Legal Discourse

01/07/2024

Is India Moving towards Speedy Justice to all its Citizens?

India has one of the largest number of pending court cases in the world. Many judges and government officials have said that the pendency of cases is the biggest challenge before Indian judiciary. 4.5 crore out of 5.1 crore cases, i.e more than 87% cases are pending in district courts as of 2024. With the cases taking time in courts, it leads to delays in the delivery of justice for both victim and accused. In order to ensure speedy justice to all its citizens in conformity with these constitutional and democratic aspirations the need of the hour is to make a comprehensive review of the framework of criminal laws to provide accessible and speedy justice to all. With the changing scenario and social economic development the use of technology and forensic sciences in the investigation of crime and use of electronic medium of communication is necessary. The three new criminal laws — Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Saksha Adhiniyam (BSA) — which seek to replace the British-era Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Indian Evidence act will come into force from July 1 this year, the Centre has announced. Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (formerly Criminal Procedure Code, 1973 has divided different types of crimes/ offences into several chapters. Beneficial provision in the BNSS is the time-bound completion of investigations (Section 193 BNSS-2023), which mandates electronic communication of investigation progress and final reports.

Section 105 is a new provision added to the BNSS. Section 105 mandates that search and seizure made by the police, including preparing the list of seized items and signature of witnesses, shall be recorded through audio-video electronic means. It further obliges the police officer to forward such recording “without delay” to the District Magistrate, Sub-Divisional Magistrate, or First-Class Judicial Magistrate. Section 105 of BNSS will ensure more transparency and curb the misuse of police powers by eliminating any likelihood of the police planting fake evidence. On-cognizable, bailable or non- bailable and compoundable or non-compoundable are listed in the First Schedule of the BNSS. It is generally observed that these new statutes provide for definitive and hence relatively expeditious timelines. These provisions will arguably enhance the efficiency with which criminal matters are handled by law enforcement and the judiciary. Any offence of which cognizance cannot be taken by the police is a non-cognizable offence. In cases of non-cognizable offences, a police officer has no authority to arrest without a warrant from the magistrate; the police must obtain an order under Section 174(2) of BNSS from the magistrate. Once such an order is obtained, the police may treat the said case in the same way as a cognizable offence. If the police at any point refuses to register an offence, the aggrieved person can approach the magistrate by making an application under Section 175(3) of the BNSS to present their case. A direction may then be given by the magistrate to the police to take cognizance of the case. Before approaching the magistrate, the aggrieved person will have to comply with Section 173(4) of BNSS to inform the Superintendent of Police/ Deputy Commissioner of Police (SP/ DCP) about the failure of the police officer to register an FIR. The SP/ DCP may, on being satisfied that a cognizable offence has been committed, investigate the case themselves or direct the investigation to be made by any officer subordinate to him. As opposed to Section 154 of the CrPC which was jurisdiction-centric, a police officer can now register an FIR at his/ her police station, irrespective of the area where the offence is committed. The said police station registering the FIR can transfer the FIR/ investigation to the concerned police station under whose jurisdiction the offence has been committed. However, the new provisions for investigation procedures, particularly Section 167 CrPC. (now Section 187 BNSS-2023), raise concerns. Section 187(2) BNSS-2023 allows for a remand period of up to 15 days at any time during the initial 40 or 60 days of detention, depending on the case, which complicates matters. This provision permits the police to seek remand even after the initial remand period is over, effectively delaying bail for the accused. No bail application can be entertained while the accused is under police remand during the initial 60 days of detention. This can be misused by the police to delay bail consideration by the Magistrate, Sessions Court, or even the High Court. Adapting these new laws will be challenging for the judiciary and law enforcement. Comprehensive training programs, workshops, and seminars are crucial to ensure that lawyers, police officers, and judges effectively understand and implement these changes.

Written by : Mohd Mustkeem Baig

29/05/2024

Tenant Continuing In Possession After Expiry Of Tenancy Liable To Compensate Landlord By Paying Mesne Profits : Supreme Court

The Supreme Court held that if the tenant continues to remain in the rented premises even after the tenancy rights are extinguished, then the landlord would be entitled to receive compensation in the form of 'mesne profit' from the tenant.

“While the above-stated position is generally accepted, it is also within the bounds of the law, that a tenant who once entered the property in question lawfully, continues in possession after his right to do so stands extinguished, is liable to compensate the landlord for such time period after the right of occupancy expires.”, the bench comprising Justices JK Maheshwari and Sanjay Karol said.

The question that appeared before the Supreme Court was whether the tenant would be liable to pay compensation to the landlord in the form of 'mesne profit' when there was no eviction order against the tenant but continued to remain in the rented premise.

Answering affirmatively, the Judgment authored by Justice Sanjay Karol observed that the tenant would be liable to pay the mesne profit to the landlord for the period he had been a 'tenant at sufferance'.

"Tenant at sufferance" is a tenant who enters upon the land by lawful title but continues in possession after the title has ended.

The Court's observation drew support from its Judgment of Indian Oil Corporation Ltd. v. Sudera Realty Private Limited, 2022 LiveLaw (SC) 744, where also it was observed that the tenant while continuing in possession after the expiry of the lease became liable to pay mesne profits.

“In our considered view, the effect of the words 'determination', 'expiry', 'forfeiture' and 'termination' would, subject to the facts applicable, be similar, i.e., when any of these three words are applied to a lease, henceforth, the rights of the lessee/tenant stand extinguished or in certain cases metamorphosed into weaker iteration of their former selves…Therefore, in any of the these situations, mesne profit would be payable.”, the court observed.

“we may record a prima facie view, that the respondent-tenant has for the reasons yet undemonstrated, been delaying the payment of rent and/or other dues, payable to the petitioner-applicant landlord. This denial of monetary benefits accruing from the property, when viewed in terms of the unchallenged market report forming part of the record is undoubtedly substantial and as such, subject to just exceptions, we pass this order for deposit of the amount claimed by the petitioner-applicant, to ensure complete justice inter se the parties.”, the court concluded.

24/05/2024

Summer Vacation Announced For District Courts In Jammu

In Jammu and Kashmir, the district courts in the summer zone of Jammu province, excluding those in district Kishtwar, Doda, and specific courts in Ramban and Kathua, will observe a 15 day summer vacation from 10th June to 24th June, 2024. The Akashvani Jammu Correspondent reports that, as per orders issued by the Registrar General of the High Court of Jammu and Kashmir and Ladakh, the Principal District and Sessions Judges, along with Chief Judicial Magistrates of the concerned districts, are instructed to arrange for the disposal of urgent criminal cases within their respective jurisdictions during this period.

22/05/2024

Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law.

The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article.

In other words, to forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution.

The Supreme Court observed in its judgement that the State cannot take possession of a person’s private property without following due procedure of the laws.

This verdict was given in a case where the Government of Himachal Pradesh had forcibly taken 4 acres of private land to build a road. This incident had occurred in 1967, at a village in Hamirpur district, in Himachal Pradesh.

Justice Malhotra highlighted the failure of the Himachal Pradesh Government to pay compensation for 52 years, to the appellant, who was a widow and illiterate.

Justice Malhotra empathized that the appellant had not filed any proceedings for the failure of the state government to pay land compensation, as the appellant was from a rural background and who was not educated enough to know her entitlements and rights given to her by the law.

After many years, the appellant moved to the Supreme Court, initially, she had filed a case in the High Court, but the High Court had asked to file a civil suit in the lower court, hence the Supreme Court was approached.

The Supreme Court observed in its judgement that the State becomes an encroacher when it grabs the private property of a person without following due process of law.
The Supreme Court ordered the Government to pay a compensation of Rs 1 crore to the 80-year-old appellant.

21/05/2024

Today is World Day for Cultural Diversity for Dialogue and Development. It is celebrated to highlight not only the richness of the world’s cultures, but also the essential role of intercultural dialogue for achieving peace and sustainable development.

With nearly 90 percent of all current conflicts in the world occurring in countries with low intercultural dialogue, to forge effective cooperation and sustain peace, strengthening intercultural dialogue must be a priority. According to UNESCO, the cultural and creative sector is one of the most powerful engines of development worldwide. It accounts for more than 48 million jobs globally -almost half of which are held by women. It is also the sector that employs and provides opportunities for the largest number of young people under the age of 30.

However, the cultural and creative sector still does not have the place it deserves in public policies and international cooperation.

29/02/2024

The Supreme Court on 26th February 2024 granted bail to a man accused of being involved in a dowry death after it was informed that his bail plea had been pending before the High Court of Jammu and Kashmir and Ladakh for months without a decision [Arjun Kattal vs. The State of Jammu and Kashmir].

Justices BR Gavai, Rajesh Bindal and Sandeep Mehta observed that the accused (bail applicant) had been incarcerated in jail for almost eight years.

The Court also took into consideration the poor pace at which the criminal trial against him was proceeding. It proceeded to grant him bail despite the pendency of his bail plea before the High Court.

"The petitioner has been incarcerated in jail for a period of almost eight years. Taking into consideration this fact and the speed at which the trial is proceeding, we are inclined to grant bail in spite of the pendency of the matter before the High Court", the February 26 order stated.

28/02/2024

Supreme Court imposes a COMPLETE BAN on Patanjali advertisements after SC comes down heavily upon Baba Ramdev and Patanjali for 'false and misleading' ads. Notice for contempt of court issued to Patanjali and Acharya Balakrishnan.

Supreme Court comes down heavily upon Baba Ramdev and the Central Government for "false and misleading" advertisements by Patanjali.

"You have the guts to put out these ads after our orders! You are tempting the court!" SC tells Baba Ramdev.

"The entire country is being taken for a ride" and the govt is "sitting with its eyes closed" says SC

12/12/2023

12/12/2023

On December 11, the honourable Supreme Court of India delivered a historic judgment on the abrogation of Articles 370 and 35(A). Through its judgment, the court has upheld the sovereignty and integrity of India, something that is cherished by every Indian. The court rightly observed that the decision taken on August 5, 2019 was done with the purpose of enhancing constitutional integration and not disintegration. The court has also recognised the fact that Article 370 was not permanent in nature.

Jammu, Kashmir, and Ladakh’s breathtaking landscapes, serene valleys, and majestic mountains have captivated the hearts of poets, artists, and adventurers for generations. It is a place where the sublime meets the extraordinary, where the Himalayas reach for the sky, and where the pristine waters of its lakes and rivers mirror the heavens. But, for the past seven decades, these places have witnessed the worst form of violence and instability, something which the wonderful people never deserved.

10/08/2023

📌Today marks the 50th anniversary of the landmark Kesavananda Bharati case, a pivotal moment in Indian constitutional history. The case, which was heard by a 13-judge bench of the Supreme Court, dealt with the question of whether the Indian Constitution could be amended to the extent that it would alter its basic structure.

📌The decision in Kesavananda Bharati not only limited the power of the Indian Parliament to amend the Constitution but also established the concept of "basic structure doctrine," which has been used to safeguard the fundamental principles of the Indian Constitution.

📌This decision had far-reaching implications for Indian democracy and the protection of individual rights. It ensured that the Constitution would remain a living document, capable of evolving with the times while retaining its essential character and values.

📌As we celebrate the 50th anniversary of Kesavananda Bharati, we pay tribute to the vision and foresight of the framers of the Indian Constitution and the judges who interpreted it. This decision reminds us of the importance of an independent judiciary in upholding the rule of law and protecting the fundamental rights of citizens.

📌Let us continue to cherish and uphold the principles of our Constitution and use this landmark decision as a guiding light for our democracy in the years to come.

13/05/2023

Clarifying the legal provisions for the discharge of a probationer under the Jammu & Kashmir Police Manual, the Jammu & Kashmir and Ladakh High Court

Clarifying the legal provisions for the discharge of a probationer under the Jammu & Kashmir Police Manual, the Jammu & Kashmir and Ladakh High Court has held that an individual can be discharged...

11/05/2022

*25 cases registered under sedition law in J&K in 5 years*

Srinagar, May 11: At a time when the Supreme Court has put a freeze on British-era sedition law, official data reveals that 25 cases were registered under it in Jammu & Kashmir from 2014 to 2019.

The data accessed by news agency, lays bare that 25 cases were registered under colonial era law of sedition in Jammu & Kashmir from 2014 to 2019.

The Supreme Court today restrained the authorities from registering FIRs, continuing any investigations or taking any coercive measures under section 124A (sedition).

The court also ordered that appeals and proceedings under Section 124A should be kept in abeyance for the time being.

According to the data, one case each under the sedition law was registered in Jammu and Kashmir in 2015 and 2017.

As per data, not a single case was registered under the law in J&K in 2014 and 2016.

The data lays bare that 12 cases were registered in 2018 when the erstwhile State was ruled by the PDP-BJP coalition government for nearly six months before imposition of Governor’s Rule on June 20 that year after BJP withdrew support to Mehbooba Mufti-led government citing “deteriorating security situation” in the state.

In the year 2019 when the Government of India abrogated Article 370 and reorganized the erstwhile state of J&K into two Union Territories, 11 cases were registered under sedition law in J&K.

It is worthwhile to mention that section 124A of IPC states that whoever “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India” can be held to have committed sedition.

While IPC became applicable to J&K after its reorganization, the provisions of sedition law were also existing in the Ranbir Penal Code (RPC), which was applicable to J&K till October 30, 2019.