Union
Minister for Home Affairs, Shri Amit Shah, introduced two bills and two
resolutions regarding Jammu & Kashmir (J&K) in Lok Sabha today.
These are as follows:

Article
370(3) provides President of India has the powers to amend or repeal
the article by issuing a notification, based on a recommendation of
Constituent Assembly of J&K. President of India signed the
Constitution Order 2019
yesterday regarding Article 370(1), under which all the provision under
article 4 would be applicable to J&K. J&K constituent assembly
would be read as J&K Legislative Assembly. Similar changes to
article 370 have been done in the past as well.Now since President’s
rule is in force in the state, implementation of article 370 would cease
to exist when President of India issues the notification in this
regard, after this House passes the resolution.

Replying
to the debate, Shri Shah stated,”I want to state that J&K is an
inalienable part of India. There are no two versions about
that”.Parliament is the highest and fully competent bodyto make laws and
bring resolutions regarding a state of India including J&K. There
can be no question to this power of the Parliament. Shri Shah said that
for 70 years, people of India have harboured this aspiration in their
hearts that Kashmir must be an integral part of India. Article 370 was
the only roadblock to realize this goal. Home Minister thanked the Prime
Minister for this historic step to remove this roadblock for ever.

Leader
of Main Opposition Party in Lok Sabha raised the issue of how the
Centre can take this step unilaterally when Kashmir is a bilateral issue
between India and Pakistan and when the matter is pending in UN.
To this, Shri Shah retaliated and challenged the opposition that they
must clarify their stand on the floor of the House whether they support
UN meditation in Kashmir.The opposition in a way has questioned the
competence of the Parliament by raising this point, he stated.

Shri
Shah asked the members, “How can patriots of India who can sacrifice
their lives for the country not get perturbed by such a question?”In
India, things do not function on whims and fancies but on laws. I am
always ready for constructive discussion but never for destructive
debate, he added.

Speaking
on the applicability of United Nations charter on India and Pakistan to
J&K, Shri Shah said thatunder this charter, neither armed forces
would violate the territorial integrity of other country. The day in 1965
Pakistan violated this provision, the charter was violated. The
question of a referendum ended with the Pakistani aggression. Hence, the
Government of India has full rights to take any decision regarding its
territorial integrity. This was even agreed to by the UN, Home Minister
added.

Shri Shah reminded the opposition and asked who took Kashmir matter to UN and who brought a unilateral cease fire in 1948? “Had our forces given a free hand to deal with the situation, PoK would have been a part of India today”, he stated.

Introducing
the resolutions and bills on the floor of the House, Shri Shah said
that the House has been witness to many historical moments. Today once
again this House is witness to a golden day when we are going to bring
J&K truely into India’s fold.Now, local representatives would have a
voice in the hill councils. The governments would be democratically
elected and would run the local government and administration in
J&K.

Several
members have raised the apprehension about the period for which the
Union Territory status will continue for J&K. Shri Shah saidthat
regarding Ladakh, it wasa long standing demand. Further he said, “I want
to assure the people of J&K that the status of State would be
restored once the situation normalises. Secondly, PoK and Aksai Chin are
an inalienable part of JK and the seats are still part of the
legislature.J&K would have a Legislative Assembly with elected
representatives and it is a misnomer that the administration would be
run by the Centre, he assured the House.

Home
Minister explained the difference between articles 370 and 371. Article
370 was originally a temporary provision. He informed that because of
article 370, the laws of Union of India did not apply to J&K,
corruption and terrorism flourished there. Article 371 relates to
special provisions to special clauses favouring development to backward
regions in some states. Why would the Government repeal article 371 and
why is the opposition equating articles 370 and 371, he asked. Home
Minister assured the people of these states that this Government has no
intention of repealing article 371.Further, Shri Shah also classified
that Naga Accord and article 370 have no relation and no mistake
committed in the past would not be repeated by this Government.

Regarding
troop deployment and no internet facilities in J&K currently, Shri
Shah assured that there is no reason other than preventing some
nefarious elements from instigating violence in the State and no one can
stop the government to take precautionary measures to protect the peace
inside the country. He made it clear that the government would never
talk with separatist elements and those who back cross border terrorism.
The government would only talk with anyone once they are committed for
peace and development in J&K.

Taking
on the opposition about the division of erstwhile state of Andhra
Pradesh, the Home Minister said that the proposal was rejected by the
State Assembly by two-thirds majority. Even then the earlier Government
went ahead with the division without consulting all political parties.

Removing
article 370 has no communal agenda as a number of communities and
religious groups are resident of J&K that are affected equally.
Article 370 has perpetuated discrimination against the minorities
including Sikhs, Buddhists admin others. Further, Shri Shah said, in the
past 70 years over 41500
people have been killed. Should we continue on the same path and let
people die. Who is responsible for this state of affairs? Are not the
youth of J&K and Ladakh require development. For how long would we
deprive them only for vote bank politics. Repealing article 370 is not a
historic blunder, rather it is historic step to correct this historic
blunder. Such bold steps are not taken for vote bank but for the
betterment of people of J&K and for three Nation, Home Minister
stated.

Shri
Shah further said that those who favour article 370 are in opposition
to the Prevention of Child Marriage Act which could not be applied to
J&K due to article 370. Similarly other laws like Right to
Education, Land Accusation Act, Multiple Disability Act, Senior Citizens
act, Delimitation act, Whistle Blower Protection act, laws enacted for
empowerment of tribals, National Commission for Minorities, National
Council for Teacher Education, among others, could not be applied to
J&K.
How is this in favour of the people of JK to not apply these laws in the
state, Home Minister asked the House. The reason, he said, is simply
that after President’s rule was applied in J&K, all corruption cases
were opened and those who were at the receiving end are opposing the
repealing of article 370. Democracy was strangulated by the use of
article 370 for 70 years. Today, after this government came to power,
over 40000 panch and sarpanches are taking the democratic process forward and development has started.

Taking
on the cross border terrorism, Shri Shah stated that Pakistan has
misused the presence of article 370 to sow the seeds of separatism and
terrorism in J&K. I appeal to all those who favour article 370, to
ponder what benefits did the provision bring to the state. It only
prevented development and facilitated terrorism there. Only by repealing
this provision, we can bring the people to the mainstream and embrace
them with open arms.J&K is the heaven on earth and I assure everyone
that it would continue to remain so when all the laws of Union of India
become applicable to the state, he said.

The
Home Minister appealed to the House to once again ponder on all these
points and join hands with the Government to bring the people of J&K
in the mainstream of development.

India
has a doctor-population ratio of 1:1456 as compared with the WHO
standards of 1:1000. In addition, there is a huge skew in the
distribution of doctors working in the Urban and Rural areas with the
urban to rural doctor density ratio being 3.8:1.
Consequently, most of our rural and poor population is denied good
quality care leaving them in the clutches of quacks. It is worth noting
that at present 57.3% of personnel currently practicing allopathic medicine does not have a medical qualification.       

The
ambitious Ayushman Bharat initiative announced by GoI in this year’s
Budget Speech needs 1,50,000mid-level providers within the next 3-5
years to provide comprehensive primary and preventive care.It will take
7-8 years to ramp up the supply of doctors, therefore, in the interim we
have no option but to rely upon a cadre of specially trained mid-level
providers who can lead the Health and Wellness Centres.

There
are international examples of Health Systems permitting such Community
Health workers. Countries such as Thailand, United Kingdom, China, and
even New York have permitted Community Health Workers/Nurse
Practitioners into mainstream health services, with improved health
outcomes. Since we haveshortage of doctors and specialists, the task
shifting to Mid- level Provider will relieve the overburdened
specialists. This is merely an enabling provision to grant limited licence only in primary and preventive healthcare to practice medicine at mid-level
to such persons, who qualify such criteria as may be specified by
regulations which will have an overwhelming representation of Doctors.
Chhattisgarh and Assam have experimented with the Community Health
Workers. As per independent evaluations (carried out by Harvard School
of Public Health), they have performed very well and there is no ground
of concern if the quality of personnel is regulated tightly.

Medical
Education (ME) is a specialized area with high focus on technical skill
sets. A common final year undergraduate examination (NEXT) withcommon
standards of knowledge and skills for Doctors on a Nation-wide basis.

An
enabling provision has been made to ensure common standards.
Regulations for operationalizing the NEXT would be made in due course
keeping in mind importance of both theoretical as well as clinical skill
setsrequired at the level of UG. Composition of NMC includes 75%
doctors representing Central and States Institutions/Councils and health
universities. Such a composition of NMC will ensure that due weightage
to theoretical as well as clinical skill sets is adhered to. There is a 3
year window before NEXT becomes operational, leaving ample scope for
detailed negotiations on the contours of the exam.

IMC
Act, 1956 has no provision for regulation of fees. As a result, some
states regulate the fees of some seats in private colleges through MoUs
signed with college managements. In addition, the Supreme Court has set
up committees chaired by retired High Court Judges to fix fees in
private colleges as an interim measure. Deemed to be Universities claim
that they are not covered by these committees.

Nearly
50% of the total MBBS seats in the country are in government colleges,
which have nominal fees. Of the remaining seats, 50% would be regulated
by NMC. This means that almost 75% of total seats in the country would be available at reasonable fees.
 In the spirit of federalism, the State governments would still have
the liberty to decide fees for remaining seats in private medical
colleges on the basis of individual MOUs signed with colleges on the
basis of mutual agreement.

States
also have been providing scholarships on the basis of merit cum means
and would normally continue to do so in order to make medical education
affordable to all students. We need to balance the interests of the poor
but meritorious students and the promoters of the private medical
colleges in order to expand the number of seats on offer. It is not
correct to assume that colleges would be free to arbitrarily raise the
fees for unregulated seats. The transparency provided by NEXT results
would lead to regulation of fees through market forces. Colleges would
have to provide quality of education commensurate to the fees charged by
them, otherwise there would be no takers for their management quota
seats.

Rating
would be provided by MARB for medical institutions based on the
standard of education/training.  This will serve to regulate fee through
market forces.

Any
affirmative action has to meet the test of reasonability. India has a
large middle class population. The government of the day is duty bound
to create infrastructure for all segments of society.

While
we solicit private investment in the medical education sector and want
private medical colleges to be financially viable, this government has
not shied away from its responsibility to create more seats in the
government sector. We have invested more than Rs 10,000 crores in
creating government seats in the past five years, and are also setting
up 21 new AIIMS at a cost of over Rs 30,000 crores to boost the medical
education sector. This trend of creating government seats will continue
in future.

There
is no question of NMC Bill making medical education a preserve of the
rich. On the contrary, it is common knowledge that before the reforms of
NEET and common counseling were introduced by our government, rich
students who could afford to pay huge and unrecorded capitation fees
were able to secure admission to private medical colleges. Our reforms
have eliminated the role of black money in medical education and the NMC
Bill will provide statutory force to the reforms which have been
carried out.

Another
bogey which is being raised is that merit will be given a go by in the
proposed dispensation. Nothing could be further from the truth. The
earlier provision was that any student who obtains 50% marks at class 12
level could gain admission to MBBS courses. Colleges negotiated with
students and conducted their own admission tests in a totally
non-transparent manner. As a result, many undeserving students got
admission. Now only NEET qualified students can get admission, which
ensures that merit prevails in admissions.

We all had either read or are fully well acquainted with the famous judgment titled Justice KS Puttaswamy (Retd) and Anr vs Union of India and others delivered on August 24, 2017 about two years back in which a 9-Judge Constitution Bench of Supreme Court including the then Chief Justice of India (CJI) JS Khehar had unanimously held that right to privacy is a fundamental right. The other Judges in this landmark and extremely laudable judgment praised all over were Justice J Chelameswar, Justice Sharad A Bobde, Justice RK Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice Dr DY Chandrachud, Justice Sanjay Kishan Kaul and Justice S Abdul Nazeer. It was applauded not just in India but all over the world for upholding that the right to privacy is fundamental right. Very rightly so!

However, it must be mentioned here that in a latest and noteworthy judgment titled Ritesh Sinha Vs State of Uttar Pradesh & Anr in Criminal Appeal No. 2003 of 2012 with Criminal Appeal No. 1318 of 2013, Criminal Appeal No. 1187 of 2019 [Arising out of SLP (Criminal) No. 9671 of 2017], Criminal Appeal No. 1188 of 2019 [Arising out of SLP (Criminal) No. 2225 of 2018] and Criminal Appeal No. 1190 of 2019 [Arising out of SLP (Criminal) No. 3272 of 2018], a three-Judge Bench of Supreme Court comprising of CJI Ranjan Gogoi along with Justice Deepak Gupta and Justice Sanjeev Khanna have on August 2, 2019 held unambiguously and unanimously that the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest thus reaffirming what was laid down earlier also in Justice KS Puttaswamy (Retd) case as also in other cases. This it held while holding that a Judicial Magistrate can order a person to give a sample of his voice for the purpose of investigation of a crime. Very rightly so!

To start with, this notable and laudable judgment authored by CJI Ranjan Gogoi for himself, Justice Deepak Gupta and Justice Sanjeev Khanna sets the ball rolling in para 1 by observing that, “Leave granted in Special Leave Petition (Criminal) Nos. 9671 of 2017, 1048 of 2018, 2225 of 2018 and 3272 of 2018.”

While dwelling on the facts of Criminal Appeal No. 2003 of 2012, Para 2 then illustrates stating that, “On 7th December, 2009 the In-charge of the Electronics Cell of Sadar Bazar Police Station located in the district of Saharanpur of the State of Uttar Pradesh lodged a First Information Report (“FIR” for short) alleging that one Dhoom Singh in association with the appellant – Ritesh Sinha, was engaged in collection of monies from different people on the promise of jobs in the Police. Dhoom Singh was arrested and one mobile phone was seized from him. The Investigating Authority wanted to verify whether the recorded conversation in the mobile phone was between Dhoom Singh and the appellant – Ritesh Sinha. They, therefore, needed the voice sample of the appellant and accordingly filed an application before the learned jurisdictional Chief Judicial Magistrate (“CJM” for short) praying for summoning the appellant to the Court for recording his voice sample.”

What we then see unfolding in para 3 is this: “The learned CJM, Saharanpur by order dated 8th January, 2010 issued summons to the appellant to appear before the Investigating Officer and to give his voice sample. This order of the learned CJM was challenged before the High Court of Allahabad under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”). The High Court having negative the challenge made by the appellant by its order dated 9th July, 2010, the present appeal has been filed.” Para 4 then also further states that, “The appeal was heard and disposed of by a split verdict of a two Judge Bench of this Court requiring the present reference.”

Be it noted, it is then envisaged in para 5 that, “Two principal questions arose for determination of the appeal which have been set out in the order of Justice Ranjana Prakash Desai dated 7th December, 2012 in the following terms.

‘(1) Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence?

(2) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?’”

As it turned out, para 6 then reveals that, “While the first question was answered in the negative by both the learned Judges (Justice Ranjana Prakash Desai and Justice Aftab Alam) following the ratio of the law laid down in State of Bombay vs Kathi Kalu Oghad, AIR 1961 SC 1808, difference of opinion has occurred insofar as second question is concerned.”

On the one hand, para 7 points out that, “Justice Desai took the view that voice sample can be included in the phrase “such other tests” appearing in Explanation (a) to Section 53 Cr.P.C. by applying the doctrine of ejusdem generis and, therefore, the Magistrate would have an implied power under Section 53 Cr.P.C. to pass an order permitting taking of voice sample in the aid of criminal investigation.”

On the contrary, para 8 then observes that, “On the other hand, Justice Aftab Alam took the view that compulsion on an accused to give his/her voice sample must be authorized on the basis of a law passed by the Legislature instead of a process of judicial interpretation. In this regard, the learned judge (Aftab Alam, J.) also took note of the amendments in Sections 53, 53A and 311-A of the Cr.P.C. by Act No. 25 of 2005 introduced with effect from 23rd June, 2006 which amendments did not bring, within the fold of the aforesaid provisions of the Cr.P.C., any power in the trial Court to compel an accused to give sample of his/her voice for the purpose of investigation of a criminal charge.”

To put things in perspective, it is then explained in para 11 that, “Medical examination of an accused for the purposes of effective investigation of a criminal charge has received a wider meaning by the amendment to the Explanation to Section 53 Cr.P.C. made by Act No. 25 of 2005 with effect from 23rd June, 2006. Similarly, Section 53A has been inserted by the same Amending Act (No. 25 of 2005) to provide for examination of a person accused of rape. Likewise, by insertion of Section 311-A by the same Amending Act (No. 25 of 2005) a Magistrate has been empowered to order any person, including an accused person, to give specimen signatures or handwriting for the purposes of any investigation or proceeding under the Cr.P.C.”

To be sure, it is then clarified in para 12 that, “None of the said amendments specifically authorize or empower a Magistrate to direct an accused person or any other person to give his/her voice sample for the purposes of an inquiry or investigation under the Code. “Omission” of the Legislature to specifically so provide has led the learned Judge (Justice Aftab Alam) on the two judge Bench to doubt as to whether legislative wisdom was in favour of a specific exclusion or omission so as to make a judicial exercise through a process of interpretation impermissible.”

More importantly, it is then envisaged in para 13 that, “The Law Commission of India in its 87th report dated 29th August, 1980, also had an occasion to deal with the question presently confronting the Court. The Law Commission examined the matter (almost four decades earlier) in the context of the working of the provisions of the Identification of Prisoners Act, 1920. The view taken was that a suitable legislation which could be in the form of an amendment to Section 5 of the Identification of Prisoners Act, 1920 would be appropriate so as to specifically empower a Judicial Magistrate to compel an accused person to give a sample of his voice. The following extract from the 87th Report of the Law Commission dated 29th August, 1980 would be relevant.

“A voice print is a visual recording of voice. It mainly depends on the position of “formats”. These are concentrates of sound energy at a given frequency. It is stated that their position is the “frequency domain” is unique to each speaker. Voice prints resemble finger prints, in that each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates.

Voice-print Identification seems to have a number of practical uses. In England, in November 1967, at the Winchester Magistrate’s Court, a man was accused of making malicious telephone calls. Voice-print Identification (spectrograph) was used and the accused was found guilty.” [Paragraphs 5, 27, 87th Report of the Law Commission of India]

*** *** ***

“Often it becomes desirable to have an accused person speak for the purposes of giving to the police an opportunity to hear his voice and try to identify it as that of the criminal offender. A comparison may even be desired between the voice of an accused person and the recorded voice of a criminal which has been obtained by, say, telephone tapping. To facilitate proof of the crime the police may like that the accused should be compelled to speak, and even that his voice as recorded may be converted into a “voice print”.

……………………………………………………………………

……………………………………………………………………

However, if the accused refuses to furnish such voice, there is no legal sanction for compelling him to do so, and the use of force for that purpose would be illegal.”

*** *** ***

“The scope of Section 5 needs to be expanded in another aspect. The general power of investigation given to the police under the Criminal Procedure Code may not imply the power to require the accused to furnish a specimen of his voice. Cases in which the voice of the accused was obtained for comparison with the voice of the criminal offender are known but the question whether the accused can be compelled to do so does not seem to have been debated so far in India.

There is no specific statutory provision in India which expressly gives power to a police officer or a court to require an accused person to furnish a specimen of his voice.” [Paragraph 5, 26, 87th Report of the Law Commission of India].”

It cannot be missed out that para 14 then holds that, “Section 5 of the Identification of Prisoners Act, 1920 coincidentally empowers the Magistrate to order/direct any person to allow his measurements or photographs to be taken for the purposes of any investigation or proceeding. It may be significant to note that the amendments in the Cr.P.C., noticed above, could very well have been a sequel to the recommendation of the Law Commission in its Report dated 29th August, 1980 though the said recommendation was in slightly narrower terms i.e. in the context of Section 5 of the Identification of Prisoners Act, 1920. In this regard, it may also be usefully noticed that though this Court in State of Uttar Pradesh vs Ram Babu Misra AIR 1980 SC 791 after holding that a Judicial Magistrate has no power to direct ac accused to give his specimen writing for the purposes of investigation had suggested to Parliament that a suitable legislation be made on the analogy of Section 5 of the Identification of Prisoners Act, 1920 sp as to invest a Magistrate with the power to issue directions to any person including an accused person to give specimen signatures and writings. The consequential amendment, instead, came by way of insertion of Section 311-A in the Cr.P.C. by the Code of Criminal Procedure (Amendment) Act, 2005 (Act No. 25 of 2005) with effect from 23rd June, 2006.”

As things stand, para 15 then points out that, “The legislative response in remaining silent or acting at a “slow” pace can always be explained by legislative concerns and considerations of care and caution. It is in the aforesaid context and in the admitted absence of any clear statutory provision that the question arising has to be answered which is primarily one of the extent to which by a process of judicial interpretation a clear gap in the statute should be filled up pending a formal legislative exercise. It is the aforesaid question that we shall now turn to.”

Needless to say, it is then made clear in para 16 that, “ “Procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation”. [AIR 1975 SC 349 (Vatal Nagaraj vs R. Dayanand Sagar)]. We would like to proceed in the matter keeping the above view of this Court in the backdrop.”

More to the point, it is then observed in para 18 that, “In the present case, the view that the law on the point should emanate from the Legislature and not from the Court, as expressed in the judgment of this Court from which the reference has emanated is founded on two main reasons, viz., (i) the compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than reasonable bending and stretching of the principles of interpretation and (ii) if the legislature even while making amendments in the Criminal Procedure Code (Act No. 25 of 2005), is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced explanation to Section 53 or in Sections 53A and 311A of Cr.P.C., then it may even be contended that in the larger scheme of things the legislature is able to see something which perhaps the Court is missing.”

It cannot be lost on us that it is then observed in para 19 that, “Insofar as the first reservation is concerned, the same would stand dispelled by one of the earlier pronouncements of this Court on the subject in State of Bombay vs. Kathi Kalu Oghad (supra), relevant extracts of which judgment has already been set out. The following views in the concurring opinion of Justice K.C. Das Gupta in State of Bombay vs Kathi Kalu Oghad (supra) would further strengthen the view of this Court to the contrary.

“(32) ………..It has to be noticed that Article 20(3) of our Constitution does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must, in our opinion, be in the negative.

(33) ………..the evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So, when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself.”

[Emphasis is ours]”

What’s more, it is then pointed out in para 20 that, “So far as the second basis for the view taken is concerned, we have already expressed an opinion that what may appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and exercise of care and caution. However, when a yawning gap in the Statute, in the considered view of the Court, calls for temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a process of judicial interpretation would become inevitable.”

Truth be told, it is then rightly advised in para 21 that, “The exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities on the ground. Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles. True, the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter.”

Furthermore, it would be of immense significance to note here that it is then observed in para 24 that, “Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others (2016) 7 SCC 353, Gobind vs. State of Madhya Pradesh and another (1975) 2 SCC 148 and the Nine Judge’s Bench of this Court in K.S. Puttaswamy and another vs. Union of India and others (2017) 10 SCC 1 the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.”

Finally and most importantly, it is then held in the last para 25 that, “In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.”

In essence, this latest, landmark and extremely laudable judgment very rightly takes the logical stand that though right to privacy is a fundamental right but it cannot be construed as absolute and must bow down to compelling public interest. Right to privacy cannot trample compelling public interest and has to step aside whenever it is in conflict with it! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It is quite ostensible that in a recent judgment titled Suryakant Balurao @ Ramrao Phad vs State of Maharashtra and others in Criminal Appeal No. 1161 of 2019 (Arising out of SLP (Cri.) No. 8894 of 2018) delivered just recently on July 30, 2019, the Supreme Court has minced no words to unequivocally maintain the time tested dictum and endorsed by Supreme Court itself many times in the past that, “Interest of victim and society at large must also be kept in view while sentencing”. In this notable case, the Bombay High Court Bench at Aurangabad reduced the sentence of imprisonment from seven years to five years to an ‘attempt to murder’ accused. But the Apex Court disagreed with this and laid down the reason also as to why it disagreed which we shall deal with subsequently.

First and foremost, the ball is set rolling in para 2 wherein while stating the facts of this case, it is pointed out that, “This appeal arises out of the judgment dated 12.07.2018 passed by the High Court of Judicature of Bombay at Aurangabad in Criminal Appeal No. 11 of 2016 in and by which the High Court affirmed the conviction of respondent No. 2-accused No. 1 under Section 307 IPC read with Section 34 IPC and reduced the sentence of imprisonment imposed upon him from seven years to five years and imposed fine amount of Rs 25,000/-. Insofar respondent Nos. 3 and 4-accused Nos. 2 and 3, the High Court acquitted them from the charges under Section 307 read with Section 34 IPC and instead convicted them under Section 326 read with Section 34 IPC and reduced the sentence of imprisonment imposed upon them to the period already undergone and imposed fine amount of Rs 25,000/- upon each of them. The High Court maintained the conviction of accused Nos. 1 to 3 under Section 323 read with Section 34 IPC also the sentence of imprisonment imposed upon each of them.”

While elaborating further, it is then pointed out in para 3 that, “The appellant-Complainant has filed this appeal challenging the reduction of sentence of imprisonment of respondent Nos. 2 to 4. Case of prosecution is that on 24.01.2012 at about 05.30 PM, when Chandrakant (PW-6) was proceeding towards his land via Pangaon ‘T’ point, respondent No. 2-Devraj (A1) who along with respondent No. 3-Ashish (A2) and respondent No. 4-Balaji (A3) was standing near the mobile shop of one Prahlad Joshi, asked PW-6-Chandrakant why he obstructed respondent No. 4-Balaji (A3) from spreading the rubble in his field and there was some exchange of words between them. In this quarrel, Devraj (A1) took out pistol from his waist and fired one shot at PW-6-Chandrakant on his chest. Hearing the sound, Suryakant (PW-7), Shivaji (PW-5) and others rushed to the spot. Accused Nos. 2 and 3 were alleged to be holding stick and stone respectively in their hands. When Suryakant (PW-7) tried to intervene, accused No. 1 fired a bullet from his pistol which hit on the left knee of PW-7. When Shivaji Phad (PW-5) tried to intervene, accused persons beat him with fists and kicked and also inflicted a knife blow on him causing him grievous hurt and then accused fled away. Injured PW-6 and PW-7 were taken to hospital and were given treatment. Suryakant (PW-7) lodged the complaint based on which FIR was registered under Section 307 read with Section 34 IPC, Sections 323 and 506 IPC. On completion of investigation, charge sheet was filed against the accused under Sections 307, 323 and 506 read with Section 34 IPC and under Section 4 read with Section 25 of the Arms Act. Later, charge under Section 4 read with Section 25 of the Arms Act was altered to Section 3 read with Section 25 of the Arms Act.”

While elaborating on the chain of events in the Trial Court, it is then pointed out in para 4 that, “To prove the guilt of the accused, in the trial court the prosecution examined thirteen witnesses and produced number of documents. Relying upon the evidence of injured eye-witnesses Chandrakant (PW-6), Suryakant (PW-7) and eye-witness Ram Phad (PW-4) and also upon the medical evidence, the trial vide judgment dated 23.12.2015 convicted accused Nos. 1 to 3 under Section 307 IPC read with Section 34 IPC and sentenced each of them to undergo rigorous imprisonment for seven years and also to pay a fine of Rs 15,000/- each with default clause. The trial court also convicted them under Section 323 read with Section 34 IPC and sentenced each of them to undergo rigorous imprisonment for six months and to pay a fine of Rs 500/- each with default clause. The trial court directed that out of the fine amount paid by the accused, Rs 20,000/- be given to injured Chandrakant (PW-6) and Suryakant (PW-7) each as compensation as per the provision of Section 357 Cr.P.C.”

Now turning the focus to High Court, we find that para 5 then elaborates stating that, “In the appeal filed before the High Court, the High Court affirmed the conviction of accused No. 1-Devraj under Section 307 read with Section 34 IPC but reduced the sentence of imprisonment imposed upon him to five years. Additionally, the High Court directed accused No. 1-Devraj to pay a fine of Rs 25,000/- with default clause. The High Court also convicted accused No. 1-Devraj under Section 326 read with Section 34 IPC and reduced the sentence of imprisonment imposed upon him to the period already undergone by him and also directed to pay a fine of Rs 15,000/- with default clause. Insofar as conviction and sentence of imprisonment under Section 323 read with Section 34 IPC, the High Court maintained the same. The High Court acquitted accused No. 2-Ashish and accused No.3-Balaji from the charge under Section 307 read with Section 34 IPC and instead convicted them under Section 326 read with Section 34 IPC and imposed the sentence of imprisonment to the period already undergone by them and accused Nos. 2 and 3 were directed to pay a fine of Rs 25,000/- each with default clause. The High Court maintained the conviction and sentence of imprisonment under Section 323 IPC read with Section 34 IPC imposed upon accused No.2-Ashish and accused No. 3-Balaji. Out of the fine amount deposited by the accused, a sum of Rs 60,000/- was directed to be paid to PW-6-Chandrakant and a sum of Rs 30,000/- was ordered to be paid to PW-7-Suryakant as compensation under Section 357 Cr.P.C. Being aggrieved, injured complainant-Suryakant (PW-7) has preferred this appeal.”

Needless to say, para 6 then lays bare that, “We have heard Mr Uday B Dube, learned counsel appearing for the appellant and Mr Sudhanshu S Choudhari, learned counsel appearing for respondent Nos. 2 and 3-accused Nos. 1 and 2 and Mr Sandeep Sudhakar Deshmukh, learned counsel appearing for respondent No. 4-accused No. 3 and also Mr Nishant R Katneshwarkar, learned counsel appearing for the State and perused the impugned judgment and materials on record.”

While rapping the High Court on its knuckles for its undue leniency, it is then made clear by the Apex Court in para 7 that, “The learned counsel appearing for the appellant inter alia submitted that accused No.1-Devraj shot a bullet in the chest of PW-6-Chandrakant which pierced through his chest and came out from the back side and PW-11-Dr Manoj Landge opined that the injury sustained by PW-6-Chandrakant was grievous in nature which was capable of causing death and while so, the High Court was not right in showing undue sympathy to the respondents-accused and reducing the sentence of imprisonment imposed upon them.”

As it turned out, it is then unfolded in para 8 that, “The learned counsel appearing for respondent Nos. 2 to 4-accused Nos. 1 to 3 have submitted that considering the facts and circumstances of the case and the age of respondent Nos. 3 and 4 and other circumstances, the High Court exercised its discretion in reducing the sentence of imprisonment and at the same time increased the fine amount to be paid as compensation as per the provision under Section 357 Cr.P.C. and the impugned judgment reducing the sentence of imprisonment warrants no interference.”

To be sure, it is then clearly and convincingly held in para 9 that, “A person committing an offence under Section 307 IPC can be ordered to undergo imprisonment for life. To justify conviction under Section 307 IPC, intention of causing death or that it was done with the intention of causing such injury which is likely to cause death is necessary to constitute the offence. Although the nature of injury actually caused would be of considerable assistance in coming to a finding as to the intention of the accused. Such intention may also be deduced from other circumstances.”

Truth be told, it is then unravelled in para 10 that, “Accused No. 1-Devraj was serving in the Army and was possessing a licence for carrying the pistol. If the evidence of injured witnesses PW-6-Chandrakant and PW-7-Suryakant and eye-witness PW-4-Ram Phad is considered in its entirety, it becomes clear that the attempt by accused No. 1-Devraj was with intention to teach a lesson to PW-6-Chandrakant as to why he opposed accused No.3-Balaji from spreading the rubble in his field and there was some hot exchange of words between them. Accused No.1-Devraj carrying the pistol shot at PW-6-Chandrakant at his chest which pierced through his chest. When PW-7-Suryakant tried to interfere, accused No.1-Devraj shot at PW-7-Suryakant also.”

What’s more, it is then unearthed in para 11 that, “In the occurrence, PWs 6 and 7 sustained the following injuries:-

“Injuries noticed on person of PW-6-Chandrakant

1) Punctured wound over lower 1/3rd of Pre-sternal area 2 x 2 cm oval, age less than six hours.

2) Punctured wound over right side of chest post-axillary line about in 7 inter costal space 2 x 2 cm oval, age less than six hours.

3) Contused lacerated wound over scalp left parieto occipital region, 2 x 1 x 0.5 cm, age less than six hours, simple in nature.

Injuries noticed on person of PW-7-Suryakant

1) Punctured wound on lateral aspect of upper part of left knee 2 x 2 cm oval, age less than six hours, simple in nature.

2) Punctured wound over medical aspect of popliteal region 2 x 2 cm oval, age less than six hours. Grievous in nature. X-ray shows displaced fracture of supracondylor.

The bullet injury pierced through the chest of PW-6-Chandrakant and came out from the back side. In his evidence, PW-11-Dr Manoj Landge specifically stated that injuries No.1 and 2 caused to PW-6-Chandrakant were capable of causing death. So far as the injuries caused to PW-7-Suryakant are concerned, PW-11-Dr Manoj Landge opined that they were not fatal to life.”

More importantly, it is then held in para 12 that, “While considering the quantum of sentence, the courts are expected to consider all relevant facts and circumstances of the case, in particular, nature of injuries caused in the occurrence and the weapon used which will have bearing on the question of sentence and the Courts are bound to impose sentence commensurate with the gravity of the offence. Considering the nature of injuries caused to PW-6-Chandrakant i.e. gun shot wounds in the chest and the opinion of Doctor that the injuries caused to PW-6 are capable of causing death, in our view the High Court was not right in reducing the sentence of first accused-Devraj.”

Most importantly, while endorsing the trial court’s judgment and rapping the High Court on its knuckles, it is then very rightly held in para 16 that, “Considering the nature of the injuries caused to PW-6-Chandrakant and PW-7-Suryakant and the facts and circumstances of the case, the trial court convicted accused No.1-Devraj under Section 307 read with Section 34 IPC and sentenced him to seven years rigorous imprisonment with a fine of Rs 15,000/-. When the trial court has exercised its discretion in imposing seven years of imprisonment, the High Court ought to have kept in view the weapon used by accused No. 1 and the nature of injuries caused to PW-6-Chandrakant and the opinion of the Doctor. The courts must not only keep in view the right of the accused, but must also keep in view the interest of the victim and society at large. The courts have been consistent in approach that a reasonable proportion has to be maintained between the gravity of the offence and the punishment. While it is true that the sentence imposed upon the accused should not be harsh, inadequacy of sentence may lead to sufferance of the victim and the community at large. So far as the first accused-Devraj is concerned, the High Court was not right in reducing the sentence of imprisonment imposed upon first accused. As pointed out earlier, the High Court reduced the sentence of imprisonment from seven years to five years and increased the fine amount to Rs 25,000/- and part of the said fine amount was ordered to be paid as compensation to the injured PW-6-Chandrakant and PW-7-Suryakant. Since the enhanced compensation was paid by accused No. 1 which is said to have been withdrawn by injured-victims, for conviction under Section 307 read with Section 34 IPC, the first accused-Devraj shall undergo rigorous imprisonment for six years and six months.”

Be it noted, it is then observed in para 17 that, “So far as respondent Nos. 3 and 4-accused Nos. 2 and 3 are concerned, at the time of occurrence, they were not armed. Accused Nos. 2 and 3 are alleged to have attacked the injured with fist and kicked and with sticks. Considering the facts and circumstances of the case and the evidence on record, we are not inclined to interfere with the acquittal of accused Nos. 2 and 3 under Section 307 read with Section 34 IPC. So far as conviction under Section 323 read with Section 34 IPC, the High Court took into consideration that accused No.2-Ashish was nineteen years old at the time of occurrence and accusedNo.3-Balaji was thirty-eight years old and keeping in view their age and family circumstances and that they were not having criminal antecedents, the High Court thought fit to reduce the sentence of imprisonment from six months to the period already undergone by them. Since accused Nos. 2 and 3 were not armed with deadly weapons, we are not inclined to interfere with their acquittal under Section 307 read with Section 34 IPC and the reduction of sentence of imprisonment under Section 326 read with Section 34 IPC.”

It cannot be lost on us that it is then observed in para 18 that, “In the result, the impugned judgment of the High Court dated 12.07.2018 in Criminal Appeal No. 11 of 2016 is set aside. For conviction under Section 307 read with Section 34 IPC, the second respondent-accused No.1-Devraj is sentenced to undergo rigorous imprisonment for six years and six months and the appeal is partly allowed. The acquittal of respondent Nos.3 and 4-accused Nos. 2 and 3 under Section 307 read with Section 34 IPC is affirmed and the judgment of the High Court convicting them under Section 326 IPC read with Section 34 IPC and reducing the sentence of imprisonment imposed upon accused No. 2 and 3 to the period already undergone is also affirmed and the appeal qua respondent Nos. 3 and 4-accused Nos. 2 and 3 is dismissed. So far as the fine amount imposed upon the accused and the direction of the High Court to pay the compensation to the injured under Section 357 Cr.P.C. is maintained.” Lastly, it is then held in para 19 that, “The accused No.1-Devraj is directed to surrender within four weeks from today to serve the remaining sentence failing which, he shall be taken into custody.”

Before parting, it must be said that this landmark, latest and extremely laudable judgment has unquestionably once again reiterated what has been held earlier also in many cases like Sevaka Perumal and another v. State of Tamil Nadu (1991) 3 SCC 471, Ravinder Singh v State of Haryana (2015) 11 SCC 588, State of Punjab v. Bawa Singh (2015) 3 SCC 441 and others that the courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. It has also been rightly held that justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crimes and that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. This alone explains why the Apex Court in this case differed with High Court to reduce the sentence of imprisonment from seven years to five years to an ‘attempt to murder’ accused! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

While disposing off five writ petitions to curb excessive noise pollution in the States of Punjab, Haryana and the Union Territory of Chandigarh, the High Court of Punjab and Haryana has explicitly in a latest landmark ruling prohibited the use of loudspeakers in the territory without prior permission from the authorities. It minced no words in holding that glorification of violence has given rise to culture of gangsters. Therefore, it has rightly banned songs glorifying violence in public events.

It must be mentioned here that in these five writ petitions – 1. CWP No. 6213 of 2016 (O&M) Reet Mohinder Singh vs State of Punjab and others, 2. CWP-PIL No. 27011 of 2016 (O&M) Panditrao Dharenavar vs The Principal Secretary to Government, Punjab and others, 3. CWP-PIL No. 32 of 2018 (O&M) Court on its own motion vs State of Punjab and others, 4. CWP-PIL No. 42 of 2018 (O&M) Ram Kumar Garg vs Union Territory, Chandigarh and another, 5. CWP No. 11564 of 2018 (O&M) Serving in Organisations for Legal Initiatives vs Union of India and others, a two Judge Bench of the Punjab and Haryana High Court comprising of Justice Rajiv Sharma and Justice Harinder Singh Sidhu on July 22, 2019 while disposing off these five writ petitions filed to curb excessive pollution in the States of Punjab, Haryana and Union Territory of Chandigarh has clearly prohibited the use of loudspeakers in the territory without prior permission from the authorities. Very rightly so! We all know the ill effects of loud speakers very well.

To start with, this latest, landmark and extremely laudable judgment authored by Justice Rajeev Sharma for himself and Justice Harinder Singh Sindhu begins to unfold its cards by first and foremost pointing out in para 1 that, “This order will dispose of aforesaid five writ petitions as common questions of law and facts are involved therein.”

To put things in perspective, it is then brought out in para 2 that, “This Court vide order dated 14.3.2019 had constituted a Committee headed by Shri M.L. Sarin, Senior Advocate/Amicus Curiae together with Shri Akshay Bhan and Ms. Reeta Kohli, Senior Advocates and Shri Pankaj Jain, Senior Standing Counsel, U.T. Chandigarh, Shri Deepak Balyan, Additional Advocate General, Haryana and Shri Shireesh Gupta, Senior Deputy Advocate General, Punjab.”

While specifying the purpose of this Committee, it is then spelt out in para 3 that, “The Committee was ordered to make suggestions to this Court for formulating a policy to be implemented in the States of Punjab, Haryana and Union Territory, Chandigarh, for effective implementation of the provisions of law to control noise pollution and decide other allied issues.”

While elaborating further, it is then spelt out in para 4 that, “The Committee had invited suggestions from the Committee Members and various stakeholders from various parts of the States of Punjab, Haryana and Union Territory, Chandigarh. The first meeting of the Committee was held on 24.4.2019. The second meeting was held on 12.5.2019. The Committee opined that there are adequate provisions of law to control the menace of noise pollution but what is lacking is its effective implementation. The following suggestions were given for effective implementation of the provisions of law:-

i) To make the prevention of noise pollution an integral part of the Swachh Bharat Mission.

ii) Sensitize people, both the officials and the general public, about the hazardous effects of noise pollution and its ill-effects on human beings, birds and animals as well as nature.

iii) Sensitize religious institutions, marriage palaces and other noise producing institutions about the adverse impact of noise pollution in the vicinity. In this respect highlighting the Hukamnama issued by Sri Akal Takhat Sahib on use of loudspeakers only within the precincts of a Gurudwara.

iv) This process of sensitizing the public should be done through an aggressive campaign of 4-6 months through pamphlets, posters, newspapers, electronic media, advertisements, messages through mobile operators, etc., especially by taking the Health Department of the three governments on board.

v) The press and the media should also be requested to highlight the adverse effects of noise pollution.

vi) The authorities responsible for implementing the laws have to be warned that it is their duty to implement the laws. In this respect, the Chief Secretaries/Advisor and the DGPs should be made responsible for implementation of the law and to ensure that the supporting authorities under the Rules perform their duties effectively.

vii) As an aid to discharging their functions, the authorities should be equipped with modern noise monitoring devices.

viii) Each religious institution should be asked to nominate a responsible person to ensure the implementation of the law and in case of any breach, should be held accountable.

ix) Places which produce noise regularly e.g. Religious institutions, marriage palaces, barred industrial units, etc. should have noise monitoring devices installed to prevent them going above the permissible limit.

b) Setting up a common hotline for Punjab, Haryana and the U.T. Chandigarh

i) After creating a common command for Chandigarh region i.e. including Chandigarh, Mohali and Panchkula, there should be a common helpline where complaints can be made which can further be sent to the concerned Authorities in their respective areas accessible on phone, Whatsapp or email. Single phone number of email ID should cater to whole of the territory and the same should be widely advertised and published on radios and in newspapers, electronic media, etc.

ii) That the Authorities must have in House Standard Operating Procedure clearly defining steps that are to be taken after a complaint is received specifying outer time limit within which those steps shall be completed, so that the complaint can be taken to its logical end.

iii) The identity of the complainant should be kept confidential.

iv) Record of the complaints made should be maintained by the responsible enforcing authority under the Rules.

c) Registering of Complaints

i) As the enforcement of the noise pollution laws have to be through the Chief Secretaries/DGP, the supporting enforcing authorities would send weekly reports of the complaints received and the action taken.

ii) If a complaint is made, the guilty party should be let-off the first time with a warning.

iii) For the second violation, action in accordance with the applicable rules should be taken.

iv) For a third successive violation not only the guilty party but the enforcing agency should be held guilty of Contempt of Court or would necessitate the registering of a First Information Report.

d) Places requiring permission/licence

i) In places in which a licence/prior permission is required for holding functions etc., an undertaking should be obtained from the applicant to comply with the rules governing levels of sound. In case of any breach, the licence/permission would stand automatically revoked and the person would be liable to be proceeded against.

ii) The enforcing authorities could resort to video-recording of the noise pollution complaint which can easily be done with a good mobile phone, if equipment recording the level of noise is also photographed simultaneously.

OR

A mobile application can be developed (as was done by the Election Commission of India during the 2019 Lok Sabha Election) whereby a photograph/video showing a violation can be sent to the enforcing authority and action needs to be taken within 60 minutes.

In addition each PCR van should be equipped with a Noise Monitoring Device or a Decibel Meter.

e) Regarding Chandigarh

i) Whenever community centers in Chandigarh are allowed to be used for marriages or other functions, a certain sum of money should be kept in deposit to ensure that there is no noise pollution. In case of breach, the money should be confiscated while in case of compliance it should be refunded.”

It would be imperative to now mention that the Punjab and Haryana High Court has made it known in no uncertain terms in para 14 that, “We have gone through the report submitted by the Committee. We agree with the suggestions/inputs made by the Committee. Since the States of Punjab and Haryana and Union Territory, Chandigarh have not filed their response, we are not left with any option but to dispose of the writ petitions after accepting the suggestions/inputs made by the Committee.”

What’s more, it is then also made clear in para 15 that, “The Governments of Punjab, Haryana and Union Territory, Chandigarh have not taken sufficient measures to check the noise pollution either emanating from the factories or by way of indiscriminate use of loudspeakers/amplifiers even by religious bodies, may be by Temples, Mosques and Gurudwaras.”

Interestingly enough, para 16 then envisages that, “The Central Government has framed the Noise Pollution (Regulations and Control) Rules, 2000. According to Rule 3, the ambient air quality standards in respect of noise for different areas/zones shall be such as specified in the schedule annexed to these Rules. The State Governments are required to categorize the areas into industrial, commercial, residential or silence areas/zones for the purpose of the implementation of noise standards for different areas. It is the prime responsibility of the State Government under Rule 3 (3) to take effective measures for abatement of noise including noise emanating from vehicular movements; blowing of horns, bursting of sound emitting fire crackers, use of loudspeakers or public address systems and sound producing instruments and to ensure that the existing noise levels do not exceed the ambient air quality standards specified under these Rules. According to Rule 4, the noise level in an y area/zone shall not exceed 10dB(A) above the ambient noise standards specified in the schedule. The authority shall be responsible for the enforcement of noise pollution. The “authority” is defined under Rule 2(c). Rule 5 being important is reproduced as under:-

“5. RESTRICTIONS ON THE USE OF LOUD SPEAKERS/PUBLIC ADDRESS SYSTEM AND SOUND PRODUCING INSTRUMENTS. –

(1) A loud speaker or a public address system shall not be used except after obtaining written permission from the authority.

(2) A loud speaker or a public address system or any sound producing instrument or a musical instrument or a sound amplifier shall not be used at night time except in closed premises for communication within, like auditoria, conference rooms, community halls, banquet halls or during a public emergency.

(3) Notwithstanding anything contained in sub-rule (2), the State Government may subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or [public address systems and the like during night hours] (between 10:00 p.m. to 12:00 midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year] [The concerned State Government shall generally specify in advance, the number and particulars of the days on which such exemption would be operative.]

(4) The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10dB(A) above the ambient noise standards for the area or 75dB(A) whichever is lower.

(5) The peripheral noise level of a privately owned sound system or a sound producing instrument shall not, at the boundary of the private place, exceed by more than 5dB(A) the ambient noise standards specified for the area in which it is used.

5A. RESTRICTIONS ON THE USE OF HORNS, SOUND EMITTING CONSTRUCTION EQUIPMENTS AND BURSTING OF FINE CRACKERS.-

(1) No horn shall be used in silence zones or during night time in residential areas except during a public emergency.

(2) Sound emitting fire crackers shall not be burst in silence zone or during night time.

(3) Sound emitting construction equipments shall not be used or operated during night time in residential areas and silence zones”.”

Needless to say, it is then stated in para 17 that, “According to plain reading of Rule 5, a loudspeaker or a public address system cannot be used except after obtaining written permission from the authority. The loudspeaker or any sound producing instrument or a musical instrument or a sound amplifier cannot be used at night time except in closed premises for communication within, like auditoria, conference rooms, community halls, Banquet halls etc. The State Government may subject to such terms and conditions as are necessary to reduce the noise pollution, permit use of loudspeakers or public address systems and like during night hours between 10.00 p.m. to 12.00 midnight on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year. The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used cannot exceed 10dB(A) above the ambient noise standards.”

While pooh-poohing the lack of strict implementation of rules, it is then held in para 18 that, “The Governments of Punjab, Haryana and Union Territory, Chandigarh have not enforced the provisions of Rules 3, 4 and 5 effectively. The loudspeakers keep on blaring even beyond 12.00 midnight. The loudspeakers keep on blaring even beyond 12.00 midnight. The loudspeaker cannot be permitted to be used without the written permission from the authority even by the Temples, Mosques and Gurudwaras. It is only for limited period of festival and special occasions that for 15 days, the permission can be granted to use the loudspeakers and public address system between 10.00 p.m. to 12.00 midnight. The indiscriminate use of loudspeaker or amplifier or musical instrument causes annoyance, disturbance and discomfort. It disturbs the sleeping pattern of the patients. The study of the students is also adversely affected.”

More worryingly, it is then observed in para 22 that, “The glorification of violence has given rise to culture of gangsters in the States of Punjab, Haryana and Union Territory, Chandigarh.” Violence under no circumstances can ever be justified. Justification of violence under any circumstances only serves in contributing further to bring about more lawlessness and the culture of gangsters gets further promoted! How can this be ever justified?

Not stopping here, it is then further added in para 23 that, “The Court can also take judicial notice of the fact that glorification of the liquor, wine, drugs and violence in the songs in the States of Punjab, Haryana and Union Territory, Chandigarh, has increased in recent times. These songs affect the children of impressionable age. The children below the age of 12 years are not to be permitted to enter cinema halls/multiplexes, where “A” certificate films are screened. Semi-nude film posters are vulgar and display nudity. There is indecent representation of women, which is derogatory to women.”

Be it noted, it is then underscored in para 24 that, “As far as the frequent deaths and injuries caused by the persons using fire arms in marriage/religious processions/social gatherings/public/political rallies, this tendency is required to be curbed.”

Suffice it to say, para 26 then holds that, “It is thus evident that the fire-arms can be permitted to be carried for the purpose of sport/self-protection/protection of crops and cattle/display. The fire-arms are not permitted to be carried in a fair, religious procession or other public assemblage or within the campus or precincts of any educational institution.”

To say the least, while sounding a note of caution, it is then observed in para 27 that, “The licence for fire-arms is issued only for limited purposes. No person has a fundamental right to hold fire-arms. The State has absolute right to regulate acquisition and use of arms by laying down the norms.”

Finally and perhaps most significantly, it is then held in para 28 that, “Accordingly, the writ petitions are disposed of with the following mandatory directions:-

i) The States of Punjab, Haryana and Union Territory, Chandigarh are directed to ensure that no loudspeaker or public address system shall be used by any person including religious bodies in Temples, Mosques and Gurudwaras without written permission of the authority even during day time, that too, by getting an undertaking that the noise level shall not exceed more than 10dB(A) peripheral noise level.

ii) The States of Punjab, Haryana and Union Territory, Chandigarh are directed to ensure that the loudspeaker, public address system, musical instrument and sound amplifier are not played during night time except in auditoria, conference rooms, community halls, banquet halls as per norms laid down under the Noise Pollution (Regulation and Control) Rules, 2000.

iii) The States of Punjab, Haryana and Union Territory, Chandigarh are directed to ensure that loud speakers or public address systems are not used between 10.00 p.m. to 6.00 a.m., except between 10.00 p.m. to 12.00 midnight during any cultural or religious festive occasion of a limited duration not exceeding 15 days in all during a calendar year, that too, the noise level shall not exceed 10dB(A) above the ambient noise standards for the area. The peripheral noise level of a privately owned sound system or a sound producing instrument shall not, at the boundary of the private place, exceed by more than 5dB(A). The authority concerned shall keep on visiting and monitoring at the public places, private places, auditoriums, conference rooms, community halls, conference rooms, community halls, banquet halls, temples, mosques and Gurudwaras to ensure due compliance of the Rules.

iv) We direct all the Senior Superintendents of Police/Superintendents of Police in the States of Punjab, Haryana and Union Territory, Chandigarh to ensure that no horn shall be blown in silence zone or during the night time between 10.00 p.m. to 06.00 a.m. in residential areas except during public emergency. No sound emitting construction equipments shall be used or operated during the night time between 10.00 p.m. to 06.00 a.m. in residential areas or silence zone. The pressure horns are banned throughout the States of Punjab, Haryana and Union Territory, Chandigarh. The violators of the Rules be penalized under the Rule 6 of the Noise Pollution (Regulation and Control) Rules, 2000.

v) All the Senior Superintendents of Police/Superintendent of Police and Deputy Superintendent of Police in the States of Punjab, Haryana and Union Territory, Chandigarh are directed to ensure that motorcycles throughout the States of Punjab, Haryana and Union Territory, Chandigarh are duly fitted with silencers to avoid noise pollution and menace.

vi) No person, throughout the States of Punjab, Haryana and Union Territory, Chandigarh, shall carry any fire-arm to a fair, religious procession/marriage procession or other public assemblage or within the campus or precincts of any educational institution.

vii) The Licensing Authorities are also directed to ensure that no licence is issued to any person, who has not completed the age of 21 years.

viii) No licence shall be issued to a person who has been sentenced on conviction of any offence involving violence or moral turpitude to imprisonment for [any term] at any time during a period of five years.

ix) No licence shall be issued to a person who has been ordered to execute under Chapter VIII of the [Code of Criminal Procedure, 1973 (2 of 1974)], a bond for keeping the peace or for good behaviour, during the term of the bond.

x) The Director General of Police in the States of Punjab, Haryana and Union Territory, Chandigarh, are directed to ensure that no songs are played glorifying the liquor, wine, drugs and violence in any song even in live shows.

xi) The States of Punjab, Haryana and Union Territory, Chandigarh are also directed that no child below the age of 12 years is permitted to enter cinema halls/multiplexes, where “A” certificate films are screened.

xii) The District Administration is directed to ensure that nude posters, semi-nude posters, obscene posters should not be fixed/displayed in any district near the educational institutions in the States of Punjab, Haryana and Union Territory, Chandigarh.

xiii) The Deputy Commissioners in the States of Punjab, Haryana and Union Territory, Chandigarh are directed to ensure that no loudspeakers are permitted 15 days before the annual examinations and during the course of examinations.

xiv) The recommendations made by the Committee constituted by this Court are ordered to be implemented in letter and spirit for proper enforcement of law.

xv) The District Magistrates/Senior Superintendents of Police/Superintendents of Police of each district shall be personally responsible to ensure due compliance of the directions issued hereinabove.”

Before parting, the Punjab and Haryana High Court Bench comprising of Justice Rajiv Sharma and Justice Harinder Singh Sidhu observed in para 29 that, “We place on record our appreciation for the valuable assistance rendered by the Committee” and then finally in para 30 that, “A copy of this order be sent to the Chief Secretaries of the States of Punjab, Haryana and Home Secretary, Union Territory, Chandigarh, for compliance.”

All in all, it is a very well written judgment which demonstrates zero tolerance for noise pollution. It ably issues a series of mandatory directions to ensure that noise pollution is contained to a large extent. There can be no denying or disputing that this latest, landmark and extremely laudable judgment by the Punjab and Haryana High Court deserves to be implemented in letter and spirit and all the High Courts must emulate this landmark judgment to ensure that noise pollution is contained to a large extent! It also leaves no room for doubt in holding very rightly that those songs which glorify violence must be banned in public events!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.