncertain terms that, “We do understand the compulsions of the learned Advocate General in the present matter, who is a senior and respected member of the Bar. Yet we are not very happy in the manner in which the opinion has been given to us. It would have been better if a clear opinion had come, one way or the other. An Advocate General may be justified in simply recusing himself, as there is no rule of necessity here, since the petitioner can always persuade the court to take the matter suo motu in absence of a consent of the learned Advocate General. But this has not happened.” The Bench in para 37 further records its unhappiness for Advocate General not giving his consent as required by law saying that, “The fact of the matter, however, is that the petition before us is not accompanied with the “consent” of the Advocate General, as is the requirement of law. We say this both from the language of the letter of the Advocate General and the statement of the learned Advocate General before us in the Court.”

                                            It is noteworthy that para 39 observes that, “The Hon’ble Apex Court in the case of Bal Thackrey v Harish Pimpalkhute and others reported in (2005) 1 SCC 254 has held that there are three channels for initiating proceedings of a criminal contempt under Section 15 of the Contempt of Courts Act – (a) either it can be done suo motu by a Court or (b) on a motion by the Advocate General or (c) by any other person with the consent in writing of the Advocate General. All three procedures have been clearly prescribed in law and though the earlier practice was that a Court of Record having the power to punish for its contempt under Article 215 of the Constitution of India could draw a procedure on its own, which had to be fair and reasonable, after the Contempt of Courts Act in the year 1971, a procedure has been laid down which has to be followed. This is not a case where a suo motu cognizance has been taken in the matter, nor is it a proceeding initiated by the learned Advocate General. Any other person, can only initiate a proceeding for a criminal contempt with the consent in writing of the Advocate General.”

                                        Attaching utmost importance to what the Supreme Court had held earlier in such cases, the Bench held in para 40 that, “In the case of S.K. Sarkar, Member, Board of Revenue, U.P. v Vinay Chandra Mishra, reported in (1981) 1 SCC 436, the Hon’ble Apex Court has held as follows:

                    ‘…Section 15 does not specify the basis or the sources of the information on which the High Court can act on its own motion. If the High Court acts on information derived from its own sources, the records of a subordinate court or on reading a report in a newspaper or hearing a public speech, without there being any reference from the subordinate court or the Advocate General, it can be said to have taken cognizance on its own motion. But if the High Court is directly moved by a petition by a private person feeling aggrieved, not being the Advocate General, can the High Court refuse to entertain same on the ground that it has been made without the consent in writing of the Advocate General? It appears to us that the High Court has, in such a situation, a discretion to refuse to entertain the petition, or to take cognizance on its own motion on the basis of the information supplied to it in that petition.”

            Suo motu cognizance by court

                                  Truly speaking, para 41 while dwelling on suo motu cognizance by court makes it clear that, “Therefore, though a petition moved by any other person, without the consent of the Advocate General, can still be treated as a contempt petition, depending upon the nature of the “information” and discretion of the Court, but till a suo motu cognizance is taken by the Court, the petition is merely in the nature of an “information”.”

  Chief Justice to decide on criminal contempt petition

                                     In retrospect, para 42 while referring to an earlier decision said that, “As far back as in the year 1973, a Division Bench of Delhi High Court in the case of Anil Kumar Gupta v K. Suba Rao and Ors. (Criminal Original Appeal No. 51 of 1973) (1974) ILR, Delhi, 1 had in fact directed that such matters (matter as we have before us), should not be listed as a criminal contempt straightway but should be placed first before the Chief Justice on the administrative side. The directions given by the Division Bench are as follows:

           ‘(10) The office is to take note that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information. The office is directed to strike off the information as “Criminal Original No. 51 of 1973” and to file it’.”   

As a corollary, we see that in para 43, it is observed that, “The above procedure was approved by the Hon’ble Apex Court in the Case of P.N. Dude v. P. Shiv Shanker reported in (1988) 3 SCC 167, and in Bal Thackrey (supra).”

                                      Now let us come to para 44 of this landmark judgment. It states that, “The whole object of prescribing a procedure in such matters, particularly in cases of criminal contempt is also to safeguard the valuable time of the Court from being wasted by frivolous contempt petitions.” [Bal Thackrey v Harish Pimpalkhute and others reported in (2005) 1 SCC 254]. Therefore, the requirement of obtaining consent in writing of the Advocate General for contempt proceeding by any person is necessary. A motion under Section 15 which is not in conformity with the requirement of that section is not maintainable [State of Kerala v. M.S. Mani reported in (2001) 8 SCC 22 and Bal Thackrey v Harish Pimpalkhute and others reported in (2005) 1 SCC 254]. In Bal Thackrey, therefore, it was held as follows:

                               ‘23. In these matters, the question is not about compliance or non-compliance of the principles of natural justice by granting adequate opportunity to the appellant but is about compliance with the mandatory requirements of Section 15 of the Act. As already noticed the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution, though in these matters petitioners filed were under Section 15 of the Act. From the material on record, it is not possible to accept the contention of the respondents that the Court had taken suo motu action. Of course, the Court had the power and jurisdiction to initiate contempt proceedings suo motu and for that purpose consent of the Advocate General was not necessary. At the same time, it is also to be borne in mind that the Courts normally take suo motu action in rare cases. In the present case, it is evident that the proceedings before the High Court were initiated by the respondents by filing contempt petitions under Section 15. The petitions were vigorously pursued and strenuously argued as private petitions. The same were never treated as suo motu petitions. In absence of compliance with mandatory requirement of Section 15, the petitions were not maintainable’.”

                                      As we see, the Court also went on to consider a hypothetical situation. It is pointed out in para 46 that, “Hypothetically speaking therefore it is always open for a Court to proceed with the matter, even where the Advocate General has refused to grant his consent, since powers are given to the Court to take a suo motu cognizance, but this can be done only after the due procedure is first followed – procedure as referred above.” Para 47 further goes on to add saying that, “Although in the absence of a consent of the Advocate General, this Court can take action on its own motion, but presently this channel is not open to us here, as proceeding of contempt cannot be initiated against a Judge of a Court of Record, on a charge of “committing a contempt of his own court”.”

                                      Going ahead, para 48 makes the all important observation that, “We therefore dismiss the present petition, being not maintainable”. Para 49 which is no less important further goes on to say that, “We have made the above determination and dismissed the petition on pure question of law, without having to go in detail to the facts of the case. We say nothing on facts. We have, inter alia, held that henceforth a petition like the one at hand shall not be listed as a ‘contempt petition’, unless so ordered by the Hon’ble Chief Justice. This is so as it is easy to make baseless allegations against a Judge, who ironically due to the office he holds, does not enjoy the same liberty and freedom, as compared to the petitioner who is pointing fingers at him. In this case a practicing lawyer of this Court, of reasonable standing, has filed the present petition. In our considered opinion he should have shown more restrain and circumspection before resorting to this course; a course which is not open to him in any case, as clearly held by the Apex Court in State of Rajasthan v. Prakash Chand and others (supra).”        

                   Court’s word of caution

                                Finally and most importantly, the concluding paras 50 and 51 deserve utmost attention. Para 50 says that, “We have dismissed this petition, but we must end this case with a note of caution made by the Hon’ble Apex Court in a case arising out of a decision of Madhya Pradesh High Court. The case came to be known as “M.P. Liquor Case”. The subject was grant of new distilleries, which was being done under a policy decision of the Government of Madhya Pradesh. This decision was challenged before the High Court in several writ petitions. These writ petitions were allowed by the Division Bench. The two Hon’ble Judges, however, gave concurrent, but separate judgments. While allowing the writ petition, Justice B.M. Lal made certain observations attributing mala fide, corruption and underhand dealing against the State Government officials. The decision of the High Court was challenged by the State of Madhya Pradesh before the Hon’ble Apex Court in appeal (in State of M.P. and others v Nandlal Jaiswal and others, (1986) 4 SCC 566), which was allowed and the judgment of the High Court was set aside, and while doing so, Justice P.N. Bhagwati (C.J.) observed that the remarks made by B.M. Lal, J. “were clearly unjustified”. While doing so, the Hon’ble Apex Court observed:

                                     “We may observe in conclusion that judges should not use strong and carping language while criticizing the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice. Here, in the present case, the observations made and strictures passed by B.M. Lal, J. were totally unjustified and unwarranted and they ought not to have been made.”

                  The matter, however, did not end here. After the judgment of Hon’ble Apex Court and a delay of 738 days, one Mr. Pramod Kumar Gupta, Advocate, who had no connection with the earlier litigation, filed a review petition before the Madhya Pradesh High Court. The matter was listed for admission before the Division Bench on 29.10.1988 and one of the Hon’ble Judges dictated the order in open Court dismissing the review petition on grounds of locus standi as well as inordinate delay. The other Hon’ble Judge (B.M. Lal, J.) did not pass the order on 29.10.1988, but on a later date. Ultimately, Justice B.M. Lal also dismissed the review petition, but while doing so made certain comments on the Senior Advocate and the former Advocate General of Madhya Pradesh as follows:

                      “It is the moral duty of a lawyer, much less the Advocate General, to act faithfully for the cause of his client and to furnish information about the court’s proceedings correctly. In the past the chair of Advocate General was adorned by glorious and eminent lawyers who never showed any sycophancy and never suffered from mosaifi. As such, the action on the part of the Advocate General, was not befitting to the status of the high office.”

                    It was also remarked that the said Advocate General had “skillfully succeeded in his attempt to abstain himself from the case on August 28, 1988, presumably, he had no courage to face the situation”.

                    An appeal was filed before the Hon’ble Apex Court, which was allowed and all the remarks made by Justice B.M. Lal against the appellant were expunged from the impugned order. The Hon’ble Apex Court in A.M. Mathur v Pramod Kumar Gupta and others, (1990) 2 SCC 533 in para 13 and 14 said as follows:

                                 “13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.

                                14. The Judge’s Bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. We concede that the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct. [See (i) R.K. Lakshman v. A.K. Srinivasan, (1975) 2 SCC 466, (ii) Niranjan Patnaik v Sashibhusan Kar, (1986) 2 SCC 569).”             

                                  Now coming to the last and final para 51 of this landmark judgment by Uttarakhand High Court. It concludes by observing that, “Intemperate comments and undignified banter, as the Hon’ble Apex Court refers above, also undermines the public confidence in a judge. Public confidence, which is an absolutely essential condition for realizing the judicial role. (The Judge in a Democracy – Aharon Barak Princeton University Press). Public confidence does not mean being popular in the eyes of the public or being pleasant. “On the contrary, public confidence means ruling according to the law and according to the judge’s conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria”. (Aharon Barak [supra] page 110). Public confidence is also the ultimate strength of a judge. Eugen Ehrlich, the noted sociologist had famously said “there is no guarantee of justice except the personality of the judge”. This personality we must remember, is always under a close watch of a litigant, who quietly sits in a corner of a courtroom, judging the justice!”

                                 Conclusion

                                          All said and done, it is one of the best judgment that I have ever read in my life till now! This landmark judgment must be read not just by every literate person but also more importantly by all the lawyers and all the judges alike of all courts right from the bottom to the top court! It will certainly be of immense help and a great learning experience from which a lot of invaluable lessons can be gained! Lawyers and Judges who don’t read this invaluable judgment are certainly missing something very important which can be considered as indispensable for all those who are in the legal profession and practicing in any court in India! This landmark judgment is the best source from which right lessons must be learnt which will enable both lawyers and judges to learn to refrain from indulging in all those acts which can tarnish their reputation in any manner and put them in a tight spot! No doubt, it is also a must read landmark judgment for all those who earnestly aspire to either become a lawyer or a Judge!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 

oming straight to the nub of the matter, it has to be said right at the outset that in a landmark judgment with far reaching consequences, the Delhi High Court on August 24, 2018 in Kulwinder v State (NCT of Delhi) in CRL.A. 129/2012 held 20 more people guilty of killing a 60-year-old Dalit man and his physically-challenged daughter at Mirchpur village in Haryana’s Hissar district in 2010, while dismissing the appeals filed by 15 convicts against the various sentences awarded to them. The Bench of Delhi High Court comprising Justice S. Muralidhar and Justice I.S. Mehta also upheld acquittals of 21 other accused, holding that there was insufficient evidence to establish their guilt. So it was but natural that they had to be acquitted!

                                         As things stand, while convicting 20 more people and dismissing all appeals by those already convicted, the Delhi High Court opined that the trial court indulged in “conjectures and surmises” asserting vocally that, “This was an act of deliberate targeting of the Balmiki houses by the Jat community mob and setting them on fire in a pre-planned and carefully orchestrated manner. The entire evidence, if read carefully, more than adequately demonstrates that there was a large scale conspiracy hatched by members of the Jat community to teach the Balmikis a lesson and pursuant to that conspiracy, houses of the Balmiki community were set on fire.” It may be recalled here that the house of one Tara Chand was set on fire resulting in burning alive of the father and daughter on April 21, 2010 after a dispute between Jat and Dalit community of the village. What was then witnessed was that 254 families of the Balmiki community then had to flee Mirchpur as a result of the horrifying violence which they were subjected to at the hands of the Jat community. They were thus rendered homeless as 18 houses of Balmikis which is a Dalit community were burnt by an irate mob of Jats!

                                                  It cannot be lightly dismissed that many Balmikis suffered injuries and their properties were destroyed. The trigger for this heinous crime was a seemingly trivial incident that took place on the evening of 19th June 2010 when a dog which belonged to a Balmiki resident barked at a group of Jat youth returning to their dwelling places through the main thoroughfare of the village. More than eight years later, many of those who fled are yet to return to Mirchpur!

                                       To be sure, of the 103 accused persons sent up for trial, five were juveniles and were tried before the Juvenile Justice Board (“JJB”) in Hissar. Of the remaining 98, the trial ended in the acquittal of 82 of them and the conviction of 16 of them. These seven connected appeals arise out of the impugned judgment of the trial Court.

              The present appeals

                   As it turned out, it is observed in para 3 of this landmark judgment that, “Two of the seven appeals have been preferred by the State, one of them by the original complainants, and four have been preferred by the convicted accused persons. Six of the seven appeals seek to assail the judgment dated 24th September 2011 passed by the learned Additional Sessions Judge (‘ASJ’)-11, North-West District Rohini Courts (hereinafter referred to as ‘trial Court’) in SC No. 1238/2010 arising out of FIR No. 166/2010 registered as PS Narnaund, Haryana. By the said judgment, 15 of the 97 accused persons who had been charged with offences punishable under the Indian Penal Code (‘IPC’) and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (‘POA Act’) were convicted and sentenced in terms of the consequential order on sentence dated 31st October 2011.” Para 4 further observes that, “The seventh appeal, i.e. Crl.A. 1472/2013, is an appeal by the State against the judgment dated 6th October 2012 in SC No. 1238A/2012 arising out of FIR No. 166/2010 whereby the accused Jasbir @ Lillu son of Raja (A-58) was acquitted of all the offences with which he had been charged except for that punishable under Section 174A IPC to which he pleaded guilty and was sentenced in terms of the consequential order on sentence dated 12th October 2012.”

                              Going forward, para 5 further states that, “The State’s appeal, i.e. Crl.A. 1299/2012 against the judgment dated 24th September 2011 has a total of 90 Respondents. The convicted accused persons have been impleaded as Respondent Nos. 1-15 while the acquitted accused persons have been impleaded as Respondent Nos. 16-90. Para 6 points out that, “The original complainants, i.e. Kamala Devi wife of Tara Chand, Pradeep son of Tara Chand, Gulab son of Jai Lal, Sube Singh son of Bhura Ram, and Satyawan son of Roshanlal, have preferred Crl.A. 139/2012. Therein, the State has been impleaded as Respondent No. 1; the convicted accused persons have been impleaded as Respondent Nos. 2-16; and the accused persons acquitted by the judgment dated 24th September 2011 have been impleaded as Respondent Nos. 17-90. Four of the accused persons died during the pendency of these appeals, viz. Baljit son of Inder (Accused No. 42: ‘A-42’), Bobal @ Langra son of Tek Ram (A-94), Rishi son of Satbir (A-23), and Jagdish @ Hathi son of Baru Ram (A-17).”

        Transfer of the trial to Delhi

                             More importantly, para 7 of this landmark judgment observes that, “As already noted, the charge-sheet in the present case was originally field against 103 accused of which five were juveniles. Therefore, the trials against them were separated and conducted before the JJB at Hissar. Initially, the criminal case against the remaining 98 accused was before the ASJ at Hissar. In fact, the learned ASJ at Hissar had also framed charges against the 98 accused persons by an order dated 6th September 2010. However, pursuant to the order dated 8th December 2010 passed by the Supreme Court of India in W.P.(C)211/2010, SC No.3-SC/ST pending before the Court of the ASJ at Hissar was transferred to the Court of the ASJ at Delhi which was notified as a Special Court under the POA Act and the trial was directed to commence de novo.

                         Charges

                               Suffice to say, in para 8 it was clearly and categorically held about charges that, “The learned ASJ at Delhi passed an order on charge on 10th March 2011 whereby it was held that there was sufficient material to frame charges against various accused persons. Subsequent thereto, 12 separate charges were framed qua 97 accused persons under Sections 120B/302/147/148/149/323/325/395/397/427/435/436/449/450/452IPC as well as under Sections 3(1)(x) and (xv) and 3(2)(iii), charged under Section 216 IPC due to the allegation against him that he had harboured/concealed Sanjay @ Handa son of Dayanand (A-77) with the intention of preventing him from being apprehended. Vinod son of Ram Niwas (A-37), who was the Station House Officer (‘SHO’) of PS Narnaund at the time of the incident, was also charged under the aforementioned provisions of the IPC as well as under Section 4 POA Act for wilfully neglecting his duties as a public servant and who was not a member of a Scheduled Caste (‘SC’) or Scheduled Tribe (‘ST’) during the incident at village Mirchpur. All the accused pleaded not guilty to the charges and claimed trial.” Para 9 further brings out that, “Jasbir @ Lillu son of Raja (A-58 : Respondent in Crl.A. 1472/2013) was declared a proclaimed offender (‘PO’) by the trial Court on 27th September 2011 when he absconded at the stage of recording of the statements of the accused persons under Section 313 CrPC. Therefore, his case was separated out. Trial proceeded from then on against the remaining 97 accused persons.”

   Convictions and sentences awarded by the trial Court

                               It is clearly brought out in para 10 that, “As far as the remaining 97 accused were concerned, by the judgment dated 24th September 2011, the trial Court convicted 15 of them while acquitting the remaining 82 of all charges.” They had now challenged their conviction, while the victims and the police had also appealed against the acquittal of the others, as well as for enhancement of the sentences already awarded.

Absence of fraternity and equality in the Indian society

                            Needless to say, while convicting 20 more people and dismissing all appeal by those already convicted, the Delhi High Court took stock of the current situation of the displaced families, noting that those who decided to stay back at Mirchpur village did not support the prosecution in the present criminal trial, and it was only those who decided not to return who did participate. It further noted that while the Government of Haryana has sought to rehabilitate the displaced families, it is not in Mirchpur but in a separate township. The Delhi High Court very rightly observed that, “The question is whether this accords with the constitutional promise of equality, social justice and fraternity assuring the dignity of the individual.”  

                                      It cannot be lost on us that the Delhi High Court then opined explicitly that the instances of atrocities against the Scheduled castes by those belonging to dominant castes still continue, despite 71 years having passed since independence. This, it observed, was evidence of the lack of equality and fraternity in the Indian society. It observed bluntly and boldly that, “71 years after Independence, instances of atrocities against Scheduled Castes by those belonging to dominant castes have shown no sign of abating. The incidents that took place in Mirchpur between 19th and 21st April 2010 serve as yet another grim reminder of “the complete absence of two things in Indian society” as noted by Dr. B.R. Ambedkar when he tabled the final draft of the Constitution of India before the Constituent Assembly on 25th November 1949. One was ‘equality’ and the other, ‘fraternity’.”

          Cannot accept allegations of false implications

                                 No prizes for guessing that the Delhi High Court also steadfastly refused to accept the allegations of the accused being falsely implicated by the victims, opining that the victims had suffered too huge a personal loss to allow such a finding. It minced no words in observing point blank that, “The atmosphere of fear created by the members of the dominant Jat community was evidently so severe that the confidence of the members of the Balmiki community about their safety and security in Mirchpur is yet to be restored. It is too cynical to characterize the statements given by many of the victims as having been motivated only by the expectation of the compensation announced by the government. Many of the victims lost their properties, were injured and had their houses burnt. The trauma and shock of the incident has left such deep scars that many of them could not gather the courage to speak to the police for many days thereafter. It is in this context that the Court is disinclined to accept any of these submissions regarding alleged false implication of the accused by the victims.”

                 Summary of Court’s findings

                          Finally and most importantly, the Delhi High Court Bench comprising of Justice S. Muralidhar and Justice I.S. Mehta then summarized its findings in para 336. It observed that, “The observations and findings of this Court in the present case may be summarized as follows: –

(i)             There is a clear causal link that exists between the incidents that occurred on 19th, 20th and 21st April 2010 which was overlooked by the trial Court. The incident of 21st April 2010 has to be viewed in the context of the prevailing tension due to the perceived slight against the Jat community by persons from the Balmiki community which occurred on 19th April 2010 and then escalated.

(ii) The need to exaggerate the altercation between some Balmiki boys and Rajender, Karampal and Dinesh that occurred in the early hours of 21st April 2010, as an aggravated assault indicates the simmering tension that was prevalent in the village at the time, which was like a gunpowder keg kept waiting for a spark. This was again missed by the trial Court by seeing the incident on the morning of 21st April 2010 as a one off incident which had nothing to do with the events of 19th and 20th April 2010.

(iii)       Consequently, this Court is unable to subscribe to the sequence of events that has been laid down by the trial Court or its analysis of the same in trying to shift the blame onto the Balmiki boys for attacking members of the Jat community on the morning of 21st April 2010, which proved to be the spark that set off the violence that ensued on that date.

(iv) From the layout of the village, it is apparent that the Balmiki basti was located in one corner of the village abutting fields which lay to the south and surrounded by the dwellings of the Jat community on all other sides. There was no difficulty at all for the Jats to identify the Balmiki houses and attack them. In that sense, it could be said that the houses were attacked selectively. The conclusion drawn by the trial Court with regard to the selective targeting of the houses of the Balmikis is, therefore, set aside by this Court.

(v) The damage and destruction that is evidenced from the record is widespread and, in the opinion of this Court, could not have been carried by a small group of Jat youth as is speculated by the trial court. There is no doubt that it was indeed a mob which made a coordinated and premeditated attack on the Balmiki basti.  

(vi)  The conclusion of the trial Court that there was no criminal conspiracy is unsustainable in law. The trial Court failed to examine the photographs, videograph, and site plans in its analysis of the events of 21st April 2010 and erred in accepting the alternative version of the incident on 21st April 2010 as put forth by the defence. This part of the finding of the trial Court is, therefore, set aside by this Court.    

(vii) It is clear in the present case that an unlawful assembly comprising members of the Jat community was formed with the common object of setting fire to the properties of the Balmiki community and perpetrating violence against them, as it stands established that the members of said unlawful assembly came armed with stones and oil cans as well as lathis, jellies and gandasis which, in the present context, may be considered deadly weapons. The common object of the unlawful assembly was to “teach the Balmiki community a lesson”. Section 149 IPC is, therefore, clearly attracted.  

(viii) Section 3 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 introduced an altogether new Schedule to replace the earlier one wherein the Scheduled Castes in the State of Haryana were also listed in Part V. The Balmiki caste is listed under Entry No. 2 of Part V as a Scheduled Caste. Therefore, the offences committed against the Balmiki community attract the POA Act.

(ix) As regards the offences committed with the intention to humiliate the Balmikis that have been adverted to by the prosecution, this Court finds that the evidence adduced in this regard is not sufficient to find any of the accused guilty of the offence under Section 3(1)(x) of the POA Act.

(x) There is abundant evidence to show that at least 254 Balmiki families left Mirchpur and sought shelter in Ved Pal Tanwar’s farmhouse due to the attack suffered at the hands of the Jat mob. It is the collective act of violence by the Jats that compelled these 254 families of the Balmiki community to leave the village. Many of them are still awaiting rehabilitation and reparation. They have been too scared to return. The offence under Section 3 (1) (xv) of the POA Act stands established beyond reasonable doubt and is made out qua some of the accused to whom notices have been issued in the present case.

(xi) As regards the accused who have been held to be involved in the burning of the houses of the deceased Tara Chand, his wife Kamala or Dhoop Singh, the offence under Section 3(2)(iv) POA Act stands attracted, whereas for those accused who have been held to be involved in the damage by fire caused to the other houses, the offence under Section 3(2)(iii) POA Act stands attracted.

(xii) The finding of the trial Court that this was not an instance of violence driven by caste hatred is unsustainable and is hereby set aside. The prosecution has been able to establish beyond reasonable doubt that the offences under Section 3(1)(xv) and Section 3(2)(iii),(iv) and (v) POA Act stand attracted qua some of the accused persons.

(xiii) Section 8 (b) POA Act is of particular relevance in the present case since it makes specific reference to a group of persons committing an offence as a sequel to an existing dispute regarding land “or any other matter”. In such a scenario, it is stipulated that the presumption is drawn as regards the common intention and prosecution of the common object. In the context of the incident of 19th April 2010 and the incident that subsequently occurred on 21st April 2010, the presumption under Section 8 (b) stands attracted.

(xiv) This Court’s findings with respect to the POA Act and the incident of 21st April 2010 are as follows:

1.  There was a deliberate targeting of the houses of the Balmikis by the Jats;

2.  This was an instance of caste based violence meant to teach the Balmikis a lesson for the perceived insult caused to the Jats on 19th and 21st April 2010;

3.  The Jats had planned their attack in advance and had come to the Balmiki basti well armed with oil cans, rehris filled with stones, lathis, gandasis, jellies etc.;

4.  The properties of the Balmikis were burnt and their belongings were damaged/destroyed as is evidenced by the photographs and videograph on record.  

(xv) The inconsistencies and omissions highlighted by the trial Court in rejecting the testimonies of multiple PWs do not materially affect the case of the prosecution. The said witnesses, as discussed, remained unshaken and were, therefore, reliable.

(xvi) The mere fact that a TIP was not conducted in the present case would not vitiate the testimonies of the witnesses who have identified the assailants in the Court. Furthermore, merely because a witness belongs to the Balmiki community or may be closely related to a victim does not mean that such evidence should be disregarded per se.

(xvii) The disregard by the trial Court of the evidence of PWs 42 to 50 only on the ground that none of them came forward to save the two deceased or accompany them to the hospital even though they were related to them is an unacceptable finding. It fails to acknowledge that the situation that existed in Mirchpur on 21st April 2010 was such that the Balmikis were in a vulnerable position, were disoriented and paralyzed by fear. There can be no speculation about how a person should react in a particular contingency.

(xviii) The trial Court erred in rejecting the testimonies of the PWs because they contradicted their statements made before the Commission of Inquiry (CoI). Statements made before a CoI are, in terms of Section 6 of the Commission of Inquiry Act, inadmissible in a trial.

(xix) The trial Court erred in rejecting the testimony of the PWs with regard to the burning of houses in the Balmiki basti by the accused persons merely due to the absence of hydrocarbons of petroleum in the forensic samples and lack of corroboration by medical evidence. As the trial Court itself has noted, the manner in which the samples were collected was less than satisfactory, no specialist team was called and the extremely intricate job of collection of samples was left to a team of non-experts.

(xx) A conviction may be sustained if an accused person has been named and identified by at least two reliable witnesses who give a cogent and consistent account of the incident.

(xxi) PW-50 is a reliable witness. As a rule of prudence as regards consistency, the testimony of PW-50 is relied upon to the extent of the 16 accused she named in the first instance, and then again, this testimony qua these 16 has only been relied upon if corroborated by at least one other reliable eyewitness.

(xxii) It cannot be said in the present case that the dying declaration of the deceased Tara Chand is uncorroborated, as there is sufficient evidence in the form of the depositions of CW-1 and PWs 49 and 50 as well as those of PWs 55, 64 and 68 that fully corroborate the dying declaration, which is a substantive piece of evidencewhich has been relied upon to convict the accused persons.

(xxiii) The incidents of 21st April 2010 constituted an act of deliberate targeting of the Balmiki houses by the Jats and setting them on fire in a pre-planned and carefully orchestrated manner. It was pursuant to a conspiracy by the Jats to “teach the Balmikis a lesson”. Tara Chand and his daughter Suman were set on fire and pushed inside the house in that condition in the full knowledge that they were Balmikis. The dying declaration of Tara Chand more than adequately establishes the role of not only A-34 but also that of his associates who were identified by those present i.e. PW-49, PW-50 and CW-1. Consequently, the Court holds that the killing of Tara Chand and Suman was murder punishable under Section 302 IPC. The judgment of the trial court that it was culpable homicide punishable under Section 304 (II) IPC is hereby set aside.

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, 

Kankerkhera,

Meerut – 250001,

Uttar Pradesh.