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International Journal of Advance Contemporary

Research ISSN 2394-9503

International Journal of Advance Contemporary Research ISSN 2394-9503, ISSUE 7 VOLUME 1

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TABLE OF CONTENTS

1. WHICH WAY TO GO IN MULTIPLE LIFE SENTENCES: CONCURRENTLY

OR CONSECUTIVELY? AN ANALYSIS IN THE LIGHT OF

MUTHURAMALINGAM & ORS. v. STATE REP. BY INSP. OF POLICE

- Riya Chouksey and Raj Vardhan Tiwari, 4th year student, B.A. LL.B. Hons ,

CNLU, Patna

2. SOCIAL WORK AS A HUMAN PROFESSION: NEED OF HOUR

- Pratibha J. Mishra, Professor & Head, School of Social Work Guru

GhasidasVishwavidyalaya, Bilaspur (C.G).

3. CASE COMMENT: NOVARTIS AG V. UNION OF INDIA, Citation- AIR 2013 SC

1311: A Slant of Single Storyism The Legal Quandary of Balancing Monopolistic

Pricing with Public Good

- Shreya Singh & Arpita Tandon, B.B.A.,LL.B (9th Sem) College of Legal Studies,

University of Petroleum And Energy Studies, Dehradu.

4. JUSTIFICATION AND EXCUSES CLAIMED IN INTERNATIONAL CRIMINAL

COURT

- Pallavi Kumari, pursuing LL.M from Gujarat National Law University,

Gandhinagar.

5. PANCHAYAT AND NYAYPANCHAYAT: INDIAN SCENARIO

- Nishit Shah, 4th Year Student, Chanakya National Law University, Patna.

6. RIGHTS OF MENSTRUATING WOMEN IN DEMOCRATIC INDIA

- Nishita Shrivastava, Semester V, B.A. LL.B.(Hons.), Institute of Law, Nirma

University, Ahmedabad, Gujarat, India.

7. MEDIA TRIAL : A LEGAL DILEMMA - Mohit Jain of IIIrd Yr.from M. S. Ramaiah College of Law, Bangalore.


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WHICH WAY TO GO IN MULTIPLE LIFE SENTENCES: CONCURRENTLY

OR CONSECUTIVELY? AN ANALYSIS IN THE LIGHT OF

MUTHURAMALINGAM & ORS. v. STATE REP. BY INSP. OF POLICE1

ABSTRACT

The recent landmark judgment given by the Supreme Court of India in

Muthuramalingam & Ors. v State Rep. by Insp. of Police has placed India in the bracket of

ninety countries most notably Argentina, Canada, China, Chile, Denmark, Kazakhstan,

Pakistan etc. that award life imprisonment running concurrently for multiple convictions. On

the other hand, thirty two countries including Afghanistan, Brazil, and Russia award

consecutive prison terms.

This paper covers the entire debate that whether the multiple sentences for

imprisonment of life should run consecutively or concurrently by analyzing the apex court

judgment and is an attempt to demystify the intricacies in the case. It addresses the conundrum

involving the multiple life sentences by briefly summarizing the facts and the arguments raised

by the contending parties. Thereafter, the reasoning behind the judgment and the potential

concerns out of it has been analyzed. The case note finally concludes by highlighting the

ramifications of this landmark judgment in minimizing uncertainty in awarding multiple life

sentences.

I.INTRODUCTION

1 Riya Chouksey and Raj Vardhan Tiwari, 4th year student, B.A. LL.B. Hons , CNLU, Patna


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“If there is arbitrariness in applying the rarest of rare standard to select those who should be

executed, it is even more difficult to pick those who should live but never be released from

prison.”1

Much discourse has taken place and a lot of jurisprudential ink has flown in an attempt

to resolve the conundrum of sentencing of multiple life sentences which finally culminated in

recent landmark Judgment on July 19, 2016, in which a five judge Constitution Bench of the apex

court of India has unequivocally held that the multiple life sentences awarded for multiple

murders or other offences punishable with imprisonment for life, cannot be directed to run

consecutively.

The Bench headed by Chief Justice T.S. Thakur along with Justices F.M. Kalifulla, A.K.

Sikri, S.A. Bobde and R. Banumati gave the judgement in a case which came on a batch of

petitions including the one filed by Muthuramalingam on award of sentence in a murder case and

whether they would run concurrently or consecutively.2

II.A PEEK INTO THE MATTER

The case deals with the appeals filed by convicts who were accused of a single instance

of multiple murders in Tamil Nadu. The case which came up before the five judge Constitutional

Bench of the Supreme Court dealt with the merciless killing of eight persons in one incident. In

the FIR filed by the police, 17 persons were originally arrayed as accused but a total number of

21 persons were found indulged in the above merciless and brutal murders upon investigation.3

In the trail court the accused cited the Supreme Court ruling in Ranjit Singh v. Union

Territory of Chandigarh4 where it was held that, the sentences of imprisonment for life are only to

run concurrently as per Section 427 (2) of Cr.P.C. Also the case of Gopal Vinayak Godse v. State

1 Nishant Gokhale, Granted life but never free, The Hindu, September 30, 2015. 2 Bijaya Kumar Das, Multiple life terms to run concurrently, not consecutively: Supreme Court, India today, July

19, 2016. 3 https://indiankanoon.org/doc/170939566/ Last visited on July 26,2016. 4 1991 AIR 2296, 1991 SCR (3) 742


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of Maharashtra1 was referred by the accused where the honourable Supreme Court held that

imprisonment for life means imprisonment for the whole of the remaining period of the convicted

person's natural life. According to the accused it was unworkable to impose sentence of life

imprisonment for each count to run consecutively. But trial court was not persuaded by the

arguments given by convicts accused. And it awarded them life sentences for each murder they

committed and directed them to be served consecutively i.e., one after the other.2

They went for an appeal against the judgement in the Madras HC which upheld the

decision of the trial court. The outcome was that depending upon the number of murders

committed by them, the appellants were to suffer consecutive life sentences that ranged between

two to eight such sentences.

Challenging the validity of the judgement of trial court upheld by the High Court, the

appeal came up before the three judge bench of the SC. The Bench on hearing the appeal detected

a conflict in the views earlier taken by the Supreme Court on the question whether consecutive

life sentences were legally permissible and so directed the matter to be placed before a larger

bench comprising five Judges to resolve the res integra by an authoritative pronouncement.

III.CORE ISSUES

The honourable court, having to decide on a delicate and life moulding matter, looked

into the facts and the circumstances that were prevalent. The discussions and deliberations that

constituted the case trickled down to the moot question that “Whether consecutive life sentences

can be awarded to a convict on being found guilty of a series of murders for which he has been

tried in a single trial?”

IV.ARGUMENTS RAISED BY THE APPELLANT

1 AIR 1961 SC 600 2 http://www.thehindu.com/news/national/multiple-life-terms-to-run-concurrently-not-consecutively-supreme-court/article8870032.ece Last visited on July 25,2016.


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The appellant, challenged the validity of the decision given by the Trial Court and

affirmed by the High Court that the sentences of life imprisonment awarded to each one of the

appellants for several murders committed by them would run consecutively. It was argued that

such multiple life sentences awarded for different murders alleged to have been committed by

them could not run consecutively in terms of Section 31 of the Criminal Procedure Code, 1973.

Reference in support of this submission was placed upon a decision of a three-Judge Bench of SC

in O.M. Cherian v. State of Kerala & Ors.1 and a three-Judge Bench decision of SC in

Duryodhan Rout v. State of Orissa.2

V.ARGUMENTS RAISED BY THE RESPONDENT

The State of Tamil Nadu submitted that it was legally permissible to award multiple life

sentences to a convict for multiple murders committed by him to run consecutively. Reference in

support of their argument was placed upon two other decisions of the apex Court in

Kamalanantha and Ors. v. State of Tamil Nadu,3 and Sanaullah Khan v. State of Bihar.4

VI. THE ROAD TO JUDGEMENT

Hon’ble SC, interpreting Section 31 of the CrP.C., held that two or more life sentences

have to run concurrently and not consecutively, the latter being an “obvious impossibility”.5

Chief Justice of India T. S. Thakur interpreted “Any direction that requires the offender

to undergo imprisonment for life twice over would be anomalous and irrational for it will

disregard the fact that humans, like all other living beings, have but one life to live.”1

1 (2015) 2 SCC 501 2 (2015) 2 SCC 783. 3 (2005) 5 SCC 194 4 (2013) 3 SCC 52 5 M.A. Rashid , Multiple Life Sentences will run concurrently, Remission of one will not affect the other: SC, Live Law, July 19, 2016 available at http://www.livelaw.in/multiple-life-sentences-will-run-concurrently-remission-one-will-not-affect-sc/


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Apart from the incoherence and inconsistencies in the multiple sentences for

imprisonment for life, yet another dimension of this case was whether the Court can direct term

sentence and life sentences to run consecutively. That aspect was argued keeping in view the fact

that awarded life imprisonment.

Relying on a number of decisions, the apex court tried, to a large extent, and is

successful in resolving the above two contentious questions.

Interpreting Section 31(1), a three-Judge Bench of Supreme Court in O.M. Cherian v.

State of Kerala 2 declared that the Court must necessarily direct two life sentences imposed on a

convict to run concurrently. In the words of honourable Supreme Court:

“Since sentence of imprisonment for life means jail till the end of normal life of the

convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life

imprisonment. In such case, it will be in order if the Sessions Judges exercise their discretion in

issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed

on the convict, necessarily, the court has to direct those sentences to run concurrently.” 3

It is worth mentioning that the two-Judge Bench of apex Court had expressed the similar

view in Duryodhan Rout’s case4 that there was no question of awarding consecutive sentences in

case of conviction for several offences at one trial since life imprisonment means imprisonment

of full span of life. Honourable court relied upon the proviso to sub-section (2) of Section 31,

forbidding running of such multiple sentences consecutively.

It is evident from the above two pronouncements that the logic behind life sentences

not running consecutively lies in the fact that imprisonment for life implies imprisonment till the

end of the normal life of the convict.5

1 Ibid 2 Supra note 8 3 Ibid ¶ 13 4 Supra note 9 5 Krishandas Rajagopal, Life term means imprisonment till death, says Constitution Bench, The Hindu, July 20, 2016.


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Referring the above two decisions, the court proceeded to lay down the law that has

already been in vogue, which makes it clear that life imprisonment does indeed imply

imprisonment till the end of the normal life of the convict.

Placing reliance on State of Punjab v. Joginder Singh1, the SC held that the convict has

to under imprisonment for the remainder of his life if the sentence is ‘imprisonment for life’

unless he is granted remission by a competent authority in exercise of the powers granted to it

under Sections 432 and 433 of the Cr.P.C.

It was also in tune with what was further held by apex court in Maru Ram v. Union of

India and Ors.2 following Godse’s case held that imprisonment for life lasts until last breath of

the prisoner and whatever the length of remissions earned the prisoner could claim release only if

the remaining sentences is remitted by the Government.3

Similar references may also be made to the decisions of apex court in Subash Chander

v. Krishan Lal,4 Shri Bhagwan v. State of Rajasthan,5 and Swamy Shraddananda v. State of

Karnataka,6 which reiterate the legal position settled by the earlier mentioned decisions.

VII.AN APPRAISAL

“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but

in our country, it is the weakest part of the administration of criminal justice.” 7

- J. Aftab Alam

Currently, Indian judicial system does not have any structured sentencing guidelines

either being issued by the legislature or the judiciary. The impossibility of laying down standards

1 (1992) 2 SCC 661 2 (1981) 1 SCC 107 3 Supra note 4. 4 (2001) 4 SCC 458 5 (2001) 6 SCC 296 6 (2008) 13 SCC 767 7 Soman v. State of Kerala, (2013) 11 S.C.C. 382.


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is at the very core of the Criminal law as administered in India, which invests the Judges with

very wide discretion in the matter of fixing the degree of punishment.1

The Code of Criminal Procedure establishes the criminal sentencing procedure, which

provides broad discretionary sentencing powers to judges. Section 31 of the CrP.C. is one such

provision, which vests the court with the discretionary power to order, that the sentences awarded

in case of conviction of two or more offences shall run concurrently. But there is no statutory rule

for the exercise of such discretion in this regard.

A dip into history reveals that efforts have been consistently made pressing the need for

a uniform provision or guideline with regard to the need of statutory sentencing guidelines in

order to minimize ambiguity and uncertainty in awarding sentences under the various provisions

of CrP.C. notably by the Malimath Committee in March 2003 and also by the Committee on

Draft National Policy on Criminal Justice in 2008. But the efforts proved to be in vain.

The case under consideration to a large extent fills the legal void by providing that the

discretion has to be exercised judicially and not mechanically. So whether a sentence should run

concurrently or consecutively would depend upon the facts and circumstances of the case and the

nature of the offence. Having said that the apex court observed that in case of two life sentences

imposed on a convict, the same shall run concurrently.

The decision is in tune with the fact that life imprisonment means imprisonment for

complete and full span of life and so the question of consecutive sentences in case of conviction

for several offences at one trial does not arise. In this sense, there is no meaning of awarding

consecutive life sentences to a person when an imprisonment for life extends to the very death of

the offender, who has one life.

However, the question that whether the provision admits of more than one life sentences

running consecutively can be answered on a logical basis only if one accepts the truism that

humans have one life and the sentence of life imprisonment once awarded would require the

prisoner to spend the remainder of his life in jail unless the sentence is remitted or commuted by

1 Jagmohan Singh v. State of Uttar Pradesh, (1973) 2 S.C.R. 541, ¶ 26,available at http://indiankanoon.org/doc/1837051/


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the competent authority. That, happens to be the logic behind Section 427 (2) of the CrP.C.

mandating that if a prisoner already undergoing imprisonment for life is sentenced to another life

imprisonment for a subsequent offence committed by him, the two sentences so awarded shall run

concurrently. Section 427 (2) is an exception to this which provides that sentences awarded upon

conviction for a subsequent offence shall run consecutively.

Section 427(2), clearly manifests that the Parliament, was fully cognizant of the

anomaly that would arise if a prisoner sentenced to undergo life imprisonment is directed to do so

twice over. It has, in this way, carved out an exception to the rule contained in Sec 427(1) that the

sentences cannot be directed to run consecutively in the case of life sentences for two distinct

offences separately tried are held proved. So interpreting section 31(1) must mean that unless the

court directs otherwise, sentences awarded for several offences shall run consecutively except

where such sentences include life imprisonment which must run concurrently.

The judgment is of seminal importance as it has dealt with several interesting

combinations of jail sentences like if a prisoner is awarded more than one life sentences then the

same would get super imposed over each other. This implies that in case the prisoner is granted

any remission or commutation qua one such sentence, the benefit of such would not ipso facto

extend to the other. The subsequent sentence would remain untouched and unaffected by the

remission or commutation of the earlier sentence. This means that if a prisoner condemned to life

twice gets remission or commutation on first life sentence, then the second life sentence

immediately comes in thus depriving him from enjoying the advantage of the remission or

commutation of the first life sentence.

Thus, it can be concluded that the apex court has tread the right path in driving home the

point that multiple life sentences awarded should run concurrently and not consecutively and the

remission of one shall not ipso facto affect the other.


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SOCIAL WORK AS A HUMAN PROFESSION: NEED OF HOUR1

ABSTRACT

Social work is an interdisciplinary course based on the humanitarian principle of social Justice, equality

and solidarity with the aim of creating an egalitarian society.

Amelioration of human sufferings with a scientific outlook lies at the helm of this course. It drives most

of its theories from other humanities viz sociology, psychology, economics, philosophy, anthropology.

The course utilises specific methods that can beapplied while dealing with problems at the individual,

group and community level.

Social work is a practice based profession which emphasizes upon the inculcation of ethics and values

amongst the students while working with people in actual practice settings. It is because of this purpose,

continuous training throughout the course becomes its essential feature. Students are provided 'hands on

job' fieldwork training in industries, social service institutions, hospitals, correctional institutions, welfare

agencies, panchayati raj and other developmental institutions as well as open communities.

The scope of social work practice is remarkably wide. There are certain common skills and

responsibilities that all social workers have that enable them to work with all populations.

Social work is both inter disciplinary and trans- disciplinary and therefore believes in curriculum

integrated approach. The main objective is to provide opportunities, knowledge, skills, attitudes and

values appropriate to work with individuals, groups, communities and organizations.

Social work is a practice profession. The course content incorporates components of practice learning

opportunities through professional guidance.

One third of the course credit is apportioned for Field practice. The training facilitates all those desirous

of making career in the field of social work.

In India social work was started in the year 1936 in Mumbai and today there are about 500 Institutions

offering social work course across the country.

1 Pratibha J. Mishra, Professor & Head, School of Social Work Guru GhasidasVishwavidyalaya, Bilaspur (C.G)


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KEY WORDS Social Work, Profession, Field work, Job Prospects settings, emerging fields.

INTRODUCTION

Social work is an interdisciplinary course based on the humanitarian principle of social Justice, equality

and solidarity with the aim of creating an egalitarian society.

Amelioration of human sufferings with a scientific outlook lies at the helm of this course. It drives most

of its theories from other humanities viz sociology, psychology, economics, philosophy, anthropology.

The course utilises specific methods that can be applied while dealing with problems at the individual,

group and community level.

Social work is a practice based profession which emphasizes upon the inculcation of ethics and values

amongst the students while working with people in actual practice settings. It is because of this purpose,

continuous training throughout the course becomes its essential feature. Students are provided 'hands on

job' fieldwork training in industries, social service institutions, hospitals, correctional institutions, welfare

agencies, panchayati raj and other developmental institutions as well as open communities.

The scope of social work practice is remarkably wide. There are certain common skills and

responsibilities that all social workers have that enable them to work with all populations.

Social work is both inter disciplinary and trans- disciplinary and therefore believes in curriculum

integrated approach. The main objective is to provide opportunities, knowledge, skills, attitudes and

values appropriate to work with individuals, groups, communities and organizations.

Social work is a practice profession. The course content incorporates components of practice learning

opportunities through professional guidance.

One third of the course credit is apportioned for Field practice. The training facilitates all those desirous

of making career in the field of social work.

In India social work was started in the year 1936 in Mumbai and today there are about 500 Institutions

offering social work course across the country.

The purpose of professional social work is to alleviate human suffering, promote human development and

community well-being, eradicate poverty in all its forms, and work for social and economic justice,


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human rights, as also social, inclusive and sustainable development. The profession seeks to promote

social change, liberation and empowerment through intervention where people interact with their

environment. The units of social work intervention are individuals, groups, families, neighborhoods,

communities, social networks, organizations and politics - the latter in terms of social policies,

legislations, development and welfare programmes and social activism. Apart from developing its own

knowledge base (including practice wisdom), social work has borrowed knowledge from allied human

and social sciences, life sciences, law and ecology. Life cycle and ecological perspectives are basic to

social work and its acknowledged approaches are social case work, group work, community organization,

social work research, social welfare administration and social action. Social work is one of the human

service professions where relief, therapy, correction, rehabilitation, reform, reconstruction and rights

constitute acontinuum. The beginnings of the profession can be traced in friendly visiting and charity but

it has moved, over the years, towards rights approach. Social work education can play a vital role in

developing competence in the performance of social work tasks in the frame work of a developing

economy, the aim of which should be to promote equity and social justice(Desai, 2004). Asocial work

education program is based on the premise that preparation for professional practice requires a core of

knowledge as well as skill in the application of that knowledge (Kerson, 1994). Only in the transition of

knowledge into practice, acquired in the field, does social work education achieve professional

justification (Kadushin, 1992). The sanction for social work practice is embedded in social work training.

As training proceeds, students are expected to develop commitment to the professional ideals.

Social work education has always emphasized the importance of the field placement for students. In the

field, social work students have the opportunity to test what they learn in the classroom; integrate theory

with practice; evaluate the effectiveness of interventions; contend with the realities of social, political and

economic injustice; strive for cultural sensitivity and competence; deliberate on the choices posed by

ethical dilemmas; develop a sense of self in practice; and build a connection to and identity with the

profession (Kerson, 1994; Lager, 2004).

Field work provides initial opportunities to engage the student in applied use of newly acquired

knowledge, skills and attitudes. Field work is worthy of sustained attention because it affects so many

individuals in social work education. Fieldwork practicum, according to Desai (2004), specifically aims at

(1) critical analysis of components of the knowledge objectives, by observing their implications at the

micro level; (2) development of critical self awareness about one's attributes, values and sensitivities with

reference to the ideological and ethical requirements of social work profession, by way of experiencing;


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and (3) observation, learning and practice of knowledge and value-based social work methods and skills,

through direct exposure to field realities.

The field instruction process must meet the challenge of creating a collaborative learning environment in

which the student is challenged to critically reflect on her or his actions and re-examine underlying

beliefs, values, and theoretical constructs(Rogers & McDonald, 1992 cited in Gray et al, 1999).

During the past two decades, Social Work has experienced a no table increase in the number of

institutions to provide trained practitioners in the field of welfare and development. Undoubtedly it is the

need of the hour, provided we are able to fulfill the gap with professionally trained

social workers to reach to the grass roots for helping the needy at all levels. India is a country of villages

and the Indian economy is still predominantly agriculture based in which about 75 percent of the

population is directly or indirectly involved in it. Therefore, it is important that social work as a practice

based subject should reach the rural population to help in dealing the problems like poverty, malnutrition,

poor standard of public health, lack of awareness and illiteracy and improving life and living.

In fact some of the schools of social work had included rural social work in their course curriculum before

community development programme in 1952, but could not contribute significantly. According to The

First Five Year Plan each community centre was to work in50-60 villages to begin with, and the plan

clearly laid down that “a social worker of the requisite caliber, background and training will be the pivot

for the centre”. But it could no tbe materialized in the implementation and the programme of human

development was reduced to economic development and it has become a puppet in the hands of

administrators, politicians and agro-technicians. Unfortunately our rural population suffered a lot and still

suffering with many other problems which are now cumulative with other complex problems like, drug

abuse and trafficking, terrorism, migration, child-abuse, human trafficking, female feticide, youth unrest

etc.

Social Work is a dynamic profession which gives professional training to social workers and one of the

challenging aspects of being a helping professional involves the ability to question, explore and analyze.

Therefore, the various developmental approaches based on economic and technical models need to be

questioned and reviewed for the present state of our rural populations. The shift of welfare perspective to

empowerment has a wide scope of social work intervention in rural areas for which we need to develop

our own methods dealing with the issues of individual, group and community life in Indian villages.

Some steps for Social Work Practice in rural areas:


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Placement of MSW students in rural areas/villages to learn and use practice of social work philosophy

and methods for organizing communities at grass root level.

Organizing awareness generation campaigns in villages on local issues and general problems.

Neighbourhood/ locality level (10-15 houses) meetings with people to promote participatory approach

and counter selfish motives.

Organize people to take active participation in village level development activities. Develop an action

plan for priority wise programmes to meet people's needs through an organized structure of community

people with active participation and cooperation of PRI in the village.

Historically, the social work profession has played a significant pioneering role in community

development practice. Broadly speaking, hundreds of trained social work professionals have significantly

contributed to community development from various perspectives such as teaching, training, research,

administration and program implementation, awareness-raising, mobilization, social action, etc.

The social development oriented community development practices aim for comprehensive development

of individuals, families, communities and their institutions in terms of cultural, educational, health,

political, economic, ecological and similar multi-faceted dimensions. Focusing on just one area of

practice is not enough. Comprehensive development of people and their communities will help them to

become self-reliant and sustainable.

Purposeful training is desirable to practice social development oriented community development. It is

important to imbibe certain core values and principles of practice and develop basic skills of working with

people and communities.

Family is a universal, basic social institution performing certain social functions in human society. It

provides an identity, a space for belongingness and nurturant socialization for its members. Although we

are all significantly different from one another, we all came from a family, whatever way it is defined.

And we tend to make decisions that influence our relations with others, based on how we are raised.

Hence, family as an institution deserves attention. In the contemporary society, families are facing a

variety of challenges and therefore they need to be supported and strengthened so as to make them

perform better. It is important that the state and civil society need to safeguard and support the family

from the shocks that it suffers because of the internal and external challenges.


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In this sense, the welfare of the family becomes fundamental to the well being of human societies and as

such family welfare is an important field of engagement for professional social work.

The term 'mental health' means many things to many people in simple words; the mental health includes

three aspects: how frequently one feels happiness: how frequently others feel happiness in his/her

presence and the lesser egoism better is happiness. The first one is psychological principle, the second one

is interpersonal principle and the third one is spiritual dimension. The combined effect of the three aspects

is one's mental health. The horizon of mental health is expanding every moment. Application of social

work methods-case work, Group work, Community organization, Welfare Administration, social action

and social work research in the field of mental health could be termed as Psychiatric Social Work.

Psychiatric Social Workers are engaged in the activities which promote mental health, prevent mental

health problems, therapeutic activities and rehabilitation and aftercare programmes.

The Psychiatric Social Workers have a vital role in Institutes of Mental Health, Psychiatric Rehabilitation

Centres, De-addiction programmes. Child and Adolescent Mental Health Family Therapy, Neurology and

Neurosurgery Centres, Casualty and Emergency units, community mental health programmes and

research projects sponsored by National and International Organizations. Implementation of National

Mental Health Programmes and District Mental Health Programmes increase the scope of psychiatric

social work practice. Newer areas include HIV/AIDS care, psychosocial disaster care, school Mental

Health Life Skills Education, Premarital counseling, Sexual minorities and other such areas. Many

Psychiatric Social workers with M. Phil and Ph.D work as Faculty in the PG Department of Social Work,

Institutes of Mental Health and Advanced Centres of Centres of Education and Research.

Disability is one of the niche concerns that social work responds to Social work practice in the field of

disability rehabilitation recognizes that persons with disabilities are not only disenfranchised but also

socially excluded. Hence it becomes imperative to work with individuals, groups, families of persons with

disability; their communities and advocate for affirmative and enabling policies that promote well-being

of persons with disability. While working in the disability sector, it is important to use critical

perspectives that give primacy to the person rather than disability. Hence use of contemporary

perspectives in Social Work, such as the strengths perspective, anti-oppressive and partnership

perspectives and frameworks assist in dealing with the apathy and lack of sensitivity of our communities

and state to the issue of disability. While disability is not a homogenous sector and there are gender, caste

and class dimensions that affect persons with disability, it is imperative that Social Work addresses the


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diversity within the disability sector. Social work as a profession has the versatility to offer services in the

field of disability.

Social Work intends to help people and society to bring about ameaningful individual and social change.

At individual level, it isabout improving the role performance while at the social level, itaims at providing

greater justice and equality by bringing a better fit between the needs and the resources of the people by

creating favourable societal conditions. As such, social defense, in brief, is understood as a process of

creating an environment conducive to the prevention of any socio-economic and structural deviance

through a systematically organized and coherent action by the State as also the civil society including the

social work professionals. From this point of view, if we want a more equitable, justice oriented

egalitarian society, it has to be less violent in terms of power sharing and the ownerships. Social defense

is, thus, that pathway which replicates and advances these social work ideals. It is not just about focusing

on individuals who are criminals but also reaches out to those who are likely to be exposed to any such

vulnerability. In that way, Social defense is an overarching concept that aims at perfecting the system by

reconciling the exploitative, hegemonic and violent socio-economic transactions between the individuals,

systems and organizations resulting into inequality, poverty, exploitation, exclusion and

disempowerment. It ensures social justice, protects human rights, reduces social inequalities, cultural

discrimination and all sorts of social and economic handicaps that breed crimes.

Social defense is a process that aims at destroying the self-generating and self sustaining capacity that has

manifestation in crime causation, widening gap between the rich and poor and intensifying caste and

religious conflicts.

It is an important area of social work practice wherein these professionals work in institutional and non-

institutional arrangements primarily in the fields of crime prevention, correctional administration, prison

reforms, juvenile justice ,for prevention of marginalization and vulnerability of the poor, ensuring

balanced development to minimize social strife, racial discriminations, religious bigotry and social

fragmentation.

To achieve the aforementioned mandate social workers are usually placed in the prisons, community

welfare projects, educational homes, observation homes, day-care centers, criminal justice systems, social

welfare and development agencies, voluntary institutions, drug de-addiction and counseling centers and

plethora of other agencies of the similar nature and functions.


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The social work profession promotes social change, problem solving in human relationships and the

empowerment and liberation of people to enhance well being. Utilising theories of human behaviour and

social systems, social work intervenes at the points where people interact with their environments.

Principles of human rights and social justice are fundamental to social work"(IASSW, 2004). As the

definition goes, social workers have wider scope in practicing social work in the context of disaster

mental health.

The wide role of the social workers in disaster intervention starts from the immediate rescue through

relief, rehabilitation and long term rebuilding process. Comprehensively, the psychosocial care during

rescue phase is more to ensure the safety and security among the survivors with provisions of basic needs.

In relief phase with practical help, providing information and ensuring immediate Emotional First Aid is

very important. In rehabilitation phase the task is to facilitate a more healthy social well-being by

providing mutual support and rebuilding social support, whereas in long term reconstruction phase, the

focus is to ensure a long term development with established sense of belongingness with the place of stay

and ensuring psychosocial competencies to deal with future problems as well as to lead a more efficient

life. This phase involved integrating a Comprehensive disaster mental health program for the affected

communities. Disaster preparedness and education is a continuous activity coupled with overall

community development.

Currently standardized training programme and training kits are available to a larger extent. Information

leaflets and manuals to the individuals, families, community level workers, working with women and

children are currently available in various Indian languages. Doctoral research has been carried out to

demonstrate the differences in reaction between natural and human made disasters, stress among

community level workers, impact of the event, disability, quality of life among vulnerable population

like, orphan and semi orphan children, adolescents, aged, women and the disabled. At the State level

psychiatric social workers are appointed as Members of the State Disaster Management Authority which

gives a larger scope for implementation of the policy and programmes at State level.

Networking among social work educational institutions serves several purposes, the major ones being to

share knowledge, provide common fora for debates and discussions through joint conferences, and thus

strengthen the quality and credibility of the profession of social work. It was in 1928 that a few European

and American faculty of social work came together in an international conference and made a landmark

decision to institute an international association of social work education. Not only was the International

Association of Schools of Social Work (www.iassw-aiets.org) conceived but also the International


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Federation of Schools of Social Workers (www.ifsw.org) and the International Council of Social Welfare

(www.icsw.org).Over time, these organisations brought in countries in the South. While each of these

three international organisations have their respective goals and missions, they also work together to give

greater leverage on particular social issues. Together, they have, for example, developed international

statements on Ethics in Social Work, New Definition of Social Work, and the Global Agenda for Social

Work and Social Development. The Global Agenda is a vehicle through which social work educators and

practitioners across the continents are lobbying for social and economic equality, promoting human

relationships and environmental sustainability as well as dignity and respect for people. It is very essential

that all schools of social work all over the world join hands with international organisations for growth

and development of the profession and enhancing the lives of the poor and oppressed populations through

promoting human rights, equality and social justice.

Job prospects in social work

Government Sector:

1. As a subject for Civil Services of State (state of U.P. and Uttrakhand)

2. Social Welfare- Officer (District Level), Superintendents of Homes,

In-charge of Training Institutions, Counselors (FamilyWelfare/Ser vices) Drug-Dedication Centers,

Prohibition Officers, Probation officer, CDPOS, Supervisors etc.

Health Sector

Medical and Psychiatric Social Workers, Public RelationsOfficers in hospitals, District and Block Level

Coordinators (District and Block Levels) under NRHMetc. District AIDS control Societies (Training

Officer etc).

Development Sector

District and Block level Coordination under MNREGA, Food Security, Livelihood Programme and other

Development Programmes and Schemes, Programme officer in Tribal Institutions and Development

Institutions, BDOs, ADOs, Village Development Officer etc.


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Research and Development Institutions

Research Officer, Research Assistant

Private Sector

Corporate Sector:

Welfare Officers in Factories, mines and Plantations, HR Personal, Industrial Relations Officers,

Coordinator of Development Centers Established by Corporate under CSR. Consultancy Services, Project

Management, Career Counselling, Counselling Agency for diverse groups and Advocacy agencies.

Civil Society Organization

NGO's Funding Agencies, Charitable Trusts, Schools and Voluntary Organizations, Community Workers,

Motivators, Social Actionist etc.

Inter National Organizations:

UNICEF, UNDP, WHO etc.

Educational Institutes:

Teachers, Project Officers and Researcher etc. In the present environment, a number of professionals have

started their own institutions/organisations to work independently in various areas cited above

consultants, researchers, service organizations, human right and advocacy groups. Many of them have

also started e-learning portals reaching out to people far and wide.

Therefore, the employment opportunities in the 'Social sector' empower you to DREAM,IMAGINE,

BUILD, CREATE and SERVE.

References

1. Albers, Reclaiming the essence of social work, 2001

2. Barker, R.L. (2003).The Social WorkDictionary (5th Ed.). Washington, DC: National Association

of Social Workers.

3. Bartlett, “Toward clarification and improvement of social work practice,” 1958


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4. Bidgood, Holosko& Taylor, “A new working definition of social work practice: A turtle’s view,”

2003

5. Clarke, J. and Newman, J. (1997), The Managerial State: Power and Ideology in the Remaking of

Social Welfare. London: Sage.

6. General Social Care Council (2008) Social work at its best: a statement of social work roles and

tasks for the 21st century. London: GSCC.

7. Glaser, “Reflections of a social work practitioner: Bridging the 19th and 21st centuries,”

2001Haynes, “The one hundred-year debate: Social reform versus individual treatment,” 1998

8. Hugman, R. (1991), Power in Caring Professions. London: Palgrave Macmillan.

9. National Association of Social Workers, Code of ethics, 1999

10. Statham J., Cameron C. and Mooney, A. (2006) The tasks and roles of social

11. workers: a focused overview of research evidence. http://eprints.ioe.ac.uk/59

12. White, V. (1999), ‘Feminist Social Work and the State: A British Perspective’, in

13. International Perspectives in Social Work – Social Work and the State. Brighton: Pavilion.


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CASE COMMENT: NOVARTIS AG V. UNION OF INDIA, Citation- AIR

2013 SC 1311 A Slant of Single Storyism: The Legal Quandary of Balancing

Monopolistic Pricing with Public Good1

INTRODUCTION-

A new patent regime to bolster the patent system in India was accorded with TRIPS2 by the 2005

amendment in the Patent Act, 1970. The opposition to the grant of patent to Gleevec became the

first ‘mailbox’ case to be tested upon the jurisprudence of new patent regime. However, the

proponents advocating monopolistic pricing incentivising innovation and larger interest of the

society criticize the judgment. Where the courts are quiet sceptical about monopolistic pricing

being favourable to society, this comment argues that monopolistic pricing incentivises

innovation.

The prima facie perfect balance struck by the Court in actuality leans towards consumer

favouritism. This comment thus argues that the SC in an attempt to clarify the test of higher

standards for grant of patents i.e. ‘efficacy’ by ‘therapeutic efficacy’ has left the issue open for

interpretation due to uncertainty.

Novartis filed for product patent in 1998 for its product Imatinib Mesylate (IM) in India, however

as India was undergoing a transition stage, the application was put under “mailbox procedure”.

Novartis got Extensive Market Rights for IM in the year 2003. Application was processed in

2005 after the amendment which was rejected in 2006. The Assistant controller of patents and

designs rejected the application as it failed to satisfy ‘novelty and non-obviousness’ required

under the act. In the year 2006 Madras Patent officer refused the Glivec’s patent under section

3(d) for need of “enhanced efficacy”. Novartis finally Appealed to the Apex Court where the

final verdict rejected the contentions of Novartis stating that the drug did not have “enhanced

efficacy”.

1 Shreya Singh & Arpita Tandon, B.B.A.,LL.B (9th Sem) College of Legal Studies, University of Petroleum And Energy Studies, Dehradun. 2 Agreement on Trade-Related Aspects of Intellectual Property Rights. 1994, 1869 U.N.T.S. 299.


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HISTORY-

Patent Act, 1970 was enacted to enhance domestic pharmaceutical industry as the Patent Act,

1911 benefited foreigners more. Product patent in the 1970 act was disallowed thus allowing

generic drug manufacture and medicine accessibility at cheap rates. Through 2005 amendment

Product Patent was once again introduced in Indian Patent Act, 1970 in compliance to TRIPS as

mandated by WTO. However, due to concerns like patent layering, Section 3(d) as an extra

qualifying ground for patenting, discourages attempt to evergreening was also introduced.

ANALYSIS-

COURT’S RATIONALE BEHIND THE JUDGMENT:

The SC said that for grant of patent the twin test of ‘invention’ and ‘patentability’ must be

satisfied. Section 2(1)(j) read with sections 2(1)(ja) & 2(1)(ac) of the 1970 Act, which defines

‘invention’ needs certain tests as a pre-requisite to fall under ‘invention’.1 In addition to the test

of ‘invention’, for patentability a product must pass the test of ‘enhanced efficacy’ as given u/s

3(d).

Court rejecting the appellant’s contention of Section 3(d) being a provision ex majore cautela

and thus not being applicable to the subject product said that the important distinction between

‘invention’ and ‘patentability’ which pervades throughout the Patent Act, 1970 still prevails and

is made even more stringent by the 2005 amendment through Section 3(d). Court also relied on

Parliamentary debates for 2005 amendment that emphasised upon the abuses of product patent

due to which Section 3(d) was inculcated in the Act. Moreover, 80% of the debate focused on

concerns relating to drugs while debating upon bringing Section 3(d) in the Act. Thus, evidently

the provision puts a second tier check on pharmaceutical products that frivolously try to extend

patent period.

Numerous prior publications as well as the one by Jurg Zimmermann discussed the anti-tumoral

properties of Imatinib and its salt Imatinib Mesylate and had the teaching for subject product. In 1 (The product must be (a) ‘new’ and should ‘not have been anticipated’, (b) have ‘industrial applicability’; and (c) involves ‘inventive step’ which is a technical advancement over existing knowledge or/and having economic significance; and something which is not ‘obvious to a person skilled in art’).


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the light of evidence brought on record and various research materials prior published in several

journals, the product Imantinib Mesylate does not fall into the category of a ‘new product’ but

‘mere advancement in technical nature over existing knowledge’. Thus, the product is obvious to

a person skilled in art in respect to prior art Zimmermann Patent No. 5,521,184. Imatinib

Mesylate is a known substance with known pharmacological properties.

The appellant contended that ‘known efficacy’ is the one that is established empirically and

proven beyond doubt. In this respect, since Imatinib or Imantinib Mesylate had no known

efficacy the question of enhanced efficacy of Beta Crystalline Imantinib Mesylate does not arise.

However, court rejected this contention as to Imatinib or Imatinib Mesylate not being a known

substance with known efficacy in respect to Zimmermann Patent as the New Drug Application

submitted to US FDA, clearly stated the extensive preclinical, technical and clinical research

done on Imatinib Mesylate. Imatinib efficacy was equally known from Prior Art and Prior

Publication. Thus, Beta crystalline Imatinib Mesylate, is new form of a known substance,

Imatinib Mesylate attract applicability of Section 3(d) to prove ‘enhanced efficacy’ of subject

product over ‘known efficacy’ of known substance. But the court said that ‘known’ is

sufficiently satisfied if it is even known to a person skilled in art

Efficacy means the ability to produce an intended result thus the test of efficacy would depend

upon its function, utility or the purpose of the product. In case of medicine that claims to cure a

disease test of efficacy can only be “therapeutic efficacy”. Taking into consideration section 3(d)

says that only that properties are beneficial and directly relate to efficacy are relevant. Hence

mere changes to the property would not qualify as “enhancement of efficacy”

ANALYSIS AND COMMENTS OF THE AUTHOR ON THE IMPLICATIONS OF

JUDGMENT:

1. The present case has created an uncertainty of law on the issue of ‘efficacy’ as another

qualifying standard for ‘invention’, as also the meaning of ‘therapeutic efficacy’ as used in

Section 3 (d) is unclear:

Little heed was paid to Mr. Subramanium’s argument distinguishing invention and discovery

that:


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“An invention cannot be characterised by the word ‘mere’. The word ‘invention’ is

distinct from the word ‘discovery’. Therefore, Section 3(d) operates only as ex mojore

cautela, ensuring that mere discoveries can never, by effort at interpretation of clause (j)

and (ja) of section 2(1), be considered inventions”.1

In order to emphasise on the applicability of Section 3(d), the court relied heavily on the

Parliamentary debate in respect to this provision in the draft amendment. However, the

parliamentarians had little idea of its ramification while they debated.2

Thus, the court placed its reliance wrongly on the legislative debates on this issue and rejected a

very sound judgment of the Appellant.

Further, Court said that subject product application claim over increased bioavailability is not

supported by evidence through affidavits, experimental backing, etc.3

Mr. Grover, the objector on various grounds explained that increased bioavailability does not

results in enhanced efficacy4 while Prof. Bhaseer, intervenor-cum-amicus, argued that “not all

advantageous properties of a new form ought to qualify u/s 3(d), but only those properties have

some bearing of efficacy”.5 However, court decided “not to make any pronouncements on the

issues raised by them, as this case can be finally and effectively decided without adverting to the

different points of view noted above.”6

However, the relationship between bioavailability and effectiveness was not much discussed

upon by the court and left it by saying that such claim must be, “specifically claimed and

established by research data”7

Thus, even after being the Apex Court judgment the ratio in not very sound to be applicable on

all cases that need to decide upon the issue of ‘enhanced efficacy’. What if bioavailability is in

1 AIR 2013 SC 1311, ¶ 100. 2 See Shamnad Basheer & Prashant Reddy, The “Efficacy” of Indian Patent Law: Ironing out the Creases in Section 3(d), 5 SCRIPTED 232, 234 (2008), available at http://www.law.ed.ac.uk/ahrc/script-ed/vol5-2/basheer.pdf. 3 See supra note 3, ¶ 150. 4 See supra note 3, ¶ 161. 5 See supra note 3, ¶ 162. 6 See supra note 3, ¶ 164. 7 See supra note 3, ¶ 166.


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question and specifically claimed in a case? The case will still not be applicable as neither the

effects on therapeutic efficacy to an extent to qualify efficacy u/s 3(d) is discussed nor any

defining grounds for therapeutic efficacy is set by the court to test future claims of patent.

2. Important issues not discussed:

Two writs dealing with constitutionality of Section 3(d) and its compliance with TRIPS filed by

Novartis were dismissed by the Madras High Court and the matter was not appealed. However,

the Apex Court keeping into the view the intricacies of these issues should have analyzed it in

detail to reach a judgment, to justify and analyse the provision 3(d) which is regarded to be the

anvil to test such cases in future.

3. Judiciary has missed the opportunity to fill the legal void that may jeopardise the long

term interest of the Country:

Pharmaceutical innovation is incremental in nature. Thus, step by step patent protection allowing

drug manufacturers to patent incremental innovations, assuring them to pursue ambitious

research goals is important for continuous innovation.1

With the interpretation given by court, it is very difficult to get patented a drug with incremental

improvements as it would fail to meet the “enhanced therapeutic efficacy” threshold.2 Thus,

India runs the risk of dampening the kind of innovation that leads to the creation of new

medicines3 be it in foreign or domestically.4 Even Indian parliamentarian opines that patents

should be made available for incremental innovations because Indian scientists do not have the

know-how or capital to come up with new chemical entities, but do have the know-how to make

1 Albert I. Wertheimer and Thomas M. Santella, Pharmacoevolution: The Benefits Of Incremental Innovation, IPN WORKING PAPERS ON INTELL. PROP., INNOVATION AND HEALTH 3, available at http://www.who.int/intellectualproperty/submissions/Pharmacoevolution.pdf. 2 Rumman Ahmed & Amol Sharma, Novartis Fights India for Cancer Pill Patent, WALL ST. J. 244, available at http://online.wsj.com/article/SB1000087239639044423310457759497 3786074692.html. 3 Gardiner Harris & Katie Thomas, Low-Cost Drugs in Poor Nations Get a Lift in Indian Court, N.Y. TIMES, (April 1, 2013), available at http://www.nytimes.com/2013/04/02/business/global/top-court-inindia-rejects-novartis-drug-patent.html?_r=0. 4 See supra note 11, at 264.


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improvements.”1 “Such failure in patent for incremental inventions is bound to stifle innovation;

an unfortunate prospect in a country that is quickly emerging as a global player in the realm of

science and technology.”2

4. An inverse relation than what the court noticed exists between patent protection and

innovation.

The reality, is that the protection of intellectual property rights provides these corporations with

the needed incentive to invent and manufacture the drugs on which patients around the world

rely, whether branded or generic. In theory, India could continue down its current path where its

generics industry simply reverse-engineers the pharmaceuticals that are researched and

developed elsewhere. But if India desires to grow into its role as a major scientific and

technological powerhouse, then it must work to protect intellectual property rights, as opposed to

doing the bare minimum to ensure compliance with TRIPS.3 However, court fails to account for

this relationship.

Moreover, the rational of treating life saving drugs and other drugs separately in terms of period

of enjoying patent is flawed as such differential treatment discourages research in life saving

drugs due to low or no return at all.

IMPLICATIONS OF THE CASE ON THE EVOLUTION OF PATENT REGIME IN

INDIA AND ITS EFFECT ON INTERNATIONAL PERSPECTIVES

Notwithstanding the constitutionality of section 3(d) and its laudable intent of preventing

“evergreening”, it is a crudely worded provision.4 This unique law against patent layering

1See supra note 4, at 34 (citing Lok Sabha Debate, Mar. 22, 2005), available at http://164.100.24.230/Webdata/datalshom001/dailydeb/22032005.htm. (Mr. Kharabela Swain, a member of the Indian Parliament, made this comment during the debate over the 2005 Amendment.) 2 Linda Lee, Trials and TRIPS-ulations: Indian Patent Law and Novartis AG v. Union of India, 23 BERKELEY TECH. L.J. 281, 299 (2008). 3William J. Bennet, Indian Pharmaceutical Patent Law and the Effects of Novartis Ag v. Union of India, 13 WASHINGTON UNIVERSITY GLOBAL STUDIES L.R. 534 (2014), available at http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1500&context=law_globalstudies. 4 See supra note 4.


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however, complies with TRIPS and also holds up as a successful model for countries that wish to

restrict the practice in a legal environment that makes it increasingly difficult to do so.1

The case has triggered two emerging trends: developing countries that wish to curb patent

layering are taking note of India’s law, Example the Philippines2 and Argentina.3 Meanwhile, the

United States and the European Union, continue to push for greater global patent protection

through preferential trade agreements with other countries. A leaked draft of one agreement

currently under negotiation—the Trans-Pacific Partnership (TPP) agreement 4—includes a

provision that explicitly requires signatories to allow exactly what the Indian law prohibits, down

to the choice of words.5 This reveals that supporters of patent layering aim to shape the global

patent protection landscape in a manner that curbs the spread of India’s anti-patent layering law.

CONCLUSION

The positive effect of patenting which results in incentivising investment, R&D resulting in

innovation on one side, has the negative impact on the market leading to monopoly inhibiting

competition, high pricing of drug and jeopardising access of drugs to the patients on the other

side. These dual sides of the same coin need to be balanced in any political economy by its

patent regime. The Supreme Court in its decision has tried to balance these conflicting interests

on the anvil of Section 3(d) of the Patent Act, 1970 emphasising on the term ‘efficacy’.

However, this term stands on uncertain grounds wherein the court has failed to define ‘efficacy’,

more importantly ‘therapeutic efficacy’ while rejecting the appeal on this ground. 1 Rajarshi Banerjee, The Success of, and Response to, India’s Law against Patent Layering, 54 HARVARD INT. L. J., RECENT DEVELOPMENT 204, 216 (2014), available at http://www.harvardilj.org/wpcontent/uploads/2013/06/Banerjee-to-Publish.pdf. 2Rupali Mukherjee, Indian Pharma May Export to Philippines, TIMES OF INDIA, May 5, 2008 available at http://articles.timesofindia.indiatimes.com/2008-05-05/indiabusiness/27783865_1_generic-versions-patent-law-essential-medicines; Oscar F. Picazo, Medicines Still beyond Reach of Many, PHILIPPINES DAILY INQUIRER, July 21, 2012, available at http://opinion.inquirer.net/33107/medicines-still-beyond-reach-of-many. 3 See Shouvik K. Guha, Argentina Goes the 3(d) Way: Creases of Worry for the Pharmaceutical Patent Applicants?, SPICY I, May 23, 2012 available at http://spicyipindia.blogspot.com/2012/05/argentina-goes-3d-way-creases-of-worry.html; V. Lakshmikumaran, Intellectual Property and Public Health: Regional Perspectives—India, LAKSHMI KUMARAN & SRIDHARAN, ATTORNEYS, 6, available at http://www.unescap.org/tid/projects/trips2012- lakshmi2.pdf. 4 See Trans-Pacific Partnership (TPP), OFFICE OF THE U.S. TRADE REP., available at http://www.ustr.gov/tpp. 5 The Complete text of the US proposal for the TPP IPR chapter, Knowledge Ecology int’l (Feb 10, 2011), available at http://keionline.org/node/1091.


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The court has also failed to discuss certain important issues to justify its stand as discussed in the

comment analysis. Further the court has placed reliance on such interpretations that the rational

seems to be misbalanced due to concern for affordability to poor rather than the true rationale in

the law. Alternative mechanisms such as compulsory licensing could have been granted to

achieve such a balance.


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JUSTIFICATION AND EXCUSES CLAIMED IN INTERNATIONAL

CRIMINAL COURT1

ABSTRACT

Legal defences' falls into two categories, excuse defences and justification defences. Excuse

defence is when the defendant admits to committing a criminal act but believes that he or she

cannot be held responsible because there was no criminal intent. Excuse defences that are used in

courts today are; Age, Mental Disorder, Automatism, Mistake of Fact and Mistake of Law.

Justification defences involves a defendant admitting that when they committed a criminal act,

their actions were justified by; duress, necessity, self-defence, provocation, and entrapment he

automatism (an excuse defence), which is a claim that the environment around us, caused the

defendant to commit criminal actions involuntarily, without there really being a criminal intent.

With the exception of liability without fault, which requires only actus Reus, a crime requires

two elements, actus Reus and mensrea. While most criminal defences attempt to excuse or justify

the defendant's criminal guilt by addressing mensrea, the automatism defence is different in that

it attempts to prove that the defendant did not actually commit actus Reus. If the defendant is

found to have been acting in the state of automatism when the crime was committed, that is,

unconsciously and involuntarily, then he or she cannot be said to have been "acting" at all, in a

legal sense. Without actusreus, the defendant cannot be held criminally liable for his actions.

Automatism is a very particular circumstance, and difficult to prove in trial. Unconsciousness

and involuntary action might be caused by a certain factors, including heavy intoxication, sleep,

and being under hypnosis. However, automatism in the sense of a valid legal defence cannot

usually hold if the unconscious, involuntary state was the result of voluntary actions.

Automatism doesn't necessarily mean that the accused has to be unconscious; it means that the

consciousness must be so impaired that the accused lacks voluntary control, sleepwalking or

taking medication without knowing the effects are examples of automatism.

INTRODUCTION

1 Pallavi Kumari, pursuing LL.M from Gujarat National Law University


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Justifications and excuses are defenses to criminal liability that are called “affirmative defenses.”

A defendant can utilize an affirmative defense to absolve or lessen the amount of liability for a

particular offense. If a defendant utilizes an affirmative defense, the burden is on him to

convince a judge or jury that his actions were justified or should be excused. A justification for a

criminal offense is one in which a defendant claims that his action was necessary to protect

himself or others from harm. Self-defense is a type of justification and will be discussed shortly.

Excuses, on the other hand, are those in which a defendant admits to a criminal act, but claims

that he is not responsible for his actions.

A defence could be seen either as justifying acts that would have been criminal (justification) or

as excusing the accused that have acted criminally (excuses). The Rome Statute favours the

approach that defences could acts as grounds for excluding the criminal responsibility. In its

article 31, the Rome Statute puts together defences such as self-defence, which is usually

regarded as a justification, and intoxication or insanity, which are usually classified as excuses.

The association of such different defences is based on the idea that all are linked with the issue of

mensrea. All existing international or national crimes have two constitutive elements: the

criminal act by itself (actusreus) and the criminal intent (mensrea). Insanity or intoxication

involve the incapacity to appreciate the unlawfulness of the act. Self-defence excludes the

criminal intention, as the intention was to protect life. The consequence of duress is the

suppression of the freedom of choice of the person, thus related to the mensreaof the author.

DEFENCES UNDER INTERNATIONAL CRIMINAL LAW:

Legal system of every nation provides ground for excluding criminal responsibility and like that

international criminal law also provides for the same. In the Rome statue of International

criminal court in Article 27, 29 31-33 recognizes certain grounds on the basis of which criminal

liability may be excluded.

Although the justification and excuse are not mentioned differently in International criminal

law1 one of the difference is that Justification is a term which reverses the wrongfulness of one’s

1 M Scaliotti, `Defences Before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility - Part 1' (2001) 1


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conduct while excuse is merely negation of the blameworthiness of one’s actions. Both

justification and excuse lead to acquittal and thus the difference hardly matters in the practice.

Justifications and excuses tell us something about the quality of the defendant's act: justifications

show that what the defendant did was actually lawful even though some harm may have been

caused; excuses indicate that the defendant's conduct is still judged wrongful by the law, even

though we are sympathetic to the defendant's plight and, for that reason, may exonerate him.

Thus under international law justifications and excuses are given one name which is Defences. It

is classified in article 31 of the Rome Statue.

TYPES OF DEFENCES

1. MENTAL IMPAIRMENT

The mental incapacity ground in Art. 31 (1) (a)1 comprises two requirements: first, a `mental

disease or defect' which, secondly, `destroys capacity to appreciate the unlawfulness or nature of

conduct, or capacity to control conduct to conform to the requirements of law'. The accused's

acquittal is not a judgment about the act itself, but about the accused's capacity, at the time of the

relevant conduct, to take responsibility for it.

2. INTOXICATION

While insanity is rarely the fault of the individual, intoxication usually is. Art. 31 (1) (b)2

provides for a separate and independent exclusion ground of intoxication. This seems wise, as in

drawing a clear distinction between mental disease or defect, on the one hand, and intoxication

on the other, the Rome Statute draws attention to the fact that while the former is generally and

explicitly recognized as a ground for excluding responsibility both in the common law and civil

law traditions, the latter is not.

1 The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law 2 The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court


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Thus if the intoxication is voluntary the accused cannot be give defence in the form of an excuse.

Only the defence can be taken when law recognize that the actor did not realize that he was

committing a wrong, that he lacked the capacity to act as a truly autonomous person—thus his

actions cannot be attributed to him in the legal sense.1

3. SELF –DEFENCE

Killing in self-defence is an exception to a general rule making killing punishable; it is admitted

because the policy or aims which in general justify the punishment of killing do not include cases

such as this.

Self defence usually is treated as justifiable crime but if there is excessive self defence than it is

excusing only. Art. 31 (1) (c)2 recognizes proportionate self-defence and defence of others

against an imminent and unlawful use of force which entails danger for a person or for property

of particular importance. It thus contains the classic elements of self-defence as a justification.3

A person who is not actually attacked or endangered but believes this to be the case, is not

justified under the Rome Statute's provision on self-defence but may have resort to the rules on

mistake of fact or law under Art. 32 It is suggested that this is the correct approach as it

acknowledges that there is a difference between realities as it is and reality as it is perceived.

The Rome Statute does not explicitly address the problem of excessive self-defence4

4. DURESS

Art. 31 (1) (d)1 is framed in terms of `duress', but it appears to blend requirements of duress with

elements more typically associated with necessity. a possible and preferable interpretation of Art.

1 The Law Commission, Intoxication and Criminal Liability, 2009, Report No 314, Cm 75262 The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph 3 K. Ambos, `Other Grounds for Excluding Criminal Responsibility' in A Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. I (2002) 1032.

4 C M V Clarkson, `Necessary Action: a New Defence' (2004) Crim LR 81, 94.


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31 (1) (d) is that it relates to excusatory duress only, which leaves a justificatory necessity

defence to be subsumed under Art. 31 (3)2 It has been suggested that Art. 31 (1) (d) takes up

elements of justifying necessity and excusing duress, even though it speaks solely in terms of

`duress',

If one looks at the wording of Art. 31 (1) (d), the provision has much in common with traditional

defences of pressure, and in the following, it will be argued that it can be interpreted so as to give

rise to a duress defence alone excluding necessity, and that it is best perceived as an excuse.135

It does not require any special relationship between the defendant and the person to be protected

Moreover, Art. 31 (1) (d) seems to envisage the availability of the defence also in cases of

murder: it appears to apply to all crimes within the jurisdiction of the ICC. In this respect, the

Rome Statute is clearly more generous

However, it might be argued that the provision also entails elements that one might expect to

find in a necessity defence. Notably, the provision envisages that `the person acts necessarily and

reasonably to avoid this threat'. This requirement has been described as belonging to necessity,

and could be taken as proof that the provision mixes up duress and necessity, creating a hybrid

which is difficult to categorise as either excuse or justification.

This interpretation can be squared with the wording of the statute in the following way: as

pointed out above, Art. 31 (1) (d) demands that `the person acts necessarily and reasonably to

avoid this threat'. `Necessarily' requires that no other means was available to the defendant by

which to avoid the threat or, rather, avoid acting on the threat. Most commentators argue that

`reasonably' should be understood as entailing an objective proportionality test.

1 The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control. 2 At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.


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Thus The insanity defence focuses on the actor's capacity, which, as has been shown, is the same

as a `bar to responsibility'. A similar point can be made about intoxication, although, as seen, the

scope of that defence has been much reduced in comparison to some domestic legal systems.

Self-defence, in excluding mistaken self-defence from its ambit, points towards the conclusion

that it is meant to justify rather than excuse. While the provision on `duress' is based on common

law concepts, the wording of the provision suggests that it is best regarded as an attempt to align

duress with duress of circumstances , and should as such be regarded as excusatory.

MISTAKE OF FACT AND MISTAKE OF LAW

The Rome Statute allows mistakes of fact or law as defences where the mistakes are such as to

prevent the accused from having formulated the necessary mens rea for the offence. Article 32 of

the instrument specifies that:

‘1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the

mental element required by the crime.

2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of

the Court shall not be a ground for excluding criminal responsibility. A mistake of law may,

however, be a ground for excluding criminal responsibility if it negates the mental element

required by such a crime, or as provided for in article 33’.

The second paragraph gives expression to the general position that ‘ignorance of the law is no

excuse’, with the exceptions being where the mistake negates the crime’s mental element, or

with regard to the defence of ‘superior orders’, discussed further below. It has been noted that

Article 30 of the Rome Stature requires that offences be committed with intent and knowledge,

while crimes such as genocide and the crime of humanity of persecution require additional

special intent. The ICC has asserted that ‘the defence of mistake of law can succeed under

Article 32 of the Statute only if [an accused] was unaware of a normative objective element of

the crime as a result of not realising is social significance (its everyday meaning)’.1 The

1 Lubanga (ICC-01/04-01/06), Decision on the Confirmation of Charges, 29 January 2007, para. 316. See T. Weigend, ‘Intent, Mistake of Law and Co-perpetration in the Lubanga Decision on Confirmation of Charges’, Journal of International Criminal Justice 6, 2008, 471, p. 476.


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specialized and at times technical nature of international humanitarian law, as evidenced by the

concept of reprisals, for example, should see a more flexible approach to this defence.1

The Hartmann contempt trial before the ICTY was one of the rare occasions when mistake was

raised as a defence before international criminal tribunals, although of course the accused in that

instance was not charged with an international crime. Defence argued that the accused was not

aware of the illegality of her conduct and that she acted under a reasonable belief that the

information she disclosed was public.2 The Chamber did not accept that the accused was

reasonably mistaken in fact regarding the confidential material and as regards the mistake of law

defence, it noted ‘that a person’s misunderstanding of the law does not, in itself, excuse a

violation of it’.3 In dismissing the claim, the Chamber found that the accused had demonstrated

knowledge, rather than ignorance of the law.4

Superior Orders

The highly regimented structure of military forces, where lawful orders should be met with

‘prompt, immediate, and unhesitating obedience’,5 has given rise to a defence of superior orders,

whereby an accused claims that they acted on the basis of orders from a superior which as a

subordinate they were bound to follow. This defence is probably the best-known defence in war

crimes law. In case law as well as in scholarly debates, it has been at the forefront of the debate

on ‘defences’. As the United Nations War Crimes Commission observed, ‘the plea of superior

orders has been raised by the Defence in war crime trials more frequently than any other’.189

The legal debate on superior orders has produced three main ‘schools of thought’:

1. the respondeat superior doctrine,

2. the absolute liability or full responsibility doctrine, and

1 Schabas, An Introduction to the International Criminal Court, p. 230. 2 Hartman (IT-02-54-R77.5), Special Appointed Chamber, Judgment, 14 September 2009, paras. 63-64 3 Ibid., paras. 64-65 4 Ibid., para. 66. 5 United Kingdom War Office, Manual of Military Law, London: H.M. Stationery Office, 1907, p. 18.


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3. the conditional liability or limited responsibility doctrine that, which, as will be shown

later, exists in different versions. Much has already been written on the defence of

superior orders.

The debate below will be limited to the main points in the superior orders debate. According to

the respondeat superior theory, propounded by Oppenheim and briefly discussed earlier, the

subordinate was exempted from criminal responsibility if he committed a war crime. As the

subordinate was regarded an instrument in the hands of the superior, it was the superior who

could be held accountable for the commission of the crime. The subordinate could thus

successfully invoke a defence of superior orders. The Nuremberg Judgement disposed of this

doctrine, which had by that time already come under heavy criticism. The Statute of the

Nuremberg Tribunal established the absolute liability doctrine, which stipulated that superior

orders are no defence but can be considered in mitigation.

International criminal law has evolved in its treatment of the defence, from its rejection as an

absolute defence at Nuremberg, to a more nuanced approach under the Rome Statute of the

International Criminal Court.1 Article 8 of Nuremberg Charter established the standard approach:

‘The fact that the Defendant acted pursuant to order of his Government or of a superior shall not

free him from responsibility, but may be considered in mitigation of punishment if the Tribunal

determines that justice so requires’.

This approach ruled out superior orders as a defence, and rendered it relevant only at the

sentencing stage, although in finding Keitel guilty on all four counts, the Nuremberg Tribunal

concluded that the defence of superior orders ‘cannot be considered in mitigation where crimes

as shocking and extensive have been committed consciously, ruthlessly and without military

excuse or justification’.2 The statutes of the contemporary ad hoc international criminal tribunals

have included a provision on superior orders largely replicating the approach taken at

1 See J.N. Maogoto, ‘The Defence of Superior Orders’, in Olaoluwa Olusanya, Rethinking International Criminal Law: The Substantive Part, Groningen: Europe Law Publishing, 2007, 89 2 International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946, reprinted in American Journal of International Law 41: 1, 1947, 172, p. 283.


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Nuremberg.1 However, according to Zahar and Sluiter, the practice is that despite the

considerable academic commentary on superior orders, it is ‘almost by definition not a live

defence at the tribunals’ given the seriousness of crimes charged and the seniority of the

accused.2 The limited consideration of the defence of superior orders at the ad hoc tribunals has

taken place at the sentencing stage, and has usually been unsuccessful.

The provision on superior orders in the Charter of the Tokyo Tribunal, on the other hand,

maintained the clause in Article 6:

Neither the official position, at any time, of an accused, nor the fact that an accused acted

pursuant to order of his government or of a superior shall, of itself, be sufficient to free such

accused from responsibility for any crime with which he is charged, but such circumstances may

be considered in mitigation of punishment if the Tribunal determines that justice so requires.

In adopting the Nuremberg rule, the drafters of the ICTY and ICTR Statutes failed to appreciate

the ‘situation specific’ nature of the Nuremberg rule on superior orders. Practice at the ICTY,

however, has shown that, as in the subsequent proceedings after the Second World War, resort to

a defence of superior orders is possible through another defence such as those of duress and

mistake.3The delegates drafting the ICC Statute were divided into two groups: one advocating

the absolute liability approach (in particular Germany and the United Kingdom) and another

group supporting the conditional/limited liability approach (the United States). After many long

and difficult debates, the two opposing positions found a compromise in one rule. Article 33 can

be seen to constitute the conditional/limited liability approach.

1 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc S/25704 at 36, Annex (1993) and S/25704/Add.1, (1993) U.N. Doc S/RES/827, Art. 7, para. 4, Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda, U.N. Doc. S/Res/955 (1994), Art. 6, para. 4; Statute of the Special Court for Sierra Leone, having been established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council Resolution 1315 (2000) of 14 August 2000, Art. 6, para. 4. 2 Zahar and Sluiter, International Criminal Law, p. 425 3 The Erdemovic case is an example of the simultaneous resort to duress and superior orders. It has been suggested that the defence of superior orders can come up at the ICTY in connection with a mistake of fact. The bombing of the Chinese Embassy during the Kosovo conflict by NATO might be an example of a mistake of fact to which the aircrew might have recourse. Fenrick in his reaction to Garraway in Duyx et al. (2000), p. 99


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The Rome Statute dedicates a separate article to the defence of ‘superior orders and prescription

of law’. Article 33 reads:

‘1. The fact that a crime within the jurisdiction of the Court has been committed by a person

pursuant to an order of a Government or of a superior, whether military or civilian, shall not

relieve that person of criminal responsibility unless:

(a) The person was under a legal obligation to obey orders of the Government or the superior in

question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes against humanity are

manifestly unlawful’.

Article 33 of the ICC Statute in its current negative formulation requires the defence to

demonstrate that the requirements under paragraph 1 (the person was under a legal obligation to

obey orders, and he did not know that the order was unlawful, and the order was not manifestly

unlawful) were present. The absolute liability approach reappears in paragraph 2 of Article 33,

where onereads that ‘orders to commit genocide or crimes against humanity are manifestly

unlawful’.

This is a departure from the approach taken at Nuremberg and by the ad hoc tribunals, in that the

defence is allowed in limited circumstances: only those under a duty to obey orders can raise the

defence, it is limited to war crimes charges, and will succeed where it is proved that the

individual did not know that the order was unlawful and the order itself was not manifestly

unlawful. Antonio Cassese has contended that the provision is out of step with customary


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international law by treating war crimes differently from genocide and crimes against humanity

in terms of manifest unlawfulness.1

Difference between article 28 and 33 of Rome Statute

The notion of ‘order’ in Article 33 should be taken to have a broad scope and extend to any

written or unwritten communication between a superior and his subordinate within a balance of

power, i.e. presupposing that the superior has the right to demand obedience should suffice in

this context. An order should reach its addressee and clearly state what is expected from the

recipient. An order can be directed to an individual or to an entity. In the latter case, it can still be

regarded as an order to a person. The order that ‘no quarter shall be given’ directed to a military

force can be regarded as an order to every person belonging to that force, although not

individually addressed.

Orders ‘of a Government or of a superior’ usually relate to orders emanating from the hierarchy

of Government to commanders of military units to be delivered to their subordinates. Such a

commander may either simply pass the order on to another commander or address his

subordinates directly. ‘Government’ and ‘superior’ are normally limited to de iure authorities.

This raises an important point. Superior-subordinate relationships should be interpreted more

strictly in the context of superior orders than in the context of superior responsibility. It is,

therefore, misleading to suggest that Articles 28 and 33 ‘represent two sides of the same coin’.2

In the context of superior responsibility (Article 28), de facto relationships have been understood

to include informal relationships based on effective control.3 This includes civilian superiors,

such as the director of a tea company4, as long as a civilian superior can be found to have the

duty and the ‘material ability’ to prevent his subordinates from committing crimes, or punish

them when they have committed one. It is submitted here that de facto relationships and

unofficial subordination seem irrelevant in the context of superior orders. The only ‘civilian’ that

counts in the context of superior orders is the political superior or government representative.

1 Cassese, International Criminal Law, p. 241. 2 Triffterer in Triffterer (ed.) (1999), margin No. 33, p. 588. 3 ICTY, Celebici Judgement, paras 377-378, endorsed by the Appeals Chamber in Celebici Appeal Judgement paras. 197-199. 4 ICTR, Musema Judgement, para. 135.


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This is why the word ‘civilian’ was included in the ‘chapeau’ of Article 33. It refers to civilian

departments and administration within Government. The latter is traditionally divided into

civilian and military departments.

An exception to the above statement can be made for a de facto superior who qualifies as a

person effectively acting as a de iure military commander. For instance, the subordinate of a

military commander, who is not yet formally designated commander, but already acts as one in

anticipation of his official appointment. In the latter type of situation, being so close to a de iure

command, de facto command and the orders emanating from it may suffice to qualify as ‘orders

of the superior’ pursuant to Article 33(1)(a) of the ICC Statute.

The reason for the disparity between Articles 28 and 33 regarding the superior subordinate

relationship lies in the basis of a plea of superior orders: the unique relationship between a

military superior and his subordinate, which is based on the military duty to obey and the

ensuing presumption of legality of orders. In reality, the defence of superior orders is reserved

for the military.

Essential conditions for taking this defence:

• A causal connection between order and conduct needs to be established. Article 33

requires that a crime has been committed ‘by a person pursuant to an order’. If the person

commits the crime independently from the order, he does not have a defence under

Article 33. The order must have inspired or initiated the subordinate to act.

• The subordinate was bona fide or in good faith when (wrongfully) believing that he was

under a legal obligation to obey orders. in the case of an order accompanied by a threat,

the legality or otherwise of the order is, to the individual, really quite irrelevant'.1 In other

words, duress can still be a defence when a subordinate carries out an unlawful order. Not

the nature of the order, but the threat accompanying it makes one act under duress.

1 A.S. Paphiti, 'Duress as a Defence to War Crimes Charges', 38 Revue de Droit Militaire et de Droit de la Guerre (1999),


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• The second condition constitutes the subjective requirement of the superior orders

defence and refers to the subordinate’s knowledge of the legality of the order. To be

relieved of criminal responsibility, the subordinate-defendant must have to argue that he

did not know that the order was unlawful.

• The third condition contains the manifest unlawfulness test, which constitutes the

objective requirement circumscribing the scope of application of the plea of superior

orders. The manifest unlawfulness test is subject to a Garantenstellung ie. Liable for

prevention. What is manifestly unlawful for specialised military personnel is not

necessarily manifestly unlawful for the average soldier. The Garantenstellung thus

effectively narrows the scope of the superior orders defence for specially trained military

personnel who 'should know better'.

CONCLUSION:

During the Nuremberg trials the defence of superior order was not accepted as a defence due to

the reason that the crimes were too grave in nature but the court said that superior orders could

be taken as a mitigating factor at the sentencing stage. The Tokoyo trials also had a similar view

as the Nuremberg trial. In the Ad Hoc tribunals of Rawanda and Yugoslavia only in the

Erdemavic case this defence was accepted to be a valid defence. There was a huge conflict

between countries which believed in the absolute liability theory and those who believed in the

conditional/limited liability theory. Finally art. 33 of the Rome Statute codified superior orders

as a defence under international criminal law.

The second paragraph of Article 33 contains the exclusion of the defence of superior orders for

genocide and crimes against humanity. Orders to commit the latter crimes are considered

manifestly unlawful per se. The inclusion of this clause in Rome was plainly to appease the

delegates supporting the absolute liability rule. It marks Article 33 as the ultimate compromise.

Strictly speaking, the condition is superfluous. After all, an order to commit either crimes against

humanity or acts of genocide can be considered ‘manifestly unlawful’ under subparagraph 1(c)


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bearing in mind the special intent and grave nature of the crimes. Furthermore, the clause results

in a distinction between war crimes on the one hand and crimes against humanity and acts of

genocide on the other hand.


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PANCHAYAT AND NYAYPANCHAYAT: INDIAN SCENARIO1

Introduction

The Ministry of Panchayati Raj, Government of India have prepared the Draft Nyaya Panchayat

Bill, 2009 that aims to revitalize the concept of participatory grass roots level dispute resolution

by mediation, conciliation and compromise outside the formal judicial system. The Bill provides

for the establishment of Nyaya Panchayats at the level of each village Panchayat or cluster of

Village Panchayats. Under it people residing in the area to which the jurisdiction of the

Panchayat extends will constitute the Nyaya Panchayats through the election of Nyaya Panchas.

The Ministry of Panchayati Raj has prepared the Bill in exercise of the legislative powers of the

Union Government under the Constitution of India. The present study is aimed at strengthening

the constitutional and legal validity as well as the mechanisms mooted in the Draft Nyaya

Panchayat Bill, 2009. The entire study is carried out in seven separate sections as below.

Nyaya Panchayat and the Constitutional Ideal of Justice

The Constitution of India has given a place of pride to the attainment of the ideal of securing

justice to all citizens. The Preamble speaks of the resolve to secure to all the citizens of India

Justice that is defined or elaborated as social, economic and political. More significantly, the

Preamble places justice higher than the other principle of liberty, equality and fraternity. The

concept of Justice in the Preamble is indeed very wide. It is not confined to the narrow legal

justice as administered by the Courts.2 Again the juxtaposition of words is important in as much

as it gives precedence to social and economic over political justice. Article 38 especially

embodies the preambular concept of justice where it speaks of social order in which “justice,

social and economic and political shall inform of national life.” The Supreme Court of India has

made clear that the constitutional concern of social justice as an elastic continuous process is to

1 Nishit shah, 4th Year, Chanakya National Law University, Patna. 2 Subhash Kashyap, Constitutional Law of India, Volume 1, Universal Law Publishing Co, 2008 at p.309.


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accord justice to all sections of society by providing facilities and opportunity to remove

handicaps and disabilities with which the poor are languishing, and to secure dignity of their

person.1 Justice –social and economic- ought to be made available with utmost expedition so that

that the socialistic pattern of society as dreamt of by the founding fathers can thrive and have its

foundation and so that the future generation do not live under the dark and cry for social and

economic justice.2

Article 39 A of the Constitution postulates that the operation of legal system shall be such as to

promote justice. It lays down that “The State shall secure that the operation of legal system

promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid

by suitable legislation or schemes or in any other way, to ensure that opportunities for securing

justice are not denied to any citizen by the reason of economic and other disabilities.” The

language of the Article is cast in mandatory terms as is clear by the use of the word ‘shall’ twice

therein.3 Besides, the crucial words are (the obligation of the State) to provide free legal aid 'by

suitable legislation or by schemes' or 'in any other way', so that opportunities for securing justice

are not denied to any citizen by reason of economic or other disabilities. The above words

occurring in Article 39A are of very wide import.4 The following observation of the Law

Commission of India in its 114th Report in 1986 is noteworthy in this context:

“Article 39A of the Constitution of India directs the State to secure that the operation of the legal

system promotes justice, on a basis of equal opportunity, and shall, in particular provide free

legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for

securing justice are not denied to any citizen by economic or other disabilities. This is the

constitutional imperative. Denial of justice on the grounds of economic and other disabilities is

in nutshell referred to what has been known as problematic access to law. The Constitution now

commands us to remove impediments to access to justice in a systematic manner. All agencies of

the Government are now under a fundamental obligation to enhance access to justice. Article 40

which directs the State to take steps to organize village panchayats and endow them with such

1 Consumer Education and Research Centre v. Union of India AIR 1995 SC 922 2 G.B. Pant University v. State of Uttar Pradesh, AIR 2000 SC 2695 3 M P Jain, Indian Constitutional Law, Sixth Edition, Lexis Nexis Butterworths Wadhwa, 2010. 4 State of Maharashtra v. Manubhai Pragaji Vashi and Ors., (1995) 5 SCC 730.


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powers and authority as may be necessary to enable them to function as units of self-government,

has to be appreciated afresh in the light of the mandate of the new article 39A.”1

It is clear from the foregoing that Panchayats need to be seen afresh in the light of the mandate to

promote Justice ‘in all possible ways’ under Article 39A of the Constitution of India. As noted

above Article 39 A of the Constitution of India obliges the State to provide free legal aid 'by

suitable legislation or by schemes' or 'in any other way', so that opportunities for securing justice

are not denied to any citizen by reason of economic or other disabilities. The proposal for

constitution of Nyaya Panchayats throughout the country as contained in the Draft Nyaya

Panchayat Bill, 2009 deserves to be seen as a dynamic and strategic mechanism for redressal of

legal disputes, and for delivery of justice to the village people, taking into account the socio-

economic conditions prevailing in the country. It responds to the mandate to promote Justice ‘in

all possible ways’ under Article 39A of the Constitution of India.

‘Substantial Justice’ and Nyaya Panchayats:

One definitive way of conceiving Nyaya Panchayats is that they are local institutions, staffed by

local community members, and answerable to local attitudes and locally defined needs. It has

been authoritatively commented in the one of the well known texts on ‘village courts’ in another

country that “Substantial Justice may be an imprecise notion in jurisprudence, but it is an

appropriate description of what is sought by hundreds of societies” in the villages across the

country.2 Different Judges has variously defined substantial justice. A few instances and phrases

used judicially include `the natural sense of what is right and wrong'; `universal justice'

`the substantial requirement of justice', `fundamental justice’, `fair-play in action', `common

fairness' etc.3 In a country like India where more than a quarter of population is steeped in

poverty and a third of the citizens lacking basic reading and writing skills, it will be reasonable to

expect that substantial justice to them could be mere slight improvement in their lives. What 1 See Chapter V, Para. 5.3 114th Report of the Law Commission of India, August 1986.2 Goddard, Michael. (2009 ) Substantial Justice: An Anthropology of Village Courts in Papua New Guinea, Berghahan Books at P.13. 3 See Sushil Kumar Sen v. State of Bihar, [1975] 3 SCR 942.


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exactly does law and justice mean to the poor and the disadvantaged village people? What

obstacles they face in living a dignified life and do law have a role in mitigating some of them?

What are the strategies they have adopted to fight injustices in their lives and for sheer survival

in many cases?1 The strategies for seeking justice - and the means to redress conflicts in local

village societies - rest with the leaders and enlightened people of the same local village society.

This is one of the essential premises of the Draft Nyaya Panchayat Bill, 2009.

The Nyaya Panchayat Bill, 2009

The Draft Nyaya Panchayat Bill 2009 seeks to bring justice to the door of the people by

establishing Nyaya Panchayats at the Village Panchayat level i.e. at the level of small group of

villages. It is driven by the belief that Nyaya Panchayats alone can solve the problem of bringing

justice nearer to the village people. Accordingly, the Draft Nyaya Panchayats Bill, 2009 opens

with its objective defined as “a Bill to provide for establishment of Nyaya Panchayats, at the

level of every Village panchayats or a group of Village Panchayats as the case may be,

depending on population and area, as a forum for resolution of disputes with peoples

participation directed to providing a system of fair and speedy resolution of disputes arising in

rural areas, access to justice, both civil and criminal, to the citizens at the gross root level, and

for matters connected therewith or incidental thereto”.

The preambular emphasis of the Nyaya Panchayat Bill 2009 points out the Nyaya Panchayats

represent ‘a decentralized dispute redressal system’ and it needs to be defined and seen as such.

Equating them with regular courts has caused confusion in the past that needs to be done away

with. The preamble to the Bill makes the objective further clear by stating that “establishment of

a decentralized dispute redressal system through mediation, conciliation and compromise at the

grass-root level requires to be institutionalized with the involvement of the people living in that

particular area”.

The Nyaya Panchayat Bill 2009 emphasizes the pre-eminent role of conciliation and mediation

1 Videh Upadhyay. (2007) Justice and the Poor: Does the Poverty of Law Explain Elusive Justice to the Poor? in Bibek Debroy (ed.) Judicial Reforms in India, Academic Foundation, New Delhi.


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in handling village level disputes as would be expected of any decentralized dispute redressal

system. 19 However the formulation that “mediation, conciliation and compromise at the grass-

root level require to be institutionalized with the involvement of the people living in that

particular area” needs a close appreciation. Law Commission of India in its Fourteenth Report

while highlighting the fact it is “erroneous” to regard Nyaya Panchayats in the same manner as

ordinary Courts as they are “essentially different” went on to add that the Nyaya Panchayat’s

“main function is to bring about as far as possible, a compromise of small disputes arising in the

village. An amicable settlement of such disputes becomes easier to secure when the person

clothed with the authority of deciding them have the advantage of knowing the disputants, the

subject-matter of the dispute, the way in which the dispute arose and other facts relating to them.

The personal knowledge of panchas in these matters which they are entitled to use in inducing a

settlement wherever possible and ultimately, if necessary, deciding those disputes is valuable for

efficient and smooth working of these tribunals, whether as conciliators or as adjudicators.”

Elected Nyaya Panchas and the Institutional Safeguards built in the Nyaya Panchayats Bill,

2009:

If the dispute redressal system with a clear focus on mediation, conciliation and compromise

needs to be institutionalized with the involvement of the people living in the local panchayat area

the next question is as to who are the best local village people to form this body. The Nyaya

Panchayat Bill, 2009 lays down that “Every Nyaya Panchayat shall consist of five panchas who

shall be elected by the voters enrolled in the voters list of that village panchayat are group of

village panchayat in the manner to be prescribed by the state government”1 While modes of

selection and appointment and of nomination can be conceived as possible ways of constituting a

Nyaya Panchayat, as the above clause shows the Bill has chosen election as the mode for

constituting these Panchayats.

It is pertinent to note here that the Law Commission, in its Fourteenth Report, expressed itself

against the principle of government nomination of Nyaya Panchas. It felt that nominated

1 Section 3 of the Nyaya Panchayat Bill, 2009.


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panchas may not ‘command the complete confidence of villagers’; nominated panchas may be

impartial but the nominating officers may lack ‘first hand knowledge of local conditions’; in that

event ‘the freely expressed will of the villagers, in substance, (would) be replaced by the

untrustworthy recommendations of the subordinate officials’. The nominees would ‘tend to act in

a manner which will command the approval of the appointing authority rather than discharge

their functions in a true spirit of service to the village community’. Although the Commission did

not in principle, support an elected judiciary, it did not regard Nyaya Panchayat as judiciary in

the proper sense of the term but rather as ‘tribunals’ who have to ‘inspire the confidence of

villagers’. The Study Team on Nyaya Panchayats in 1962 endorsing those views had also

concluded that “The system of nomination in any form has to be ruled out. Villagers must be

given a free hand and the choice lies between the system of direct elections and indirect

elections.”1

The mode of election in constituting Nyaya Panchas has been criticized as possibly fomenting

party politics, patronage, factionalism etc.. However, while appreciating that this is the only

mode, which goes with the objectives of democratization of justice delivery mechanism adequate

safeguards, has been built in the Bill. The clauses such as the ones providing for reservation to

Scheduled Caste and Scheduled Tribes in every Nyaya Panchayat proportional to their

population; for 50% of total seats reserved for S.C. and S.T. to be reserved for women belonging

to such category; for 50% of the total number of seats of Nyaya Panchayat to be reserved for

women; empowering state to make provision for reservation in favour of O.B.C., and the

provision that a dispute before Nyaya Panchayat shall be heard and determined by a bench

consisting of Panchayat Pramukh, two panchas selected amongst the panchayats and two other

persons not otherwise disqualified from amongst a panel of names suggested by the parties to the

dispute etc. are all such provisions that enables mandatory representation of the marginalized

clauses in the Nyaya Panchayats and builds in safeguards that can help Nyaya Panchayats be free

from the vice of elite capture.2

There are further safeguards in the Draft Bill. There is a provision that that no panch shall

1 Report of Study Team on Nyaya Panchayats, 1962 at p.125. 2 See Section3 of the Nyaya Panchayat Bill, 2009 for all the cited provisions.


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participate in any meetings or proceedings of a panchayat (Gram Panchayat) at the village,

intermediate or district level;1 that office of Nyaya Panchayat Pramukh shall be held by each

panch for a period of one year by rotation;2 and that offences against women and dispute relating

to custody and maintenance of children and dependents including divorced spouses shall be

heard by a bench consisting of Nyaya Panchayat Pramukh and two elected women panchas and

two other persons not otherwise disqualified from being elected as a panch from amongst a panel

of names suggested by the parties to the dispute3. These are all provisions that infuse fairness and

equity in the Nyaya Panchayat dispute redressal system. Other useful provisions that are central

to the legislative scheme proposed by the Nyaya Panchayat Bill, 2009 include:

• No panch shall be nominated to or participate in the proceedings of Nyaya Panchayat

bench or be involved in any manner with any proceedings before the Nyaya Panchayat

where any party is either a near relation or a business partner;4

• First appeal from the decision of the Nyaya Panchayat shall lie to full bench of Nyaya

Panchayat which consist of all the 5 Nyaya Panchas alongwith two other persons not

otherwise disqualified from being elected as a panch and from amongst a panel of names

suggested by the parties to the dispute;5 further, an appeal (Second Appeal) against

decisions of full bench of Nyaya Panchayat before District Nyaya Panchayat Appellate

Authority especially established for this purpose;6

• Establishment of District Nyaya Panchayat Appellate Authority and an Authority known

as Ombudsman by the state government on the recommendation of selection committee

in each district of the state and such selection committee to consist of following - (a)

Judge of the High Court of the State nominated by the Chief Justice of the High Court to

act as Chairperson, (b)Secretary, State Department of Personal, (c) Secretary, State

Department of Law, (d) Secretary, State Department of Tribal Affairs or Social Welfare

to act as members and (e) Secretary, State Department of Panchayat Raj to act as

1 Section 3(4) of the Nyaya Panchayat Bill, 2009. 2 Section 3(5) of the Nyaya Panchayat Bill, 2009. 3 Section 3(7) of the Nyaya Panchayat Bill, 2009. 4 Section 6(1) and 6(2) of the Nyaya Panchayat Bill, 2009. 5 Section 36 (1) and 36(2) of the Nyaya Panchayat Bill, 2009. 6 Section 36 (3) of the Nyaya Panchayat Bill, 2009.


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member-convener;1

• The District Nyaya Panchayat Appellate Authority shall consist of three members – (a) a

persons who is, or has been, or is qualified to be a District Judge, who shall be its

President, (b) two other members one of whom shall be a woman, who shall have the

following qualifications namely (i) be not less than 35 years of age, (ii) possess a

bachelors degree from recognized university, (iii) be persons of ability, integrity and

standing and have adequate knowledge and experience of at least ten years in dealing

with problems relating to law, public affair or in administering local self government;2

and

• Appointment of ombudsman for amongst persons of eminent standing and impeccable

integrity with at least 20 years of experience in public administration who shall

investigate and dispose of any complaint filed before the Nyaya Panchayat on the basis of

findings received from Nyaya Panchayat regarding misuse of any public office or

misappropriation of funds or any deficiency in implementation of central or state

government scheme or corruption or maladministration by any public servant or

panchayat or panchayats within the Nyaya panchayat area.3

Aspects of Constitutionality of Nyaya Panchayats

The Constitution (Seventy-Third Amendment) Act that came into force with effect from 24th

April 1993 gave a constitutional status to the Gram Sabha and the Gram Panchayats while

seeking to vest with them substantial powers to enable them to become effective institutions of

local self governance at the village and panchayat levels. However, a pertinent point to note is

that states of Andhra Pradesh, Gujarat, Haryana and Karnataka made no provisions for Nyaya

Panchayats in their post -73rd Amendment law, though they had the provisions in their earlier

laws. This has been seen as “a retrograde step taken by these states to disempower the

constitutionally mandated panchayats.”33 One argument that is often made in this context is that

1 Section 37 of the Nyaya Panchayat Bill, 2009. 2 Section 38 of the Nyaya Panchayat Bill, 2009. 3Section 39 of the Nyaya Panchayat Bill, 2009.


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since the subject of “administration of justice” was not one of the listed items in the 11th

Schedule to the Constitution that provided subjects with respect to which the powers and

functions could be vested in the panchayats, it is clear that panchayats can have no role to play in

this field. This argument is flawed for two reasons. One, list of items provided in the 11th

Schedule is only illustrative and not exhaustive. Hence, non- listing of “administration of justice”

would not debar Panchayats from dealing with that subject.34Secondly, and more importantly,

under the Constitution the primary function of panchayats at each tier is “the preparation of plans

for economic development and social justice”35 The inclusion of ‘social justice’ here makes it

clear that administration and dispensation justice in local village societies is a constitutional

mandate that rests with the Panchayats. On the full meaning and import of the “social justice”

when seen with the Panchayats mandate for “the preparation of plans for economic development

and social justice”

Legislative Competence of the Centre under the Constitution.

The legislative competence of the Centre to frame and enact a law on Nyaya Panchayats can be

sourced to Entry 11 A of the Concurrent List under the Seventh Schedule of the Constitution that

is as follows: “Administration of Justice; constitution and organization of all courts except the

Supreme Court and the High Courts’ The Nyaya Panchayat Bill 2009 needs to be sourced to the

entry of ‘Administration of Justice’ under Entry 11 A, Concurrent List. Confusion is often

caused by also citing Entry 95, Union List that relates to “Jurisdiction and power of all courts...”

for sourcing the Nyaya Panchayat Bill. This has contributed to giving an impression that Nyaya

Panchayats can be equated with regular courts. That this is just not the case shall be explained in

detail below.

An appreciation of the legislative scheme proposed under the Nyaya Panchayat Bill, 2009

require some key constitutional questions and concerns to be considered including whether

legislative scheme is reasonable and meets the objective that the Bill seeks to achieve; whether

constitution of Nyaya Panchayats violates the principles underlying Article 50 of the

Constitution of India, providing for separation of judiciary, legislature and executive inter-se;

Whether conferring of judicial power on elected panchas is unconstitutional and is contrary to

the spirit of judicial independence; and whether the objectives of imparting justice can be


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achieved by elected persons, who have no legal background or training. All these questions and

concerns on the constitutionality of Nyaya Panchayat are examined with reference to judicial

principles and case laws below.

Creation of Nyaya Panchayats in response to Article 50 of the Constitution

Article 50 of the Directive Principles of Policy under the Constitution of India lays down that

“the State shall take steps to separate the judiciary from the executive in the public services of

the States.” The Supreme Court interpreting this Article has laid down that “Simply stated, it

means that there shall be a separate judicial service free from the executive control."37 In

another case it held that the concept of judicial independence is deeply ingrained in our

Constitutional scheme and Article 50 illuminates it.38

At the outset one aspect that has led to a totally unfounded criticism of the Nyaya Panchayats

needs to be made clear. Nyaya Panchayats are different from Gram Panchayats i.e. Village

Council established at the level of the Panchayat. Gram Panchayat are different from Nyaya

Panchayat in as much as the former is an executive body and part of local self governance at the

village level, whereas the latter is a judicial body, members whereof have no affinity to Gram

Panchayat.

Conclusion

Judgment forms the conclusive part of the suit and determines rights and liabilities of the parties.

There is a thin line of difference between judgment and decree. Decree is the operational part of

Judgment andit has to be in harmony with the judgment.


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RIGHTS OF MENSTRUATING WOMEN IN DEMOCRATIC INDIA1

“Fight for gender equality is not a fight against men. It is a fight against traditions that have chained them-a fight against attitudes that are ingrained in the society-it is a fight against system-a fight against proverbial Laxshman Rekha which is different for men and different for women. The society must rise to the occasion. It must recognize & accept fact that men & women are

equal partners in life. They are individual who have their own identity.”

- Dr. Justice A.S. Anand

INTRODUCTION

Human right is the basic of basic rights of a person and no one can deny him/her that right.

Human rights are not a new concept to us and in our historical religious texts too the concept of

human rights are scattered everywhere. These rights are inherent to all human beings irrespective

of their caste, race, nationality, place of birth, gender, or any other status. It basically means that

we are all equal & no one can discriminate us on any basis. These are rights indispensable for the

proper development & essential for human dignity as well as human existence.2And when we

talk about human rights then we cannot overlook the issue of “gender equality” or in Indian

scenario I should say “gender inequality”. Women are not equal to men after more than 65 years

of inception of Constitution. The big jargons and encouraging and proud statements in the

constitution have been a dead letter in India because ground reality is altogether different. The

roots of patriarchal mindset are so deep in India that the idea of liberating women is considered a

threat to the society and more over the family in which she is born. This is not exactly in all the

cases but majority of the picture is like this only. In spite of all the efforts of empowering

women & prohibiting discrimination, the vision of achieving the gender equality still appears to

be a dream. 3

1 Nishita Shrivastava, Semester V, B.A. LL.B. (Hons.), Institute of Law, Nirma University, Ahmedabad, Gujarat, India. 2Shuani, Essay on Human Rights, available at <http://www.yourarticlelibrary.com/essay/essay-on-human-rights/47760/>, Last visited on July 31, 2016. 3Available at <http://www.unfpa.org/gender-equality>, Last visited on July 31, 2016.


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The Founding Father of the constitution inscribed the principle of “gender equality” in the

constitution and the same is reflected through its preamble, fundamental rights & directive

principle of state policy. The term “Gender Equality” is defined as the state in which equal

opportunities and rights are secured by every person irrespective of its gender. The constitution

of India not only provides for equality to women, but in addition to it promotes the notion of

“Positive Discrimination” i.e. women should be given preferential treatment over the men

population. In spite of the noble thoughts & efforts, the ground reality is extremely heart-

breaking. The status of women in India has not been much improved since the commencement of

the constitution long more than sixty-five years ago.

Banning, restricting and discriminating women in India is considered as “Sanskaras” and this

practice is not strange. The prevalence of customs & practices has always kept women bounded

& restricted. Moreover, religious institutions have always been the integral part of the society &

have regulated society’s behaviour. Religion has been used as a means to promote ideology &

beliefs. Historically, women have always been considered inferior to men & have been subjected

to exploitation & inhumane treatment. That is this oppression & abuse which has basically

contributed to the present unequal social & economic condition of men & women. Not only the

social structure but, the prevailed traditional norms & practices have deteriorated the status of

women and worsen it. The roots of patriarchy & unequal treatment of women can easily be

traced back to these religious institutions who consider women incapable & impure as compared

to men.1 The contemporary instances of banning women at the place of worship are not only

contrary to very principle of gender equality but also reveal the nefarious attitude & mind set of

society towards women.2

Law comes after the religion of a person. A religion of a person is the most personal thing to

him/her but when these religions or religious institutions feed wrong idea about genders and

gender superiority. The religious institutions have taken over the law in some part of the country

where their anarchy and only their laws are present. These so called religious institutions have

1Anant Kumar, Menstruation, Purity and Right to Worship, Vol. 51, Issue No. 9, ECONOMIC & WEEKLY POLITICAL (2016) 2 Hon’ble Justice Mr. Dipak Misra, Women empowerment & gender justice, 3 LW (JS) 45 (2013)


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been discriminating women and banning them with no constitutional or legal mandate and they

are not even worried about that. The main concern & question arises is-whether these forces have

right to decide who will enter into the temple premises? Is there not the higher principle i.e. the

constitution & human rights that exist, which ought to be guiding the behaviour of people? In all

this political & religious debate, where does judiciary as well as state places its argument & is it

not should be the duty of both of them to work for the protection of fundamental rights of

citizens, while maintaining the balance between individual rights & religious freedom.

In order to debunk the claims of religious institutions of being reasonable and justified in

banning the women from temples, we ought to look up the constitutional provisions and

safeguards meted to all regarding the religion, rights and duties of people.

CONSTITUTIONAL TAKE ON THE ISSUE:

Main articles of the constitution in debate here are article 25 and 26. Where Article 25

guarantees Freedom of Conscience and Free Profession, Practice and Propagation of Religion to

all the citizens of the country, it means that it is gender neutral article, even every article in the

constitution is gender neutral and moreover for the upliftment of the downtrodden women in

India and therefore article 25 gives freedom to all the women too to worship and practice their

religion and no one can deny them to do so. But most of the religious institutions that ban or

restrict the entry of the women in the temples and places of worship claims to be protected under

article 26 of the constitution which states that they have the right to manage their religious affairs

and administration. Now judiciary is to interpret this article with keeping in mind the right to

equality, freedom and right to practice any religion of all the citizens of the country. And in all

these situation of turmoil, now it becomes the utmost duty of judiciary who is considered as the

custodian of the constitution to harmoniously construe the virtuous articles safeguarding rights of

the peoples.

Moreover, Right to equality is the basic principle which has been enshrined in the Indian

Constitution long back, but women are still struggling to for their dignified & equal share of life.

They are not just subjected to inequality in social or economic life, but now there is even a


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bigger question, do they have right to worship, are they equal to men before god, do they have

right to access to worship places.

So the paramount question of importance that surfaces in the present controversy, does women

have constitutional right to offer prayer & worship inside the temple or mosque premise which is

guaranteed under Article 25 of the constitution or the right to manage religious institution under

Article 26 outbalances the right of the women to worship. So the straight forward question which

should be asked is that whether article 25 incorporates the right of women to worship in temples

and mosques?

The question of whether right of women to worship at any place is guaranteed by Article 25 has

always been debated in past. In number of cases1, the Supreme Court has held that Article 25

does not extend to protect right to worship at any place or every place of worship. However, in

the case of Ismail Faruqui v. Union of India2, Supreme Court has clarified that if a particular

place seems to have a "particular significance for the religion" so as to form the essential or

integral part of the religion, then only it should have to be treated differently and must be

protected under article 25 of the constitution.

In the case of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan3, the Hon’ble court made

distinction between whether a practice is religious or secular delved to understand the rights

protected under Article 25(1) & 26(b). The Hon’ble court has again reiterated the same in the

case of N. Adithayan v. The Travancore Devaswom Board4 that the customs which are violative

of basic concept of human rights, human dignity, social equality & rights guaranteed under

constitution cannot be considered as an integral part of religion. Moreover, if any secular practice

is claimed to be a matter of religion or if any secular practice is alleged to be the religious

practice, the court has the right to decline the claim because protection guaranteed under Article

25 & Article 26 cannot be said to be extended to secular practices.5

1Sardar Saifuddin v. State of Bombay, 1962 AIR 853, 1962 SCR Supl. (2) 496 2 (1994) 6 SCC 360: AIR 1995 SC 605 31963 AIR 1638, 1964 SCR (1) 561 4 (2002) 8 SCC 106: AIR 2002 SC 3538 5Adelaide Co of Jehovah's Witnesses Inc. v Commonwealth (1943) 67 CLR 116, 123: 1943 ALR 193


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Moreover, if we consider that article 25 does not include right to offer worship at any place and

is not a fundamental right. Then too it would be a civil right enforceable by civil suit.1 As held in

the case of Venkataramam Devaru v. State of Mysore2, the Hon'ble Supreme Court has pointed

out that if all the people are worshiping in the temple freely irrespective of any gender without

any restrictions, then as a matter of practice it would be concluded that they do possess the right

to worship i.e. they have right to article 25 & if the said right is being violated, then do they have

common right against such restriction on worship place against any private party.3

Coming to Article 26, which provides for the freedom of maintenance and religious practices i.e.

the religious institutions are protected under this article to freely manage their religious affair. As

contended by the religious authorities under the said act, they are having right to bar entry of

women at the particular place of worship. But the Supreme Court has held in number of cases

such as Acharya Jagdishwaranand Avadhuta v. Commr. Of Police4, Commr. Of Police v.

Acharya Jagdishwaranand Avadhuta5, etc. that the freedom of religious practice guaranteed

under article 26 is limited to the rituals & observances, ceremonies, and mode of worship which

forms the essential part of the religion.

So what is important here is that, whether the practice of banning the women from the particular

place of worship constitutes essential or integral part of the religion or not. The whole burden of

proof lies on the religious authorities who are indulging in these practices. And arguing that

women are inferior to men or women are impure or women are not dressed properly would not

be logical & reasonable explanation & is not acceptable.

At last, Article 14 of the constitution guarantees right to equality i.e. everyone is equal in the

eyes of law, the state shall not discriminate any person on the basis of religion, race, caste, sex or

place of worship. The place of worship is not personal properties & any kind of discrimination in

1Freedom of Religion and Non-Discrimination: The Haji Ali Dargah’s Decision to Ban Women from Access to the Inner Sanctum, Indian Constitutional Law & Philosophy (March 30, 2015) available at <https://indconlawphil.wordpress.com/tag/right-to-worship/>, Last visited on July 31, 20106. 21958 AIR 255, 1958 SCR 895 3 Supra note 10 4 (1983) 4 SCC 522: AIR 1984 SC 51, 57 5 (2004) 12 SCC 770: AIR 2004 SC 2984


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these places should not be tolerated. Because women do have equal right to offer worship at any

place, same as men. Moreover, right to equality must override right to freedom to regulate

religious affairs. If men are allowed to enter freely into the place of worship, there is no law

which should disbar women. So, the whole onus lies on the judiciary to harmonious construe the

constitution.

Moreover, while making the constitution of India, the Founding Fathers had a vision of liberating

society from superstitious believes & practices in the name of religion which are discriminatory

& are against fundamental rights of the citizens. They aspired for the establishment of egalitarian

society1 where every person has equal rights & equal opportunities. Also, it has been very well

explained by Dr. B.R. Ambedkaer in constitutional assembly debate that if the religious practices

under article 26 is not restricted, then the religious institutions would end up laying down

unreasonable practice in the name of religion.

THE INDIAN SCENARIO AND PROBLEMS:

BanningwomenfromtheplaceofworshipisnothingnewinIndia.Fromtheancienttimes,womenare

consideredinferiortomen&havebeensubjectedtodiscrimination.Butthemostfrighteningrealityis

thatevenafter stepping into thewholeneweraof social, economic,political eraof21st century, the

society is still practicing gender discrimination & denying women with their constitutional & basic

human rights. It is very disheartening that there are still certainmosques & temples which want to

continue&nurturethesepracticesinthenameofreligion.Theconstitutionwhichguaranteesequality

&freedomofreligiontheserestrictionsandbanningwomenfromtemplesstrikeattheveryfoundation

andspiritofourconstitutionofIndiaandisveryshamefulforallofus.

Previously these bans have been accepted without much resistance. But now with the efforts of

association, people do have started to question & are asking the reasonableness & rationality

behind such bans. And these agitations will only lead these institutions to discontinue their age

old practices and monopoly and manipulation of rules and law.

1K.C. Vasanth Kumar v. State of Karnataka, 1985 AIR 1495, 1985 SCR Supl. (1) 352


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In this battle of equal right for women, judiciary has time & again did splendid job. In the

landmark decision, the Bombay High Court came out in the favour of women's right to worship.

Upholding that women do have constitutional right to enter the place of worship & no law can

prevent the women from doing so. The decision came out as the PIL was filed by activist Vidya

Bal & Advocate NilimaVarta claiming that the ban on women from place of worship is

illegal, arbitrary & in contravention to the constitution.1 The petitioner contended & prayed for

the equal right of women to enter the place of worship including the inner sanctum of Shani

Shingnapur temple & argued implementation of the Maharashtra Hindu Place of Worship (Entry

authorization) Act.

The division bench of Chief Justice D.H. Waghela & Justice M.S. Sonak observing the

provisions of Maharashtra Hindu Place of Worship (Entry authorization) Act, 1956 which

prohibits the practice of not allowing any person entering into temple & provides for 6 months

imprisonment2, ordered the government to publicize about the statutory provisions & inform

public at large about their rights. The court also noted that if men are allowed to offer prayer at

any place of worship, then women do have equal rights. The constitution of India prohibits

gender discrimination. Therefore, it is the duty of state to protect the interest of women & insure

that no law or religious institution can discriminate on the basis of gender.

Following the decision of Bombay High Court, the Shani Shingnapur temple left its 400-years

old tradition of not allowing women to enter in the inner sanctum of the temple.3

In the most recent hot case of Sabrimala Temple, the Supreme Court has asked proof of custom

to Devaswom Board of Sabarimala Temple that seeks to prohibit entry of women for the last half

century. Essentially, the petition has been filed by the Indian Young Lawyers Association & five 1How Can Women Be Stopped if Men are Allowed in Temple, Says High Court, THE WIRE, (March 30, 2016), available at <http://thewire.in/26722/how-can-women-be-stopped-if-men-are-allowed-in-temple-says-high-court/> Last visited on July 31, 2016. 2Fundamental Right of Women to Enter Temples in Maharashtra: HC, THE INDIAN EXPRESS (April 1, 2016), available at <http://www.newindianexpress.com/nation/Fundamental-Right-of-Women-to-Enter-Temples-in-Maharashtra-HC/2016/04/01/article3358007.ece>, Last visited on July 31, 2016. 3Debunking 400-year-old tradition: On Gudi Padwa, first group of women enter Shani Shingnapur temple and pray, F. INDIA (April 9, 2016), available at <http://www.firstpost.com/india/right-to-pray-debunking-its-400-year-old-tradition-shani-shingnapur-now-allows-women-to-enter-temple-2718778.html>, Last visited on July 31, 2016.


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women lawyers asking for the right of women to enter into the SabarimalaAyyappan temple

without any restrictions.1 The Sabarimala temple of Kerala restricted the entry of women in the

age group of 10-50 years which is a customary ban in accordance with Kerala Hindu Places of

Public Worship (Authorisation of Entry) Rules, 1965.2

Even senior priest Prayar Gopalkriahnan, the head of Devaswom Board that manages the temple

affairs asked for the machine to be invented so as to examine whether it is right time i.e. if a

women is menstruating or not and then only they should be allowed to enter temple. They

consider menstruating women impure & touching the idol is considered as an act of desecration.

The petitioner also contended that the ban is arbitrary & totally anti-Hindu. Such discrimination

on the basis of sex or gender clearly violates right to equality guaranteed under article 14.

The bench consisting of Justice V. Gopala Gowda & Kuriam Joseph also called the ban 'grave' &

any held that any kind of gender discrimination would not be acceptable. The Hon’ble court also

condemned the judgement of Kerala High Court in the case of S Mahendran v. the Secretary,

Travancore Devaswom Board, Thiruvananthapuram3 whereby it has upheld the validity of

Section 3(b) of Kerala Hindu Places of Public Worship (Authorisation of entry) Rules which

seeks to prohibit the entry of women at worship places.

However, the Sabarimala temple board are still contending the prohibition of entry of women in the temple as a part of centuries-old tradition & an integral part of the religion.

Not just Hindu, but Muslim women are too struggling with the norms & customs of patriarchal

society which seeks to prohibit the entry of women at places of worship. Haji Ali Dargah built in

15th century situated in Mumbai is the mosque which is a famous icon in the city. But this

1When Upanishads don’t discriminate, why ban women's entry? SC asks Sabarimala authorities, F. INDIA(February12,2016),availableat<http://www.firstpost.com/india/when-vedas-dont-discriminate-why-ban-womens-entry-sc-asks-sabarimala-authorities-2623660.html>,LastvisitedonJuly31,2016.2Why disallowing menstruating women into Sabarimala is against the spirit of the constitution, THE NEWS MINUTE (January 14, 2016), available at <http://www.thenewsminute.com/article/why-disallowing-menstruating-women-sabarimala-against-spirit-constitution-37676>, Last visited on July 31, 2016.

3AIR 1993 Ker 42


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famous icon too suffers with ill practice of denying the entry of women in the inner sanctum of

the shrine.

From the age old customs which denied women’s entry to the places of worships, the reasons of

Haji Ali Dargah Trust for banning the women also share their origin from the same justification.

The reason behind such discrimination is that it was considered a sin to let the women go near to

the holy deity which is in contravention to the tenets of Islam. Moreover, previously, women

were allowed up to the ‘mazar’, but in 2012 the Haji Ali Dargah Trust announced blanket ban

prohibiting women to enter the inner sanctum of the Dargah.1

Here in the Haji Ali Dargah, women are barred from entering into the main chamber where the

actual Dargahs is and this has given rise to the petition in the Bombay High Court which sought

the uplifting of the ban on the entry of the women irrespective of their ages. The petition has

been filed up by the Bharatiya Muslim Mahila Andolan contending that such ban has recent

origin & cannot be justified on the basis of any customs & traditions.2

Bombay High Court in its latest orders said that it will follow the verdict of the Supreme Court

on the matter of Sabarimala Temple as both the issues are of similar kind.

The Mahalaxmi temple, Maharashtra, also allowed the entrance of women in the temple

following the decision of Supreme Court in Shani Shingnapur temple.

The irony of whole debate of banning menstruating women at worship places lies in the fact that

on the one hand there is large population of men who are vehement devotee of female goddesses,

while on the other hand you are disregarding the right of women to enter places of worship in the

name of so called age-old traditions & customs.3Who gives right to men to prohibit the entry of

1Womens UN Reporting Network,India – Women May Be Banned from Some Temples as Menstruating Women/Girls Can Be Considered “Impure” (April 24, 2016) available at <http://www.wunrn.com/2016/04/india-women-may-be-banned-from-some-temples-as-menstruating-womengirls-can-be-considered-impure/>, Last visited on July 31, 2016. 2Flavia Agnes, Temple or Dargah, Restriction on Women Are Nothing But Ways of Imposing Patriarchy, THE WIRE (February 8, 2016), available at <http://thewire.in/21007/temple-or-dargah-restrictions-on-women-are-nothing-but-ways-of-imposing-patriarchy/>, Last visited on July 31, 2016. 3Raji Rajagopalan, Sabarimala: For Women's Right to Worship (July 16, 2004), available at <http://www.countercurrents.org/gender-raji160704.htm>, Last visited on July 31, 2016.


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women at worship places, when you are worshipping yoni, the private part of the goddess

Kamakhya known as bleeding goddess but imposing ban on menstruating women? What a

dichotomy? Men can worship female deities but cannot tolerate the entry of menstruating women

in the temple or Dargah.

What ought to be done…..

The recent upheavals and reforms against the temples and their discrimination shed the light on

the buried issue of gender discrimination in India. Actually the discrimination is everywhere,

sadly it is the truth but people close their eyes towards such issues and this is what plays an

important role in evolving and continuation of such evil discrimination. India is the land where

women are preached but this is now only limited in the religious texts and scriptures because the

ground reality is totally opposite of it. Such ridiculous, baseless and unreasonable restrictions

and beliefs are still prevalent in our society, where we talk about equality and Uniform Civil

Code. These instances of gender discrimination clearly projects the patriarchal mind set &

gender bias of the society.

Awareness: The age old infamous practices of gender discrimination have to be stopped and

eradicated and this cannot be done without the awareness among the people. Until and unless

they appreciate and follow such practices, these practices will always exist and find their way up

in the social strata. Campaigns like ‘Happy to Bleed’

are required in the society to curb the menace of considering women as impure. The campaign

has started as a reply to the statement of senior priest of Sabarimala temple. It recognizes

menstruation as a biological activity which women needs not to be ashamed of.

Legislative Measures: Effective and in depth legislations should be made which strike at the

grass root level of such evil and discriminatory practices.

Judicial Activism: The final and last remedy and most crucial part shall be played by the mighty

and free Judiciary of India. The judicial activism and judicial intervention would be the most

effective step towards the eradication of such discrimination. There was the reason for keeping

Judiciary separate and independent.


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Education: Explaining an imbecile is hard and futile. Therefore the main need of the hour is to

not only educate people but educate them about their duties and discipline and decency.

Education is the only sure shot answer to this misery which at present our country is facing.

Education without religious dominance and intrusion will be helpful. Subjects like Moral Values,

Fundamental Rights of people of India must be incorporated into the courses of the students in

the schools from as soon as 6th standard. Only by nourishing our foundation we can get a brighter

and healthy future for our nation. So the main need of the hour is the good and value education to

our children because they are the future of our nation.


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MEDIA TRIAL: A LEGAL DILEMMA1

The Law Commission in its 200th report, regarded trial by media as a war between two important

principles i.e. freedom of press and freedom of free and fair trial, in both of which public is vital party.

The freedom of press is the heart of social and political intercourse, the freedom of press stems from the

right of the public in a democracy to be involved on the issues of the day, which affect them. The press

has now taken up the duty of public educator making formal and non-formal education possible in a large

scale particularly in developing nations through various means like television, social network. The main

purpose of the press is to advance the public interest by broadcasting facts and opinion without which the

electorate cannot take any judgement. This is the justification given for investigative and campaign

journalism.

Media is regarded as one of the basic pillar of democracy and free and healthy press in indispensable to

the functioning of democracy. It is duty of media and press to keep the public aware of social issue and

happening in society, that’s the reason the freedom of speech and expression is contained in Art. 19 of the

Indian constitution but this freedom is also not absolute reasonable restrictions are permitted by sub-

clause (2) of the very same article. Freedom of expression doesn’t necessary mean the freedom to commit

contempt of court. At the same time, the right to free and fair trial i.e. trial uninfluenced by the outside

pressure is also recognized as the main tenet of justice in India. Provisions to safeguard this right are

contained under the Contempt of Court Act, 1971 and under Art 129 and 215 of the constitution of India.

Parties have a constitutional right to have a fair and free trial in the court of law by an impartial tribunal,

free, fair and uninfluenced by any outside pressure. This right will get defeated if media excess its power

arbitrary while reporting a matter use such a language which may have an influence on the mind of Judge

and control the judicial processes. With the growing technologies, television channel, radio, newspaper,

internet the reach of media has increased a lot in last two decades. In recent many cases there have been

numerous times were the media gave the verdict even before the court passed its judgement. This

phenomenon is basically regarded as media trial or trial by media. ‘Trial’ is a word which is associated

with the process of Justice. Presumption of innocence is very basic ingredient of criminal jurisprudence

and also the important component of judicial system that the accused should receive free and fair trial. It

is important in order to sensationalize the reporting and increase commercial value, media starts blaming

and naming the accused or the suspect. They broadcast photographs, video clips and other material along

1 Mohit Jain of IIIrd Yr.from M. S. Ramaiah College of Law, Bangalore.


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with public reaction. The problem can be seen when it involves any big name of person or celebrities, in

those cases media swings the sentiments of public either way. Therefore, it is necessary to balance

between the constitutional guarantee of free media on one hand and individual right of free and fair trial

on other.

In the case of Saibal Kumar Gupta and Ors v. B. K. Ben and Anr.1 the Supreme Court tried to

discourage the tendency of media trial and remarked:

“No doubt, it would be mischievous for a newspaper to systematically conduct an

independent investigation into a crime for which a man has been arrested and to

publish the results of the investigation. This is because trial by newspapers, when a

trial by one of the regular tribunals of the country is going on, must be prevented.

The basis for this view is that such action on the part of a newspaper tends to

interfere with the course of justice, whether the investigation tends to prejudice the

accused or the prosecution.”

In England too, there is the divergence of the opinion, in the case Attorney General v. British

Broadcasting Corp2. the House of Lords has agreed that the media trial affect the judge despite the claim

of judicial superiority over human frailty and it was observed that a man may not be able to put that which

he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. The

Courts and Tribunals have been specially set up to deal with the cases and they have expertise to decide

the matters according to the procedure established by the law. Media’s trial is just like awarding sentence

before giving the verdict at the first instance. The court held that it is important to understand that any

other authority cannot usurp the functions of the courts in a civilized society. While in view of Lord

Denning, a professional judge will not get influenced by media coverage which affects only common

man. This concept of Judicial Superiority was not endorsed by Lord Dilhorne3. Even in United States the

judiciary is in view that the court can’t function properly if reporting disturbs the judicial mind, In case of

John D. Pennekamp vs. State of Florida4, it was observed that:

1 AIR 1961 SC 633 2 1981 AC 303(HL) 3 See Attorney General v. British Broadcasting Corporation, 1981 AC 303(HC) 4 (1946) 328 US 331


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“No Judge fit to be one is likely to be influenced consciously, except by what he sees or

hears in court and by what is judicially appropriate for his deliberations. However, Judges

are also human and we know better than did our forbears how powerful is the pull of the

unconscious and how treacherous the rational process—and since Judges, however

stalwart, are human, the delicate task of administering justice ought not to be made unduly

difficult by irresponsible print.”

From above it can be stated that contempt of court can be one ground on which reasonable restrictions can

be imposed on the freedom of speech. The Contempt of Court Act defines contempt by identifying it as

civil1 and criminal2. Criminal contempt is further been divided into three types:

i. Scandalizing

ii. Prejudicing trial, and

iii. Hindering the administration of Justice

The principle of natural Justice i.e. ‘every accused has a right of free and fair trial’ clubbed with the basic

principle that ‘justice should not only be done but it must also appear to have been done’. There are

various ways to prejudice a trial if it is allowed, a person can be held guilty of an offence, which he has

actually never committed. No Publication, which is calculated to poison the mind of a Judge, a witness or

a party or create an atmosphere in which the administration of justice would be difficult or impossible, is

regarded as contempt3. Commenting on pending cases or abuse of party may amount to contempt only

when a case is triable by a Judge4. No one has the right to assume the role of an investigator so as to

prejudice the court against any person5. But again law of contempt can only be attracted to prevent the

comments when the case is sub-judice. In our legal system, courts do not have any power to impose prior

restraints on the publication of prejudicial material during the pendency of case in court.

In M.P. Lohia vs. State of West Bengal6, the Supreme Court has strongly deprecated the media

for interfering with the administration of justice by publishing one-sided articles. Pointing out that the

article was a one-sided version of the case, Justice. N. Santosh Hedge said that the facts narrated therein

are materials that may be used in the forthcoming trial in this case and that this type of article appearing in

the media would certainly interfere with the administration of justice. He remarked- 1 Section 2(b) 2 Section 2(a) 3 AIR 1943 lah 329(FB) 4 Subhash Chandra v. S.M.Agarwal, 1984 Cri LJ 481 (Del) 5 Dm. v. MA Hamid Ali Gardish, AIR 1940 Oudh 137 6 (2005) 2 SCC 686


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“We deprecate this practice and caution the Publisher, Editor and the journalist

who are responsible for the said articles against indulging in such trial by media

when the issue is sub-judice. Others concerned in journalism would take note of

this displeasure expressed by us for interfering with the administration of justice."

Further it was well stated by Chief Justice Gopal Rao Ekkbote of Andra Pradesh High Court in the case

of Y. V. Hanumantha Rao v. K. R. Pattabhiram and Anr1., where it was observed:

“ …… When litigation is pending before a Court, no one shall comment on it in

such a way there is a real and substantial danger of prejudice to the trial of the

action, as for instance by influence on the Judge, the witnesses or by prejudicing

mankind in general against a party to the cause. Even if the person making the

comment honestly believes it to be true, still it is a contempt of Court if he

prejudices the truth before it is as-certained in the proceedings. To this general

rule of fair trial one may add a further rule and that is that none shall, by

misrepresentation or otherwise, bring unfair pressure to bear on one of the parties

to a cause so as to force him to drop his complaint or defence. It is always

regarded as of the first importance that the law which we have just stated should be

maintained in its full integrity. But in so stating the law we must bear in mind that

there must appear to be 'a real and substantial danger of prejudice'.”

It is true that through media publicity those who know about the incident may come forward with

information, it prevents perjury by placing the witness under the public gaze and it will reduce crime

through the public expression of disapproval for crime and lastly, it will promote the public discussion on

important issues. All of the work is done in interest of freedom of communication and right of

information with realization that right to a fair trial is equally valuable.

Such Rights are expressly recognized by the European Court of Human Rights:

“...Again it cannot be excluded that the public becoming accustomed to the regular

spectacle of pseudo trials in the news media might in the long run have nefarious

consequences for the acceptance of the courts as the proper forum for the settlement of

legal disputes.”

1 AIR 1975 AP 30


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With the increasing tendency to use media while matter is sub-judice had now been frowned down by

courts including Supreme Court of India in various occasions. In the Case of, State of Maharashtra v.

Rajendra Jawanmal Gandhi1, the court observed:

“There is procedure established by law governing the conduct of trial of a person

accused of an offence. A trial by press, electronic media or public agitation is very

antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to

guard himself against any such pressure and is to be guided strictly by rules of law.

If he finds the person guilty of an offence he is then to address himself to the

question of sentence to be awarded to him in accordance with the provisions of

law.”

In the words of Justice H. R. Khanna:

“Certain aspects of a case are so much highlighted by the press that the publicity gives rise to strong

public emotions. The inevitable effect of that is to prejudice the case of one party or the other for a fair

trial. We must consider the question as to what extent are restraints necessary and have to be exercised

by the press with a view to preserving the purity of judicial process. At the same time, we have to guard

against another danger. A person cannot, as I said speaking for a Full Bench of the Delhi High Court in

1969, by starting some kind of judicial proceedings in respect of matter of vital public importance stifle

all public discussions of that matter on pain of contempt of court. A line to balance the whole thing has to

be drawn at some point. It also seems necessary in exercising the power of contempt of court or

legislature vis-à-vis the press that no hyper-sensitivity is shown and due account is taken of the proper

functioning of a free press in a democratic society. This is vital for ensuring the health of democracy. At

the same time the press must also keep in view its responsibility and see that nothing is done as may bring

the courts or the legislature into disrepute and make the people lose faith in these institutions.”2

Conclusion

From above it can be infer that the media had a negative influence more than a positive one except for

few occasions here and there. In modern India there have been numerous instances where media had

passed its verdict before trial ended and judges announced the judgement. In cases like Priyadarshini

Mattoo case and Bijal Joshi rape case, Jessica Lal rape case or if we see Aarushi Talwar double murder

case media always drew flak in cases over sensitive matters before the judgement was even passed.

1 (1997) 8 SCC 386 2 http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/57-61.pdf


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Restriction on media trial thus become necessarily so that the people don’t get a wrong picture of the

judicial system. To protect the privacy of individual the restriction is important but where the majority is

concerned the need to check prejudicial effect caused by a sensitive report of sub-judice matter especially

in modern India where public is becoming more and more aware and sensitive to the surrounding. The

media cannot be given a free hand in court proceedings, regulatory reforms are must to check on the

working on media. If there is a clash between the two basic fundamental rights freedom of expression and

free and fair trial which one should prevail??? For that one way is to resort to the Law of Contempt but, in

the interest of democracy and larger public, it is better to have a self disciplined and self-regulated media

in comparison to a media regulated by the court and the state. The best way to regulate the media will be

to exercise the contempt jurisdiction of the court to punish those who violate the basic code of conduct.

The use of powers against the media channels and newspapers by courts has been approved by the

Supreme Court in a number of cases as has been pointed out earlier. The media cannot be allowed

freedom of speech and expression to an extent as to prejudice the trial itself.

The Hon’ble Supreme Court in the case of Rajendra Sail v. Madhya Pradesh High Court Bar

Association and Others1, observed “that for rule of law and orderly society, a free responsible press and

an independent judiciary are both indispensable and both have to be, therefore, protected. The aim and

duty of both is to bring out the truth. And it is well known that the truth is often found in shades of grey.

Therefore the role of both cannot be but emphasized enough, especially in a ‘new India’, where the public

is becoming more aware and sensitive to its surroundings than ever before. The only way of functioning

orderly is to maintain the delicate balance between the two. The country cannot function without two of

the pillars its people trust the most.”

1 (2005) AIR 2473

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