In the captioned matter, the Ld. Trial Court restrained the Defendant form using the mark MEDILICE post long drawn trial and awarded punitive damages of sum of Rs. 10 Lakhs against the Defendant. Furthermore, the mark MEDICLICE was declared WELL-KNOWN by the Ld. Court.

Plaintiff:

Wings Pharmaceuticals Pvt. Ltd.

Defendant:

Kirit Bhadiadra

Competing Marks:

MEDILICE (Identical)

Nature of the Suit:

Suit for infringement, passing off, unfair competition, rendition of accounts, and delivery of impugned goods, etc.

Competing Product Description:

Anti-lice shampoo – Plaintiff

Hair Oil – Defendant

Registration Status of Plaintiff:

The Plaintiff adopted the trade mark MEDILICE in 1998 for the production of anti-lice shampoo. The Plaintiff became the registered proprietor of the trade mark MEDILICE on November 19, 2014, under class 3. This registration remains valid and in effect.

Defendant’s Registration Status:

The Defendant has also applied for registration of the mark MEDILICE in class 5, which is currently pending.

Issues raised:

1. Whether the plaintiff is entitled for permanent injunction restraining the defendant / its agents, etc. from infringing the plaintiff’s trade mark MEDILICE as alleged. ?

2. Whether the plaintiff is entitled for decree for permanent injunction restraining the defendant for passing off their goods as plaintiff’s goods by using trademark MEDILICE?

3. Whether the plaintiff is entitled for rendition of accounts?

Analysis:

Judgments:

Automatic Electrical Ltd Vs I L K Dhwan (1999) 19 PTC 81 (Dimmerdot)

• Defendant applied for registration cannot argue that the mark is descriptive.

Midas Hygiene v. Sudhir Bhatia (2004) 3 SCC 90

• In case of infringement injunction needs to follow

Sun Pharma Industries Ltd. v. Cipla Ltd., 2009 (108) DRJ 207 (Para 8, 11, 23)

• Third party cannot challenge an assignment between the plaintiffs.

Glaxosmithkline Pharmaceuticals Ltd. vs. Horizon Bioceuticals Pvt. Ltd. & Anr. 2023 SCC On-Line Del 2065

• Common to register does not prove that they are common to trade.

Allergan v. Chetana Pharma, 2007 (34) PTC 267 (Cal) (SJ), Para 11

• Mere manufacturing license does not prove usage.

Microsoft Corporation v. Rajendra Pawar & Anr., (36) PTC 697 (Del)

• Where the conduct of the erring party is found to be egregiously invidious and calculated to mint profits for his own self, awarding punitive damages prevents the erring party from taking advantage of its own wrong by escaping prosecution or detection

Reddy Laboratories Ltd. (Dr.) Vs. Reddy Pharmaceuticals Limited, 2004 SCC OnLine Del 668 (2004) 76 DRJ 6161

• to claim the defence of acquiescence, there should be a tacit or an express assent by the plaintiff to the defendant’s using the mark and in a way encouraging the defendants to continue with the business. It is as if the plaintiff wants the defendant to be under the belief that the plaintiff does not regard the action of the defendant as being violative of the plaintiff’s rights.

Hindustan Pencils (P) Ltd vs India Stationery, AIR 1990 Del 19

• the owners of trademarks or copyrights cannot be expected to run after every infringer and thereby remain involved in litigation at the cost of their business time, but can wait till the time the user of their name starts harming their business interests and starts misleading and confusing their customers.

Emcure Pharmaceuticals Ltd. V. Corona Remedies Pvt. Ltd. MANU/MH/1SS0/2014

• mere failure to sue without a positive act of encouragement is no defence and is no acquiescence

Relief:

A decree for a permanent injunction has been issued in favor of the Plaintiff. This injunction restrains the Defendant from dealing in cosmetic/medicinal preparations under the impugned mark MEDILICE, its variants, or any other trade mark that might be deceptively similar to the Plaintiff’s trade mark MEDILICE, thereby constituting infringement and passing off.

Compensation:

The Plaintiff is also entitled to punitive damages amounting to Rs. 10 Lakhs, in addition to the costs of the suit.

Decree

The post Rs 10 Lakh Imposed, Defendant Restrained from Using ‘MEDILICE’ appeared first on LexForti .

Facts

A section 7 application filed by State Bank of India and Standard Chartered against Essar Steel India Ltd.(ESIL) for a default of Rs. 45,000 crores was admitted by NCLT and Mr. Satish Kumar Gupta was appointed as the IRP. In response to the invitation for expression of interest, ArcelorMittal(AM) India on 11^th October 2017 and an entity called Numetal Ltd. on 20^th October 2017 submitted their interest. The resolution plans were submitted on 12^th February 2018. On the apprehension that the RP might find it ineligible under Section 29A, Numetal filed an application before the NCLT to declare it eligible on 20^th March 2018. However, on 23^rd March the RP found both the resolution applicants to be ineligible. In his report he stated the reasons for declaring both the Ras ineligible. 

AM Netherlands holds 29.05% shareholding in Uttam Galva and has been classified as a promoter by the way of a co-promoter agreement dt. 4^th September 2004. AM Netherlands and AM India are connected persons as mentioned in the resolution plan. The account of Uttam Galva was classified as NPA for a period more than 1 year till 2^nd August 2017. AM Netherlands sold its shareholding to the other promoters on 7^th February 2018 and applied before NSE and BSE for declassification as a promoter as per SEBI regulations. As on the submission date of the resolution plan, AM Netherlands has not been declassified as a promoter of Uttam Galva and is hence ineligible under Section 29A(c). The plan was rejected and was not placed before the COC. 

Numetal as on the date of submission of expression of interest, was reliant on Essar Communications, one of its shareholders to comply with the eligibility requirements concerning tangible net worth in the EOI. On the date of submission of the resolution plan, it was reliant on Crinium Bay to comply with these regulations. Numetal was incorporated as a joint venture between Crinium Bay and Aurora Enterprises. Since Numetal relied on its shareholders for meeting the eligibility criteria at various stages, the RP decided to take into scrutiny the joint venture holders themselves to check the eligibility of the RA. Aurora Enterprises is comptletely held by Rewant Ruia and he comes within the scope of immediate relatives being the son of the promoter of ESIL, which was declared an NPA for over a year prior to the commencement of CIRP. Rewant Ruia was deemed to be acting in consort with his father Ravi Ruia and hence declared ineligible. 

Issues

1. Whether purposive interpretation of Section 29A is to be adopted on both the text and the context of the enacted provision?
2. Whether the text of the provision evinces persons acting in consort to the persons in management and control as stated under Section 29A?
3. Whether management, control and promoter are all to be met with for ineligibility under the section?
4. Whether the timeline provided under Section 12 read with 33 are mandatory and cannot be extended?
5. Whether the corporate veil is to be lifted for determining the eligibility under Section 29A of the Code?
6. Whether Section 29A(c) applies as on date of commencement of CIRP or as on the date of submission of the resolution plan?

Ratio

The court held that the provision should be interpreted to mean de facto position of the persons so as to include persons who are actually in control whether jointly or in concert. It is imperative to find the real individuals for the submission of a resolution plan. For the purpose of this provision if the persons are acting jointly then establishing an element of a joint venture is also not required. The court held that for persons to be acting in concert, an understanding (even if it is informal and indirect) to exercise over a target entity must be decided depending upon the facts of the case. 

The court stated that the ineligibility shall be applicable from the date of submission of the resolution plan as made clear by the statute itself in the opening words of the provision. 

Elucidating on the requirements of persons in management or control or promoters an NPA, the court held that any one of these elements needs to be proved for the RA to be ineligible. Both control and being a promoter of the NPA shall include de jure and de facto position while management refers to only de jure position as provided under the Companies Act. This ineligibility can be removed only if the persons falling under these categories make all the overdue payments before the submission of the resolution plan. The court emphasised on this aspect to avoid letting persons who are in charge of the corporate debtor to regain control without paying off its debts. But this interpretation does not extend to promoters of the companies with PUFE transactions. Even the complete payment of PUFE amounts cannot make them eligible again. 

The timeline given under Section 12(1) is mandatory and if no resolution plans are received or if they are rejected then the corporate debtor needs to be liquidated. It is of utmost importance for all the authorities to follow the model timeline. 

RP is required to examine the resolution plans and shall submit only the complete resolution plans before the COC. This provision does not empower the RP to decide if a resolution plan is in contravention with the law or not but he is required to form a prima facie opinion cornering its legal compliance. Though it is not a statutory requirement, it is advised that the RPs attach a due diligence report to each resolution plan stating its compliance of law or lack thereof. It was held by the Apex Court that RA does not have a vested right to have his plan be considered so a rejection by the RP cannot be challenged before the AA. Since no right is being affected a writ to this effect is also not maintainable. RA can approach the NCLT only if its plan has been considered by the COC after its voting. 

The rejection of a resolution plan by COC on the basis of ineligibility under Section 29A is not final and can be determined by the AA after hearing both the parties. If however the plan gets approved by both the COC and the AA, then the appellate tribunal may be approached for adjudication.

Both the RAs were held to be ineligible but the continuation of the CD as a going concern is in the best interests of all stakeholders so every effort was to be made in that respect. Since the law on Section 29A was laid down for the first time the court permitted the resolution applicants another opportunity to submit their resolution plans if they pay off their NPAs within two weeks. Then the COC may consider all the plans before it accept the best one with requisite majority or the CD will be liquidated. 

The post Applicability and Interpretation of Section 29A appeared first on LexForti .

Facts

Numerous writ petitions have been filed before the SC challenging the constitutionality of the amendment of 2018. This amendment made deem allottees of a real estate project to be financial creditors, enabling them to trigger CIRP against the real estate developers under Section 7 of the Code. The amendment additionally entitles them to be represented at the COC through ARs. 

Explanation given under Section 5(8)(f) clarified that the real estate allotees also come within the scope of financial debt as it falls under the category of forward sale or purchase agreement with the commercial effect of a borrowing. Respective changes have also been introduced under Section 21(6A)(b) to include allottees in the constitution of the COC and under Section 25A to lay out provisions concerning authorised representatives. 

Issues

1. Whether the funds raised under a real estate project from allottees has the commercial effect of a borrowing?
2. Whether the provisions of RERA and IBC may be read harmoniously after the amendment?
3. Whether the distinction made between operational creditors and real estate allottees is based on intelligible differentia?
4. Whether the amendment made the allotees of a real-estate project financial creditors, entitled to be represented in the COC by an AR?
5. Whether deeming fiction can be adopted to include allotees under the scope of Section 5(8)(f) of the Code?
6. Whether the explanation given under this provision enlarges the scope of it?

Ratio

The allottees entered into assured returns/committed returns agreements with the developers, whereby the developers agree to pay a certain amount to the allottees on a monthly basis from the date of execution of the agreement till handing over the possession of the property. The amount raised by the developers by the assured returns scheme was shown as “commitment charges” under the head “financial costs”. This indicates that the funds raised have the commercial effect of a borrowing. A financial debt means a debt along with interest, which disbursed against the consideration of time value of money. The promoter was asked to provide a declaration that he undertakes to complete the project within a certain time period and that 70% of the funds raised from allotees under this project from time to time shall be deposited into a separate account spent only to defray the cost of construction of that particular project. The courts have included home buyers as financial creditors in cases where the agreement includes an assured returns policy. In some cases they have been categorised as “creditors other than financial or operational creditors”. By not giving them the status of either financial creditors or operational creditors they are being deprived of:

The right to initiate CIRP 

1. The right to be a part of COC
2. The guarantee of receiving at least the liquidation value under a resolution plan. 

The money disbursed by the home buyers was in relation to a future asset and these funds amount to a significant portion of the funds that are used to finance the real estate projects. It was held that even if not all forward sale or purchase agreements are financial transactions, if they are structured as a tool or means for raising finance then it shall be classified as a financial debt. 

The non obstante clause under Section 88 of RERA came into effect on 1^st May 2016 and Section 238 of IBC came into effect on 1^st December 2016. It was contended on behalf of the real estate developers that, RERA is a special enactment and IBC is a general law, hence RERA is to be given precedence. It was held that, the fact that the amendment drew the definition of allottees from RERA implies that the drafting committee was aware of the existence of the enactment and taken into consideration of all of the applicable provisions. The provisions under RERA are in addition to and not in derogation of the provisions of IBC. The remedies laid out under RERA are intended to be additional remedies and not exclusive remedies. Moreover it is to be noted that the authorities to be set up under RERA are to come into effect from 1^st May 2017 succeeding the provisions of the code that came into effect on 1^st December 2016 itself. 

RERA and IBC function into compltetely different fields and the code deals with proceedings in rem which focuses on rehabilitation of the corporate debtor. On the other hand RERA seeks to protect the interests of the individual investors so that they are not left in a lurch by ensuring that they are compensated or reimbursed to the extent of their payment towards the allotted property. Hence both the enactments can co-exist and to the extent of any inconstancy, RERA is to give way to IBC. 

It was contended by the counsels for the real estate developers that the classification of allottees as financial creditors is discriminatory as it treats unequals equally and equals unequally without any intelligible differentia having any nexus with the objects of the Code. It was contended that the real estate developers were being discriminated against as they are not being treated equal to other entities that supply goods and services. If the allottees are treated as financial creditors, then all they have to do is to produce evidence indicating that a debt is due to him irrespective of any disputes, while an operational creditor would fall outside the purview of code in case of a dispute. This discrimination was to have infracted Article 14 of the Constitution. The Apex Court held that equal protection under law, does not necessarily invalidate any classification made by law. It was elucidated that the reasonable classification includes “all who are similarly situated and none who are not”. It was held that the legislature is at liberty to experiment with economic legislations in public interest and any practical considerations that hurt a few cannot be helped. It was concluded that the contentions by the real estate developers were not successful in establishing that the classification of real estate developers is not based upon intelligible differentia that distinguishes them from other operational creditors. 

Supplementary contentions that this categorisation also infringes article 19(1)(g) and 300A was also put forth by the real estate developers. The court held that the language of the provisions is unambiguous and clear, hence the contentions raised by the Petitioners do not stand. 

In the light of the deliberations under the preceding issues, the Apex court adjudged allottees under real estate projects to be financial creditors and hence have a right to have representation in a COC meeting. Homebuyers and debenture holders can be numerous so the committee was of the opinion that the only feasible mode of accommodating all these financial creditors in a COC meeting was through an authorised representative. Such an authorised representative can be appointed either by the way of the debt agreement or by the NCLT for each such class of creditors.

It was contended by the Petitioner that the definition under Section 5(8)(f) was to be an exhaustive provision and to be read noscitur a sociis (an unclear or ambiguous word must be read in its context). It was argued that this provision cannot be stretched to include allottees. The primary argument by the petitioner is concerning the existence of a debt. The court held that noscitur a sociis is a mere rule of construction and words with wide scope have been deliberately used in residuary power to subsume instances that do not fall under the scope of the sub-clauses to fit within the umbrella of Section 5(8)(f). For the existence of a debt, a liability or an obligation in respect of a claim must be due. It was held by the court that a claim is defined as a right to payment or a right to remedy even if it arises out of a breach of contract. The disbursal under this provision refers to the payment of instalments by the allottees against consideration of time value of money. The real estate developers have an obligation to use the funds raised in the construction of the project and it being at a discounted value from the perspective of the allottee as he is having to lesser by the way of instalments than if he were to pay the complete amount after the completion of the project. Further the phrase “commercial effect of a borrowing” has a wide bearing on any other transactions that that inflicts financial indebtedness. It is clear that the allottees fall within the scope of this provision owing to the nature of the financial arrangement between them and the developers at various stages of construction. 

The introduction of deeming fiction is necessitated where the Parliament requires the subject matter to be treated as real. It was held by the Supreme Court that the deeming fiction has been taken into account only to the extent necessary to provide clarification on the true legal position. After the purpose of the statutory fiction has been ascertained, it must be carried to its logical conclusion and assume all such other necessary facts for it to operate. Thus the explanation uses deeming fiction only to put it beyond doubt that the allottees also fall within the scope of Section 5(8)(f) of the Code. 

It was held by the court that the explanation inserted by the amendment does not enlarge the scope of the provision. It merely clarifies the doubts concerning the status of allottees under real estate projects. The allottees are being subsumed under the provisions as it originally stood. The court resorted to creative interpretation of the provision for the purpose of a beneficial legislation. 

The post SC on Status of Homebuyers under the Waterfall mechanisms appeared first on LexForti .

When one brings into mind the relevancy of Maneka Gandhi v. Union of India, one essentially and by all means, brings into consideration the basic principles pertaining to natural justice which have been enshrined in the Indian Constitution via the support of fundamental rights that have been guaranteed under Article 21 and 14 respectively. Having mentioned the same, post the period of Emergency, this case was considered to be one of the most vital judgements that have so far been passed by the Hon’ble Supreme Court, that have held a special role in shedding light on the liberal tendencies that have gone through a major shift towards ensuring the protection of personal liberty. 

Ever since the passing of this landmark judgement, the Apex Court ensured to display tremendous amount of diligence towards the sheer protection and enforcement of fundamental rights. In addition to the same, this pioneering case also held an extravagant role in overturning and overruling the precedent that had been brought about in the case of A. K. Gopalan v. State of Madras.

A FACTUAL SUMMARY OF THE CASE

The petitioner in the mentioned case was a journalist whose passport had been seized under Section 10(3)(c) of the Passport Act, 1967 wherein the said Act as per the stipulated provision empowers the authorities to seize the passport of the individual, with respect to the sovereignty and the integrity of India. It is however imperative to mention that the reasons pertaining to such an impoundment be communicated with the affected parties, wherein an exception can be made by taking into consideration the interests of the general public. After questioning the reasons relating to the confiscation of her Passport, the Ministry of External Affairs repudiated their intentions to produce any reason, by claiming that the same was being done “in the interests of the general public.” 

In pursuance to the said event, a writ petition under the applicability of Article 32 of the Indian Constitution was filed by the petitioner before the Hon’ble Supreme Court wherein the claims related to the violation and the need for the enforcement of fundamental rights with respect to the arbitrary action of the mentioned authorities was brought into light, by taking into regard the applicability of Articles 14, with further amendments involving the applicability of Article 21 (right to life and personal liberty), Article 19(1)(a) emphasizing on the right to freedom of speech and expression, and most importantly, Article 19(1)(g) of the Indian Constitution, that concentrates upon the right to freedom of movement. 

RELEVANT ISSUES OF THE CASE

It would be pertinent to mention the various issues that were contemplated in the present case, which can be elucidated under the following:

• Whether there is any nexus with respect to the rights that have been guaranteed under Articles 14, 19 and 21 of the Indian Constitution? 
• Whether there is any scope related to the “procedure established by law?”
• Whether the concept of Fundamental Rights can be regarded as conditional or absolute or whether there is a necessity to determine the same that has been provided to citizens by the Indian Constitution?
• Whether Section 10(3)(c) of the Passport Act, 1967 can be witnessed in violation of Fundamental Rights and if it fulfills the same, whether such a legislation can be regarded as a concrete law?
• Whether there has been a contravention of the principles pertaining to natural justice in the Impugned Order of the Regional Passport Officer as per the provision stipulated under the mentioned Act? 
• Whether there has been a protection of the “right to travel abroad” under Article 21 of the Indian Constitution? 

A DELIBERATION ON THE CONTENTIONS THAT WERE RAISED IN THIS CASE

CONTENTIONS THAT WERE RAISED BY THE PETITIONER

Several contentions were raised by the Petitioner with regard to the facts and the circumstances of the present case, which can be noted under the following:

• That the Central Government, by all means, acted in sheer violation of Article 21 of the Indian Constitution wherein the petitioner was deprived of the basic opportunity to be heard. 
• That the aspect pertaining to the “right to travel abroad” can be considered as a derivative of the right known as the right to personal liberty and no citizen, under any means can be deprived of the said right, except according to procedure established by law. On the other hand, while the Passports Act, 1967 has not prescribed a particular method for confiscating or revoking the passport of its rightful holder, such actions by the mentioned authorities are arbitrary and reasonable. 
• It would be imperative to mention that any procedure that has been established by law, must act in compliance with the requisite principles of natural justice. 
• An essential principle pertaining to the principles of natural justice, is ‘’Audi Alteram Partem,’’ wherein every citizen is given the chance to be heard, which was however not granted to the Petitioner. 
• Furthermore, the postulated provisions of Articles 14, 19 and 21 of the Indian Constitution must be essentially read in synchronization wherein a conglomerated reading of the same will give effect to the spirit of not just the makers of the Indian Constitution, but also the extraordinary legal document, known as the Constitution of India. 
• In furtherance to the same, with respect to the impugned order relating to the impoundment of Passport on the 4th of July, 1977, it was contended that the respondent had not just violated the Petitioner’s right to freedom of movement, but had also encroached on the petitioner’s right(s) to freedom of speech and expression, her right to life and personal liberty alongside the right to travel abroad. 

CONTENTIONS THAT WERE RAISED BY THE RESPONDENT

The contentions that were raised by the respondent can be elaborated under the following:

• The respondent after reiterating the principles specified in the case of A. K. Gopalan v. State of Madras, contended that the concept of law with reference to Article 21 of the Indian Constitution cannot be comprehended by taking into regard the principles related to natural justice. 
• Furthermore, the Attorney General of India stated that the right to travel abroad, was never in actuality, covered under the Clauses postulated under Article 19(1) of the Indian Constitution, and therefore, Article 19 can be regarded to be independent, thereby proving the reasonable nature of the actions undertaken by the Central Government. 
• In addition to the same, it was further contended by the respondent that the principles related to natural justice are ambiguous and vague. Therefore, the Indian Constitution should avoid reading such ambiguous and vague provisions as a part of the same.
• Having stated the same, it was further contended that the ambit of Article 21 of the Indian Constitution is in general, very wide that is inclusive of provisions known as Article 14 and 21. However, any particular law can be regarded to be unconstitutional with reference to Article 21, when it is witnessed to directly violate Articles 14 and 19. 
• Their reliance on Article 21 of the Indian Constitution must be noted wherein it was stated that the language containing “procedure established by law” need not pass the constitutional test of reasonability, because of which the same should not be seen in conformity with Articles 14 and 19 of the Indian Constitution.
• That the sheer spirit and the mind of the framers must be respected and protected, wherein the Constitutional makers while drafting the Indian Constitution had debated at various lengths on the American pattern relating to the “due process of law” and the British procedure that has been established by law. Therefore, it was stipulated that the conspicuous absence of such a due process of law with respect to the Constitutional provisions is seen to reflect the framers and the mind of the Indian Constitution. 

A BRIEF OVERVIEW OF THE JUDGEMENT: A CRITICAL ANALYSIS

This landmark judgement that was delivered on the 25th of January, 1978 changed the landscape of the Indian Constitution, as it not just expanded the scope of Article 21 of the Indian Constitution, but also went back to making India a true, welfare state as has been promised as per the Preamble of the Indian Constitution. 

The major views and findings of the Hon’ble Court can be elaborated under the following:

• It was held by the Hon’ble Court that with reference to the phrase that was utilized for the interpretation pertaining to Article 21 of the Indian Constitution that is in context to “procedure established by law” in place of “due process of law,” it was held that it is imperative that the procedure be free from any kind of irrationality and arbitrariness. 
• Furthermore, the Hon’ble Court also held that the very scope of personal liberty must not be construed in a strict and narrow sense, wherein the same should be understood in a liberal and broader sense. In totality, Article 21 was given a wider meaning, which was added on by the insistence of the Hon’ble Court towards obligating future courts to expand the mentioned horizons as has been identified under Article 21 to ensure the coverage of all Fundamental Rights instead of construing it in a narrow sense. 
• That being brought under one’s attention, the Hon’ble Supreme Court also overruled the precedent that had been set in the case of A.K. Gopalan v. State of Madras by emphasizing that there should, by all means be a unique dynamic of the provisions known as Article 14, 19 and 21 of the Indian Constitution, wherein it is pertinent that every law passes the test of the mentioned provisions. 
• Furthermore, it was also held that the provision as has been postulated under Section 10(3)(c) of the Passport Act, 1967 should not be violative of Article 21 of the Indian Constitution or Articles 19(1)(a) and 19(1)(g) for that matter and also later went on to clarify that the aforementioned provision had not contradicted Article 14 of the Indian Constitution. Given the mentioned provision, provides for an adequate opportunity to be heard, the Hon’ble Court therefore rejected the contentions raised by the Petitioner that the phrase, that is “in the interests of the general public” is not vague. 
• In furtherance to the aforementioned view, the Hon’ble Supreme Court however contended and held that Section 10(3)(c) and 10(5) is essentially an administrative order, and is henceforth open to challenge, with respect to the order being of a nature that is male fide, culminating to the denial of natural justice, and is not just unreasonable but is also ultra vires of the Indian Constitution. 
• The Apex Court, while reiterating the principles that were laid out in the case of Satwant Singh Sawhney v. D. Ramarathnam, observed that while taking into regard the ambit of personal liberty, one must also consider the right to travel abroad, which must act in synchronization with the said concept. All in all, under no conditions can an individual be deprived of their rights, except in accordance to a procedure that has been established by law. The confiscation or the revocation of the petitioner’s passport is violative of Article 21 of the Indian Constitution, wherein the said grounds being arbitrary and unchallenged, is also violative of Article 14 of the Constitution of India.
• It would be crucial to mention that in context to Section 10(3)(c) of the Passports Act, 1967 that is in circumstances where the State finds it imperative to confiscate the passport or do any particular activity that acts against the interests of the integrity or the sovereignty of the nation, its friendly relations with other countries, its security or with regard to the interests of the general public, it is important for the respective authorities to provide or record the adequate reasons in writing, and also furnish a copy of that particular record to the passport holder. 

THE REPERCUSSIONS OF THE MANEKA GANDHI JUDGEMENT: CONCLUDING REMARKS

All in all, it must be acknowledged that few judgements that have been passed in the Indian Legal History, that have had a life-changing effect as the Maneka Gandhi judgement has had so far. Apart from being such a well-written and balanced judgement, it also greatly established the interlinking of Articles 14, 15 and 19 of the Indian Constitution, which particularly specified that whilst it is of sole importance to secure the Fundamental Rights of every citizen, it must also be made sure that the procedure is not irrational or arbitrary. 

After the passing of the mentioned judgement, the Hon’ble Supreme Court restored its position of being looked at as the watchdog of democracy and also showed its intentions of safeguarding the thought processes of the Constitution makers. In fact, what makes this judgement all the more appealing is the aspect provided by a majority of judges wherein it was stipulated that for any legislation or provision to be declared as bonafide, reasonable and just, it is pertinent that the said law or provision be devoid of any kind of arbitrariness. Having mentioned the same, the greatest repercussion of this judgement is that today’s unanswered questions and problems of the Indian Parliament have been solved with lucid attention, in consideration to the interpretation pertaining to Article 21 of the Indian Constitution that has been derived in the mentioned case.

The post The Protection Of ‘Personal Liberty’ appeared first on LexForti .

INTRODUCTION

The final stage in the system of criminal jurisprudence is the stage of punishment. Once the court, after having evaluated the evidence presented before it, arrives at a conclusion that the accused has been proved guilty beyond a reasonable doubt, it has to decide over the quantum of punishment that should be awarded to the convict. The broad principles used to determine the quantum of punishment has been dealt with under Chapter 3 of the Indian Penal Code (IPC). The sentencing policy across the country isn’t uniform and the sentences reflect the individual philosophy of the judges. The considerations affecting the sentencing policy were pointed out by Justice Krishna Iyer in Rajendra Prasad v. State of Uttar Pradesh – “Law must be honest to itself. Is it not true that some judges count the number of fatal wounds, some the nature of the weapons used, others count the corpses or the degree of horror and yet others look into the age or sex of the offender and even the lapse of time between the trial court’s award of death sentence and the final disposal of the appeal? With some judges, motives, provocations, primary or constructive guilt, mental disturbance and old feuds, the savagery of the murderous moment or the plan which has preceded the killing, the social milieu, the sublimated class complex, and other odd factors enter the sentencing calculus.” The prime focus of punishments in our criminal jurisprudence was considered in State of Gujarat v. Hon’ble High Court of Gujarat in which the Supreme Court observed that – “Reformation should hence be the dominant objective of punishment and during incarceration, every effort should be made to recreate the good man out of a convicted prisoner…. reformation and rehabilitation of a prisoner are of great public policy. Hence they serve a public purpose.”

KINDS OF PUNISHMENTS

The different types of punishments that a convict can be awarded have been listed out u/s 53 IPC. This provision itself is indicative of the restricted discretion of the judge in ascertaining the type of penalty as it provides only for a select few punishments. The IPC doesn’t even allow the courts the discretion to impose even the latest forms of punishments like community service and open-air prisons on a person convicted of any offense under the IPC. The IPC has for some offenses itself provided for a minimum sentence whereas, in most other crimes, the trial court has got a wide discretion in the ascertainment of the period of sentences and the choice amongst the aforementioned kinds of punishments, given the nature and gravity of the crime, manner in which it was committed, the conduct of the accused before and after the commission of the crime and other mitigating and aggravating factors.

The various types of punishments that a convict can be sentenced to are –

Death penalty –

It is the harshest of all punishments provided under the IPC. It involves killing the convict as a punishment for his crime. Numerous arguments have been raised both for and against the imposition of capital punishment. One side argues it to be a deterrent while the other raises the question of whether the state has a right to take an individual’s life, something which it cannot restore in case of an erroneous judgment. The IPC provides the death penalty only as an uppermost limit to which a convict can be sentenced and has nowhere made it compulsory for the courts to award a death sentence. The IPC provides capital punishment for Treason (S.121), Abetment of mutiny (S.132), Perjury (S.194), Murder (S.302), Abetment of suicide by minor/insane/intoxicated person (S.305), Attempt to murder by life convict, causing hurt (S.307) and Dacoity with murder (S.396)
The question over the constitutional validity of capital penalty was answered and laid to rest by the Supreme Court in Bachan Singh v. the State of Punjab, where the 5-judge bench, with a 4:1 majority, upheld the constitutional validity of the death penalty. It went on to observe that life imprisonment is the rule and the death penalty an exception and that the judge must state in detail the special reasons for his awarding capital punishment. The court further went on to hold that a convict should not be sentenced to capital punishment “except in rarest of the rare cases when the alternative option is unquestionably closed”
The courts have from time to time come up with principles explaining the rarest of the rare cases doctrine. The Supreme Court in Machhi Singh v. the State of Punjab, Lehna v. the State of Haryana, and Brajendra Singh v. State of Madhya Pradesh laid down various guidelines to be considered while granting capital punishment. They include –

• The death penalty cannot be inflicted except in gravest cases of extreme culpability;
• The circumstances of the offender, circumstances in which the crime was committed and the method and manner of commission of the crime need to be considered;
• Balance sheet of aggravating and mitigating circumstances should be drawn up and mitigating circumstances should be accorded full weightage to draw a just balance between the aggravating and mitigating circumstances;
• Death penalty may be awarded when the crime committed is extremely brutal, grotesque, diabolical, revolting, and dastardly (or) is committed for a motive which evinces total depravity and meanness (or) for the betrayal of the motherland (or) where a member of Scheduled Caste or an innocent child or a helpless woman or old or infirm person has been murdered (or) where the imposition of any punishment other than the death penalty is completely inadequate.

In a case where the judge is of the opinion that the accused is, in fact, guilty and should be awarded capital punishment, he must give a chance to the accused as per section 235 CrPC to put before the judge the facts and circumstances which in the accused’s opinion would allow the judge to mitigate his sentence. Non-compliance with this sentencing procedure vitiates the sentence.

Life Imprisonment –

It means rigorous imprisonment running throughout the remaining period of a convict’s natural life. Imprisonment for life is not equivalent to imprisonment for 14 years or 20 years. Section 57 of the IPC makes life imprisonment equivalent to imprisonment for 20 years only for the purpose of calculating fractions of terms of punishment. The Supreme Court in Gopal Vinayak Godse v. State of Maharashtra clarified that no provision of the law states that life imprisonment is for a period of 20 years. Furthermore, section 55 of the IPC r/w Ss.432-433 CrPC state that an appropriate government may suspend or remit the life sentence of a convict. The condition attached to it is that the convict must have served at least 14 years in prison. However, if the President or the Governor (by exercising their powers under article 72 and 161 respectively) of the Indian constitution decide to remit or commute the life sentence of the convict, the convict shall be released immediately even if he hasn’t served the statutory requirement of 14 years in prison. This is because Section 433A of CrPC, being a statutory provision, cannot override the constitutional power conferred upon the President and the Governor under articles 72 and 161.
NOTE: Commutation under section 55 IPC means that the punishment is altered to a different type than the one originally proposed whereas Remission refers to the act of reducing the amount of punishment without changing its character.

Imprisonment –

It refers to the confinement of a convict in a place used to detain persons convicted of crimes. The IPC recognizes two forms of imprisonment, namely, rigorous and simple. Rigorous imprisonment involves putting the convict to hard labor such as grinding corn, digging the earth, drawing water, cutting wood, bowing wool, making furniture, etc. whereas a convict is not put to any work in case of simple imprisonment.
The Supreme Court in State of Gujarat vs Hon’ble High Court of Gujarat clarified that the prisoners who are put to hard labor should necessarily the paid minimum wages for the work extracted. It has also been noted by the Supreme Court that S.53-fourthly mandates the jail authorities to impose hard labor on the convict sentenced to rigorous imprisonment. In the course of doing so, the jail official cannot be said to have been committing any offense under section 374 IPC. This will not, however, be applicable in cases where the accused is awarded simple imprisonment or detained under preventive detention laws or under trial prisoners.

Forfeiture of Property –

This form of punishment involves depriving a person of his property as a penalty for the offense committed. It can be imposed under the IPC only when the crimes committed are those under S.126 (committing or making preparations to commit depredations on territories of power in Alliance or at peace with Government of India), 127 (a receipt of the property taken in the commission of War or depredation), 169 (unlawful buying or bidding for property in own name by a public servant) and to some extent S.263A (Prohibition of fictitious stamps). The Supreme Court in Shobha Suresh Jumani v. Appellate Tribunal, Forfeited Property recognized the rampant corruption prevailing in the society and recommended the reintroduction of S. 61 and 62 of the IPC on forfeiture of property which was repealed by the Indian Penal Code (Amendment) Act, 1921.

Fine –

It means forfeiting money as a form of penalty. This form of punishment has been considered valid on the ground of its universality; however, the fine imposed should be proportionate to the offense committed because it not only affects the convict but also his dependents. Under IPC, a fine can be imposed as the sole punishment or an alternative punishment or for a limited amount or unlimited amount. Judges have broad discretion while quantifying the fine to be imposed, especially where the provision makes no stipulation as to the amount of fine. Courts being the administrators of justice, it is expected of them that the fines imposed should be fair, just, reasonable, and not excessive. The fine imposed should be within the convict’s capacity to pay but he must feel the pinch in paying it. The imposition of a sentence of fine should be on an individual basis and not collectively. Various cases of non-payment of fine and its various forms have been dealt with under Ss. 64-69 IPC.
The IPC, under Ss. 73 and 74, also provides an award of Solitary confinement only as a part of a sentence of rigorous imprisonment if the court deems fit. It refers to the separation and keeping the prisoners in complete isolation in a cell where he cannot have any direct interaction with or sight of any human being and is without employment or instruction. Solitary Confinement is one of the harshest punishments, the court has held that it shouldn’t be awarded unless the crime committed was extremely brutal or accompanied by unparalleled atrocity. Under no circumstances can solitary confinement be imposed for a period of more than 14 days at a time and not more than 7 days in any month of the whole imprisonment. Solitary confinement cannot be awarded for more than: a. 1 month, where imprisonment doesn’t exceed 6 months; b. 2 months, where imprisonment exceeds 6 months but is less than 1 year; c. 3 months, where imprisonment exceeds 1 year. In cases where a person has been held guilty for various offenses but it’s doubtful as to which of these is the person guilty, he shall be sentenced for the offenses with the lowest punishment.

PROPOSALS FOR REFORMS

The Law Commission, in its 156th Report, recommended few changes to the punishments under IPC:

 The amounts to be imposed as fine be increased at least by 20 times with a corresponding change in the powers of First Class Magistrates to impose such fines;
 The open-air prison system, according to the commission, would be more effective than Community service among the punishments because the latter involves various enforcement issues.
 A punishment of “Public Censure” was sought to be included in S.53 IPC for the offenses in Chapters XII-XIII, Ss. 272-276, 383-389, 403-409, 415-420 and offenses proposed under new S. 420A and 462A, IPC (Amendment) Bill, 1978. These are offenses where persons entrusted with some public duties commit offenses. Such a punishment is likely to act as a greater deterrent due to the fear of infamy resulting from publicity.
 The death Penalty should be retained but awarded as per the guidelines of the Supreme Court.

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SAKAL PAPERS LTD. VS. UNION OF INDIA 1962 SCR (3) 842

FACTS OF THE CASE:

A private news organization distributed papers, documented petitions against the state testing the newsprint strategy of the public authority which confined the number of pages a paper was qualified for print. The distributing organization tested the sacred legitimacy of the Newspaper (Price and Page) act,1956, which enabled the Central Government to manage the cost of the paper according to their pages and the allotment of room for publicizing matter.
It was likewise tested by the distributing organization that Daily Newspapers (Price and Page) Order, 1960, passed by the public authority under the Newspaper Act to set up such guideline, abuses the right to speak freely and articulation ensured under Article 19(1)(a) of the Indian Constitution.

CONTENTION BY STATE:

The guidance from the state contends that the object of the guideline was to forestall out of line rivalry and the ascent of restraining infrastructures inside the paper business. Because of the economies of scale, set up enormous papers were in a situation to keep costs at a level which the more up to date and more modest papers couldn’t contend, and subsequently would be not able to enter the market and if effectively present, would be compelled to exit by offering to one of the set-up papers.
It is likewise contended that, by opening up the market, the guidelines were intended to advance the right to speak freely and articulation. The state attempted to legitimize its activities by calling them to be sensible limitations on the business activities of the paper offices for the sake of public interest.
In any case, the Hon’ble Court dismissed every one of these conflicts and held that the Newspaper Act and Newspaper Order was illegal.

JUDGEMENT:

It was held by the Hon’ble Court that the Newspaper Act and Newspaper Order was illegal and the supplication of the applicants was maintained by the court. After appropriately deciding the current issue, an undisputed choice of the court held that the distribution of paper not just related to the right to speak freely of discourse and articulation yet, in addition, direct a business compliant with Article 19(1)(g), which basically suggested sensible limitations on the paper business.
An unexceptionable comment was made by Justice Mudholkar in the judgment that Article 19(1)(a) covered the substance as well as the volume of the paper. The effect of the guideline challenged is straightforwardly limit the dissemination and volume of the paper and along these lines, this was an away from of the encroachment of the privilege to the right to speak freely of discourse and articulation and won’t be saved by the special case made under Article 19(2). This is one of the milestones decisions set forth opportunity of the press in the statute in India, which strengthened that it is a violation of Article 19(1)(a) to limit the number of pages, costs, promotions, paper flow.
On account of Bennett Coleman & Co. vs. Union of India [AIR 1973 SC 106], it was emphasized by the dominant part that the right to speak freely and articulation isn’t just in the volume of the course yet additionally in the volume of the news.
A comment was made by Justice Ray in his judgment that opportunity of the press qualifies the papers for accomplishing any volume of dissemination and opportunity of the press is both subjective and quantitative, thus opportunity lies both available for use and in substance. Consequently, therefore, the court struck down the News Print Policy figured by the public authority in the year 1972-1973 as being a violation of Article 19(1)(a) as the arrangements referenced in the approach didn’t fall under any of the special cases referenced in Article 19(2).

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GYARSIBAI V. THE STATE 1953 CRILJ 588

INTRODUCTION:

In the instant case, the appellant after having a fight with her sister-in-law left the house with her three minor children and jumped into the well. After some time she was found on the edge of the well and her three children dead inside the well by some villagers. Though there is no eye-witness of the appellant jumping in the well herself, her own statement along with that of her husband and sister-in-law is conclusive proof itself of the fact that she jumped into the well on her own. The Trial Court held her guilty for murder under Section 300 but no clause was decided. Hence, the present appeal is made to the Madhya Pradesh High Court.

ISSUES:

The issue before the Court was to decide whether or not the appellant is guilty of the offense of murder (Sec 300 of IPC) of her three children as well as of attempted suicide (Sec 309 of IPC)?

JUDGEMENT:

The Sessions Judge in the following case found her guilty under Section 300 of the Indian Penal Code but didn’t give the clause under which she was charged. When the matter came to the Madhya Pradesh High Court, the judge decided that Gyarsibai should be held guilty under clause 4 of Section 300. The other three clauses of Section 300 i.e. 1, 2, and 3 deal with cases when the murder of some party is done with the “intention” of doing so but in the present case it can be clearly seen that no intention exists on the part of Gyarsibai to murder her children and hence she cannot be held liable under any other clause of Section 300.

The bone of contention that lies here is whether she should be charged under Section 299 of IPC which deals with ‘culpable homicide’ or Section 300(4) which deals with ‘murder’. The third sub-part of Section 299 states that when death is caused ‘with the knowledge that by such act he is likely to cause death’ is termed as ‘culpable homicide’ and Section 300(4) states that a person is guilty of murder if he had the knowledge that his act is ‘imminently dangerous’ and moreover that the act was committed ‘without any excuse for incurring the risk of causing death or such injury’. In the present case it is clearly established through facts and evidence that Gyarsibai should be considered as a sane person and every sane person ‘knows’ that the act of jumping into the well will result in death only. Moreover, no solid evidence has been found or revealed which could establish the fact that jumping in the well with her children was the only way to save herself from her sister-in-law’s harassment hence the essential element of ‘having no valid excuse’ is ticked as well and therefore she is rightly held liable under Section 300(4) of the IPC.

Moreover, the facts and evidence are straightforward to hold Gyarsibai liable for the attempt to suicide as well. But the judges found that the punishment of murder as per Section 302 would be too rigorous for her and hence only awarded her the imprisonment of only 6 months under Section 309 i.e. Attempt to Suicide.

CONCLUSION:

So, through this case as well as through the case of Emperor v. Dhirajia [ILR (1940) All 647] the differentiating factor between Section 299 (3rd part) and Section 300(4) is highlighted. While both the section focus on ‘knowledge’ of the accused, there lies a slight difference between them. The ‘knowledge’ factor differentiates them from the rest of Section 299 and all the other 3 clauses of Section 300 but what differentiates from one other is the phrase ‘without any excuse for incurring the risk of causing death or such injury’. This phrase of Section 300 states that the accused did the erroneous act of which he had knowledge that it will either cause the death of the victim or some serious bodily injury without any excuse and valid reason, he could have resorted to some other mean but still, he chose to do that particular act. While under Section 299 on the other hand, the accused does know that his act is dangerous and is likely to cause death to the particular individual but he/she still undertake it because they have no other choice other than to perform that act.

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V. Kalyanaswamy (D) by Lrs. and Anrs. Vs L. Bakthavatsalam (2020)

Abstract

On 17th July 2020, the Supreme Court passed a judgment for a family dispute that rose in 1955. The SC dismissed all the appeals against the judgment given by the Madras High court in 2007. It also stated that the coparcener has no right to execute a will with respect to Joint Family Property prior to the Hindu Succession Act. The court held that the Will dated 10-05-1955 executed by Late Mr. Rangaswami Naidu was lawful and valid.

Facts of the Case

In this case, Late R. Venkituswamy had two sons, Late Lakshmaiah Naidu and Late Ragaswami Naidu. Rangaswami was married to R. Krishnammal but they didn’t have any children, however, Lakshmaiah had four sons. Both the brothers constituted a Joint Hindu family business. But due to an illness, Rangaswami executed a will in which he bequeathed his share in the Joint Hindu Family property and self- acquired properties in favor of this wife R.Krishnammal. The dispute arose when Rangaswamy’s widow filed a case claiming the title of the aforesaid share of properties and recovery of mesne profits from the defendants (sons of Laksmaiah) who were in possession of the property. The Magistrate under section 145 of the Criminal Code of Procedure gave possession to the defendants. Later a series of cases were filed, which resulted in a compromise decree in 1958. However, the dispute resurfaced when R.Alagiriswamy Naidu and V. Kalyanaswamy filed a suit against the compromise decree challenging the validity of the will on the grounds that the will was executed under coercion, undue influence, and fraud by the Respondent. He also challenged that any will executed by a coparcener of his undivided interest in the Joint Hindu Family Property is illegal and invalid.

Judgment

The Trial Court faced a predicament regarding the authenticity of the will made by Rangaswamy Naidu. Although the trial court held that the will was invalid and unlawful the First appellate Court found it to be authentic. Later when an appeal was filed in the Supreme Court it disagreed with the decision made by the High Court regarding the validity of the will but agreed with the verdict of the High court to be the endmost conclusion based on other aspects of the case. Hence the SC pronounced the judgment dismissing all the appeals.

Rationale of the court

The Court decided the following observation about the validity of the will made by the testator herein the issue of the case:
• The will was an unprivileged will under Sec.63 of the Indian Succession Act 1925. Sec 63 deals with proving a document by a way of secondary evidence.
• In order to test the authenticity of the will one of the attested witnesses named in the will have to prove that the will has been duly executed by the testator in presence of at least two witnesses and that the other witnesses had also attested to the will (Sec.68 of Evidence Act 1872)
• Se 69 of Evidence Act has to be applied if the witnesses mentioned in the will have died, have become insane, etc. Sec71 provides that if a witness doesn’t recollect the execution of the will then some other evidenced has to be used.
• In this particular case the Appellants failed to prove that there was coercion, undue influence, or fraud.

Case Analysis

• The court decided on basis of these provisions that the testator had clearly mentioned in his will all the required details of the properties that would be bequeathed to his wife and the manner in which she has to use and dispose off the properties. Further, as the Hindu Succession Act,1956 was not enacted, Hindus were allowed to leave his joint family property along with his self acquired property to another person. Therefore the apex court dismissed all the appeals made by the Appellants.
• The decision made by the court was justifiable and fair. Appellants didn’t have any proper evidence for the claims they made regarding the validity of the testamentary document i.e the will made by Late Rangaswamy. It was held that the effect of the death of Rangaswami Naidu being before the Hindu Succession Act came into force to be that it would deprive persons of rights available in respect of a Hindu who dies intestate after the Act came into force.

Conclusion

This case has proven to be a landmark case regarding a coparcener’s right to execute the will and regarding a women’s right over her husband’s testamentary. The case has come to a halt after 65 long years by dismissing all the appeals of the claims made by the appellants against the decision of the Madras High Court.

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Introduction

“Patriotism is the last refuge of the scoundrel”,[1] rightly said by Samuel Johnson in 1775. It seems that the charge of sedition is the last refuge for the Government of India to silence the dissent. An analysis of the law of sedition reveals how state power is established by brandishing the ultimate political instrument in a democratic country i.e., ‘public opinion’.

In the past few years, we have witnessed many such instances as a horrendous example of authoritarian government stifling dissent on the garb of sedition. Few recent examples are firstly sedition charges filed against a teacher and a woman whose 6 years old child participated in a school play against CAA-NRC in Bidar, Karnataka[2]. Secondly, against Sharjeel Imam, an activist, for allegedly delivering inflammatory speeches at Aligarh Muslim University[3] and thirdly, against 50 students from Tata Institute of Social Sciences, Mumbai for raising slogans in support of Sharjeel Imam.[4] “In this cases, sedition law has been misused in defiance of Supreme Court rulings or advisories clarifying their scope. In 1962, the Supreme Court ruled that action or speech constitutes sedition only if it incites or tends to incite disorder or violence. Yet the government continue to charge people with sedition even when that standard is not met.

The word ‘Sedition’ is thus extremely nuanced and needs to be applied with caution. It is like a cannon that ought not to be used to shoot a mouse; but the arsenal also demands possession of cannons, mostly as a deterrent, and on occasion for shooting.”

Since the law of sedition came into operation in 1870, it has continued to be used to stifle voices of dissent, protest or criticism of the government. While Indian courts have generally protected freedom of expression, their record is uneven.” The equivocal invoking of the provision has put it in the question as well as the spotlight of media, yet there has been no effort in respect to its possible repeal by the government. 

The Sedation law in India

Section – 124(A) of the Indian Penal Code explains “Sedition” in magnanimous and broad terms. It reads: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or aims to excite disaffection towards the Government established by law in India, shall be punished with im­prisonment for life.”[5] While it covers the crimes that come under the law it does not give a precise definition of the term ‘sedition’ itself.

Sedition meaning: Sedition in the ordinary sense means a stirring up of rebellion against the Government. Sedition includes all the acts and practices which have for their object to excite discontent or disaffection towards the Constitution, or the Government, or Parliament to create a public disturbance or to lead to civil war, and generally all the endeavours to promote public discord or disorder. In Rex v. Adler[6] the court defined the law of sedition in the following words, “Nothing is clearer than the law on this head – namely, that whoever by language, either written or spoken incites or encourages other to use physical force or violence in some public matter connected with the State, is guilty of publishing a seditious libel. The word “sedition” in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or an uproar; it implies violence or lawlessness in some form…” 

Section 124(a) History of Sedation Laws in India

The law of sedition as provided for in Section 124A of the Indian Penal Code has undeniably had an extraordinary history. The sedition law was enumerated as an offence through clause 113 of the Draft Indian Penal Code by Thomas Macaulay in the year 1837, but it was only in 1870 that the provision for sedition was added by the IPC (Amendment) Act, specifically to deal with revolution and dissent against colonial rule. Gandhi noted in his trial that some of the most loved of India’s patriots have been convicted[7] under Section 124A. Sedition in colonial India became synonymous with nationalism. This provision was later on replaced by the present Section 124A by an amending Act of 1898. 

The first recorded state trial for sedition is that of  Queen-Empress v. Jogendra Chunder Bose[8] where Bose, the editor of the newspaper ‘Bangobasi’ wrote an article criticizing the ‘Age of Consent Bill’ for posing a threat to the religion and for its coercive relationship with the Indian Citizens.

This controversy and debate over the sedition law became most evident in the case of one of the most famous cases of sedition trails in the history of India, i.e. the case of Bal Gangadhar Tilak, who was booked under this law thrice.[9] In Queen Empress v. Bal Gangadhar Tilak[10], the British government claimed[11] that Tilak’s speeches on the killing of Afzal Khan by Shivaji had prompted the murder of two British officers in Pune. Newly promoted Justice James Strachey presided over this trial, and broadened the scope of section 124A in the proceedings by equating “disaffection” to “disloyalty”. He interpreted that the term “feelings of disaffection” meant hatred, enmity, dislike, hostility, contempt, and every form of ill will towards the government[12].

In 1922, Gandhi was brought to court for his articles in Young India magazine. While appearing in court, Gandhi famously denounced the law against sedition in the court and referred S.124(A) as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”[13].

Later, in constituent assembly debates as well the issue of sedition was anxiously discussed. After much discussion finally an amendment was moved to drop the word ‘sedition’ and not allow it to infringe upon freedom of speech and expression.

On 26 November 1949, when the constitution was adopted the word indeed disappear from the constitution, but the S.124A stayed in the Indian Penal Code. Then in 1950, two supreme court judgements[14][15] led the Nehru government to introduce much-maligned first amendment. Where, Jawaharlal Nehru. India’s first prime minister, criticized the law during a parliamentary debate on free speech in 1951, in which he said: “Now so far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.”[16]

Yet 70 years later, the law remains on the books. Many dissenters, human rights activists, and those critical of the government have been charged under it, including in recent times.[17

Constitutionality of the Section – 124(A): Post Independence

In 1950’s, three important judgements were passed with regards to sedition laws. These were Tara Singh Gopi Chand v. The State[18], Sabir Raza v. The State[19] and Ram Nandan v. State[20]. The courts in the first two mentioned case i.e. the Tara Singh Decision and Sabir Raza Decision were of the opinion that S.124A of the Indian Penal Code had become void on the enforcement of the Constitution of India.

It was Ram Nandan v. State of U.P, the first case to deal with the constitutionality of the S.124(A) where the Allahabad High Court held, “Section 124-A, Indian Penal Code, is ultra vires of Article 19(1) of the Constitution, both because it is not in the interests of public order as well as because the restrictions imposed thereby are not reasonable restrictions. This Section is, therefore, not saved by the reservations contained in Article 19(2) of the Constitution, and should be declared to be void.”[21]

But this decision of the Hon’ble High Court was overruled by the Hon’ble Supreme Court in the case of Kedarnath Das v. State of Bihar[22], and held Section 124-A, intra vires. The judgement outlined that – “disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means”.

The five-judge decision clarified the law on sedition by clearly stating that “a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”  

In September 2016, the Supreme Court had reiterated these necessary safeguards and in the case of Shreya Singhal & Ors. v. Union of India[23], The Court highlighted the distinction between ‘advocacy’, and ‘incitement’, and how restrictions under Article 19(2) ought to be strictly interpreted to not include ‘innocent speech’. In the words of the SC, “The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views.” 

In the case of Kanhaiya Kumar v. State (NCT of Delhi)[24],  the petitioner, charged under section 124A IPC approached Delhi High Court for grant of bail. Deciding upon the issue, the Court observed: “while exercising the right to freedom of speech and expression under Article 19(1)(a) of the Constitution, one has to remember that Part-IV Article 51A of the Constitution provides Fundamental Duties of every citizen, which form the other side of the same coin”. 

In the light of aforesaid judicial pronouncements, it could be stated that – unless the words used or the actions in question do not threaten the security of the State or of the public; lead to any sort of public disorder which is grave in nature, the act would not fall within the ambit of section 124-A of Indian Penal Code.[25]

Rise of the Hyper-Nationalism: What data says?

In February this year, in Bangalore, a 14-year girl stood up on a stage and began a speech with the words “Pakistan Zindabad”[26]. She was promptly arrested. Earlier this year, three students of Kashmir were arrested for raising pro-Pakistan slogans[27]. In both the cases and other similar cases very recently, the police have made several arrests on the grounds of sedition and reignited the debate around India’s Sedition law.

According to a BBC News reporter, “In India, you can be charged with sedition for liking a Facebook post, criticising a yoga guru, cheering a rival cricket team, drawing cartoons, asking a provocative question in a university exam, or not standing up in a cinema when the national anthem is being played”.[28] And the latest data suggest that this law remains as relevant as ever with sedition arrests increasing in recent years. In 2014, there were 47 cases of sedition but that number increased to 70 in 2018 (the latest year with available data)[29].

In January, more than 3,000 protesters against the Citizenship Amendment Act (CAA) were charged with sedition while in 2019, more than 3,300 farmers were charged with sedition for protesting about land disputes[30]. Though police are charging more people with sedition, few cases actually result in a conviction. Data from the country’s Ministry of Home Affairs reveals that between 2014 and 2016, 179 people were arrested on the charge of sedition. However, no charge sheet was filed in over 80% of the cases by the end of 2016. Trial could start only in 10% of cases. Unlike in colonial India, most sedition cases today rarely even go to trial.[31] One of the reasons behind this is sedition as an offence has no solid legal ground. The Constitution of India also provides freedom of speech and expression as a fundamental right which many activists and legal scholars have argued prevents sedition from labelling as an offence.

Why does India need to scrape off the Sedition Law?

The sedition Law in India can be questioned for the following reasons:

1. Colonial Law: British Government used this law to suppress the rebellious criticism, speech and views against the British rule. But this colonial law is still being used in independent India, despite having specialised laws to deal with the external and internal threats to sabotage the nation. Hence in a democratic republic where the sovereignty rests with the citizens such law has no significance.
2. In Parliament, the then Prime Minister, Jawaharlal Nehru, while introducing the Constitution (First Amendment) Act, 1951,  had identified offence of sedition being fundamentally unconstitutional and remarked that “Now so far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in variety of ways and apart from the logic of the situation, our urges are against it.”[32]
3. Sedition Law: The law of sedition is more likely to be the last refuge of the political parties which they use for their own incentives. The party in government exploits their power against dissent criticising the functioning of the government or questioning their policies. It is said so because the law has not yet been amended or repealed; despite the highest court of India has criticised the law in several instances.
4. The crime of sedition is now dwindling in relevance. An examination of the Indian Penal Code demonstrates that its other provisions are sufficient to address all threats to violence and public order, rendering S.124(A) obsolete.

Chapter VIII of the Indian Penal Code contains offences against public tranquillity. These include rioting[33], assaulting or obstructing a public servant trying to suppress a riot[34], provocation with the intent to spark a riot[35], and promoting enmity between different groups on the basis of religion, race, place of birth, residence, language etc[36]. Further, it contains a provision for punishing acts that were prejudicial to national integration[37]. It also includes being a member of, joining, hiring people to join, or continuing an unlawful assembly[38]. Minor skirmishes are covered by the crime of ‘affray’ which punishes the act of two or more persons disturbing the public peace by fighting in a public place[39]. Thus, any such act that was ‘prejudicial to the maintenance of peace & harmony’ would be punishable.

• International Standards

The International Covenant on Civil and Political Rights (ICCPR)[40], which India ratified in 1979, which provides in Article 19 that:

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
4. For respect of the rights or reputations of others;
5. For the protection of national security or of public order (ordre public), or of public health or morals.

The ICCPR is an outgrowth of the UDHR, adopted by the United Nations General Assembly in 1948[41], aforementioned article i.e. Art. 19 of which provides that:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[42]

Thus, the guarantee of freedom of expression applies to all forms of expression, not only those that fit with popular perspectives and viewpoints, as noted by the European Court of Human Rights in the seminal Handyside v. United Kingdom case:

“Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man… [I]t is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’”[43]

Under International law, also the right to freedom of expression is not absolute. Given its paramount importance in any democratic country, however, the UNHRC held that any restrictions on the exercise of this right must meet strict three-fold test i.e. such restrictions must-

1. be provided by law;
2. be imposed for the purpose of safeguarding respect for the rights or reputations of others, or the protection of national security or of public order (order public), or of public health or morals, and
3. be necessary to achieve that goal.[44]

When analysed pursuant to these standards, a number of Indian laws currently in effect impose limitations on expression that go beyond the restrictions that are mentioned and permitted by international law and, in some cases[45], appears to be with conflict with the Constitution of India. While in some cases, the Indian Supreme Court has narrowed the scope of such laws. However, the continued application of those inconsistent laws with international standards of freedom of expression makes clear that the draconian laws themselves need to be repealed or amended.

Sedition Law vis-à-vis Freedom of Speech

To give voice to the importance of the freedom of speech, John Stuart Mill argued that for the stability of a society one must not suppress the voice of the citizens, how so ever contrary it might be. In certain cases, to reach a point of right conclusion, debates and open public discussions are inevitable. Mill further advocated that a good government is the one where the “intelligence of the people” is promoted.[46]

Democracy is not synonymous with majoritarianism, on the contrary it is a system to inclusiveness, where every voice is counted.  In the unforgettable words of Charles Bradlaugh: “Better a thousand-fold abuse of free speech than denial of free speech. The abuse dies in a day but the denial slays the life of the people and entombs the hopes of the race.”[47]

Observing that the criminality and morality do not co-exist, the supreme court held that free flow of the ideas in a society makes its citizen well informed, which in turn results in good governance.[48]

The relationship of Sec 124-A of the Indian Penal Code and Art 19 of the Constitution of India is a strained relationship. The Constitution of India guarantees freedom of speech and expression in Article 19(1)(a), which provides that “all citizens shall have the right to freedom of speech and expression.”[49] The Indian Supreme Court has held that freedom of expression under Article 19(1)(a) includes the right to seek and receive information, including information held by public bodies[50]. In the case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. & Ors.[51], emphasising the importance of the freedom of speech the Supreme Court observed: “Freedom of speech goes to the heart of the natural right of an organised freedom-loving society to ‘impart and acquire information about that common interest’”.

By Article 19(2)[52], however, the constitutional right to freedom of expression is limited. In this sense, the Constitution of India is less protective of peaceful expression than the ICCPR[53]. The extent and scope of protection of free speech and expression in India is largely determined by the interpretations of the terms “in the interests of,” and “reasonable restrictions” of the various grounds listed in Article 19(2). The supreme court decisions on the same, however, have been inconsistent.

One of the example- The court has interpreted the phrase “in the interests of” in section 19(2) broadly, holding that speech that has “a tendency” to cause public disorder may be restricted even if there is no real risk of it doing so.[54] The court explained: “If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction ‘in the interests of public order’ although in some cases those activities may not actually lead to a breach of public order.”[55]

Further, the court clarified that:

“The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg.’”[56]

To the question whether Article 19(2) and Section 124-A are contradictory or compatible to each other. There are three arguments that can be made:

1. Section 124A ultra-vires the Constitution since it infringes Article 19(1)(a) and is not saved by the expression ‘in the interest of public order’[57].
2. Section 124A is not void because the expression ‘in the interest of public order’ has a wider amplitude and is not only confined to ‘violence’. It must undermine the authority of the government by bringing in hatred or contempt or disaffection towards it[58].
3. In Indramani Singh v. State of Manipur[59], it was held that Section 124A is partly void and partly valid. Exciting mere disaffection or attempting to cause disaffection is ultra vires, but the restriction under Article 19(2) to excite hatred or contempt against the Government established by law in India, is valid.

The Indian Supreme Court has made clear that only restrictions in the interest of one of the eight specified interests can pass constitutional muster.[60] In March 2015, in striking down section 66A of the Information Technology Act, the supreme court ruled that “any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2).”[61]

Suggestions

All speech-related offences should be made non-cognizable and bailable offences; so that there is at least a judicial check on the police authority acting on the basis of politically motivated complaints. This would also reduce the harmful impact of using custody and arrest as a way of harassing anyone exercising their rights of freedom of speech and expressions under Article 19(1)(a)[62].

All police departments must be instructed that decisions on whether or not to arrest someone for speech should not be based on threats of violence or disorder by those who dislike or are somehow offended by that speech. Decisions to arrest someone for speech should be based solely on an evidentiary assessment of whether or not the individual has violated a law[63].

In the case of offences under S.153-A[64] and S.295-A[65] of the IPC, it is mandatory under S. 196(1)[66] of the CrPC to obtain prior sanction of the government before taking cognizance of the offences. It is suggested to be extended to the S.124A of the Indian Penal Code i.e. Sedition.

Introduce education programs for all police officers to ensure that they are fully aware of the limitations imposed by the Supreme Court on laws restricting freedom of expression.

• Pending repeal or amendment of section 124A of the Indian Penal Code, police should be specifically informed[67] that, under applicable Supreme Court decisions:
  1. The sedition law is only applicable to speech that has the tendency or intention of creating public disorder[68].
  2. Mere criticism of the government or government policies cannot be the basis of prosecution under Indian Penal Code section 124A[69].
  3. Speech or expression perceived as disrespectful of India or its national symbols cannot, alone, be the basis of a prosecution for sedition.
  4. Consistent with the guidelines accepted by the Bombay High Court, make it mandatory for police to obtain a legal opinion in writing, along with reasons, from the law officer of the district and from the state’s public prosecutor before filing sedition charges[70].

All prosecutions and investigations to be dropped and closed into the cases where the underlying behaviour involved peaceful expression or assembly. India need to chalk out a clear plan and time table for the repeal or amendment of laws that criminalize peaceful expression or assembly and, where legislation is to be amended, consult thoroughly with law fraternity and civil society groups in a transparent and public way.

Conclusion

Against this background, there is no iota of doubt that the sedition law needs to be scrapped[71] away. It has become a weapon to threaten anyone who speaks his mind or questions the government and there is no place for it in 21^st century India. A twitter post, or a facebook comment, or participating in a protest, or a dissenting opinion is not sedition and should not be seen that as either.

Attempts to stifle dissent and free speech aren’t new. Former reign have booked activists and artists under the same law. Leaders of the opposition – the ‘Congress’- have criticised the misuse of sedition law. Yet when in power, the Congress had misused the very same law against dissidents. As historian Romila Thapar says, “We have inherited a vast number of colonial laws that were meant for a different society. Today, we are not a colony. These laws need to be reconsidered now.”[72] In India, there have been two attempts, via private member bills, in the last decade to revoke it – but both efforts were thwarted by governments. In 2018, the 21^st Law Commission issued a consultation paper seeking views on revoking sedition but its term ended before the commission could deliver its recommendations.[73]

Despite the constant demand for striking it off the statute and mounting evidence of its misuse over the years, none of the government have shown any willingness to repeal it.  In a world thus, where freedom from fear[74] is sanctioned as an international human right, one must question that if India in 2020 should even have such a regressive  and clearly unconstitutional law like sedition that seeks to send shivers down the spines[75] of citizens. But, by invoking this law over time and again, in the recent times, the government have given us the answer. They don’t seem to be bothered and any recommendations, though, would have likely fallen on deaf ears that in a participative democracy like India, where slogan – shouting is the oxygen and dissent is the blood[76], law like sedition has no place. In parliament, when asked Minister of State Home Affairs Nityanand Rai, whether sedition law is likely to be revoked, he was crisp but clear in his response “There is no proposal to scrap sedition. There is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements.”[77]

[1] Boswell 1986, p. 182

[2] BBC News. 2020. The School Play That Sent A Mother To Prison. [online] Available at: <https://www.bbc.com/news/world-asia-india-51441549> [Accessed 23 March 2020].

[3] Desk, 2020. Sharjeel Imam Row: Politics Heats Up As Police Arrest JNU Student From Bihar. [online] India Today. Available at: <https://www.indiatoday.in/india/story/sharjeel-imam-row-politics-heats-up-as-police-arrest-jnu-student-from-bihar-1641073-2020-01-29> [Accessed 23 March 2020].

[4] Mumbai Live. 2020. TISS Student Urvashi Chudawala, 50 Others Booked Under Sedition By Mumbai Police. [online] Available at: <https://www.mumbailive.com/en/crime/fir-registered-against-activist-urvashi-chudawalaand50-others-under-ipc-sec-124a(sedition)-153b-505-34-at-azad-maidan-police-station-in-connection-with-raising-of-slogans-in-support-of-sharjeel-imam-44913> [Accessed 23 March 2020].

[5] Section 124(A) of The Indian Penal Code, 1872.

[6] (1909) 22 CCLC 1.

[7] The Wire. 2020. Abolishing Sedition Would Be A Befitting Tribute To Gandhi’s 150Th Birth Anniversary. [online] Available at: <https://thewire.in/rights/abolishing-sedition-law-would-be-a-befitting-tribute-to-gandhis-150th-birth-anniversary> [Accessed 23 March 2020].

[8] ILR (1892) 19 Cal 35.

[9] National Herald. 2020. ‘The Great Repression’: The History Of Sedition In India. [online] Available at: <https://www.nationalheraldindia.com/reviews-recommendations/the-great-repression-the-history-of-sedition-in-india> [Accessed 23 March 2020].

[10] ILR (1898) 22 Bom 112.

[11] Economic and Political Weekly. 2020. ‘Disaffection’ And The Law: The Chilling Effect Of Sedition Laws In India. [online] Available at: <http://www.epw.in/journal/2011/08/perspectives/disaffection-and-law-chilling-effect-sedition-laws-india.html> [Accessed 23 March 2020].

[12] Dev, A., 2020. A History Of The Infamous Section 124A. [online] Caravanmagazine.in. Available at: <https://caravanmagazine.in/vantage/section-124a-sedition-jnu-protests> [Accessed 24 March 2020].

[13] Ibid.

[14] Brij Bhushan And Anr. v. The State Of Delhi, 1950 Supp SCR 245.

[15] Romesh Thappar v. The State Of Madras, 1950 AIR 124.

[16] Mitta, M. and News, M., 2020. Jawaharlal Nehru Wanted Sedition Law Out As Early As 1951 | Mumbai News – Times Of India. [online] The Times of India. Available at: <http://timesofindia.indiatimes.com/city/mumbai/Jawaharlal-Nehru-wanted-sedition-law-out-as-early-as-1951/articleshow/16343758.cms> [Accessed 18 March 2020].

[17] Menon, N., 2020. Kafila. [online] Kafila. Available at: <http://kafila.org/2010/12/02/kitne-aadmi-the-we-are-all-seditious-now/> [Accessed 18 March 2020].

[18] 1951 Cri LJ 449.

[19] Cri App No. 1434 of 1955.

[20] AIR 1959 All 101.

[21] AIR 1959 All 101.

[22]AIR 1962 SC 955.

[23](2013) 12 SCC 73.

[24] (2016) 227 DLT 612.

[25] Law Commission of India, Sedition, Consultation Paper, 30, (August 2018). [online] Available at: <http://www.lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf> [Accessed 14 March 2020].

[26] Pooja Dantewadia, V., 2020. Sedition Cases In India: What Data Says. [online] Livemint. Available at: <https://www.livemint.com/news/india/sedition-cases-in-india-what-data-says-11582557299440.html> [Accessed 22 March 2020].

[27] Ibid.

[28] BBC News. 2020. Why India Needs To Get Rid Of Its Sedition Law. [online] Available at: <https://www.bbc.com/news/world-asia-india-37182206> [Accessed 21 March 2020].

[29] Supra at 28.

[30] Ibid.

[31] Crime in India – Statistics, National Crime Records Bureau, Ministry of Home Affairs (2016).

[32] Supra at 18.

[33] Section 146 of The Indian Penal Code, 1872.

[34] Section 152 of The Indian Penal Code, 1872.

[35] Section 153 of The Indian Penal Code, 1872.

[36] Section 153(A) of The Indian Penal Code, 1872.

[37] Section 153(B) of The Indian Penal Code, 1872.

[38] Section 141 of The Indian Penal Code, 1872.

[39]  Section 159 of The Indian Penal Code, 1872.

[40] International Covenant on Civil and Political Rights, adopted December 16, 1966, entered into force March 23, 1976 (except art. 41, which entered into force March 28, 1979), 999 U.N.T.S. 171, reprinted in 6 ILM 368 (1967), http://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf and http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCCPR1.aspx (accessed March 20, 2020).

[41] Universal Declaration of Human Rights, adopted December 10, 1948, G.A. Res. 217A (III), 3 UN GAOR, UN Doc. A/810, p. 71 (1948), http://www.un.org/e/documents/udhr/ (accessed March 20, 2020).

[42] The right to freedom of expression is also protected in regional human rights treaties, including the European Convention on Human Rights (art.10), the African Charter on Human and Peoples’ Rights (art. 9), and the American Convention on Human Rights (art. 13), all of which draw upon the Universal Declaration of Human Rights (UDHR). These treaties and the court judgments deriving from them demonstrate the global acceptance of the rights guaranteed by the UDHR, and provide useful perspectives on the appropriate interpretation of those rights.

[43] European Court of Human Rights, Handyside v. United Kingdom, (5493/72) [1976] ECHR 5, December 7, 1976, para.49. See also R. v. Central Independent Television plc, [1994] 3 All ER 641: “Freedom of [speech] means the right to [say] things which the government and judges, however well-motivated, think should not be [said]. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible”; UN Human Rights Committee, General Comment No. 34, Article 19, Freedoms of opinion and expression (102nd session, 2011), UN Doc. CCPR/C/GC/34/2011, para. 11: “The scope of article 19(2) of the ICCPR embraces even expression that may be regarded as deeply offensive.”

[44] UN Human Rights Committee, General Comment No. 34, Article 19, Freedoms of opinion and expression (102nd session, 2011), UN Doc. CCPR/C/GC/34/2011, para. 22 (“General Comment No. 34”). The same three-part test has been applied by, among others, the European Court of Human Rights to cases under art. 10 of the ECHR, see, e.g., Goodwin v. United Kingdom, [GC] No. 17488/90, 22 EHRR 123 (1996), para. 28-37, and the Canadian Supreme Court to cases under the Canadian Charter of Rights and Freedoms, see, e.g., R. v. Oakes, [1986] 1 SCR 103, 138-139.

[45] Human Rights Watch. 2020. Stifling Dissent | The Criminalization Of Peaceful Expression In India. [online] Available at: <https://www.hrw.org/report/2016/05/24/stifling-dissent/criminalization-peaceful-expression-india> [Accessed 21 March 2020].

[46] Supra at 27.

[47] Jewish Supremacism, Freedom of Speech and My Book Jewish Supermacism. Available at: <http://davidduke.com/freedom-of-speech/> [Accessed 22 March 2020].

[48] S. Khusboo v. Kanniamal & Anr, AIR 2010 SC 3196.

[49] Article 19(1)(a) of the Constitution of India,  states that “All citizens shall have the right (a) to freedom of speech and expression.”

[50] While writing the constitution in the late 1940s, violence from the bloody partition of the country at the time of independence weighed heavily on the minds of political leaders. While establishing a democracy that enshrined freedom of expression, some were, as lawyer Rajeev Dhawan said, “very wary of giving too much room to free speech, civil liberties, due process and religious freedom.” See Rajeev Dhavan, Publish and Be Damned: Censorship and Intolerance in India (New Delhi: Tulika Books, 2008).

[51] AIR 1995 SC 2438, see also LIC of India v. Prof. Manubhai D. Shah & Cinemart Foundation, AIR 1993 SC 171.

[52] Article 19(2) of the Constitution of India, 1950 permits “reasonable restrictions… in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.”

[53] ICCPR under section 19(2) permits only restrictions that are “necessary” “for respect of the rights or reputation of others, for protection of national security or of public order (ordre public) or of public health or morals.”

[54] Ramji Lal Modi v. The State of Uttar Pradesh, 1957 SCR 860 (upholding constitutionality of section 295A of the Indian Penal Code).

[55] Ibid.

[56] S. Rangarajan Etc. v. P. Jagijivan Ram, 1989 SCR (2) 204, 226.

[57] Ram Nandan v. State of U.P, AIR 1959 All. 101.

[58] Debi Soren v. State, AIR 1954 Pat. 254. The Supreme Court has also endorsed the view of Patna High Court in so far as the expression “in the interest of public order”, is concerned. The SC is also of the opinion that the expression has a wider connotation, see Ramji Lai Modi v. State, AIR 1957 S.C. 620 and also State of U.P. v. Ram Manohar Lohia, 1960 SCJ 567. Another view is that the words “in the interests of public order” is equivalent to “for reasons connected with public order”. Walliullah, J, observed in Basudev v. Rex, AIR 1949 All. 523. (F.B.), that the expression ‘for reasons’ connected with “must mean a real and genuine connection between the maintenance of public order on the one hand and the subject of legislation on the other”. See also Ram Nandan v. State, AIR 1959 All. 101.

[59] 1955 CriLJ 184.

[60] Supra at 24, para. 17: a law restricting speech “cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the eight subject matters set out under art. 19(2). If it does not, and is outside the pale of 19(2), Indian courts will strike down such law.”.

[61]Supra at 24.

[62] Supra at 51.

[63] Supra at 47.

[64] 153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

[65]  295A. Deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs.

[66] 196. Prosecution for offences against the State and for criminal conspiracy to commit such offence. (1) No Court shall take cognizance of – any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or Section 295 A or subsection (1) of section 505] of the Indian Penal Code (45 of 1860 ). 

[67] Supra at 47.

[68] Kedarnath Das v. State of Bihar, AIR 1962 SC 955.

[69] P. Hemalatha v. The Govt. Of Andhra Pradesh, AIR 1976 AP 375.

[70] AIR 1955 SC 104.

[71] Sibbal, K., 2020. Does Sedition Law Apply To JNU & Assam Cases Or Is It Being Used As Tool To Stifle Dissent?. [online] The Print. Available at: <https://theprint.in/talk-point/does-sedition-law-apply-to-jnu-assam-cases-or-is-it-being-used-as-tool-to-stifle-dissent/179360/> [Accessed 25 March 2020].

[72] The Wire. 2020. Abolishing Sedition Would Be A Befitting Tribute To Gandhi’s 150Th Birth Anniversary. [online] Available at: <https://thewire.in/rights/abolishing-sedition-law-would-be-a-befitting-tribute-to-gandhis-150th-birth-anniversary> [Accessed 25 March 2020].

[73] Livemint.com.

[74] Ohchr.org. 2020. OHCHR | International Covenant On Civil And Political Rights. [online] Available at: <https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> [Accessed 25 March 2020].

[75] The Indian Express. 2020. BJP Will Make Sedition Law So Strong It Will Send Shivers Down Spine: Rajnath Singh. [online] Available at: <https://indianexpress.com/elections/bjp-sedition-law-strong-gujarat-rajnath-lok-sabha-elections-5673386/> [Accessed 25 March 2020].

[76] Chibber, M, 2020. Does Sedition Law Apply To JNU & Assam Cases Or Is It Being Used As Tool To Stifle Dissent?. [online] ThePrint. Available at: <https://theprint.in/talk-point/does-sedition-law-apply-to-jnu-assam-cases-or-is-it-being-used-as-tool-to-stifle-dissent/179360/> [Accessed 25 March 2020].

[77] |, A., 2020. Sedition Law Needed To Combat Anti-National Elements, No Proposal To Scrap It: Centre. [online] ANI News. Available at: <https://www.aninews.in/news/national/politics/sedition-law-needed-to-combat-anti-national-elements-no-proposal-to-scrap-it-centre20190703134507/> [Accessed 25 March 2020].

The post Sedition Law in India: Critical Analysis appeared first on LexForti .

Introduction

Gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom^[1].   

The focus on individuality and freedom is finely articulated by the legal and moral philosopher Joseph Raz, who stated, “The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives.”^[2]

Much of the Indian Constitution, too, can be viewed as a means to achieve the goal of restoring to an individual “a control over his own life and destiny”. Decades after the Indian Constitution was put in place, we still struggle to guarantee these ideals to individuals. The ‘constitutional idea of India’ still remains a distant dream for many, whether they are the untouchables, persecuted for millennia; the disabled; “menial” workers; or the subaltern, who live traumatised existences even now^[3].

The degree of unjustness rested in India’s judicial atmosphere and mindset specifically with S. 377 in place, until January 2018 — when the Supreme Court agreed to hear a petition to revisit the 2013, Naz Foundation judgement. 

Prior to this judgement the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark case of Justice K.S. Puttaswamy (Retd). & Anr. v. Union of India & Anr.,^[4] (herein ‘Puttaswamy case’) wherein the court stated that “the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine”. This judgement was believed to imply the unconstitutionality of section 377 before the landmark judgement of 2018.

Ultimately, amidst huge public coverage and massive support for the cause, the Court on 6^th September 2018, ruled unanimously in the case of Navtej Singh Johar v. Union of India^[5] holding Section 377 as unconstitutional insofar as it criminalises consensual sexual conduct between adults of the same sex overturning the 2013 ruling of Suresh Kumar Koushal v. Naz Foundation^[6] (herein ‘Koushal’) which upheld the validity of the said law. 

On the other hand, other portions of the section regarding — sexual intercourse with minors, non-consensual sexual acts and bestiality — remain in force. This verdict has lead to a sense of inclusiveness among the members. 

This brutal legislation was, introduced in 1861 during the British regime — a 16^th century law, called the Buggery Act. Originally, the section defined — whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years or with a death penalty, and shall also be liable to fine^[7]. The explanation further provided for penetration to be sufficient to constitute the carnal intercourse necessary to the offence described in this section^[8].

Developments

The bone of contention in regards to S. 377 was first raised in 2001 with an NGO (Naz Foundation and AIDS Bedhbhav Virodhi Andolan) approaching the Delhi High Court instituting the original law suit to decriminalize homosexuality. Decisively, on July 2, 2009, a landmark judgement was made by Delhi High Court, which read down S. 377 as violative of Articles 21, 14 and 15 of the Indian Constitution^[9]. Metaphorically, the judgements effect on Indian society and popular consciousness could well be described seismic, sparking off celebrations, protests, conversations, and indignation in equal measures about the morality and acceptability of homosexual behaviour^[10].   

In essence this judgement, although decriminalised homosexuality for the first time, its ruling didn’t necessarily stamp homosexuality with social legitimacy. The judgement, basically, reaffirms the problematic legal labelling of it as an act ‘against the order of nature’^[11].  

Despite the progressive judgement, further on, the Supreme Court on December 11, 2013 in the Koushal case^[12]overturned the preceding 2009 Delhi HC’s decision and upheld the validity of S. 377 mentioning it for the Parliament to take action upon the case instead of any court. 

Finally, in the Puttaswamy case^[13], adjudged on 24^th August, 2017, lead to the holding of privacy as a fundamental right by the Supreme Court and S. 377 as ‘unsustainable’ and additionally opined as, ‘the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21’ although there was still no outright declaration of its unconstitutionality.    

Navtej Singh Johar v. Union of India

In 2018, a total of five people including dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Puri filed a petition to an apex court asking to re-look the judgment passed in the case of Naz Foundation which was heard by a three-member SC bench^[14]. A five-member SC bench then heard the case comprising of—CJI Dipak Misra, and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The petitioners invoked the right to sexual privacy, dignity, right against discrimination and freedom of expression to argue against the constitutionality of Section 377. After hearing a four day plea, the bench pronounced its verdict on 6 September 2018. Announcing the verdict, the court reversed the Koushal^[15] judgement—of restoring S. 377—by stating that using a section of the IPC to victimize homosexuals was unconstitutional, and henceforth, a criminal act.

Justice Malhotra, additionally stated that, “History owes the members of this community redressal for past persecution and ignorance of the majority.”

The wording of the judgement includes such phrasing that according to it the LGBTQ members can now enjoy their personal space without getting penalized or reprimanded for it but a lot is still in a veil. They even now can’t get married or adopt a child together, or in order to be a legal guardian of a child—have to live apart. The members still have to suffer discrimination on the ground of ambiguity in the right of inheritance and other multiple fronts like family planning, life insurance policies, tax planning, etc. wherein several statues call into question their identity in the first place.

Furthermore, the rights of lesbian, gay, bisexual, and transgender population cannot be construed to be “so-called rights”. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights aren’t “so-called” but are real rights founded on sound constitutional doctrine^[16]. The court observed in the present case, while dismissing the erroneous assertions of the Koushal^[17] case.

Certain other aspects to be noted in the judgement, is the emphasis on the phraseology “carnal intercourse against the order of nature”. The court observed that Social morality changes from age to age—the law copes with life and accordingly changes take place. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. Furthermore, it was conspicuously argued that, “what is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper and curtail the inherent right embedded in an individual under A. 21 of the Constitution” besides a section of people who exercise their choice should never remain in a state of fear. Law must have the acceptability of the constitutional parameters^[18].   

Furthermore, certain sections of our society have been living in shackles of exclusion and the SC recognized this step to be one of the first in the direction of a better life, equality, rights, facilities and more for the LGBTQ+ community in India.  Moreover, pointing out the aforementioned stigma,” CJI Misra stated, “We have to vanquish prejudice and embrace inclusion and ensure equal rights. Prejudices are deeply ingrained in society. Majoritarian views and popular views cannot dictate constitutional rights. The LGBT community possess human rights like all other sections of society. Equality is essence of constitution. S. 377 is arbitrary.”^[19]

In addition to directing the Union of India to properly broadcast the fact that homosexuality is not a criminal offence and create public awareness to eliminate the stigma, the Supreme Court suggested that the Indian police force should be given be training to better understand the LGBTQ+ community^[20].

Status around the Globe

A summary of changes took place to laws criminalizing homosexuality around the world, since the repeal of S. 377 in India^[21].

Angola decriminalized homosexuality on January 23^rd, 2019. The passage, which banned same-sex relations—vices against nature, provision in its penal codes—was removed by the Parliament. Bhutan’s lower house of parliament voted to decriminalize homosexuality by an overwhelming majority, on July 7th, 2019, by amending their penal code—deleting sections 213 and 214.  The High Court of Justice in Trinidad and Tobago ruled on April 12th, 2018, that the country’s anti-buggery and serious indecency laws are unconstitutional. 

Countries like Dominica, Botswana, Barbados, Saint Vincent and the Grenadines also introduced certain changes in their legal system for progressive steps and to incorporate changes in the direction of better LGBTQ+ rights and equalities.  

Conclusion

The struggle against social and legal discrimination of the LGBTQ+ community has been long and arduous. The initial objective of decriminalising private and consensual same-sex acts has been achieved in most countries either by legislations of by courts overturning such laws, though countries, largely in Africa and West Asia still retain such laws^[22].  

Despite India being a part of the former with the landmark Navtej Singh Johar judgement, the fact remains that there’s a long way to go from decriminalization of a private, consensual, sexual relationship.  This, extremely valued and cherished judgement, seems to be the first step in the right direction of equality, life and freedoms enshrined under the Constitution for people regardless of their gender identity and sexual orientation. There is enormous hope for more legislations and support to come in place for the guarantee of further provisions and protection of rights of the LGBT community.

^[1] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

^[2] Joseph Raz, The Morality of Freedom (Clarendon Press, 1986) 360.

^[3] Upendra Baxi, “Dignity in and with Naz”, in Law Like Love: Queer Perspectives on Law (Arvind Narrain & Alok Gupta  Ed., 2011) 231.

^[4] (2017) 10 SCC 1.

^[5] (2018) 1 SCC 791.

^[6] (2014) 1 SCC 1.

^[7] Indian Penal Code, 1860 § 377 (repealed in parts).

^[8] Ibid, Explanation to the Section.

^[9] Naz Foundation v. Government of NCT , (2009) 160 DLT 277.

^[10] Shamnad Basheer, Sroyon Mukherjee & Karthy Nair, Section 377 and the ‘order of nature’: Nurturing ‘Indeterminacy’ in the law?, 2 NUJS L Rev. 433, 434 (2009).

^[11] Ibid.

^[12] Supra, note 6.

^[13] Supra, note 4.

^[14] Associate Aashi Agarwal, Decriminalization of Section 377: Reality or Facade?, Lawyered (Oct. 10, 2019), https://www.lawyered.in/legal-disrupt/articles/decriminalization-section-377-reality-or-facade/.

^[15] Supra, note 6.

^[16] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

^[17] Supra, note 6.

^[18] (2018) 1 SCC 791.

^[19] Riddhi Chakraborty, Section 377 Decriminalized: Here’s Everything you need to know, Rolling Stone India (Sept. 9, 2018, 4: 45 PM), https://rollingstoneindia.com/377-decriminalized/.

^[20] Ibid. 

^[21] Bex Montz, The Fight to decriminalize Homosexuality since the repeal of Section 377, Outright Action International (Aug. 1, 2019, 3: 37 PM), https://outrightinternational.org/content/fight-decriminalize-homosexuality-repeal-section-377.

^[22] Nayantara Ravichandran, Legal Recognition of Same-Sex Relationships in India, 5 JILS 95, 95-96 (2013-14).       

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