Legal Aid in India – The Evolution

(By P.B. Krishnan, Advocate, High Court of Kerala)

Legal aid has come to be established as an essential part of the administration of justice in India. Equal access to justice, as a concept, has been laid on strong constitutional foundations and has become ingrained in the law of the land. The right to receive legal aid has been elevated to the status of a human right, an inalienable and non-derogable right of the needy. There is an enforceable right to receive legal aid and an institutional mechanism conceived by statute to regulate it.

Recently, the Country celebrated the 25^th National Legal Services Day to commemorate the National Legal Services Authorities Act, 1987 which was enforced on November 9, 1995. How did this transformation of the justice delivery system occur? What were the impediments in establishing this regime and how were the hurdles crossed? The answer to these questions involves a study of evolution of the legal aid movement in India and an assessment of the role of each of the organs of the State in establishing and sustaining it.

The pre-independence era contains only fleeting references to the concept of legal aid. The British perhaps realized that legal aid would empower the subjects to question them and compel them to be accountable to the letter and spirit of the law. They were obviously not keen on their authority being effectively challenged every time they wielded the vast powers that they had conferred on themselves. An institutional machinery to provide equal access to justice was absent. The Bombay Legal Aid Society, formed in 1924, was a stray instance of an organization offering legal aid. The procedural laws were, at best, ambiguous on the subject. The result was that a large number of persons were cast and confined in prison. It mattered little if they were political prisoners or debtors or persons accused of crimes. If they were indigent, the law and the system did little to help them to establish their legal rights. In an adversarial litigation oriented system, the lack of resources in a party to obtain effective legal advice and representation was mostly fatal to his cause.

A reference to the procedural laws of that era throws light on the framework within which the courts and the administrators functioned. The Code of Criminal Procedure, 1861 and the later Codes of 1872 and 1882, conferred a right to counsel on the accused in a criminal proceeding. The Code of Criminal Procedure, 1898 provided that every accused had right to be defended by a pleader ¹. The amendment to that provision, introduced
in 1923 ², extended that right to any person against whom proceedings were initiated in a Criminal Court. The Courts looked at the procedural prescription of the Code of Criminal Procedure as a right to be defended by a pleader. A plain reading of the provision did not seem to create any substantive right in an indigent accused. If the accused was indigent the Courts did not read the provision as one casting a duty on the State to provide legal representation at State expense. The violation of the legal right conferred by the Code was inferred only in cases where the State put obstacles in the path of an accused, preventing him from engaging a counsel of his choice ³. The violation of Section 340 of the Code of Criminal Procedure, 1898, became a technical argument, raised at the appellate or revisional stages of a case to claim an acquittal, rather than a substantive provision conferring rights on the accused at or before the trial of his case.

An early sign of judicial activism in the matter of legal aid was visible in a case decided by the Bombay High Court in 1926.⁴ One of the issues raised in that case related to the right of an accused to have access to his legal adviser. The court held that a prisoner had a right not only to be represented by a counsel of his choice in Court but also at earlier stages when he wanted legal advice. The concurring judgement delivered in the case contains a remarkable statement of law that the very State which undertakes the prosecution of a prisoner must also provide him, if poor, with legal assistance. There is, however, little evidence of this ‘stepping out of the shackles of the procedural laws’ being put to use to further the cause of indigent accused in the trial courts. The observation remained a moral lament of the criminal justice system of that era.

The right to seek legal advice and representation was extended to preventive detention matters and quasi judicial proceedings ⁵, causes to which the mandate of Section 340 of the Criminal Procedure Code, 1898, did not strictly apply. In civil litigation, the law enabled an indigent litigant to approach a Court, to establish his rights, without paying court fee.⁶ There was, however, no right to access counsel at State expense in the conduct of a civil case. The concession in the matter of court fee was quite inadequate to ensure that the cause was decided correctly. The Constitution of India guarantees to the citizens a right to equality ⁷, a right to life and personal liberty ⁸, and a right to approach the constitutional courts for enforcement of the fundamental rights.⁹ These fundamental rights conferred on the citizens did not bring about any immediate change in the interpretation placed by the courts on procedural laws like S. 340 of the Criminal Procedure Code, 1898.¹⁰

The Law Commission in its 14^th report submitted in 1958, thought of making justice less expensive to the litigant. The Law Commission recognized that legal aid is not a “minor problem of procedural law but a question of fundamental character ”. The concept of “equality in opportunity to seek justice” was noticed to conclude that legal aid is an obligation of the State. In 1972 an expert committee on legal aid was appointed to examine the various issues relating to legal advice, legal aid and formulation of suitable schemes to aid the weaker sections of society. The expert committee submitted a report titled ‘Processual justice to the people’ in 1973. The report recognized the link between Crime and Poverty and identified various special groups that were in urgent need of legal aid like agricultural labourers, industrial workers, women, children, Harijans, minorities etc.,…...
The report wanted legal aid to be available right from the stage of interrogation of the arrested person. The expert committee recognized and elaborated on the problem in great detail but did not suggest the institutional frame work or scheme to make effective legal aid a reality. In spite of the views of the expert committee aforesaid and the recommendations made in the 48^th report of the Law Commission submitted in 1972, the Code of Criminal Procedure, 1973¹¹ only provided for a right to a pleader at the trial of a case by the Court of Sessions at State expense, if the accused did not have sufficient means. The provision did not imbibe the letter and spirit of the recommendation aforesaid. The rules made by the various High Courts under Section 304(2) of the Code of Criminal Procedure, 1973, also did not go far enough.

The amendment to the Constitution, introducing Article 39A ¹², made providing legal aid a directive principle of State policy. The Judicature Committee appointed in 1976 went into the specific issue of ‘establishing and operating comprehensive and a dynamic legal service programme …. including formulation of scheme(s) for legal services’. The Judicature Committee wanted an institutional set up for the delivery of legal services not as a department of the Government but as an autonomous institution. The report submitted in 1977 was revolutionary but not much was done to implement it. The growing recognition of the need to make legal aid available to all those who needed it was slowly ingrained in the mind of the administrators and the judiciary. The studies, reports and constitutional amendment introducing Article 39A were all well intentioned. Without an institutional mechanism and a legally enforceable right to receive legal aid there was no real progress as far as the citizenry was concerned. Some high constitutional authority had to step in to make meaningful and practically beneficial progress in the matter. This was a period of time when the Supreme Court of India had started to look at creative interpretations of the constitutional safeguards by reading due process into the statutory provisions and compelling a fair and reasonable procedure to be followed while enforcing the law. Maneka Gandhi v. Union of India¹³ fundamentally altered the approach of the courts to the interpretation of Articles 14, 19 and 21 of the Constitution and the manner in which the Indian
legal system treated issues relating to life, liberty and procedure.

This approach of the Court soon permeated the issue of legal aid as well. In MH. Hoskot v. State of Maharashtra¹⁴the Supreme Court declared that the right to legal representation at State expense is a fundamental right. The directive principle of State policy enshrined in Article 39A of the Constitution was used as an interpretative tool to reach this conclusion. The right to life, liberty and equality enshrined in the Constitution was decisively extended to make legal aid an enforceable fundamental right. In later decisions the Court proceeded to hold that legal aid is a matter of State duty and not Governmental charity¹⁵. The approach resembles that adopted in Powell v. Alabama¹⁶ where the United States Supreme Court held that the Court must provide counsel to defendants in Capital trials, i.e., trials where capital punishment is a possible sentence, if the defendants were too poor to afford their own counsel. This principle was later extended by the US Supreme Court to all federal trials in Johnson v. Zerbst¹⁷ and to all State courts in Gideon v. Wain Wright.¹⁸

 A similar process, of expanding the scope of the declaration originally made was done by the Indian Supreme Court also through a series of path breaking judgements. Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar¹⁹ dealt with the case of a large number of under trial prisoners languishing without trial in the jails of Bihar. While underscoring the need to ensure a speedy trial of the accused the court also held that legal aid is the “delivery system of social justice” and that failure to provide free legal services could vitiate the trial and violate Article 21 of the Constitution. In the case of Khathri & Ors. v. State of Bihar & Ors.²⁰the Supreme Court held that the “State is constitutionally bound to provide such aid not only at the stage of trial but also when they (accused) are first produced before the Magistrate or remanded from time to time and that such right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it.” The other remarkable statement of law found in the later directions issued in this case is the declaration that “the right to free legal services is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 that the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case, and the needs of justice so require.” In partial recognition of the reports and judicial pronouncements aforesaid the Committee for implementation of Legal Aid Schemes, 1980 was established.

The same positive approach to legal aid was shown by the Supreme Court while applying the provisions of civil law. Order XXXIII of the Code of Civil Procedure, 1908 enabled an indigent to seek relief in a Court without payment of court fee. The Supreme Court extended this benefit to auto accident claims holding that “the poor should not be priced out of the justice market by insistence on court fee….²¹”: The extension of the beneficial provisions of the Civil Procedure Code to Tribunals, which only have the trappings of a Court and are not courts stricto senso, gave relief to a large number of litigants. The decision was arrived at by enforcing the equality clause and directive principle to provide legal aid and reading the constitutional mandate into the procedural law. The concept of reading the statutory provisions in such a manner as to subserve the constitutional mandates became firmly established in the legal system.

The right of a detenue to consult a legal adviser of his choice for any purpose was held to be not limited to criminal proceedings but also for securing release from preventive detention or for prosecuting any civil or criminal proceedings²². The Court also had occasion to punish a lawyer found guilty of misconduct to engage in legal aid work for one year in lieu of the punishments prescribed by the Advocate’s Act, 1961²³. The question regarding the institutional mechanism for making legal aid available to the deserving and the advisability of leaving legal aid matters to the State and administrators was considered by the Supreme Court in the case of Centre for Legal Research and Anr. v. State of Kerala.²⁴ The Court wanted public participation in the legal aid programme. The reasoning of the court was that since legal aid is the entitlement of the people, those in need of legal assistance should not be looked upon as mere beneficiaries of the legal aid programme. They should be regarded as participants. Sheela Barse v. State of Maharashtra ²⁵reiterated the view of the Supreme Court that free legal assistance at State cost is a fundamental right of a person accused of an offence as it may involve jeopardy to his life or personal liberty. The Court, however, clarified that free legal assistance may not be provided in certain categories of cases, like economic offences, offences under laws prohibiting prostitution, child abuse, etc. The Court held that the trial of an accused who went unrepresented by counsel and was consequently convicted, is vitiated on account of a “fatal constitutional infirmity”. In A.K.Roy v. Union of India ²⁶ the Supreme Court, however, felt inhibited by the express language of Article 22 of the Constitution in granting the right of legal representation before the advisory board in a preventive detention matter.

InSukdas v. Union Territory of Arunachal Pradesh ²⁷  the Supreme Court was confronted with a case where the trial was conducted by a poor accused in person. The High Court proceeded on the footing that though the accused was entitled to free legal assistance he had not sought such legal assistance and therefore the trial was not vitiated. The Supreme Court reversed that decision stating that “It would….. make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services”. Over a period of time steady progress was made by the Supreme Court in imposing and enforcing an obligation on the State to provide legal aid on the basis that public interest is the strategic arm of legal aid.²⁸  Moral outrage on the state of affairs led to an enforceable right to receive free legal aid.

The Legal Services Authorities Act (Act 39 of 1987) was enacted in 1987 to replace the Committee for the implementation of legal aid schemes (CILAS), 1980. The Act remained still born in as much as the institutional machinery contemplated by the Statute was not constituted. This was noticed by the Supreme Court while dealing with a Public Interest Litigation concerning convicts in jail. The Supreme Court directed²⁹ effective Implementation of the Act and under pain of contempt the directions were implemented. The long gap of 8 years between the legislation and the extension of the provisions of the Act (except Chapter III) on 09.11.1995 to all States makes it abundantly clear that States are not very enthusiastic about making legal aid a reality. Administrative lethargy in the teeth of constitutional and statutory obligations is evidence of the lack of priority for legal aid matters in the mind of the administrators.

The framing of laws and schemes, without effective implementation is, hardly sufficient. The legal aid regime in India has firm constitutional and statutory foundations. But, the process of making legal aid available to all those who need it in a meaningful manner is only taking shape. Progress is slow ³⁰. The transformation required by the Constitutional mandate and the decisions of the Supreme Court is still far away. May be, there is cause for the Court to step in again to speed up the process and to ensure that its vision is translated into reality. The Court has continued its pro-active role in the matter of interpretation of the provisions of the Legal Services Authorities Act, 1987 so as to make the institutional machinery effective.³¹

An important interpretative or persuasive aid has become available on account of the march of International law in the matter of legal aid. The Universal Declaration of Human Rights provides that every one has the right to life, liberty and security of person³², that no one shall be subject to arbitrary arrest, detention, or exile ³³ and that every one charged with a penal offence has the right to be presumed innocent until proven guilty.³⁴ The United Nations International Covenant on civil, and political rights (ICCPR) not only protects the inherent right to life ³⁵ but also provides that an accused should have legal assistance provided for him “in any case where the interests of justice so require” ³⁶. The Convention on International Access to Justice assures the nationals of contracting States and persons habitually resident in any contracting State to legal aid for proceedings in civil and commercial matters in each of the contracting States ³⁷. The obligation of a nation State to international law has persuasive value for enforcing a right to fair trial and legal aid.
A case in point is Dietrich v. The Queen³⁸ decided by the High Court of Australia, which relied on Article 14(3) of the U.N.International Covenant on Civil and Political Right, to which Australia is a signatory.

The decisions of the Supreme Court of India in the matter of legal aid have accelerated the process of securing equal access to justice to the citizens. The court recognized the link between law and poverty. The inequalities that exist between the haves and the have-nots in an adversarial system of litigation was sought to be bridged using the mechanism of legal aid³⁹. In the course of giving content and meaning to the right to life and equality enshrined in the Constitution the Court held that access to justice is basic to Human Rights and the Rule of law. The Supreme Court could cast an obligation on all the organs of the state to fulfill a constitutional mandate to ensure the protection of the Constitutional and legal rights of the poor, the underprivileged and the neglected. In short, the court fashioned remedies for the indigent and deserving citizens by enforcing a legal aid mechanism as part of the law of the land. The Constitutional Courts have a growing role in ensuring equal access to justice and to transform the issue of legal aid to one of constitutional dimensions. This is a task that the Indian Supreme Court has achieved by innovative use of Public Interest litigation and the legal aid mechanism that is in place today is beholden to this organ of the State.

Foot Notes:

1.   Section 340 of the Code of Criminal Procedure, 1898 reads: Every person accused before any Criminal Court may of right be defended by a pleader.

2.   Section 340 of the Code of Criminal Procedure, 1898 as amended in 1923 reads: Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.

3.   Mannargan v. Emperor (AIR 1925 Mad.1153).

4.   Re. Llewelyn Evans (AIR 1926 Bom.551).

5.   P.K.Tare v. Emperor (AIR 1943 Nag.26).

6.   Order XXXIII of the Code of Civil Procedure, 1908.

7.   Article 14 - Equality before law.

8.   Article 21- Protection of life and personal liberty

9.   Article 32- Right to Constitutional Remedies

10.  Janardhan Reddy v. State of Hyderabad (1951 KLT OnLine 819 (SC) = AIR 1951 SC 217); Also see State of Punjab v. Ajaib Singh, (1953 KLT OnLine 924 (SC) = 1953 SCR 254).

11. Section 304 of the Code of Criminal Procedure, 1973 - Legal aid to accused at State expense in certain cases

12. Article 39A of the Constitution of India inserted by the Constitution (42^nd Amendment) Act, 1976.

13. Maneka Gandhi v. Union of India (1978 KLT OnLine 1001 (SC) = (1978) 1 SCC 248); Also see Francis Coralie Mullin v. Administrator of Union Territory of Delhi (1981 KLT OnLine 1010 (SC) = (1981) 1 SCC 608); and Bandhua Mukthi Morcha v. Union of India,
1984 KLT OnLine 1212 (SC) = (1984) 3 SCC 161) where the Supreme Court has held that the right to life guaranteed by Article 21 includes the right to live with human dignity, free from exploitation.

14. 1978 KLT OnLine 1052 (SC) = (1978) 3 SCC 544.

15.  Also see in this context Sunil Batra (I) v. Delhi Administration (1978 KLT OnLine 1013 (SC) = (1978) 4 SCC 494).

16.  287 US 45 (1932).

17.  304 US 458 (1938).

18.  372 US 335 (1963).

19.  1979 KLT OnLine 1045 (SC) = (1980) 1 SCC 81, the later directions issued in this case are reported in (1980) 1 SCC 91, 93, 98, and 108.

20.  1981 KLT OnLine 1025 (SC) = (1981) 1 SCC 623, the later directions issued in this case are reported in (1981) 1 SCC 627 & 635.

21.  State of Haryana v. Darshana Devi, (1979 KLT 269 (SC) = AIR 1979 SC 855)

22.  Francis Coralie Mullin v. Administrator of Union Territory of Delhi, (1981 KLT OnLine 1010 (SC) = (1981) 1 SCC 608) (supra).

23.  V.C. Rangadurai v. D. Gopalan & Ors. (1979 KLT OnLine 1081 (SC) = (1979) 1 SCC 308); where the Court preferred to impose corrective instead of punitive punishment.

24   1986 KLT OnLine 1451 (SC) = (1986) 2 SCC 706.

25   1983 KLT OnLine 1224 (SC) = (1983) 2 SCC 96, 101 Also see Sheela Barse (II) v. Union of India (1986 KLT OnLine 1433 (SC) = (1986) 3 SCC 632), Sheela Barse v. Union of India (1993) 4 SCC 204, Sheela Barse v. Union of India (1995) 5 SCC 654.

26   1982 KLT OnLine 1009 (SC) = (1982) 1 SCC 271 – “We must therefore hold, regretfully though, that the detenue has no right to appear through a legal practitioner in the proceedings before the advisory board”. This lacunae has possibly been rectified by Section 12(g) of the Legal Services Authorities Act, 1987, which entitles any person in ‘custody’ to legal aid.

27.  1986 KLT OnLine 1452 (SC) = (1986) 2 SCC 401. Also see Kishore Chand v. State of Himachal Pradesh (1990 (2) KLT OnLine 1128 (SC) = (1991) 1 SCC 286); where the
Supreme Court frowned upon the appointment of young and inexperienced counsel to
conduct cases as part of the legal aid programme. On the appointment of Amicus Curaie see Ram Deo Chauhan v. State of Assam (2000 (3) KLT SN 19 (C.No. 21) SC =
(2000) 7 SCC 455) and Hussain v. State of Kerala (2000 (3) KLT 805 (SC) = (2000) 8 SCC 129.

28   Sheela Barse (II) & Ors. v. Union of India & Ors. (1986 KLT OnLine 1433 (SC) =
(1986) 3 SCC 632).

29.  See for the steps taken by the Court for implementation of the Act. Supreme Court Legal Aid Committee v. Union of India (1998 (1) KLT OnLine 1155 (SC) = (1998) 5 SCC 762).

30.  See, Law & Justice In An Independent Nation – V.R. Krishna Iyer, The Hindu 21.09.2006, where the learned Judge says “…those and other pathological features make the legal system unapproachable for the common Indian who seeks justice in the Courts and alternatively in the streets. There is little native flavour in the legal praxis except the costly curial chaos, and adversary logomachy”.

31.  See, Government of A.P. v. T.Anjaneyalu (2005 (1) KLT OnLine 1142 (SC) = (2005) 9 SCC 312),
P.T. Thomas v. Thomas Job (2005 (3) KLT 1042 (SC) = (2005) 6 SCC 478.

32.  Article 3.

33.  Article 9.

34.  Article 11.

 35.Article 6.

36.  Article 14(3) – A similar protection is afforded by Article 6 of the European Convention on Human Rights.

37.  Article 1.

38.  (1992) 77 CLR 292.

39   S.Muralidhar, Law, Poverty and Legal Aid, Access to Criminal Justice (Lexis Nexis Butterworths) Page 396 – “Where yawning economic and social disabilities segregate the disadvantaged sections into areas of criminality and illegality and further disable them from engaging with the process that enmesh the Criminal Justice System, Legal Aid could provide the buffer that, at least, in part, mitigate the consequences of such inequalities. It remains an essential instrument in the transformation of equal access of justice from a formal to an effective right.”

Applicability of the Prevention of Corruption Act on the
Employees of Co-operative Societies

(By R. Muralidharan (Puducherry Civil Service Officer (Retired),
Director, Catalyst [The Training People])

The initiation of disciplinary proceedings, a very vulnerable and unenviable task, calls for strict norms and in each case not only justice must be done, but it must also seem to have been done. Measures for enforcing discipline are laid down in various books of regulations and instructions from time to time. There is no single book covering the entire gamut of the disciplinary proceedings, covering the code of conduct of employees in various services. Generally the management is found to fight shy of handling disciplinary cases as it involves a considerable amount of labour, application and adherence to rules and procedures on the subject.

The co-operative societies have formulated their own service rules, adopted the philosophy of the Constitution of India. They are known as subsidiary regulations governing the service conditions of the employees. Provisions are made in these regulations to give every reasonable opportunity to the accused employee to prove his innocence, when he is charged with an act of misconduct. In addition to these provisions, the principles of natural justice come to the rescue of the accused employee, wherever required. Drafting of right charge sheet is the start of all. The applicability of law is the foundation for initiation of action. Gone are the days where conduct of disciplinary enquiry was a tame affair. The disciplinary authority, namely the President of the society himself conducted the enquiry and imposed the punishment based on the service regulations. Simple laws and procedures were applicable in such cases. But, of late in disciplinary proceedings laws like Indian Penal Code, Evidence Act, Cyber laws, Information and Technology Act, Income Tax Act and Prevention of Corruption Act are also coming to play.

This article delineates on the applicability of the provisions of the Prevention of Corruption Act (the P.C. Act, for brevity) on the employees of the co-operative societies in the light of various decisions of the Supreme Court and High Courts. An insight is
sine qua nonfor the stakeholders as, at times, inappropriate application of law goes to the root of the case and results in every action void ab initio. A couple of decisions deal with the applicability of the P.C. Act to the office-bearers of the society. This is to explain the evolution of the law on the subject.

 ‘No’ under the P.C. Act, 1947

Whether the Chairman of a co-operative society under the Maharashtra Co-operative Societies Act can be held to be a ‘public servant’ for the purpose of Section 21 of the Indian Penal Code (hereinafter the I.P.C.) and as such, can be proceeded against for offences under Section 5(1) read with Section 5(2) of the P.C. Act, 1947, was an interesting question that came up for decision before the Supreme Court in State of Maharashtra v. Laljit Rajshi Shah, vide (2000 (1) KLT OnLine 951 (SC) = AIR 2000 SC 937: 2000 AIR SCW 698:
2000 Mah.LJ 1494: (2000) 3 SCC 699).

The Division Bench of the Maharashtra High Court, whose decision was under challenge before the Apex Court, has analyzed the provisions of Section 161 of the Maharashtra Co-operative Societies Act as well as Section 21 of the I.P.C. and Section 2
of the P.C. Act, 1947. It came to a conclusion that Section 161 of the Act incorporating Section 21 of the I.P.C.ipso factodoes not enlarge the definition of the term ‘public servant’ in Section 21 of the I.P.C. It further held that the State Legislature which was competent to amend Section 21 of the I.P.C., the subject of criminal law being on the concurrent list and yet that not having been done, the expression ‘public servant’ under Section 161 of the Act would mean those officers to be public servants for the purpose of offences under the
Co-operative Societies Act and Section 21 of the I.P.C. cannot be said to have engrafted into Section 161 of the Act. Accordingly, the High Court held that the accused persons cannot be prosecuted for offences under Section 409 of the I.P.C. and Sections 5(1)(c) and 5(1)(d) of the P.C. Act, though they can be prosecuted for other offences for which cognizance had been taken.

In view of this, the sole question for consideration was as to what would be the effect of provisions of S.161 of Maharashtra Co-operative Societies Act in interpreting the provisions of S.21 of the I.P.C. The Court noted that the I.P.C. and the Maharashtra
Co-operative Societies Act are not statutes in pari materia. The Co-operative Societies Act is a completely self contained statute with own provisions and has created specific offences quite different from the offences in the I.P.C. Even though the legislatures had incorporated the provisions of S.21 of the I.P.C. into Co-operative Societies Act, in order to define ‘public servant’ but those ‘public servants’ cannot be prosecuted for having committed the offence under the I.P.C. A legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act. When a person is ‘deemed to be’ something, the only meaning possible is that whereas he is not in reality that something, the Act of legislature requires him to be treated as if obviously for the purposes of the said Act and not otherwise. Taking these factors into reckoning, the Supreme Court did not see any infirmity with the impugned judgment of the High Court to be interfered with and dismissed the appeal filed by the State.

Enlarged definition held valid

The appellants in M.A.Kichu Devassy etc. v. State of Kerala(AIR 1979 SC 358:
1979 SCR (1) 797 : (1979) 2 SCC 117) were tried and convicted in respect of the offences
inter-aliaunder Section 408, 465, 477 and 477A of the I.P.C., read with Section 5 of the P.C.Act, 1947 by a special Judge. Both the appellants were members of a registered co-operative society. The conviction of the appellants was confirmed by the High Court. Section 21 of the I.P.C. defines a public servant as members of the executive committee or servants of a co-operative society are not embraced by the categories mentioned in
Section 21. Section 2 of the P.C.Act, 1947 adopts definition of public servant from
Section 21 of the I.P.C.

The Kerala Criminal Law Amendment Act, 1962 amended Section 161 of the I.P.C. by adding an Explanation thereto. It provides that for the purpose of the said section and certain other sections a public servant shall denote, besides those who are public servants within the meaning of that section, members of the board of directors or the executive or managing committee and other officer or servant of a co-operative society registered or deemed to be registered under the law relating to co-operative societies for the time being in force. Section 3 of the Kerala Act provides that for the purpose of the P.C. Act, 1947, public servant shall have the meaning assigned to it under the Explanation to Section 161 of the I.P.C. as amended by the Kerala Criminal Law Amendment Act, 1962.

The appellants contended that Section 2 of the Kerala Act brought members of the executive committee or the servants of a registered co-operative society within the ambit of the expression ‘public servant’ only for the purpose of Sections 161 to 165A of the I.P.C. and for no other purpose. Therefore, the use of the enlarged definition cannot be made for the purpose of the P.C. Act. Dismissing the appeals the Court held the terms of Section 2 of the P.C. Act as substituted by Section 3 of the Kerala Act are absolutely clear and unambiguous and when they lay down that expression public servant shall have a particular meaning for the purpose of the Act, that meaning must be given to the expression wherever it occurs in the Act. The Kerala Act carried out amendment of the P.C. Act insofar as the State of Kerala was concerned. The P.C. Act deals not only with offences under Section 161 to 165A of the I.P.C. but also and mainly with those falling under various clauses of sub-sections (1) to (5) of Section 5 of the P.C. Act.

Not finding any merit in the contentions raised on behalf of the appellants, the Court held that the enlarged definition of the expression ‘public servant’ as contained in the Explanation added to Section 161 of the Code by Section 2 of the Kerala Act governs all the provisions of the P.C. Act,1947 that the appellants are public servants within the meaning of that enlarged definition by reason of the language employed in clause (iv) of the Explanation and that, therefore, the offences under clause (c) of sub-section (1) of Section 5 of the P.C. Act 1947 said to have been committed by them are triable exclusively by Special Judges appointed under the 1952 Act.

Affirmative under the P.C. Act, 1988 – Long Chain of Judicial Precedents

• The P.C. Act, 1947 was repealed by the P.C. Act of 1988. The new Act has enlarged the scope of ‘public servant’ and the decision of the Supreme Court in Government of Andhra Pradesh and Ors. v. P.Venku Reddy(2002 (3) KLT OnLine 1025 (SC) = AIR 2002 SC 3346:
(2002) 7 SCC 631: 2002 SCC (Cri.) 1826)has brought out the effect and import between the two Acts. The bone of contention before the Apex Court was whether the respondent/accused, who was working as Supervisor in the District Co-operative Central Bank, Nellore, for alleged offence of accepting bribe was punishable under the provisions of the P.C. Act, 1988. The Supreme Court was sitting on appeal over the decision of the Division Bench of the Andhra Pradesh High Court, which quashed the criminal case pending against the first respondent under the P.C. Act, 1988 on the sole ground that the accused was not a public servant as defined in sub-clause (ix) of clause (c) of Section 2 of the P.C. Act,1988. In the opinion of the High Court the said sub-clause covered only President, Secretary and other office-bearers of a co-operative society.

Section 2 of the 1988 Act, in so far as it relates to this purpose, is extracted below:

“2. Definition.-- In this Act, unless the context otherwise requires-

(a) & (b)                         ***                       ***                         ***

(c)                                                                            ‘public servant’ means:-

(iii)                                                                           any person in the service or pay of a corporation established by or under a
Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956):

(ix) any person who is the President, Secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).

The Court found fault with the conclusion of the High Court in relying on sub-clause (ix) and overlooking sub-clause (c) of Section 2 of 1988 Act for quashing the proceedings on the ground that the respondent/accused was not covered by the definition of ‘public servant’. In the expansive definition of ‘public servant’, elected officer-bearers with President and Secretary of a co-operative society which is engaged in trade among others in banking and receiving or having received any financial aid from the Central or State Government are included although such elected office bearers are not servants in employment of the
co-operative societies. But employees or servants of a co-operative society which is controlled or aided by the Government are covered by sub-clause (iii) of clause (c) of Section 2 of the P.C. Act, 1988.

The Court brought out the improvement made in 1988 Act over its predecessor of 1947 Act. The 1988 Act was brought into force with avowed purpose of effective prevention of bribery and corruption. Under the repealed Act of 1947, the definition of ‘public servant’ was restricted to ‘public servants’ as defined in Section 21 of the I.P.C.. In order to curb effectively bribery and corruption not only in Government establishments and departments but also in other semi-Governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive, definition of ‘public servant’ has been given in clause (c) of Section 2 of the P.C. Act, 1988.

The Court held further that the decision in State of Maharashtra v. Laljit Rajeshi Shah & Ors.(cited supra) would not help the respondent as it was based on the interpretation of the definition of ‘public servant’ as was contained in the repealed the P.C. Act, 1947. The Court allowed the appeal by the State.

• In State of Maharashtra & Anr. v. Prabhkarrao & Anr.(2002 (1) KLT OnLine 1071 (SC)
= JT 2002 Suppl. 1 SC 5, (2002) 7 SCC 636 : 2002 SCC (Cri.) 1831), the State has preferred appeal before the Supreme Court against the judgment of the High Court of Maharashtra which quashed the FIR holding, inter alia, that the accused was not a ‘public servant’ as defined under the P.C. Act 1988. The High Court placed reliance on the decision in the case of P.Venku Reddy(supra). It is relevant to note here that the aforementioned decision was rendered in a case covered by the P.C. Act 1947 and not under the statute which is applicable in the present case. Considering the definition of the expression ‘public servant’ defined in Section 21 of the I.P.C. which was adopted in the P.C.Act, 1947, the Court took the view that members of the managing committee and chairman of the co-operative societies under the Maharashtra Co-operative Societies Act are not public servants. The P.C. Act, 1988 which is relevant for the purpose of the case in hand, the definition of the expression ‘public servant’ is different.

The question for consideration is whether the accused in the present case comes within the purview of the aforementioned clauses or any other clause of Section 2(c) of the P.C. Act, 1988. For determination of the question, enquiry into facts, relating to the management, control and funding of the society, is necessary to be ascertained. The High Court in its order has not considered this question at all. It has proceeded on the assumption that Section 21 of the I.P.C. is the relevant provision for determination of the question whether the accused in the case is a public servant. In the context of the facts and circumstances of the case, it will be appropriate that the trial Court should consider the question if it is raised by any party. The judgment under challenge being unsustainable was set aside.

• In State of Madhya Pradesh v. Rameshwar & Ors.(2009 (3) KLT Suppl.1636 (SC) = (2009) INSC 694: (2009) 11 SCC 424: (2009) 3 SCC (Cri.) 1421) the respondents were
directors of the Indore Premier Co-operative Bank Ltd., and were also members of loan committee for sanctioning loans. The trial Court framed charges against them under Sections 409, 420 and 120-B of the I.P.C. together with Sections 13(1)(d) read with
Section 13(2) of the P.C. Act, 1988. On revision, the Indore Bench of the Madhya Pradesh High Court set aside the aforesaid order passed by the Special Judge.

The criminal appeal filed by the State was allowed by the Apex Court on the ground that the High Court also did not, while considering the definition of the expression ‘public servant’, taken into account the fact that the decision in Laljit Rajeshi Shah’scase (supra) was no longer applicable in view of the amended provisions of Section 2(c) of the P.C. Act, 1988, defining the said expression. Prima facie, the respondents in their capacity as the Chairman and Executive Officer of the bank, come within the definition of ‘public servant’ under Section 2(c)(ix) of the 1988 Act. The charges framed by the trial Court against the respondents were restored.

• The issue that arises for consideration in State of Maharashtra & Ors. v. Brijlal Sadasukh Modani, (2016 (1) KLT OnLine 2144 (SC) = (2016) 4 SCC 417) is whether a multi-State society which handles crores of rupees and the persons who handle such huge amount of money should be allowed to escape the rigour of corruption charges under the 1988 Act on the ground that they do not come under the ambit and sweep of Article 12 of the Constitution or solely because the construction placed under Section 2(c)(ix) of the 1988 Act.

It is manifest that stress has always been laid down on Section 2(c)(ix) as a conse-quence of which the fallout is that the registered co-operative society must have received financial aid from the Central or State Government or any other institution mentioned therein. Even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. As the term ‘aid’ has not been defined, a sprinkle of aid to the society will also bring an employee within the definition of ‘public servant’. The concept in entirety has to be understood in the backdrop of corruption.

It was entirely unnecessary on the part of the High Court to enter into elaborate deliberation to arrive at the conclusion that the respondent was not a public servant. It would be apposite that it is left to be dealt with the course of trial whether the society concerned has ever been granted any kind of aid or not. The appeal was thus allowed and the judgment of the High Court of Bombay was set aside. It was directed that the issue whether the respondent is a public servant or not shall be gone into during the trial.

• In the case of Central Bureau of Investigation, State of Madhya Pradesh v. P.G.Jainreported in (2016 (2) KLT OnLine 2513 (SC) : (2016) 12 SCC 360 : (2017) 1 SCC (L&S) 401:
2016 (4) SCALE 13; AIR 2016 SC 1225), the Assistant Manager of the National Co-operativeConsumer Federation was sought to be prosecuted. The Supreme Court applying the same law as in the case of P.Venku Reddy(supra) came to the conclusion that in that case the society was performing such functions and duties that it was amenable to the provisions of the P.C. Act, inasmuch as the employee working under the said co-operative society was a public servant keeping in view the nature of his duties performed and then also came to the conclusion that the Federation was financially aided almost to the extent of 85% of the redemption of shares being guaranteed by the Central Government.

• In Criminal Revision No.1369 of 2001, decided by the Punjab and Haryana High Court
on 21.11.2001, titled as Dharam Singh v. State of Haryana, the petitioner was the General Manager of Sonepat Central Co-operative Bank, Sonepat and was caught red handed while accepting bribe from complainant. The question arose as to whether the petitioner was a public servant within the meaning of the Act, as the Special Judge, Sonepat had framed charges against petitioner Dharam Singh under the Act. While dismissing the petition, it was held that the petitioner was a General Manager who held office by virtue of which he was required to perform public duties, meaning thereby, that he was required to perform duties for the discharge of which the State, the public or the community at large has an interest. General Mangers of co-operative societies certainly perform public duties in which the public and the community have a huge interest.

• In Purshotam Dass v. State of Haryana, (2002 (4) AICLR 712), the Punjab and Haryana High Court held that the officers of the Primary Land Mortgage Bank would be covered under sub-clause (ix) of Section 2 of the P.C. Act inasmuch as the Primary Land Mortgage Bank is a society registered under the Haryana Co-operative Societies Act and deals in banking.

‘Public Servant’ has wider meaning under the P.C. Act

• In Dr.H.Narayan v. State of Karnataka,Manu/KA/1318/2013, the Karnataka High Court has observed that it is not in dispute that Mother Diary is a unit of the Karnataka Milk Producers Federation Limited, a co-operative society registered under the provisions of the Karnataka Co-operative Societies Act. Clause 20.1, 20.2 and 26.8(a) specifies that the Government has control over it. Therefore, any person working in a co-operative society is a public servant. The public servant as enumerated under the provisions of the I.P.C. is different from the public servant as defined under the provisions of the P.C. Act. The word ‘public servant’ in the P.C. Act is having a wider meaning. On the other hand it is very narrow in the provisions of the I.P.C.

• In the High Court of Madras, Writ Appeal in The Joint Registrar/Administrator, Tiruthani Co-operative Sugar Mills Limited, Thiruvalangadu v. P.Siva Kumar & Ors.
(2014 (4) KLT OnLine 1109 (Mad.) : 2014-5-L.W.624 : (2014) 8 MLJ 257, was preferred by the
appellant Joint Registrar against the judgment of the learned single Judge who, while setting aside the order of suspension, held that the first respondent being an employee of the co-operative society (Sugar Mills), is not a ‘public servant’ as defined under the provisions of the P.C. Act, 1988 to attract the provisions of Sections 7 and 13 of the said Act.

On hearing the rival submissions, the Division Bench observed that a perusal of the definition of ‘public servant’ contained in Section 2(c) of the P.C. Act, 1988, particularly with reference to Section 2(c)(iii), it is evident that the first respondent is an employee in a sugar mill established under the State Act, viz., Tamil Nadu Co-operative Societies Act, 1983, which is also partly aided by the Government of Tamil Nadu. The Supreme Court in the decision reported in (2012 (3) KLT OnLine 1006 (SC) = (2012) 12 SCC 331[Ramesh
Ahluwalia v. State of Punjab] considered the term ‘public duty’ performed by the private unaided educational institution and held that since the unaided educational institutions perform public function/ duty, i.e., providing education to children in their institutions throughout India, they are doing public duty amenable to writ jurisdiction. It is beyond doubt that the appellant sugar mill and its employees are performing ‘public duty’ like private aided/unaided recognised educational institutions, coming within the definition of Section 2(c)(viii) of the P.C.Act, 1988. The appellant sugar mill is aided, i.e., receiving subsidy from the Government. It is not disputed that the respondent-accused is in service of a co-operative central bank which is an authority or body controlled and aided by the Government.

In order to curb effectively bribery and corruption not only in Government establishments and departments but also in other semi-Governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of ‘public servant’ has been given in clause (c) of Section 2 of the P.C. Act, 1988. When the legislature has used such a comprehensive definition of ‘public servant’ to achieve the purpose of punishing and curbing growing corruption in Government and semi-Government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of ‘public servant’, therefore, deserves a wide construction. Corrupt practices indulged by ‘public servant’ are alarming and the Courts are bound to widen the scope of interpretation of the words ‘public servant’. The Sugar Mills are performing public duty and the first respondent while working as Cane Officer of Tiruttani Co-operative Sugar Mills, which was created and registered under the Tamil Nadu Co-operative Societies Act, 1983, is a ‘public servant’ within the meaning of Section 2(c) of the Act. In the light of the above findings, the Division Bench was not persuaded to accept the findings given by the learned single Judge and allowed the appeal.

Neither controlled nor aided – Not amenable to the P.C. Act

W.P.No.28641 of 2019 in J.A.Murugan v. The Registrar of Co-operative Societies, Chennaiand another seeks to quash the circular on the file of the 1st respondent.
W.A. No.2253 of 2018 in J.A. Murugan v. The Director, Vigilance and Anti Corruption, Chennai & Ors. (2018 (1) KLT OnLine 3167 (Mad.) is directed against the order dated 2.2.2018 made
in W.P.No.2228 of 2018 of the learned single Judge. Both the cases were heard and disposed by the Division Bench of the High Court of Madras vide order dated 6.3.2020.

The petitioner was working as a Secretary of the Krishnagiri District National Engineering Employees Co-operative Thrift and Credit Society. In J.A.Murugan v. The Director, Vigilance and Anti Corruption, Chennai and othersthe learned single Judge has dismissed the challenge raised by the petitioner to the proceedings, seeking sanction for prosecuting him for offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of the P.C. Act, 1988 and the letters by which directions have been issued to initiate prosecution against the petitioner. The contention of the petitioner before the learned single Judge was that he does not fall within the definition of public servant under Section 2(c)(ix) and therefore, proceedings cannot be initiated against him under the P.C. Act, 1988.

In W.P.No.28641 of 2019 challenge is made to the circular issued by the Registrar of Co-operative Societies, by which the Registrar has issued instructions making the PC Act applicable to the employees of co-operative societies on the ground that they are public servants within the definition of clause(c) of Section 2 of the P.C. Act.

This circular has been challenged on the ground that an omnibus exercise by bringing the employees of the co-operative society within the purview of a penal Act can be done only through a legislation and not by an executive act of an Officer of the State inasmuch as the power to police and punish is of the State and unless such power is conferred on any authority by an appropriate legislative exercise, the Registrar could not have exercised any such authority in law. It is urged that the applicability of a Central Act with penal consequences is solely within the competence of the Legislature that has the authority to legislate on this subject and therefore, the Registrar has transgressed constitutional limits by virtually issuing a circular that tends to legislate for which there is no power conferred on the said authority. It is therefore, liable to be struck down as being ultra viresinasmuch as it prejudices and impinges the fundamental right guaranteed to the petitioner under the Constitution and is also ultra viresof the provisions of the P.C. Act.

The respondents advanced their argument that the society is taking loans from the Central Co-operative Bank and in turn, the Central Co-operative Bank is aided by the State Government in its financial transactions. Therefore, the society in question should also be treated to be a beneficiary of such aid and consequently, would be a society controlled and aided by the State Government. The central issue, therefore, is as to whether the
petitioner/appellant who is the Secretary of a society would be construed to be performing a public duty so as to construe him to be a public servant for the purpose of bringing him within the fold of the P.C. Act, 1988 and consequently, as to whether the Registrar of
Co-operative Societies had the authority to issue the impugned circular thereby bringing all employees of every category of co-operative society within the fold of P.C. Act.

The appellant would contend that just because the overall functioning of the society comes under the control of the Registrar under the Co-operative Societies Act, it does not mean the State Government or Central Government has got any say in day to day functioning of the society. Strong reliance was placed on the judgment of the Apex Court in Thalappalam Service Co-operative Bank Ltd., v. State of Kerala & Ors.
(2013 (4) KLT 232 (SC) = 2013 (12) SCALE 527 : 2013 (6) CTC 98 : (2013) 7 MLJ 407 :
2014-1-LW. 273: RTIR IV (2013) 75 : (2013) 16 SCC 92). The employees of the co-operative society cannot come within the four corners of the definition of public servant and therefore, prosecution against them cannot launched under the P.C. Act.

The society in which the appellant is working is only for the employees working in private companies in Krishnagiri and is not open to public at large. The fact that the
co-operative society takes loan from the Central Co-operative Bank and repays it back does not mean that the State Government grants any aid to the society. There is no material to even remotely suggest that the society in question receives any aid financial or otherwise from the State or Central Government. The society, therefore, is neither controlled nor aided so as to make its employees amenable to the P.C. Act. Consequently no permission could be granted to sanction prosecution of the writ petitioner under the P.C.Act. The Registrar of Co-operative Societies cannot expand the definition of a public servant under the impugned circular. He does not have any authority to do so. It is completely in the domain of the legislature to define or lend a meaning to the terms in the Act. It is well settled that a definition in a statute with penal consequences must be construed strictly. The circular of the Registrar which states that all employees of all co-operative societies would be amenable to the prosecution under the P.C. Act and they all are coming within the definition of public servant has no basis and is contrary to the statute and deserves to be struck down.

As a result, the Writ Petition was allowed and the circular of the Registrar was quashed. The Writ Appeal stood allowed and the order of the learned single Judge was set aside. The letters issued sanctioning prosecution was also quashed.

Sequitur

•   An office-bearer or an employee of a co-operative society cannot be held to be a ‘public servant’ for the purpose of Section 21 of the I.P.C. and as such, cannot be proceeded against for offences under Section 5(1) read with Section 5(2) of the P.C. Act, 1947.
• The State can amend the I.P.C. and expand the definition of the ‘public servant’ under Section 21 of the I.P.C. so as to bring an officer or employee of the co-operative society within the purview of the I.P.C. and consequently within the ambit of the P.C.Act, 1947.
• The P.C. Act, 1947 was repealed by the P.C. Act of 1988. The new Act has enlargedthe scope of ‘public servant’. In the expansive definition of ‘public servant’, officer-bearers of a co-operative society which is engaged in trade among others in banking and receiving or having received any financial aid from the Central or State Government are included. The employees or servants of a co-operative society which is controlled or aided by the Government are covered by Section 2(c)(iii) of the P.C. Act, 1988.
•  Even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. As the term ‘aid’ has not been defined, a sprinkle of aid to the society will also bring an employee within the definition of ‘public servant’. The concept in entirety has to be understood in the backdrop of corruption.
•  The public servant as enumerated under the provisions of the I.P.C. is different from the public servant as defined under the provisions of the P.C. Act. The word ‘public servant’ in the P.C. Act is having a wider meaning.
•    An employee of a co-operative society which is not aided or controlled by the Government does not fall within the definition of public servant under Section 2(c)(ix) and therefore, proceedings cannot be initiated against him under the P.C. Act, 1988.

Expanding Scope of “Public Servant” Under the Prevention of Corruption Act –

An Analysis

(By Ajit Joy, Advocate, High Court of Kerala)

email:ajit.joy@gmail.com

During the Covid-19 lockdown period, a three Judge Bench of the Supreme Court pronounced a significant Judgment under the Prevention of Corruption Act 1988 (P.C. Act). The Judgment of 27th April 2020 in State of Gujarat v. Mansukhbhai Kanjibhai Shah(2020 (2) KLT OnLine 1143 (SC) = 2020 SCC OnLine SC 412),expanded the reach of the P.C. Act, with the essence of the judgment being, a private deemed university is covered under the definition of ‘University’ and the Trustee of the university is a ‘public servant’ under P.C. Act. This decision, further widening the scope of the definition of “public servant,” is in line with the pattern of expansive interpretation of the term public servant noticed in earlier decisions of the Supreme Court.

In C.B.I.v. Ramesh Gelli(2016 (2) KLT OnLine 2020 (SC) = (2016) 3 SCC 788), the Apex Court held that the Chairman, Directors and officers of a private bank before its amalga-mation with a public sector bank, can be classified as public servants for prosecution under the P.C.Act. In these decisions, the Court reiterated evolved principles that have tilted towards increasing the effectiveness of anti-corruption laws along with widening the scope of the expression “public servant” which were among the key objects of the 1988 P.C. Act. The court weighed in towards building a corruption free society and improve anti-corruption efforts. I shall be arguing that this expansive interpretation of the term “public servant” would contribute to vagueness and uncertainty, undesirable to penal statutes.

When Parliament in 2018 considered amendment to the P.C.Act of 1988, it had the opportunity to actually widen the scope of the definition of ‘public servant.’ However, it chose to continue with the existing definition. During the amendment, it had to consider giving effect to the United Nations Convention against Corruption (UNCAC) ratified by India. This Convention provided for inclusion of bribery and corruption in the private sector as an optional provision. However, the Indian Parliament did not opt for it, and kept out corruption in the private sector from the ambit of the P.C. Act. During deliberations on the amendment, the provisions of the UK Bribery Act 2010 were closely considered. The UK Act, significantly, is not restricted to Public Servants. ‘All persons’ are bought within the ambit of the Act. However, we did not follow it. Our Parliament stuck to public servants alone being included within the Act. In this context, the Parliament, having rejected the inclusion of other categories, bringing them in, by expanding the definition of “public servant” by the Supreme Court, might be problematic.

In contrast the US Supreme Court has been highly conservative in interpreting provisions of their Bribery Act.¹ Acts by public officials which would in normal circumstances be termed corrupt, were recently, unanimously, rejected by the US Apex Court giving a strict interpretation to the term “public office”. Their thinking has been that vague corruption laws warrant a narrow construction.²

Ambiguity in the Definition of Public Servant  

P.C. Act in Section 2(c) lists categories of persons as “public servant.” Section 2(c) starts with the words, “public servant means”- and then lists those 12 categories. Thus, only persons belonging to those 12 categories are intended to be public servants. Nevertheless, the category that has provided ambiguity is the one in Section 2(c)(viii), which reads, “any person who holds an office by virtue of which he is authorised or required to perform any public duty.” “Office” had not been defined in the P.C. Act. It is not clear if this office is public or includes private office. It is also not clear when a person could be stated to be “holding an office.”

Public Duty has been defined in Section 2(b), although, somewhat vaguely as-“public duty” means a duty in discharge of which the State, the public or the community at large has an interest.

Explanation.- In this clause “State” includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);

The only other place apart from Section 2(c)(viii), where “public duty” has been mentioned, is Section 2(c)(i). However, the construction of Section 2(c)(i) that reads, “any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;” leaves no room for ambiguity unlike Section 2(c)(viii), wherein, both office and public duty that includes duty to public or duty to community at large are wide terms. Section 2(c)(viii), is the definition that Courts have been using, to expand the definition of public servant.

The resultant problem is that, the scope for interpreting the definition of the term “public servant,” aided by certain vaguely framed terms like “public duty” and “office,” in the P.C. Act has led to rather contradictory interpretations. While trial courts interpret public servant in a particular manner, High Courts reject it and then the Supreme Court gives a wide definition, giving rise to uncertainty and ambiguity. Given the vagueness, it would have been desirable for the courts to follow a narrow interpretation.

State of Gujarat v. Mansukhbhai Kanjibhai Shah(2020 (2) KLT OnLine 1143 (SC) = 2020 SCC OnLine SC 412)

In this case, the respondent was the trustee of a Charitable Trust, which established the Sumandeep Vidyapeeth, a deemed university. The de factocomplainant’s daughter was a MBBS student in the university who had paid the fees as per terms. At the time of the final year exams, the respondent trustee called the parents and demanded payment of `20 lakhs in order to make the student eligible to sit in the exams.  The aggrieved parents then registered a F.I.R. and the investigations were carried out by the Gujarat State Anti-Corruption Bureau.

The respondent filed a discharge petition before the Sessions Court, which rejected the petition. The Gujarat High Court allowed a Criminal Revision Application and discharged the respondent trustee.  The High Court held that a deemed university cannot be considered as a regular University and thereby the respondent cannot be termed as a public servant under the P.C. Act. Aggrieved by the impugned order, the State of Gujarat approached the Apex Court.

The questions before the Supreme Court were:

1. Whether the respondent, who is the trustee in the Sumandeep Charitable Trust sponsoring the Deemed to be university, a public servant under Section 2(c) of the P.C. Act?

2. Whether the ‘Deemed University’ is covered under the provisions of “university” as defined in  S.2(c)(xi) of the P.C. Act?

The Court proceeded to answer the above issues, guided by certain ground rules, in the context of widespread corruption ailing the nation.  The Court underlined the legislative intent of the P.C. Act, which was to bring about transparency and honesty in public life. The Court observed that corruption in India affected all walks of life, resulting in the undermining of constitutional aspirations of economic and social justice on a daily basis. The Court reaffirmed the principle derived in Subramanian Swamy v. Manmohan Singh(2012 (1) KLT SN 79 (C.No.90) SC = (2012) 3 SCC 64)as guidance in interpreting the P.C. Act -

“Therefore, the duty of the Court is that any anti-corruption law has to beinterpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.”

The respondent’s side argued that it is a settled principle of law that a criminal statute has to be construed strictly. In cases where two interpretations are possible, the courts must lean towards the construction which exempts the subject from penalty rather than the one which imposes it. Rejecting this, the Apex Court stuck to the interpretation that would aid in penalising corruption as asserted in the Subramanian Swamycase above.

The Court provided an expanded interpretation of ‘public servant’ under the P.C. Act to include those who may not conventionally fall under such definition. The test, according to the court, to determine whether an individual is a public servant is to evaluate the nature of the duty performed rather than to look at the position occupied.  The Court clarified that “the purpose under the P.C. Act was to shift focus from those who are traditionally called   public officials, to those individuals who perform public duties.” On this basis, “it cannot be stated,” said the Court that “a “Deemed University” and the officials therein, (do not) perform any less or any different a public duty, than those performed by a University simpliciter, and the officials therein.” The Court therefore held that the High Court was wrong in holding that a “Deemed University” is excluded from the ambit of the term “University” under Section 2(c)(xi) of the P.C. Act.

In the context of Section 2(c) of the P.C. Act, the Court observed, “… the legislative   intention was to not provide an exhaustive list of authorities which are covered, rather a general definition of ‘public servant’ is provided thereunder.” This widening of the term public servant is surprising because Section 2(c) starts with the words, “Public Servant” means,- and then goes on to list 12 specific categories. Therefore, it could be argued that the legislative intent was to provide a certainty on who all ought to be considered as public servant and for that purpose listed 12 sets of personnel with close relation to public functions.

In C.B.I. v. Ramesh Gelli(2016 (2) KLT OnLine 2020 (SC) = (2016) 3 SCC 788), the Apex Court dealt with the question as to, whether Chairman, Directors and officers of a private bank before its amalgamation with a public sector bank, can be classified as public servants for prosecution under the P.C.Act. The respondents in this case were the Chairman/Managing Director and Executive Director of the Global Trust Bank, charged by the C.B.I. of diverting funds from the bank to related companies owned by the same accused.  The accused took the contention that, as officials at the helm of a private bank, they were not public servants. They were thus successful in securing, a discharge from the C.B.I. court, which was upheld by the High Court. The Supreme Court, set aside the discharge, in light of the expanded ambit of the P.C. Act and its object of curtailing corruption. According to the court, definition of public servant given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, would bring the respondents within the definition.

Who is a public servant under the P.C. Act according to the Court in the Gellicase is to be seen in the context of Section 2(c) (viii) of the P.C. Act which associates a public servant with an “office” charged with performing a “public duty.” Public Duty is defined quite widely in Section 2(b) of the Act, in line with the objective of reducing corruption in the country. The word “office” as held in P.V.Narasimha Rao v. State (CBI/SPE)((1998) 4 SCC 626) has been understood as “a position or place to which certain duties are attached specially one of a more or less public character.” Justice Gogoi, in fact, in the Gellicase cautions that, “such a wide understanding of the definition of public servant may have the effect of obliterating all distinctions between the holder of a private office or a public office which, in my considered view, ought to be maintained. Therefore, according to me, it would be more reasonable to understand the expression “public servant” by reference to the office and the duties performed in connection therewith to be of a public character.”

In  Manish  Trivedi  v. State  of  Rajasthan (2013 (4) KLT OnLine 1109 (SC) = (2014) 14 SCC 420), relating to a case under the P.C. Act against a Councillor, the Supreme Court elucidated upon the ambit of the phrase “public   servant” by stressing upon the relevance of “office”, with emphasis  upon the duties performed. The Court said, “Councillors and Members of the Board are positions which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it (hence an office). They perform various duties which are in the field of public duty,” and hence are public servants under the PC Act.

The US Supreme Courts Position on Bribery of Public Officials 

In contrast to the expanding definition to the coverage of the PC Act being given by the Indian Supreme court, the US Supreme Court has been narrow in interpreting the 18 U.S. Code § 201 related to Bribery of public officials and witnesses. The Supreme Court was called to interpret “official act” in Robert F. Mcdonnell v. United States(579 US_(2016))³. This was an appeal in a case where the Virginia Governor Bob McDonnell, was convicted in 2015 on bribery charges for taking $175,000 in expensive gifts and personal loans, from a businessman. The charge against the Governor was that he committed or agreed to commit an “official act” in exchange for the loans and gifts.

The case of the Government was that, McDonnell committed at least five “official acts,” including “arranging meetings” for the businessman with other Virginia officials to discuss products manufactured by him and “hosting” events for the businessman at the Governor’s Mansion. The Section 201(a)(3) defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

The Court rejected the Government’s reading of the Section and adopted a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event was held not to qualify as an “official act.” The court opined that, something more is required. The section, explained the court, specifies that, the public official must make a decision or take an action on that question or matter, or agree to do so. Government’s expansive interpretation of “official act” would raise significant constitutional concerns of due process. The Supreme Court held that Section 201 prohibits quid pro quocorruption—the exchange of a thing of value for an “official act.” In this case, a quid or favour was received, however, the Governor calling a meeting or hosting an event by itself would not be a “quo” qualifying as an official act.

In an earlier case too, the US Supreme Court had given a similar restrictive construction to Section 201 of the Bribery Act. In that case it was held that, hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter.⁴

Conclusion

Rule of law is foundationed on the principles of certainty and predictability, more so in the context of criminal laws, violation of which is subject to sanctions. The general population who fall within the jurisdiction of penal laws ought to be clearly aware of what conduct would constitute an offence. It would be anathema to criminal laws to have offences, the subject of interpretation and discretion. In the case discussed above, the US Supreme Court unanimously rejected the contention of the government side for the reason that, vagueness of terms in the bribery law could encourage arbitrary and discriminatory enforcement. To the US Court, to condemn someone to prison for up to 15 years without proper notice on what would amount to a crime of bribery was of serious concern. And therefore the Court thought it fit to offer a bounded interpretation to steer clear of the abyss of vagueness.

Two of the cases our Supreme Court discussed above have seen different outcomes in the trial court, High Court and Supreme Court on the question of who is a “public servant”. This means that there is lack of clarity borne out of interpretation of ambiguous provisions in the P.C. Act relating to public servant. The effect would be the carrying forward of this lack of clarity to the police station level, where the officer in charge can apply his discretion in registering offences under the P.C. Act, which would be nothing but the tyranny of laws.

There is also another issue attached to the inclusion of a persons as public servant. Public servants, in order to be prosecuted need a sanction for prosecution from their concerned department as per the P.C.Act. As per the new amendment, for a private complaint or an F.I.R. to be registered under the P.C.Act there needs to be an approval from the appropriate government authority. For traditional categories of public servant, there is a sanctioning authority. However, when newer categories are included by interpretation, they do not have a department or authority, fit enough to accord or reject sanction to prosecute. There is no proper guidance on the issue of their prosecution, which means, simply by expanding the scope of the P.C. Act, the protections conferred under it would not be extended to the new categories of public servants.

In the interest of certainty, it is best that Indian courts embark on a strict construal of a “public servant” and attendant terms like “public duty” and “office”. If courts feel free at interpretation, then ambiguity rules and precision that is required in criminal statutes is lost.  Which means that “rules” which ought to govern criminality, gives way to principles established by the Court.

Foot Notes

1.  18 U.S.C. § 201 - U.S. Code - Bribery of public officials and witnesses

2.  See, Robert F. Mcdonnell v. United States 579 US_(2016) at https://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.PDF

3. 136 S.Ct.2355 (2016).

4.  United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999).

Distraught Are Those Who Revere

(By P. Rajan, Advocate,Thalassery)

It is no gainsaying that democracy becomes stupendous only when the co related factors – executive, legislature and judiciary work in tandem. Judiciary being supreme, is not subservient to the other two as is the last bastion, especially the constitutional courts. Democracy in India, being populous also acclaimed to be progressive but seems to be on decline on evaluating the prevalent developments and occurrences. Court’s role is pivotal and no second fiddle to the executive either. Our Supreme Court’s glory is indisputable when the famous judgments are considered. Celebrated judgments inA.K.Gopalan’sand Kesavananda Bharathi’s and more are proof of this. Full Bench comprising more than 10 judges had heard these type of matters, weeks together.  Doyens like N.A.Palkhivala and many other senior lawyers appeared and argued in those cases and verdicts remain landmark forever. At the inception, in the early days C.J.I.s like H.J.Kania, Pathanjali Shastri and several such legal luminaries were conscious of the constitutional and judicial tenets and without any inhibitions admitted of the fallibility of courts,  still there was no room for pejorative remarks against such judges due to their imperious approach to the system.  Change did occur notably during the emergency days when the ruling party became dissatisfied about the orders being passed against it. Inexcusable interference resulted in bypassing seniority of Supreme Court Judges in order to appoint a junior Judge to the
C.J.I.’s post, resultantly 3 Judges had to suffer denial of recognition, great H.R.Khanna among the 3, put in his papers.

By passage of time the credibility and repute even of the C.J.I.s were suspected, accused of serious charges. K.G.Balakrishnan was accused of his kin’s suspected amassment of wealth,Ranjan Gogoi had to face sexual assault complaint by a woman worked under him. In these two instances, data though were furnished enquiry did not reach at logical conclusions.

One is reminded of the tirade of Justice C.S.Karnan, rarest in the judicial history
(C S Karnan in re– (2017) 7 SCC page 1 ). He while acting as High Court Judge sentenced Supreme Court Judges and even now after retirement continues to post objectionable remarks on social media against judges despite 6 month’s jail term he remains inane and immutable. It is strange, nobody thought of resorting to Article 124(4) and 124(5) of the Constitution to impeach such a mischievous Judge. This is a sad reminder and evokes in-eligible entry of persons to the higher courts, ability and integrity getting compromised.

It is to be recalled when M.N.Venkatachaliah was sworn in as Supreme Court C.J. in 1993, then Prime Minister Narasimha Rao observed, he looked forward to a cordial relationship between the Court and the Government, but the reply from the Judge was spontaneous and candid- cordiality between the Government and the Court has no place in our constitutional scheme of checks and balances. Such were the personalities adorned the Apex Court earlier.

Orders of the Supreme Court also often at present become matter of debate not on the legality but on the selective nature.  Arnab Goswamy, a TV supremo was released on bail within days while his applications were pending before the lower courts, but persons like Barbara Rao, Stan Swamy and journalist S.Kappan’s plea for identical relief remains un-answered by the Court. Another controversial issue now cropped up is the letter published and sent to Chief Justice Bobde by A.P.Chief Minister J.M.Reddy accusing Justice
M.V. Ramana of the Supreme Court who is set to take over as CJI in 2021, in interfering the matters of the High Court and influencing it. When Attorney General’s attention was drawn to this letter for his consent to proceed against the Chief Minister under the Law of Contempt, AG declined but remarked that it is an act of ‘suspect’. These developments show the judiciary becoming a soft target of criticism well founded or with ill motive. Scandalous and objectionable remarks often being raised unmindful of the legal consequences. Executive in the country is based on politics and it comprises persons of questionable antecedents also. Floor crossing and `resort maneuvering’ became the order of the day to gain power. Election laws or parliamentary procedures remain powerless and mute to such instances. Present day politics is the final option of not only celebrities from different fields, even retired judges are desirous  of getting attention by political leaders for occupying key posts.

When democracy is to function successfully with the co-ordination of executive, legislature and judiciary the persons related to this trio at least at the helm must be able, honest and self-less. It is worth remembering the opinion of late senior lawyer and Central Minister Arun Jaitley- there are two types of judges, those who know the law, and others who know the Law minister. No eyebrows were raised on this comment, but adored several. Citizenry expects effective functioning of the judicial system and its duty in short is to shed light not heat.

“There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts”                                                                      -- Mahatma Gandhi

Lifting the Veil of Shadow Pandemic

(By Varun V.M., Advocate, Trivandrum)

From womb till coffin women are prone to act of violence. Violence against women begins with sex-selective abortion caused by son-preference attitude of parents, takes form of heinous practices like female genital mutilation, child abuse and mal-nourishment during her childhood, aggravates to various forms of abuses during her adolescence, reach its peak on stepping womanhood, which continues till her death bed. In other words being born female makes her vulnerable to act of violence.

Social menaces like poverty, illiteracy, violence affects both men and women, but its severity is more experienced by women. Of all human rights violations, violence against a person is the drastic one due to the severe consequences ensued. Violence against women is analogous to terrorism; whereas the latter is unlawful use of violence against civilians which is crime against humanity, the former targets women and her human rights. Like a lethal weapon, violence can cause fatal outcomes including death and can have both short term and long term effects on her health. If violence against women were deemed contagious disease it would be nothing less than a global pandemic, being a common threat faced by women across the globe, yet, the least recognized human rights violation in the World.

In an ideal setting, for a foetus her mother’s womb and later her parent’s arms are her safest shelter. On reaching womanhood shared household with her intimate partner is the safe place where she spends rest of her life. But in reality each shelter has turned to a place of vulnerability and specifically shared household has turned to a place of domestic violence. A study by World Health Organization indicates that globally every one in three women have experienced domestic violence in their lifetime and WHO recognizes domestic violence as both women’s human rights violation and major public health problem.¹

Domestic violence is both ‘cause’ as well as an ‘effect’. Domestic violence is effect, because it is the end result or consequence of various ‘factors’ and ‘experiences’. Therefore while analyzing the root causes of domestic violence, we presume that man is not inherently violent in nature, it is certain factors and experiences that makes him perpetrator of violence. Therefore in the absence of following factors and experiences instances of domestic violence would curtail:

•    Illiteracy: The Sustainable Development Goals recognize the importance of providing education to all, especially to girls and women, as it can effectively reduce the inter generational inequality faced by women. Providing education is no more a concern of economic growth but it is a matter of human rights. Denial of education especially to women makes them unaware of their rights and they bear the abuse silently as matter of their ill fate.

•    Witnessing family violence: A child who has been witnessing and experiencing violence in his family become used to it and later in life he tend to become
perpetrator of violence. Also a bed rocked myth is planted in his mind that women are possessions that men can control and she is subordinate to him. This myth is the major cause of domestic violence resulting from physical and mental abuse.

•    Economic inequality: Unequal distribution of wealth is the primary cause of economic inequality among genders. The best example to illustrate this factor is Hindu Succession (Amendment) Act, 2005 which recognized right of daughter in the coparcenary property as she would, had she been a son and she shall be allotted same share as is allotted to a son. Needless to say, the situation prior to 2005 can be understood without any explanation. Second reason causing economic inequality is the broad gender wage gap. As a result of lower income levels of women they ultimately become economically dependent on men.

•    Alcoholism: This is the major factor that causes as well as catalyzes domestic violence. Alcohol use adversely affects cognitive and physical function of a person and he tends to resort to violence instead of resorting to non-violence resolution of conflict. Alcoholism is the major cause of peak in number of domestic violence cases in India during lockdown. As the beverage outlets are closed alcohol addicts have no access to alcohol which makes them violent and women become victims of domestic violence, the shadow pandemic.

•    Ideologies of male sexual entitlement: The patriarchal idea that women are solely meant for reproduction and to provide sexual pleasure to men is a factor that causes domestic violence resulting from sexual abuse.

•    Other factors: Antisocial personality disorder, marital discord and dissatisfaction, beliefs in family honour and sexual purity etc.

Coming to domestic violence as a cause of women’s human right violation and major public health problem, the consequences ensued from act of domestic violence shows that it causes both short term and long term impact on women’s physical, mental, psychological and emotional health. Following are the consequences of domestic violence on women’s health:

•    Domestic violence can have fatal outcomes like suicide or homicide.

•    Sexual violence against women can lead to unintended pregnancies, abortions and can increase vulnerability to Sexually Transmitted Diseases

•    Domestic violence during pregnancy can cause miscarriage and still birth.

•    Physical injuries resulting from physical abuse can cause severe pain and affects mental health as it can cause depression and post-traumatic stress.

•    Sexual violence, particularly during childhood, can cause behavioural changes leading to alcohol, drug abuse and projects risky sexual behaviours in later life.

The object of discussing impact of domestic violence on women’s health is to support the argument that women’s health and human rights are co-existing. According to WHO’s definition “health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”²Further, the definition of domestic violence contained in Section 3 of Protection of Women from Domestic Violence Act, 2005 states that domestic violence includes any act or omission causing physical, emotional, mental and economic abuse against women. A combined reading of both definitions would make it clear that domestic violence is a form of structural violence’ which poses threat to both women’s health and her human rights and eradicating domestic violence would not only guarantee her rights but also improve her health status.

Discussing the ‘cause’ and ‘effect’ of domestic violence is essential because latter explains the root-causes of domestic violence, in other words it raises an argument that domestic violence is end result of various factors and experiences while the former discusses domestic violence as cause of major public health problem and women’s human right violation. Keeping this understanding let us analyze the existing scenario of lockdown and check on the adequacy of measures taken to combat domestic violence. The object is to find out whether the legal framework is addressing the root causes of domestic violence and makes endeavour to eliminate domestic violence or is it merely remedial in nature?

When it comes to legal framework, “The Protection of Women from Domestic Violence Act, 2005” is the special law which provides for effective protection of rights of victims of domestic violence. The definition of domestic violence under Section 3 is not exhaustive in nature and it covers all acts and omissions causing domestic violence which includes physical, sexual, emotional, verbal and economic abuse. The Act deliberate on the manner in which the law is set into motion in the event of domestic violence and it also sets out legal remedies available to victim. In short the definition, mechanism and remedies contained in the Act are sufficient enough to protect the rights of victims of domestic violence. But the question is how many are aware of the existence of this Act and legal remedies contained in it? The problem here is lack of awareness. No much effort has been taken by Government to publicize about the Act, as a result many are ignorant about the legal remedies available and the silent cry of victims remains unheard during lockdown. In reality the terror caused by shadow pandemic is in par with coronavirus pandemic.

Though not in strict sense, lockdown is similar to house arrest. Lives of people are restricted within four walls of their home. This along with fear of unemployment, economic instability, poverty and starvation builds up frustration and this rage is taken on women who were already vulnerable to domestic violence. Being locked down at their home, women are left alone with abusers and they don’t have access to friends or relatives for help nor can approach legal institutions. The victims are left with no choice other than to suffer silently. This situation is no different from leaving a lamb with a butcher in a closed room. Taking into account the silent cry of women the Courts, National Commission for Women and various State Governments have taken pro-active steps to protect the victims of domestic violence. Following are some measures taken:

•    In furtherance to the order of Hon’ble High Court of Delhi, the women and child development department of Delhi NCR has opened 24*7 helpline service to help victims of domestic violence and when information is received immediate measures are taken to rescue victim(s).

•    Honorable High Court of Jammu & Kashmir took suo motu cognizance of domestic violence cases amid lockdown, directed the Government to increase
availability of call-in services, to designate informal spaces for women where they can report abuse without alerting the perpetrators and conduct awareness campaigns.

•    The National Commission for Women has introduced special helpline number via Whatsapp and started accepting complaints via e-mail.

•    Uttar Pradesh police launched “suppress corona not your voice” campaign to rescue victims of domestic violence and ensuring their relocation to shelter homes.

It is noteworthy that measures taken are in positive direction to curb the ‘effect’ of domestic violence. But, the measures taken are inadequate when we look at statistical rising of domestic violence cases. Needless to say, the current measures are offering only a temporary relief which is oriented towards rescue and rehabilitation of victims. The law is set into force only on the happening of domestic violence; i.e., when a woman turns to a victim. Simply put, the current initiatives are only addressing the effect of domestic violence and not its causes. It is similar to treating the symptoms instead of disease.

The Protection of Women from Domestic Violence Act, 2005 is not the sole solution to the issue of domestic violence. It is merely a remedial law that comes into action on happening of domestic violence. It doesn’t address the issues causing domestic violence, instead it only provides for certain legal remedies which the victims can avail. In other words the Act of 2005 deals only with ‘effect’ of domestic violence and not its causes.

We cannot ignore the fact that domestic violence is the outcome of certain factors and experiences, without addressing which domestic violence cannot be eradicated. The need of the hour is a mechanism which simultaneously addresses both ‘cause’ and ‘effect’ of domestic violence. For dealing with effect we already have an efficient legal framework in force which is Act, 2005. When it comes to cause part, what we need is a mechanism which comes into action before a woman turns to a victim of domestic violence and for that we have to strengthen the implementation of already existing social welfare programmes for women, especially the ones focusing on providing education. In addition to reconducting awareness programs through community organizations, organizing legal aid camps at regular intervals, reducing gender-wage gap, strengthening health care facilities, improving the employment prospects of women, promoting the idea of women empowerment as collective responsibility of all are some positive measures which can be adopted to eradicate the causes of domestic violence. A joint action on both ‘causes’ and ‘effect’ would eventually eradicate this menace.

At last, we must acknowledge the fact that shadow pandemic is the result of darkness within us. Let us lift the veil of shadow through thamasomajyothirgamaya by lighting our hearts and minds with virtues of humanitarianism which our great culture taught and together we will overcome both pandemics.

Foot Note:

1.World Health Organization, Violence against women, available at https://www.who.int/news-room/fact-sheets/detail/violence-against-womenretrieved on May 06, 2020 at 12:33 hr.