Some Court Room Thoughts

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

 Trial court rooms have its own soul. It is interesting to watch like a movie. Always the court rooms are live and we can hear the hue and cry of the victims if we are prepared to observe it keenly. We also can feel the plight of some innocent accused who are even ignorant about the charge leveled against them till the pronouncement of the judgment. With deep anguish we can see the arrogance of the habitual offenders challenging the rule of law and trying to erode the administration of justice by all hooks and crooks. More than a quarter century, I have got the benevolent opportunities to test and smell the emotions of the court rooms, especially the lower courts.

“ I am cross examining the witness, sky is my limit and please don’t interfere…..”

Throughout the length and breadth of this country, a large number of advocates are under this wrong notion that with all vehement they are at liberty to put any questions during cross examination. Witnesses are supposed to be the guests of the court. But, unfortunately there was no one to help them from a blemish spitting character assassination by way of cross examination. Some statutory provisions have incorporated to safe guard the victims in sexual offence cases. But the fate of the other witnesses are still too pathetic. Certainly, cross examination is an art coupled with stuff. It is highly interesting to watch the cross examination by an eminent lawyer and we wonder how he demolishes the castle build up by the prosecutor. But, unfortunately, the era of such luminaries are lacking. Day long boring cross examination based upon irrelevant and groundless questions are being showered in a vehement and threatening manner is the contemporary situation.

Indian Evidence Act deals with the rights of the parties in the matter of evidence. It is the Criminal Procedure Code which lays down the procedure in criminal matters. The examination of a witness as laid down in Section 137 of the Indian Evidence Act includes his examination in chief, cross and re-examinations. Every statement made by a witness is presumed to have been made in answers to the questions put to him by the defense counsel or the prosecutor and it cannot be deemed to have volunteered by him in the absence of evidence to that effect.

The purpose of cross examination can be summarized as follows

1. To destroy or weaken the value of the evidence tendered by the witness.

2. To elicit facts favorable to the adversary.

3. To impeach the credibility and veracity of the witness.

See Hussena Lah v. Yerriahreported in (AIR 1954 A.P. 39).

Cross examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and it’s the yardstick to measure the accuracy and completeness of the story put forward by the witness. It is a powerful means to expose falsehood also. But, the right of the cross examiner is not unfettered. It is controlled by Sections 138, 139, 140,143,145,146, and 147 of the Indian Evidence Act. Section 148 to 152 of Evidence Act are shield for the witness against improper cross examination. Others are meant for constraining the cross examiner to confine to the relevant facts. Cross examiner can put questions with respect to relevant facts, facts in issue, and other matters though irrelevant, but to impeach the credibility of the witness. A composite question cannot be asked in cross examination. The court has an undoubted control and discretion in the matter of cross examination of a witness. A presiding officer is not a spectator and is not a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witness in order to ascertain the truth. But, he must do it without unduly trespassing upon the functions of the public prosecutor as well as the defense counsel. See Ramchandar v. State of Haryanareported in (1981 KLT OnLine 1033 (SC) = AIR 1981 SC 1036).

Protracted examination of a witness with questions which are quite irrelevant must be deprecated. Court shall not permit two or more questions into one. See Chahan Singh v. Statereported in (1971 KLT OnLine 1023 (SC) = AIR 1971 SC 1554).

In civil litigations, Order 18 Rule 12 of the Civil Procedure Code permits the court to watch demeanor of a witness and record his remarks thereon. Similarly, S.280 of the Criminal Procedure Code empowers the court to note the demeanor of a witness in a criminal proceeding. S.139 of the Evidence Act empowers the court to direct a person to produce a document. But unless and until he is called as a witness, he cannot be examined. S.140 of the Evidence Act provides for impeaching the credit of a witness by way of cross examination. This section is in harmonious with S.53 and 54 of the Evidence Act. S.53 says that in criminal cases the fact that the accused has got a good character is relevant. S.54 lays down that in a criminal proceeding, the fact that the accused person has a bad character is irrelevant, but it assumes relevance when the witness claims the contrary. So, if the accused seeks to prove in evidence that the accused has a good character, the prosecution is at liberty to challenge it by cross examination of the witness or examining any other witness. Character includes reputation also. But, it is to be borne in mind that both are not synonymous. Character is an expression of wide importance which takes in all traits special and peculiar qualities impressed by nature or habit which serves as an index to the essential intrinsic nature of a person.

Section 145 of the Evidence Act empowers the parties to cross examine a witness as to his previous statement with or without contradicting the same. As opined by our Hon’ble Apex Court in Tahsildar Singh v. Statereported in (1959 KLT OnLine 1412 (SC) = AIR 1959 SC 1012) that “S.145 contains two parts, both dealing with cross examination. The first part deals with the cross examination other than by way of contradiction and the second part by way of contradiction. But the second part cannot be invoked without putting questions under the first part. Under the first part, the cross examiner may cross examine the witness regarding the previous statement made by him in writing or reduced into writing without showing such writings to the witness. But the second part deals with the contradictions only. Before that the witness must be asked whether he made any previous statement in writing or reduced into writing. Thereafter to contradict such a witness by his previous statement, his attention must be drawn to those parts of the writing which are intended to be used for contradiction”. See also Benoy Kumar v. State(1997 Cr.L.J.362).The object behind S.145 Evidence Act is to give a witness a chance of explaining or reconciling his statement. As expressed by our Hon’ble Apex Court in Tahsildar Singh’scase, previous statement would be such statements as made during investigation. In this juncture, it is worth mentioning the dictum laid down by our Hon’ble Apex Court in State N.C.T of Delhi v. Mukeshreported in (2013 (2) KLT 984 (SC)). Paragraph 10 of the said judgment categorically expresses the view that “from the scheme of Criminal Procedure Code and Indian Evidence Act it appears that the investigation and the materials collected by the prosecution prior to the filing of charge sheet u/S.161 Cr.P.C. are the materials for the purpose of S.145 Evidence Act. The expression “previous statement made” used in S.145 Evidence Act cannot in our view be extended to include statements made by a witness after filing of chargesheet.” It is also made clear that S.145 of the Evidence Act must therefore be confined to statements made by a witness before the police during investigation and thereafter. It is also made clear that with effect from 31.12.2009 proviso to sub-section (3) of S.161 Cr.P.C., the statement made to the police officer u/S.161 Cr.P.C. may also be recorded by audio, video electronic means which can also be used for the purpose of S.145 of the Evidence Act. This decision has got a far reaching effect that even the previous statement of a witness after filing of charge sheet before the court cannot be contradicted u/S.145 of Evidence Act. But, certainly the legal presumptions contemplated u/s 80 of the Evidence Act is in favour of its genuineness. But, in Jasdeep Kaur Chandha v. State & Ors.(Crl.M.C.3102/2016 and Crl.M.A.13324/2016 decided on 18.10.2016) reported in 2016 Supreme (Del.) 3800, Supreme Today. A total different view was taken by the Delhi High Court, after distinguishing the dictum laid down in Mukesh case. Anyway, Tahsildar Singh case is the masterpiece in that aspect. In that verdict, the Hon’ble Supreme Court observed that :

1. A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purposes.

2. Statements not reduced into writing by the police officer cannot be used for contradiction.

3. Though a particular statement is not expressly recorded a statement that can be deemed to be part of the expressly recorded can be used for contradiction, not because it is an omission strictly so called, but because it is deemed to form part of the recorded statement.

4. Such a fiction is permissible by contradiction only in the following three cases.

a. When a recital is necessarily implied from the recital or recital found in the statement.

b. A negative aspect of a positive recital in a statement.

c. When the statement before the police cannot stand together.

Though previous statement of a witness is not a substantive evidence except S.161 Cr.P.C. statement, it can be used for corroboration u/S.157 Evidence Act and can be used for contradiction u/S.154 Evidence Act to test his veracity u/S.146 Evidence Act r/w 155(3) of Evidence Act. Unfortunately some members in the legal profession are under the wrong impression that S.145 Evidence Act contemplates contradiction of a witness statement with another. In this aspect, it is significant to go through the dictum laid down in Mohar Rai v. State of Biharreported in (1968 KLT OnLine 1132 (SC) = AIR 1968 SC 1281).

Section 145 of the Evidence Act has no application where a witness is sought to be contradicted not by his own statement, but by the statement of another witness. See Mohanlal v. State(1982 KLT OnLine 1013 (SC) = AIR 1982 SC 839).

It is the spirit of the legislation that the purpose of contradicting a witness is only to attack the veracity of the witness. The duty of the court is to find out if a witness, who had made contradicting statement earlier, is telling the truth in court. It is not the duty of the court to find out whether the contents in the previous statement made by the witness are true or not. Contradiction means the setting of one’s statement against the other and not the setting up of the statement against nothing. See Shasidhar Purandhar Hegde v. State of Karnataka(2005 (1) KLT SN 3 (C.No.5) SC = AIR 2004 SC 5075). It is also pertinent to say that previous statement cannot be read as a substantive evidence except u/S.33 of the Evidence Act. When the previous statement and the evidence before court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other. See also Tahsildar Singhcase.

Omissions are another category where the defense lawyers are locking horns with the witnesses. Actually all omissions are not contradictions. Omissions are contradictions only if

1. Two statements cannot stand together.

2. The important features of the incident deposed to in the evidence are incorrect. (See Tahsildar Singhcase)

A contradiction between two statements in mere matter of detail is unimportant unless the contradiction on a reasonable interpretation points to the falsity of that detail or at least raises a doubt as to its truth.

Every omission in the S.161 Cr.P.C. statement does not become contradiction. The 161 statement may be the answers to the oral examination by the investigating officer which he thinks relevant according to his information. The prosecutor or the defense lawyer who studies the case carefully after getting all information may try to elicit some other answers which may not be in the 161 statement. Such a statement cannot be an encyclopedia about the case. See Francis Joy v. State of Keralareported in 1989 (1) KLT SN 3 (C.No.4). “Omission with regard to the number of accused and colour of vehicle used by the accused are not found material and hence such omissions cannot be said to be contradictions” was the view taken by the Apex Court in Baldev Singh v. State of Punjabreported in
(2013 (3) KLT OnLine 1105 (SC) = 2013 Cr.L.J. 4874).Thus it can be seen that all trivial matters will not come under the purview of omissions. An intellectual and juristic approach is highly necessary to distinguish the evidence and to weigh its evidentiary value. The prosecution witness alone can be contradicted by the statement made before the police in the course of investigation. Neither a court witness nor a defense witness can be cross examined with reference to their previous statement recorded by the police. See
Shakila Khader v. Nausher Gana(AIR 1975 SC1324) and Laxman Kalu v. State of Maharastra
(1968 KLT OnLine 1125 (SC) = AIR 1968 SC 1390).

Section 148 Evidence Act empowers the court to decide whether the witness be compelled to answer or not in any question not related to a fact in issue or relevant fact, but only to shake the credibility of a witness by way of injuring his character alone. The court has power either to prohibit the question u/S.148 Evidence Act and if the question is allowed for drawing or not drawing an inference from the refusal of the witness to answer that question. The exclusions provided in sub-sections (2) and (3) in S.148 Evidence Act and S.151 and 152 Evidence Act are those incorporated with a view to protect witness from reckless and unjustifiable interrogation. S.149 Evidence Act provides that a question permissible under S.148 may be asked if the cross examiner has a reasonable ground for thinking that the imputation in the question which he conveys is well founded. S.150 Evidence Act authorises the court to haul up the offending counsel to appropriate authority for putting questions with unfounded imputation. S.151 Evidence Act prohibits indecent and scandalous questions. But such discretion is not exercisable by the court if it relates to the fact in issue or the relevant fact. Mere indecency will not prevent questions in trial. If evidence is necessary for the just decision of that case, such questions can be asked. In Subala v. Indiraan old case reported in (AIR 1923 Cal.318),the plaintiff asked the defendant if she was pregnant by a certain person. Since the plaintiff’s case is that witness did not inherit the property by the reason of chastity during lifetime of her husband that question became relevant and admissible. Section 152 Evidence Act empowers the court to forbid questions intending to insult or annoy the witness. Section 153 says that when a witness has been asked and has answered any question which is relevant to the enquiry only in so far as it tends to shake his credibility by injuring his character, no evidence shall be given to contradict him, but if the answers are false he may afterwards be charged with for giving false evidence. But it has two exceptions:

1. With respect to the previous conviction.

2. Questions tending to impeach his impartiality.

In both these circumstances, the parties are at liberty to adduce evidence to contradict that witness. Previous conviction can be proved in the manner prescribed u/S.294 Cr.P.C.

Thus the Evidence Act is the complete text dealing with the nature, manner and scope of examination of witness. Cross examiner need not wander around looking for the modalities of examination. For an eminent lawyer, cross examination even in a murder case is a matter for minutes only. But, now a days we see cross examination of the witness longing for days. Always bear in mind that witnesses are the ears and eyes of the court as said by the eminent Jurist Bentham. We have to confine the cross examination within the four walls and corners fixed by the law and certainly it will be a beautiful and amazing experience.

An Overview on Abrogation of Article 370

(By S.Sanal Kumar, Advocate, High Court of Kerala)

Article 370 of the Constitution has come to an end heralding the emergence of a new Jammu and Kashmir. The Presidential Order abrogating the special status to J. & K. and its bifurcation into two Union Territories is by and large accepted by the Nation. But the frail voices of dissension from opposition parties, describing the move as undemocratic and a treachery on the people of Kashmir, spell doom for its full grandeur and glory.

The Background of the Instrument of Accession:

Maharaja Hari Singh was the Ruler of Jammu and Kashmir princely State at the time of independence. Even before the ‘Quit India’ movement in British India, there arose revolt against Maharaja by National Conference under Sheik Abdulla and Muslim Conference in 1938, as “Quit Kashmir Movement”. With the end of Second World War, decolonisation started with Britain declaring its intention to accord complete Independence to India. The Cabinet Mission visited India on 23.03.1946 and issued Memorandum containing guidelines for the native States to follow regarding future course of action on independence. Provincial Governments under British sovereignty and princely States ruled by dynasties, and were under suzerainty of Britain were dealt with under the memorandum issued. The Princely States could opt to join as a federal unit under the proposed Dominion or could remain as Sovereign State. The Memorandum brought to an end the paramountcy of crown over princely States. Following this, Indian Independence Act 1947 was passed by the British Parliament dividing India into Dominion of India and Dominion of Pakistan. By Section 9 of the Independence Act, the Princely States were given the option to accede to either of the dominions as per Section 6 of the Government of India Act 1935. Full freedom was given to Principalities in joining with emerging Dominions or to remain as independent sovereign States. The Indian Independence Act contemplated a referendum to ascertain the wishes of people only in respect of North West Frontier Province and Sylhet in Assam (Section 2(2)(e) and 3(2) of the Act). The dominion of Pakistan was carved out from British India with West Punjab, Sind, Baluchistan, East Bengal and North West Frontier Province with the remaining British India to become the Dominion of India. But sourcing power from Section 9 of Independence Act read with Section 6 of Government of India Act, as many as 500 and more princely States executed Instrument of Accession with India or Pakistan, as the case may be before 15^th August, 1947. The princely State of Junagadh, Kashmir and Hyderabad were diplomatically dithering to take a decision on accession.

Maharaja Hari Singh of Kashmir wanted to remain as a sovereign State, opting not to sign the Instrument of Accession. But when the revolt against Maharaja by Pushtun Tribesmen with the aid of Pakistan army was about to dethrone the King, the assistance of India was sought by the Maharaja. With the signing of Instrument of Accession on 27.10.1947 by the Maharaja, which in form and substance was like 140 other Instruments of Accession signed by other States, the princely State of Kashmir became an integral part of India. (The Wire: Venketesh Nayak who sourced it from National Archives of India wrote in his Article on comparison with 140 other IOA). It did not contain any clause for referendum to be conducted for its full integration with Dominion of India. Archives on Constitutional literature say that Dr.Ambedkar was averse to the incorporation of Article 370 into the Constitution as according to him, it was against the terms of instrument of Accession and the intent of full integration of Kashmir with India. The task of drafting Article 370 was undertaken by Gopalaswamy Ayyangar, a Minister in Nehru’s cabinet without portfolio.

When Pakistan sponsored insurgency continued, India moved a motion in the U.N. Security Council in 1948 under Article 35 of U.N. Charter terming Pakistan’s intervention as a disturbance to international peace as also the tranquillity in Kashmir valley. This paved the way for ‘entanglement’ of India with UN dikat. It appears from records that the UN by Resolution No. 97 asked the Pakistan Military forces to demilitarise the area. As regards India it gave a direction to conduct a plebiscite in Kashmir to ascertain the wishes of Kashmir people regarding accession to India. (C.N.Agrawal Memorial Lecture by Dr.A.S.Anand, former Chief Justice of India reported in (1996) 4 SCC 11). Later, in 1951 when National Assembly was Constituted in J.& K., its representatives were elected through democratic process where the total 75 seats went in favour of the National Conference and its leader Sheik Mohamed Abdulla was elected as the Prime Minister of Jammu and Kashmir. The Constituent Assembly, by its resolution dated 15.2.1954, ratified the State’s accession to India in unequivocal terms. The National Assembly, while adopting its Constitution on 7.11.1956 declared in Article 3 that Jammu and Kashmir is and shall be an integral part of Union of India. Further Article 147 of J. & K. Constitution unequivocally says that Article 3 and 5
shall not be amended in any manner in future. It is also further laid down in Article 147 of
J.& K. Constitution that the provisions relating to the relations with Union of India are also not liable to any change by way of amendment. Though, technically no plebiscite as instructed by UN was conducted, still the declaration by the elected representatives of the J.& K. Constituent Assembly gives a democratic imprimatur to the accession of J.& K.  to India. TheConstitution of J.& K. was adopted on 7.11.1956.

Present Constitutional therapy done

Running with the tumultuous years in Kashmir after independence, the framing of Constitution of Union of India was taking place. The then Industries Minister in the Nehru Cabinet, Dr.Shyamaprasad Mukharji, resigned from the Cabinet on account of the decision to give special status to Jammu and Kashmir. His death in custody by the J. & K.
Government under Sheik Abdulla is still a mystery to be unravelled. When Article 306A (now 370), was introduced by Gopalaswami Ayyangar in the Constituent Assembly it is curious that the opposition came from a Muslim member, Maulana Hasrat Mohani (United Provinces: Muslim). He termed the granting of special status as discriminatory. Some excerpts from the Constituent Assembly Debates held on 17th October, 1949:

Honourable Shri. N.Gopalaswami Ayyangar:

............. I do not want to take much of the time of the House, but I shall briefly indicate what the special conditions are. In the first place, there has been a war going on within the limits of Jammu and Kashmir State.

.....We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.

.....Now, if you remember the view points that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system.
Article 306A is an attempt to establish such a system.

........Maulana Hasrat Mohani: Sir, I want to make it clear at the very outset that I am neither opposed to all these concessions being granted to my Friend Sheikh Abdullah, not am I opposed to the acceptance of the Maharaja as the ruler of Kashmir. And if the Maharaja of Kashmir gets further powers and concessions I will be very glad. But what I object to is this. Why do you make this discrimination about this Ruler? Mr. Ayyangar has himself admitted here that the administration of Kashmir State is not on a very good basis......

The Honourable Shri.N.Gopalaswami Ayyangar: That is a wrong statement. I never said so.

........Maulana Hasrat Mohani: That it will assume independence afterwards. But may I ask a question? When you make all these concessions for Kashmir I most strongly object to your arbitrary act of compelling the Baroda State to be merged in Bombay. The administration of Baroda State is better than the administration of many other Indian Provinces. It is scandalous that you should compel the Maharaja of Baroda to have his raj merged in Bombay and himself pensioned off. Some people say that he himself voluntarily accepted this merger. I know it is an open secret that he was brought from England and compelled against his will.....

Now time was overdue for the Government of India to bring to an end Article 370 for ensuring constitutional parity of States. Article 370(3) was invoked by the President for causing cessation of the Article itself. By invoking Section 92 of the J.& K. Constitution, the power of the Legislature of the State was assumed by the Governor. By the amendment of proviso to Article 370(3) with the effect of substituting `Constituent Assembly’ with ‘legislature of the State’, the Constitutional task was deftly done by the Government of India within the legal frame work. Article 370 was in fact the placenta in the birth of Jammu & Kashmir. The gestation period of Jammu & Kashmir is over and the birth of J. & K. has taken
place as twins. An excellent Constitutional gambit indeed it was.

Self Determination:

The Presidential order and Bills moved by the Government are termed as undemocratic by Opposition mainly on the premise that a recommendatory resolution of Legislature of the State is lacking as mandated by proviso to Article 370(3). The position is conceded by all concerned regarding the power of the President to issue notification to cause cessation of operation of Article 370 of the Constitution. But argument based on lack of concurrence of the elected representative is one essentially boiling down to the issue of self determination. Did Kashmir originally intend to go for self determination at the time of formation of Dominion of India and Dominion of Pakistan when Indian Independence Act was passed in 1947 is the moot question in this context. An emphatic `No’ is the answer to the said question. The Independence Act made it peremptory the holding of referendum only in the North West Frontier Province and Sylhet in Assam. It provided that these parts of British India could be made part of Pakistan subject to ratification by the people of the province through a referendum. But for the princely States, the wishes of the Ruler was the determining factor regarding accession to any of the Dominions under Section 9 of Independence Act in tandem with Section 6 of Government of India Act 1935. The princely States under the suzerainty of British Empire were returned their sovereign power by the British Crown to decide the issue of accession in accordance with the provisions in the Independence Act. The Independence Act contemplated a carte blanche to be given to the Rulers of Princely states, and no right of self determination of its people was conceded to, as far as accession to dominions is concerned. Article 370, originally titled as “temporary and transitional’ was later retitled as `temporary’ in 1963 (Constitution 13^th Amendment w.e.f. 1.12.1963). The J.& K.Constituent Assembly was formed on 31.10.1951. On 15.2.1954 the Assembly ratified State’s accession to India. The J.& K.Constitution came into being on 26.1.1957. The Constituent Assembly of J.& K. was dissolved on 17.11.1956. According to Mir Quasim
Resolution, the Constituent Assembly ceased to exist on 26.1.1957. Though initially Sheik Abdulla was elected Prime Minister, he was dismissed by Head of State (Sadr-e-Riyasat), Karan Singh, son of Maharaja Hari Singh in August 1953 and was put in prison. The task of framing Constitution was done under the Prime Minister ship of Bakshi Ghulam Mohammed. The declaration in the J.& K.Constitution that J.& K. is an integral part of India makes the self determination of people of J. & K. complete in itself. The abrogation of the temporary provision, Article 370, makes the integration a constitutional reality whereby a uniform Constitution is made applicable to the whole of India. Now the flesh and blood of Union of India is the States and Union Territories enlisted under Schedule I of the Constitution of India. Kudos to the Union of India for the bloodless Constitutional conquest of its integral part.

Territorial Integrity, Sovereignty and Self Determination

The concept of Nation State is the product of Treaty of Westphalia 1648. When cultural boundaries match up with political ones, the emergence of Nation State is the natural fall out. The creation of a uniform national culture by State intervention will naturally augment the formation of Nation State. Uniform language, ethos, State emblems etc. are contributing factors for formation of Nation State. The adoption of national policies on education, cultural affairs, civil relations among citizens by a responsible Government followed by its successful implementation eventually leads to Nation State formation. Territorial integrity and territorial sovereignty, not for Nation State alone but for all States, are necessary concomitant of Statehood. UN Charter enumerates territorial sovereignty and political independence as precondition for recognition as State. It is surprising that India, with its crippled sovereignty over an integral part of it, was nevertheless recognised as a Member State by UN so far. India’s territorial integrity and full sovereignty over its component States were an absolute necessity for its assertion as a State entity with full statehood in its conceptualisation. Emerging concepts of international law say that the right of self determination of people of an area is subservient to the larger essential attributes of statehood like territorial integrity and sovereignty. When the clash of logic is based on territorial integrity and sovereignty on the one hand and right of self determination on the other end, the former takes precedence over the latter.

Indian Episodes of annexation of territory

The annexation of Hyderabad to India is a classic example of assertion of territorial integrity and territorial sovereignty. Though Nizam of Hyderabad wanted to join with Pakistan, through a military intervention, called ‘Operation Polo’, the princely state of Hyderabad was made part of Union of India in September, 1948. The Nawab of Junagadh, desired to accede to Pakistan but Junagadh was annexed to Indian territory by military action. The referendum done on Junagadh under the supervision of Indian Military troop was only a farce, designed to give it the flavour of self determination. The annexation of Sikkim in 1975, which was a Protectorate of Union of India till then, is also another example of assertion of territorial integrity. A referendum done after the conquest in Sikkim was in fact a smokescreen to give legitimacy to the conquest. Liberation of Goa and Pondicherry, were done by way of similar military conquest.

Conquest for preservation of rights of ethnic groups

 On the International arena, the Russian annexation of Crimea in 2014 is another instance, where even a conquest is justified in the name of territorial integrity and preser-vation of rights of ethnic groups. Israel’s occupation of Galon Heights is now accepted by the US as an assertion of territorial sovereignty and integrity. Justice Anand, in his lecture (1996) 4 SCC Journal 11)draws parallel from the US annexation of Texas in 1845 from Mexico, when he talks about accession of Kashmir to India. The common feature of all these annexations is its justification for protection of rights of ethnic groups. The ethno-linguistic issues of Russians in Crimea, the sufferings of the US settlers in Texas were the propelling factors for the intervention of respective countries. The large scale exodus of Kashmiri pundits, following the oppression by the majority religious groups in late 1990’s is a legitimate reason for the Government of India for a complete military suzerainty over Kashmir. The resettlement of the Kashmiri Pundits in their home land is a constitutional compulsion for India for its intervention.

For a State to survive and progress, the territories in its corridor and contour are to be held in contiguity with complete sovereignty, which essentially is territorial integrity in political science. For India to be a nation with full sovereignty over its territory, the complete integration of Jammu & Kashmir is indispensable. Fortunately we have done it through constitutional means, though with a few fulminations over procedural niceties. Given the international scenario on Crimea and Galon Heights, even military deployment to secure peace and complete integration cannot be objected to. Territorial integration to secure peace is being accepted as a norm in international law as means to curb terrorism thriving on the platform of separatism.

Surgery by Constitutional means is now over. Political chemotherapy has to commence yet. Let us be hopeful for our Paradise on Earth to re-emerge with its full splendour and gaiety.

The Plight of A Borrower

(By Jacob Abraham, Advocate, High Court of Kerala)

1. “Neither a borrower nor a lender be, For loan oft loses both itself and friend, And borrowing dulls the edge of husbandry”. This was the advice given by Polonius to his son Laertes. The son was embarking on his visit to Paris for his education. The risk in lending money to a friend is clear from the expression itself. Whereas regarding the expression describing the risks involved in borrowing need an explanation due to its unfamiliarity. According to the Bard of Avon it indicates that you are living outside your resources and it is against good housekeeping. Shakespeare was speaking against lending and borrowing money. But in the case of lending and borrowing a motor vehicle in India, the consequences are much graver to the borrower than what the Bard or any one had in mind. One of the risks is the deprivation of receipt of compensation payable under Section 163-A of the M.V. Act, due to the principles of law laid down by the Apex Court in the judgement known widely as Ningamma’scase.

2. Ningamma and Anr v. United India Insurance Co. Ltd.(2009 (3) KLT Suppl.338 (SC) =
(2009) 13 SCC 710) is the judgement under consideration. The main principles laid down in this case are that a person cannot be both, a claimant and as also a recipient with respect to the claim and that a borrower of a motor vehicle steps into the shoes of the owner. To be precise the owner who is liable to pay compensation under Section 163-A cannot claim compensation under this section since he is the claimant and the recipient. The second aspect is that when one borrows a motor vehicle he becomes the owner of it (stepping into the shoes) and hence he cannot claim compensation under this section. Regarding the first principle there cannot be any dispute.

3. Regarding the second principle one has to say that it is not a sound one. This principle is laid down without any discussion or examination. The court simply says that a borrower when he borrows a motor vehicle steps into the shoes of the owner and hence he cannot claim compensation under Section 163-A. The borrower of a motor vehicle is elevated to the exalted position of an owner of it and that too without spending a single paisa from his pocket. In this process he is robed of his valuable right. What then happens to the lender/owner then is not made clear in the judgement. The idiom “stepping into the shoes” essentially involves filling of someone’s position. Whether this happens and the borrower becomes an owner when a motor vehicle is borrowed?. My answer is in the negative for various reasons. The first reason is available in the judgement itself. Just like a person cannot be a claimant and recipient at the same time, a person cannot be a lender (owner) and borrower at the same time. One cannot lend to oneself and one cannot borrow from oneself. Therefore a lender and a borrower always could only be different persons as their roles and the incidents of borrowing are mutually exclusive. In fact most of them are incompatible. Besides this, conferring honorary ownership (without any rights, liabilities or duties of ownership), rights and liabilities unintended and unwanted by them is wrong. When law gives freedom to the parties to choose, the parties cannot be thrust into roles which they do not want.

4. The second reason is that the learned judges do not explain the process by which or the law under which a borrower metamorphoses into a lender (owner). A motor vehicle is a movable and it is the Sale of Goods Act that governs the transfer of ownership or title in a motor vehicle. But for all the purposes of the M.V. Act the owner is one who satisfies the definition of “owner” in the Act. This writer is not oblivious to the fact that definitions of words and expressions in the M.V.Act are contextual and even when contextually interpreted neither of these acts automatically makes a borrower a lender (owner).

5. An interpretation of law should not be illogical or should not lead to unreasonable, unsound or incongruous results. Take a case where the lender (owner) after lending the vehicle requests the borrower to drop him in his house and sits by the side of the borrower or rides pillion. Take another case where the lender (owner) after lending the vehicle drives or rides the vehicle to his house and the borrower sits in the vehicle by the side of the owner or rides pillion. Take yet another case where the borrower after borrowing the vehicle engages a driver and both the lender and borrower are insidethe vehicle. As inNingamma’s case if the vehicle hits a bullock cart and all the travellers in the vehicle and the bullocks and the cart driver are injured and there are claims from the side of the injured and the owner of the bullock, under Section 163-A or 166 who will be held liable as the owner. Whether the insurance company applying the principles in Ningammaand as argued by its counsel (stepping into the shoes) in this case, will indemnify the borrower against the claim made against the borrower under the Workmen’s Compensation Act by the driver engaged by the borrower. Whether the owner can file a claim against the borrower and lender’s Insurer of the vehicle saying that on lending, the borrower stepped into his shoes and after lending he ceased to be the owner of the vehicle. Will the company then support the theory of stepping into the shoes. An accident involving one motor vehicle owned by a single person and a bullock cart but the single motor vehicle will be held to have different, separate and multiple owners in the aforesaid scenario that too when the cases are tried jointly. It will be worthwhile to know the defence of the insurance companies in each one of these cases. Obviously chaos will be the result. As the law now stands now, if the cart driver, for the injuries suffered by him files his claim under section 163-A, the borrower will be held as the owner. If he chooses to file his claim under Section 166, the lender will be treated as the owner. If his claim is for the death of the bullock or for the damage to the cart he will have to raise the claim under Section 166 of the Act and in that event the lender will be treated as the owner. When claims are there by the lender and borrower against each other, who will get compensation from the other. Or both will be dismissed. The M.V. Act, 1988 deserves better interpretation. Besides all these reasons there is a feeling that if full effect was given to the non obstanteclause in Section 163-A of the M.V. Act, the results would have been different.

6. Claims arising out of the use of motor vehicles form one of the single largest categories of cases pending in various courts in India. The principles laid down in Ningamma are religiously followed by the Apex Court and High Courts. It should be like that only. But surprisingly even any justifiable innovations by the tribunals are not seen encouraged. This has resulted in holding that wife using the husband’s vehicle or vice versa or father using the son’s vehicle or vice versa is an instance of borrowing and the user steps into the shoes of the owner. The courts omit to notice that normally cutlery, crockery, beds, etc, in a house are meant for the common use of the members of a family and the vehicle is also not an exception at least when members with proper driving license and with permission use the vehicle, in such cases no one thinks that the user had borrowed the item. In any view of the matter in such cases, at least no body is considered to be stepping into the shoes of somebody. Then why a different yardstick in the case of a motor vehicle. Large numbers of persons are denied compensation dueto Ningamma.

7. Fortunately the principles laid down in Ningamma are made applicable only in one situation. In a situation where the borrower/driver is an unlicensed person and the claims are made by third parties the registered owner is treated as the owner. Otherwise in such cases or in cases where the vehicle is uninsured the owners will argue that they have lent the vehicle. For taxation purposes also the registered owner is treated as owner. It is hoped that Ningamma will not survive long. Now the Apex Court has ruled in Naveen Kumar v. Vijaya Kumar (2018 (1) KLT OnLine 3088 (SC) = AIR 2018 (SC) 983 that for the purposes of the M.V. Act the registered owner is the owner. This judgement is by three judges and it specifies who the owner is. It appears that Naveen Kumar impliedly overrules Ningamma.

New Trends in Media: Desirable and Undesirable

(By Jyothi Abraham, Research Scholar,School of Indian Legal Thought,
                                    Department of Law, Mahatma Gandhi University)

“Give me the front page and you keep editorials.”  – Franklin D Roosevelt

The Journalism has also been accompanied by the emergence of trends many of which are to be welcomed and desirable and sever which are undesirable and portend ill for the future of Indian society. The journalism has become both a principle agency in fighting the forces which are threatening to erode the foundation on which our social structure is based and an instrument in the hands of those promoting these forces for their selfish ends. Some sections of journalism fight the tendency to build a structure of privilege and perk in India while several sections of it and its key personnel are participants in the process of perpetuating this regime and become its beneficiaries. Often the journalism has exposed scandals and some reports have led to executive or judicial action being initiated. On the other hand, there are numerous instances of unsubstantiated reports being published without any apparent attempt of verification of facts. Reporting now is widely practiced as though the reporter was born with license to interpret and comment according to their whims and fancies. Instead of proper investigation, and due care now a day’s journalists are doing Media Trials for breaking news for TRP.

Keynotes:Mass Media, Investigative Journalism, Media Trial.

Introduction

The word journalism is derived from Journal which means a daily register or a diary. To­day the word journal also connotes a newspaper, published every day or even less often or a magazine¹. Thus, Journalism means, the communication of information regarding the events of a day through written words, sounds or pictures. And a journalist is a person who writes for or conducts a newspaper or a magazine. He is also called a press man².

The Chambers 20th Century dictionary defines journalism as “the profession of conducting or write for public journals”. According to the majority of researchers, journalism means “the collection and editing of material of current interest for presentation, publication or broadcast”³. In other words, journalism means communication of information to the public by any media, be it a newspaper, radio, or T.V. A person engaged in journalism is called a journalist⁴.

Journalism helps to explain the events that impact our lives and is developed in a number of forms and styles. Each journalistic form and style use different techniques and writes for different purposes and audiences⁵. There are five principal types of journalism: investigative, news, reviews, columns and feature writing⁶.

a. Investigative

Investigative journalism aims to uncover the truth about a particular subject, person, or event. While investigative journalism is based on the basic principle underlying all journalism-verification and accurate presentation of facts-investigative reporters must often work with unco-operative or recalcitrant sources who do not wish to divulge information. Renowned investigative journalism, such as Bob Woodward and Carl Bernstein’s uncovering of the Watergate scandal, can upend major institutions significantly influence public life.

b. News

News journalism is straightforward. Facts are relayed without flourishes or interpretation. A typical news story often constitutes a headline with just enough explanation to orient the reader. News stories lack the depth of a feature story, or the questioning approach of an investigative story. Rather, they relay facts, events and information to society in a straightforward, accurate and unbiased manner.

c. Reviews

Reviews are partly opinion and partly fact based. The review needs to accomplish two things: one, accurately describe or identify the subject being reviewed, and two, provide an intelligent and informed opinion of the subject, based on research and experience.

d. Columns

Columns are based primarily on the personality of the author, allowing him or her to write about subjects in a personal style. Column writers can take a humorous approach, or specialize in a particular subject area or topic. It’s important for columnists to develop their own voice that is recognizable by their readership. Columnists can interpret events or issues or write about their own personal experiences or thoughts. Columns are usually published weekly.

e. Feature Writing

Feature writing provides scope, depth, and interpretation of trends, events, topics or people. Features aim not only to thoroughly explore a topic by conducting interviews with numerous experts or the key people involved, but to offer a previously unseen perspective on an event, issue, or person. Feature writing commonly wins prestigious awards when it manages to achieve this goal. Features usually have the highest word count of all journalism types.

New Trends: Investigative Journalism and ethics

Let’s analyze two problematical issues that face reporters who investigate sensitive subjects the frequent, almost endemic resort to deception, and dealing with anonymous and confidential sources. The generally agreed rules relating to the use of deception in investigation are clear enough; the problem is with their implementation or, rather, enforcement in newsrooms⁷. The first rule prohibits resort to deception unless it becomes clear that the information sought by the journalist, on a matter of significance, cannot be obtained in a straightforward way. The second rule requires that the ‘public interest’ test be applied if the deception contemplated is serious and would not be countenanced in the normal professional course. The third rule lays down that any investigation that relies on deception must be closely monitored by an editorial supervisor with sufficient experience to make calls on what is and is not legitimate from the standpoint of professional ethics.

The use and misuse of anonymous and confidential sources is a global phenomenon, a minefield that has claimed many casualties and also taken a toll of the public’s trust in journalism⁸. The real problem for Indian journalism today is not so much the protection of anonymous and confidential sources. It is the license given to official, corporate, and other privileged sources to use and abuse its columns and broadcast time and space, hiding behind the veil of anonymity. If they are free from scruple, these sources are able to wield power and influence without responsibility promoting official agendas and special interests, attacking and, at times, scandalizing opponents and opposing views, planting self-serving stories and, from time to time, plain disinformation⁹.

Since the justification for the demand of anonymity and confidentiality is rarely questioned by reporters, and since the deals struck routinely between reporter and privileged source to grant confidential status are rarely monitored and supervised properly within the newsroom, the misuse of sources by journalists, and what is even more damaging, the misuse of journalists and the news media by privileged sources have assumed epidemic proportions. This is where clear, precisely formulated, and well-publicized editorial guidelines
are badly needed in Indian newsrooms¹⁰.

Investigative journalism¹¹ of quality and relevance is valuable in itself, in what it can do for ordinary folk and for society, typically holding up truth to power. But it can also play an instrumentalist role in re-energizing and revitalizing the field of professional journalism that often seems to be tired, losing steam, and shedding value¹². In India and South Asia, the news media are still in growth mode, but there are indications that the global trends will catch up with us sooner than we think. Imagine what a regular flow and, over time, given our human resources, an explosion of high-quality investigations, carried out in the public interest on subjects that matter, can do for the vitality and social value of reporting. Imagine what this can do for trust in, and engagement with, professional journalism and the news industry in our part of the world¹³ .

National security v. Media

Our Media, Electronic, Social Media are at it. This very Media made a mess in 26/11 and live reporting gave away positions of our Security Forces and cost lives. This very Media and Social Activists, NGO, went to town stroking emotions to get the Passengers of 814 released, in exchange for Terrorists, which are a cause of problem in the J & K. This very people and Media went to town and made a general hue and cry to put pressure on Government to release terrorists in exchange for Minister’s daughter.

Media and new media’s are making Wing Commander Abhinandan Varthaman video goes viral, and whipping up emotions of public and Mirror and other channels are running a campaign “Bring Back “Abhinandan”, what is the Government Plan to get the pilot back’ is whipping up emotions to put pressure on Government, to deescalate, reduce pressure on Pakistan. Abhinandan not answering about his personal life or information’s about himself questioned by Pakistan army, But our so called media for rating their channel TRP they will tell, which Aircraft took off from where, where Abhinandan comes from and where his parents stay. Today’s irony of our horrible media and immature social media users. These Media Hounds should be put away for endangering National Security and disclosing Fixed Assets. A recent gold looting case reported by Malayalam news channel that the victim’s mobile phone was in bag which contained gold which was looted and investigation is progressing as per mobile phone signals. This news will help thieves or culprits to escape if they see that news.

Hard-hitting and honest, journalistic initiatives like Bofors case, Tehelka case etc., were why the press is called the fourth pillar of democracy.

1.The Bofors scandal that broke in 1987 marked a watershed for India – it was the first-time corruption became an intensely public and political issue. The scandal was uncovered mostly by the Chennai-headquartered The Hindu and reported by Chitra Subramaniam-Duella and N.Ram. Almost 200 documents relating to Bofors were secretly sourced, verified and translated from the Swedish language before being published along with interviews and analytical pieces.Such was the public fury stoked by this investigation that the government in power eventually ending up on the losing side in the 1989 general election. Interestingly, the Bofors expose was also featured as one of the 50 great stories produced by Columbia Journalism School alumni. N.Ram is one himself in the past 100 years.

2. Tehelka’s Defence Deals Expose: Even as the nation was trying to find its feet after being knocked off balance by the massive Bhuj earthquake, on March 13, 2001, Tehelka published an investigative report that ripped the lid off the murky world of defence deals.Carried out using hidden cameras, the investigation (called Operation West End) publicized secret videotapes of top politicians, bureaucrats and military official accepting bribes from two reporters (who posed as arms agents). The resulting furore created a major political storm and led to the resignation of those indicted by the videotapes. Interestingly, the same year, Tehelka also blew the lid of the explosive match-fixing scandal in Indian cricket.

3. Indian Express’s Cement Scam Expose: On the morning of August 31, 1981, readers of the Indian Express woke up to find a meticulously-researched expose on corruption in the grant of government cement quotas, complemented by supporting evidence and a blistering analysis that ran into 7,500 words. The swift, bold and bloodless journalistic coup has since come to be known as India’s Watergate – or the Cement scandal.Almost overnight Arun Shourie, the then-executive editor of the Indian Express, became a national “hero” for his consciously studied and fearlessly pursued investigation of organised corruption in high places. In fact, it was after this incident that the irrepressibly buoyant MP Piloo Mody famously remarked, “Can you imagine the improved state of the nation if we had 10 Arun Shourie’s working instead of one?

4. Indian Express’s Human Trafficking Expose: The name Ashwini Sarin is not very famous, but in the world of media, he is known as the man who showed how investigative journalism can further the cause of democracy. His sharp and penetrating investigative articles exposed the family planning atrocities during the Emergency, the multi-crore defense vehicle disposal racket and the torture of Tihar Jail inmates. However, the Indian Express reporter is best known for his incisive report on human trafficking that created a whole discourse around flesh trade, controversial as it may have been. In 1981, he exposed the sordid racket by breaking the law himself (when he bought a tribal girl named Kamala) and shows how easy it was to buy humans in India. His work also inspired the movie and play named ‘Kamala‘.

5. Open Magazine’s Nira Radia Tapes:In November 2010, Open magazine carried the transcripts of telephone conversations between Nira Radia (a political lobbyist cum PR honcho) and politicians, industrialists, officers of corporate houses and senior journalists. The tapes wire-tapped by the Income Tax department on a tip-off by the Central Board of Direct Taxes shone a harsh light on the murky manipulations that take place at the highest levels in the country to maneuvers government formation, influence public opinion, and cater to corporate interests. Outlook magazine followed with similar story just days later while the infamous audio recordings were submitted to the Supreme Court by advocate Prashant Bhushan as part of a PIL on the 2G spectrum scam. One of the fallouts of this story was that the indicted corporate group terminated all commercial engagement with the Outlook Group but the magazine’s undaunted editor (Vinod Mehta) stood his ground.

Furthermore, the story of investigative journalism in India would be incomplete without mentioning the important role played by alternative media like CG Net Swara of Chhattisgarh. Founded in 2010 by Shubhranshu Choudhary, CG Net Swara helps poor villagers fight exploitation and oppression by local authorities. For instance, one when the circle officer refused to pay them for work done under the Mahatma Gandhi National Rural Employment Guarantee scheme (and even shouted at them for coming so often), the officer’s harsh rebuke was recorded and published on India’s first mobile community radio. After this attracted the attention of mainstream media, Government took action against the errant officer.

Over the past few decades, Indian media is increasingly being driven by profits, and has all but abandoned its role as the fourth pillar of democracy. In this landscape, far from being appreciated, good reporting is actively censored. Editors play brokers, trying to balance various interests while maintaining a veneer of professionalism. And owners have pawned their brands for political and commercial glory. The fastest promotions and the fattest salary packages are reserved mostly for middlemen, who masquerade as journalists but primarily fix deals and manage the sundry troublemakers for the media baron politicians, tax authorities and the police, among others¹⁴ .

Thus, most reporters simply report on stories coming out in the newswires, which churn out public-relations material for the establishment. The reporters mildly modify these stories, insert their names, and file their drafts. The editors are, in turn, happy that there is no difficult copy to edit, no corporate giant to pacify, no government bullies to be dealt with. These phony bylines are all these reporters can hope for in big newsrooms¹⁵. As a result, most newspapers look and read identical to each other. The rest of the daily carry’s corporate announcements, a few off-beat human-interest stories, and some data-based articles¹⁶. There is no investigative journalism. Now emerged a new trend in media room it’s called media trial.

The emergence of media and its easy accessibility has led to the beginning of a phenomenon called ‘media trial’. Media platforms are used as a medium to make the voices heard and mobilize popular support. It is now a widely recognized fact that the media has the potential to facilitate social transformations by promoting and disseminating information and ideas¹⁷ . When we talk about this potential, we cannot afford to deny the role media play in the context of the accused issues in the society¹⁸ .

Media plays a very important role in changing the viewpoint of the audience. The world is made aware of the scandals, heinous crimes or any other unpleasant incidents making their way into the society in the last two decades the impact and the effect of media on human lives has increased manifold. Media has a tentacle reaching into every nook and corner of the society, be it a village or a metropolitan¹⁹. In this era of globalization, the world has shrunk just to a room because of various modes of media communication. The social media along with conventional media has given an opportunity to the common man to express views through Blogs, Website posts, Facebook, Twitter etc.

Recently, numerous occasions have come to pass when media after carrying out their own investigation passed a verdict in a case, thus stretching their freedom way too far, to the extent of intervening in the arena of the judiciary. Media is accused of creating an environment of public frenzy equivalent to lynch mob which not only makes a fair trial unworkable but also results in the intense public scrutiny of the person under trial. In order to assess the role played by the media in today’s dynamic world where lives are changing every second, the role played by the media and challenges it is facing in present times.

The media exceeds its right by publications that are recognized as prejudicial to a suspect or accused. Reports concerning the character of accused, publication of confessions, publications which comment or reflect upon the merits of the case, photographs, police activities, imputation of innocence, creating an atmosphere of prejudice and criticism of witnesses are considered as prejudice²⁰.

Conclusion

Despite the fact the Constitution of India guarantees basic Human Rights and Fundamental Rights to an accused, the paper would conclude that, ‘media trial of cases involving accused hamper rights of the accused as well as reinforce the social morality/values by moral policing them in public media platforms. In this sensational reporting and the moral judgments flying thick and fast about accused values and character, there is one question that haunts us: what if, a few years later, the courts determine that the prosecution has failed to make their case against his/her and his/her co-accused beyond ‘reasonable doubt’? What if the courts are compelled to exonerate/acquit his/her? Will we, as a society that is judging his/her, ever be able to restore the lives of the accused and all those connected to them to normalcy? There is unfortunately no mechanism for providing reparations to the victims of a media trial.

Footnote:

1. M. FERGUSON, Electronic Media and Redefining Time and Space (1990).

2. N. GARNHAM, The Media and the Public Sphere (1986).

3. D.H WEAVER, The Global Journalist (1998).

4. According to Webster’s Third International Dictionary, Journalism define as “The collection and editing of material of current interest for presentation, publication or broadcast”.

5. P. GOLDING, G. MURDOCK, Ideology and the Mass Media: The Question of Determination (1979).

6. G.MURDOCK, Redrawing the Map of the Communication (1990) ed.M.FERGUSON, Public Communication London Sage.

7. L. SUNG AND A. D. DEACON, New Communication Technologies and Deregulation (1994).

8. M.Gurevitch Mass Media and Society(1991).

9. Louisa Preston, “The role of the journalist in the surveillance of justice, An unpublished essay for Broadcast Practice” 3, (1999).

10. J.CURRAN, Mass Media and Democracy : A Reappraisal (ed) M. Gurevitch, Mass Media and Society (1991).

11. D.WEIR, How the Center for Investigative Journalism Gets a Story ed Addison Wesley (1983).

12. MOHAMMADI A, Questioning the Media: A Critical Introduction (1995).

13. P.Schlesinger, “Putting Reality Together”, London: Constable. P.Schlesinger, Rethinking the Sociology of Journalism: Sources, Steategies and the Limits of Media- Centrism (1990).

 Model Code of Conduct – Its Scope, Sweep and Applicability to Co-operative Societies

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

Model Code of conduct for level playing field^*

Indian elections are acknowledged for a number of innovative measures which facilitate successful and meaningful electoral participation.  Model Code of Conduct (MCC) is one such significant and successful contribution of Indian elections. Since 1968, MCC has emerged as a binding ethical code subsequent to consensus amongst all political parties to facilitate a level playing field and for observance of ethical behaviour during elections.  The MCC has been issued by the Election Commission of India under its executive power.  The Supreme Court in its several pronouncements has recognized the fact that the Election Commission is well entitled to take necessary steps as per the provisions of the MCC to ensure conduct of free and fair election.  This code is considered to be the moral fabric of successful electoral odyssey.

The MCC is a singular contribution by political parties to the cause of democracy in India. It ensures a level playing field in the arena of election, where the party in power cannot take any action in close proximity to announcement of election. The object of the MCC is that energy to do good by the party in power should not be used on the eve of elections, so as to derive any benefit during elections. The MCC comes into operation right from the time and day, the election schedule is announced by the Election Commission.

The MCC applies in relation to all elections to House of People and State Assemblies. It is also applicable in case of elections to Legislative Councils from Local Bodies, Graduates’ and Teachers’ Constituencies. At the time of a general election to the House of the People or to a State legislative assembly, the MCC applies throughout India or, as the case may be, the State concerned. In the context of a bye-election, it has a limited application in the district or districts in which the Assembly/Parliamentary Constituency going to poll lies. The provisions of the MCC apply to all organisations/committees, corporations/commissions etc., funded wholly or partially by the Central Government.

At the time of each general election, the Election Commission issues directions to Union Government and State Governments concerned to refrain from making announcement for any major financial initiative or undertaking any new developmental scheme/project which can be perceived as distorting to the level playing field for all political parties. Any action in contravention of the provisions contained in the MCC including any publication of its advertisements by them highlighting their achievements or announcing new subsidies, tariffs or schemes would attract the provisions of the MCC and tantamount to violation of the same.

MCC is not a taboo

Though the purpose and object of the MCC is not to stall the activities of the Government citing election schedule, time and again Government departments, corporations, councils and co-operatives refrain from doing the routine activities citing the MCC as the reason [or a pretext).  Even the schemes which are routine in nature or in operation as a continuing scheme are put on hold.  Whether such a ban is fair and serves the objective of the MCC can be examined in the light of certain decisions of the High Courts.

In Babu v. Election Commission of India(2006 (2) KLT 137) the question was whether the action of the Election Commission directing the State Government to put on hold the decision to implement the recommendations of the Pay Commission was legal. A Division Bench of the Kerala High Court held as follows:

“In view of the budget speech and announcement of the Government that recommendations of the Pay Commission will be implemented on 10.2.2006, it cannot be stated that the decision to implement the recommendations of the Pay Commission was made after the Model Code of Conduct came into force. Even the formal decision of the cabinet was also taken on 1.3.2006, before the commencement of the election schedule. Only modalities were chalked out by the special cabinet meeting after the pronouncement of the election. Therefore, even if Model Code of Conduct came into force and implementation of the recommendations of the Pay Commission is against the Model Code of Conduct, the decision to implement the recommendations of the Pay Commission was taken before the announcement of election schedule and hence there is no embargo in implementing the Pay Commission report.”

The solemn purpose for which the MCC should come into play was succinctly brought out by the Kerala High Court in Intelligence Decision Systems (India) P. Ltd. v. Chief Election Commissioner(2006 (2) KLT 454) in the following words:

“The object of model code of conduct is not to stop all governmental activities in the State pending elections. Notwithstanding the elections, the normal governmental functions should go on. It is only where with the intention of influencing the voters of the State the party in power declares any promises to the people that the model code of conduct comes into play. Simply because a normal governmental function would also result in some benefit to the public at large, that would not come within the ambit of the model code of conduct. Election Commission should examine these aspects carefully before coming to the conclusion whether the action infringes the model code of conduct and shall not interdict all governmental functions simply because it would result in some benefit to the voters of the State or the public at large.”

It was held in Omprakash v. Chief Electoral Officer & Ors.(AIR 2009 Raj.161) that the Chief Electoral Officer cannot interdict the Regional Transport Authority and observed as follows:-

“In the circumstances, therefore, the view taken by the Chief Electoral Officer that the Regional Transport Authority, which is a quasi judicial authority, should not pronounce the order even after hearing is complete cannot be sustained in law. The direction of the Chief Electoral Officer to that extent is declared illegal. The Regional Transport Authority would now be free to pronounce its order.”

The question before the Kerala High Court in T.M.Basheer v.  Secretary, The Regional Transport Authority, Ernakulam & Anr.(2016 (2) KLT 108),W.P.(C). No.9390 of 2016 (W) dated
21.3.2016 was should the statutory exercises by the Regional Transport Authority or its Secretary in the matter of granting permits, conducting timing conferences or allowing replacement of the vehicles be held up owing to the MCC for election?

Answering the question in negative, the Court held that the Regional Transport Authority or its Secretary is exercising only quasi judicial functions in dealing with the applications for permit or settling the timings. The grant of permits or its renewal or the settlement of timings is not a bounty but valuable rights to the operators restricted reasonably by the Motor Vehicles Act. No superior authority can dictate in what manner the power vested in the Regional Transport Authority or the Secretary has to be exercised in a given circumstances. The mere fact that the grant of permits or the replacement of the vehicle in exercise of the quasi judicial function would benefit the public at large is inconsequential. The election will come and go and the statutory exercise by the quasi judicial authority need not be deferred on the premise of the MCC. The MCC does not fetter or keep in limbo the exercise of statutory functions that are manifestly quasi judicial in character.

Co-operative societies not funded by Government are not bound by MCC

The prayer of the petitioner co-operative society before the Division Bench of Gujarat High Court in Mehsana District Co-operative Milk Producers Union Ltd., v. The District Election Officer, Mehsana and the District Collector, Mehsana, Special Civil Application No. 6043/2019dated 16.4.2019 was that the Model Code of Conduct shall not come in the way of the petitioner society in holding the special general body meeting and a direction restraining the respondents from interfering with the holding of the special general body meeting on such date as may be permitted by the Court.

By the impugned communication, the first respondent directed the petitioner Union to postpone the special general body meeting in view of the code of conduct having come into force. It was the case of the petitioner that the code of conduct came into force on 10.3.2019 on the declaration of the Lok Sabha elections, before which, the agenda notice dated 8.3.2019 had already been issued. It was also the case of the petitioner that there was no violation of the MCC in holding the special general body meeting.

According to the petitioner, a meeting held by a co-operative society in the regular course of its business, would not fall within the ambit of the MCC. Vehemently opposing the petition, the first respondent, referred to clause 3.5 of Chapter 3 of the MCC to submit that provisions of the MCC apply to all organizations/committees, corporations/commissions etc. It was submitted that co-operative societies would fall within the ambit of the expression ‘corporation’ and hence, the MCC is also applicable to them. It was submitted that the election officers are required to see that public funds are not misused for the purpose of influencing the voters. It was contended that the blanket submission that the MCC will not apply to co-operative societies is not correct, more so, when the co-operative is funded by the State/Central or any Government body.

In the backdrop of the above facts and contentions, the first question which arose for consideration is whether the MCC would be applicable to the petitioner Union. On a plain reading of the clause 3.5 together with the provisions of the other chapters of the MCC, more particularly Chapter 5 thereof, it is evident that the intention is to cover those organizations/committees, corporations/commissions etc., funded wholly or partially by the Central Government or any State Government who carry on any developmental activities on behalf of the Central Government or the State Government. Insofar as co-operative societies are concerned, on a plain reading of clause 3.5 of the Code of Conduct, it is evident that unless such society is funded wholly or partially by the Central Government or the State Government and is carrying on development work on their behalf it would not be governed by the MCC during the routine course of its business.[Italics to add emphasis]

In the opinion of the Court, the receipt of some aid by the petitioner society in the year 2016-17 for bulk purchase of coolers or receipt of some subsidy from NDDB in the year 2017-18, cannot be equated with Central/State Government funding as envisaged in clause 3.5 of the MCC and hence, the petitioner Union would not be governed by the MCC.

Assuming for the sake of argument that the MCC applies to the petitioner Union, what is then required to be examined is whether holding of a meeting on 24.3.2019 to discuss agenda items issued on 8.3.2019 can be said to be in violation of the MCC. On a plain reading of the two contentious agenda items, it was apparent that both the items relate to amendments of the bye-laws of the petitioner Union, which have nothing to do with developmental activities nor do they relate to distributing freebies so as to influence the voters. On fails to understand as to how amendment of the bye-laws of the petitioner Union would have an impact on the voters as contemplated under the MCC. Besides, at best, if the respondents found two agenda items to be objectionable, discussion on those two items could have been suspended, but there was no reason to suspend the entire meeting and thereby causing immense prejudice and hardship to the petitioner Union and the persons who were to participate in the meeting.

The conduct of the respondents and the unduly prompt manner in which they have acted, gave clear indication that the powers exercised under the guise of implementation of the MCC have not been exercised for the purpose for which they are vested. The MCC clearly does not apply to the petitioner Union. Moreover, the items No. 3 and 4 of the agenda items of the special general meeting that was to be held on 24.3.2019, cannot in any manner, be termed as violative of any of the provisions of the MCC. Under the circumstances, the impugned direction issued to the petitioner not to convene the special general meeting while the MCC is in force, cannot be sustained. The petitioner union was permitted to hold the special general body meeting which had been postponed by virtue of the communication dated 22.3.2019, even during the period when the model code of conduct is in force. In fine, the impugned communication was set aside and the petition stood allowed.

Impact and implication of the Judgment

It is unfortunate that all co-operative societies are viewed as the extended arms of the Government and all the rules in force for the Government are mechanically made applicable to co-operative societies, whether they are funded by the Government or not and whether the MCC would be applicable to such societies.  The activities of the societies are, by and large, stalled when the MCC is in force and the commercial activities are bound to suffer.  It is fervently hoped that the authorities would understand the impact and implication of the judgment of the Gujarat High Court in the light of the other judgments referred to, and act to the best advantage of the co-operative societies and at the same uphold the spirit of MCC.

Foot Note:

 *Inputs, with grateful acknowledgement, from the Manual on Model Code of Conduct (for guidance of political parties and candidates and other relates guidelines), March 2019 - Issued by the Election Commission of India.