Articles

‘Santhara’ – Conflicts between Religious choice of a Jain and Prescription of law through judgments in the absence of Statutes.

RELIGION:

1. It is claimed that the Jain Religion dates back more than 1,000 years before Christ (24th Tirthankara Mahavira (599 BCE–527 BCE), also known as Vardhaman), from the available religious scriptures relied by the preachers of the religion. It can also be noticed while looking into the early scriptures of Jainism that the religious leaders chose not to employ Sanskrit as their language to propagate Jainism. Perhaps, they believed that Sanskrit would restrict the religion from being spread to the larger section of the society, as only Brahmins knew and were using Sanskrit at that time. Therefore it is seen from records that a non Sanskrit language which formed basis for many other dialects in the country by name ‘Ardha Magadhis’ was used to propagate Jainism. The ancient scriptures are compilation of Kahas, Rasas and Grammars collectively known as Apabhramsa. It is understandable that any religion of such ancient origin would have evolved over the years by rituals, practices, customs, usage, etc., which would have later on got codified into written text i.e., scriptures.

2. Valuable teachings of each of their leaders i.e., 24 Tirtankaras, were written into several texts which are collectively the pride of Jain religion. The most popular Tirtankara happen to be Lord Mahavira, (who is believed to be the founder of Jainism by mistake, by many people). In fact he was the last Tirtankara.

3. The religious literature is called Prakirma sutras. Sanstaraka (later on known as Santhara) is found in one of the Agam by name ‘Prakrina Agam’. This happens to be the religious recording of the concept and practise of Santhara amongst early Jains. It pronounces starvation or fasting from a particular point of time unto death. This according to the religious is a known method in Jainism to attain salvation (‘moksha’). The evidence in the religious text also shows that Lord Mahavira’s parents took Santhara and obtained salvation. Lord Mahavira is also said to have attained salvation through Santhara. Many religious and staunch practitioners of Jain religion take the religious vow of ‘Santhara’ towards their end.

4. Renunciation of all worldly pleasures and attachments and bondage and commitment of any nature to any person are essential pre-requisites for a person who can take this vow according to religious scholars of the religion. LAW:

5. Huge judicial attention was centred around a recent judgment from the Hon’ble High Court of Rajasthan in the case of Nikhil Soni vs. State of Rajasthan reported in manupatra bearing citation Manu/RH/1345/2015, judgment dated 10.08.2015. The following portions are extracted from the judgment for a better understanding and a healthy debate on the subject;
“…….
39. In order to save the practice of Santhara or Sallekhana in the Jain religion from the vice of criminal offence under section 309 IPC, which provides the punishment for suicide and Section 306 IPC, which provides punishment for abetment of suicide, the argument that Santhara or Sallekhana is an essential religious practice of the Jain religion, has not been established. We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha. There is no such preaching in the religious scriptures of the Jain religion or in the texts written by the revered Jain Munis that the Santhara or Sallekhana is the only method, without which the moksha is not attainable. There is no material whatsoever to show that this practice was accepted by most of the ascetics or persons following the Jain religion in attaining the nirvana or moksha. It is not an essential part of the philosophy and approach of the Jain religion, nor has been practiced frequently to give up the body for salvation of soul. It is one thing to say that the Santhara or Sallekhana is not suicide as it is a voluntary act of giving up of one’s body for salvation and is not violent in any manner, but it is another thing to say that it is permissible religious practice protected by Articles 25 and 26 of the Constitution of India.
……….
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43. The writ petition is allowed with directions to the State authorities to stop the practice of ‘Santhara’ or ‘Sallekhana’ and to treat it as suicide punishable under section 309 of the Indian Penal Code and its abetment by persons under section 306 of the Indian Penal Code. The State shall stop and abolish the practice of ‘Santhara’ and ‘Sallekhana’ in the Jain religion in any form. Any complaint made in this regard shall be registered as a criminal case and investigated by the police, in the light of the recognition of law in the Constitution of India and in accordance with Section 309 or Section 306 IPC, in accordance with law.”

6. Even though this case was filed by Nikhil Soni, Advocate as public interest litigation in the year 2006, the judgment was rendered by the Hon’ble High Court of Rajasthan on 10.08.2015. The prayer sought in the writ petition was for a declaration that Santhara on account of religion can be treated as a suicide and case can be lodged as per law.

7. It is to be noted that at the time of writing this article, we are given to understand that the said judgment has been assailed by one Shri Dhaniwal Jiwan Mehta before the Hon’ble Supreme Court of India and the same is likely to be heard very soon.

CONFLICT

8. Article 25 of the Constitution of India reads as follows:-
“Freedom of conscience and free profession, practice and propagation of religion;
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

9. The freedom granted by the Constitution of India appears to be restrictive freedom with liberty to the State to enact laws from time to time curtailing certain practices if found to be against public order, morality and health, and against any existing laws of the land. Perhaps the Hon’ble High Court of Rajasthan has interpreted article 25 considering the self speaking restrictions therein and bringing in sections 306 and 309 of Indian Penal Code within the meaning of the existing laws of the land.

10(i) The practice of santhara is to ultimately liberate the soul from the human body which is in other words known as “death”. If any voluntary act leads to death of a person it means suicide in ordinary parlance. People who commit suicide cannot be punished but people who attempt suicide can be punished under section 309 IPC. Whether attempt requires an act or even omission can be considered as an attempt? Not taking food or water can at best be considered as an omission. How can it be equated to an attempt to commit suicide which is normally attempted by acts such as :
a)Consumption of poisonous substances
b) Consuming sleeping pills in large quantity
c) Suicide by hanging
d) Suicide by setting oneself by fire
e) Suicide by drowning in Well, River, Sea etc.,
f) Suicide by running over of bus, train etc.,
g) Suicide by use of weapons capable of killing oneself
h)Suicide by falling from hilltop or elevated buildings/towers, etc.,
Attempt as defined in various English Dictionaries are as follows:
Oxford Advanced Learner’s Dictionary
Make an effort to achieve or complete (something difficult)
Merriam Webster: to try to do (something): to try to accomplish or complete (something)
Black’s Law Dictionary: In criminal law. An effort or endeavour to accomplish a crime, amounting to more than mere preparation or planning for it, and which, if not prevented, would have resulted in the full consummation of the act attempted, but which, in fact, does not bring to pass the party’s ultimate design. 10(ii) Aiding or abetting a person to commit suicide is punishable under section 306 IPC.

11. What is achieved after death by a person may be wholly immaterial for the law. Death leaves a void in the family and society. No welfare State can encourage voluntary death for any reason or purpose and the extension of this logic is that even for religious purpose such voluntary acts (such as starvation in the case of santhara) leading to ones death should not be entertained in law.

12. The following questions keep coming to my mind again and again while reading the recent judgment mentioned above.(a) Whether the freedom granted under article 25 of our constitution relates only to the restricted freedom to practice compulsory principles of a religion or it gives the complete freedom to practice any religious principle as propagated and promoted by the said religion out of one’s choice?(b) Whether the law has been stretched into interpretation to mean and include santhara as an act of suicide without considering the spiritual aspects of religious prescription and the elevated principle already in practice in the said religion?(c) Whether the religion of Jainism can be depicted as if prescribing suicide (through santhara) as a mode to attain moksha?It is sad that there is no convincing answers to the above questions in the judgment of the Hon’ble High Court of Rajasthan which is the subject matter of this debate. In my personal opinion, compulsion or un avoidable rules by a religion to identify it as a religion versus the choices of various elevated spiritual principles in the doctrines of various religion available to be chosen by an individual practising such religion ought to have been considered at a detailed level while interpreting provisions relating to freedom and fundamental rights guaranteed by the Constitution of India. I also feel that, ‘commission of acts ‘amounting to an attempt to commit suicide should not have been equated to self imposed ‘omissions’ (not doing required acts such as eating and drinking-fasting ) for religious reasons. These aspects ought to have been elaborately dealt with particularly when there are prerequisite conditions enshrined in the sacred religion for the practice of santhara at least when the said religious practice was going to be equated to criminal offence and termed equivalent to suicide.

13. Eventhough the Rajasthan High Court has dwelled in to the subject of santhara at length, perhaps the religious and spiritual concept of santhara was not properly covered or understood in the right perspective, the campaigners of pro-santhara movement would have wanted the High Court to have appreciated while rendering an elaborate and impactful judgment on a sensitive religious subject.

14. The following are some general compilation of some distinctive factors between suicide and santhara and the same have been enlisted herein for consideration during any healthy debate on the subject:(a) In Jainism, the concept of choosing the manner and time of one’s death is a centuries-old ritual. The devout Jains believe that Mahavira, the 24th Tirthankar, allowed Santhara, or Sallekhana, as the ultimate test of spirituality, will power, whose ultimate goal is purifying body and mind and facing death voluntarily.(b) According to the ritual, which Jains believe has been prevalent for thousands of years, a person voluntarily gives up food and water, either because of an incurable illness or due to the belief that the end is near. It is reserved only for the old and the invalid and is practised rarely.(c) Santhara or Sanlekhna is a bold spiritual decision to face the death at the final stage of life, can only be taken by a sensible person with the due permission of his dependents and a preacher after he has discharged all of his personal, family and social responsibilities.(d) In fact it is quite natural and peaceful way to bid good bye to this materialistic world simply just by the way of fasting. It is a step to exit lifecycle with dignity. Santhara thus results from feelings of fulfillment, contentment and detachment from Karma oriented world.(e)Suicide on other hand is known to be a cowardly taken decision either due to depression or due to aggression by an insane mind to escape from the hardships of life by killing himself violently and instantly and running away from the responsibilities of life causing immense hardships, emotional, materialistic and otherwise to the dependent family members and is not done with the consent of the family members and upon the advice of a preacher and after clearing all his personal, family, social commitments.

15. The compulsions of a religion are different from the choices available under a religion. Jainism does not compel any person to adapt to Santhara.Whereas, Fasting in Jainism is a common practice which is followed from years, mainly during the holy quarter of a year (Chaumasa as commonly known amongst jains), basically to quit food & water, not necessary until death. Moreover every religion has prescribed and promoted fasting and self inflicted pains as supreme sacrifices to please the almighty and thereby become less of “you” and more of the “divine” and thereby walk the path of thorns to attain “moksha”, “nirvana”, “salvation” etc. There is huge media report about enactment of live crucification scenarios as it took place for Jesus Christ on the good Friday every year at Philippines. It is also to be noted that the Government prescribed the use of sterilised iron nails compulsory during such enactment. Whether the choice of religious freedom is considered too important in Philippines and whether such a freedom is being curtailed even for the right purposes in our country which has given birth to the world’s most number of practising religions and faiths. Whether the words ‘choice’ and ‘freedom’ is being tinkered and tampered with by judicial precedents are all answers that will hopefully come out in detailed manner from our coveted and academically rich apex court in the days to come.

M.L.Joseph
Managing Partner
Chennai Law Associates

This Article aims to study in detail the enforceability of foreign Judgements/decrees passed by a foreign court and the scope of Sec. 13 of the Civil Procedure Code, 1908.

With the advent of globalization and with India poised as a major international and global player in the world economy, it is apposite to consider the law concerning enforcement of foreign judgments in India. In law, the enforcement of foreign judgments is the recognition and enforcement rendered in another (“foreign”) jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement. The “recognition” of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another “foreign” country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.

 Recognition will be generally denied if the judgment is substantively incompatible with basic legal principles in the recognizing country.

However, the Code of Civil Procedure, 1908 has defined Foreign Court and Foreign Judgements as:-

Section 2 of the CPC, 1908

(5) “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;

(6) “foreign judgment” means the judgment of a foreign Court;

In other words, a foreign judgment means an adjudication by a foreign court on a matter before it.

ENFORCING FOREIGN JUDGMENTS IN INDIA

A foreign judgment can be enforced in India in one of two ways:

1. Firstly byfiling anExecution Petition under Section 44A of the CPC (in case the conditions specified therein are fulfilled).

In other words – Judgments from Courts in “reciprocating territories” can be enforced directly by filing before an Indian Court an Execution Decree.

2. Secondly byfiling a suit upon the foreign judgment /decree

In other words – Judgments from “non-reciprocating territories,” such as the United States, can be enforced only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment. The foreign judgment is considered evidentiary. The time limit to file such a law suit in India is within three years of the foreign judgment.

However, “reciprocating territory” is defined in explanation 1 to Section 44A of India’s Civil Procedure Code as:

“Any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare as a reciprocating territory.”

The List of the Reciprocating Territories as per the Provisions of Section 44 A of the Code of Civil Procedure, 1908, is as under :

1. United Kingdom
2. Singapore
3. Bangladesh
4. UAE
5. Malaysia
6. Trinidad & Tobago
7. New Zealand
8. The Cook Islands (including Niue)and The Trust Territories of Western Samoa
9. Hong Kong
10. Papua and New Guinea
11. Fiji
12. Aden.

44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in [India] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

“The Supreme Court held in the case of Moloji Nar Singh Rao vs Shankar Saran AIR 1962 SC 1737 that a foreign judgment which does not arise from the order of a superior court of a reciprocating territory cannot be executed in India. It ruled that a fresh suit will have to be filed in India on the basis of the foreign judgement.”

Therefore  Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating territory are executable as a decree passed by the domestic Court. In case the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India and a fresh suit will have to be filed in India on the basis of such a decree or judgment, which may be construed as a cause of action for the said suit. In the fresh suit, the said decree will be treated as another piece of evidence against the defendant.

However in both cases the decree has to pass the test of S. 13 CPC which specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.

Sections 13 and 14 enact a rule of res judicata in case of foreign judgments. These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court and will operate as res judicata between the parties thereto except in the cases mentioned in Section 13.

 A foreign judgment may operate as res judicata except in the six cases specified in the section 13 and subject to the other conditions mentioned in Sec. 11 of C.P.C.

Sec. 13 of CPC, 1908:- When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of  [India] in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained as opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in [India].

The awards and decrees of the Indian courts are sacrosanct. However, Section 13 of the Code of Civil Procedure 1908 (CPC) lays down that a foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except in few cases.

The operation of section 13 would be better appreciated by the following illustration:

 “A sues B in a foreign court. If the suit is dismissed, the decision will operate as a bar to a fresh suit by A in India on the original cause of action, unless the decision is inoperative by reason of one or more of the circumstances specified. If a decree is passed in favour of A in the foreign court and A sues B on the judgment in India, B will be precluded from putting in issue the same matters that were directly and substantially in issue in the suit in the foreign court, unless the decision is once again inoperative for the said exceptions.”

1. NOT PRONOUNCED BY A COURT OF COMPETENT JURISDICTION

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, AIR 1973 Mad. 141, it was alleged by the respondent that since he was not a subject of the foreign country, and that he had not submitted to the jurisdiction of the Foreign Court (Singapore Court), the decree could not be executed in India. The Appellant, in defense of this argument, stated that the Respondent was a partner of a firm which was doing business in Singapore and had instituted various suits in the Singapore Courts. Therefore, the Appellant argued, that the Respondent had accepted the Singapore Courts jurisdiction. The Court held that it was the firm which had accepted the jurisdiction of the foreign Court and the Respondent, in an individual capacity, had not accepted the jurisdiction. This was one of the reasons for which the High Court held that the decree against the Respondent was not executable.

The High Court in the above case had referred to a decision of the Madras High Court in the case of Ramanathan Chettiar v. Kalimuthu Pillai AIR 1914 Mad. 556, which lays down the circumstances when the foreign courts would have jurisdiction under this Section. The circumstances mentioned are as follows:

 a)Where the person is a subject of the foreign country in which the judgment has been obtained                             against  him on prior occasions.
b) Where he is a resident in foreign country when the action is commenced.
c) Where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later.
d) Where the party on summons voluntarily appears
e) Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained.

In the case of  Oomer Hajee Ayoob Sait v. Thirunavukkarasu Pandaram, the Madras High Court while dealing with the issue of submission to jurisdiction held that mere  conduct or circumstances indicative of intention to submit to the jurisdiction is enough to derive a conclusion of submission to jurisdiction. In the present case, during the pendency of the suit, plaintiff effected attachment before judgment of certain property of the defendant and the defendant by a letter acknowledged the attachment and requested merely for a concession, which was not a conditional request and when the offer is refused and the defendant remained ex parte and the suit was decreed, it was deemed that the defendant submitted to the jurisdiction of the foreign Court.

In the case of British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries Ltd.the Supreme Court held that even though the defendant had taken the plea of lack of jurisdiction before the trial Court but did not take the plea before the Appeal Court or in the Special Leave Petition before the Supreme Court, it amounted to submission to jurisdiction.

           PROPOSITION

By reading the aforesaid cases under Section 13(a) of CPC the following proposition may be laid:

In case of actions-in-personam, a Foreign Court may pass a decree or judgment against an Indian defendant, who is served with the summons but has chosen to remain ex parte. But the said judgment or decree may be enforceable against such a defendant in India,  only if by fulfilling any of the following conditions it can be shown that the Foreign Court had jurisdiction upon the Indian  defendant:

(a)   Where the person is a subject of the foreign country in which the judgment has been obtained against him on prior occasions.

(b)   Where he is a resident in foreign country when the action is commenced.

(c)    Where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later

(d)   Where the party on summons voluntarily appears

(e)   Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained.

2. Not given on the merits of the case:–

 The fountainhead of all decisions under this head has been the decision of the Privy Council in the case of D.T. Keymer v. P. Viswanatham. In this case,  a suit for money was brought in the English Courts against the defendant as partner of a certain firm, wherein the latter denied that he was a partner and also that any money was due. Thereupon the defendant was served with certain interrogatories to be answered. On his omission to answer them his defence was struck off and judgment entered for the plaintiff. When the judgment was sought to be enforced in India, the defendant raised the objection that the judgment had not been rendered on the merits of the case and hence was not conclusive under the meaning of S. 13(b) of CPC. The matter reached the Privy Council, where the Court held that since the defendant’s defence was struck down and it was treated as if the defendant had not defended the claim and the claim of the plaintiff was not investigated into, the decision was not conclusive in the meaning of S. 13(b) and therefore, could not be enforced in India.

In deciding International Woolen Mill’s case (supra), the Supreme Court of India also noted with approval the decision rendered by the Kerala High Court in the case of Govindan Asari Kesavan Asari v. Shankaran Asari Balakrishnan Asari AIR (1958) Ker. 203wherein the Kerala High Court held as follows :-

(a) In construing section 13 of the CPC, the Indian Court has to be guided by the plain meaning of the word and expressions used in the section itself and not by other extraneous considerations. There is nothing in the section to suggest that the expression “judgment on the merits” has been used in contradistinction to a decision on a matter of form or by way of penalty.

(b) The section prescribes the conditions to be satisfied by a foreign judgment in order that it may be accepted by an Indian Court as conclusive between the parties thereto or between parties under whom they or any of them litigate under the same title. One such condition is that the judgment must have been given on the merits of the case.

“Whether the judgment is one on the merits, must be apparent from the judgment itself. It is not enough if there is a decree or a decision by the foreign court. In fact, the word “decree” does not find a place anywhere in the section.

What is required is that there must have been a judgment. What the nature of that judgment should be is also indicated by the opening portions of the section where it is stated that the judgment must have directly adjudicated upon the questions arising between the parties”.

(c) The Court must have applied its mind to that matter and must have considered the evidence made available to it in order that it may be said that there has been an adjudication upon the merits of the case. It cannot be said such a decision on the merits is possible only in cases where the defendant enters appearance and contests the plaintiff’s claim. Even where the defendant chooses to remain ex-parte and to keep out, it is possible for the plaintiff to adduce evidence in support of his claim and such evidence is generally insisted on by the Courts in India, so that the Court may give a decision on the merits of the plaintiff’s case after a due consideration of such evidence, instead of dispensing with such considerations and giving a decree merely on account of the default of appearance of the defendant.

       PROPOSITION

 Under Section 13(b) of CPC the following proposition may be laid:

 A judgment or decree passed by a Foreign Court against an Indian defendant, who has     chosen to remain ex-parte, may not be enforceable against him, until unless it can be shown that the said judgment was passed after investigation into, and leading of evidence on the plaintiff’s claim

 3.Where the judgment is passed disregarding the Indian Law or the International Law. –

      In the case of Panchapakesa Iyer v. K.N. Hussain Muhammad Rowther, the facts were that the foreign Court granted the probate of  a will in the favour of the executors. The property was mostly under the jurisdiction of the foreign Court, but some of it was in India. A suit came to be filed by the wife of the testator against the executors for a claim of a share in the property. The suit of the widow was decreed and a part of it was satisfied. The remaining part the widow assigned in favour of the Plaintiff in the present suit. In the present suit the Plaintiff relied upon the foreign judgment for a claim against the defendants for a share in the property within the jurisdiction of the domestic Court. One of the defences which was taken for resisting the suit was that the widow’s claim was founded upon a breach of a law in force in India. The Court observed that

“She made as the Learned Subordinate Judge has found in another part of his judgment, a claim which could not be entirely supported by the law of British India; but that is a different thing from founding a claim on a breach of the law in British India, for instance a claim in respect of a contract which is prohibited in British India.”

      Another issue which fell for the Courts consideration was that whether the foreign Court had decreed the suit on an incorrect view of International Law. In this regard the Court held that the foreign Court had adopted an incorrect view of International Law, since a foreign Court does not have jurisdiction over the immovable property situated in the other Country’s Court’s jurisdiction. Therefore the judgment was declared to be inconclusive and unenforceable in India.

 PROPOSITION

        Under Section 13(c) of CPC the following proposition may be laid:

 (i)                 A judgment or decree passed by a foreign Court upon a claim for immovable property which is situate in the Indian territory may not be enforceable since it offends International Law.

(ii)                A judgment or decree passed by the foreign Court to where before a contrary Indian law had been shown, but the Court had refused to recognise the law, then that Judgement or decree may not be enforceable. However if the proper law of contract is the foreign law then this may not be applicable.

 Where the proceedings in which judgment was obtained are opposed to natural justice –

  In the case of Sankaran Govindan v. Lakshmi Bharathi, the Supreme Court while interpreting the scope of S. 13(d) and the expression “principles of natural justice” in the context of foreign judgments held as follows:

“… it merely relates to the alleged irregularities in procedure adopted by the adjudicating court and has nothing to do with the merits of the case. If the proceedings be in accordance with the practice of the foreign court but that practice is not in accordance with natural justice, this court will not allow it to be concluded by them. In other words, the courts are vigilant to see that the defendant had not been deprived of an opportunity to present his side of the case. … The wholesome maxim audi alterem partem is deemed to be universal, not merely of domestic application, and therefore, the only question is, whether the minors had an opportunity of contesting the proceeding in the English Court. If notices of the proceedings were served on their natural guardians, but they did not appear on behalf of the minors although they put in appearance in the proceedings in their personal capacity, what could the foreign court do except to appoint a court guardian for the minors.”

PROPOSITION

Under Section 13(d) of CPC the following proposition may be laid:

The Foreign Court which delivers the judgment or decree must be composed of impartial persons, must act fairly, without bias in good faith, and it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case, in order to avoid any allegation of not fulfilling the principles of natural justice in case the judgment or decree comes to the Indian court for enforcement. Unless this is done the judgment or decree passed by a foreign Court may be opposed to Principles of Natural Justice.

 Where it has been obtained by fraud-

 In the case of Sankaran v. Lakshmi the Supreme Court held as follows:

 “In other words, though it is not permissible to show that the court was mistaken, it might be shown that it was misled. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely that on the merits, the decision was one which should not have been rendered but that it can be set aside if the Court was imposed upon or tricked into giving the judgment.”

  PROPOSITION

             Under Section 13(e) of CPC the following proposition may be laid:

“In case the plaintiff  misleads or lies to the Foreign court and the judgment is obtained on that basis, the said Judgment  may not be enforceable, however if there is a mistake in the judgment then the Indian courts will  not sit as an appeal Court to rectify the mistake”.

 Where it sustains a claim founded on a breach of any law in force in India –

In the case of I&G Investment Trust v. Raja of Khalikote, it was held as follows:

“It is argued that the Orissa Money Lender’s Act precludes a decree being passed for more than double the principal amount and in passing a decree, based on a claim which violates that rule, the English Court sustained a claim founded on the breach of a law in force in the State of Orissa.  I am unable to accept the argument.  The claim was not based on the law as prevailing in India at all.  Rightly or wrongly, the plaintiffs alleged that the parties were governed not by the Indian law but the English Law.  The English Court accepted that plea and were consequently not sustaining a claim based on any violation  of the law in India.  Suppose, that the defendant had submitted to the jurisdiction of the English Court and that Court passed a decree.  Such a decree would by implication have decided that the defendant was bound by English Law and that the Orissa Money Lender’s Act did not apply.  Such a decision would be binding from the international point of view and the point could not be further agitated in these Courts.”

PROPOSITION

             Under Section 13(f) of CPC the following proposition may be laid:

 A judgment or a decree,  passed by a foreign court, on a claim founded on a breach of any law in force in India may not be enforceable. However, in case it is based upon a contract having a different “proper law of the contract” then it may be enforced.

With the liberalization of Indian economy and the globalization of business activities, there is now almost a free flow of foreign capital/funds in India and similarly Indian companies are increasingly investing in foreign companies. Naturally, in many such international contracts, there are provisions for settlement of inter-se disputes through arbitration at International level or through the adjudication of disputes by the foreign courts. While routinely signing such international contracts may not be in vogue, but still many Indian companies assume that just like in India, litigation in foreign courts will also be protracted and time consuming and that somehow the Indian companies can stall the enforcement of decrees passed by the foreign Courts against Indian companies.

“Recently the Bombay High Court had rendered a judgment ordering admission of a winding up of an Indian company based on the decree passed by a foreign court”

 The Bombay High Court has passed a judgment in China Shipping Development Co. Limited v. Lanyard Foods Limited (2007-77 SCL 197-Bom) wherein the High Court has held that a petition for winding up of an Indian company would be maintainable on the basis of judgment of foreign Court. In the above case before the Bombay High Court, the foreign company delivered cargo to the Indian company in compliance with requests made by the Indian company and in the process the foreign company had incurred certain liabilities towards third parties and it had to pay certain amount in legal proceedings and therefore, in terms of the letter of indemnity issued by the respondent Indian company, the foreign company claimed the amount from the respondent Indian company, which denied its liability and therefore the foreign petitioner company initiated legal proceedings against the Indian company in the English Courts as provided in the Letter of Indemnity. The respondent Indian company did not file defence and therefore the English Court passed ex-parte  order awarding certain amount in favor of the petitioner foreign company and the foreign court’s order made it clear that the said order was passed on consideration of evidence and was a judgment granted on merits of the claim filed by the foreign company. By a notice issued under sections 433 and 434 of the Companies Act, 1956, the petitioner foreign company called upon the respondent Indian company to pay the amount due under the order of the English Court. As the respondent Indian company still did not pay the amount,the Petitioner foreign company filed a petition for winding up of the Indian company. In the above circumstances since the records of the case manifestly revealed that the respondent Indian company was unable to pay its debts, the petition for winding up was admitted vide order dated 4.4.2007 under sections 433 and 434 of the Companies Act, 1956.

Therefore the Analysis of the legal issues involved in enforcement of foreign decrees in India emphasizes the need for the Indian business sectors not to treat the summons received from foreign courts casually and enter appearance and make submissions against the plaint initiated in the foreign courts. Otherwise, to contend at a later stage that the foreign decision/decree is not based on “merit” and does not conform to the provisions of the Indian Civil Procedure Code, may turn out to be too much of a risk and may jeopardize the protective umbrella which the Indian companies are so accustomed to while dealing with litigations in Indian courts.

AASHISH.M DAFARIA
CHENNAI LAW ASSOCIATES

IS THE CRIMINAL JUSTICE DELIVERY SYSTEM SUCCUMBING TO FEARLESS ACCUSED MORE THAN THE HAPLESS VICTIMS..?

Are you sleeping in peace everyday ?? Aren’t you afraid ??

I was sleepless last night. I was questioning myself whether we are safe here ?

Two brutal murders in last 2 days and almost same kind of incident happened. One in Kolathur area and one in Choolai area (chennai).

Both the victims are some way related to me. I can never take a  death news easily and now it’s not just a normal death, it’s a serious and brutal slaying of innocent women for desire and greed of the culprits for others money.

The first incident happened on 20.11.14 in Kolathur, chennai –

A widow was murdered brutally using wood mounted kitchen knife by an unknown person. It’s come to our notice that some jewellery was taken away by the culprit. Case has been registered and the police have started their investigation. She had a cut on her neck and all over her body and there were blood stains  all over her house. The deceased person has two sons, one in Singapore and one working in chennai and years back her husband passed away. A neighbour noticed approximately 2 hours after the incident that the deceased was attacked and lying on the floor in a pool of blood breathing her last. She was taken to nearby hospital and was declared dead in hours time.

The second similar incident happened the very next day i.e on 21.11.14 in Choolai, Chennai. A housewife was badly attacked and killed by using a knife by an unknown person. More than 1kg of gold was taken away by the culprit. As far as I know this family had a very hard time in past and were our neighbors once, living in a small house. When all happiness was spreading as her son just got engaged and was getting married in future sometime, this drastic incident has happened. Sadly the deceased also lost her baby several years back and the child was may be less than 3. She was our neighbour. The child fell in a bath tub and lost her life due to asphyxiation. It’s sad to note that the deceased couldn’t even witness her son’s marriage which she was happy and excited about.

Who is to be blamed ? 

I will only blame the culprit who has done this heinous crime and perhaps hold the policemen equally responsible for letting something like this to happen. Killing someone for money/gold is not going to justify the need of the accused person in anyway. It’s better to earn it by working hard, labouring like what other civilised people do in this society. What I expect from the police is that they shall take necessary steps to investigate  the matter and find out the culprits behind this without much delay and render justice to the victim’s family.

Coming to a legal point of view –

Are these criminals committing this heinous crimes without any fear of law ?

Fear has become lesser an emotion than greed for money. People have started to believe that once wealth is amassed, all other aspects can be taken care or purchased. This thought has gone to the extent that even the process of law can be abused by spending money and one can get away from the clutches of law if money is thrown at the law enforcers at any or all stages of the prosecution. Even harsh laws like Goondas Act have been legislated to curb the menace of hired killing and criminalization of such acts as a profession. Murder for gain as it is legally called is on the rise due to various reasons. Desire to spend more money and lead a lavish life more than the actual means available to the person so desiring, is perhaps one of the prime reasons for such murders. Yet another reason is the desire to make quick money by any means rather than through truthful hard-work and sincere labour. Lack of patience to build richness and assets over a period of time through proper means is also one of the reason for such desires being born and making a normal mind into an evil one. Rags to riches stories being filmed and imaginary sustenance of such richness even though obtained  through shortcut methods is being believed to be true by the literate and the illiterate alike. Even though our former President Dr. APJ Abdul Kalam asked all the younger generation to dream big, think big and achieve big, many have taken to this advice in the negative sense perhaps.

Aren’t they afraid of the punishment they are going to get from the judiciary??

Is the punishment not that serious or justified ??

Do this criminals think that they can easily get away from the due process of law ?? 

The length of trial, the percentage of conviction, the punishments being outdated and not instilling fear in the accused are all reasons for the accused to believe to live in their present dream rather than be unduly worried about a harsh future. Lack of value based education and the disappearances of the importance of the moral science in schools and the undue importance of money and materialistic objects of luxury such as mobile phones, big televisions, cars and advanced bikes and the huge promotions done by Film stars and sports stars to endorse these luxury products of varied nature are also in one way or the other creating the urge to posses these things knowing fully well that their financial capacity does not permit such possession. Such purchases leads to debts and such debts pushes many a person to take the easy route of crimes of varied nature to clear their debts and to buy peace (according to them). To shun fear while committing the offence, most of the accused take to intoxication at the highest level by use of alcohol and drugs. They do this to ensure no sympathy of any nature should ever visit their mind during the commission of the said offences be it murder, theft or any other crime. Fear of punishment is one aspect and fear to commit such crime and see blood-shed, etc is another. The latter is based on psychological harshness which is being overcome by systematic practice of blockage of sympathy by individuals who resort to such crimes for sheer greed. The law of punishment in a country like ours is more human to the in-human criminals. Reformation of a criminal and the employment opportunities in the jail and the Jail products being sold in a open market are all welcome ideas to tap the under utilized huge human resources lodged in various jails on various terms of sentences imposed by court of law. However the image of a jail and the life inside jail and the Human Rights highlighted for the convicted prisoners is definitely conveying a very light message and comfortable stay except for some restriction on personal movement so far as a criminal in the making is concerned. This view of the author is exclusively personal and is not intended to bring any drastic change in the current system. Present Jails do not instill fear in any accused or even a convict. Present punishments can be subjected to longer legal challenges and entanglement leading to the accused completing his prime of the life freely outside. Speedy trial in criminal justice delivery system has been seriously resorted to by the Supreme and higher courts off-late, particularly in the last 5 years. Conviction percentage in the criminal case is also on the rise now. But the system still remains favorably placed towards the accused as the entire burden of proving the crime is cast on the State and not the wrong-doer, unfortunately under the criminal justice delivery system of our Country. Developed nations have time and again proved to the entire world that harsh punishments and a burden of proof being cast on accused after being charged with the criminal offence have indeed reduced crime rates drastically in their countries. I think to myself as to how the system can be said to be fair by allowing an accused prima-facie culpable as per the police investigation to remain silent throughout the proceeding and force the prosecution to prove each and every aspect of the guilt of the accused beyond every reasonable doubt. It is high time the burden of the prosecution be reduced and the burden of the accused be increased in criminal trial to make the accused more vulnerable to conviction and not hope for an easy acquittal in a criminal trial. Fear has to be born and grown and fear of death or Capital punishment of a few accused according to me is not real fear. Permitting accused to live a lavish life and then be awarded even a capital punishment and wide publicity of such capital punishment have all not resulted in any fear being evoked in the accused of our vast democratic country with vast human rights. More than fear awareness of one’s rights and duties and right upbringing of children and inculcating more human values should be taken up as organized programmes by the social welfare and family related Ministries of the Central and State Government.

Disrespect to human life and value for money and material luxuries even at the cost of another man’s life has got registered into many such human minds in and around us. We do not know what our friend or neighbor or even a maid servant who comes home, is thinking about our financial growth or other material aspects and what information/news about us is being circulated in our neighborhood particularly with regard to the persons available/not available in the house, locked houses, duration of our trips/visits and many such information’s are always found to have been crucial for the accused to have shown their skills at the scene of occurrence. Lack of acceptance of scientific methods like CCTV camera and need for a security in gated and non-gated communities, be it multi-storied or not and above all lack of concern for our immediate neighbours also contribute largely to the commission of such offences repeatedly in Metros. Fault can be found in the Police force mainly for delay in investigation and use of scientific tools for detection and bringing real culprits strictly before a court of law and securing maximum punishment from the court for such accused and increasing the percentage of conviction, etc. But the virus lies widespread in the society and mushrooming of criminals is going unchecked from the social angle by the people in power. Whether criminalization of politics and unrestricted entry of criminals into politics is a cause is also being seriously viewed by the Supreme Court off-late. Prohibition to contest election if convicted for more than two years irrespective of the appeal remedies is a right step in the right direction by the Hon’ble Supreme Court. We will hope for more such judicial activism in the right direction and legislation to curb such menaces and make our country a better place to live in the years to come.

*** Twist in the above said incidents –

Investigators in the second incident that happened on 21.11.14 (Choolai) have found that the husband murdered the deceased and faked the robbery of 1 KG of gold to conceal the crime. A CCTV footage from a security camera at a primary school near the couple’s house found that husband/accused returned home at the time of the murder.

And also in the first incident that happened on 20.11.14 (kolathur) – its been suspected that a family member of the deceased has committed the crime. The case is still under investigation and police/investigators are trying their best to identify the accused.

This article took shape in a discussion mode when Advocate AASHISH M DAFARIA raised the above questions on recent incidents of two brutal murders in two days in Chennai and answers are attempted by Mr. M.L JOSEPH, Managing Partner, Chennai Law Associates. 

FEAR OF THE MIGHTY – FEARLESNESS OF THE JUDICIARY /Rights, Remedies and Consequences

 On 27.07.2014 the Special Trial Judge, John Michael D’Cunha passed an order of conviction after hearing the arguments of the prosecution and defence against the former Chief Minister of Tamil Nadu, Selvi Jayalalitha and 3 others in the Rs.66.65 Crores disproportionate assets case. After coming to the conclusion that the guilt of the accused has been proved by the prosecution beyond reasonable doubts the Special Court sentenced Selvi Jayalalitha  to four years imprisonment along with a fine of Rs.100 Crores and confiscated the seized properties and also awarded the same imprisonment for other accused while awarding a lesser fine of Rs. 10 Crores each.

This article is not meant to scrutinise the merits and de-merits of the Judgment passed by the Special Trial Judge but intends to go deeper into the legalities, repercussions, ramifications surrounding the order and the propriety expected to be maintained by individuals, societies, groups etc in light of such high profile judgments.

Section 389 of the Code of Criminal Procedure lays down the procedure of suspension of sentence pending an appeal; release of appellant on bail. As per the section, the appellate court can suspend the sentence for reasons to be recorded in writing and if the convicted person is in confinement he or she can be released on bail. The section further states that the power of suspension of sentence can be exercised by the Court which has sentenced the accused without requiring the accused to invoke the appellate authority, if the term of conviction does not exceed three years. In such event the accused, subject to granting of such suspension of sentence by the trial Court itself under Section 389 (3) of CrPC, would not be required to go to the prison immediately. However in the present case as the imprisonment is for 4 years the Sessions Judge ( the Trial Court) is not at liberty to exercise such powers and  hence Selvi Jayalalitha and the other accused had to undergo imprisonment immediately. Section 389 CrPC is extracted herein below:

“Section 389 in The Code Of Criminal Procedure, 1973

389. Suspension of sentence pending the appeal; release of appellant on bail.

 (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

 Provided that the Appellate Court shall, before releasing on bail or on his own Bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term not less than 10 years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

 Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

 (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

 (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

 (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

 (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.”

Section 389 has a larger importance in the present case in view of the proviso to Section 389 (1) which was inserted by The Criminal Law (Amendment) Act, 2005. The proviso as extracted above does not make it mandatory for the appellate court to give an opportunity to the Public Prosecutor for showing cause in writing against such release if the offence is not punishable with death, imprisonment for life or if the period of punishment is less than 10 years. However at the same time the proviso does not make it mandatory for such appellate courts not to hear the objections in such cases as well. In legal parlance the courts are vested with a discretionary power to call for objections even if the period of imprisonment is less than 10 years or if the offence is not punishable with death or imprisonment for life. Therefore in the present case the accused cannot ask as a matter of right before the appellate court waive the hearing of objections of the Public Prosecutor in suspending the sentence and granting of bail. In fact after an eminent Senior Advocate of the Supreme Court filed an advance hearing petition before the Chief Justice Court in the Karnataka High Court for hearing the matter urgently the CJ had directed for the formation of special vacation bench headed by Justice Ratnakala on 1^st October, 2014. However the Bench insisted that the hearing of suspension of sentence and bail application would have to wait until a public prosecutor is appointed and specifically stated that the case required representation from the prosecution side and hence adjourned the matter perhaps by exercising the said discretion vested with the Appellate Judge.

A bare reading of the Preamble of the Representation of Peoples Act, 1951 ( RPA) makes it amply clear that the intention of the Legislators was to prevent persons involved in corrupt practices from representing the people in the House of Parliament and the House of Legislators. The Apex Court has on every occasion ensured that the spirit of the Act is protected and amendments which has the effect of diluting the legislative intention is struck down. The Supreme Court on 10^th July, 2013 gave a landmark judgment whereby a bench comprising of Justice A.K.Patnaik and Justice S.J. Mukhopadiya reported in Lilly Thomas vs Union of India reported in 2013 (3) SCC (Cr) 641 struck down Section 8(4) of the Representation of Peoples Act, 1951 as unconstitutional. The said section before being struck down by Supreme Court was brought into force by an amendment in the year 1989 whereby the disqualification as prescribed under Section 8 of the Act will not be effective until the appeal or application against an order of conviction is disposed off. This provided an opportunity for the convicted representatives to file an appeal and continue to be in power and enjoy all the fruits attached therewith for a considerably longer period of time even after conviction.  The relevant portion of the Judgment reads as follows:

“Looking at the affirmative terms of Articles 102(1) (e) and 191(1) (e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3) (a) and 190(3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.”

The question as to whether a convicted member of Parliament or a State Legislature and a sitting member of a House of Parliament or a House of State Legislature faces further punishment under the Representation of Peoples Act, 1951 besides the conviction already passed against him or her has to be answered by giving due importance to Article 102 (1) (e) and 191 (1) (e) of the Constitution of India. The said Article empowers the Parliament to pass laws that may disqualify membership in either house of Parliament. A disqualification from either the Parliament or State Legislature cannot be equated to a punishment under any of the penal laws of the land. A member of a Parliament or State Legislature is expected to follow certain standards, principles, values and the Constitution has been given sufficient powers to disqualify members indulging in any act which is in contradiction to the dignity of the post that he or she holds. As politics is perceived to be a service to the people and not an occupation or employment such disqualification cannot be termed to be a punishment but only certain checks made by the Legislatures themselves to uphold the integrity of the House of Parliament and State Legislature.

Article 20 of the Constitution of India clearly protects persons from conviction of offences retrospectively.  Article 20 reads as follows:

“20. Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence

……………………………………..”

 Therefore if the law of the land does not deem an act to be an offence at the time of commission of such act or prescribes a lesser punishment, then the person cannot be either convicted or sentenced to a higher punishment subsequently on account of amendment of any law.

From a bear reading of the excerpts of the operative portion of the Judgment of conviction and sentences many question regarding the harshness of the sentence pertaining to imprisonment for 4 years is being discussed in the print and electronic media at length and debated for both sides non-stop on different television channels. Whether the new law prescribing a minimum of 4 years and a maximum of ten years and the intention of the Legislature to bring such an enhanced punishment for the same offence and the said minimum sentence itself being 4 years have all created a psychological bench mark in the mind of the trial Judge while fixing the quantum of sentence are all nuances of Criminal Law which will remain to be answered by High Court or the Supreme Court at appropriate stages of the respective appeals and the outcome of such arguments and findings in such judgments from the appellate Courts will indeed offer great insight into such finer aspects of Criminal Law in general and post conviction consequences, rights, remedies and also provide sufficient guidelines for judicial duties  of a trial judge after recording his judgment of conviction.

While there will be voluminous arguments in the ongoing appeal regarding the quantum of sentence the impact of a new law ( Representation of Peoples Act, 1951  as it stands now) relating to disqualification of an MLA and thereby directly disqualifying  a Chief Minister in office, post conviction in a Criminal case maybe of grave concern to the first appellant, Selvi Jayalalitha since RPA enabled her to stay as an MLA and Chief Minister by filing a criminal appeal within three months and obtaining suspension of sentence alone and ensuring she doesn’t undergo imprisonment pending appeal, before the landmark judgment given by Hon’ble Apex Court. Therefore a delayed justice in view of the protracted trial which ultimately saw the striking down of a beneficial provision of law for appellants against a judgment of conviction who are members of state legislature or parliament or holding any other office on account of such membership has infact caused huge injustice to the first appellant who is a Chief Minister in power. How and whether there is a legal remedy to such an injustice has to be examined by legal experts outside the purview of the present criminal appeal. The cause for delay and the revisions and appeals filed by the accused at various stages to High Courts and Supreme Court may not be put against the accused particularly after conviction for deciding on the imposition of a heavier sentence of imprisonment. Whether the said delay has also been a parameter for the trial Judge in this case to pass the sentence of 4 years imprisonment as against the minimum of one year as it stands in law for the offences committed during the check period between 1991-1996 are finer questions of law that will be scrutinized and examined by the reputed Judges of higher Judiciary in the present appeal. The fact that any judgment of the trial Court requires a re-look by a higher Judiciary is the very basis of appellate jurisdiction of High Court and Supreme Court. It is from this fact that the right of appeal stems out. Every accused despite a judgment of conviction is statutorily entitled to challenge the said judgment and sentences under the provisions of law. If the accused was on bail throughout the trial period and the trial Judge could suspend the sentence of imprisonment if he had imposed it within the statutory slab of 3 years then in all probabilities the High Court will exercise discretion in suspending the sentence for the enhanced imposition of one year with perhaps appropriate bail conditions. Whether the appellant should remain in judicial custody for a longer period during the hearing of an application to suspend the sentence of imprisonment and fine are again absolutely discretionary powers wholly vested with the appellate Judge. The Appellant has to only await favourable interim orders at the earliest in the given circumstances.

It is unfortunate that a judgment is being discussed with utter disregard by people related to the accused or attached emotionally to the accused and organising public protest (even in a peaceful manner) particularly when the criminal case that ended in conviction was an individual case nothing to do with the rights of any State, people at large, community of linguistic or religious nature or a social issue of national or regional importance etc. It is also unfortunate that several imaginary theories without any substance including theories of conspiracy by politicians and political parties be alleged by individuals and groups against the judgment of conviction and sentences that is subjected to an appeal and now pending scrutiny by the High Court. Whether the High Court can direct print, electronic and social media from exercising restrain of the highest order to avoid scandalous and unfair public opinion being created on lower judiciary. Whether the appellate court can do it suo motto or whether the High Court in writ jurisdiction can take judicial notice of such developments are again finer areas of law which definitely requires introspection by the higher judiciary. Whether there is a bias against the appellant in the appellate court trying to guard and protect the morale of the trial Judge by unduly delaying the hearing of an otherwise normal criminal appeal in which accused are sentenced for a period of 4 years but for the high profile individuals ranked as accused before the trial court, is also a question which will have to be answered with judicial conscience by the appellate Judge.

Burning of effigies, shutdown of shops and establishments, black days, protesters mouth tied with black band, sadness and gloom and grief expressed by Ministers swearing in at a Government ceremony ( reading out of the oath of fearlessness, integrity, not showing favour etc) and demonstrating perhaps some sort of fear, lack of integrity to the sovereign function and perhaps an indication to favour at least their leader, may all have sent varied signals to the literate/ educated class on one hand and the illiterate and emotional masses following the popular leader on the other hand and result in varied reactions/consequences. The public sentiment happening voluntarily and being indirectly spread through the above acts of literate and illiterate people undoubtedly causes public nuisance and may also affect the daily routine of an ordinary person.

Law relating to fines: Whether the imposition of 100 Crore fine on A1 is justified. Does it show bias of any nature by the judge as against the accused and has the power of A1 become a reason for the trial judge to react in a more than harsh manner, perhaps causing bias to his own reasoning, for imposition of a bigger sentence and an exorbitant fine? Has a legal ego kick started during the process of judgment writing to impose the highest fine that has been imposed on an individual in a criminal case in the sentence of Indian judiciary? Whether practice of High Court insisting on payment of fine as pre-requisite condition for entertaining suspension of sentence of imprisonment and thereafter suspending only sentence of imprisonment and not the sentence of fine was another reason by the trial judge to impose such a heavy fine on an individual and make her personal liberty ( to which she is entitled pending appeal) herculean or difficult legally? Whether there is a bias against the particular accused on that portion of the sentence (fine) will all be explored at great depths by legal luminaries inside and outside the court hall in the days to come. Being popular, powerful and appearing to be rich vis-a-vis the fate of common man in prolonged litigation and post conviction sufferings before being granted personal liberty pending appeal and the moral determination and inner ego of a strict judge to ensure that justice should also be seen to be done and perhaps going a little further than the judicial requirement which “little” causes huge impact on legal and social repercussions and ramifications, will also be hopefully dealt with sufficient justification and explanation in this sensitive appeal involving various finer questions of law.

The attempt of the author has only been to view the post conviction situation of a sensitive case in all angles of law and frame searching questions which can be answered only by persons with judicial knowledge, judicial conscience and perhaps guide the society at large to act with social sense, constitutional responsibilities of individuals and communities even in the wake of unexpected or unfavourable verdicts coming against popular persons and leaders in power and the restraint required to be exercised by every responsible citizen of the country. It is only hoped that our judiciary which is an independent judiciary with a sound appellate system to cure defects if any at various stages of the case in a legal manner will definitely address even such wider issues while pronouncing judgments in such sensitive appeals.

M.L.Joseph,

Managing partner, Chennai Law Associates

(Research inputs from Nevin Sabu and Aashish M Dafaria – Advocates, Chennai Law Associates)

1. An advocate is the only person who is expected to speak for the voiceless. To speak without fear is the prime and supreme quality required for any advocate to derive the fruits of justice for his clients who are already victims of injustice from their opponents in one way or the other. Historically it has been proved that advocates/lawyers all over the world were instrumental in spearheading mass movements against corruption, injustice, racism, slavery and all forms of social injustice affecting every segment of the society in one way or the other. Fearless speech generating mass attention and creating movement to revolutionize and forcefully demonstrate the need for corrective action and call for change have all come from the advocate’s community in our country as well as abroad. The dropping standards of skill and efficiency of advocates in the past few decades has been noticed all over the country and incidents of lawlessness and the alleged unruly behaviour of some advocates causing damage to the serene and sanctified judicial system and highlighting stray incidents of bad behaviour of individual advocates who acted perhaps in their individual capacity while hiding behind their professional identity is reported to be on the rise. Such individuals have no real knowledge or responsibility of the sacrosanct profession they are practicing and forget for a moment that they are being trusted and looked upon as personalities who are champions/crusaders of social justice while taking law into their own hands. It is extremely painful when all advocates are generalized while reactions from the society are reported.

2. Identifying such lawyers or advocates who cross the limits and transgress to create disorder in an orderly society and taking action against them is well within the prescribed provisions of Penal Laws, so violated by such individuals even if they claim to practice the dignified profession of law. Thorough search into the legal records of at least reported criminal cases all over the country reveal that members of all professions, however noble or respected it may be, have acted with utmost derogation and in violation of the strictest penal laws and were tried by the judiciary and convicted to be confined to the gallows on many occasions Doctors, Teachers, Professors, Chartered Accountants, Ministers, IAS Officers, Scientists and every profession/occupation etc., are not exception to this. Can it be inferred that law is toothless to control the unruly behavior of advocates? If so no advocate should have been convicted by any court of law for the past 40 years for the crimes committed by them. What calls for such drastic change/amendment to the existing rule empowered to be formulated by the Hon’ble High Court of Madras under section 34 (1) of the Advocates Act 1961?. The rule is in the books as Rule 14 of the Madras High Court Rules framed under Advocates Act way back on January 21, 1970, that was revisited by the Hon’ble Judges of the Madras High Court after more than 45 years.

3. Existing laws for disciplinary action and for misconduct of advocates are as follows:
   I) Advocates Act, 1961.
   II) Contempt of Courts Act, 1971.
   III) Code of Criminal Procedure, 1973.
   IV) Writ Jurisdiction.

1971. I) Provisions of Advocates Act for disciplinary action is as follows:
1972. a) Section 35 provides for punishment of advocates for professional or other misconduct wherein if a complaint is received by the State Bar Council, a disciplinary enquiry is held against an advocate against whom a complaint has been made.
1973. b) Section 36 empowers the Bar Council of India to take disciplinary action on a complaint received against an advocate for professional or any other misconduct.
1974. c) Section 37 provides for an appeal to the Bar Council of India against an order of a disciplinary committee of a State Bar Council to be made within 60 days of the communication of the order.
1975. d) Section 38 provides for an appeal to the Supreme Court against an order passed by the disciplinary committee of the Bar Council of India within 60 days from the date of communication of the order.
1976. e) Section 45 provides for punishment for a person illegally practicing in courts or before other authorities.
1977. f) Section 49 empowers the Bar Council of India to make the rules for discharging its functions under the Act.
1978. II) Provisions Under the Contempt of Court Act 1971.
1979. a) The High Court is empowered to initiate sue motto contempt action against an erring advocate and the punishment under the Act is prescribed in Section 15.

III) Provisions in the Code of Criminal Procedure

1. a) Offences relating to perjury and giving false evidence in oral and documentary forms before any Court of Law as defined under section 195 of Code of Criminal Procedure.
2. b) The special procedure laid down under section 340 of the code of Criminal Procedure. If an advocate gives false evidence by way of oral or written statement in a court of law or abets his client who is a party to any litigation to do so and if evidence is recorded by the court to that effect, he can be proceeded against individually for commission of such offence by resorting to the special procedure enshrined under section 340 of the code of Criminal Procedure where the Court/Presiding Officer before whom such false evidence was given becomes the complainant before the Magistrate and procedure setting criminal law in motion can be resorted.

1. IV) Writ Jurisdiction
2. a) The Writ jurisdiction of the Madras High Court is wide enough to initiate a suo-motto writ petition and the Bar Council of Tamilnadu and also the Bar Council of India can very well be submitted to the writ jurisdiction of the Madras High Court. Specific directions to complete the disciplinary Committee’s enquiry against the erring advocates can very well be passed as against the Bar Council of Tamilnadu and also the Bar Council of India. On failure to comply with such directions/writs ordered by the High Court of Madras, contempt proceedings can be initiated against the erring officials of the Bar Council of Tamilnadu and also the Bar Council of India.

4. Where an advocate who had apparently no case on the Board of the bench, shouted slogans’ in the open court and there after hurled his shoe towards the Court thereby interrupting the Court proceedings his action, both by his words and deeds in the presence of Court amounts to gross Criminal Contempt of Court; in-re: Nandalal Balwani AIR 1999 SC 1300.

5. The embarrassment and after effect of any action against an advocate resulting into Mob reaction and the alleged orchestrated campaign by advocates associations either locally or throughout the State depending on the gravity of the action taken by the Court against advocates and inconvenience caused to the court and the Learned Judges have all been reasons for not resorting to taking action under the existing laws, which are strict and harsh enough to install discipline amongst erring lawyers. The neglect of police authorities to take action in accordance with law when the accused happens to be a lawyer/advocate sometimes at the command and orders of higher administrative authorities in the Government and for reasons not so well justified to any one are also contributing factor to the fall in standards of discipline amongst advocates. Enforcement of existing laws becomes more difficult in a practical sense when the offence committed intentionally by a mob of lawyers in utmost lawless state hiding behind some personal cause of an individual which can be redressed under the common law system (on one to one basis) even if the aggrieved person is an advocate, OR when a group of lawyers assemble under the banner of protecting linguistic rights, rights of the down trodden, caste based issues etc all in the name of social justice and taking such campaigns into the court premises, corridors and court halls with the least respect to the functioning of courts which is duty bound to deliver justice at the earliest, to avoid delay which defeats justice.

6. To curb such unruly action some steps in the right direction has already been taken by the Madras High Court by deploying CISF in the High Court Campus for security and ever since then a peaceful environment is already created in the High Court Campus.

7. Incident of a Magistrate in Gujarat who issued non bailable warrant as against the President of India and also the Then Chief Justice of India upon a petition filed by an Advocate and which was exposed in the media as a “cash for warrants” scam was reported in April 2004. Supreme Court quashed the warrants and the entire proceedings and took strict action against the Magistrate and all persons involved behind the fictitious complaint and directed the Central Bureau of Investigation to file an appropriate report on the said case and indicate whether any other similar incident have taken place. If such a grave misconduct of a Magistrate can be subjected to the existing laws of the land and strict a stringent action could be taken by the Judges of Higher Courts, then it is difficult to understand as to why the existing laws will not be insufficient to curb and regulate the alleged unruly conduct of advocates on case to case basis?

8. Sweeping powers are already existing within the reach and also within the hands of the Hon’ble High Court Judges, the amendments which have been now passed by the Madras High Court acting under the powers conferred on it under Section 34 of Advocates Act,1961 which no other High Court has apparently done in the past only indicates the thought of the judiciary (The Bench) to instill fear of grave, punitive and irreparable consequences that will be caused to the careers of the Advocates if they crossed the ‘Lakshman Rekha’ of discipline as portrayed by the Learned Judges of the Madras High Court. Whether the Learned Judges will invoke the rule against erring lawyers only or whether the term “erring” will be expanded to acts and behaviour which are sufficient enough to cause embarrassment, inconvenience and dislike of a particular Judge, before whom an advocate argues vehemently and fearlessly? Whether such apprehension of a normal practicing advocate, that he could be punished and debarred directly without any disciplinary proceedings from Bar Council and a fair hearing just because he was the reason for the displeasure of the Learned Judge before whom he argued the case, are apprehensions which need to be duly and fairly addressed by the Learned Judges of the Hon’ble High Court of Madras through proper and clear orientation programs for advocates, if the amendments have really been done in the interest of upholding tranquillity and peace within the High Court premises.

9. In my view, the reasoning that the amended rules of High court, so as to empower High court judges to deal with unruly advocates then and there, will not affect advocates who are learned and who behave well and who do not cause disturbance or nuisance to the court proceedings, will not be sufficient reason to impose the amendments on the entire section of lawyers who are now being treated unequally of their likes in other states of India. All the laws of the country have been abused by the favouring segment of people for whom such laws were enacted and there have been numerous victims of such gross abuse of various laws all over our country. Politicians in power have filed false cases and imprisoned their opponents who raised their voice in public by filing cases under the Indian Penal Code, TADA, POTA etc., disgruntled wives have resorted to filing false cases against the husbands and their entire family all over the country in large proportion, employers have filed false cases against employees and managers who left services to the dissatisfaction of the employer, false cases alleging caste atrocities are also not uncommon in our country. Therefore the fear of abuse of unlimited powers being now vested on High Court Judges for the very first time after more than 45 years and that too only on the Madras High Court Judges has given a cause for the advocates in Tamilnadu to be unhappy so or to be viewed as law offenders and irresponsible group of professionals which will definitely do no good to the already diminishing image and value of an advocate in the eyes of General Public.

10. While in-service trainings are given for all professionals and employees of all departments at various stages of their career, sadly, there are no mass orientation programs for general advocates being organised by the High court or Advocates Associations. However there are seminars on specific subjects for interested advocates happening all over the country and most of them are conducted in star hotels, at huge cost and the larger section of advocates are not aware of such programs or are not affordable to attend these programs. Very few programs on non-payment basis are organised and such programs are not properly advertised and the quality of such programs are also not upto the mark. The rich and luxurious segment of lawyers are having access to generate and accumulate their knowledge while the poor and unaffordable class, which is the major section of lawyers do not see any marked improvements in their skills or accumulation of their knowledge levels, purely for the reasons of lack of financial resources and poor coordination regarding information pertaining to such seminars and programs, which they can actually afford. High court should take up this huge responsibility of transforming the class of poor advocates in phased manners by conducting such quality programs through the Bar associations and try to increase the frequency of such programs and give incentives to advocates who attend such programs, by issuing appropriate certificates which could be considered while such advocates aspire to become Judges and occupy such other responsible government position in the judicial sector. The responsibility to groom advocates has to be seriously taken up first before using the cane to discipline them. This can be done on a regular basis in an attempt to sow the seeds of knowledge, ethics and responsibility amongst the advocate fraternity. Mere, ” law-day” oath-taking in the presence of High court judges in the Advocate’s associations as part of official ceremonies and to account for law-day celebration for the purpose of recording the same in the respective minutes book of the advocate’s associations and special guest lectures at periodic intervals that are attended largely by the advocates of intellect, responsibility and financial resource are not even noticed by the majority of the advocates for whatever reasons it may be. There may not be sufficient steps initiated either by the associations or by the High court for galvanizing a huge mass of practicing advocates who are alleged to be led astray by improper leadership or erratic mob behaviour for the slightest cause or no-cause.

11. Popular judges in the High court amongst all sections of lawyers and inclusion of the recently elevated judges from the members of the Bar can be part of an action committee to interact with lawyers group who are allegedly rude and rough and who are not very sophisticated in their approach and not polite in their talks but who are really passionate about their “cause”, irrespective of the present climate of hostile air in the High court environment. The sense of betrayal cast upon advocates who attend their cases in the High court with CISF keeping guard of the premises and the fear of advocates to move in their robes inside the High court premises and outside the court hall, which normally vests pride in any advocate is a matter of serious concern and the continuance of the same would only be to the diminishing value of the dignity of an advocate’s profession. Grave indiscipline has to be responded with iron handed action is right and well accepted principle all over the world. Whether all the members or majority of the members of Bar have behaved recklessly and irresponsibly against the discipline and decorum of the High court? is the paramount question that needs to be answered with conscience by all concerned.

12. The advocates who attend courts now are looked upon by their brother advocates as cowards and spineless people who are afraid of the alleged unfair attitude of the Hon’ble Judges of the High court. Greater interaction and trust building exercise and encouragement to practice the profession of law without giving undue importance to the persons who appear before court and by giving due importance to the subject matter that is being argued by any persons before the Hon’ble courts and above all, a compassionate and relief oriented approach at all interim stages of the proceedings and treating advocates with more affection than authority, are all definite improvements that can be done in the attitude of Judges to promote a friendly Bench-Bar climate which can be far more effective than imposing new rules and laws on the entire advocate’s fraternity at large. The Learned judges are very well aware of all these niceties and nuances and tactful behaviour but for some reason it is less resorted to and the language of authority and domination is attempted by many Judges with no great improvement in the relationship between the two groups. Unfortunately the rift is widening day by day. A boycott call by advocates is undoubtedly illegal and unjust but what else can the advocates do even if their own “cause for their career” is not heard sympathetically, compassionately and effectively by their own elder brothers who graduated to the other side from a practitioner of law to an Enforce of Law. Fair and balancing mechanism to prevent the abuse of such amendments by the High court Judges, if available under the amendments, need to be explained to the agitating lawyers and their trust should be won so as to make them call off the agitation voluntarily. If such provisions are not there in the amendments, an assurance to bring such amendments should be authoritatively pronounced on record. An erring lawyer, under the new amendments, can be suspended and later on debarred from practice by the strict action of the High court Judge. An erring Judge can only be dealt with by the Parliament under a very complicated and technical procedure known as impeachment. Thus the apprehension as to what will happen if a Judge without proper reason uses the vast powers conferred on him through the present set of amendments in a biased way, is, “the one million dollar question” that needs to be answered to the complete satisfaction of the agitating lawyers, if any truly meaningful, peaceful and amicable solution is being looked at by the judiciary as a whole.

(The attempt of the author is only to view the issue in a wholesome manner and try to look for some practical solution and long standing permanent remedies, to strengthen the Bench-Bar relationship)

M.L. Joseph, Advocate
Managing Partner
M/s. Chennai Law Associates.

PRIVATE INTERNATIONAL LAW – CUSTODY OF CHILDREN/VISITATION RIGHTS, ENFORCEMENT OF FOREIGN DECREE THROUGH WRIT JURISDICTION
Jurisdictional issues and applicability of the correct domestic law and conflict of legal remedies in Indian courts viz-a-viz foreign courts have assumed greater importance in the recent past in view of the world becoming a global village. The realm of Private International Law has assumed greater significance and dimensions with the spread of the Indian community across the globe in large numbers. Young and enterprising men and women desirous of career opportunities abroad, move on and relocate themselves for permanent settlement in foreign countries without any hesitation to satisfy their financial needs apart from enhancing their technical skills and intellectual content. We, Indians are being appreciated across the globe for our adaptability to new language, community living and altogether new lifestyles. While all these positives have come with the economic growth and the pursuit for excellence abroad in our younger generation, the most important aspects of our culture and value systems have received a true and genuine beating. As a result in many cases pertaining to Indian spouses/couples settled abroad, we can notice incompatibility of temperament (not at an acceptable marginal level but at a very high level), intolerance to accept the changed life style of either of the partners and constant stress in the marital relationship of spouses/couples living abroad with or without children. Constant stress and matrimonial discord, invariably leads one of the parties to seek redress within the legal system of the country which they have chosen to pursue their dreams.In very many cases it is not uncommon to find either the husband or the wife or the live in partner or the spouse, to abscond from the foreign soil in order to escape from the legal clutches of the country where they chose to pursue their dreams. While absconding from the foreign court’s jurisdiction in most cases we can observe that either one or more children of the couple are taken by the parent who absconds and a whole lot of proceedings are initiated in our country i.e. in India relying on the Guardian and Wards Act and other laws relating to family disputes in India. The aggrieved person domiciled in the foreign country also resorts to getting remedies legally through such courts having jurisdiction to decide issues like custody, child care, protection of children etc. from the courts of the country of domicile. Resultant outcome is passing of orders of different nature in both countries favoring either of them. Most of the times both the spouses decide to remain ex-parte in the foreign jurisdiction and orders are being passed in the absence of either of them. The following case laws from the Hon’ble Supreme Court and other High Courts has stressed the need to redirect the party approaching Indian courts to their respective country of domicile for pursuing legal remedies such as custody of minor children in the absence of any orders being passed by foreign courts. However if orders have already been passed by foreign courts the party residing in India where the wife or the husband with or without children are directed to pursue, contest and bring to finality the orders regarding custody of children in the foreign court which is the court of the country where the parties had domiciled foregoing their Indian citizenship. 1) Mrs. Isabell Singh V. Ram Sing and Anr, reported in AIR 1985 Raj 30, – “I am thus satisfied that it would be in the welfare of both Joanna and Lisa if their custody is restored to the petitioner and she is allowed to take them to the United States of America. I would accordingly direct that the Respondent Ram Singh shall handover the custody of both Joanna and Lisa to the petitioner forthwith. The petitioner is entitled and is hereby authorized to take the children to the United States of America.” 2) Mrs. Elizabeth Dinsha -Vs- Arvand M. Dinshaw & Anr, reported in 1987 (1) SCC 42 – “As already observed by us, quite independently of this consideration, we have come to the firm conclusion that it will be in the best interests of the minor child that he should go back with his mother to the United States of America and continue there as a ward of the concerned court having jurisdiction in the State of Michigan.” 3) Dr. V. Ravi Chandran –Vs- Union of India & Ors., (2010) 1 SCC 174 – “However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the Jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspect relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest if the child.” 4) Mrs. Elizabeth Packiam & Another –Vs- State of Tamil Nadu,. CDJ 2013 MHC 3660, – “Finding the petitioners have approached this court with utmost promptitude, that the minors were ordinarily residents of Australia, that no elaborate enquiry into the merits of the rival contentions is called for and it would be appropriate to allow the Courts of the Country of the minors natural habitat to decide upon custody and related issues this court allows this petition.” “…………as the minors were not ordinarily resident in India and that it would be best to leave issues relating to their custody to Courts in their country of habitat, Australia.” Both the parents are found to use minor children either one of them or all of them to some practical advantage in order to settle personal scores. While doing so either of the parents are often involved in character assassination of their counter parts. Prejudicing the tender mind of the minor children courts could cause havoc in the psyche of the young kids who are in the company of a single parent either the mother or the father. Children are taught the worst things about their father or mother living in separation due to forced circumstances to tarnish the image of their counterpart and to boost and show that the parent with whom the child is currently living is the best in the world. To satisfy their personal egos, to wreck vengeance on the other partner, unmindful of the agonizing effect that is being etched on the delicate mind of the young child such acts are consciously pursued by none other than the parents. Winning legal battles and teaching a lesson to the life partner takes centre stage and priority and the spouses are not afraid of cleaning up their savings to achieve the said goal. Some single parents are seen working overtime to make money for budgeting the legal expenses likely to be incurred in prosecuting and defending proceedings. Children also take undue advantage and increase their demands and requirements knowing fully well that certain requirements of theirs will be met if the parent with whom they are residing is made happy even by accusing the other parent. Lot of emotional undesirable changes affecting the character of the child in the long run gets registered, nurtured and projected unknowingly. The words such as co-parenting, single mother, single father etc., have all gained significance due to the recent globalization and opening of career opportunities throughout the world. Courts have also started to consider foreign judgments as binding on parties and in all the above Supreme Court decisions, we find that due respect for a foreign decree is being canvassed and subscribed with the authority by the Apex Court of our country perhaps to curb malicious prosecution, self serving litigation etc.Even though prescribed provision of Public International Law requires only signatory countries to the treaty to honour their counterpart judgments and decrees, the Supreme Court is still considering the nuances, and changes in the Private International Law has come to the aid of the spouse who had secured appropriate orders regarding custody of children from the competent court. The Supreme Court would go on to add a phrase “comity of courts” to bring in a host of other countries who are not signatories to the treaty regarding execution of foreign decrees.Writ of Habeas Corpus generally considered as a remedy for securing a detenu who is in illegal custody of either the law enforcement agency or individuals, is the writ i.e. being invoked by the aggrieved parent against whose wish and consent the minor child has been withdrawn from the country of their domicile to the country of birth of the other parent. Various guidelines have been framed by the Supreme Court and the High Courts as to when and how the writ jurisdiction can and cannot be invoked and courts have always come to the rescue of the aggrieved parent by directing the return of custody of children along with their passports with a direction to the other parent to participate in any proceedings relating to custody in a competent court in the country of their domicile. The spheres of 2 courts, the applicability of laws regarding jurisdiction, the management of litigation and the urgent interim measures regarding visitation rights of either of the parents pending litigation and the temporary custody are all aspects for which proper and effective legal remedy can be availed by invoking article 226 of the Constitution of India or Article 32 of the Constitution of India either before the Hon’ble High Courts or before the Apex Court as the case may be. The above mentioned case laws will give enough insight into the legal topic private international law – custody of children/visitation rights and enforcement of foreign decree. M.L. Joseph Chennai Law Associates

PREVENTION, PROHIBITION AND REDRESSAL OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE – AN INSIGHT INTO THE RELEVANT LAWS: Everybody shouts ” Vishaka, Vishaka” now, perhaps with much more enthusiasm than the learned Archimedes who once shouted “Eureka”, ” Eureka”. A deeper analysis and insight to the Vishaka case is what I have attempted hereunder :- 1. Recently the Print and Electronic Media were flooded with angry debates and emotional reactions over a Young Journalist being subject to sexual assault by none other than her own Chief Officer/Senior Journalist and Boss Mr.Taurn Tejpal of ever so popular Weekly Magazine Tehelka. The debate on Television Channels with reputed and Elite Panelist which included women activist, legal pundits, critiques of Media, Law and Judicial System and Social thinkers etc. Several questions were posed and answers sought to be obtained through these intellectual debates and discussions both on Television and the Newspapers. A proactive Media could enforce the Registration of an FIR for various cognizable offences including 376 IPC against Tarun Tajpal even though the victim herself was not willing to launch the Criminal prosecution during the initial stages. 2. Whether a victim’s statement is absolutely necessary to register an FIR to kick start a Criminal prosecution was one among the vital question that was being debated in the TV shows. The Code of Criminal Procedure recognizes the launching of a suo -motto criminal prosecution since the word FIR only means First Information Report. The First Information Report is prepared by the Station House Officer or the Police Inspector as the case may be under section 154 of the Code of Criminal Procedure. An FIR has to be registered with the appropriate Magistrate having jurisdiction to take cognizance of the said offence. 3. The Investigating Officer after registering an FIR has to proceed with the investigation of the crime and the powers of an Investigating Officer is well defined from sections 154 to 173 of the Code of Criminal Procedure. The powers include recording of statement of the victim, witnesses and recovery of materials/weapons used for the crime visiting the scene of the occurrence drawing Mahazar (Inventory Report) Sketches of the scene of occurrence and arrest of the accused person. A final report is then filed before the concerned Magistrate compiling the charges against the accused or giving reason for closure of the case., if no offences are made out. If the offences are made out and the accused are not arrested, a Charge Sheet popularly called as ‘C’ Report or Absconding Charge Sheet is filed by the Investigating Officer. One thing is loud and clear in the Scheme of Code of Criminal Procedure i.e. the Registration of an FIR can be done without a complaint from the victim. Any person can be the informant giving details of the particular crime. But no crime can be investigated and charge sheet filed without recording the statement of the victim. 4. The law related to Section 376 earlier known as the Provision for Punishment for the offence of rape has been amended recently. The said law is likely to be amended further and proposal to re-define the law to be read as ” Punishment for sexual assault” is also on the anvil. A larger set of Acts of varied nature are to be now brought in within the definition of Section 375 for defining sexual assault under the Indian Penal Code. 5. So far as the allegations of the victim girl who complained of sexual assault by Mr.Taurn Tejpal as could be gathered from the text of the e-mail forwarded by her to the Managing Editor of Tehelka one Ms.Shoma Choudhry is concerned, it may fall within the definition of the existing punishment for rape. 6. Sexual harassment to working women and the consequences thereof was the subject matter of the very famous case Vishaka Vs. State of Rajasthan that was decided by Hon’ble Supreme Court of India in the year 1997. The Hon’ble Supreme Court gave extensive guidelines to organization employing women. The guidelines included setting up of an Internal Grievance Committee, the subject matter that could be placed before such Grievance Committee, constitution of the said Committee to be 50 % of women members and care to be taken to appoint third party members including members from NGOs etc. The Hon’ble Supreme Court also gave a vital guideline to the recipient of the grievance /complaint to notify appropriate Law Enforcing Authority, if a complaint/grievance letter disclosed commission of criminal offence. 7. Whether the victim girl really intended to launch a criminal prosecution when she gave her complaint through an e-mail to the Managing Editor of the Tehelka could be well ascertained in unambiguous terms from a very plain reading of the e-mail itself. From what could be seen from the internet the concluding paragraph of the e-mail sought for an unconditional written apology from Mr.Tarun Tejpal to be circulated through the organization to all concerned. At this juncture my thoughts go on to Mr.Tarun Tejpal, who had apparently termed his indecent act through an SMS to the victim girl directly as an act of ” drunken banter”. The next crucial behavior that draws my attention is the apology as expressed by him for the so-called misbehavior and his self imposed punishment of stepping aside from his professional post of the ” Editor Tehelka” for a period of 6 months. The realization and the self imposed punishment which Tarun Tejpal declared in public including to the victim in private perhaps misled the Managing Editor of Tehelka Ms.Shoma Choudhry to term it as an internal affair and while doing so, in the presence of large media glare it is understandable that Ms.Shoma lost her cool and fell prey to many unexpected behavior. Whether Ms.Shoma followed the Vishaka guidelines would be a farfetched question when Tehelka did not have the Grievance Committee prescribed in the Vishaka case. When a Committee prescribed by a Judgment of the Hon’ble Supreme Court was not in place how Ms.Shoma could be expected of following one of the guidelines in the Vishaka case i.e. to forward a complaint containing allegations which could amount to the Commission of a Criminal Offence. Many a layman does not know the nuances of law, Ms.Shoma Choudhry may be a Managing Editor of Tehelka, but I feel, she is like any other layperson in law. Intensive dissection on the negligence of Ms.Shoma for not forwarding the e-mail to the appropriate Police Officer have been done in the entire cross section of media and the reason of bias and allegiance of Ms.Shoma Choudhry to Mr.Tarun Tejpal have been expressed in categorical terms as the reason that out-weighed the agony of her junior colleague which prevented Ms.Shoma Choudhry from doing her legal duty. As far as the Vishaka guidelines are concerned, they were wonderful recommendations from the Hon’ble Supreme Court which if followed could be of great relief and an important grievance redressal mechanism for working women complaining of sexual harassment at work places. Whether these guidelines have the force of law? Whether the State/Central Government framed any rules or brought any amendments subsequent to the guidelines given by the Hon’ble Supreme Court of India? Whether the guidelines are mandatory or recommendatory in nature? Whether non-compliance of the guidelines even intentionally could be punishable in law ? Whether refusal to forward the complaint would amount to partnering an accused in the crime committed by him or her? Whether the flouting of these guidelines is an offence more, morally, than legally? All these questions need not be answered in depth to find out whether there is any culpable act or criminality in the allegedly negligent act of Ms.Shoma Choudhry. The Government of India has published in the Gazette of India on 23rd April, 2013 the coming into force of an Act that has been enacted by the Parliament following the guidelines given by the Hon’ble Supreme Court in the famous Vishaka case namely THE SEXUAL HARASMENT OF WOMEN AT WORK PLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT 2013 incorporating the entire essence and contents of the guidelines given by the Hon’ble Supreme Court of India. 8. The relevant provisions of the new Act which came into force on 23rdApril, 2013 primarily directs the Employer to set-up an internal committee for handling grievances of women employees subjected to any sexual harassment at their work place. If the organization does not employ 10 persons the internal committee prescribed under the new law need not be constituted. However, the Government will also Parallely constitute a Local Complaints Committee under section 6 of the said Act which will take up cases from the establishment which does not have the internal committee in place. Any aggrieved women can make a complaint either to the Internal Committee or to the Local Complaints Committee. The Act also provides for punishment of any Employer who contravenes provisions of this Act and fails to constitute an internal committee under sub-section 1 of section 4 of the Act. The penalty for the first offence is a fine which may extend to Rs.50,000/- under section 26 of the said Act. This clarifies the whole position of the maximum extent of punishment that can be meted out to Ms.Shoma Choudhry, the employer of the young woman journalist. The Act also defines who is an Employer under section 2 (g) (ii) as follows :- 2 (g)” Employer means ……..(ii) in any work place not covered under sub-clause (i), any person responsible for the management, supervision and control of the work place. Explanation : for the purpose of this sub-clause “Management” includes the person or Board or Committee responsible for formulation and administration of policies for such organization”. Therefore Ms.Shoma Choudhry would come within the definition of Employer even though Tehelka is the establishment that employed the victim girl. 9. Now that an exhaustive legislation is in place duly enacted by the Parliament and coming into force on the date notified in the Gazette as aforesaid there may not be the need to go through the verbatim text of the Vishaka guidelines laid down by the Hon’ble Supreme Court of India in the judgment passed on 13.08.1997. It would be apt to extract a paragraph from the said judgment of the Apex Court which makes it clear that the guidelines shall be mandatorily followed until an exhaustive law is enacted by the legislature to the said effect : ” 16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution”. Therefore it is clear even from the Hon’ble Supreme Court’s verdict the new law will take over from its date of implementation and only till such time the Vishaka guidelines shall be in force. 10. One more striking feature which may be relevant for discussion at this stage is the provision relating to the duties of an Employer as provided in Section 19 of the said Act under Chapter VI. Section 19(g) and (h) are extracted for ready reference to understand the duty cast upon the Employer for initiating action under the Indian Penal Code. “(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force; (h) cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved womanso desires, where the perpetrator is not an employee, in the work place at which the incident of sexual harassment took place ”. Therefore, it is evident that there are no other statutory obligations cast upon the Employer under the said Act for initiating penal or police action. It could also be seen that the above two duties were subject to the choice and desire of the aggrieved woman. From what could be seen atleast in the Print and Electronic Media, the aggrieved woman in the present case had not expressed her choice or desire of setting the criminal law in motion with the assistance of the Employer through her written submission to the Employer. If that be so, has Ms.Shoma Choudhry violated her lawful duty imposed on her under the said Act. ? The answer can be only a ‘No’. Perhaps, no law can force or compel any person who is a totally unconnected person or a third party to launch a criminal prosecution against the choice and desire of the victim per se. It is only therefore the provision incorporating the duties of the Employer under the said Act the words ” if she so chooses” and “if the aggrieved woman so desires” are carefully worded. Violation of the Act for not setting up an internal committee is by now an admitted fact and the prescribed punishment as seen from Section 26 of the Act is a fine of maximum of Rs.50,000/-. Such an offence is also a non-cognizable one under section 27 of the Act which means no FIR can be filed for such an offence by the Police. An appropriate Metropolitan Magistrate or Judicial Magistrate of the First Class alone can try such an offence and impose the said fine. 11. Be that as it may, whether Mr.Tarun Tejpal is guilty or not guilty, whether the victim is projecting a false complaint and what offences have actually been committed by Mr.Tarun Tejpal will all have to be decided in a trial before the appropriate and competent Court of Law. Any amount of Media sentiments or emotional debates cannot change the course of trial in a Court of Law as the Judgment is based on evidences produced and proved by the prosecution to bring home the guilt of the accused on the charges leveled against the accused. Time alone will give the answer. Whether at all the victim has been left with no choice of dropping criminal action against Mr.Tarun Tejpal, to which choice she is perhaps entitled under law and whether huge psychological pressure has been created on the victim to go through the criminal prosecution in view of the suo-motto registration of the FIR in the present case are larger questions that may need answers purely from the conscience of the victim girl. However mighty a person be, law should reign supreme. There is no doubt about it. The Age-old legal maxim ” Nemo iudex in causa sua”which means no man should be a Judge of his own cause is perhaps the cardinal principle that has been first violated by Mr.Tarun Tejpal, while prescribing his own punishment that is the so-called laceration for 6 months by stepping down from the coveted post, to which he is not entitled in law. The law, of course, recognizes the offender to mend his ways, rehabilitate and come back as a better person but definitely not to one’s own liking and methods. May the Mighty law take its own course even against Mightier men who can preach well and still not practice anything that they preach. The defence of the accused and the right of fair trial and the outcome of a full-fledged trial may all go on undisturbed and a finality will definitely be seen soon through the established judicial system in our country. No man is above law and no victim is weak before the present judicial system. A word of appreciation for the victim and the moral boost and strength that is given to her across the section of media to take recourse to law rather than shying away from it may all be fine and expected of from all quarters in a civilized society, which perhaps is definitely happening now. Of-course, when good things happen there will be hue and cry and the words such as “witch-hunt” , ” prejudice to the accused “, “unfair”, “biased opinion”, “influence on the judiciary”, “undue impact on justice delivery system”, etc. will often be heard from the side of the accused. Such cry of frustration and helplessness cannot emanate from the rich and mighty. Justice dispensation to victims of sexual harassment should be ensured in the strictest possible terms and fastest possible manner to achieve reduction in crime against women and for a better civilized society. The stigma cast upon the victim girl in the society or work place after a complaint of sexual harassment is still much higher than the stigma cast on the accused who committed the offence. Of-course during the pre-trial stage or when the judgment is pronounced there is wide publicity of the accused with photograph and identity bringing a lot of insult, loss of reputation and of course some social stigma to the accused but there is no issue of trauma or damage to the psyche and career unlike the sufferings on those counts by the victim. Therefore, if any complaint is found to be false and the prosecution found to be malicious then strict action and proceedings for compensation to the falsely implicated should also be brought within the very same trial process, by bringing appropriate amendments to the existing laws. All said and done the admission of Mr.Tarun Tejpal, which led to his unconditional apology and the defence taken by him now (to which he is entitled in law) and the future defences that he may take during trial and whatever be the outcome of the said trial, one thing is loud and clear – that all was not well inside TEHELKA. Master of ” sting operation” finds himself amidst lot of dirt and stink and exposed to the public without any ” sting operation” Mr.M.L.Joseph,

Managing Partner Chennai Law Associates