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.

To be Done or Undone? Why not?

(By Biju Menon K., Additional District Judge, Thiruvananthapuram)

Criminal trials have always been tedious and time-consuming for all stakeholders, the accused, lawyers and judges. Unlike in civil cases where lawyers and clients have the advantage of pleadings, a criminal lawyer is faced with the uphill task of analyzing and attacking chief examination of prosecution witnesses aided by their statements to the police, mostly in search of contradictions. Any criminal lawyer will tell you how arduous the task is. For a judge, the tediousness is on the legal duty of recording the entire evidence and putting it to the accused for a routine denial. True that Section 313 of Cr.P.C. provides an opportunity to obtain his stand on facts in evidence against him, otherwise entitled to a stoic silence in the scheme of the Code of Criminal Procedure.

The Section as it stood before Act 5 of 2009 introduced with effect from 31/12/2009:

313. Power to examine the accused

(1)In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him, the Court-

(a)may at any stage, without previously warning the accused,put such questions to him as the Court considers necessary;

(b)shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

     Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2)No oath  shall  be administered to the accused   when   he   is   examined   under   sub­-
section (1).

(3)The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

With the salutary object of doing away the long standing, at times misunderstood, requirement of putting each and every item of evidence mostly ending up in the entire deposition being put across, Act 5 of 2009 brought in Clause (5) reading thus:

Section 313(5). The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

Suresh Chandra Jana v. State of West Bengal & Ors.(2017)16 SCC 466 ruled against the practice of re-writing and putting each sentence of the prosecution evidence to the accused under Section 313 Cr.P.C. It was held that:

We have also perused the questions put under S.313 of the Code of Criminal Procedure and answers given by the accused which are on the record. We do not find that in the present case spirit of S.313 is forgotten, nor it can be said that the court has not complied with said provision. Sub-section (b) of S.313 requires the court to question the accused generally on the case after the prosecution evidence is over.  It does not require to re-write hundred pages evidence in another hundred pages to record the statement of the accused under the Section. It should be borne in mind that entire evidence has been recorded in the presence of the accused or his counsel, and before he enters into his defence, what is required is that he is generally asked on the case, after the prosecution evidence is over, to explain any circumstances in the evidence against him. It does not require that each and every sentence of the prosecution evidence has to be re-written and read over once again while examining the accused under S. 313 of the Code of Criminal Procedure.

Why then should we go with the old practice? Are we imbibing the true intendment of Act 5/2009? The thoughts of the Law Commission in its 154^th report reveal the object of the amendment:

“The accused in compliance with the provision can file written statements with the permission of the court. In Tilekeshwar Singh v. State of Bihar,in a prosecution for murder u/S.302 read with Section 34 of I.P.C., the Supreme Court found that written statements were filed by the accused under Section 342 of the Code of Criminal Procedure, 1898 and they were found to be very elaborate and furnished answers to all the points raised in the prosecution evidence. Though the examination of the accused was not in the question-answer form, the Supreme Court found that by filing of written statements, no prejudice was caused to him.

Certainly it is time to make innovative compliance of the amendment and endeavour to streamline our criminal justice system. Is it not enough to ask the accused to give a general statement on the core of the prosecution case as adduced in evidence and then obtain a statement in writing elaborating the same? The answer, to me, should be in the affirmative.c

Local Investigation and Local Inspection under Civil Procedure Code

(By P.B.Menon, Advocate, Palakkad)

A reading of the recent judgment reported in 2020(4) KLT 640 prompted me to pen a few lines as shown hereunder.

In my experience at the Bar as a trial court lawyer for the last 70 years (I have completed 70 years at the Bar and is still in active practice) I have not come across a single petition for local inspection, in a civil suit, being filed under a proper provision in the C.P.C., as all such applications quote only Order 26 Rule 9 C.P.C., whereas according to me, it ought to be under Order 39 Rule 7 C.P.C. which specifically provides for local inspection and not local investigation. The two are totally different. When a party requires just the nature of condition of the property involved in the suit relating to which a suit is filed, to be noted and make a report, it is just local inspection and not local investigation. In a local inspection what the commissioner actually finds in the property visually by him/her has to be reported. No investigation is involved. But in other cases like identification or other matters as in a final decree in a partition suit etc as disclosed in Order 26 Rule 9, what is done by the commissioner is local investigation. Legally speaking are they not different.

One ruling which I have come across is reported in 1980 Orissa 98, wherein this difference is pointed out.