Doctrine of ‘Right to be Forgotten’ in Indian Law
By Saji Koduvath, Advocate, Kottayam
22/07/2022
Doctrine of ‘Right to be Forgotten’ in Indian Law
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(By Saji Koduvath, Advocate, Kottayam)
Abstract of the Contents
1. Courts in India apply the doctrine of ‘Right to be forgotten’:
(i) basing on the foundational principles enshrined in Article 21 of the Constitution (Right to Life),
(ii) following the land mark decision, K.S.Puttaswamy v. Union of India (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1) wherein it is held: “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone”) and
(iii) under the provisions of Information Technology Rules, 2021.
2. Personal Data Protection Bill, 2019, that upholds the doctrine of ‘Right to be Forgotten‘, is not passed, though introduced in Parliament in 2019.
3. Now this doctrine is used for removing private information from internet.
Part I
What is ‘Right to be Forgotten‘
It is human nature to forget things. The right of an individual not to be injured, out of another’s acts of constant recalling-of-past-deeds, is recognized in law – as the doctrine of ‘Right to be Forgotten’.
Now Used for Removing Private Information from Internet
Now-a-days it is applied to uphold reputation of a person, by removing the private information about him from internet sites and services.
Right to Righteous Life and Reputation
Article 21 (Right to Life) of the Constitution of India reads:
“Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Right to righteous life is an inalienable human right
Shakespeare(Othello:Act II, Scene iii) says through IAGO as under:
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands:
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.”
Shakespeare made it clear – a good name, or reputation, is valuable for its owner. Stealing the reputation of one, does not make another rich. But he who loses reputation, suffers damage.
First Statute which recognized ‘right to be forgotten
The European Union systematized the right to be forgotten in a statute, first time, in the year 2018, by ‘General Data Protection Regulation’.
First case where ‘right to be forgotten’ recognized
Google Spain SL v.Agencia Espanola de Proteccion de Datos (AEPD), [2014] QB 1022,may be the first case wherein the ‘right to be forgotten’ was recognized as a legal right. It is sprouted from ‘right to privacy’.
Part II
Codification of the Law on Reputation in India
Personal Data Protection Bill, 2019.
Personal Data Protection Bill presented in the Indian Parliament by the Ministry of Law and Justice, based on the recommendations of V.N. Sreekrishna Committee, in 2019, legally accepted the ‘right to be forgotten’ as a recognizable right. Unfortunately, the bill had not been passed by the Parliament, so far.
Information Technology Rules, 2021.
Rule 3(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 directs as under:
“(2) Grievance redressal mechanism of intermediary:
(a)The intermediary shall prominently publish on its website,mobile based application or both,as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall –
(i) acknowledge the complaint within twenty four hours and dispose off such complaint within a period of fifteen days from the date of its receipt;
(ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.
(b) The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which
exposes the private area of such individual,
shows such individual in full or partial nudity or
shows or depicts such individual in any sexual act or conduct, or
is in the nature of impersonation in an electronic form,
including artificially morphed images of such individual,
take all reasonable and practicable measures to remove or
disable access to such content which is hosted, stored,
published or transmitted by it:
(c) The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.”
High Court Decisions in India, on ‘Right to be Forgotten’
Despite the non-delivery of the proposed ‘Personal Data Protection Bill’ by the Parliament, various High Courts in India pronounced judgments accepting the doctrine, ‘right to be forgotten’, as an inalienable human right. It is founded upon Art. 21, ‘Right to Life’, the most valuable fundamental rights in the Constitution of India.
After the decision on ‘Right to Privacy’ rendered by the Supreme Court of India in K.S. Puttaswamy v. Union of India (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1), various High
Courts upheld the rights arising from ‘right to be forgotten’, based on the dogma on ‘Right to Privacy’.
The following are the land-mark decisions on the doctrine of the ‘right to be forgotten’ (after the verdict in Puttaswamy).
1. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd.(Delhi HC, 2019)
2019 SCC OnLine Del.8494).
2. Sri Vasunathan v. The Registrar General (Karnataka H.C.) (2020).
3. Subhranshu Rout Gugul v. State of Odisha (2020 (Orissa H.C.),
2020 SCC OnLIne Ori.878).
4. X v. YouTube (2021).
5. Jorawer Singh Mundy v. Union of India & Ors. (Delhi HC, 2021),
2021 SCC OnLine Del.2306).
Prior to the Supreme Court decision in Puttaswamy, the Courts in India did not accept the ‘right to be forgotten’ as a right recognizable in the Jurisprudence available in India. It was on the premises that no enacted law spoke specifically as to such a right. The said earlier decisions include the following:
* Naresh Sridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1).
* Dharamraj Bhanushankar Dave v. State of Gujarat ( 2017 SCC OnLine Guj. 2493).
* Anchit Chawla v. Google India, 2018.
Even after Puttaswamy, finding it ‘more appropriate to await’ till the Parliament opens its eyes or expounds its wisdom, the T.N. High Court held in Karthick Theodre v. The Registrar General, (2021 SCC OnLine Mad. 2755), as under:
“This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.”
Part III
Decisions Upheld, ‘Right to be Forgotten’
1. X v. YouTube (Delhi HC, 2021)
The plaintiff in that case was a well-known actor in TV and Film world of India. She participated in the creation of Video made mention of in the suit (suit video). The project was later on dropped. But the plaintiff found that the producer of the suit video uploaded it in YouTube channel and website. On the request of the plaintiff the producer removed the videos. Without plaintiff’s consent the defendants in the suit uploaded the suit videos in various websites.
The plaintiff applied for anonymity and filed the suit against the publication, streaming, or other broadcasting, on the ground that the suit videos infringed her privacy, negatively affected her reputation and it prejudiced her career.
The contesting defendant (Google) argued the following:
* they were unaware of the agreement as to the videos;
* the plaintiff being consented filming the videos defendants were not under an obligation to prevent the publication of the videos;
* the plaintiff had no statutory protection to enforce the ‘right to be forgotten’.
* the plaintiff had not required the authorized representative who complied to the Intermediary as provided under Rule 3(2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
* Section 67 & 67A of the Information Technology Act, 2000 excluded matters
published in the interest of Science, Literature, Art, etc.
The defendants (Google) relied, mainly, on:
* KarthickTheodre v. Registrar General (2021 SCC OnLine Mad. 2755).
* Dharamraj Bhanushankar Dave v. State of Gujarat (2017 SCC OnLine Guj. 2493),
* Anchit Chawla v. Google India, 2018.
Finding the suit to be maintainable, the Court held that the suit videos were of the kind that comes in Rule 3(2)(b) of the I.T. Rules, 2021. The Court pointed out:
* Even if plaintiff allowed to videograph voluntarily, the suit videos were not agreed to be published or transmitted by the defendants.
* She did not license for any of the URLS, Websites or Search engines to publish or transmit the same to YouTube.
* The defendants published or circulated the videos ‘for obvious monitory and other prurient benefits’.
* Even if the producer would have claimed protection on the consent of the plaintiff, the defendant had ‘no such consent’.
* ‘Right to be forgotten’ and the ‘right to be left alone’ are ‘inherent aspects’ of the ‘right to privacy’.
The claim raised by the plaintiff against the circulation of videos against her will was accepted by the court.
2. Jorawer Singh Mundy v. Union of India & Ors. (Delhi H.C., 2021)
The Delhi High Court (Prathiba M. Singh, J.) upheld the doctrine of ‘right to be forgotten’ in this decision.
The petitioner, an American citizen of Indian origin, travelled in India during 2009.
A criminal case under the NDPS Act, 1985 was lodged against him. He was acquitted from all the charges. The appeal filed by the Customs was also dismissed. After his return to US, the petitioner had to face disadvantages due to the availability of his case on a Google search. Hence employment to his expectations was denied to him. The petitioner issued notice to Google India Pvt. Ltd., Google LLC, Indian Canon, etc. Even after notice the respondents in the case did not remove the judgment. Hence the petitioner filed the petition to recognize his right to privacy under Article 21 of the Constitution of India.
The High Court referred the following judgments:
* K.S. Puttaswamy (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1).
* Zulfiqar Ahman Khan (supra) and
* Subhranshu Rout Gugul (supra)
The High Court, by an interim order, directed Google India Pvt. Ltd. and Google LLC to remove the judgment from ‘search results’ sought for by the petitioner; and directed Indian Canon to block the said judgment from being accessed by using search engines such as Google/yahoo etc.
3. Subhranshu Rout Gugul v. State of Gujarat (2017 SCC OnLine Guj. 2493)
The petitioner was charged with various offences including rape of his classmate. While considering the bail application a question arose as to the recognition of the ‘Right to be forgotten’ in Indian Law since the video recording with the accused was alleged to be used to threaten and blackmail the victim. The court has to consider the impact of the publication of the videos in Facebook, and in this conduct the recognition of the ‘right to be forgotten in India’ came up. The court pointed out that if Rout removed the Facebook video it would still remain ‘in the public domain’. The High Court referred to
* Sri Vasunathan v. The Registrar General (2017 SCC Online Kar.424).
* Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd. (2019 SCC OnLine Del.8494), 2019(175) DRJ 660).
* (Name Redacted) v. The Registrar General (Karnataka High Court).
It was pointed out that in (Name Redacted) v. The Registrar General (Karnataka High Court) recognized ‘right to be forgotten’ explicitly, though in a limited sense; and that the petitioner’s request (to remove his daughter’s name, from the judgment, involving claims of marriage and forgery) was upheld. In that decision it was held that recognizing ‘right to be forgotten’ would parallel initiatives by western countries which upheld this right when sensitive cases concerning the modesty or reputation of people, especially women, were involved.
The High Court also relied on Puttaswamy v. Union of India to uphold the rights claimed in the matter.
4. Sri Vasunathan v. The Registrar General (Karnataka H.C.)
In this case it was observed that the ‘right to be forgotten’ is ‘keeping in line with the Trend in western countries where it is followed as a matter of rule’.
5. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 SCC OnLine Del. 8494.
The suit was filed seeking permanent injunction against a digital/electronic platform (www), its editor and an author who had written articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign. The three individuals, who made allegations against the Plaintiff, have remained anonymous and have not revealed their identity in the public domain.
The Defendants, while the matter is being heard submitted the court that they were willing to pull down the said two publications against the plaintiff and that the first article had already been pulled down.
It was pointed out by the Court that if re-publication is permitted to go on continuously, the Plaintiff’s rights would be severely jeopardised. The court observed:
“The original publisher having already agreed to pull down the same, this Court having directed that the same ought not to be republished, the Plaintiff, thus, has a right to ensure that the articles are not published on multiple electronic/digital platforms as that would create a permanent atmosphere of suspicion and animosity towards the Plaintiff and also severely prejudice his personal and professional life. The printouts of the articles from certain sites, which have been shown to the Court, leave no doubt in the mind of the Court that these are identical to the articles published on the first defendant’s site, which have already been pulled down.”
Then it is held as under:
“9. Accordingly, recognising the Plaintiff’s Right to privacy, of which
* the ‘Right to be forgotten’ and
* the ‘Right to be left alone’ are inherent aspects,
it is directed that any republication of the content of the originally impugned articles dated 12th October 2018 and 31st October 2018, or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit.
10. The Plaintiff is permitted to communicate this order to any print or electronic platform including various search engines in order to ensure that the articles or any excerpts/search results thereof are not republished in any manner whatsoever. The Plaintiff is permitted to approach the grievance officers of the electronic platforms and portals to ensure immediate compliance of this order.
11. If the said search engines do not take down/remove the objectionable content from their platforms within a period of 36 hours after receiving communication from the Plaintiff with a copy of this order, the Plaintiff is also permitted to communicate with the Defendants so that the Defendants can also co-operate in the said pulling down, if required. If the said platforms do not, after being served by a copy of this order, take down the objectionable content, the Plaintiff is given liberty to approach this court forthwith – apart from approaching the appropriate authorities under the Information Technology Act.”
Part IV
K.S. Puttaswamy v. Union of India and the ‘Right to be Let Alone’
In the celebrated decision on ‘right to privacy’ (K.S. Puttaswamy (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1) , our Supreme Court has held that the ‘right to be let alone‘ is a part of ‘essential nature of privacy‘ of an individual. It is held as under:
“Essential nature of privacy
297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
402. “Privacy” is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions” [Black’s Law Dictionary (Bryan Garner Edition) 3783 (2004)] . The right to be in this condition has been described as “the right to be let alone” [ Samuel D.Warren and Louis D.Brandeis, “The Right To Privacy“, 4 Harv L Rev 193 (1890)] . What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.
479. Both the learned Attorney General and Shri.Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind. As case law, both in the US and India show, this concept has travelled far from the mere right to be let alone to recognition of a large number of privacy interests, which apart from privacy of one’s home and protection from unreasonable searches and seizures have been extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus; rights of same sex couples–including the right to marry; rights as to procreation, contraception, general family relationships, child-bearing, education, data protection, etc. This argument again need not detain us any further and is rejected.
560. The most popular meaning of “right to privacy” is -“the right to be let alone“. In Gobind v. State of M.P. (Gobind v. State of M.P. (1975) 2 SCC 148 : 1975 SCC (Cri.) 468), K.K.Mathew, J. noticed multiple facets of this right (paras 21-25) and then gave a rule of caution while examining the contours of such right on case-to-case basis.
636. Thus, the European Union Regulation of 2016 [Regulation No.(EU) 2016/679 of the European Parliament and of the Council of 27.4.2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No.95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten”. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”
(Quoted in: Subhranshu Rout Gugul v. State of Odisha, 2020 (Orissa H.C.),
2020 SCCOnLIne Ori. 878).
Rights of Women At Workplace: A Brief Analysis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
By Swapna George, Vice Principal, CSI Institute of Legal Studies, Parassala,
19/07/2022
Rights of Women At Workplace: A Brief Analysis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
(By Swapna George, Vice Principal, CSI Institute of Legal Studies, Parassala, University of Kerala)
In her book titled Law Relating to Women and Children1, Author Mamta Rao, says that ‘the best way to understand the spirit of a civilization and to appreciate and realise its excellence and limitations is to study the history of its women folk – development and change in the status of women from time to time’. Simply speaking status of the women in a country bears testimony to the social development achieved by it. On an overview of the Indian context, it can be seen that the Constitution of India stands for distributive justice based on one of the most important fundamental rights, the right to equality, providing space for protective discrimination in legislation for women and children. The preamble of the Constitution of India lays down our valuable national policy of securing justice, liberty, equality, and fraternity for all citizens. The concept of justice includes social and economic justice, which are understandably inclusive of the right to employment and to earn living based on the principle of equality.
Right to work implies freedom from sexual harassment
As the true embodiment of values elicited in the Preamble of the Constitution, Article 21
of the Constitution guarantees the right to life and personal liberty to the people. While explaining the scope of Article 21, the Apex Court of India has upheld that the right to life doesn’t mean the right to mere existence, but the right to live a dignified life. Fundamental Rights, as enshrined in the Articles of 14, 19, and 21, jointly formed as a trinity of basic rights, in the Indian Constitution provide for valuable human rights of equality, life, liberty and fraternity.
Principle of economic justice as incorporated in the Preamble of the Constitution entails right to work and earn livelihood. Right to employment, though not a fundamental right claimable against the State, Directive Principles covered under various Articles, especially 39 and 42, bind the State to direct its policy towards ensuring equal right for man and woman to adequate livelihood as well as equal pay for equal work and securing just and humane conditions of work. In short it is one of the fundamental principles of governance that the State ensures equality based humane working environment free from gender discrimination.
Similarly, Article 19(1)(g) which literally grants freedom to practice any profession, to carry on any occupation, trade, or business, incidentally guarantees a working place free from inhuman elements like sexual harassment of women employees. Women’s right to practice a profession or to do work as an employee would be meaningful only if they are assured equality not just in matters like pay, or working hours but most importantly in respect of gender equality in the workplace. It is relevant to remember here the words of the Supreme Court that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude2 to encompass all the facets of gender equality including the prevention of sexual harassment or abuse. Gender discrimination and sexual violations, rampantly prevailing in the industrial sector, call for specific legal protection for women at workplace which includes even households in the case of domestic workers.
Sexual Harassment
The United Nations General Assembly on the Convention on the Elimination of All Forms of Discrimination Against Women has clarified that equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment at the workplace. Article 11(1) of the Convention (CEDAW -1979), advocates for steps to be taken to eliminate discrimination against women in the field of employment in order to ensure equality among men and women. The principle of equality has been reaffirmed in the Second World Conference on Human Rights at Vienna in June 1993 and in the Fourth World Conference on women held in Beijing in June 1955. CEDAW was ratified by the Union of India on 25th June 1993. It requires state parties to take all appropriate measures to eliminate discrimination against women in the field of employment. As per the
provisions of Article 51 of the Constitution, India has to implement it by way of domestic legislation.
Prevention of Sexual Harassment Act, 2013
In tune with the International Conventions and Provisions of our Constitution, Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. As the title of the Act indicates it provides for prevention and prohibition of the act of sexual harassment and also provides for the redressal of grievances of sexual harassment. Section 2(n) of the Act read with Section 3(2) defines sexual harassment as unwelcome acts or behaviour of the following five kinds.
i) Physical contact and advances
ii) A demand or request for sexual favors
iii) Making sexually colored remarks
iv) Showing pornography
v) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
In addition to the above-said activities, the following circumstances as provided for under Section 3 do also constitute the act of sexual harassment.
i) Implied or explicit promise of preferential treatment in her employment
ii) Implied or explicit threat of detrimental treatment in her employment
iii) Implied or explicit threat about her present or future employment status
iv) Interference with her work or creating an intimidating or offensive or hostile work
environment for her
v) Humiliating treatment likely to affect health or safety
From the above provisions, it is clear that any unwelcome act or conduct which is sexually oriented amounts to sexual harassment. In respect of sexual harassment, it has been held that any form of sexual approach or behaviour that is unwelcome will come under the definition of ‘sexual harassment’ and it is not confined to any of the sub-clauses mentioned in Section 2(n), which of course will depend upon the materials placed on record and on a case to case basis3.
Section 3 of the Act categorically prevents and prohibits act of sexual harassment in the following words “No woman shall be subjected to sexual harassment at any workplace”.
In accordance with the purpose of the Act which aims at ensuring a safe and secure working environment for women at workplace legislature has given a wider definition for the term employee.4 It includes any person employed at a workplace for any work or regular, temporary, ad hoc or daily wage basis, either directly or through an agent. It includes a
co-worker, contract worker, probationer, trainee, and apprentice or called by any other similar name. Moreover, it needs to be specially noted that, a woman for being aggrieved by sexual harassment at workplace, need not be necessarily employed. Also, the domestic workers doing odd jobs at households have been brought within the scope of the Act.
Redressal Mechanism
Act provides for an elaborate redressal mechanism in case of sexual harassment at the workplace. Similarly, it imposes certain duties upon the employer with a view to spreading awareness among the employees about their rights against sexual harassment. As per Section 4 read with Section 6 the employer is duty-bound to constitute Internal Complaints Committee in the establishments with ten or more employees. Internal Complaints Committee consists of a presiding officer who shall be a senior woman employee and members committed to the cause of women.5 Similarly, District Officers appointed by the Government would constitute Local Complaints Committee at district level.6 By all means, these committees shall be women-dominated institutions. In the absence of an Internal Complaints Committee, the aggrieved person can file a complaint before the Local Complaints Committee. The domestic workers also can file their complaints before the Local Committee.
Conciliation and Settlement
On receipt of a complaint of sexual harassment, Internal Complaints Committee can try to settle the matter by way of a non-monitory settlement if the aggrieved woman requests for such a measure.7 Where such a conciliatory measure is found to be unfit the Committee shall go ahead with the inquiry proceedings. At this juncture it may be taken note of the fact that in case the aggrieved woman being an illiterate or otherwise incapable person members of the Committee shall grant her necessary assistance for making her complaint in writing. So also, in the event the aggrieved woman is suffering from any incapacity a complaint can be filed by her relative, friend, co-worker, officers of Women’s Commissions, special educator, psychiatrist or psychologist or guardian as the case may be. In case of death of an aggrieved woman a complaint by her legal heir is also sustainable8
Inquiry procedure
If the matter is not settled, the committee shall proceed with an inquiry.9 It will send a copy to the respondent who has to file his reply within ten days’ time. The Committee is empowered as if a Civil Court for the purpose of summoning and inspecting documents and examining persons on oath.10 The inquiry procedure has to be completed within a period of ninety days. With respect to the inquiry, it has been held that the inquiry to be concluded is not a preliminary inquiry but should be a full-fledged inquiry as to the finding of the fact. The inquiry has to be conducted in the same manner as to prove misconduct in disciplinary proceedings as referable in Service Rules. Thus there is no space for preparing a preliminary inquiry report.11 In the event of non-appearance of the parties before it, the Committee can either terminate the proceedings or go ahead with ex parte proceedings.
Remedies and Recommendations
An aggrieved woman of the sexual harassment has got certain interim remedies during the inquiry proceeding.12 On the written request of the aggrieved woman, the Committee may recommend the employer to transfer the aggrieved woman to any other workplace or grant her leave for a period of three months. The leave so granted shall be in addition to other leaves eligible under other provisions of labor laws in force.
On conclusion of the inquiry, if the Committee finds out that the respondent has committed the alleged act of sexual harassment, the Committee shall recommend the employer take action against the respondent in accordance with the Service Rules treating the harassment as misconduct on the part of the respondent.13 In the absence of Service Rules, the Committee may recommend any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counseling session or carrying out community service.
Provisions of the Act also provide compensatory relief to the aggrieved woman. As per Section 15, the Internal Committee or the Local Committee can recommend compensation to be fixed with regard to the following factors.
a) The mental trauma, pain, suffering, and emotional distress
b) The loss in the career opportunity
c) The medical expenses for physical and psychiatric treatment
d) The financial position of the respondent
e) Feasibility of payment in lump sum or installments
The amount arrived at can be deducted from the wages of the respondent or the respondent may be required to make the payment and if necessary, even revenue recovery proceedings may be resorted to and recovered as arrears on land revenue.
Penalty for non-compliance
The employer is duty-bound to bring into effect the recommendations made by the Committee, the failure of which would be constituting an offence warranting penalty as per the provisions of Section 26 of the Act. While the first instance of non-performance shall be punishable with a fine of rupees fifty thousand, the subsequent commission of the offence will be punished with twice the amount of fine and even with the cancellation of the registration of the establishment granted by the Government. So it is clear that the intention of the legislature is strong that the instances of sexual harassment at workplace have to be seriously dealt with. Moreover, the aggrieved woman or any person authorised by the Committee can file a complaint before the Magistrate against the employer for the offence of non-compliance of the recommendation. Similarly, the provisions of this Act shall in addition to provisions of other laws. So the aggrieved woman may seek other legal remedies as available.
Duties of the employer as well as the State
In view of the factors like inadequate legal education and awareness about rights and social backwardness, the employer has been held duty-bound to provide a safe working environment at the workplace and to display at a conspicuous place the penal consequence of the sexual harassment. It is now a legal requirement that sexual harassment is to be treated as misconduct under the service rules of the establishment. He has to organize workshops and awareness programmes at regular intervals for sensitizing the employees about the provisions of the Act.14 So also, the employer has to monitor the timely submission of reports by the Internal Committee.
Similarly,the appropriate Government should monitor the implementation of the Act. The Government is empowered to call upon any employer or District Officer to furnish in writing such information relating to sexual harassment. The State Government can authorize officers to make an inspection of the records and work in relation to sexual harassment.15
All these duties and measures are to be read with the view of the High Court of Kerala16 . It has been held that the modesty of women is to be strongly guarded. Instances of sexual harassment are to be strongly deprecated and have to be looked down on heavily. Taking a light and lenient view on such matters would convey a wrong message to society. The Apex Court has, time and again, condemned in heavy words the ‘societal aberration’ namely, sexual harassment of the female gender. The Apex Court has also observed that such incidents result in the violation of the fundamental right of ‘Gender Equality’ and the ‘Right to life and Liberty’.
Critical Observations over Some Provisions
It is quite commendable that the legislature has come out with such an Act envisioning the most important Gender Equality in the workplace. It is more so given the fact that domestic workers of households have been taken care of and accommodated within its sweep. Still, the success of the Act in bringing desired results has to be objectively assessed especially in the presence of a conciliation mechanism and settlement of sexual harassment.
Firstly, chances are high that the provision of conciliation will operate as a back door exit for the offender, which is certain in view of the reality before us. Hapless and innocent women workers will possibly be pressurized for their request for conciliation. Thus, the conciliation provision in the Act will serve to water down its own flames. What is more, such a conciliation provision is actually contradicting the very intention of the legislature for eradicating the mischief of sexual harassment. It is to be noted that, on the one hand, sexual harassment, with the same ingredients, has been added to the Indian Penal Code as an offence punishable with three years of rigorous imprisonment. On the other hand, the same act has been made a small matter that could be simply settled at the request of the victim woman.
Secondly, while the sexual harassment is an offence under Section 354A of IPC punishable with three years, Sexual Harassment Act provides for transfer of a case to the police for registering a case under Section 509 in which the elements of offence are considerably different.
Thirdly, the act of sexual harassment is treated as misconduct which needs to be dealt with under the ordinary Service Rules. Instead of leaving such matters to be handled according to the Service Rules act of sexual harassment could be treated as its own kind of misconduct and more specific provisions including some more harsh penal consequences could have been incorporated. Otherwise, in all likelihood, the Act is to be turned into a useless weapon.
The mischief of sexual harassment and social factors
On a reality check based on objective analysis of factual situations, it is explicitly understood that the vice of sexual harassment at the workplace, unlike other offensive right violations, cannot be eradicated simply by way of legislation providing for legal remedies and imposing certain duties and obligations upon employers. Only a combination of factories working together can bring a positive result in dealing with such mischief, among them the education holds a primary position. People have to be properly educated so that there should be a change in their attitude toward women treating them as objects rather than autonomous individuals having equal rights as men. Women have to be imparted awareness as to how to deal effectively with instances of sexual harassment. Supportive measures for the assistance of the women victims both material and mental have to be put in place. Provisions for extending psychological treatment and clinical care for the victims of sexual harassment have to be specifically incorporated into the law, especially so in the light of the fact that sexual harassment tears the mind more than the body. Freeing our women workforce from the grip of sexual offences at the workplace is the collective duty of society and the legal obligation of the governmental machinery.
That the rights are not absolute but are correlated to duties is one of the indisputable jurisprudential facts. Article 51A(e) of the Constitution of India, under the Fundamental Duties, enjoins the citizen to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities; to renounce practices of derogatory to the dignity of women.
Foot Notes
1. 4th edn. 2018 Eastern Book Company.
2. Vishaka v. State of Rajasthan (1977 (2) KLT SN 72 (C.No. 72) SC = AIR 1997 SC 3011.
3. Prasad Pannian Dr. v. Central University of Kerala, Kasargod & Ors. (2021 (4) KLT SN 11 (C.No.9) =2020 (6) KLT OnLine 1049).
4. Section 2(f). The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
5. Section 4(2).
6. Section 6.
7. Section 10.
8. Section 9(2).
9. Section 11.
10. Section 11 (3).
11. Sibu L.S.v. Air India Ltd., New Delhi & Ors. (2016 (2) KLT 374).
12. Section 12.
13. Section 13(3).
14. Section 19.
15. Section 25.
16. Rajan David v. State of Kerala & Ors. (2016 (4) KLT SN 73 (C.No. 85).
“Positive Secularism” An Indian Version of Secularism
By Devi A.R., Section Officer, Law Dept. Govt. Secretariat, TVM
19/07/2022
“Positive Secularism” An Indian Version of Secularism
(By Devi A.R., Section Officer, Law Department, Govt.Secretariat, Thiruvananthapuram)
Britishwriter George Jacob Holyoake designed the term secularism to describe his views of promoting a social order separate from religion, without actively dismissing or criticizing religious belief.1 In line with Merriam-Webster dictionary secularism represents the “indifference to, or rejection or exclusion of, religion and religious considerations.” 2 The term secularism is not there in the original transcript of the Constitution. The inclusion of the ideology of secularism in the Constitution was discussed in the Constituent Assembly at various stages and the same was rejected by the drafting committee chairman. The amendment proposal for inclusion of the term secularism in the preamble was also
nagatived by the Constituent Assembly. Later “Secularism” was inserted in the preamble by
the 42nd Amendment to the Constitution.
Amendment moved in Constituent Assembly on secularism
Constituent Assembly on 15th November 19483 discussed on the Preamble of the Constitution. On such date Prof. K.T.Shah proposed an amendment “That in clause (1) of Article 1 after the words ‘shall be a’ the words ‘Secular, Federal, Socialist’ be inserted.” The proposal was rejected by the drafting committee chairman and also the motion was negatived by the constituent assembly. Hence the term secularism cannot be seen in the original text of the Constitution that was approved by the Constituent Assembly. Articles 25 to 28 recognize and protect religious freedom as the fundamental rights, in the rest of the original Constitution there has been no specification on the approach of State towards religion and religious affairs.
42nd Amendment to the Preamble of the Constitution
The Constitution (Forty-second amendment) Act, 1976 amended Preamble and changed the depiction of the Nation from “sovereign, democratic, republic” to a “sovereign, socialist, secular, democratic, republic”, and also changed the words “unity of the nation” to “unity and integrity of the nation.”
Positive Secularism – An Analysis
The term Secularism is neither demarcated nor discussed in the Constitution. But even before the 42nd amendment was passed by the Parliament, the Hon’ble Supreme Court in Kesavananda Bharati v. State of Kerala observed that the secularism is the basic structure of the constitution. In the landmark case S.R. Bommai v. Union of India the Hon’ble Apex Court observed Indian secularism as follows;
“182. Making of a nation State involves increasing secularization of society and culture. Secularism operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis.”
Apart from this judgment in a series of cases the Apex Court interpreted the term secularism as “positive secularism.” The ideology of positive secularism promotes tolerance of all religions, it is an ideology followed in the ancient India which recognizes all religions equally but, attributing such a meaning to “secularism” for promoting religious activities by the State is conflicting to the very basic concept of Secularism.
It is implicit that the framers of the Constitution never proposed to discuss the relation of the State with the people on the religion and never intended to recognize religious groups as dominant factor in the society. Conversely, it is true that the framers never intended that the State should follow skepticism towards the religion, as the freedom of religion found place in the fundamental rights. During the constituent assembly debates Prof. K.T. Shah proposed amendment for inclusion of the term secularism in the preamble was rejected by the drafting committee chairman and nagatived by the constitu-ent assembly. Being a secular state in the text of the constitution and protecting the religious freedom as the fundamental right is paradoxical.Mostly, because of this contradiction the Constituent Assembly did not adopt secularism in the Constitution.
Indian judiciary advanced the“secularism”in the Constitution as “positive secularism” to justify the religious rights guaranteed under Part III of the Constitution. The Hon’ble High Court of Karnataka in Resham v. State of Karnataka,4 though the finality of the judgment is to be determined by the Apex Court, correctly interpreted the factual matrix in tune with the secularist principles. In a secular nation, State is supposed to be neutral towards the religious affairs of the citizen. The said judgment of the Hon’ble High Court of Karnataka upheld the secularist principles envisaged in preamble of the Constitution. It started a trend of interpreting secularism in the Constitution as it meant in the preamble. The move towards separation of State and religion and recognizing the none rather than supporting and promoting all religious group will definitely glow the rule of law and democratic principles. As far as Secularism is not defined otherwise in the Constitution, it should be read as separation of State from religious activities of the people and it is the urgent need of the epoch to keep democratic principle alive.
Foot Notes
1. https://en.wikipedia.org/wiki/Secularism
2. Ibid.
3. https://www.constitutionofindia.net/constituent_assembly_debate
4. Judgment dated 15.3.2022 of the Hon’ble High Court of Karnataka in W.P. No. 2347 of 2022
Director General of Prosecution –
An Analysis in the Legal – Value Complexities
By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala
04/07/2022
Director General of Prosecution –
An Analysis in the Legal – Value Complexities
(By O.V.Radhakrishnan, Sr. Advocate)
This Article is intensely concerned with the interrelated issues of Public Prosecutor and the Director General of Prosecution and the complex interplay between them in the criminal prosecution and their legal dimensions of processual probity and rectitude in the criminal justice system.
‘Criminal Procedure’ is a concurrent legislative field specified in Entry 2, List III-Concurrent List of the Seventh Schedule of the Constitution. The Code of Criminal Procedure, 1973 is an exhaustive body of law relating to Criminal Procedure and speaks and speaks as a whole Code on the sole subject of Criminal Procedure. It is an Union Act to consolidate and amend the law relating to Criminal Procedure. The Code occupies the field of the ‘Criminal Procedure’ and being an all-embracing Code relating to the subject, the State Legislature cannot enter into the same field of Criminal Procedure. The induction of Director General of Prosecution and lever up the post above the ‘regular cadre of Prosecuting Officers’ by executive fiat is a patent case of ultra vires because of Article 254(1) of the Constitution of India.
The Public Prosecutor is not a protagonist of any party and in theory Public Prosecutor stands for the State in whose name all prosecutions are conducted. The appointment of a Prosecutor is a compelling constitutional necessity, obligatory under the Code of Criminal Procedure also. Section 24(1) of the Code directs that for every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. Sub-section (6) of Section 24
provides that ‘Notwithstanding anything contained in sub-section (5) where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre; Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).’
The Central Government or the State Government is empowered to appoint a person who has been in practice as an advocate for not less than ten years as Special Public Prosecutor under Section 24(8) of the Code of Criminal Procedure. Such Special Public Prosecutor would be Public Prosecutor for all the purposes under the Act. Therefore, appointment of Public Prosecutors is exclusively governed by Section 24 of the Code of Criminal Procedure. Public Prosecutor is an integral part in the functioning of a Criminal Court charged with the duty of conducting prosecutions.
Director General of Prosecution does not fall in the hierarchical system of ‘regular cadre of Prosecuting Officers’ or under ‘Prosecuting Officers’ as defined in sub-section (6) of Section 24 or any of the provisions under the Code of Criminal Procedure. The Director General of Prosecution is not a constitutional or statutory post. Right to be considered for appointment can only be claimed in respect of a post in a cadre.1 Notably, the Director General of Prosecution is not a ‘post’ falling within any of the Kerala State Services or Kerala Subordinate Services.
Director General of Prosecution does not denote ‘Government Law Officer’ as defined in Rule 2(b) of The Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978.
The deeper point is that the factual pre-condition to create a ‘post’ - or precedent legal position is the existence of a ‘service’ established by the legislature. Indeed, a ‘service’ established by law is a sine qua non for creation of post/s. The power to establish a service and to lay down conditions of service is to be regulated by legislation. The power is left to the respective legislature under Entry 70 of List I or Entry 41 of List II of the Seventh Schedule to be made by a specific legislation under Article 309 of the Constitution.
It is worthy of notice that the Constitution itself provides for appointment of holders of constitutional posts including Attorney General for India, Controller and Auditor General of India, the Chief Justice and Judges of the Supreme Court and High Courts and Advocate General for the State. Thus there are functionaries who hold office under the Constitution or under Statues outside ‘public service’.
In this context I refer with profit to the decision of the High Court of Kerala in Aboobaker v. M.Ratna Singh.2 The High Court held: “It is not easy to think that the Public Prosecutor appointed under S.24(1) of the Code, is ‘recruited’ to ‘public services or posts’ in connection with the affairs of the State of Kerala. The Act, as noticed is designed to regulate ‘recruitment and conditions of service’ of persons appointed to Public Services. Indisputably, there is no recruitment under the Act, the appointment being under S.24(1) of the Code of Criminal Procedure. The appointment is not to a “service or post” in the real sense. ......” A fortiori appointment of Director General of Prosecution is not to a ‘post’ in a service constituted by law made by the appropriate legislature. Consequently, appointment of Director General of Prosecution has no constitutional or statutory back-up.
The State Government cannot while taking recourse to the executive power under Article 162 of the Constitution go against the provisions of the Code of Criminal Procedure enacted by Parliament. The power of the State executive is circumscribed or limited in creating a post of Director General of Prosecution in the ‘regular cadre of Prosecuting Officers’ hierarchically structured in the Code. It is not possible or permissible to create post of Director General Of Prosecution without amending Section 24 of the Code and without legislative sanction.
The obligation of States to ensure compliance with the laws made by Parliament is a constitutional command inscribed in Article 256 of the Constitution. Although an executive act by a State is not authorised by legislative enactment, it will nevertheless be within the executive power of the State--(i) it is not an act which has been assigned in the Constitution of India to other authorities or bodies such as legislature, the judiciary or the Public Service Commission; (ii) it is not contrary to the provisions of any law; and (iii) it does not encroach upon or otherwise infringe the legal rights of any member of the public.3 The State executive can act precisely on its own initiative provided it is within the sphere of executive action permitted to it by the Constitution. Irrefragably, the legislative field of ‘Criminal procedure’ is fully occupied by the Code of Criminal Procedure made by Parliament. Therefore, any provision in the State law or executive order repugnant to the provision of an earlier law made by Parliament, the State law or executive order to the extent of repugnancy be void under Article 254(1) of the Constitution. The State, therefore, has no lawful authority to appoint a lawyer of its choice and designate him as Director General of Prosecution outside the ‘Prosecuting Officer’ hierarchy in the Code. The powers, duties and obligations under the Code are exclusively exercisable by Public Prosecutor appointed under Section 24 of the Code in a criminal prosecution. The practice of making such appointment of Director General of Prosecution without there being a post created by statute defeats public purpose the Code of Criminal Procedure calculated to serve. The procedural safeguards are the indispensable essence of liberty and such practice if allowed to continue would injure the credibility of prosecutorial operations required to be carried out as set down in the Code of Criminal Procedure. Ultimately the public confidence in the criminal prosecution would turn out to be illusory.
It is no function of the State executive to designate the post of Public Prosecutor as Director of Prosecution or to re-designate Director of Prosecution as Director General of Prosecution. Only Parliament can create such a post by making appropriate amendment to Section 24 of the Code of Criminal Procedure. Nevertheless, the Government of Kerala issued G.O.(Ms) No.44/75/Home dated 03.04.1975 ordering the Senior Public Prosecutor, Office of the Advocate General, Ernakulam to function as Director of Public Prosecution in addition of his work under Home Department of the Government Secretariat bringing the Assistant Public Prosecutors under his supervision. The Government without understandable purpose issued G.O.(Ms)No.137/91/Home dated 25.10.1991 re-designa-ting the post of Public Prosecutor, High Court of Kerala as Director General of Prosecution acting beyond its powers. The Government issued G.O.(Ms) No.165/91/Home dated 20-11-1991 reiterating that the office of the Director of Public Prosecution will be re-designated as the office of the Director General of Prosecution and that the holder of the post will have the same status and attendant benefits as those of the Advocate General which is restated in G.O.(Ms) No.117/96/Home dated 29.06.1996.
There must be a ‘post’ in existence to enable the State executive to make an appointment and exercise the right officially to designate to do a particular job or to state that appointee has a particular character. Inevitably, appointment of Director General of Prosecution against a non-existing post by the State executive outside ‘Public Service’ not backed by Constitutional or an existing statutory provision is an act stepping outside the executive power of the State. Designation or re-designation of Public Prosecutor does not have bearing on the criminal prosecution which could be carried out only by Public Prosecutor appointed under Section 24 of the Code. Re-designating the post of Public Prosecutor as Director General of Prosecution without amending Section 24 of the Code is ultra vires and unsignificative.
The question is whether, by mere declaration, by the Government, that the Public Prosecutor is re-designated as Director General of Prosecution, can he be given the status of Advocate General. Tersely put, designation or re-designation is an action of appointing or nominating to a post. There is no post of Director General of Prosecution in a service constituted by an appropriate legislature or by an executive order either. Unmistakably, a Public Prosecutor appointed under Section 24 of the Code cannot be designated as Director of Prosecution or re-designated as Director General of Prosecution as it is contrary to Section 24 of the Code. The legal effect of re-designation of the post of Public Prosecutor, High Court of Kerala as Director General of Prosecution is that the original post of Public Prosecutor is converted as Director General of Prosecution by resort to executive power of the State despite the Government is shackled by the overly-strict ultra vires doctrine.
In “Treatise on the Conflict of Laws” C.K.Allen4 said that status is a condition of belonging to a particular class of persons to whom law assigns certain capacities and incapacities. There being no constitutional or statutory ‘post’ or ‘office’ of Director General of Prosecution, no legal consequences result to the Director General of Prosecution from the mere fact of belonging to it5 by the specious re-designation as such. The imposition of status of Advocate General on the Director General of Prosecution without any purpose by the State executive is an absolute disregard of the canons of constitutionalism.
Advocate General for the State is appointed by the Governor under Article 165 of the Constitution. In M.T.Khan v. Government of Andra Pradesh 6 the Supreme Court held: “The office of the Advocate General is a public office. He not only has a right to address the Houses of Legislature but also is required to perform other statutory functions in terms of Section 302 of the Code of Criminal Procedure, Section 92 of the Code Civil Procedure and Section 23 of the Advocates Act. Each of such functions performed by the Advocate General is of great public importance. Such public functions are required to be performed by the holder of a constitutional post having regard to his stature and keeping in view the fact that the State intended to endow such responsibility upon him.” The Supreme Court emphatically held that the State cannot appoint more than one Advocate General.
Concomitantly, no one can be given the status of Advocate General appointed by the Governor under Article 165 of the Constitution of India. The State action in giving the status of Advocate General, the holder of a constitutional post to the Director General of Prosecution who does not hold constitutional or statutory post and does not have a right to the status of Advocate General and who has not been validly appointed to the post is unconstitutional and legally unwarranted. In State of Punjab v. Jagdip Sing 7 Constitution Bench of the Supreme Court held:
“8............In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status. ..........” The action of the Government conferring the status of Advocate General to Director General of Prosecution is an abuse of power by taking improper considerations into account and forfeits its description as ‘reasonable’.
The functional fulfilment of the duty of public prosecutor requires non-interference by those in political authority or unwarranted directions/command in the purported exercise of the power of superintendence from those who are out of “prosecuting officer” hierarchy. Nevertheless, the general power of Superintendence is conferred by the State on the Director General of Prosecution as per G.O.(Ms) No.120/96/Home dated 02.07.1996. The power of Superintendence comprehends the power to exercise effective control over the actions, performance and discharge of duties of the Public Prosecutors, Additional Public Prosecutors, Deputy Director of Prosecution and Assistant Public Prosecutor Grade I & II and to report to Government on the quality of prosecution work done in those offices.
The Director General of Prosecution is required to give guidance and directions to the Public Prosecutors, Additional Public Prosecutors, Deputy Director of Prosecution and Assistant Public Prosecutors in important cases. Every Deputy Director of Prosecution shall forward the diaries of Assistant Public Prosecutors Grade I and II with his remarks and his own diary to the Director General of Prosecution before the 15th of every month. The Public Prosecutors, Additional Public Prosecutors, Deputy Director of Prosecution and Assistant Public Prosecutors are required to forward copies of Judgement in all cases ending in acquittal/discharge to the Director General of Prosecution to enable him to examine whether the acquittal/discharge was the result of poor investigation or prosecution, and if so, to bring the same to the notice of the Government for appropriate action. The Director General of Prosecution is authorised to instruct Superintendent of Police/ Commissioner of Police to convene meeting of Police Officers under his charge and take measures to tone up the quality of prosecution work and to convene meetings of Public Prosecutors and Additional Public Prosecutors in each District and guide them and advise them in the matter of conduct of prosecutions. The Director General of Prosecution is also authorised to call for the case diary file of any case for the purpose of guiding the Investigating Officers in the matter of investigation.
Be it so, the Government ordered that the administrative control/authority over the Assistant Public Prosecutors and Deputy Directors of Prosecution will be transferred from the District Collectors to the Director General of Prosecution as per G.O.(Rt) No. 621/2001/Home dated 14.02.2001. It is further ordered therein that the reporting, reviewing and accepting authorities in respect of the Confidential Reports of Assistant Public Prosecutors, Deputy Directors of Prosecutions and Senior Assistant Public Prosecutors will be as shown in the Annexure to the said order. In the Annexure, Director General of Prosecution is shown as the Reviewing Authority in respect of Assistant Public Prosecutor Grade I and II and the Reporting Authority in respect of Deputy Directors of Prosecution & Senior Assistant Public Prosecutors in the matter of preparation and maintenance of Confidential Reports of Assistant Public Prosecutors and Deputy Directors of Prosecution & Senior Assistant Public Prosecutors. Thereby, they are treated as subordinate to the Director General of Prosecution.
There can be no doubting the importance of consultation with the High Court in appointing Public Prosecutor. However, the appointment of Director General of Prosecution is not preceded by consultation with the High Court which is mandated by Section 24(1) of the Code of Criminal Procedure in appointing Public Prosecutor. Consultation is not an empty formality. Efficient and proper criminal prosecution being the main object, the High Court must have a role in appointing Prosecuting Officers which received statutory confirmation in the Code of Criminal Procedure. Therefore, the Director General of Prosecution appointed by the Government without consultation with the High Court cannot be vested with the power of superintendence over the ‘Prosecuting officers’ as the Director General of Prosecution is not answerable to legality.
In State of Bihar v. Bal Mukund Sah8 the Supreme Court has held that consultation with the High Court as envisaged by Article 234 is for fructifying the constitutional mandate of preserving the independence of the judiciary, which is its basic structure. Applying the ratio of the above decision of the Apex Court, the consultation with the High Court as mandated to do by Section 24 of the Code in making appointment of the Public Prosecutor is for preserving the independence of criminal prosecution. It is a statutory command in making appointment of Public Prosecutor and appointing Director General of Prosecution as a supervisory body bypassing the High Court is a classic case of power abuse becoming a growing syndrome.
The Director General of Prosecution bears the insignia of the upper status in the ‘Public Prosecutors’ hierarchy as of the investiture of Director General of Prosecution as the supervisory body. The Public Prosecutors would be in a real predicament in conducting prosecution because they would be caught in a dilemma between the bossy Director General of Prosecution and legal obligation to follow the Code of Criminal Procedure which is non-negotiable. The State must be obedient to the will of the Parliament as expressed in the Code of Criminal Procedure and must not defy the Union law. Exposing the Director General of Prosecution as a law charlatan is an instance of elaborate fraud on the criminal prosecution to be regulated wholly by the Code of Criminal Procedure.
The Director General of Prosecution has no referent in the Code of Criminal Procedure and as such the Director General of Prosecution cannot be allowed to intervene or involve in Criminal Prosecution exclusively governed by the Code. When Director General of Prosecution is installed in as a kind of superman to supervise the Public Prosecutor, there is every likelihood that it would hamper or hinder the calm, detached and fearless discharge of the duties of the Public Prosecutor in the conduct of the prosecution of cases as enjoined by the Code.
The appointment of Director General of Prosecution is based solely on the decision of the party in power of the State and political bossism cannot normally be ruled out. It is the responsibility of the State to preserve and protect the independence of the Criminal Prosecution without secretly making the system a political instrumentality. The robe of controllerate of Criminal Prosecution wrapped the Director General of Prosecution by the State executive has no legislative sanction and is unjustifiable and undesirable. It must be remedied. The course of justice must not be deflected or interfered with affecting the Criminal Prosecution to be carried out by an independent Public Prosecutor.
The responsibility of criminal prosecution and law enforcement lies on the Public Prosecutor. He is answerable to the law and law alone. The Public Prosecutor is not to take instructions regarding prosecution of any particular case even from the executive Government of which he is a subordinate officer. This position is not a fair-weather or timid assurance. It must be respected. The function of the Public Prosecutor under the Code relates to a public purpose and the Public Prosecutor is entrusted with the responsibility of acting only in the interest of justice in the conduct of criminal prosecution. The Public Prosecutor is a holder of a public office and his powers and discretion in the conduct of criminal prosecution would be functionally successful only if the Public Prosecutor is allowed to perform his statutory duties and functions under the Code independently retaining freedom to exercise his powers as and when he may judge the public interest so to require.
The Director General of Prosecution in exercise of the power of ‘superintendence’ over the duties and functions of Public Prosecutor enjoys such power to give directions to the Public Prosecutors, Additional Public Prosecutors, Deputy Director of Prosecution and Assistant Public Prosecutors in important cases. The power of superintendence comprehends the authority to give directions to perform the duty in a certain manner, to refrain from performing one or other duty, to direct someone to perform the duty as directed. The power of superintendence is unbridled. Such is the sweep of the power of superintendence vested with the Director General of Prosecution over the entire ‘Prosecuting Officers’ under the Code. In State of Bihar v. J.A.C. Saldanha 9 the Supreme Court held:
“16. ........The word ‘superintendence’ would imply administrative control enabling the authority enjoying such power to give directions to the subordinate to discharge its administrative duties and functions in the manner indicated in the order. It is only when a subordinate authority subject to superintendence is discharging duties and functions of a quasi-judicial character under a statute that the inhibition of abdication of such power can be invoked. But where the subordinate subject to such power of superintendence of the superior is discharging administrative and executive functions, obligations and duties, the power of superintendence would comprehend the authority to give directions to perform the duty in a certain manner, to refrain from performing one or the other duty, to direct some one else to perform the duty and no inhibition or limitation can be read in this power unless the section conferring such power prescribes one. ....Superintendence connotes supervision which implies a hierarchy, viz., supervisor and the one supervised. It would, therefore, mean keeping a check, watch over the work of another who may be a subordinate in a hierarchy of authority. It would also comprehend that supervision is not merely a negative thing so as to keep a watch but it would imply giving of direction, guidance, even instructions, and in a given case and in a given situation asking one who is being supervised to forebear from doing a thing and directing some one else to do that thing. ......”
Obviously, the Director General of Prosecution has no statutory power to control the exercise of the statutory powers of the Public Prosecutors. On the other hand, the Public Prosecutors are vested with statutory powers and are obligated to exercise free and unencumbered discretion as to the exercise of their powers conferred upon them under the Code. Fettering freedom of Public Prosecutors as to the exercise of powers by subjecting them to the superintendence of the Director General of Prosecution who is not a statutory authority and whose very appointment is void under Article 254(1) of the Constitution has the tendency to impair the prosecution functionalism to a great extent. It would offend the basic features of democracy founded on transparency coupled with accountability.
It is not without significance that the State has virtually invested the Director General of Prosecution with super powerhouse insignia in the criminal prosecution. The label of Director General of Prosecution is the ubiquitous clothing of upper level in the hierarchy of Public Prosecutors. The Director General of Prosecution installed in as a highest authority may wield political or extraneous clout in the discharge of statutory duties of Public Prosecutors which would run counter to the statutory creed of independence of criminal prosecution. It would likely to lead to a mischievous danger of an unfree and coerced Public Prosecutors conducting Criminal Prosecution endangering the Criminal Justice system.
On the pretext of ensuring greater control over the workings of the Assistant Public Prosecutors and increase their accountability thereby leading to greater conviction in criminal cases, the Government ordered the formation of a Directorate of Prosecution headed by the Director General of Prosecution as per G.O.(MS) No.224/2000/Home dated 13.10.2000. The formation of Directorate of Prosecution headed by Director General of Prosecution prior to the insertion of Section 25A in the Code of Criminal Procedure as per the Code of Civil Procedure (Amendment) Act, 2005 is a substantial transgression by the State executive on the field occupied by the law of Parliament. The formation of the Directorate of Prosecution prior to the Amendment Act, 2005 is repugnant to the relevant provisions in the Code of Criminal Procedure and hence is ultra vires and void under
Article 254(1) of the Constitution.
Section 25A of the Amendment Act, 2005 enables the State Government to establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Director of Prosecution as it thinks fit. Noticeably, the post of Director General of Prosecution is not a post or office in the Directorate of Prosecution hierarchy. Formation of directorate of prosecution headed by Director General of Prosecution can be brought out only by an amendment of the Code of Criminal Procedure by the Parliament. Directorate of Prosecution headed by the Director General of Prosecution is outside the scheme of Directorate of Prosecution under Section 25A of the Code of Criminal Procedure.
In Maneka Gandhi v. Union of India10 the Supreme Court has held that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be ‘reasonable’, fair and just. The protection of Article 21 cannot at all be whittled away by Executive excesses by conscious departure from and disobeying the provisions in the Union law of Code of Criminal Procedure.
This article is neither a pejorative reflection on the overweening action of the State executive in placing the Director General of Prosecution as a higher-up in the criminal prosecution of the State nor a teasing tinkering with the practice followed by the Government for several years. It is a settled legal position that if an illegality and irregularity has been committed in the past, the same cannot be allowed to be perpetuated and multiplying the same irregularity and illegality would render the conduct of criminal prosecution dysfunctional. Such irregularity and illegality cannot be compounded by permitting continuance of the same illegitimate and ultra vires acts on the part of the Government. Accountability cannot be allowed to take a long holiday. Therefore, a new functional nexus must remove the undesirable influences in the conduct of the Criminal Prosecution and the credibility, integrity and impartiality in the criminal prosecution must be ensured to bear true faith and allegiance to the Constitution. This work is a perspective setter to serve as an alert signal. Silence is not an option when things are ill done. A renaissance in law-ways is a desideratum. Law and society can make a headway only if socio-legal research stimulates and feeds change.
Let me conclude with a sober quote from the judgement of the House of Lords in Ambard v. Attorney-General for Trinidad and Tobago.11 The great Lord Atkin said:
“The path of criticism is a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
Foot Notes:
1. R.K.Sabhaarwal v. State of Punjab (1995 (1) KLT OnLine 949 (SC) = (1995) 2 SCC 745).
2. Aboobaker v. M.Ratna Singh (1992 (1) KLT 41).
3. Moti Lal v. Uttar Pradesh (1950 KLT OnLine 819 (All.) (L.B.) = AIR 1951 All. 257).
4. “Treatise on the Conflict of Laws” (1935), p.649.
5. See “Status in the Common Law”, p.2.
6. M.T.Khan v. Government of Andhra Pradesh(2004 (1) KLT OnLine 1299 (SC) = (2004) 2 SCC 267).
7. State of Punjab v. Jagdip Singh (1964 KLT OnLine 1229 (SC) = AIR 1964 SC 521).
8. State of Bihar v. Bal Mukund Sah (2000 (1) KLT OnLine 947 (SC) = (2000) 4 SCC 640).
9. State of Bihar v. J.A.C. Saldanha (1980 KLT OnLine 1031 (SC) = (1980) 1 SCC 554).
10. Maneka Gandhi v. Union of India (1978 KLT OnLine 1001 (SC) =(1978) 1 SCC 248 = AIR 1978 SC 597.
11. Delivering the judgment of the House of Lords in Ambard v. Attorney-General for Trinidad and Tobago(1936) AC 322, 335.
Panchayati Raj Institutions and Anti Defection Law
By S. Sanal Kumar, Advocate, HC
25/06/2022
Panchayati Raj Institutions and Anti Defection Law
(By S. Sanal Kumar, Advocate, High Court of Kerala)
The Gandhian concept of self-sufficient autonomous entity with full power of self-determination is generally understood as Grama Swaraj in the political and economic perspective of Indian planning. The 73rd Constitution Amendment conferring constitutional status to Panchayati raj institutions and the enactments made pursuant thereto by State Governments heralded a new era and euphoria in the path for self-determination of rural India. The body of five persons deciding the affairs of village prevalent in ancient India, Pakistan, Nepal, Bengladesh, which later came to be known as Panchayat, is the embryo from which the Panchayati raj system evolved in its present form. The Balwant Rai Mehtha Committee’s report, post independence, laid foundational principles for Panchayati raj institutions for its later legislative recognition in States. By 1958, various States made legislations for constitution of Panchayats in their respective territorial domains. But the much awaited constitutional recognition came only in 1993 with the 73rd Constitution Amendment.
Grama Swaraj and Self-Determination
What is envisaged under Article 243B of the Constitution as a Gram Sabha is ‘a body constituting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level’. To ensure participatory role for each elector in the affairs of the Village, Article 243A of the Constitution confers authority on Gram Sabha ‘such powers and perform such functions at the village level as the Legislature of a State may, by law, provide’. When law is made by the Kerala Legislature taking guidance from Article 243A, the concept of Grama Sabha was narrowed down to a micro level entity making ‘ward’ of a Panchayat as ‘village’ . The constituencies of Panchayat, ‘ward’, is specified as a village for the purpose of Article 243(g).For each such village, a Grama Sabha is contemplated under S.3 of the Kerala Panchayat Raj Act 1994. The representative returned from the ward shall be convener of the respective Grama Sabha and shall exercise the powers enumerated under S.3A of the Kerala Panchayat Raj Act, 1994. From formulating schemes, deciding priorities of projects, selection of beneficiaries of schemes and to ensuring door to door compliance, the Grama Sabha under the Act seems perfectly resonating what is contemplated by 73rd Constitution amendment. But in practice, the Kerala experiment of self determination of Grama Sabha remains only as a pipedream, not yet come into existence as a reality. Party politics in Kerala plays spoil sport in giving shape to the concept of Grama Sabha as a self-rule micro governmental entity. The Kerala Local Authorities (Prohibition of Defection) Act 1999, passed by the Kerala Legislature, legitimises party politics in Panchayati raj institutions by enabling political masters to hold in leash Grama Sabhas to take control of its affairs.
Kerala Anti Defection Act and its Implications
Almost on the same line with 10th Schedule to the Constitution, Kerala Local Authorities (Prohibition of Defection Act) 1999 (for brevity referred as Defection Act) disqualifies a representative elected on a party symbol when he votes with the other side or abstains from panchayat meeting to the disadvantage of his party in defiance of whip or voluntarily gives up his membership in the political party. Not only a political party but even a coalition of political parties has been recognized as a coherent unit in the scheme of defection under the Defection Act, even leaving an independent member of the coalition to entail disqualification if he defies the whip of alliance leader. Even the 10th Schedule to the Constitution, providing for disqualification of members of State and Union Legislature does not recognize coalition politics; restricts its operation only to members of ‘legislature party’ of a political party. The weapon of whip in the hands of political masters, alien to the concept of Panchayat Raj – self rule and self-determination- is handy for them to control the administration of Panchayat from outside. The decentralization of power aimed through Grama Swaraj turns to be centralized in the hands of political party leaders in a circutous way thanks to the Kerala Defection Act. The soul and blood of self-rule is snatched away by the supplementary legislation, styled as Anti-Defection Act. Postulate a situation where the majority of the Grama Sabhas (the electorate of the Village wards) by resolutions decide to remove the President of a Panchayat; yet the political masters manning the scheme of things from outside can defeat the will of Grama Sabhas with their directions to party representatives to defeat the move. The predominance and primacy of Grama Sabha as the platform of grass root level democracy thus loses its significance as the ultimate control of affairs happens to be in the hands of unelected political dons leisurely sitting away from the seat of Panchayat holding firmly the tether; a deleterious fall out of defection law on democracy !!! No accountability but complete aggrandizement of power with its capricious exercise following.
Legal sanction for party politics
Party politics is recognized in India in elections to State Legislatures and Union Legislature. The delimitation of constituencies and conduct of elections are primarily dealt with in two cognate statutes, Representation of People Act 1950 and Representation of People Act 1951 (for brevity referred as R.P. Act 1950 and R.P.Act 1951). “The Superin-tendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and elections to the officers of President and Vice President held under the Constitution shall be vested in a Commission, Election Commission”, so says Article 324 of the Constitution. Representation of People Act 1951, under Section 29A, enables any association or body of individual citizens of India calling itself a political party to apply to Election Commission for registration as a political party for availing benefits of provisions of the R.P.Act 1951. A registered political party, depending up on the percentage of votes it gathers in a general election, get status of a recognized political party and can have reservation of election symbols alloted to its exclusivity under the Election Symbols (Reservation and Allotment) Order 1968. The recognition of play of political parties in elections to Legislatures and Parliament goes a further step ahead when S.52 of R.P. Act providing for countermanding of elections on the death of recognized political parties is glanced through. The death of an independent candidate is eventless in the run up to the election, but not otherwise of recognized political parties. The proactive role of political parties in elections to Legislatures, where serious task of law making for broader and diverse ethnic and geographical spectrum done, is statutorily recognized with a rationale. Electoral victory of a political party is an imprimatur given by the electorate to the election manifesto of a political party. Manifesto contains the policies and programmes offered to the people by a political party, which in most cases later gets translated in to legislations when the Party comes to power. Political logic supports the recognition of party politics in law making bodies where preference of the electorate to political manifestos of parties has a predominant role in deciding the future legislative transactions. But self-rule or self determination under Grama Swaraj does not need a common manifesto applicable to the entire State, District or Panchayat as the very concept itself is micro unit management and prioritization of projects and its implementation. The requirements and needs of each micro level unit varies from place to place. The full say of denizens of each unit in unison cutting across party lines and vested formulations, is the very idea of Grama Swaraj in its essence.
No Legislative Recognition for Party Politics in Local Bodies
Probably Kerala may be the only State where elections to local bodies are fought on party symbols. In other States, the allotment of Party symbols is not usually followed though candidates are supported by political parties and parties assign to themselves the victory card often. Kerala Panchayat Raj 1994, does not in its content and contour contemplate elections to the local bodies on party plank and its symbols. A State Election Commission is entrusted with the task of superintendence, direction and control of preparation of electoral rolls and conduct of election to local bodies under 243K and 243 ZA of the Constitution of India respectively for Panchayats and Municipalities. But no registration of body or association of individual citizen as a political party with State Election Commission as authority is envisioned in the Panchayat or Nagarpalika legislations which followed 73rd Constitution Amendment, to be likened to S.29A of R.P.Act 1951. Clear legislative indication of abnegation of party politics is writ large in the conscious omission of registration of political parties under the Panchayat Raj and Municipality Act. No subordinate legislation on symbol allotment is specifically made for that purpose except Rule 12 of the Panchayat (Conduct of Election) Rules. Section 68 of the Panchayat Raj Act, 1994 providing for countermanding of election on the death of a candidate refer only to death of ‘candidate’ uniformly and not of ‘recognized political party’. The foundational Acts, Panchayat Raj Act and Municipality Act, do not refer to political parties or recognize in its scheme its play and role in local administration. This feature of these Statutes is in sharp contradiction to the fitment of things under the R.P. Act 1951, where political parties are registered and recognized, with a slew of benefits and obligations tagged on.
The Fundamental Flaws in Kerala Local Authorities (Prohibition of Defection Act), 1999
The Anti defection Act of Kerala is a mala fide legislation (though jurisprudentially mala fides cannot be attributed to a legislation) to set at naught the very concept of decentralization of power. Party bosses get elbow room for playing in the affairs of Panchayat administration by their command of control from outside. It is rather difficult for a lawman to liken the entity ‘political party’ referred to in Anti defection Act of Kerala to the political party mentioned in S.29A of R.P. Act, 1951, where the turf of fight is to Legislatures and Parliament. The Defection Act of Kerala defines a ‘political party as one registered under S.29 of the Representation of People Act 1951’;a legislation by reference. Allotment of symbols of recognized political parties is done by Election Commission under Symbol Allotment Order 1969; in turn sourcing power of subordinate legislation to Article 324 of the Constitution. State Election Commission for local body elections has no statutory authority conferred under the foundational legislations, Panchayat Raj Act, Municipality Act and Kerala Local Authorities (Prohibition of Defection) Act for recognition of political parties and allotment and reservation of symbols. Rule 12 in the subordinate legislation, Kerala Panchayat Raj (Conduct of Election) Rules 1995, providing for allotment of symbols of registered political parties have no source of authority or recognition under the parent legislation. The long and short of these discourse is that party politics was consciously eschewed in Grama Swaraj by its founding philosophers which eventually found its acceptance in the original legislations following 73rd Constitution Amendment. But unfortunately, party politics now finds its sneaky way through Defection Laws, making power coiling back from grass roots to party head quarters.
Decentralization of power has its banes and boons alike. Panchayati raj institutions, conferred with immense powers, particularly in relation to licensing and permit regime is a mine field for corrupt politicians. Heavy flow of development and welfare schemes with tied funds is another area of attraction where cupid power brokers are preying upon. The control of Panchayati raj institutions thus become an area of interest for external forces, be it financial or political cohorts. Political leaders fall easy prey to the devious designs of these elements. In the area of self determination and self rule, political boss intervenes with his dictations to deflect the course of administration to his advantage or to his party. Unrelenting representatives are unseated from heads of bodies with the convenient use of whip by political parties; the concept of self-determination turns in to self decimation. Practically the Self Rule Mechanism given by 73rd Constitution Amendment is taken away by the mischievous operational clauses of Defection laws. For a member of local body, he gets elected mostly on his personal acceptances. There is no election manifesto to which he must behold to till the end of his term. Tenure security of Heads of Local self Government is not a concern for its march ahead. Flexibility in one’s stance depending upon the local needs and calls is expected from a member of a local body. A people’s arbiter and negotiator in the pursuit of self rule, untied in any way from any external agency, is the role assigned to a representative in a Panchayat Raj Institution for enabling it to work as institutions of local self government. Independent representative is the theme of Grama Swaraj; a dependant stooge is its abhorrent anathema.
Defection laws are antithesis to democracy. In matured democracies laws tying elected representatives to their party are unknown. Elected representatives are free to do their parliamentary works in sync with will of the constituency they represent. Though ours is the largest democracy, but still in its infancy in terms of political maturity. Money and rapacity for political ascendancy takes precedence to broader political interest and national concerns, where horse trading takes the role in deciding fate of Governments. Till Indian democracy become value based, defection laws are inevitable evils to stabilize our National and Federal Governments. But for the micro self governments, no defection law needed to protect Heads of Units as its tenure security has no role to play in the march ahead of local self governments. It is the Gramasabha that counts at grass root level democracy and not its Head. Let the collective drive of rural India cutting political lines take the nation to newer heights of decentralized development.