Using Sword, Sans Notification, No Offence?

(By Abdul Khader Kunju S., Asst. Public Prosecutor, Cherthala)

The background of the issue

The conflicting decisions of two co-ordinate Benches of the Hon’ble High Court of Kerala creating doubts regarding the proper application of the Arms Act, 1959 (the Act) in Kerala. First one is that held in Azzi v. State of Kerala(2013 (4) KLT 439) and the other one is in Jinu v. State of Kerala(2017 (4) KLT 895). Both by Single Benches. In the former one the Court held as follows:-

“I am of the opinion that though the accused has not inflicted injuries with arm on any person, the act of threatening or intimidating or alarming another person by showing any arm or brandishing a knife or sword or any arm of such description and design with an intend to cause fear of death in the mind of another person or alarming him would come under the expression ‘use’ of arm, constituting the offence under Section 5(1) r/w. Section 27 of the Arms Act. Arms, particularly, in the description or design of knife or sword may have several usages. But, when the accused threatened and caused fear of death in the mind of passengers by the act of brandishing the sword in his hand and shouting that he would stab each of them to death it can be held that he used the sword in violation of Section 5 of the Arms Act and thereby committed the offence there under.”

In the latter case the Court held that:-

“Thus, on reading of Section 5 along with Section 4 of the Arms Act, it can be seen that Section 5 will not be applicable in cases of arms coming under the purview of Section 4 of the Arms Act for which licence is not required. As long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie.”

In the first case there was no contention that offence under Section 27(1) of the Act would not form if the arms other than a firearm or ammunition is used without licence in a non-notified area, but in the second case the main dispute was that unless the place where the use of arm was held is a notified area there will be no such offence. In both the cases similar acts were done by the accused and both the places are somewhere in and around Kochi. And there is no dispute that the places are not notified areas.

Though apparently the considerations were not exactly the same, both the decisions run around the question whether licence is required to use the arms other than a firearm or ammunition in a non-notified area.

Objects of the Arms Act, 1959

The Arms Act, 1959 came into being on 1.10.1962 by repealing the Indian Arms Act, 1878. The Arms Rules 1962 also came into effect. The Act mainly focuses on regulating the possession, availability and the use of firearms, ammunition and arms other than firearms and ammunition. As per the 1878 Act almost all the types of weapons were included in the definition of arms. As expressed in the object and reasons of the Act, 1959, the 1878 Act was intended to disarm the entire nation, but it was found that, in certain situations, it is necessary to permit the law abiding citizens to have in possession and use firearms. Hence the Act came into effect. The object and reasons of the present Act intended to exclude knives, spears, bows and arrows etc., from the definition.  

Possession not prohibited of certain arms

The possession and acquisition of firearms and ammunition are regulated by Section 3of the Act. According to which no one can have the possession of such arms without licence. Primarily the possession of arms other than firearms and ammunition require no licence.  But in case of special situation prevailing in any area, if the Central Government is of opinion that arms other than firearms are also be regulated, that Government can issue a notification under Section 4 of the Act. Thereupon acquisition, possession and carrying of arms of such class or description also are offences, unless the person, who acquires or possesses holds licence. Section 25 (1-B) (b) penalizes the possession of arms of such description in the notified area.       

Let’s, now go though the ambit of notification under Section 4 of the Act, first.

“4. Licence for acquisition and possession of arms of specified description in certain cases - If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.”

Rule 4 of the Arms Rules, 2016, explicitly provides that for the possession etc. of arms other than firearms and ammunition no licence is required in a non-notified area, which says as follows:-

“4. Licence for arms other than firearms and applicability of Section 4.─
(1) Unless the Central or the State Government by notification in the Official Gazette so directs, no licence shall be required for the manufacture, sale, possession for sale or test, of arms of Category V in Schedule I except in the areas notified under Section 4.

(2) In any area specified in the notification issued by the Central Government under Section 4 of the Act, licence for acquisition, possession or carrying in that area of arms of such class or description as may be specified in that notification may also be granted or renewed as provided in Schedule II, subject to such conditions as may be specified in these rules, that Schedule and in the licence.”

Notification in the State of Kerala

No notification is issued under Section 4 of the Arms Act 1959 so far in Kerala, whereas the notification issued by the then Madras Government under Section 17 of the Act of 1878 vide Notification No.222 in respect of the then Malabar District is still in effect in areas covered under the then Malabar District. By explaining the provisions of Section 46 of the Act of 1959 and Section 24 of the General Clauses Act, the High Court of Kerala in Jithu v. The State of Kerala(2014 (3) KLT 243) has settled this position.

Useof arms of every kind in any area is offence

What is obvious from Section 4 of the Act is that, if the Central Government makes a notification in terms of that section the acquisition, possession or carrying of arms other than firearms will also be regulated. Notification has nothing to do with the use of such arms. Use of arms is regulated by Section 27 r/w Section 5 of the Act. The language in Section 4 is clearly comprehensible.

Decision in Jinu’s case

Juxtaposing Section 4 with Section 5 of the Act, the Court in Jinu’scase (supra) observed that in order to attract Section 5 of the Act arms other than fire arms it should be “such class or description as may be prescribed” and therefore, held that as long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie. In order to understand the nuances of the problem let’s go through the Section 5 of the Act. Punishment under Section 27 of the Act is provided for the contravention of what is stipulated in Section 5 thereof.

“5. “Licence for manufacture, sale, etc., of arms and ammunition —(1) No person shall—

(a) use, manufacture, sell, transfer, convert, repair, test or prove, or

(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof,

any firearm or any other arms of such class or description as may be prescribedor any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this behalf a licence issued in accordance with the provisions of this Act and the rules made there under:

****

****”                                                                            (emphasis added)

And the relevant part of Section 27 reads as follows:-

“27. Punishment for possessing arms, etc.,—

  (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

****

****”

Sword, an arm of prescribed description

One and only hypothesis deriving out of the above provisions is that the use, among other things,of arms of such class or description as may be prescribed, in any area, is offence. Next is to see whether the ‘sword’ is an arm of such class or description as ‘prescribed’. The word “prescribed” is defined under Section 2(g) of the Act to mean as prescribed by rules made under this Act. A schedule is attached to the Arms Rules, 2016 (previously the Arms Rules, 1962) made under the Act.

This aspect is more specifically expressed under Rule 2 of the 2016 Rules, which is as follows:-

“2. Classification of arms and ammunition.─ For the purposes of the Act and these rules, arms and ammunition shall be of the categories specified in columns (2) and (3) respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly.”

Sword is one among the categories specified therein. Hence it can be seen that sword is a prescribed arm. In the light of the above, it is apparent that prescription of certain class or description of any arm in addition to the inclusion of such arm in the Schedule is not necessary. Sword being an item included in the Schedule its use is an offence under Section 27(1) of the Act, even in a non-notified area.

Jinu’sCase, a wrong proposition

 Since the sword, being a prescribed arm within the meaning of Section 5 of the Act, its use is an offence under section 27(1) of the Act, irrespective of the fact whether the area is notified or not. In Azzi’scase (supra) it has held that brandishing a sword is using it.  Hence, it seems that, the reasoning in Jinu’scase holds no water and the same needs to be corrected.  

Conclusion

As the law is uncertain at times it is the duty of the Judges to expound it. Respecting the function of Judges, Lord Denning, in the preface to his book ‘The Changing Law’, says:-

“The truth is that the law is often uncertain and it is continually being changed, or perhaps I should say developed, by the Judges. In theory the Judges do not make law. They only expound it. But as no one knows what the law is until the Judges expound it, it follows what they make it.”   

The controversies on the application of law of arms have been the concern of law enforcing agencies since long. As the decisions referred to supra reflect incongruous propositions the lower courts and law enforcing agencies would be put to untold uncertainty. To say less, the judgment in Jinu’scase (supra) becomes another decision to be corrected by the appropriate forum of the Court.

The Fiat on National Anthem – Fundamental Rights Enforced or Abridged?

     (By B. Premnath, Advocate, High Court of Kerala, Ernakulam)

“And we must remember that there is no higher Court to correct our errors, and that we wear the mantle of infallibility only because our decisions are final. That we sit at the apex of the judicial administration and our word, by constitutional mandate, is the law of the land can induce an unusual sense of power. It is a feeling we must guard against by constantly reminding ourselves that every decision must be guided by reason and by judicial principles” (Justice R.S.Pathak in ((1984) 3 SCC 161).

Supreme Court, the sentinel of the Constitution of India, in Shyam Narayan Chouksey v. Union  of India(W.P.(Civil) No.855/2016) commanded inter alia to play the National Anthem before the film show in cinema theatres and that the audience should stand up during the rendering. The directions were passed in a Writ Petition under Article 32 of the Constitution of India which can be invoked only to enforce the fundamental rights and nothing else.  The directions invade our fundamental rights guaranteed under the Constitution of India.

Supreme Court issued the following directions:

(a) “There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots is National identity, National integrity and Constitutional patriotism.

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f)  When the National Anthem shall be played in the Cinema Halls, it shall be with the National flag on the screen.

(g) The abridge version of the National Anthem made by one for whatever reason shall not be played or displayed”.

Later, another order was passed with regard to the physically challenged persons to the effect that “if a physically challenged person or physically  handicapped persons goes to the Cinema hall to watch a film, he need not stand up, if he is incapable to stand, but show such conduct which is commensurate with respect for the National Anthem.” Disability was as defined under Sections 2(i) and 2(t) of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.”

Union Government brought out two circulars dated 6.12.2016 and 21.12.2016 prescribing the guidelines for playing the National Anthem in tune with the order of the Supreme Court. The circular on 21.12.2016 said: “The persons with locomotor disabilities and other wheel chair users having affected lower limbs shall position himself/herself to the extent of maximum attentiveness and alertness with or without the help of appropriate aids and appliances. For example a wheel chair bound person with disability shall make the wheel chair static, position himself/herself maintaining the maximum possible alertness physically”. 

The order of the Supreme Court further shows that the petitioner has averred that sometimes National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law, though the said circumstances are not detailed.

Many questions linger as to the legality of the directions of the Supreme Court.  What is the fundamental right of the petitioner to be enforced that the other people should stand up when the national anthem is being played or that the National Anthem should be played before the screening of every film? The petitioner had no legal right to seek for the issue of writ of mandamus. There was therefore no legal remedy for him. As Blackstone opined: “It is a general and indisputable rule that when there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded”.

The orders of the Court and the circulars that followed offend the fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(g) of the Constitution of India. The direction that physically disabled persons and persons confined to wheel chairs should show maximum alertness, would do violence to them. It violates their fundamental right under Article 19(1)(a)
and their right to privacy which has now been declared as a fundamental right by the Supreme Court in Justice K.S.Puttaswamy (Retd.) v. Union of India (2017 (4) KLT 1 (SC)). The circulars issued are not law at all.  In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986 KLT 1037 (SC)). It was held : “The law is now well settled that any law which may be made under clause (2) to (6) of Article 19 to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g) must be ‘a law’ having statutory force and not a mere executive or departmental instruction”.

Bijoe Emmanuel & Ors. v. State of Kerala & Ors.(supra) was a case where three children were expelled from the school for not singing the National Anthem. The children, who were faithful of Jehovah’s witnesses did not sing the  National Anthem as they believed that it is against the tenets of their religious faith.  Supreme Court emphatically held that their expulsion from the school violate their fundamental rights under Article 19(1)(a) and Article 25 of the Constitution of India. 

Article 19(2) exhorts that “Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub- clause in the interest of the Sovereignty and Integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”. Thus the fundamental right of speech and expression guaranteed by Article 19(1) (a) is qualified. That has to go through the teeth of Article 19(2). At any stretch, being seated in reverence of the National Anthem does not offend Article 19(2) at all. 

In Shyam Narayan Chouksey v. Union of India(AIR 2003 M.P. 233), a Writ Petition was filed complaining that the National Anthem was dramatised and commercially exploited in the film “Kabhi Khushi Kabhi Gum”. In a scene in the film, a boy starts to sing the Anthem and the audience do not stand up immediately. The audience in the film are taken by surprise. Some of the audience stand up after three lines, some after four lines and some after five lines. The boy forgets the lines and says “sorry.” His mother later fills up the words. While the Court holds that freedom of speech and expression has gained immense significance and its utility by no stretch of imagination can never be marginalised and its importance be reduced, it is also held that dramatisation and commercial exploitation for the benefit of the producer cannot be permitted. Then the Court issued directions inter aliato delete the scene from the film and injuncts the cinema halls and the theatre owners from showing the film with that scene. Later the Supreme Court permitted exhibition of that film without deleting any scenes.

It may be seen that the production and exhibition of films are part of the fundamental right under Article 19(1)(g) of the Constitution which can be curtailed only by virtue of Article 19(6), by imposing reasonable restrictions. The depiction of a scene in a film is part of freedom of expression of its writer and those who projects it on to the silver screen. The freedom of speech and expression can be curtailed only in the situations covered by Article 19(2). None of such contingencies were present for issuing such directions in that case. And for issuing directions (a) and (b) in the present case, no such situations are referred to.

S.Rangarajan etc. v. P.Jagjivan Ram((1989) 2 SCC 574) was a case where S. Rangarajan, produced a Tamil film “Ore Oru Gramathile” and applied for certificate for exhibition of the film. The ‘U’ Certificate granted was revoked by the Madras High Court. It was appealed. Supreme Court held: “The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man”. It was further held: “We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression”..........

“The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself”.

The directions issued regarding playing the National Anthem in cinema theatres before the start of the film, violates the fundamental right under Article 19(1)(g). Of course the said right is subject to reasonable restrictions. Article 19(6) permits the State from making any law imposing, in the interests of the general public reasonable restrictions on the exercise of the right conferred by Article 19(1)(g). It also permits the State to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.  The orders of the Supreme Court and the circulars of the Union Government cannot be termed as “law” under Article 19(6) and are not reasonable restrictions.

The Cinematograph Act, 1952 and the allied rules are made to provide for the certification of cinematograph films for exhibition and for regulating exhibitions for means of cinematographs and for licensing the conduct of the cinema theatres. The guidelines for certification of films for public exhibition shows that there can be no scenes where the sovereignty and integrity of India is called in question, the security of the State is jeopardised or endangered, public order is endangered and further that the national symbols and emblems are not shown except in accordance with the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 (Act 12 of 1950). Conditions are also stipulated under the rules for granting licence for the building in which films to be exhibited. Then if a person satisfies all the said conditions and conduct a cinema theatre accordingly and if a film is certified to be fit for public exhibition, the order now issued by the Supreme Court and the circulars issued by the Central Government which are not law, impose unreasonable restrictions on his trade which cannot be justified under Article 19(1)(g) of the Constitution of India. Even if an amendment is carried out to the Cinematograph Act, it can only impose regulations which has a reasonable relation to the object sought to be achieved by it. There has to be a nexus with the object to be achieved. It cannot be disproportionate. Any law passed restricting the fundamental rights guaranteed under Artcile 19(1)(g) cannot be one jeopardising the interest of the general public. It cannot violate any other fundamental right also. 

It is not a case where there is a vacuum; there is an enactment covering the subject. The Statement of Objects and Reasons to the Prevention of Insults to National Honour Act,
1971 (Act 69 of 1971) may be referred to: “Cases involving deliberate disrespect to the National Flag, the National Anthem and the Constitution have come to the notice in the recent past. Some of these incidents were discussed in both the Houses and Parliament and members expressed great anxiety about the disrespect shown to the national symbols. Government were urged to prevent the recurrence of such incidents. Disrespect to the National Flag and the Constitution or the National Anthem is not punishable under the existing law. Public acts of insults to these symbols of sovereignty and the integrity of the nation must be prevented. Hence the Bill. The scope of the law is restricted to overt acts of insult to and attack on, the national symbols by burning, trampling, defiling or mutilating in public.It is not intended to prohibit honest and bona fidecriticism of the symbols, and express provisions to this effect have been made in the Bill”.                                                    (emphasis supplied)

The “Prevention of Insults to National Honour Act, 1971” makes it an offence under Section 3 where anyone intentionally prevents the singing of National Anthem or causes any disturbance to any assembly engaged in such singing will be punished with imprisonment up to three years or with fine or with both. As can be seen from the object and reasons, the scope of the Act is restricted. Not standing up while the National Anthem is being sung is not made an offence; it cannot be, in the teeth of Article 19(1)(a) and 19(2).

The Government of India, Ministry of Home Affairs issued orders relating to the National Anthem of India. Just like the Flag Code, it is not a statute; thereby the Fundamental Right under Article 19(1)(a) is not regulated. But the orders have to be followed to the extent it provides for preservation of dignity and respect for the National Anthem. In that way direction (c) in the present order of the Court is correct, but it militates against Article 32. Union of India v. Naveen Jindal & Anr.((2004) 2 SCC 510) was a case where a citizen was flying National Flag at the office premises of his factory. He was not allowed to do so by the government officials on the ground that the same is impermissible under the Flag Code of India. Supreme Court held: “(i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1)(a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation; (ii) The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under Clause 2 of Article 19 of the Constitution of India; (iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention  of Insults to National Honour Act, 1971 regulate the use of the National Flag; (iv) Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose of Clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the National Flag. However, the Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be followed. (v) For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis-a-vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India can be taken recourse to”.

Though the orders relating to National Anthem  gives  a  guideline  as  to  the  occasions  in  which  the  full  version/short version shall be played, that relates to Civil/Military investitures and the State functions where the audience shall stand to attention. The orders relating to the playing of Anthem issued by Union Government state that the short version of the Anthem shall be played when drinking toasts in Messes and the abridged version is detailed therein.  It is stated that the Government can issue special orders listing the occasions which it has to be sung/played but again it should relate to the State functions. Clause V in general states that: “(1) Whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a news-reel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the Anthem.  (2) As in the case of the flying of the National Flag, it has been left to the good sense of the people not to indulge in indiscriminate singing or playing of the Anthem.”                    (emphasis supplied)

The order of the Supreme Court to play the National Anthem in Cinema theatres before the film, with the display of National Fag on the screen, making the audience stand up, impedes the very essence of liberty of the life of we, the people.

Then, can a picture of the National Flag be shown in cinema theatres during the playing of the National anthem? The display of the National Flag is governed by the “Prevention of Insults to National Honour Act”, 1971 where the display of the Flag in certain occasions and in certain manner is made an offence. The Flag Code of India brings together the conventions, practices and instructions for the guidance for the display of the Flag. Clause 2.2 states that a member of public, a private organization or an educational institution may hoist/display the National Flag on all days and occasions, ceremonial or otherwise consistent with the dignity and honour of the National Flag. Clause 2.2(i) states that whenever the National Flag is displayed, it should occupy the position of honour and should be distinctly placed. It is inconceivable that the cinema theatre hall with closed doors is a place and a position of honour for the flag.

The orders now passed cannot be issued banking on the fundamental duties enshrined under Article 51-A of the Constitution of India, as Article 51-A cannot be enforced through the Court in view of Article 37, and is only a guide, an aid to interpretation of constitutional and legal issues. It is by virtue of Article 37, applying the principles in Part IV of the Constitution, that “Prevention of Insults to National Honour Act”, 1971 was enacted by the State. Therefore, when the Parliament sought to restrict its scope to overt acts of insult to and attack on, the national symbols by burning, trampling, defiling or mutilating in public, Court cannot add anything further. Even if there is any lacuna or defect in an Act, it cannot be cured under Article 32 ((2008) 5 SCC 511). Fundamental duties under Chapter IV of the Constitution are only reminders to the citizens who enjoy their fundamental rights.  Fundamental duties cannot have primacy over fundamental rights and vice versa.  Constitutional enactment of fundamental duties must be used by Courts as a tool on State action drifting away from constitutional values ((2002) 1 SCC 428). Nothing is discernible from the Order now passed as to the values which were the collective duty of the citizens of this country that drifted away, that prompted the Supreme Court to pass the present directions. At any rate, it could not have been passed in a petition under Article 32; meant to enforce the fundamental rights only.  Even the wide power of the High Courts under Article 226 is not available to the Supreme Court under Article 32. ((2010) 3 SCC 571).

Can the Supreme Court issue such directions under Article 142(1) of the Constitution? A Constitution Bench in Prem Chand  Garg & Anr. v. Excise Commissioner, U.P.& Ors. (AIR 1963 SC 996)held that “An order which the Court can make under Article 142 in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.  Consequently it would not be possible to hold that Art.142(1) confers upon the Supreme Court powers which can contravene the provisions of Art.32”.

Fundamental rights guaranteed under Part III of the Constitution of India are natural rights.  Natural Laws, jus naturale,are rules based on the primary instincts of man which are inherent in him which the State cannot violate.  It is the rights that shape the man.  Per Rousseau, the right was co related with might, meaning every man had a right to do with everything within his power.  Those rights became restricted with the growth of the society, in the collective interest of the people, paving the way for democracy.  The Magna Carta acknowledged that there were certain rights of the subject which could not be violated even by a Sovereign.  It culminated in the Bill of Rights of 1689 in England which was a testimony to the development of fundamental rights : “It may be declared and enacted, that all and singular the rights and liberty asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this Kingdom.”

On November 26, 1949, we, the people of India, gave unto ourselves the Constitution of India. The fundamental rights guaranteed in our Constitution imbibes the spirits of U.S. Bill of Rights 1791, French Revolution 1789 and the English Revolution 1688 which proclaimed the valuable rights of liberty, equality and freedom of religion. The fundamental rights under Part III of the Constitution of India are inviolable and inalienable rights which cannot be abrogated by the Parliament (Kesavanandabharathi,((1973) 4 SCC 225).

Constitution of India has in fact put a fetter on such natural rights by imposing reasonable restrictions. It is the people who have created the Government and the government is intended to serve the people and not dominate them. In Marbury v. Madison(5 U.S.137(1803) Chief Justice Marshall opined: “That the people have an original right to establish for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American Fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which their proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organises the Government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.”

In Texas v. Johnson (491 US 397(1989) the Supreme Court of the United States of America held that burning the U.S. Flag is an act of expression that is intended to convey a message.  The court went on to hold : “If there is a bedrock principle underlying the first amendment, it is that the government may not prohibit the expression of an idea simply because the society finds the idea itself offensive or disagreeable.”  When Article 19(2) of the Constitution of India restricts the State from enacting laws beyond its limit, it is imperative that the power of the State is restricted from enacting laws which foray into the fundamental rights guaranteed under Article 19(1)(a) of the Constitution. 

The constitutional philosophy underlining Part III of the Constitution of India is underlined in Ujjambai v. State of U.P. and in Minerva Mills Ltd. v. Union of India. In Ujjambai v. State of U.P. (1963 1 SCR 778). Per Hidayathullah J., “The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share in the Government of the country and other spheres. The people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also some times of non-citizens, and made them inviolable except under certain conditions. The rights thus kept back are placed in Part III of the Constitution, which is headed ‘Fundamental Rights’, and the conditions under which these rights can be abridged are also indicated in that Part”.

In Minerva Mills Ltd v. Union of India(1980 KLT 573 (SC) = (1980) 3 SCC 625), Chandrachud C.J., opined: “The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carries with it the obligation to secure to our people justice – social, economic and political. We therefore, put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part III in our Constitution conferring those rights on the people...”

The minority view of Justice Khanna in ADM, Jabalpur ((1976) 2 SCC 521) was accepted in Justice K.S.Puttaswamy’s(Retd.)case supra: “Justice Khanna was clearly right in holding  that the recognition to right and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern State when it deals with the liberty of the Individual”.

Per Justice Chelameswar in Justice K.S.Puttaswamy’s(Retd.)case supra, “I am of the opinion that a better view of the whole scheme of the chapter on fundamental rights is to look at each one of the guaranteed fundamental rights not as a series of isolated points, but as a rational continuum of the legal concept of liberty i.e., freedom from all substantial arbitrary encroachments and purposeless restraints sought to be made by the State.  Deprivation of liberty could lead to curtailment of one or more of freedoms which a human being possesses, but for interference by the State”.

Supreme Court held that the time has come the citizens of India are duty bound to respect the National Anthem. There is no clue from the Order as to what prompted the Court to thrust its importance now. One would feel that the Nation is moving through a phase where things are falling apart, and such respect is to be forced on the people. Is there a clear and present danger? The patriotic spirit is inherent in us. I am a Patriot. That does not mean that I should wear a badge of patriotism as part of my attire. In the words of Adlai E.Stevenson, Governor of Ilinois, in his speech to the American Legion Convention, New York City, 27.8.1952:

 “I venture to suggest that what we mean is a sense of national responsibility which will enable America to remain master of her power — to walk with it in serenity and wisdom, with self-respect and the respect of all mankind; a patriotism that puts country ahead of self; a patriotism which is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime.”

History has it that the Father of our Nation remained seated when ‘Vandemateram’ was sung post independence in a prayer meeting in Calcutta, on the firm belief that standing in honour to the National Song is part of Western culture and not inherent in our culture.

 Virginia State Board of Education v. Barnotte(1942-1987 Law Ed.1628) was a case decided by the Supreme Court of the United States of America in which Jehovah’s witnesses claimed that they could not be compelled to salute the flag of the United States while reciting the pledge of allegiance. Justice Jackson opined: “It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if theysimulate assent by words without belief and by a gesture barren of meaning (emphasis supplied). It is now a common place that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”       (emphasis supplied)

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The Admiralty Act, 2017-- An Overview

(By V.B. Hari Narayan, Advocate, High Court of Kerala, Ernakulam)

Finally the much awaited Act on maritime jurisdiction has seen the day of light when it obtained the Presidential accent on 9^th August, 2017. The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act 2017 was passed by the Parliament paving way for welcoming changes in the Indian maritime regime. The new Act has replaced the Colonial legislations which was followed hitherto by Courts in exercising admiralty jurisdiction. The Act has repealed the archaic laws of the British period including The Admiralty Court Act, 1861; The Colonial Courts of Admiralty Act, 1890; The Colonial Courts of Admiralty (India) Act, 1891 and provisions of Letters Patent, 1865 in so far as it relates to admiralty jurisdiction of three Chartered High Courts and also seeks to consolidate the existing laws on civil matters of admiralty jurisdiction of Courts, admiralty proceedings on maritime claims and arrest of vessels.

Under the Colonial Courts of Admiralty Act, only the Chartered High Courts were vested with admiralty jurisdiction. It is by virtue of the decision rendered by the Hon’ble Supreme Court in M.V.Elizabethcase (AIR 1992 SC 1018) that the other Coastal High Courts in the Country could exercise admiralty jurisdiction for arrest of ships based on maritime claims. Under the new Act,  8 High Courts namely, Calcutta; Bombay; Madras; Karnataka; Gujarat; Orissa; Kerala; Hyderabad for the State of Telangana and the State of Andhra Pradesh could now invoke admiralty jurisdiction.

Section 3 of the Act specifies that the jurisdiction in respect of all maritime claims shall vest in the respective High Courts and be exercisable upto the territorial waters of their respective jurisdictions. However, the right to extend the admiralty jurisdiction up to Exclusive Economic Zone (EEZ) or any other maritime zone is reserved by the Union Government. The Act has catagorised the claims which come within the ambit of maritime claims, which alone will be subject to exercise of admiralty jurisdiction.

Further, the power of exercise of ship arrest is confined to the territorial limits of the respective High Courts thus preventing the arrest of vessels which are outside the territorial limits. The Act has provided safeguard against wrongful arrest in Section 11 by bringing in a provision for counter security from the claimant if the arrest is found to be wrongful or unjustified or excessive security having been demanded.

The Act has given a wider definition of a vessel under sub-section (i) of Section 2 to include ‘off-shore industry mobile unit’ which could include Oil rigs. It is also made applicable to all vessels irrespective of their flag, registration etc., except naval vessels or those owned and operated by Central or State Government for any non commercial purpose. Thus any vessel whether foreign or Indian to the exclusion of state owned ones could be arrested.

As far as in personamproceedings are concerned, it is interesting to note that proceedings may be instituted only if the cause of action arise either wholly or in part in India, or the defendant ‘actually and voluntarily resides or carries on business or personally works for gain in India’. Further the Act specifically restricts in personamproceedings if the same issues between the same parties are pending before any Court outside India. The Act also provides for the order of priority of maritime claims.

The conferring of admiralty jurisdiction to the 8 High Courts is a welcome change, in as much as the claimants could move the respective High Court where the cause of action has arisen or based on the domicile of party.  The Act seeks to build an admiralty law in line with the modern trends in the maritime sector and in uniformity with prevalent international practices. The jurisdiction of High Courts are thus increased providing for speedy disposal of admiralty related proceedings. Hope the objectives will be achieved.

Doubts on Doubts

(By Girish Panju M.S., Deputy Director of Prosecution, Kottayam)

“The Judge, even when he is free, is still is not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw inspiration from consecrated principles. He is not to yield to spasmodic sentiment to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life”(Benjamin Cardozo).

Criminal trial is meant for doing justice to the accused, victim and the society at large so that law and order is maintained (Ambika v. State Delhi Admn.(2000 SCC (Crl.) 522). The paramount consideration of a criminal trial is to render justice and to convict the guilty and protect the innocent. For that the hands of the court cannot be tied up with the fetters of technical procedures so as to prevent them from arriving at the truth. Criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It is too panic to say that now a days unmerited acquittals become general, and they tend to lead a cynical disregard of the law. Miscarriage of the justice arises from the acquittal of the guilty not less than from the conviction of an innocent. See Gangadhar Behra v. State of Orissa(2003 Cri.L.J. 41 (SC)) and State of U.P. v. Anil Singh(AIR 1988 SC 1998). It is not judicial heroism to blindly follow the repeated saying that let a hundred guilty men may be acquitted, but let not one innocent be punished. As rightly observed by our Apex Court in Jayal Sahu v. State of Orissa(1994 Cri.L.J. 2254). “An exaggerated devotion to benefit of doubt is a disservice to the society”. Acquittals on the grounds of irrelevant contradictions, irrelevant omissions and due to high technicalities are not a welcome trend.

Each trial has to be conducted within the four corners confined by the Evidence Act. “Court must endeavour to find the truth. There would be failure of justice not only by an unjust conviction but also by the acquittal of the guilty for unjustified failure to produce reliable evidence. Of course the rights of the accused have to be kept in mind and safeguarded,but they should not be over emphasized to the extent of forgetting that the victim also have rights.”See State of Maharashtra v. Dr.Praful B.Desai(2003 (2) KLT SN 35 (C.No.45) SC =2003 Cri. L.J. 2033 (SC).

Section 5 of the Indian Evidence Act stipulates that evidence may be given of fact in issue and relevant fact. Hence we can safely arrive at the conclusion that courts are concerned only with two types of facts and they are (1) fact in issue and (2) relevant fact. In a criminal prosecution the golden principle of jurisprudence is the immunity available to the accused i.e., the presumption of innocence and except in rare occasions the burden of proof is always on the part of the prosecution. As far as a criminal litigation is concerned the fact in issue means “Those facts that are necessary to be proved or disproved to establish the charge against an accused or to establish a defense. A fact is relevant to a fact in issue when the former fact is connected with the later fact in a particular manner or in anyone of the ways referred to in the provisions in Sec.5 to 55 of the Indian Evidence Act.

Fact in issue is the principal matter in dispute and relevant facts are facts which directly or by inference proves, disproves the fact in issue. The principal fact to be proved is known as “Factum probandum”and the evidentiary facts which follows the principal fact is known as “Factum probans”. Section 3 of the Indian Evidence says about the yardstick to be applied for the evaluation of evidence. It stipulates that the supposition of a prudent man is the standard to evaluate whether the material before the court can reasonably be acted to conclude whether a fact exists or not. It is pertinent to note that the legislature in its wisdom includes the words ordinary prudent man and not a juristic or intellectual man.

There are three features of evidences. They are

1.        Relevancy

2.        Admissibility

3.        Probative value

If a fact is relevant and admissible it is counted in evidence. But if a fact is admissible in evidence, but not relevant it cannot be admitted in evidence. After the admission in evidence the court will consider the probative value of evidence. Thus it can be seen that the court has to consider the admissibility first and then its relevancy and finally the probative value. The communication made by a spouse during marriage or professional communication between the counsel and his clients may be relevant in some cases. But it is not admissible and hence cannot admit in evidence. The questions put by the defense to the prosecution witnesses in cross examination only for the purpose of testing the veracity or to impeach the credibility is of nor relevance in most cases. But sorry to say that it is admissible in evidences unless and until it became indecent, scandalous or intended to annoy or insult the witnesses. Evidence is the medium of proof. It is the instrument by means of which fact in issue or relevant facts are brought before court. As already stated all admissible fact are not relevant. S.3 further states that a fact can be proved, disproved and not proved. In most of the acquitted cases the prosecution neither proves nor the defense disproves the fact in issue to the satisfaction of the court. Therefore the case will come under not proved beyond reasonable doubt and the benefit of doubt will be given to the accused. In this juncture it is significant to note what is benefit of doubt.

In the State of Haryana v. Bhagirathreported in (1999 (2) KLT SN 69 (C.No.74) SC) our Apex Court held the view that it is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end. Unfortunately a misconception is being prevailed in the legal fraternity with respect to evaluation of the evidence and benefit of doubt. In Bhogam Bhai v. State of Gujaratour Hon’ble Supreme Court has got benevolent opportunity to discuss about the guidelines for evaluating the evidence. Apex Court cautioned the trial courts that over much importance cannot be attached to minor discrepancies and it cannot be benefited as reasonable doubts because

            1.         Witnesses cannot be expected to have photographic memory. Witness is not as videotape is played.

            2.         During the crime the witnesses will be overtaken by events. He would not have anticipated the occurrence which so often has an element of surprise.

            3.         Power of observation differs from person to person. What one may notice, the other may not.

            4.         People cannot accurately recall conversations and reproduce the same words used by them or heard by them.

            5.         In regard to the exact time or the time of duration of an occurrence they may make statement by guess. The sense differs from person to person.

            6.         They may not be able to recall the sequence of events. Witness is liable to get confused or mixed up when interrogated later.

         7.         A witness though wholly truthful is liable to be overawed by the unfamiliar court room and the piercing cross examination made by the counsel. Usually they became perplexed and get confused.

This does not mean that the role of test of cross examination for determining the veracity is to be minimized. As rightly observed by our Hon’ble Supreme Court in State of Himachal Pradesh v. Lakhraj((2000) 1 SCC 247) that the material discrepancies are those which are not normal and expected from a normal person. When a witness is subjected to a lengthy and attacking cross examination there is always a possibility of witness committing mistakes which can be termed as omissions, improvements and contradictions. Therefore these infirmities will have to be appreciated in the background of ground realities, which make the witness confused because of the filibustering tactics of the defence counsel. See Jai Shee Yadav v. State of U.P.(2005 (1) KLT SN 5 (C.No.7) SC). Always it is to be borne in mind that practically cross examination is a battle between a well equipped legal practitioner and an ignorant litigant who suffered a lot during the occurrence and continuing the trauma during the investigation and even in the trial. Hence the cardinal question is whether the inconsistencies will touch the fabric of the prosecution case? If it is so definitely it is fatal to the prosecution.

The wrong conceptions among the legal community that 161 statements are the pillars of the prosecution cases is the most panic thing. It is funny to say that they consider it as a holly cow or as sacred Bible. Giving undue importance to the 161 statement prepared by a police officer at his whims and fancies at the cost of the poor and ignorant victims is the most pathetic thing. 161 statements are purely the answers given to the question put by the investigating officers at the time of investigation. They are the answers which is relevant in the eye of a police officer. But on examination of the witness before the court either by a prosecutor or by the defence lawyer the witness will be compelled to answer more aspects on the question put to them. Unfortunately most of our friends think it as a serious aspect which diminishes the scope of the prosecution case. (See AIR 2000 SC 1833).

The legendary Indian Jurist of all time Justice V.R.Krishna Iyer while pronouncing judgement in Inder Singh & Anr. v. Delhi Administrationreported in (AIR 1978 SC 1091) held as follows.

“Credibility of testimony depends considerably on a judicial evaluation of the totality and not an isolated scrutiny. If a case is proved too perfectly, it would be urged that it is artificial. If a case has some flaws it is inevitable because human beings are prone to err. Proof beyond reasonable doubt is a guideline and not a fetish. A guilty man cannot get away with it because truth suffers from some infirmity when projected through a human process. Judicial quest for perfect truth often accounts for police presentation of foolproof convocation. We must be realistic.”

As laid down in Dharmarajan v. State of Keralareported in 2014 (2) KLT SN 62 (C.No.81) = 2014 Cri.L.J. 3162), “Creating doubts for the purpose of doubt is not a reasonable doubt. In this regard it is worth mentioning the dictum laid down by the Hon’ble Apex Court in Yogish Singh v. Mahabeer Singh & Ors.(AIR 2016 SC 5160) that it is the cardinal principle of criminal jurisprudence that guilt of the accused must be proved beyond all reasonable doubts and it is worth to reproduce the observation made by Justice Venkatachaliah in State of U.P. v. Krishna Gopal & Anr.(1988 (2) KLT SN 46 (C.No.62) SC = (1988) 4 SCC 302) that “Doubts would be called reasonable if they are free from zest for abstract speculation. Law cannot afford any favouritism other than truth. To constitute reasonable doubt it must be free from over emotional response. Doubts must be actual and substantial doubts as to the guilt of accused arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon the reason and commonsense. It must grow out of the evidence in the case.” Justice further observed that “The concept of probability and its degree cannot be obviously be expressed in terms of units to be mathematically enumerated as to how many of such unit constitute proof beyond reasonable doubts. There is an unmistakable subjective element in the evaluation of degree of probability and question of proof. The protection given by the criminal process to the accused is not to be eroded, at the same time uninformed legitimization of trivialities would make a mockery of administration of criminal justice”. The above said words of the Supreme Court apparently show its genuine anxiety about the misconceptions in the field of appreciation of evidence.