Protection To a Divorced Muslim Woman

(By Sheena Shukkur, Advocate, Hosdurg)

S.125 of Criminal Procedure Code, 1973, entitles the Muslim lady to claim maintenance against the husband, on the ground of the husband's neglect or refusal to maintain her. The Muslim husband often defeats this claim of maintenance by a Muslim wife by pronouncing the Talak on her.

The rights of a thus divorced Muslim woman is provided under S. 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 - ('The Act' herein after)

S.3(1) of the Act reads as

(1) Notwithstanding anything contained in any other law for the time being in force a divorced woman shall be entitled to,-

a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.

b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;

c) an amount equal to the sum of Mahar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and

d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

If the divorced Muslim woman is not in a position to maintain herself and if she has not been able to obtain the fair and reasonable and other provisions as provided under S.3 of the Act, from her former husband, she has a claim over her own relatives and if not over the Wakf Board for her maintenance as provided under S.4 of the Act.

An initial peep into the intention of this protection clause of the Act, necessitates a quick look over the history of the birth of this Act.

In Mohammed Ahamed Khan v. Shah Bano Begum (AIR 1985 SC 945) the decision of the Supreme Court favoured the Muslim divorced woman, by enhancing her rights to a large extent under S.125 Cr.P.C. The Hon'ble Supreme Court reiterated the obligations of the husband, towards his divorced wife in this case, which in turn agitated the Muslim Personal Law Board. The concept was that, a divorced Muslim woman and her former husband are two distinct individuals and that there arise no obligation of maintenance towards a divorced woman. And thus the decision of Shah Bano caused agitation by the Muslim Personal Law Board. This paved way for the birth of a new legislation, or the Act, by a healthy compromise among the feelings of personal law and general law.

Under S.3 and the other procedures, the husband who has divorced the Muslim wife is liable both in the person and property to meet the order passed by a Magistrate. S. 3(4) further says that, if the husband fails to comply an order under the same, a warrant may be issued and incompliance again means, Magistrate may sentence such person for imprisonment for a term of up to one year. So a person against whom such a sentence is ordered by the Magistrate, under the Act, and if he inclines to undergo the punishment of imprisonment, the duty of the judiciary may be completed, but what about the intention and object of the legislation; or in other words how is the divorced Muslim woman protected and maintained?

Of course S.4(1) entitles a divorced Muslim woman who is not remarried, to obtain an order against her own relatives for maintenance, and if the relatives has no means to maintain her, for a direction under S.4(2) against the State Wakf Board for maintenance.

The intention of the legislation is thus crystal clear from the Act that a divorced Muslim woman should not be left unprotected.

But the question is, how far a divorced lady is protected by and under S.4 practically. If the object and aim of the Act is to protect the lady financially also, for her maintenance, why is not there any liability imposed upon the relatives of the divorced husband. Because the liability on a dissolution of marriage under S.3 of the Act initiates form the very existence of that marriage earlier, isn't there a liability on the part of the husbands relatives to provide her with the essentials under S.3, since they are also to inherit the property of husband? There are many instances were, immediately on becoming a respondent under proceedings of S.125 Cr.P.C, the husband transfer the ownership of his property to his father or other relatives, and pronounce talak, to escape from and defeat the cause and purpose of the Act.

So if the intention of the law is to protect the divorced Muslim woman in the sense and purity enhanced by Koran and the Principles of Sunnah, the essential sources of Muslim law, the Order of Payment Clauses under S.4 of the Act may also include, a provision so as to make a direction by the Magistrate against at least the koranic heirs of the former husband to recover and meet the essentials of S.3 of the Act, by the divorced woman within the period of iddat.

The Kerala Loading and Unloading (Regulation of Wages and Restriction of Unlawful Practices) Act, 2002 Whether A Perfunctory Piece of Legislation?

(By S.H. Panchapakesan, Judicial First Class Magistrate, Ernakulam)

The principle embodied in the legal maxim - "Nemo debet locupletrari aliena jactura " (No one ought to be enriched by another's disaster) is always considered to be worthy and significant in a civilized society. But, unfortunately, the men of the present age do not have any consideration towards their fellow beings based on such principles. One of such classic examples could be found in the field of loading - unloading and transportation of goods, both for domestic and non-domestic purposes. All of us are aware of the 'unlawful practices' prevailing in the said field. In most of the cases, the practices, which are termed as "unlawful", come from the part of the workers.

Now, some solution to the problem has come, as the State Legislature has brought out a special Law for regulating the wages and restricting the unlawful practices in connection with loading-unloading and transportation of goods within the State. The Act titled - The Kerala Loading and Unloading (Regulation of Wages and Restriction of Unlawful Practices) Act, 2002 (Act 10 of 2002) (for short 'the Act') has been published in the Kerala *Gazette Extraordinary No.1277 dated 2nd September, 2002. The Act will come into force on such date ** as the Government may by notification in the official gazette appoint. As the short title itself indicates, the Act aims at regulating wages and also to restrict the unlawful practices prevailing in the field of loading and unloading activities. The provisions of the Act are applicable to any loading and unloading work or activity or process which is connected with or ancillary to domestic purpose, as well as non-domestic purpose. In addition to the regulation of wages to be given to workers, the Act through the penal provisions contained therein, (in Chapter V of the Act) also aims at protecting the employers from the unlawful practices, which the loading - unloading workers may adopt in that connection. In short, with the introduction of the penal provisions therein, the Act aims at making drastic changes in the above said field.

But, when we go through Chapter V of the Act (which deals with penalties and procedure), it appears that the provisions therein (i.e., Ss.12 to 16) may not always come to aid the needy, in view of the legal bar contained in sub-s. (2) of S.18 thereof.

An analysis of S.18 of the Act would reveal this aspect. S. 18 of the Act reads as follows:

"18. Certain offences to be cognizable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 the offences punishable under Ss. 12,13 and 14 of this Act shall be deemed to be a cognizable offence within the meaning of that Code.

2002, vide Notification G.O. (Ms.) No. 74/2002/LBR. dated 1st November 2002, published as S.R.O. No. 898/2002 in the Kerala Gazette Extra ordinary No.1582 dated 1.11.2002.

(2) No court shall take cognizance of the offences referred to in sub-s,(1) except upon a Police report as provided in the Code of Criminal Procedure, 1973."

On an examination of the above section, it appears that there may be seldom chance that the protection given to the employers (in the event of commission of any unlawful activity) as provided under Ss.12 to 16 of the Act may come to the help of the victims of such practices in time. Because as disclosed by sub-s.(2) of S.18 of the Act, a Court can take cognizance of an offence punishable under the Act, only if the Police files a report on such facts. But, when we consider the intricate nature of the issues involved in the loading-unloading activities, it appears that such a restriction itself may defeat the very purpose of the enactment, especially when the Act has excluded the other two popular methods of taking cognizance provided under S.190 of the Code of Criminal Procedure, 1973 (for short "the Code"). As per sub-s.(1) of S.190 of the Code, cognizance may be taken in the following three ways, videlicet,

a) upon receiving a complaint of facts which constitute such offence;

b) upon a police report of such facts;

c) upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed.

But in the case of the Act now under discussion, sub-s.(2) of S.18 of the Act specifically bars the taking of cognizance of offences under the Act as per the two procedures specified in Cls.(a) and (c) of sub-s. (1) of S.190 of the Code.

As only one form of taking cognizance (i.e., only on Police report) is specified in sub-s.(2) of S.18 of the Act, naturally the maxim - "Expressio unius est exclusio alterius (The mention of one is the exclusion of another) would apply and in the result, the other two popular methods of taking cognizance, provided under Cl. (a) and (c) of sub-s. (1) of S.190 of the Code cannot be done.

Here the cardinal aspect to be noted is that as per CI. (c) of sub-s. (1) of S.190 of the Code, upon his own knowledge that any offence has been committed, a Magistrate is competent to take cognizance in respect of that offence. But, as per sub-s. (2) of S.18 of the Act, even a Magistrate (who by virtue of his office is considered to be a Court) having his own knowledge of the commission of any offence under the Act is legally precluded from taking cognizance of the same. At least such an infirmity cast upon a Magistrate under the said provision in the Act could have been avoided to ensure justice to the victimized employers.

This being the position, in the event of the commission of any offence punishable under the Act, the only one avenue open to an aggrieved person is to approach the Police for remedy. In such circumstances, as we all know, the Police who are certainly under the clutches of political executive may not be able to render justice to the deserving victims, owing to their control by the political higher-ups. If due to political pressure, the Police are reluctant to file a report on the commission of any offence punishable under the Act, which they are authorised to file as provided under sub-s.(2) of S.18 of the Act, (even after resorting to all the administrative remedies) no doubt, the poor victimized employers will be put to flagrant violation of justice. Occurrence of such bitter instances cannot be ruled out, as the Police force is yet to be made impartial. In short, the poor victims who may be put to the atrocities of the nature mentioned in the Act, may have to pray for the mercy of the Police. It might be after foreseeing such remote chances, the framers of the Code of Criminal Procedure, 1973 in their wisdom has included the three methods mentioned in sub-s. (1) of S.190 of the Code, by which a Magistrate can take cognizance of an offence.

Moreover, the unfettered power conferred on the Police under sub-s.(2) of S.18 of the Act may result in some unhealthy practices in the field. This could be explained with the help of the following illustration:

'A' an employer, usually engages 'CRANE', who are workers of his own choice to perform loading-unloading operations for him. One day while 'A' was out of station (or in the absence of 'A'), 'IRON BOYS', another group of workers, who have access to the Political executive, make a false complaint to the Police to the effect that the 'CRANE' have committed one of the offences punishable under Ss.12, 13 or 14 of the Act. 'IRON BOYS' having access to the Political execulive, succeeds and the Police registers a case (even without hearing 'A') against 'CRANE'. As the offences are cognizable, the Police arrest the 'CRANE' who were actually employed by 'A'.

From the above illustration, it could be seen that even though an employer is at liberty to engage persons of his own choice for the loading-unloading operations, (as provided under S.4 of the Act) as the right to prefer complaint has not been limited to the employer or a person duly authorised by him, the workers or such other persons having access to the political executive may with the help of the Police, utilise that opportunity to wreak vengeance on the employer or the workers engaged by that employer. So, the right to prefer complaint ought to have been limited to the employer or a person duly authorised by him. (The restriction/ limitation as to the persons who may file a complaint for the offence punishable under S.498A of the Indian Penal Code, 1860 may be an example).

As stated earlier, the Act under discussion has been enacted with a view to safeguarding the interest of employers in the matter of loading-unloading and transportation of goods. It has been introduced with a view to (as per the Statement of Objects and Reasons) curbing the undesirable practices which have arisen in the loading and unloading sector. The basic objective of the legislation is to lay down the type of activities, the eligibility of the worker, the rights of the employers, wages, penalties and procedure for initiating criminal prosecution. It prohibits extortionary, intimidatory and other unlawful practices connected with loading-unloading and transportation of goods and articles both in the domestic and non-domestic sectors. As such, it may be stated that the Act has been brought out with a view to building up a sound environment which would help the industry to flourish and also to create a peaceful atmosphere in the loading-unloading and transportation of goods in the domestic field.

But the earlier said restriction contained in sub-s.(2) of S.18 of the Act, which bars the taking of cognizance of any offence under the Act, otherwise than on Police Report and which confers unfettered power on the Police seems to be curtailing the social significance of the said special enactment.

In short, such a restriction would amount to curtailing of the citizens' valuable right to have access to justice. All such legal infirmities could be avoided by way of incorporating the other two methods also (i.e., Cls. (a) and (c) of sub-s. (1) of S.190 of the Cr.P.C.) by which a Magistrate can take cognizance of an offence.

Hope that attention of the concerned would reflect upon these cardinal aspects and a solution will ensue soon.

___________________________________________________________________

*See 2002 (3) KLT Kerala Statutes 22-30.

* *The Act came into force in the whole of the State of Kerala w.e.f.5th November,

Licence To a Steering Wheel - A Licence To Kill?

(By V.P. Ramesan, Advocate, Ernakulam)

A man in the driving sent is now a days fully enlightened of the fact that there are ample loop-holes in the law for his escape if he causes the death of a person or persons by reason of his rash and negligent driving. So also a person who drives a vehicle with a motive to do away with a person is accessible to the coverage of S.304A of the Indian Penal Code and can shirk the risk of being prosecuted under S.302 of the Indian Penal Code. The death that occur when a vehicle meet:, with an accident is a death by accident and it cannot be termed as a death by culpable homicide or murder as per the existing law. It .has become quite usual now a days that the rash negligent driving is taking away human lives in bulk but the penal provision contained in S.304 A is not sufficient to have a deterrent effect on the accused. The driver of the stage carrier is so callous, careless, negligent and rash ignoring the human life's value and his plying in a flying manner so as to pacify his employer's greed for better collection for the day for which he will be fetching few perks more apart from his duly fixed wages. The owner of the stage carrier is so particular to see his collection increasing day by day even to the extent of violating traffic rules and the driver not acting to his whims and fancies will be dismissed immediately for his poor performance. The more the driver got involved in accidents is the best test for his dynamism and fitness for his appointment to the steering seat as for the owner.

The real villain behind a massive accident death due to a stage carrier is the driver abetted by his employer. The irony here is that both are not properly dealt with under law nor do there exist any effective law to deal with them properly. The driver who is accused of an offence punishable under S.304A can press into service the fact of mechanical disorder for the occurrence of the incident leading to massacre of innocent passengers and for want of evidence, the courts have no other go but to acquit him. If this be the fate with regard to the action against the accused on the criminal side, the abettor-owner is so safe at his home. The relevant provisions to the Motor Vehicles do not provide any delenent punishment. As regards the compensation proceedings before the Claims Tribunal, the Insurance Company is burdened alone even though there is provision for vicarious liability. There also, the abettor owner and the accused driver have a very easy vent. On a perusal of the yearly statistic of the road accidents, it can be seen that a passenger vehicle are involved on a larger scale, the reason for which is nothing but the greed of the owner that compels the driver to take the vehicle in a rash and negligent manner. The prevailing provisions of law in the Indian Penal Code and Motor Vehicles Act and the law governing compensation proceedings have an exonerating effect as for the killer driver and his abettor owner.

S.304A of the Indian Penal Code reads:- "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or both."

The offence described here falls under the category of "man slaughter" in English law which is principally distinguishable from murder though the act which occasions the death is unlawful or likely to be attended with bodily harm. This section was added to the Indian Penal Code by the Amending Act of 1870 (XXVII of 1870). The offences under S.304A of the Indian Penal Code is far distinct from relevant sections of the Motor Vehicles Act. The requirements under the section to book a person is that the death of any person must have been caused by the accused doing any rash or negligent act for which there must be proof to the effect that the rash and negligent act of the accused was the cause of the death and hence there must be direct nexus between the death and the act of the accused. If this be the requirement the principle embodying the section is that the offence is viewed with greater leniency even though the rash and negligent act of the accused causes death of a person. Thus where bodily injury is intentionally inflicted and the victim dies, the offence would be one of simple or grievous hurt if the intention or knowledge which is an ingredient of culpable homicide is wanting (AIR 1963 HP 18).

Considering the case laws on this section and the judicial interpretation of the section it appears that the accused cannot be punished for murder, culpable homicide and homicide by negligence. The reckless driving or driving in a manner dangerous to public life is rashness. The condition of the road and the amount of the traffic at the time, or which might reasonably be expected to be on the road are factors to be taken into consideration in assessing the rashness or negligence of the driver (1968 KLT 202). An offence under S. 304A of IPC can be committed either by doing a rash act or negligent act. The degree of the rashness and negligence on the part of the accused required to be proved in criminal cases should be in such a way so as to infer about the commission of the offence may be safely made against him. Any carelessness causing civil liability will not be enough for the purpose of establishing the offence under S.304A if the ingredients, principle and the interpretation seems like this, the prime accused in a motor accident is safe in all respects, even though he is committing man-slaughter.

Now what can be elucidated from the position of law on the point and the experience hitherto shows that the penal provision is inadequate and insufficient to deal with a situation where the driver is less concerned to the punishment he may be inflicted upon the event of his being found guilty and convicted. If a more severe penal provision is provided, the man in the driving seat will be more cautious and he will never steer the steering round in his hand so negligently and callously and will fear the consequence of a rash driving. So also, the abettor owner is implicated by enlarging the definition of the offence including the owner also, he may never ask his employee driver to ply the vehicle at the risk of the innocent passengers' lives.

When Mr. Devagowda was the Prime Minister, there was a move to amend the penal provisions of all laws applicable to a road accident where the occurrence of which is due to rash and negligent act causing man-slaughter. The proposal was to impose capital punishment on the accused in case the man-slaughter is caused by reason of his rash and negligent driving. Here also the accused driver can shrink liability by putting everything on mechanical trouble. An expert driver accused can put the total mechanism in trouble after the deed is done for the prevention of which adequate remedial measures have to be suggested by appointing a Law Commission to go into the matter with the assistance of technical experts in the field. This is highly essential since a country like ours, things can easily be manipulated in favour of and to the advantage of the accused. The fate of the proposal during the regime of Mr. Devagowda is not known yet. Perhaps it may be in the cold storage due to stiff resistance from the Members of the Parliament as they themselves will be put to trouble in case of the same coming into being as a law. Anyway that attempt was in the right direction having a bearing on the man-slaughter on the road by rash and negligent driving. No Government committed to ensure protection to life of a citizen cannot retreat from a venture of the kind that Devagowda Government did. It is high time for the Government in office to get the matter out of the cold storage and table a bill before the house ensuring necessary precautions and effective provisions to curb this menace that the modern society is confronted with. No one can catch a bus without the fear of being captured with an accident mainly due to the rash and negligent driving. The killer driver is so audacious to ply the vehicle so callously because of the dire fact he is loosing nothing in the event of an accident. If the Government is prepared to reshuffle and revamp the penal provision of the concerned laws and the law of Insurance by apportioning the liability among the owner, the driver and the Insurance company equally, the abettor-owner and the killer-driver will be constrained to think of the present modus operandi. It will have a positive effect not on the reduction of the accident but it will relieve the claim burden on the Insurance companies. A comprehensive reshuffling of the Insurance law on this aspect is highly warranted to burden the owner and the driver in a proceedings for compensation along with the Insurance Company.

What about the fate of the victims of the kith and kin if the victim traveling in a vehicle is without Insurance coverage? The victim in case of survival or the legal representatives in case of victim succumbing to injuries have no other go in the event of passing an award but to proceed against the assets of the respondents under Revenue Recovery Act and if the respondents are insolvent, the award becomes inexecutable rendering no relief to the affected. The Motor Vehicles Act/Rules envisages revenue recovery proceedings only and the provision of execution contained in the Code of Civil Procedure is not available to the holder of the award. This lacuna in execution proceedings may be cured by making necessary amendments in the relevant laws enabling the holder of an award to make use of the provisions of execution contained in the Code of Civil Procedure. What is contained in the Motor Vehicles Act/Rules for not insuring a vehicle is nothing but to register a petty case against the concerned and he will be punished only with a petty fine. To get over the above mentioned hurdles, Motor Vehicles Rules may be amended suitably so as to deal with the owner of uninsured vehicle on heavy terms. So also, the driver being the prime accused may be held liable to pay at least 25% of the award and in case of default rigorous imprisonment for ten years at least may be provided. The owner also may be burdened with like terms and the Insurance Company need only be burdened with 50% of the award. In the proceeding under S. 304A of IPC, experiences hitherto show that the accused get an honourable acquittal for want of evidence.

To constitute an offence under S.304A of IPC, the death of a person must have been caused by the accused doing an act in a rash and negligent manner. In "Empress of India v. Idu Beg" (1LR 3 All. 776) it has been observed as follows:-

"Criminal rashness is hazarding a dangerous or wonton act with the knowledge that it is so and that it may cause injury but without the intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences". Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duly of the accused person to have adopted.

The cardinal principle that may encourage an amendment to the penal provisions to S.304 of IPC, the relevant provisions of the insurance law and that of Motor Vehicles Act/Rules is the intention to prevent "mens rea " of human nature that may design and execute a gruesome murder by a road accident. Since the morale of the present day world is lowering to an astonishing but embarrassing level, the chances of misusing and taking advantage of the coverage and protection available under the relevant laws applicable to such a situation is high.

It may be appropriate to fix a minimum age limit for issuing a license, to ply heavy vehicles with a motive not to engage immature and inexperienced hands. In western countries especially in Germany grant of driving license is subject to the passing of an examination in first aid matters. In that case a driver plying a vehicle when meets with an accident will be capable of providing first aid to the victim.

Hence, on a total evaluation of state of things, there is a dire need to amend the relevant provisions of all enactments in the changed circumstances. Law should be to serve the purpose and to meet the necessity of the society and if the same found inadequate it is the duty of the machinery established under the Constitution to look into the same and review the same to cope with the dire necessity. The Legislature has a moral responsibility to consider all the aspects and search the possibility for curbing road accidents causing manslaughter by providing provisions of deterrent punishments in the penal provisions of the relevant enactments.

The Danger From Within

(By K. Ramakumar, Advocate)

Whether one likes it or not, Smt. Indira Gandhi, was one of the most powerful Prime Ministers of the World and was viewed with veneration as well as awe in the largest democracy of the world. An American Ambassador once described her as "the only man in the Indian Cabinet clad in Saree." She was however made answerable to the people of India. The people punished her severely in the elections that followed the Emergency and threw her out of office, even inflicting upon her a personal defeat as well. The so-called illiterate dumb-driven cattle like voters of the northern India rose as one man and registered their strong disapproval of the high handed Emergency by the use of an anti-clock wise swastik rubber stamp given to them at the Polling Stations. That was the moment of triumph, for the little man, who does not matter at all, in a democracy otherwise.

In sharp contrast see how the people of India, watched helplessly to the shaking of another predominant pillar of democracy capitulating and caving in during the emergency. Chief Justice Chandrachud, seven years head of the judicial family openly confessed that he wrote ADM Jabalpur under fear. In other words, he conceded that he breached the solemn oath that he had taken at the time of his appointment that he will administer Justice "without fear or favour". The common people of India, could do nothing but heave sighs of sorrow. So was the situation a la Ramaswamy and Ajith Sen Gupta of the Calcutta High Court, who was arrested after demitting his office for alleged links with smugglers and dons of the underworld. Why? Only because an enactment called the Contempt of Court Act exists immunising as many as six hundred and fourty one citizens among the Hundred crore people of the country. Not even the Rashtrapathi or Pradhan Manthri enjoy such absolute immunity from criticism. Ironically, the Act protects the two Gills of the Public High Court, while it was used even against the Gandhi (yes, the Mahatma), the Maulana and a host of other popular leaders including E.M.S. Sounds stupid? Is n't it? That too in a country where the lowliest citizen, a washerman could criticise the Raja and the Raja pathni and the Raja responding with an 'Agnipariksha'. A country of Upanishads proclaiming that "Law is the King of Kings far more powerful than they". The constant use of the contempt power even for trivialities and the umbrella of its protection claimed even to shield demonstrable deviance from probity has naturally raised a demand at high levels including from the Attorney General of India and the Law Minister that the same needs mending or even ending.

In a democracy deriving power from its supreme document, the Constitution and from "we, the people of India", (what a magnificent concept) nobody wielding power over another, can be heard to say "I shall not be criticised, whatever may be my fault."

The recent events in the judiciary, undoubtedly have shaken the confidence of the people in that fine institution moulded and left as the legacy of the Britishers. Chief Justice Chandrachud opens one of his judgments by saying "the biggest threat to judiciary comes from within". It is the Ahamedys, the Anands, the Begs, the Gills, the Rays and Ramaswamys, that have damaged the judiciary more than thousands of Gokhales. No citizen wants a system in which 'cases of probation ends up as cases of pension'. Judicial go-slow, is as much permissible as Industrial go-slow. Incapacity or indifference or both in delivering judgments in time really, amounts to an absolute threat to Justicing system, erodes its image and therefore is contempt. Justice should continue to be according to law, and not "Law according to Justices". Are the members of the profession to which Gandhi, Lincoln and Lenin, belonged listening?

Is  Section 66A of I.T. Act A Badly Written Law

(By Faizal Ahammed & Juby K. Mariam, Advocates, Mavelikkara)

 I.T. Act of 2000 is one which is enacted for the purpose of making a field inside the purview of law, the field which was till that time outside the scope of law, it was to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, this act has also made amendments to the Indian Penal Code 1860, Indian Evidence Act 1872, The Bankers Books of Evidence Act 1891, and the Reserve Bank of India Act, 1934 in order to further the same objective. It was the period in which most of the day to day activities were slowly becoming part of cyber world. The same transformation from leaf, animal hide  or stone to paper, happened in 20th century, ie from paper to magnetic disc. The Act essentially deals with,

a.Legal Recognition of Electronic Documents

b.Legal Recognition of Digital Signatures

c.Offenses and Contraventions

d. Justice Dispensation Systems for cyber crimes.

Being the first legislation on technology, some sections of the Act  was considered as draconian and some too diluted and lenient.  Even though this piece of legislation has proved to be a big leap in the field of cyber crimes, there still was a need for further changes which can improve its efficacy.This act has defined various offences and also has laid down certain penalties as well. This act in a way has characterised the cyber crimes, which were earlier unknown to general public in India. Before the amendment in 2008  there were only a smaller area which deals with offences.ie; tampering with computer documents, hacking etc. Of course it  was only a small percentage considering the large area which was yet to come into the area of cyber world. It happened so, that more and more areas became computerised. Age old crimes gradually mutate into the one which is done on computer. Few  in the modern age will be using paper or poster for doing defamation, though much easier and efficient way is opened through computer based social networks. A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation (commonly known as Phishing), identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the Code of Criminal Procedure to prevent such crimes.” Thus the need for an amendment  a detailed one was felt for the I.T. Act. Major industry bodies were consulted and advisory groups were formed to go into the perceived lacunae in the I.T. Act and comparing it with similar legislations in other nations and to suggest recommendations. Such recommendations were analysed and subsequently taken up as a comprehensive Amendment Act and after considerable administrative procedures, the consolidated amendment called the Information Technology Amendment Act, 2008 was placed in the Parliament. The 2008 Amendment Act was passed in an eventful Parliamentary session on 23 December 2008 (with no discussion in the House). The amendment was widely critisized on the ground of lack of legal and procedural safeguards to prevent violation of civil liberties of Indians. The Act has provided Indian Government with the power of surveillance, monitoring and blocking data traffic. The new powers under the amendment act tend to give Indian Government a texture and colour of being a surveillance state. The new I.T.Act provides good requirements from a national security perspective, information access misuse by unscrupulous parties, may prove to be dangerous for enterprises (as well as individuals). 

An important change that has been brought forth by the Amendment Act is that the new amendment has replaced Section 43 with Section 66. Under Section 66 the Word “hacking” has been removed, but instead hacking still remains an offence by the name of “data theft” in this section. This section has further been widened in the form of Sections 66A to 66F. Among these it is Section 66A which was widely criticised due to its draconian nature. The section reads as follows:

66 A:   Punishment for sending offensive messages through communication service, etc.

Any person who sends, by means of a computer resource or a communication device,

a)  any information that is grossly offensive or has menacing character; or

b)  any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

c)   any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages  shall be punishable with imprisonment for a term which may extend to two three years and with fine.

 Explanation:  For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

In short Section 66A deals with the sending of offensive messages through communication service, and causing annoyance to any electronic communication, and also includes the offence of misleading the recipient of the origin of such messages.

For getting clarity it will be better to examine what is the impact on civil liberty of the citizens through the amendment. Regarding Section 66A which punishes persons for sending offensive messages is overly broad. Section 66A has been challenged on the ground that it casts the net very wide - “all information” that is disseminated over the internet is included within its reach. The fact that some information is “grossly offensive” or that it causes “annoyance” or “inconvenience” (which is subjective) while being known to be false cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). None of the aforesaid terms in Section 66A are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not.  It is clear that Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A. The Section does not require that such message should have a clear tendency to disrupt public order. According to the section it is not necessary that the message must have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent - there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order.  Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall. It can be seen that some of the restrictions on freedom,  through the I.T. Act might not be intended by the Legislature, but finaly resulted in the same. For instance Section 66A(c) which is for preventing phishing and spam, due to the terms used in the section, unnecessarily curtail the liberty in using various web services, accordingly it  unintentionally prevents the organisations from using proxy servers, it prevents you from the use of anonymus remailers( a free computer service that privatizes your e-mail) it prevents the using of tunnelling(which allows for data to be sent securely). The phrasing of above said provision gives it a meaning which is unintended by the Legislature. The provision is as follows : “message for the purpose of causing annoyance OR inconvenience OR to deceive OR to mislead the addressee or recipient about the origin of such messages “. Here it can be seen that for making  the provision to be presise and narrow so as to avoid the above said dilemma it must be ‘AND’ instead of ‘OR’.

In the recent  judgement of  Shreya Singhal  v  U.O.I  other provisions under Section 66 are discussed to show the contrast with  Section 66A, it will help to see the pequliarity of 66A which makes the section vague and broad, accordingly in Section 66.66B and 66C the terms used are “dishonestly or fraudulently” both defined in  I.P.C., in Section 66D it is “who ever cheats by personating” Section 66F again is a narrowly drawn section which inflicts punishment which may extend to imprisonment for life for persons who threaten the unity, integrity, security or sovereignty of India. Sections 67 to 67B deal with punishment for offences for publishing or transmitting obscene material including depicting children in sexually explicit acts in electronic form.  None of the expressions used in Section 66A are defined. Even “criminal intimidation” is not defined - and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act. Thus all other provisions related to offences, other than Section 66A can be seen to be some what presise and narrow, so as to attract specific acts, where as Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

Another interesting feature is that a number of the expressions that occur in Section 66A occur in Section 268. It is important to notice the distinction between the Sections 268 and 66A. Whereas, in Section 268 the various expressions used are ingredients for the offence of a public nuisance, these ingredients now become offences in themselves when it comes to Section 66A. Further, under Section 268, the person should be guilty of an act or omission which is illegal in nature - legal acts are not within its net. A further ingredient is that injury, danger or annoyance must be to the public in general. Injury, danger or annoyance are not offences by themselves (as it is in Section 66A) howsoever made and to whomsoever made.

It is better to mention some of the points which are in favour of  above said provision,  accordingly  the main problem with respect to the deletion of this section is that, the door for a handfull of harmful activities are suddenly opened. For instance online defamation has suddenly become no offence, though nothing is there in Section 500 of I.P.C. which deals with defamation in cyber field.  Loose language may have been used in Section 66A to deal with novel methods of disturbing other people’s rights by using the internet as a tool to do so. Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Further, vagueness is not a ground to declare a Statute unconstitutional if the Statute is otherwise legislatively competent and non-arbitrary.

But it can be seen that the said mere possibility of misuse happened in a number of cases from 2009 to 2012 and  thus  vagueness  in the said provision makes such an  impact, as of a law which is arbitrary. .  Law should be logical and practical for curbing something which is illogical or not practical and not vice versa.