Kerala High Court paves way for organ donation by a friend, chastises authorities for presuming it was a commercial transaction
The authorities must always try to help the man on the death bed rather than find some technicalities or unsupported suspicions to conclude that there is a commercial transaction, the Court said.
The Kerala High Court recently cautioned organ donation committees and the police to refrain from rejecting organ transplant applications on technicalities or unfounded assumptions of the transplant being a commercial transaction. [Biju Mathewaged & Anr. V Deputy Superintendent & Ors.]
Justice PV Kunhikrishanan made the observation while directing a District Authorization Committee for Transportation of Human Organs to allow a renal transplant for a man suffering from advanced chronic kidney disease.
The kidney transplant request was earlier rejected by statutory authorities on suspicions that it was a commercial transaction since the donor and donee were unrelated and did not have any familial links.
The donee and his family, however, asserted that the proposed organ donor was a well-wisher and a close family friend who came forward to donate his kidney out of free will and affection.
The case prompted the Court to remark that if human beings thought more about helping others live a little longer, instead of just living longer, “god and our fellow citizens will bless us.”
“That should be the slogan for encouraging human organ donation,” the Court added.
Criticising the manner in which the organ transplant request was handled by the authorities in this case, the Court further emphasised,
“A man is in the death bed. He is hoping that he will get a life from another person. The Authorization Committee and Police shall always try to help the man in the death bed rather than to find out some technicalities and unsupported suspicions to conclude that there is a commercial transaction or money transaction.”
The Court also noted that organ donation approval committees should not pass orders mechanically, even if a police verification report may be required to rule out any commercial transaction between unrelated organ donors and donees.
The Court added that concerns about the commercialization of organ donation can be reduced by examining whether there were any middlemen in the transaction.
“The concern of commercialization of organ donation can be reduced by removing the direct link between the person who offers to donate and the recipient,” the Court’s judgment stated.
The Court proceeded to allow the organ donee’s writ petition and directed the District Authorization Committee to pass orders to approve the organ transplant request.
The Delhi High Court has ordered three authors of books on artificial intelligence, who have been accused of copyright infringement by a teacher, to remain present in the Court on October 18. [Kartik Sharma v. Sultan Chand And Sons Pvt Ltd & Ors]
Justice Pratibha M Singh also ordered e-commerce platforms to take down the infringing copies of the book by educationist Kartik Sharma titled âEssentials of Artificial Intelligenceâ within 72 hours, in compliance with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
In the case at hand, the Court found that a chapter called âCommunication Skillsâ has been reproduced âalmost word-to-wordâ in one of the books of the defendant-authors.
“The books have been produced and it is seen that in two books i.e. âEssentials of Information Technologyâ by Defendant No. 7-Preeti Arora, and âEssential of Artificial Intelligenceâ by Plaintiff-Kartik Sharma, the Chapter called âCommunication Skillsâ is almost word-to-word reproduced,” the order stated.
Sharma, meanwhile, claimed that 77 pages of his books have been reproduced verbatim.
He moved the High Court to permanently restrain any infringement of his copyright in a book on artificial intelligence, designed for students of Classes VIII to XII.
The Court was told that Sharma had conducted thorough research and created a framework aligned with the Central Board of Secondary Education (CBSE) curriculum to teach the subject to school students.
The author said that in February this year, he came across a book titled âEssentials of Information Technologyâ for Classes IX and X published by Sultan Chand and Sons. It was alleged that the book in question reproduced certain portions from Sharmaâs books verbatim.
The terms ‘weights’ and measurements are not defined in the Indian Penal Code of 1860, but Section 2 of the Standard of Weights and Measures Act of 1976 defines “weighing or measuring equipment” as “equipment used for measurement in terms of length, area, volume, capacity, weight, or number, regardless of whether the equipment has been constructed to give an indication of the measurements made or any other information that is determined with reference. Chapter XIII of the Indian Penal Code deals with offences relating to weights and measures.
What are the offences relating to weights and measures?
The term âWeights and measuresâ refers to the uniform standards that are ascribed to the quantity, capacity, volume, or dimensions of anything. The need for these standards arises for many reasons:
Having a standardised measurement for purposes of science, commerce and industry transactions.
To provide protection to the aggrieved party when they are deceived by another person to believe that a particular weight or measure is authentic when in reality it is false.
Section 264-267 of the Indian Penal Code, 1860 defines 4 types of offences that relate to weights and measures. They are:
Fraudulent use of false instruments for weighing (Section 264)
Fraudulent use of false weight or measure (Section 265)
Being in possession of false weight or measure (Section 266)
Making or selling false weight or measure (Section 267)
Section 25 of the Indian Penal Code (hereinafter referred to as IPC) states that a person is said to do something fraudulently when he does that thing with the intent to defraud but not otherwise.
The ingredients of each of the offences are as follows:
Fraudulent use of false instruments for weighing
Fraudulent use
Of any instruments for weighing
Which the person knows to be false
Fraudulent use of false weight or measure
Fraudulent use
Of any false weight or false measure of length or capacity OR
Use of any weight or any measure of length or capacity as a different weight or measure from what it is
Being in possession of false weight or measure
Possession
Of any instrument for weighing, or of any weight, or of any measure of length or capacity
Which the person knows to be false
Making or selling false weight or measure
Making, selling or disposal
Of any instrument for weighing, or any weight, or any measure of length or capacity
Which the person knows to be false
In order that the same may be used as true, or knowing that the same is likely to be used as true
An injury that is caused dishonestly usually includes injury which is only pecuniary in nature. However, an injury that is caused fraudulently includes injury that is not only pecuniary but non-pecuniary in nature, i.e., it includes injury caused to the body, mind, reputation and property.
Possession does not necessarily imply ownership of the weight and measurements. Thus, it is not necessary to prove the ownership of the instrument for weighing, or any weight, or any measure of length or capacity, the possession alone is sufficient.
Section 24 of the Standard of Weights and Measures Act, 1976Â states that if any weighing or measuring equipment is found in the possession of any person carrying on a trade or on any premises that are used for trade that person or, the occupier of those premises shall be deemed to have that equipment in his possession for use for trade.
Punishments for the offences contained under Sections 264-267 of IPC
Cognizable offences are those in which the police officer can without a warrant, arrest the convict and start an investigation without the permission of the court. A non-cognizable on the other hand refers to those in which the police cannot arrest the accused without a warrant nor can they initiate an investigation without the permission of the court.
Bailable offences refer to those which are provided for as bailable under the First Schedule or those which are made bailable by any other law for the time being in force. Non-bailable refers to all the offences that are not considered bailable. Under bailable offences, bail is claimed as a Matter of Right while under non-bailable offences it is claimed as a Matter of Discretion.
Fraudulent use of false instruments for weighing (Section 264)
The classification of this offence is non-cognizable and bailable. Any Magistrate can try a case under this Section. Under this Section, a person may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Fraudulent use of false weight or measure (Section 265)
The classification of this offence is non-cognizable and bailable. Any Magistrate can try a case under this Section. Under this Section, a person may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Being in possession of false weight or measure (Section 266)
The classification of this offence is non-cognizable and bailable. Any Magistrate can try a case under this Section. Under this Section, a person may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Making or selling false weight or measure (Section 267)
The classification of this offence is cognizable and non-bailable bailable. Any Magistrate can try a case under this Section. Under this Section, a person may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Thus, while the punishment for all the offences under Section 264-267) is the same, the classification of the offences contained under Section 264-266 is that of being non-cognizable and bailable but the offence under Section 267 is classified as a cognizable and non-bailable offence.
In addition to criminal culpability under the IPC, the Consumer Protection Act of 2019 provides a civil remedy in the form of compensation. According to Section 2 of the aforementioned Act, “unfair trade practice” refers to any trade practice that, for the purposes of selling, using, or supplying any goods or providing any service, employs any unfair method or deceptive practice, including falsely representing that the goods or services are of a particular standard, quality, quantity, grade, composition, style, or model.
Section 22(3) of the Standard of Weights and Measures Act of 1976 also states that if any of the Act’s provisions are violated, the offender faces a fine of up to 2,000 and imprisonment for up to one year, or both.
Important case Laws
Emperor vs Kanayalal Mohanlal Gujar, (1939) 41 Bom LR 977
In this case, it was determined that purpose is a necessary component of the Section 264 offence. It involves two things: (1) the fraudulent use of any fake weighing device, and (2) knowledge that it is false. In this and subsequent parts, the term ‘false’ refers to anything other than the instrument, weight, or measure that the offender and the person cheated have agreed upon, expressly or implicitly, in their mutual dealings. Where the vendor and customer agreed to use a certain measure for a commodity offered, it was determined that even though the measure was not standardised, it was not ‘false’ and there was no fraudulent intent in this case.
Hamirmal Case (1890) Unrep Cr C 514.
The mere presence of forged weights and measures does not raise a strong suspicion of fraud. It is necessary to demonstrate that the accused was aware of the scales’ falsity and intended to use them fraudulently.
Bansidhar vs the State of Rajasthan AIR 1959 Raj 191
In this case, the applicant had two sets of weights, one of which was lighter than the specified weight. In this case, the court determined that the applicant had the weight with the intent to defraud. The fact that the bogus weights were discovered buried beneath a bag on which the accused had been seated suggested that he was actively fooling his customers. The accused was in possession of the fraudulent weights, knowing they were false and intending to use them to defraud others, according to the Court.
Conclusion
The Standard of Weights and Measures Act of 1976 allows for the regulation of weights and measures-related trade and commerce, as well as inspections to prevent the use of fraudulent techniques. The Legal Metrology Act of 2009 also provides for the enforcement of weights and measures standards, as well as other items sold or supplied by weight, measure, or number.
Indian constitution in its Part III provides endorsement to freedom of religion in India. This freedom is reserved not just for Indian citizens but is also conferred on anyone who resides in India. It becomes amply clear from the words of Article 25 which states that âSubject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.â
Constitutional Provisions on Freedom of Religion India has no state religion, nor does it patronise any specific religion. Religion is basically a matter of choice, faith or sets of beliefs. Articles 25 to 28 of the Indian Constitution grant the right to freedom of religion to not only individuals but also religious groups in India. Article 25 (Freedom of conscience and free profession, practice, and propagation of religion): Article 25 provides the freedom of conscience, and the freedom to profess, practice, and propagate religion to all citizens. However, these freedoms can be restricted based on public order, health, and morality. Article 26 (Freedom to manage religious affairs): The right to form and maintain institutions for religious and charitable intents. The right to manage its own religious affairs. The right to own and acquire movable and immovable property. The right to administer such property in accordance with law. Article 27 (Freedom from payment of taxes for promotion of any particular religion): No person shall be forced to pay any taxes, the proceeds of which are specifically used in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Article 28 (Freedom to attend religious instructions): No religious instruction shall be allowed in any educational institution wholly maintained out of State funds. This condition shall not apply to an educational institution that is administered by the State but has been established under any endowment or trust that mandates that religious instruction shall be imparted in such institution. Individuals attending any educational institution recognized by the State or receiving aid out of State funds shall not be required to take part in any religious instructionâŚ. Read more at: https://www.studyiq.com/articles/religious-conversion-in-india/
What is Religious Conversion? Religious conversion refers to the process of changing oneâs religious beliefs, practices, or affiliations. It involves the adoption of a new religion or a set of beliefs by renouncing oneâs previous religion or set of beliefs.
Reasons for Religious Conversion There are various reasons why people convert their religion:
Personal spiritual growth: People may convert to a new religion because they feel that it resonates with them spiritually and helps them grow as a person. Marriage: In some cases, people may convert to their spouseâs religion to maintain family harmony or to show commitment to their partner. Social pressure: People may feel pressured to convert to a particular religion in order to fit into a certain social group or community. Political reasons: Governments or other political entities may incentivize or pressure people to convert to a particular religion in order to further their own agendas. Religious conflict: People may convert to a new religion in order to escape persecution or discrimination based on their previous religion. Economic reasons: In some cases, people may convert to a new religion in order to gain access to economic opportunities or resources that are only available to members of that religion.
Has Religious Conversion been mentioned in the Constitution? The word âconversionâ has not been explicitly mentioned in the Indian Constitution. However, Article 25 of the Constitution guarantees the freedom of religion to all individuals, including the freedom to âpropagateâ their religion. The term âpropagateâ has been interpreted to mean the right to spread or disseminate religious beliefs, and it is often debated whether this includes the right to actively convert others to oneâs religion.
Anti-Conversion Laws in India 1. Prior to Indiaâs independence, several princely states headed by Hindu royal families enacted laws restricting religious conversions in an attempt to preserve Hindu religious identity in the face of British missionaries. 2. These anti-conversion laws were introduced during the latter half of the 1930s and 1940s and were made to protect the cultural identity of the princely states. Examples of states that had such laws include Kota, Bikaner, Jodhpur, Raigarh, Patna, Surguja, Udaipur, and Kalahandi, among others.
Post-independence: No Central Law: Currently, there are no central laws restricting or regulating religious conversions. Following Indiaâs independence, Parliament introduced a number of anti-conversion bills, but none were enacted. State Laws: Over the years, several states enacted âFreedom of Religionâ legislation to restrict religious conversions carried out by force, fraud, or inducements. âFreedom of Religion lawsâ are currently in force in eight states â (i) Odisha (1967), (ii) Madhya Pradesh (1968), (iii) Arunachal Pradesh (1978), (iv) Chhattisgarh (2000 and 2006), (v) Gujarat (2003), (vi) Himachal Pradesh (2006 and 2019), (vii) Jharkhand (2017), and (viii) Uttarakhand (2018). The laws passed in Himachal Pradesh (2019) and Uttarakhand also declare a marriage to be void if it was solemnised for the sole purpose of conversion, or a conversion was done solely for the purpose of marriage. In November 2019, citing rising incidents of forced or fraudulent religious conversions, the Uttar Pradesh Law Commission recommended enacting a new law to regulate religious conversions. This led the state government to promulgate the recent Ordinance.
Issues with Anti-Conversion Laws There are several issues associated with anti-conversion laws including:
Freedom of religion: Anti-conversion laws can be seen as a violation of the right to freedom of religion, which is protected by international human rights laws. These laws can restrict an individualâs ability to choose their own religion and can be used to suppress minority religions. Discrimination: Anti-conversion laws can be used to discriminate against certain religious groups, particularly minority religions. In some cases, these laws have been used to target and persecute minority religious groups. Coercion and manipulation: Some people argue that anti-conversion laws are necessary to prevent coercion and manipulation in religious conversion. However, others believe that these laws are often used as a pretext to suppress minority religions and restrict the right to freedom of religion. Social and cultural divisions: Anti-conversion laws can contribute to social and cultural divisions within a community or society, particularly if they are used to protect the dominant religion. Conflict with other laws: Anti-conversion laws can sometimes conflict with other laws, such as laws that protect freedom of expression or the right to freedom of association. Effectiveness: Some argue that these laws are not effective in preventing religious conversion, while others believe that they are necessary to protect the cultural and social cohesion of a community or society.
The word secularism was not included in the Indian Constitution, and neither did the founding fathers explicitly define the term. It was only in the 42nd Amendment to the Indian Constitution in 1975 that the term was incorporated into the Preamble of our Constitution. It was interesting that the Congress party which had its number in the Rajya Sabha in 1978, couldnât define the word in its attempt to the meaning as “equal respect to all religions” although the bill had been cleared in the Lok Sabha. It is a different question to think about if the Constitution needed the definition at all.
 The Constituent Assembly had a vision that aimed at securing the citizens of India justice, equality and liberty. While these three political remain at the core of the Constitution, fraternity remains the basic aim, assuring unity and integrity of the nation with dignity. Religious harmony is one such aim that goes along with the idea of fraternity most particularly in the Indian context. The Constitutional mandate therefore can be said to promote religious harmony and promotion of fraternity in the face of the huge diversity of Indian society. It was thus imperative to take positive actions to promote fraternity. It is very important to be familiar with the text of the Constitution to understand what it tries to say and do. The following are the Articles of the Constitution with respect to Indian secularism:
Art. 25: Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law 114
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly
Art. 26: Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with the law
Art. 27: Freedom as to payment of taxes for promotion of any particular religion No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religion denomination
Art. 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions
(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution
(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto Cultural and Educational Right.
The Central Bureau of Investigation (CBI) is our primary investigation and prosecutorial agency. Since its founding, the CBI has been faced with some of the most complicated investigations with pan-India implications, as well as some of India’s most important unsolved crimes. However, the CBI has recently been referred to as a “caged parrot.” This comment has only highlighted what has been felt about the CBI since the 1990s when the Vineet Narain ruling paved the door (at least on paper) for a more autonomous CBI.
The Vineet Narain judgment
In 1997, the Supreme Court of India issued a decision in a case known as the Jain Hawala Case that opened the path for the CBI’s transformation as an investigative agency. It also provided assured tenure for its Director and, in theory, established a distinct Directorate of Prosecution inside the CBI.
summary of some of the directions issued by the Court:
1. The Central Vigilance Commission (CVC) shall be given statutory status.
2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity. The appointment shall be made by the President on the basis of the recommendations made by the Committee.
3. The CVC shall be responsible for the efficient functioning of the CBI. While the government shall remain answerable for the CBIâs functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBIâs work, the CVC shall be entrusted with the responsibility of superintendence over the CBIâs functioning.
4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.
5. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, and experience in investigation and anti-corruption work.
6. The Director, of CBI shall have a minimum tenure of two years, regardless of the date of his superannuation.
7. The Director, of CBI shall have full freedom for the allocation of work within the agency as well as for constituting teams for investigations.
8. Selection/extension of tenure of officers up to the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.
9. Proposals for the improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen the CBIâs in-house expertise, professionals from the revenue, banking and security sectors should be inducted into the CBI.
10. The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBIâs functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizures and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the concerned officials.
11. A document on CBIâs functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI;
12. A time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AGâs office;
13. The Director, of CBI should conduct regular appraisals of personnel to prevent corruption and/or inefficiency in the agency.
From these directions, it is clear that the Bench was under the impression that the provisions of the Crime Manual are based on the Code of Criminal Procedure (CrPC), 1973. The Bench did not go into the merits of the contents of the Manual and see whether it conforms to the Code or whether it was a parallel âlegislationâ.
The disclaimer on the first page of the Manual states that it is meant for internal circulation only, and is not a substitute for law. However, the picture gets blurred when one reads the operative part of the Vineet Narain judgment, which will be binding as law under Article 141 of the Constitution of India. The passage (in point 10 above) is being used by the CBI administration to fasten disciplinary proceedings against CBI officials for failing to adhere to the Manual, even when they are acting as per the CrPC.
The judgment presumes that the Manual is in consonance with the CrPC, and clothes the Manual with legal backing, based on this understanding and assumption.
CBI Crime Manual versus CrPC
Since the passing of the judgment in Vineet Narain, no judgment has ever gone into an analysis as to whether the CBI Manual is framed in accordance with the CrPC. A brief comparison of the provisions in the Manual that are in conflict with the CrPC is, therefore, apposite.
1. Registration of FIR/regular case – As per the Manual, only the competent authority can decide which case to register and which do not, even if the case is a cognizable offence and falls within the jurisdiction of a particular CBI branch in accordance with the offences notified u/s 3 of the Delhi Special Police Establishment (DSPE Act), from which the CBI draws its powers. This lies in teeth of the provisions of Section 5(2) and 5(3) of the DSPE Act, which empowers a member of the CBI to exercise the powers of an officer-in-charge of a police station, which will logically include the powers under Section 154 of the CrPC regarding registration of FIR in a case.
2. Provisions regarding Search – The CBI Manual requires the sanction of the competent authority for conducting a search, whereas u/s 165 of the Code, a member of the CBI investigating a case which it can lawfully investigate can conduct a search without such approval, in view of the powers deemed to have been vested in him u/s 5 of the DSPE Act.
3. Arrest without a warrant – Similarly, a police officer (of the rank of SI and above in the context of CBI) can arrest without a warrant any person falling within the four corners of Section 41 of the CrPC. However, even for effecting an arrest, a member of the CBI ( though expressly empowered u/s 5 of the DSPE Act r/w Section 41 of the Code) has to obtain the prior approval of the competent authority as per the CBI Manual, depending on the class of offence and that of the offender. This goes against the express powers u/s 41 of the Code and makes the CBI Manual supersede the Code.
4.Investigation – Under the CBI Manual, routine matters relating to an investigation must also be referred for the approval of the Superintendent of Police, who is the head of the CBI branch. This also goes against the autonomy of the officer-in-charge of a police station under the Code. The CBI Manual goes against the Code and takes away this discretion on the pretext of instilling discipline among the CBI officials. However laudable the objective may be, the Manual cannot supersede the express provisions of the Code in the name of supplementing it, because this would amount to negating the express provisions of a law made by Parliament.
5.Maintenance of general diary – Every police station maintains an online general diary, whereas the CBI general diary is offline, with the self-proclaimed competent authority taking advantage of this. They order officers not to record the complaint in the general diary and instead have a separate secret register, which is arbitrary and against the law. The competent authority will decide whether or not to register the complaint, even if the information discloses the commission of a cognizable offence.
6. Public Prosecutors and Assistant Public Prosecutors are also under the administrative control of the CBI through their respective heads of the branch, which is in contravention of the statutory provisions under Section 24 and 25 CrPC, the 14th Report of the Law Commission of India and various judgments of the Supreme Court including SB Shahane and Ors Vs. State of Maharashtra and Anr.1995. It is pertinent to note that the prosecution has been functioning independently from the police in every state, making the functioning of the Prosecution Wing in the CBI a direct contravention of Article 14 of the Constitution of India, especially when there is no reasonable rationale for the same and there can be no reasonable nexus of such a rationale with the purpose sought to be achieved (if any).
A glaring example of the CBI Manual being ultra vires the Code is seen in the conflict with Section 321 of the Code, which vests a Public Prosecutor with the power to withdraw from the prosecution. However, the said power is expressly curtailed by the CBI Manual by prescribing that only the CBI Director can approve the withdrawal of the prosecution in a case. This flies in the face of not just Section 321 of the Code but is also contrary to landmark judgments like Sheo Nandan Paswan Vs. State Of Bihar & Ors 1987 SCR (1) 702, which held that the power of withdrawal from prosecution is to be exercised by the Prosecutor alone, and no one can curtail or circumvent such power.
The lack of competence in the CBI administration
More often than not, it is seen that superintendence over a CBI branch is given to an officer who doesnât possess sufficient experience in police, law and related subjects. It is widely known that the CBI is, to a large extent, dependent upon officers-on-deputation. The CBI Manual has entrusted responsibilities and powers to officials that require a thorough knowledge of criminal law, including procedure. Officials from backgrounds such as income tax, banks, accounts services, municipal corporations, etc. may bring valuable insights and expertise to the CBI but often create hurdles in implementing and following the decisions of the constitutional courts. There is also friction among the direct recruits in the CBI and the officers-on-deputation, as the latter are not able to grasp the legal essence of a situation, but they are nevertheless superior in position to the police officers in the CBI.
It is unfortunate that the CBI is designating such officers as branch heads of the police wings, whose parent department is governed by a statute totally different from the penal and criminal procedure, and has no connection with criminal/police laws. How can such an officer provide effective supervision, guidance and support to the officers who have vast experience in that field? Specialized knowledge and expertise are generally required to effectively oversee the work of officers in a particular field. So, while experience in one area of law is certainly a valuable asset, it may not be sufficient for providing effective supervision in areas of law with which the officer is not familiar.
The way forward
The Supreme Court has had the occasion to analyze the Police Act several times, most notably in the Prakash Singh 2006 case, and has suggested reforms. However, since the Vineet Narain judgment, there was no occasion for the Supreme Court to find out whether the provisions of the Crime Manual are conducive to the proper functioning of the CBI as per the Code, or whether the provisions in the Manual have turned the rules of the game in the CBI upside down. The author does not wish to contend that the Manual itself has no legal basis. The Vineet Narain judgment grants the Manual with the imprimatur of the Court and clothes it with legal force. However, in doing so, it opened up a Pandoraâs Box of problems being faced by officials of the CBI, who are faced with the dilemma of following the Manual over the CrPC.
The way forward is to set at nought the troubling provisions of the Manual and to either omit them or modify them to make them compatible with the provisions of the Code. Policing falls under the State List of the Seventh Schedule of the Constitution, and therefore, any deviation from this general executive power has to be in compliance with the general law relating to criminal procedure. A police force like the CBI can take away the life and liberty of an individual, and therefore, any procedure that takes away life and liberty has to comply with the fair procedure requirement of Article 21 of the Constitution of India. The author only hopes that someday, the apex court will go into the merits of the provisions of the Manual and make it compatible with the CrPC and the Constitution of India.
The Bharatiya Sakshya Bill, 2023, recently introduced in Parliament, aims to replace the long-standing Indian Evidence Act. This move has sparked discussions and debates across various circles and one of the key changes is that the Bill allows for evidence of digital records (such as email) to be given in court.
A review of the Bill finds that the previous position on electronic evidence has been largely maintained. Some of the adjustments made formalize the current position as put down by case law to make it more obvious, while others necessitate additional examination.
Reiteration of existing position and positive changes
The position on the acceptability of electronic records has not changed much. In the year 2000, the existing Indian Evidence Act was updated to include provisions for electronic evidence. The majority of these have been carried over into the current Bill. Even before the year 2000, electronic records might have been submitted in court using the device that created the electronic record (for example, a laptop on which a document is kept). Other computer outputs from such devices, which would otherwise be considered secondary evidence, were made admissible after 2000 by elevating them to the same level as primary evidence. As a result, a printout becomes admissible without the need to bring the computer into evidence. In Arjun Panditrao, the Supreme Court of India has clarified.
The Bill has codified the principles that were settled in the Arjun Panditrao case. The definition of âprimary evidenceâ in Clause 57 (corresponding to the existing Section 62) has been retained from the existing Act, but four more Explanations have been added. The Explanations clarify what is to be considered âprimary evidenceâ when dealing with electronic records. Clause 61 further clarifies:
âNothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall have the same legal effect, validity and enforceability as paper records.â
Secondary evidence for electronic records â Potential complications
The adjustments made in this regard necessitate more attention. The clause has been expanded to include information generated or stored by communication devices. Information obtained through middlemen has also been included, which is a step in the right direction. The format of the certificate required under this Section is likewise specified in the Bill’s Schedule. This is also a favourable trend. According to the author’s experience, most litigants are often confused about the details that should be included in the certificate, and many certificates filed by the Delhi Police with their chargesheets are extremely insufficient. A predetermined format would almost likely prevent embarrassment at trial due to technical errors.
Strangely, however, the certificate provided in the Schedule itself does not meet the requirements prescribed in sub-clause 2. This sub-clause requires that the certificate to be submitted needs to specify that the device was under the lawful control of the person, that the computer was operating properly, etc. Sub-clause 4(c) requires these statements to be present in the certificate. Yet, they are missing in the format prescribed itself. Whether this is an oversight or a fundamental failure to understand the scheme of the legislation by the drafters itself, is an interesting thought.
The clause also introduces certain issues. Along with a certificate from the computer’s operator, it also requires a certificate from an expert. Surprisingly, instead of specifying that the certificate must be issued by an Examiner of Electronic Evidence (as defined in Section 79A of the Information Technology Act), the paragraph simply states “expert (whichever is applicable)”. It’s unclear why it’s worded this way.
Even yet, it’s unclear why an expert’s certificate is required at the stage of evidence admissibility. According to the Schedule as well as the clause, the expert is merely required to confirm that the computer output was obtained from the particular computer device. Thus, a person intending to give electronic evidence would be required to first contact an expert, hand over the computer device and request them to generate the computer output and take a certificate.
This is obviously nonsensical and would result in disproportionate hardship for no discernible reason. If a person is obliged to take a computer device to an expert in order to obtain the output, why not simply take the device to court as primary evidence? Because of the requirement of the expert’s certificate, the convenience of producing digital evidence that was intended by this section is completely lost.
An expert may be called upon to examine electronic evidence (such as a video or audio file) to determine whether it has been tampered with. But there is a distinct subject than the admissibility of the document itself, and the certificate necessary is relevant to such matters.
A confusing exercise
It’s unclear why these revisions were made to a phrase that was already enough to handle secondary evidence for electronic documents. True, certain clarifications had to be codified for specific provisions. However, there does not appear to be any pressing need to need an expert’s certificate for every computer output intended to be used as evidence. Furthermore, in his concurring opinion in the Arjun Panditrao case, Justice V Ramasubramanian analyzed the laws for electronic evidence in various jurisdictions and asked for a reconsideration of Section 65-B. These proposals do not appear to have been considered when the Bill was drafted.
It is hoped that enough debate will take place before any draft of the Bill is finalized. A critical exercise for any such debate would be to determine why such changes were made in the first place since they add nothing of value and only complicate the admissibility of electronic documents. The answer is still unknown as of now.
The Supreme Court recently observed that there is no specific provision in the Code of Criminal Procedure (CrPC) requiring the investigating agency to file a chargesheet under Section 173 in the language of the court determined under Section 272 of the CrPC [Central Bureau of Investigation versus Narottam Dhakad & Anr].
A bench of Justice Abhay S Oka and Justice Rajesh Bindal further said that a translated copy of the chargesheet needs to be supplied only if the accused and his lawyer are not conversant with the language used in the charge sheet.
âIf both the accused and his advocate are not conversant with the language in which the charge sheet has been filed, then the question of providing translation may arise. The reason is that the accused must get a fair opportunity to defend himself. He must know and understand the material against him in the charge sheet. That is the essence of Article 21 of the Constitution of India,â it added.
Pertinently, the Court said that filing of chargesheet in a language which the accused does not understand, will not be a ground to claim default bail.
“We must hasten to add that a chargesheet filed within the period provided under Section 167 CrPC in a language other than the language of the Court or the language which the accused does not understand, is not illegal and no one can claim a default bail on that ground,â the Court underlined.
They said that when a copy of the report and the documents are supplied to the accused under Section 207 or Section 208 of CrPC, an opportunity is available for the accused to contend that he doesnât understand the language in which they are written.Â
âBut he must raise this objection at the earliest. In such a case, if the accused is appearing in person and wants to defend himself without opting for legal aid, perhaps there may be a requirement to supply a translated version of the charge sheet and documents or the relevant part thereof concerning the said accused to him,â said the Court.
The Bench, however, also said that the same is subject to the accused satisfying the court that he is unable to understand the language in which the charge sheet is submitted. There wouldnât be such a requirement when the accused is represented by an advocate who fully understands the language, the Court said.
It also said that where evidence is recorded in the language of the court that is not understood by the accused or his pleader, there is an âobligationâ on the part of the court to explain the evidence to the accused or his lawyer.
The Court said that with the availability of various software and Artificial Intelligence tools for making translations, providing translations will not be that difficult now.
âIn the cases mentioned aforesaid, the Courts can always direct the prosecution to provide a translated version of the charge sheet,â the apex court said.
Delving more into the matter, the Court said there are central agencies like the National Investigation Agency (NIA) and the Central Bureau of Investigation (CBI) that investigate serious offences or offences having wide ramifications.Â
âObviously, such central agencies, in every case will not be in a position to file the final report in the language of the concerned court as determined by Section 272 of CrPC,â it added.
It also said that power under Section 272 CrPC is not a power to decide which language shall be used by the investigating agencies or the police for the purposes of maintaining the record of the investigation.
âAt the highest, for that purpose, the provisions regarding the law governing the official language of the State may apply subject to the provisions contained in such enactment. In a given case, while prescribing a form as required by SubÂsection (2) of Section 173, the State Government may provide that the charge sheet must be filed in the official language of the State. Therefore, Section 272 deals with only the language of the Courts under CrPC,â the Court said.
The Court was dealing with appeals against a decision of the Madhya Pradesh High Court which held that Hindi was the only language of the criminal courts in the State and therefore, the accused in the VYAPAM Scam case were entitled to seek a translation of the charge sheet into the language of the court i.e. Hindi. The decision was challenged by the CBI before the apex court.
Disagreeing with the High Court decision, the bench headed by Justice Oka said that a finding of fact was recorded by the trial court that the accused, who had sought the translated copy of the chargesheet in Hindi, is an educated man. Moreover, it was found that the advocate engaged by him also knows English.
Regarding the other accused, the apex court noted that the trial court had recorded a finding that he was a science graduate having knowledge of English.
âMoreover, his advocate was conversant with the English language,â it added.
While setting aside the orders of the High Court, the bench said it cannot be said that a nonÂ-supply of translation of the chargesheet and other documents to the accused in both appeals will result in failure of justice.
Article 19(1)(d) of Part III of the Indian Constitution, addresses the basic right to free movement. It grants Indian nationals the freedom to roam freely across India’s territory. This right coincides with Article 19(1)(e), which mentions the freedom to reside in any region of the country. The phrase “freely” means “without any ultimate constraint.” This right, however, is subject to reasonable limitations imposed by law, as stated in Article 19(5).
Article 19(5) stipulates that states may place limits on people’s freedom of movement in the interest of the general public or to preserve the rights of scheduled tribes.
The Right to Reside and Settle in any part of India’s Territories
Every Indian citizen has the right “to stay and settle in any part of the territory of India,” according to Article 19(1)(e) of the Constitution. The clause’s goal is to break down internal barriers in India or any of its sections. This right is likewise subject to the reasonable limitations set forth in Article 19, clause (5). The right to reside and the freedom to freely migrate about the country are complementary and frequently go hand in hand.
Freedom of Movement – Restrictions
Restrictions on the freedom of Movement can only be imposed on two grounds, both of which are listed in Article 19(5) of the constitution, namely the general public’s interests and the protection of scheduled tribes’ interests.
Among the current laws, the Official Secrets Act of 1923 is an example of a limitation on free movement enacted in the public’s interest.
People in banned regions are denied entrance under this Act. This is justifiable since it is in the best interests and security of the people.
The Supreme Court ruled that the freedom of movement of prostitutes can be regulated in the interest of public health and morality.
Another reason for the limitations is to preserve the rights of the scheduled tribes. Scheduled Tribes are aboriginal tribes with different cultures, customs, and languages that are spread across the country but primarily concentrated in the North East.
It is seen as necessary to safeguard their interests by excluding others from living in certain places, resulting in fewer conflicts of interest and fewer negative consequences for these tribal people.
Significance of Freedom of Movement
Every citizen of India has the right under Article 19(1)(d) and (e) of the Indian Constitution to move freely across India’s territory and to reside and settle in any part of it.
This right is subject to reasonable limitations set by law in the public interest or for the protection of any Scheduled Tribes’ interests.
Foreigners do not have the same freedom of movement and residence as Indian residents.
Article 19(1)(e) of the Constitution does not grant a foreigner the right to reside and settle in the country. The Indian government has the authority to deport foreigners from the country.
The free movement of citizens leads to higher employment and lower unemployment rates, as well as to higher productivity and income, and has a positive impact on taxes and social contributions.
The right to reside and the freedom to freely migrate about the country are complementary and frequently go hand in hand.
Important Judgements
Freedom of Movement – Important Judgements
There has long been dispute over whether the deprivation of personal liberty through detention constitutes a violation of rights under Article 21 alone or under Article 19(1)(d) as well.
A.K.Gopalan v. the State of Madras (1950)
In this case, this question repeatedly arose. This question surfaced constantly in this case. It has been established that a person may claim and depend on any fundamental right, and it is ultimately the responsibility of the court to determine which basic right has been infringed. The Supreme Court interpreted Articles 19 and 21 too narrowly in this instance. The Court determined that Article 21, which guarantees personal liberty, means personal liberty in the sense of physical bodily liberty, rather than the rights guaranteed by Article 19. Thus, this judgement found that personal liberty under custody must be protected by Article 21 rather than 19(1)(d).
Kharak Singh v. The State Of UP. & Others (1962)
In this case, excessive police monitoring and home visits were not permitted by law and were consequently deemed a violation of the right to freedom of movement. According to the Court, even the psychological constraint of freedom of movement is a violation of this Article.
Federalism is a government system in which authority is split between two or more tiers of government, such as the central government and the states or provinces. Federalism allows for regional autonomy and variety within a larger political body.
The Indian Constitution established a federal framework that has certain unitary elements. It is frequently referred to as a quasi-federal system because it incorporates aspects of both federation and union. The Union government and the state governments are given different legislative, administrative, and executive powers under the Constitution. The legislative powers are divided into three lists: the Union List, the State List, and the Concurrent List, which represent the powers given to the union government, the state governments, and the powers shared by them. The Constitution also provides for the establishment of a multilevel or multilayered federation with multiple modes of political power distribution.
In its setting, Indian federalism is unique in that it went from a unitary system under British rule to a federal system after independence. Over time, Indian federalism has faced a number of challenges and issues, including the integration of princely states, state linguistic reorganization, regional movements and demands for autonomy, center-state relations and conflicts, fiscal federalism and resource sharing, cooperative federalism and inter-state coordination, and so on.
India has a federal structure, yet it leans more toward a unitary government. It is frequently referred to as a quasi-federal system since it combines elements of both a federal and a unitary system. According to Article 1 of the Indian Constitution, “India, that is Bharat, shall be a union of states.” The term “federation” is not mentioned in the constitution.
Elements of federalism were introduced into modern India by the Government of India Act of 1919 which separated powers between the centre and the provincial legislatures.
Federal Features of the Indian Union
Governments at two levels â centre and states
Division of powers between the centre and states â there are three lists given in the Seventh Schedule of the Constitution which gives the subjects each level has jurisdiction :
Union List
State List
Concurrent List
Supremacy of the Constitution â The basic structure of the Constitution is indestructible as laid out by the judiciary. The Constitution is the supreme law in India.
Independent judiciary â The Constitution provides for an independent and integrated judiciary. The lower and district courts are at the bottom levels, the high courts are at the state levels and at the topmost position is the SC. All courts are subordinate to the Supreme Court.
Unitary Features of the Indian Union
The flexibility of the Constitution â The Constitution is a blend of flexibility and rigidity. Certain provisions of the Constitution can be easily amended. In case the amendments seek to change aspects of federalism in India, the provision to bring about such amendments is not easy.
More power vests with the Centre â the constitution guarantees more powers with the Union List. On the Concurrent List of subjects, the parliament can make laws that can override the laws made by a state legislature on some matters. The parliament can also make laws regarding certain subjects in the State List.
Unequal representation of states in the Rajya Sabha â the representation of the states in the upper house is based on the statesâ populations. For example, Uttar Pradesh has 31 seats and Goa has 1 in the Rajya Sabha. In an ideal federal system, all the states should have equal representation.
The executive is a part of the legislature â in India, the executive in both the centre and the state is a part of the legislature. This goes against the principle of division of powers between the different organs of the government.
Lok Sabha is more powerful than the Rajya Sabha â in our system, the Lok Sabha is more powerful than the upper house and unequal powers to two houses is against the principle of federalism.
Emergency powers â The centre is provided with emergency powers. When an emergency is imposed, the centre has increased control over states. This undermines the autonomy of the states.
Integrated judiciary â The judiciary in India is integrated. There is no separate judiciary at the centre and the state levels.
Single citizenship â In India, only single Citizenship is available to citizens. They cannot be citizens of the state as well. This helps in increasing the feeling of nationality as it forges unity amidst regional and cultural differences. It also augments fundamental rights such as the freedom of movement and residence in any part of the nation.
Governorâs appointment â The Governor of a state acts as the centreâs representative in the state. The state government does not appoint the governor, the centre does.
New state formation â the parliament has the power to alter the territory of a state by increasing or reducing the area of the state. It can also change the name of a state.
All India Services â Through the All India Services such as the IAS, IPS, etc. the centre interferes with the executive powers of the states. These services also offer uniformity in administration throughout the nation.
Integrated election machinery â The Election Commission of India is responsible for conducting free and fair elections at both the centre and the state levels in India. The members of the EC are appointed by the president.
Veto over state bills â The governor of a state can reserve certain kinds of bills for the presidentâs consideration. The president enjoys absolute veto on these bills. He can even reject the bill at the second instance that is when the bill is sent after reconsideration by the state legislature. This provision is a departure from the principles of federalism.
Integrated audit machinery â the president of the country appoints the CAG who audits accounts of both the centre and the states.
Power to remove key officials â the state government or state legislature does not have the authority to remove certain key government officials even at the state level like the election commissioner of a state, judges of the High Courts or the chairman of the state public service commissions.
