Category: Judiciary

Defamation Case

Why in News?

  • Surat Sessions Court has recently dismissed Congress leader Rahul Gandhi’s plea seeking to stay his conviction in a criminal defamation case in which he was sentenced to two years imprisonment.

What is defamation?

  • Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.
  • In India, defamation can both be a civil wrong and a criminal offence.
  • The difference between the two lies in the objects they seek to achieve.
  • A civil wrong tends to provide for a redressal of wrongs by awarding compensation and a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts.

What are the Legal provisions?

  • Criminal defamation has been specifically defined as an offence under section 499 of the Indian Penal Code (IPC).
  • Civil defamation is based on tort law (an area of law which does not rely on statutes to define wrongs but takes from ever-increasing body of case laws to define what would constitute a wrong).
  • Section 499 states defamation could be through words, spoken or intended to be read, through signs, and also through visible representations.
  • Section 499 also cites exceptions. These include “imputation of truth” which is required for the “public good” and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance.
  • Section 500 of IPC, which is on punishment for defamation, reads, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

Misuse of the law and concerns associated:

  • The criminal provisions have often been used purely as a means of harassment.
  • Given the cumbersome nature of Indian legal procedures, the process itself turns into punishment, regardless of the merits of the case.
  • Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs.
  • Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.

What has the Supreme Court said?

  • In Subramanian Swamy vs Union of India case 2014, the Court approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can have his freedom”.
  • In August 2016, the court also passed strictures on Tamil Nadu Chief Minister
    J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court said, “public figures must face criticism”.

Anticipatory Bail

Why in News?

  • Recently, an MLA has been granted pre-arrest bail or Anticipatory bail by the High Court; a decision challenged in Supreme Court by the state Lokayukta.

What did the apex court say earlier in this regard?

  • A Bench while considering an application for grant of anticipatory bail, had to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, etc.
  • The apex court judgment set aside an anticipatory bail granted by the Madhya Pradesh High Court in a murder case.
  • The High Court had granted the bail, despite refusal by the trial court earlier. A man was shot dead by two men while a third held him down over a rivalry.
  • Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant and the facts of the case, while considering whether to grant anticipatory bail.
  • The court reiterated the settled law that an appellate or superior court could set aside anticipatory bail granted by a lower court on the ground that the latter “did not consider material facts or crucial circumstances”.

What is Anticipatory Bail?

  • Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
  • Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code.
  • Law Commission of India in its 41st report recommended incorporating this provision in procedure code.
  • This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
  • It is only issued by the Sessions court and High Court.

Why such a law is needed?

  • Anticipatory bail helps to prevent influential powers from implicating their rivals in false cases.
  • Section 438 (anticipatory bail) of the Code of Criminal Procedure protects people from the ignominy of detention in jail for days on end and disgrace to their reputation.
  • Anticipatory bail is more needed now because there is rising trend of political rivalry and is showing signs of steady increase.

SC previous Verdicts regarding Anticipatory Bail:

  • The questions referred to the Constitution Bench was, whether the protection granted to a person under Section 438 should be limited to a fixed period till the accused surrenders in court.
  • Whether the life of anticipatory bail should end when the accused is summoned by the court.
  • SC said that the life or duration of an anticipatory bail order does not normally end at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial.

What are the contradictions?

  • Denial of bail amounts to deprivation of the Article 21 of the Indian Constitution (fundamental right to personal liberty in a free and democratic country).
  • The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438.
  • The protection against arrest should be in favour of the accused. Restricting the protection would prove unfavorable for the accused.

Is there any a restriction or condition for granting bail?

  • It is open for a court to impose appropriate conditions for grant of anticipatory bail if the specific facts or the feature of the offence involved demands it.
  • Courts have to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation or tampering of evidence, including intimidating witnesses and fleeing justice.
  • But restrictions/conditions can be imposed only on a case-to-case basis.

What is the concern?

  • The court held that a plea for anticipatory bail can be filed even before the registration of FIR as long as there is reasonable basis for apprehension of arrest and clarity of facts.
  • However, the grant of protection should not be “blanket” but confined to specific offence or incident for which relief from arrest is sought.

entre clears appointment of advocate Victoria Gowri as judge of Madras High Court

Why in News?

  • The Centre has notified the appointment of Deputy Solicitor General, L. Victoria Gowri, as a judge of the Madras High Court. 

What is Collegium System?

  • It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
  • The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
  • A HC collegium is led by its Chief Justice and four other senior most judges of that court.
  • Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
  • Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
  • The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
  • Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
  • It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges. 

Evolution of the Collegium System:

  • First Judges Case (1981):
  • It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
  • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
  • Second Judges Case (1993):
  • SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
  • Third Judges Case (1998):
  • SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

  • For CJI:
  • The President of India appoints the CJI and the other SC judges.
  • As far as the CJI is concerned, the outgoing CJI recommends his successor.
  • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
  • For SC Judges:
  • For other judges of the SC, the proposal is initiated by the CJI.
  • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
  • The consultees must record their opinions in writing and it should form part of the file.
  • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
  • For Chief Justice of High Courts:
  • The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
  • The Collegium takes the call on the elevation.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
  • The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
  • Appointment of HC Judges:
  • Article 217 of the Constitution: It states that the Judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India (CJI), the Governor of the State.
  • In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court is consulted.
  • Consultation Process: High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
  • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
  • The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
  • The Collegium takes the call on the elevation.

Criticism of the Collegium System:

  • Opaqueness and a lack of transparency.
  • Scope for nepotism.
  • Embroilment in public controversies.
  • Overlooks several talented junior judges and advocates.

Attempts to reform the Appointment System:

  • The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

  • Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose. Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

  • Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
  • It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
  • Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

SC grants Ashish Mishra interim bail “initially” for 8 weeks

Why in News?

  • The Supreme Court has recently granted interim bail for eight weeks to Ashish Mishra, son of a Union Minister and prime accused in the Lakhimpur Kheri killings case, even as it described the crime as “ghastly” and “unfortunate”.

What is a Bail?

  • Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required.

About Default Bail:

  • Legal Source: This is a right to bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial custody.
  • It is also known as statutory bail.
  • This is enshrined in Section 167(2) of the Code of Criminal Procedure.
  • Supreme Court Judgment: In Bikramjit Singh case 2020, the Supreme Court had observed that the accused gets an indefeasible right to ‘default bail’ if he makes an application after the maximum period for investigation of an offence is over, and before a charge sheet is filed.
  • Right to default bail under Section 167(2), CrPC not merely a statutory right, but part of procedure established by law under Article 21.
  • Underlying Principle: In general, the right to bail on the investigation agency’s default is considered an ‘indefeasible right’, but it should be availed of at the appropriate time.
  • Default bail is a right, regardless of the nature of the crime.
  • The stipulated period within which the charge sheet has to be filed begins from the day the accused is remanded for the first time.
  • Under Section 173 of CrPC, the police officer is obligated to file a report after the completion of the necessary investigation of an offence. This report is called the Charge Sheet in common parlance.
  • Time Period: The issue of default bail arises where it is not possible for the police to complete an investigation in 24 hours, the police produce the suspect in court and seek orders for either police or judicial custody.
  • For most offences, the police have 60 days to complete the investigation and file a final report before the court.
  • However, where the offence attracts death sentence or life imprisonment, or a jail term of not less than 10 years, the period available is 90 days.
  • In other words, a magistrate cannot authorise a person’s judicial remand beyond the 60-or 90-day limit.
  • At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”.
  • Special Cases: The 60- or 90-day limit is only for ordinary penal law. Special enactments allow greater latitude to the police for completing the probe.
  • In the Narcotic Drugs and Psychotropic Substances Act 1985, the period is 180 days, which can be extended up to one year.
  • In the Unlawful Activities (Prevention) Act 1967, the default limit is 90 days only, which can be extended to another 90 days.
  • This extension can be granted only on a report by the Public Prosecutor indicating the progress made in the investigation and giving reasons to keep the accused in continued detention.
  • These provisions show that the extension of time is not automatic but requires a judicial order.

Other Types of Bail in India:

  • Regular Bail: It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody. For such Bail, a person can file an application under Section 437 and 439 of the CrPC.
  • Interim Bail: Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
  • Anticipatory Bail: A direction issued to release a person on Bail even before the person is arrested. In this situation, there is apprehension of arrest and the person is not arrested before the Bail is granted.
  • For such Bail, a person can file an application under Sec. 438 of the Code of Criminal Procedure (CrPC). It is issued only by the Sessions Court and High Court.

Constitutional Provisions Related to Arrest:

  • Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive.
  • Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.
  • Preventive detention, on the other hand, means detention of a person without trial and conviction by a court.
  • Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

Law Minister’s suggestion to CJI on the appointment of judges

Why in News?

  • The Union Minister for Law and Justice has written to the CJI suggesting that a nominee of the government should be included in the collegium that makes recommendations for the appointment of judges.

Background: 

  • The suggestion to the CJI comes in the backdrop of –
  • An ongoing tussle between the government and the judiciary on the issue of the appointment of judges.
  • A Memorandum of Procedure (MoP) is pending finalisation.

What is the MOP?

  • It is the official playbook agreed upon by the government and the judiciary and governs the collegium system of appointing judges.
  • Since the collegium system evolved through a series of SC rulings (First (1981), Second (1993) and Third (1998) Judges Cases), the MoP is the bedrock of the process of appointments.
  • The MoP was sought to be re-negotiated after the SC struck down (4:1) 2015 the National Judicial Appointments Commission (NJAC).
  • Draft MoPs, which include eligibility criteria, a new secretariat and a mechanism to deal with complaints against proposed candidates, were exchanged during 2015-17.

The bone of contention in the MoP and SC’s take on the appointment process:

  • The insertion of a “national security” clause that may prevent an appointment was a major point of contention.
  • However, before the document could be finalised, the SC in a 2017 judgement (a suo motu contempt proceeding against Justice C S Karnan, then a judge of the Calcutta HC) highlights,
  • The need to revisit the process of selection and appointment of judges to the constitutional courts.
  • The necessity to establish an effective legal regime to deal with situations where the conduct of a constitutional court judge necessitates remedial actions (other than impeachment).
  • The SC has initiated a contempt case against the government for not adhering to the timelines set out in the MoP and court rulings.

Government’s stand:

  • The MoP is under finalisation by the Government in consultation with the SC Collegium.
  • The Parliamentary Standing Committee on Law and Justice voiced concern, given that the MoP had been pending for more than seven years.

What does the Law Minister’s suggestion imply?

  • Government representatives should be a part of the SC (CJI and four senior-most judges of the apex court) and HC (Chief Justice and two senior-most judges of a particular HC) Collegiums.
  • A departure from the NJAC

The opposition to the suggestion:

  • This remedy is a poison pill for an independent judiciary.
  • A representative of the Government alone attacks not only the independence of the judiciary but also the competitive balance between the ruling party and the opposition.

Defamation Filed against Punjab Congress chief Navjot Singh Sidhu

Why in News?

  • A defamation case has been Filed against Punjab Congress chief Navjot Singh Sidhu for his speeches praising two party members for “being capable of making policemen wet their pants”.

What is Defamation?

  • Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.
  • In India, defamation can both be a civil wrong and a criminal offence.
  • The difference between the two lies in the objects they seek to achieve.
  • A civil wrong tends to provide for a redressal of wrongs by awarding compensation and a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts.

What are the Legal Provisions?

  • Criminal defamation has been specifically defined as an offence under section 499 of the Indian Penal Code (IPC).
  • Civil defamation is based on tort law (an area of law which does not rely on statutes to define wrongs but takes from ever-increasing body of case laws to define what would constitute a wrong).
  • Section 499 states defamation could be through words, spoken or intended to be read, through signs, and also through visible representations.
  • Section 499 also cites exceptions. These include “imputation of truth” which is required for the “public good” and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance.
  • Section 500 of IPC, which is on punishment for defamation, reads, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”

Misuse of the Law and Concerns Associated:

  • The criminal provisions have often been used purely as a means of harassment.
  • Given the cumbersome nature of Indian legal procedures, the process itself turns into punishment, regardless of the merits of the case.
  • Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs.
  • Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and Political opponents into adopting self-censorship and unwarranted self-restraint.

What has the Supreme Court said?

  • In Subramanian Swamy vs Union of India case 2014, the Court approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can have his freedom”.
  • In August 2016, the court also passed strictures on Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court said, “public figures must face criticism”.

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