High Courts not to issue directions akin to policy-framing: Supreme Court

In a recent decision the Supreme Court has set aside an order passed by the Allahabad High Court "since the High Court has travelled much beyond the lis to issue directions which" in its view "it could not have". In its decision in State of Uttar Pradesh v. Subhash Chandra Jaiswal [Civil Appeal No. 11381/2016 decision dated 29.11.2016] the Supreme Court notes that "it is expected that the High Courts while dealing with the lis are expected to focus on the process of adjudication and decide the matter". According to it, "the High Court should have been well advised to restrict the adjudicatory process that pertained to the controversy that was before it." The Court observed;

"11. Having noted the aforesaid submissions, it is necessary to state that it is expected that the High Courts while dealing with the lis are expected to focus on the process of adjudication and decide the matter. The concept, what is thought of or experienced cannot be ingrained or engrafted into an order solely because such a thought has struck the adjudicator. It must flow from the factual base and based on law. To elaborate, there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner. To say the least, some of the directions issued are not permissible and all of them are totally unrelated to the case before the High Court. We are constrained to say that the High Court should have been well advised to restrict the adjudicatory process that pertained to the controversy that was before it."

Noting its observations in earlier cases, the Supreme Court went on to lay certain parameters to be observed by the High Court judges while dealing with crucial aspects which make inroads in the functions and ambit of the executive and legislative operations in the following terms;

"17. A Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law.

...

23. Some of the directions, as we perceive, are in the sphere of policy. A court cannot take steps for framing a policy. As is evincible, the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. Be it stated, the directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country. ..."

...

24. ... Thus anlaysed, we are of the convinced opinion that the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it. Additionally, the High Court should have reminded itself that it cannot enter into the domain where amendment to legislations and other regulations are necessary. We are absolutely conscious that it is the duty of the State Government to discharge its obligations in the matters relating to law and order and remain alert to the issues that emerge. It has a duty also to see that the investigations are speedily completed in an appropriate manner. If there is a failure of law and order situation, the executive is to be blamed. In the maintenance of law and order situation the judicial officers are not to be involved. But the executive has to remain absolutely alive to its duties and we are sure, the State Government shall look into the aspects and endeavour to see that appropriate steps are taken to maintain the law and order situation.

25. A few words by way of clarification. Though we have not appreciated the opinion expressed and the directions issued by the High Court as the opinions are general in nature and directions fall in the legislative domain and some of them are beyond the scope of the litigation, yet we have observed certain aspects in the preceding paragraph. Our observations made hereinabove are words of caution for the State and we are sure that the State shall remain alive to its obligations."

However, before concluding on the subject, we feel that it is pertinent to point out the background in which the High Court felt compelled to issue the 'directions' as the Supreme Court opines them to be. The High Court was dealing with a case related to forgery being committed by some to obtain excise licences for sale of liquor in the State. Considering the material before it the High Court opined that even though investigation was carried out by the police officers, it was wanting in many respects. The High Court had sought an explanation from senior police functionaries who admitted to the lapse but attributed it to the fact that the investigation officers "remained busy carrying on other duties which resulted in getting less time for investigation purposes". As a fact it was pointed out that "in Allahabad district about 250 officers were conducting investigation for more than 11000 offences registered". The High Court opined that these aspects reflect "a very sorry state of affairs of maintenance of law and order in the State and paints a grim picture in which State is functioning, ignoring one of the most important aspects of administration, i.e., public safety, security and maintenance of law and order" and accordingly proceeded certain directions as in its view "time has come where State should be asked to show its real sincerity required in the field not only for effective registration of cognizable offences but also proper and well studied investigation and effective prosecution to ensure appropriate punishment to guilty persons."

Accordingly the High Court, directed the senior police officers to "consider" over certain aspects which in the view of the High Court could remedy these issues. The High Court required these officers to consider separation of "investigation of crime and prosecution" "from normal policing or prevention of crime and other works, by constituting separate specialized cadre managed by officials well trained in respective fields"; etc. In other words the directions of the High Court were not for the police officials to abide by but to consider them and if found appropriate, to engulf them in the State police machinery in the form of reform. The observations of the High Court were only in the context of proposals to be examined by the State Government and yet the Supreme Court concludes that these were in the nature of directions which the High Court should not have issued. In our view there seems to be an appraisal by the Supreme Court that the police officials considered bound by these observations of the High Court irrespective of the High Court itself termed them as proposals and it was in this perceived nature of the High Court's observations that the Supreme Could termed as as directions. While the appellate powers of the Supreme Court and its ability to modify or reverse any order of the High Court is undoubted, the Supreme Court instead of setting aside the High Court could also have resolved the State's appeal by merely clarifying that the observations of the High Court were in the nature of proposals and the State Government was not bound to treat them as directions. 

Nonetheless, as things stand, the Supreme Court has set aside the High Court's order and directed all High Courts to confine their powers to adjudicating the lis and not go beyond. This could be a significant change in legal landscape in particularly so that the powers of the High Court in writ jurisdiction may come under scanner in the wake of the observations made in this decision of the Supreme Court.

Criminal Sentences - Concurrent or Consequentive ?

When a person commits more than one offences, should he be punished once or more than once is the question which came up before the Supreme Court recently. It was found that there was a difference of opinion arising from earlier decisions of the Court. Accordingly a larger bench of five judges of the Supreme Court recently took up the issue to decide it with finality. 

In its decision in Muthuramalingam v. State [Criminal Appeals No. 231-233/2009] the Supreme Court put the issue in perspective thus: "Whether consecutive life sentences can be awarded to a convict on being found guilty of a series of murders for which he has been tried in a single trial?" It is important to note the factual background in which this question arose. It was noted in the decision in the following terms;

"3. The appellants were tried for several offences including an offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “the IPC”) for several murders allegedly committed by them in a single incident. They were found guilty and sentenced to suffer varying sentences, including a sentence of imprisonment for life for each one of the murders committed by them. What is important is that the sentence of imprisonment for life for each one of the murders was directed to run consecutively. The result was that the appellants were to undergo consecutive life sentences ranging between two to eight such sentences depending upon the number of murders committed by them. Criminal appeals preferred against the conviction and the award of consecutive life sentences having failed, the appellants have filed the present appeals to assail the judgments and orders passed by the courts below."

The reason for this debate arises in view of the discretion cast upon the criminal court regarding sequencing the sentences under Section 31 of the Code of Criminal Procedure. The said provision, in as much as it formed the subject-matter of consideration by the Supreme Court, is reproduced for ease of reference;

“31. Sentences in cases of conviction of several offences at one trial.
(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: 

Provided that-
(a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.” 

The five-judge bench of the Supreme Court delineated the legal position in the following terms;

"17. The legal position is, thus, fairly well settled that imprisonment for life is a sentence for the remainder of the life of the offender unless of course the remaining sentence is commuted or remitted by the competent authority. That being so, the provisions of Section 31 under Cr.P.C. must be so interpreted as to be consistent with the basic tenet that a life sentence requires the prisoner to spend the rest of his life in prison. Any direction that requires the offender to undergo imprisonment for life twice over would be anomalous and irrational for it will disregard the fact that humans like all other living beings have but one life to live. So understood Section 31 (1) would permit consecutive running of sentences only if such sentences do not happen to be life sentences. That is, in our opinion, the only way one can avoid an obvious impossibility of a prisoner serving two consecutive life sentences.
...
20. ... In the cases at hand, the appellants were not convicts undergoing life sentence at the time of commission of multiple murders by them. Their cases, therefore, fall more appropriately under Section 31 of the Code which deals with conviction of several offences at one trial. Section 31(1) deals with and empowers the Court to award, subject to the provisions of Section 71 of the IPC, several punishments prescribed for such offences and mandates that such punishments when consisting of imprisonment shall commence one after the expiration of the other in such order as the Court may direct unless the Court directs such punishments shall run concurrently. The power to award suitable sentences for several offences committed by the offenders is not and cannot be disputed. The order in which such sentences shall run can also be stipulated by the Court awarding such sentences. So also the Court is competent in its discretion to direct that punishment awarded shall run concurrently not consecutively. The question, however, is whether the provision admits of more than one life sentences running consecutively. That question can be answered on a logical basis only if one accepts the truism that humans have one life and the sentence of life imprisonment once awarded would require the prisoner to spend the remainder of his life in jail unless the sentence is commuted or remitted by the competent authority. That, in our opinion, happens to be the logic behind Section 427 (2) of the Cr.P.C. mandating that if a prisoner already undergoing life sentence is sentenced to another imprisonment for life for a subsequent offence committed by him, the two sentences so awarded shall run concurrently and not consecutively. Section 427 (2) in that way carves out an exception to the general rule recognised in Section 427 (1) that sentences awarded upon conviction for a subsequent offence shall run consecutively. The Parliament, it manifests from the provisions of Section 427 (2), was fully cognizant of the anomaly that would arise if a prisoner condemned to undergo life imprisonment is directed to do so twice over. It has, therefore, carved out an exception to the general rule to clearly recognise that in the case of life sentences for two distinct offences separately tried and held proved the sentences cannot be directed to run consecutively. The provisions of Section 427 (2) apart, in Ranjit Singh’s case (supra), this Court has in terms held that since life sentence implies imprisonment for the remainder of the life of the convict, consecutive life sentences cannot be awarded as humans have only one life. That logic, in our view, must extend to Section 31 of the Cr.P.C. also no matter Section 31 does not in terms make a provision analogous to Section 427 (2) of the Code. The provision must, in our opinion, be so interpreted as to prevent any anomaly or irrationality. So interpreted Section 31 (1) must mean that sentences awarded by the Court for several offences committed by the prisoner shall run consecutively (unless the Court directs otherwise) except where such sentences include imprisonment for life which can and must run concurrently. We are also inclined to hold that if more than one life sentences are awarded to the prisoner, the same would get super imposed over each other. This will imply that in case the prisoner is granted the benefit of any remission or commutation qua one such sentence, the benefit of such remission would not ipso facto extend to the other.

...
25. While we have no doubt about the correctness of the proposition that two life sentences cannot be directed to run consecutively, we do not think that the reason for saying so lies in the proviso to Section 31 (2). Section 31(2) of the Cr.P.C. deals with situations where the Court awarding consecutive sentences is not competent to award the aggregate of the punishment for the several offences for which the prisoner is being sentenced upon conviction. A careful reading of sub-Section (2) would show that the same is concerned only with situations where the Courts awarding the sentence and directing the same to run consecutively is not competent to award the aggregate of the punishment upon conviction for a single offence. The proviso further stipulates that in cases falling under sub-section (2), the sentence shall in no case go beyond 14 years and the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to award. Now in cases tried by the Sessions Court, there is no limitation as to the Court’s power to award any punishment sanctioned by law including the capital punishment. Sub-section (2) will, therefore, have no application to a case tried by the Sessions Court nor would Sub-section (2) step in to forbid a direction for consecutive running of sentences awardable by the Court of Session."

Having undertaken the legal analysis as above, the five-judge bench of the Supreme Court concluded the legal position in the following terms;

"31. In conclusion our answer to the question is in the negative. We hold that while multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run consecutively. Such sentences would, however, be super imposed over each other so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other. 

32. We may, while parting, deal with yet another dimension of this case argued before us namely whether the Court can direct life sentence and term sentences to run consecutively. That aspect was argued keeping in view the fact that the appellants have been sentenced to imprisonment for different terms apart from being awarded imprisonment for life. The Trial Court’s direction affirmed by the High Court is that the said term sentences shall run consecutively. It was contended on behalf of the appellants that even this part of the direction is not legally sound, for once the prisoner is sentenced to undergo imprisonment for life, the term sentence awarded to him must run concurrently. We do not, however, think so. The power of the Court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 of the Cr.P.C. The Court can, therefore, legitimately direct that the prisoner shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31. The converse however may not be true for if the Court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence. Whether or not the direction of the Court below calls for any modification or alteration is a matter with which we are not concerned. The Regular Bench hearing the appeals would be free to deal with that aspect of the matter having regard to what we have said in the foregoing paragraphs."

Defamation rightly a crime in India: Supreme Court

Upholding the constitutional validity of provisions criminalizing defamation in India, the Supreme Court in a recent decision has upheld the need for the crime considering the social ethos and the constitutional position of "right of reputation" of individuals. 

Rejecting a number of petitions filed by renowned political figures (including Rahul Gandhi and Arvind Kejriwal), the Supreme Court in its decision in Subramanian Swamy v. Union of India, Writ Petition [Criminal] No. 184/2014] dated 13.05.2016 has accepted the Government's position that the criminal provisions are in the nature of "reasonable restrictions" and are "pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social order ..."

Before adverting to the conclusion of the Supreme Court in detail, it is critical to note some of the submissions of the Attorney General of India whose arguments may well reflect the Government's position on a number of aspects;

• "freedom of speech as a right cannot be understood in isolation". On such premise, therefore, "it cannot be said that there is an unbridled right to free, much less defamatory speech"
• "criminalization of defamation or damage to reputation is meant to subserve basic harmony in polity"
• "right to reputation" is a constitutionally protected fundamental right and "A person’s reputation is an inseparable element of an individual’s personality and it cannot be allowed to be tarnished in the name of right to freedom of speech and expression because right to free speech does not mean right to offend."
• "It is a misconception that injury to reputation can adequately be compensated in monetary terms. Reputation which encapsules self-respect, honour and dignity can never be compensated in terms of money."

The Supreme Court also took note of the submissions, albeit in great detail, made by other parties. 

On the role and position of a right to 'reputation' as central to an individual's identity and rights, the Supreme Court quoted Bhagawad Gita, Holi Quran, Holy Bible, William Shakespeare, Socrates, Aristotle, international covenants, etc. as they collectively "reflect the purpose and concern and recognize reputation as an inseparable right of an individual". In essence, the Supreme Court concluded that these covenants, 

"explicate that the individual honour and reputation is of great value to human existence being attached to dignity and all constitute an inalienable part of a complete human being. To put it differently, sans these values, no person or individual can conceive the idea of a real person, for absence of these aspects in life makes a person a non-person and an individual to be an entity only in existence perceived without individuality." [para 32]

The Supreme Court thereafter referred the various decisions of English, Canadian, South African courts, ECHR, and its own earlier decisions on the subject to declare that right to reputation constituted a fundamental right protected under Article 21 of the Constitution of India in the following terms;

"... It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the downtrodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented, and it is perceived as an honour rather than popularity." [para 50]

The Supreme Court thereafter explained the rationale for criminalization of an act so as to lay down the test for examining the validity of the criminal provisions relating to defamation. It opined as under;

"82. The concept of crime is essentially concerned with social order. It is well known that man’s interests are best protected as a member of the community. Everyone owes certain duties to his fellow-men and at the same time has certain rights and privileges which he expects others to ensure for him. This sense of mutual respect and trust for the rights of others regulates the conduct of the members of society inter-se. Although most people believe in the principle of ‘live and let live’, yet there are a few who, for some reason or the other, deviate from this normal behavioural pattern and associate themselves with anti-social elements. This obviously imposes an obligation on the State to maintain normalcy in the society. This arduous task of protecting the law abiding citizens and punishing the law breakers vests with the State which performs it through the instrumentality of law. It is for this reason that Salmond has defined law as a ‘rule of action’ regulating the conduct of individuals in society. The conducts which are prohibited by the law in force at a given time and place are known as wrongful acts or crimes, whereas those which are permissible under the law are treated as lawful. The wrongdoer committing crime is punished for his guilt under the law of crime."

In this background, the concluded on the following legal position, rejecting the challenge in the petitions, inter alia in the following terms;

"88. From the aforesaid discussion, it is plain as day that the contention that the criminal offence meant to subserve the right of inter se private individuals but not any public or collective interest in totality is sans substance. ...

89. We have referred to this facet only to show that the submission so astutely canvassed by the learned counsel for the petitioners that treating defamation as a criminal offence can have no public interest and thereby it does not serve any social interest or collective value is sans substratum. We may hasten to clarify that creation of an offence may be for some different reason declared unconstitutional but it cannot be stated that the legislature cannot have a law to constitute an act or omission done by a person against the other as a crime. It depends on the legislative wisdom. Needless to say, such wisdom has to be in accord with constitutional wisdom and pass the test of constitutional challenge. If the law enacted is inconsistent with the constitutional provisions, it is the duty of the Court to test the law on the touchstone of Constitution."

The Court did not stop the analysis here. It went on to examine the scope of freedom of speech and expression, as another guaranteed fundamental right and thereafter undertook a balancing act between one individual's right to speech and another individual's right to reputation to opine as under;

"140. We are in respectful agreement with the aforesaid enunciation of law. Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognized and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. “Reputation” of one cannot be allowed to be crucified at the altar of the other’s right of free speech. The legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate. ...

...

149. ... Criticism and commentary on policies, enactments or opinions do not remotely constitute defamation. Disapproval is not defamation. The argument ignores the scope and ambit of the contours of what is criminal defamation. Bearing in mind the factual scenario, the Court has discussed about balancing of freedom of expression and “special interest”. The Court was not concerned with balancing of Article 19(1)(a) and the facet of Article 21 of the Constitution. Therefore, in the ultimate conclusion, we come to hold that applying the doctrine of balancing of fundamental rights, existence of defamation as a criminal offence is not beyond the boundary of Article 19(2) of the Constitution, especially when the word “defamation” has been used in the Constitution.

...

163. We have referred to two concepts, namely, constitutional fraternity and the fundamental duty, as they constitute core constitutional values. Respect for the dignity of another is a constitutional norm. It would not amount to an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in fundamental duty proclaim the constitutional assurance of mutual respect and concern for each other's dignity. The individual interest of each individual serves the collective interest and correspondingly the collective interest enhances the individual excellence. Action against the State is different than an action taken by one citizen against the other. The constitutional value helps in structuring the individual as well as the community interest. Individual interest is strongly established when constitutional values are respected. The Preamble balances different and divergent rights. Keeping in view the constitutional value, the legislature has not repealed Section 499 and kept the same alive as a criminal offence. The studied analysis from various spectrums, it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression. As a prescription, it neither invites the frown of any of the Articles of the Constitution nor its very existence can be regarded as an unreasonable restriction."

This judgment is a very interesting appraisal on the positioning and status of various fundamental rights as also positioning of an individual's right in the larger social order. A must read for any student of constitutional law. 

Sedetion or Freedom of Speech: Delhi High Court ponders

"Spring season is a time when nature becomes green and flower blooms in all colours. This spring why the colour of peace is eluding the prestigious Jawaharlal Nehru University (JNU) situated in the heart of Delhi needs to be answered by its students, faculty members and those managing the affairs of this national university." This is how the Delhi High Court in its order has addressed the recent controversy surrounding the arrest of student leader of JNU while examining his request for bail.

In its order in Kanhaiya Kumar v. State of NCT of Delhi Writ Petition (Criminal) No. 558/2016 [decision dated 02.03.2016] the Delhi High Court noted that the student leader asserted "his fundamental rights guaranteed under Article 19(1)(a) of the Constitution of India on the ground that the utterances (speech or slogans) attributable to him cannot be termed to be in violation of any law and as such he has not committed any offence". The High Court thereafter reproduced the allegedly seditious comments / statements made at the event and also reproduced colour photographs of the event which led to his arrest.

The Delhi High Court judge concedes that in the factual background of the case she finds herself "standing on a crossroad" [para 38]. It is further held that while as a student leader one is "expected to be responsible and accountable for any anti-national event organised in the campus", the facts reveal that it "is a case of raising anti-national slogans which do have the effect of threatening national integrity" [para 40]. Nonetheless it student leader is reminded that "persons enjoy the freedom to raise such slogans in the comfort of University Campus but without realising that they are in this safe environment because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even" and the "kind of slogans raised may have demoralizing effect on the family of those martyrs who returned home in coffin draped in tricolor".

The High Court expressed its opinion on the above, in the following terms;

"39. As President of Jawaharlal Nehru University Students Union, the petitioner was expected to be responsible and accountable for any anti-national event organised in the campus. Freedom of speech guaranteed to the citizens of this country under the Constitution of India has enough room for every citizen to follow his own ideology or political affiliation within the framework of our Constitution. While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces. Our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch.

... 

41. Suffice it to note that such persons enjoy the freedom to raise such slogans in the comfort of University Campus but without realising that they are in this safe environment because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even.

42. The kind of slogans raised may have demoralizing effect on the family of those martyrs who returned home in coffin draped in tricolor.

43. The petitioner claims his right regarding freedom of speech and expression guaranteed in Part-III under Article 19(1)(a) of Constitution of India. He has also to be reminded that under Part-IV under Article 51A of Constitution of India fundamental duties of every citizen have been specified alongwith the fact that rights and duties are two sides of the same coin.

44. The petitioner belongs to an intellectual class pursuing Ph.d. from International School of Studies, Jawaharlal Nehru University, which is considered as hub of intellectuals. He may have any political affiliation or ideology. He has every right to pursue that but it can be only within the framework of our Constitution. India is a living example of unity in diversity. Freedom of expression enjoyed by every citizen can be subjected to reasonable restrictions under Article 19(2) of our Constitution. The feelings or the protest reflected in the slogans needs introspection by the student community whose photographs are available on record holding posters carrying photographs of Afzal Guru and Maqbool Bhatt."

The High Court has sternly advised the JNU administration to ensure that the infection is not spread further. On such lines the High Court has observed as under;

"45. The faculty of JNU also has to play its role in guiding them to the right path so that they can contribute to the growth of the nation and to achieve the object and vision for which Jawaharlal Nehru University was established.

46. The reason behind anti-national views in the mind of students who raised slogans on the death anniversary of Afzal Guru, who was convicted for attack on our Parliament, which led to this situation have not only to be found by them but remedial steps are also required to be taken in this regard by those managing the affairs of the JNU so that there is no recurrence of such incident.

47. The investigation in this case is at nascent stage. The thoughts reflected in the slogans raised by some of the students of JNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression. I consider this as a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic.

48. Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally and if that does not work, by following second line of treatment. Sometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment."

In all, the High Court has brought out its views on the state-of-affairs and it is not just the students, JNU administration but the nation at large which has to revisit its standing on the right to criticize (as a part of freedom of speech) versus its outlook on national integrity. More importantly our political leaders must introspect, before they decide to endorse one view over other, that may be affirming growth of a Frankenstein as the High Court indirectly observes.

National Herald Case - Delhi High Court decision

A recent decision of the Delhi High Court has created quiet a storm in country, particularly among the political circles. This decision dismissed the petition [filed under Section 482 of Code of Criminal Procedure] filed by senior Congress party officials. The petition was filed against an order passed by the Criminal Court directing proceedings to be initiated in a criminal case alleging cheating on the part of these officials. 

The High Court has essentially held that, on a prima facie basis, the order of the Criminal Court is essentially based on documentations relevant for such direction and therefore there is no reason for the High Court to exercise its discretion and extraordinary power to quash the proceeding initiated by the Criminal Court. For the benefit of our readers we have uploaded the decision of the High Court. 

While the decision of the High Court is largely on discussion of facts and the legal position relating to discretion being exercised in such cases by the High Court, we have sought to cull out some of the excepts relevant to the national polity and in general relating to corruption, which are as under;

"1. Probity of a legendary National Political Party is under scanner in these petitions. This case is one of its own kind. The complainant claims to be a public spirited person, who wishes to expose cheating, criminal breach of trust and criminal misappropriation in high places with a view to protect general public interest. In an attempt to do so, recourse to criminal law is sought to be made. The complainant, who is a respondent herein, is a Parliamentarian, who claims to have been a Member of Parliament for five times and his credentials are highlighted in the impugned order. The respondent-complainant claims to be champion in leading crusade against corruption. This time, he has sought to expose cheating, fraud, criminal misappropriation, etc., by Office Bearers of the Congress Party who also happen to be the members of a Private Company-Young Indian Private Company (hereinafter referred to as Y.I.) and major shareholders of Associated Journals Private Limited (hereinafter referred to as AJL), which was engaged in publishing of newspapers including National Herald, etc..

…

28. The respective stand taken by both the sides needs to be considered in view of the fact that in a democratic set up, how a Political Party of national stature acts is everybody’s concern. Rather, it is a matter of serious concern as allegations of fraud, etc. are levelled against the Congress Party, who has ruled the Nation for many decades. Precisely, it is the act of Office Bearers of Congress Party and their associates which is under scanner in this case.

…

31. In the instant case, it cannot be disputed that the Office Bearers of the Congress Party are the trustees of the funds belonging to the Party. No doubt, a Political Party can have income from other sources as well and can invest money in mutual funds, etc., to augment its resources. However, it has to be kept in mind that the allegations against the Office Bearers of the Congress Party are of siphoning off the party funds in a clandestine manner. The impropriety of extending interest free loans to a separate legal entity i.e. AJL, which is a Public Limited Company, by the Congress Party is a matter of concern in a democratic set up, particularly, when the source of Congress Party’s fund is largely from donations given by public and so, any citizen can legitimately question the siphoning off funds by Political Party. What crops up in the mind of a prudent person is as to where was the need of extending interest free loans to a Public Limited Company engaged in a commercial venture of publishing newspapers.

32. Considering the fact that AJL has sizeable assets of `2000 crores, it needs to be explained by petitioners as to what was the need to assign the huge debt of `90 crores when this debt could have been easily liquidated by AJL from its sizeable assets. Even writing off such a huge debt by the Congress Party can legitimately attract allegations of cheating, fraud, etc.. Petitioners had gone step further in conspiring to get this huge debt assigned to a Special Purpose Vehicle i.e. Y.I. and thereafter, to hijack AJL via Y.I.. Such grave allegations levelled against petitioners cannot be brushed aside lightly by relying upon judicial precedents cited, to conclude that the ingredients of the criminal offences alleged are lacking. To say the least, to do so would be preposterous. Such a prima facie view is being taken in view of the fact that the assignment of the huge debt by Congress Party to Y.I. was for a paltry sum of `50 lacs. This is certainly questionable and justifiably attracts the allegations of cheating, misappropriation, criminal breach of trust, etc.. Such a view is being taken as it needs to be explained before the trial court as to how the net worth of AJL can be negative when it has assets worth crores of rupees. It also crops up in the mind of a prudent person as to why interest free loan was assigned and why it was not written off. In any case, writing off such a huge debt by a legendry Political Party is indeed questionable. Instead of adopting such a questionable course, what was done by the Congress Party is more questionable. It also needs to be answered as to why the genuine shareholders were marginalized in the Extraordinary General Meeting, which was attended by just seven shareholders. Such a questionable conduct of petitioners certainly invites allegations of committing the offences for which petitioners have been summoned. Is it not criminal misappropriation of Congress Party’s funds? This aspect needs to be addressed after respondent-complainant is cross-examined at the pre-charge stage. It also needs to be examined at pre-charge stage as to whether lacs of citizens who had donated to the Congress Party felt cheated by assignment of such a huge debt to Y.I. who was managed by none others than petitioners, who were Office Bearers of Congress Party as well as Directors of Y.I.. Not only this, the main persons, who were instrumental in allegedly siphoning off political funds were the recipients of the assignment of the huge debt by the Congress Party and they were the same persons, who had clandestinely acquired the control of AJL. All this smacks of criminality. What species of criminal offence is made out is not required to be seen at this initial stage.

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38. This Court is of the considered view that the gravity of the allegations levelled against petitioners has a fraudulent flavour involving a national Political Party and so, serious imputations smacking of criminality levelled against petitioners need to be properly looked into."

Have a look at the decision.

No conviction in absense of Counsel for accused: Supreme Court

Setting aside the order of the High Court, the Supreme Court in a recent decision [Md. Sukar Ali v. State of Assam] has declared that no trial of an accused can take place in the absense of a counsel for the accused. Holding that in such circumstances it was obligatory on the part of the Court to provide an amicus curie in the form of a lawyer practising in criminal law, the Supreme Court held that such right to have a lawyer was a fundamental one and deeply rooted in the constitutional ethos of the country.

The Court, on this aspect, made inter alia the following observations;

We have also heard Mr. Fali S. Nariman, learned senior counsel, who very kindly consented to assist us as Amicus Curiae in this case in which an important constitutional and legal question is involved.

That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused ? In the present case, it appears that Criminal Appeal 137 of 2003 was decided by the Gauhati High Court on 01.06.2010 in the absence of the counsel for the appellant accused and the conviction was upheld.

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We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.

In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell Vs. Alabama, 287 US 45 (1932), in which it was observed :-

“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”. 

The above decision of the US Supreme Court was cited with approval by this Court in A.S. Mohammed Rafi Vs. State of Tamil Nadu & Ors., AIR 2011 Supreme Court 308, vide para 24.

A similar view which we are taking here was also taken by this Court in Man Singh & Anr. Vs. State of Madhya Pradesh (2008) 9 SCC 542, and in Bapu Limbaji Kamble Vs. State of Maharashtra, (2005) 11 SC 412. In this connection we may also refer to Articles 21 and 22(1) of the Constitution. Articles 21 and Articles 22(1) are as under:-

“Article 21. Protection of life and personal liberty. – No person shall be deprived of his life or personal liberty except according to procedure established by law”.

Article 22(1). Protection against arrest and detention in certain cases. – (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.

The right to appear through counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e,g, Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. Therefore when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed. 

Apart from the above, we agree with the eminent jurist Seervai who has said in his “Constitutional Law of India’, Third Edition, Vol. I, Pg. 857:-

“The right to be defended by  counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh’s case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings.”

We are fully in agreement with Mr. Seervai regarding his above observations. The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula ‘Na vakeel, na daleel, na appeal’ (No lawyer, no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22 (1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.

In this connection, we may also refer to the ringing speech of Rt. Hon. Srinivasa Sastri, speaking in the Imperial Legislative Council, at the introduction of the Rowlatt Bill, Feb 7, 1919 (the Rowlatt Act prohibited counsels to appear for the accused in cases under the Act):-

"When Government undertakes a repressive policy, the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays his taxes, and salaams all the government officials all round. The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who addresses a public meeting, then becomes a suspect. I am always on the borderland and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery...

"Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land." 

In Gideon vs Wainwright, 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed:-

“Lawyers in criminal courts are necessities, not luxuries”

In Brewer vs William, 430 US 387 (1977) Mr Justice Stewart delivering the opinion of the US Supreme Court observed;-

“The pressures on state executive and judicial officers charged with the administration of the criminal law are great. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all. ” 

For the reasons stated above, we allow this Appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side.

The case shall be heard by a Bench of Judges other than those who passed the impugned judgment. The Order dated 24.01.2011 passed by this Court granting bail to the appellant shall continue till the appeal is decided by the High Court. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.

Have a look at the decision.

See Also

1. No one can stop a lawyer from defending accused: Supreme Court