“Justice must not only be done, but must also be seen to be done.”
And, it would seen to be done only if there is proper marshalling & appreciation of evidences, which is the backbone of any Judgement or Order. Though having pivotal importance, interestingly, these two terms have nowhere been defined in any statute.
Marshalling of evidence means picking up various pieces of evidence (both oral & documentary) and putting them together in a proper manner. Simply put, it is the sequencing of the evidences w.r.t each disputed point (issue or charge) to be proved. It is also a pre-condition to appreciation of the evidence.
Appreciation of evidence means analysing and assessing the worth, value, quality, reliability, and trustworthiness of a particular piece of evidence.
Simply put, it is an evaluation of the evidence adduced in a case.
Further Readings/Sources:
A book titled ‘S.D Singh’s Judgments and How to write them’ Foreword by Justice Bhagwati Prasad Beri published by EBC.
A guest post by the very talented, Satyam, who interned at the Chambers last month.
The live streaming of the court proceedings of the Gujrat Chief Justice’s court via YouTube, which started as an experiment in October last year, culminated into a formal approval to the idea in the form of The Gujarat High Court (Live Streaming of Court Proceedings) Rules, 2021, notified on the 17th July. Many are seeing it as the watershed moment of the Indian Judiciary which would usher in an era of increased transparency and accountability besides promoting greater public interest and trust in the judicial process, while some are also asking questions on its impact on the privacy and sanctity of court proceedings.
The demand for live streaming of court proceedings had been brewing for long, both in the corridors of the courts and in the common public opinion. A three-judge bench of the apex court while ruling in Swapnil Tripathi vs Supreme Court of India (2018)[1]had strongly highlighted the importance of making Justice more visible and accessible to the people. Writing about the recent technological developments like e-filing, e-payments and National Judicial Data Grid among others in areas related to Judicial Administration, Justice DY Chandrachud, in his judgement had emphasised on Lord Hewart’s eternal words – “Justice should not only be done, but should manifestly and undoubtedly be seen to be done” – the core idea behind the livestreaming of proceedings.
The importance given to open trials by the Supreme Court, however, goes back to much earlier than 2018. A nine-judge bench of the court had elaborated on the importance of open court trials for upholding the effectiveness and legitimacy of courts while ruling in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors[2]. The bench had said that trials subjected to public scrutiny act as a check to judicial caprice and create confidence of the public in the impartiality and fairness of the judicial process. The court had also invoked Bentham’s famous statement that “Where there is no publicity there is no justice. Publicity is the very soul of justice”.
Conflicting Concerns of Stakeholders
While speaking at the launch of the live-streaming facility of the Gujarat HC on the 17th earlier this month, CJI NV Ramana had expressed his keenness to implement the concept in the apex court as well. However, he also voiced his concerns on the idea of publicising court proceedings, as it may affect the objectivity of the judge by making judges a topic of widespread public discussion. The CJI is not the only one when it comes to well-founded fears, as several people have raised questions on how publicising judicial proceedings might interfere with and dilute the dignity of judicial institutions besides having the potential of infringing upon the privacy of the parties. Given the reverential status that the judiciary enjoys in the country, and the subsequent stigma that comes with being implicated in a judicial proceeding, privacy is a prime consideration for many parties and witnesses. Some also fear that the publicization of court proceedings would hamper the quality of dialogue between the lawyers and the judges, and lawyers may also start to use the platform to gain undue publicity.
While these are valid concerns, a perusal of the Supreme Court’s holding in previous cases might help in finding a middle ground and allay some of these fears. In the Naresh Sridhar case (supra), the court had said that the concept of public trials cannot be an absolute one, as there was a need to balance interests of different stakeholders by providing in-camera trials in certain cases where the confidentiality of individuals or businesses, or the delivery of Justice itself may be at stake.
In Swapnil Tripathi, the court had explored the statutory provisions dealing with the concept of open courts. Section 327 of the Criminal Procedure Code (CrPC) states that a criminal court will be an open court except in certain sensitive cases where the proceedings will be in-camera. Similarly, s. 153B of the Code of Civil Procedure (CPC) describes civil proceedings to be deemed to ordinarily take place in an open court, while giving discretionary powers to the judge as to the extent of visibility of the proceedings.
Besides the statutory provisions, the bench in Swapnil Tripathi had also interpreted several constitutional provisions as giving effect to the demand of live-streaming court proceedings. The court had observed that article 19(1)(a) of the Constitution relating to freedom of speech and expression includes the right to know and receive information, article 21 includes the right to access Justice, and article 145(4) mandates that no judgement shall be delivered by the Supreme Court except in an open court.
The Gujarat High Court Live Streaming Rules, 2021
The rules have been framed along the lines of the model guidelines issued in the Swapnil Tripathicase, and the draft livestreaming rules published by the SC in May this year. The rules have tried to strike a fine balance between the interests of the key stakeholders and have kept the proceedings of sensitive cases involving Children, Sexual Harassment Victims, Official Secrets Act, etc. out of the purview of live streaming. The rules also give Judges the choice of opting out of the live streaming with a prior intimation to the Chief Justice. The Rules also rule out the use of recordings of the proceedings as evidence and also prescribe action under the Contempt of Courts Act, 1971 and other penal laws in case of violation of the rules and misuse of the platform to garner undue publicity. By incorporating the above stipulations, the Live Streaming Rules have provided sufficient safeguards to protect the privacy of individuals and the sanctity of the process and the institution.
The initiative and the associated rules can be hailed as a good step forward towards the establishment of the ‘Rule of Law’, the foundations of which rest firmly on accessibility to Justice and understanding of the judicial process by the masses. Publicising of Judicial Proceedings will also ensure that law students, budding lawyers, and the common people of India have a ready resource to learn about the technicalities of law. This will also be a step towards fulfilling Dr BR Ambedkar’s dream of engaging the common people in the constitutional processes which he expressed when he said that “The Constitution is not a mere lawyer’s document”.
Satyam is a student of law at University of Delhi, and is exploring dimensions of law and society, and the relationship between these two.
[1] Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639
[2] Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744
The recent Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 has caused quite a stir and has left Indian netizens confused and worried about the future of the social media platforms that they relentlessly use. Thus, in this piece, I try to breakdown these Rules and hopefully answer some of the frequently asked questions.
These Rules define a social media platform as an intermediary “which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services”. According to these Rules, these social media platforms have to undertake due-diligence and establish a grievance redressal mechanism. However, the Rules cast additional obligations on ‘significant’ social media intermediaries. Through a notification dated 26th February 2021, the Central Government declared that all social media platforms having more than 50 Lakh users would be classified as ‘significant’ social media intermediaries. Thus, all popular platforms such as WhatsApp, Twitter, Facebook, Instagram, etc. are significant social media intermediaries.
At the outset, the objective of mandating social media platforms to conduct due-diligence and establish a grievance redressal mechanism sounds laudatory rather than problematic. However, the manner and extent to which these Rules mandate these platforms to observe, preserve and monitor their user’s behaviour poses a serious threat to the right to privacy of millions of Indians.
On a combined reading of these Rules and the Notification of the Central Government, it is understood that these significant social media platforms had to comply with the additional obligations by 26th of May 2021. According to these additional obligations, these platforms are required to appoint a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer.
The Chief Compliance Officer has to be a key managerial personal or senior employee. Her job profile would be to ensure compliance with these Rules and the IT Act, 2000. However, if she fails to ensure that the intermediary observes due diligence while discharging its duties, she can be held liable under the law. On the other hand, the Nodal Contact Person’s duty is “24×7 coordination with the law enforcement agencies and officers to ensure compliance to their orders and requisitions”. The Resident Grievance Officer, though has the unenviable job of acknowledging every complaint made by a user within 24 hours and disposing off such complaints within just 15 days. Apart from this, these significant social media platforms will have to publish a monthly compliance report including the details of the complaints and the action taken on those complaints.
These measures definitely force these significant platforms to function in a more transparent manner. It also ensures that user complaints are taken seriously by these platforms. However, the sudden increase in workload, especially disposing complaints in a time bound manner (which even our well-structured judiciary fails at) might be a huge challenge, especially when politically organised ‘IT cells’ -known for propagating fake news, extreme opinions and also for their hyper-sensitive reactions to opposing views- dominate these spaces. Further, compelling 24×7 coordination with law enforcement agencies will definitely raise privacy concerns, and could be used to intimidate and silence political rivals as well as these social media intermediaries themselves. (Cc-Delhi Police Special Cell).
Apart from this, ordinary law-abiding users such as you (hopefully law-abiding) and I, should be more concerned about the provisions contained in Sub-Rule 2 of Rule 4. As per this Sub-Rule, messaging apps may be compelled through a Court Order or by the Executive itself, to identify the first originator of information for the purpose of investigation, detection and prosecution of certain crimes. While most of these crimes are of serious nature, the list also includes offences related to “public order”, which is a wide term that could allow for potential misuse and abuse of this power. Even if this Rule is not misused, it is still extremely problematic. This is because, this Rule effectively kills the idea of an end-to-end encrypted confidential communication, since at any time these apps could be called on to identify the first originator of messages, thus, allowing these apps complete access to our conversations. So, if you were one of those who thought that WhatsApp’s privacy policy was worrying, then you should definitely be frightened by these Rules.
Further, the Rules explicitly encourage significant social media platforms to develop technology-based measures including automated tools to detect any information depicting rape and child sexual abuse or conduct. It is not anybody’s case that action against these deplorable acts must not be taken. It is an extremely grave and serious problem that has to be tackled. However, is encouraging the development of automated tools that could potentially be used to track and examine in-depth user behaviour, patterns and information- a potential surveillance system- the right solution? This could be a potential problem-solution mismatch. Although there are safeguards coded into the Rules such as, these measures must be proportionate and must factor-in free-speech and privacy concerns. Further, the Rules also calls for periodic review of these tools with regard to their propensity of bias and discrimination, fairness and accuracy, and privacy and security concerns.
Thus, the Rules themselves recognise that these tools could pose a serious problem to the lives of millions of users. Yet, it encourages the use of these tools and only calls on these platforms to review these issues periodically.
Lastly, if this brings you any cheer, the Government cannot ban your favourite apps. Non-compliance with these Rules does not entail a ban. Instead, these non-complying social media platforms can now be held liable for any third-party information, data, or communication link hosted by them and would also be liable for punishment under the Indian Penal Code. This, essentially means that even social media giants like Facebook and Twitter can be made liable for any criminal activity undertaken by a user on these apps.
In conclusion, it is surprising to see the State take exception to WhatsApp’s privacy policy on the ground that it violates the privacy of Indians, but at the same time, the State through these Rules has systematically weakened and diluted our claim to that fundamental, inalienable right to privacy. Hopefully, this tussle between the State and these significant social media platforms is an opportunity to bring attention back to the primary stakeholder in this debate- The User!
This is the second in a series of posts titled ‘Judgments without tears’ where we try to make complex judgments accessible and fun. A guest post by my dear friend and super talented Vishal Vyas.
Let me try unpacking Satish Chander Ahuja vs. Sneha Ahuja delivered on 15.10.2020. A 151 page judgment but a well-reasoned judgment under the Domestic Violence Act. The Apex Court in this path breaking, progressive judgment has overruled it’s previous judgment in S.R Batra and Ors. Vs. Taruna Batra and has clearly espoused that a wife is also entitled to claim a right to residence in a shared household belonging to relatives of the husband. Judgement dealt with the important questions of law pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005.
One of the questions, for instance, was about interpretation of the definition of “shared household” under Section 2(s) of Act, 2005. Whether it has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share? Another question was about the law laid down in S.R. Batra and Ors. Vs. Taruna Batra, which also interpreted the provision of Section 2(s) of Act, 2005. These were some of the important issues that the court had to adjudicate upon. To understand the judgment better, let me demonstrate facts of the case with the help of a story. Suppose, there is a father who purchased a house. After few years of the purchase, his son got married. Now, the father and the mother both are residing at the ground floor of the premises. Son and the daughter-in-law are residing at the first floor of the premises. Later, the son shifted to the ground floor owing to certain marital discord with his wife. Wife started a separate kitchen in the first floor of the house. Son, then filed a Divorce Petition under Section 13 (1) (ia) and (iii) of Hindu Marriage Act, 1955 (the 1955 Act) on the ground that his wife had treated him with cruelty. After this divorce petition, the wife filed an application under Section 12 of Act, 2005 against the whole family on the ground of emotional and mental abuse.
These proceedings were there on one side but the real complexity came when the father, who pleaded that he is the sole owner of the house & filed a suit of mandatory injunction against his daughter-in-law to vacate the premise. He also filed a permanent injunction suit restraining her to enter and reside in the house. Daughter-in-law pleaded that that the suit property is a shared household where she has right to reside. On this, the father contested that the premises is not a shared household since his son neither has any share in the suit premises nor suit premises is a joint family property. In support of his submission, he relies on judgment of this Court in S.R. Batra and Ors. Vs. Taruna Batra.
It becomes important now to have a look at the definition of “shared household” under section 2(s) of Act, 2005 which says that a
“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
Clearly, the definition uses both the expressions “means and includes”. It is a settled law that whenever the use of the word “means” followed by the word “includes” is used in a definition, it is an exhaustive definition. (Bharat Coop. Bank (Mumbai) Ltd. Vs. Coop. Bank Employees Union,(2007) 4 SCC 685) Therefore, use of both the expressions “means and includes” clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other.
Having understood that, let’s break down the definition of Section 2(s), the definition can be divided in two parts, first, which follows the word “means” and second which follows the word “includes”.
The first part reads “shared household means a household where the person aggrieved has lived or at any stage has lived in a domestic relationship either singly or along with the respondent”. Thus, first condition to be fulfilled for a shared household is that person aggrieved lives or at any stage has lived in a domestic relationship.
The second part which follows “includes” can be further sub-divided in two parts.(a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and(b) includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
From the above definition, following is clear:- (i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly.
Now, the previous decision of the Apex Court in S.R Batra Vs. Tarun Batra, which is sheet anchor of the submission of the appellant, in the present case, needs to be noticed. In the above case, it was not disputed that the house belonged to mother-in-law and her son, i.e., husband of respondent had no share. Husband had filed a divorce petition against respondent whereas respondent filed a criminal case under Sections 406, 498A, 506 and 34 of Indian Penal Code. Respondent shifted to her parents’ residence because of the dispute with her husband. She when later tried to enter the house, she found the main entrance locked hence, she filed suit to grant mandatory injunction to enable her to enter the house.
Counsel for the respondent submitted that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He also contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household. Disagreeing with this, Court said that if the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. This interpretation shall lead to chaos and would be absurd.
So, Court observed that the house in question cannot be said to be a “shared household” within the meaning of Section 2(s) of the Act, 2005. It belongs to the mother-in-law of Smt Taruna Batra and it does not belong to her husband.
Accordingly, Smt Taruna Batra cannot claim any right to live in the said house.
Clearly, laying down the law here that “wife is only entitled to claim a right to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.” Coming back to the present case, court expressed following thoughts and in the process, overturning it’s previous thoughts:
The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used for object different to what has been apprehended by this Court in S.R. Batra Vs. Taruna Batra.It was only with intent of not denying the protection to aggrieved person merely on the ground that aggrieved person is not living in the house as on the date of the application.
Shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent.
This was neither the object nor the legislative intent that wherever the aggrieved person has lived with the relatives of husband, all such houses shall become shared household.
Also, looking at the whole scheme of the Act, the words “lives or at any stage has lived in a domestic relationship” have to be given it’s normal and purposeful meaning.
Therefore, The Apex Court made it clear, in the present case, that the interpretation of definition of shared household as put by this Court in S.R. Batra Vs. Taruna Batra is not correct interpretation and the said judgment does not lay down the correct law.
The definition of shared household does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. Also, the “respondent” in a proceeding under Domestic Violence Act can be any relative of the husband. If the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived & the conditions mentioned in Section 2(s) are satisfied, the said house will become a shared household.
Accordingly, appeal was dismissed and the Daughter-in-law was “welcomed” in her “shared household”. 🙂This is what the judgment broadly seeks to clarify. A very welcome judgment- indeed. Hope you enjoyed reading it as much as I enjoyed demystifying it.
About the Author:
Vishal Vyas graduated in law in 2018 and cleared the Rajasthan Judicial Service Examination 2019 & currently undergoing his training at Rajasthan State Judicial Academy. He also Completed his LL.M in criminology in the year 2019. Vishal has a keen interest in academics and is extremely passionate about teaching, motivating & mentoring young law students and Judicial Services aspirants.
This is a guest post by Sushant Kumar (undergraduate student at Dr. RML National Law University, Lucknow)
Section 357 of the Code of Criminal Procedure, 1973 (CrPC) replaced its predecessor, Section 545 of the erstwhile Code of Criminal Procedure, 1898, based on the recommendations of the Law Commission (41st Report). An important distinction was that the Courts could now grant compensation for crimes not punishable with fine and irrespective of the fact, whether a fine is imposed or not. With the insertion of Sections 357A and 357B by the 2008 Amendment, the horizons of the victim compensatory regime stood broadened.
Justice Krishna Iyer, in Maru Ram v. Union of India (1981), said that victimology must find fulfilment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn.
The bench of Justices J R Midha, Rajnish Bhatnagar and Brijesh Sethi of the Hon’ble Delhi High Court, in Karan v. State NCT of Delhi (2020), found the underpinnings of its victim-centric approach in constitutional provisions and international instruments. Article 38 envisages a social order that ensures social and economic justice. Articles 41 and 51A promote the concept of ‘restorative justice’ upon which ‘victim compensation’ is based. Clause 8 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power on 11th November 1985 deals with the restitution to the victims of the crime.
The Supreme Court, in State of Gujarat v. Hon’ble High Court of Gujarat (1998), remarked that ‘retribution may be the primary goal of the law, reparation is the ultimate goal’. The Court was mindful of the suffering the victim and the family go through while observing that monetary compensation would provide some solace if not a complete restoration of the loss suffered.
Interpretation of Section 357
Intending to ensure that the victim(s) is not forgotten in our Criminal Justice System, the Court held that the power under Section 357 CrPC is to be exercised liberally to meet the ends of justice.
The Court, relying primarily on Ankush Shivaji Gaikwad v State of Maharashtra (2013) and Hari Singh v Sukhbir Singh(1988) along with a catena of other precedents, has reiterated that there exists a mandatory duty on the Court to apply its mind to the question of victim compensation under Section 357 CrPC in every criminal case.
The Court held that the word ‘may’ in Section 357 means ‘shall’ as the power is coupled with a duty imposed on the Court. The Court is duty-bound to provide reasons, in every criminal case, based upon which it has exercised its discretion in awarding or refusing the compensation. This decision would also make available the material necessary for the Trial Court to reach a fair conclusion under Section 357.
The procedure laid down by the Court
While observing that the quantum of the compensation is to be determined by the Court basis the factors such as the gravity of the offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay, the Court laid down the following steps to be followed.
Post-conviction of the accused, the Trial Court shall direct the accused to file particulars of his income and assets through an affidavit accompanied with supporting documents (Annexure A – attached to the judgement itself) within 10 days.
The State, too, shall file an affidavit disclosing the expenses incurred on the prosecution within 30 days after the conviction.
On receiving the accused’s affidavit, the Trial Court shall send the copy of the judgement and the affidavit (along with the documents filed) to the DSLSA.
The DSLSA shall then conduct a summary inquiry to compute the loss suffered by the victim and the paying capacity of the accused. It shall submit the Victim Impact Report (Annexure B/B1) along with its recommendations within 30 days. The DSLSA may request the assistance of the concerned SDM, SHO and/or the prosecution in this exercise.
The Trial Court would then consider the Victim Impact Report, in light of the factors enumerated above, hear the parties involved including the victim(s) and accordingly award compensation to the victim(s) and cost of the prosecution to the State if the accused has the capacity to pay.
Furthermore, the Court directed that if the compensation paid, if any, is insufficient for the purpose of victim(s) rehabilitation, the Court shall take recourse to Section 357A and recommend to the DSLSA for payment of compensation from the Victim Compensation Fund in accordance with the scheme and policy of the time (currently, the Delhi Victims Compensation Scheme, 2018).
The High Court has also said that in matters of appeal or revision where Section 357 has not been complied with, the Public Prosecutor shall file an application seeking Court’s direction for enforcing this procedure in accordance with Section 357(4) of the CrPC.
This judgement is likely to result in a mechanism that could become the model for nationwide reforms if stakeholders involved uphold the spirit of the decision. The Court has recommended that a statutory mechanism be created by the Central Government as well, having due regard to victimology in the Criminal Justice System. We cannot ignore the social, economic and psychological impact the victim(s) of the crime suffers. It is the duty of the State that the victim(s) is rehabilitated and set on a path to be a productive member of the society in due course.
Authored by Sushant Kumar (undergraduate student at Dr. RML National Law University, Lucknow)
Bharat Chugh 