Society cries for justice when a crime is committed. It cries more when criminal trial does not commence in time and it loses its faith when justice is denied to the victim because of the delayed trial and non-conviction of the guilty. The Supreme Court declared in Hussainara Khatoon v State of Bihar Hussainara Khatoon v state of Bihar, [(1980) 1 SCC 98, 107: 1980 SCC (Crime) 40] that speedy trial is a fundamental right of the citizen. Our courts are well aware of the fact that speedy trial is sine qua non for proper administration of justice. Despite various judgements of the Supreme Court, speedy trial has become almost impossible due to mounting arrears in the courts and the courts getting overburdened because of them. As a consequence, justice has become the biggest casualty.
In order to overcome these problems in the criminal justice system, the concept of plea bargaining has been incorporated in the Code of Criminal Procedure 1973, by the amendment of 2005, adding chapter XXI (A) in the Code.
This article tries to trace the origin of plea bargaining and critically analyse the concept of plea bargaining in India. The main objective of the present study is to understand the concept of plea bargaining and examine whether it is practical for our legislatures to incorporate it in Indian criminal jurisprudence where the crime rate is extremely high, crimes often go unpunished, criminals move freely, the victim is helpless, our courts are so much overburdened that they have no time to deal with each and every case according to its merits and entire society has no option but to remain silent against such justice delivery system. Since a crime is a wrong against the whole society, it is important to examine whether we can allow plea bargaining between the accused and the victim of the crime.
It may be defined as a process of negotiations between the prosecution and the accused or his lawyer which results in the accused pleading guilty for a promise to reduce the charge, or lesser the charges or getting a lesser punishment. Generally, plea bargaining occurs prior to trial, but it may occur anytime before the judgement[1]. In layman’s term, plea bargaining can be defined as pre-trial negotiations or a deal, an agreement between the accused and the prosecution or their counsels, by which the accused agrees to plead guilty in exchange for certain concessions in terms of lightening the sentence by the prosecution.
The United States (US) has a long history of the practice of ‘plea bargaining’ and there are numerous cases wherein this concept has been discussed and interpreted. The prosecuting agency has a leading role in this process; it has the discretion to reduce or dismiss some of the charges against the accused and also to make recommendations to the court about the sentences in exchange for a guilty plea[1]. In the US a vast number of cases are dealt with under this procedure. The concept refers to various practices: the prominent amongst them being charge bargaining, fact bargaining and sentence bargaining.
In Charge Bargaining — A defendant pleads guilty to a less serious crime than the original charge. It occurs when the defendant pleads guilty to necessarily included offences. It gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges that may be framed against him. Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant an opportunity for a lighter sentence.
Fact bargaining involves negotiations and admissions of certain facts stipulating to the truth and existence of provable fact, thereby eliminating the need for the prosecutor to prove them, in return for an agreement not to introduce certain facts into evidence[1].
The U S Supreme Court in Brady v United States 297 US 742-25 L.Ed. 2d 747, Hutto v Ross 50 L.E.d 2d 876, Chaffin v Stynchcombe 412 US 17 (1973), Blackledge v Allison 52 L.E.d. 2d 136, Weatherford v Bursey 429 US 545 (1977), upheld the constitutional validity and the significant role of the concept of plea bargaining in the disposal of criminal cases. In Santobello v New York 404 US 257 (1971), the US Supreme Court formally accepted that plea bargaining was essential for the administration of justice and when properly managed, was to be encouraged.
Thus, plea bargaining is immensely successful in the US, so much so that it has become a norm rather than the exception. It is now an important part of the criminal justice system in the US and the vast majority of criminal cases in the US are settled by plea bargain rather than by a jury trial.
In countries such as England and Wales, Victoria, Australia, plea bargaining is allowed only to the extent that the prosecutors and the defence can agree that the defendant will plead to some charges and the prosecutor shall drop the remainder. The European countries are also slowly legitimizing the concept of plea bargaining, though the Scandinavian countries largely maintain prohibition against the practice.
In India although plea bargaining was not there in the Criminal Procedure Code (Cr.P.C.), yet a large number of cases which as per law or public policy were being tried summarily. Such type of cases is mainly being related to traffic, municipal or other petty offences committed normally by the young or by the non- habitual offenders. Further, after the enactment of The National Legal Services Act, courts are trying to settle various criminal cases relating to minor offences by way of holding Lok Adalat[1]. The provisions relating to plea bargaining brought in by the Amendment Act, 2005 do not apply to socio-economic offences, offences against women and children and offences punishable with seven or more years of imprisonment.
The quality of justice suffers not only when an innocent person is punished or a guilty person is exonerated, but when there is enormous delay in deciding criminal cases[1].
Indian judiciary is facing the biggest challenge when it sees frustration on the face of the people of India regarding non-disposal of cases in criminal matters for a long time. Heavy backlog of cases in the courts and inevitable delays in dispensing justice has been to such an extent that it is shaking public trust and confidence in the legal system and it is tending to erode the quality of social justice and hampering the socioeconomic development of the country[1]. Speedy trial is the essence of criminal justice and there can be no doubt that delays in trial by itself constitute denial of justice[2]. The theory of ‘justice delayed is justice denied’ can be rightly applied after seeing the Indian context. The most common complaints about the justice system are: (i) more number of litigation by people or (ii) overburdening of courts with cases.
For instance, by October 3, 2001 there were 2.03 Crore backlog pending cases in District Courts and High Courts. More than 80 per cent cases were from seven states Uttar Pradesh, Gujarat, Bihar, Karnataka, Madhya Pradesh, West Bengal and Maharashtra. There were 35, 57,637 cases pending in different High Courts of the country. Five lakh of them were more than ten years old. Even the Supreme Court had 21,995 cases pending therein.
The Law Commission of India in its 120th Report (1987) observed that late disposal of backlog cases is because of less number of judges in the country. There are roughly 10.5 judges per million people whereas the figure is more than four times in Australia, United Kingdom (UK), US and Canada. There was also a suggestion for increase in the number of judicial officers. Because of overburdening of courts with cases, there is gross neglect towards the status of under trials. Although the capacity of jails is 2.56 lakh prisoners there are more than five lakh prisoners behind the bars.
The state governments spend more than Rs. 55 per day on each prisoner and the annual expenditure comes to as 361 crore. If we could adopt different methods (speedy trial) then the situation would have been totally different. The state governments would be able to reduce the number of under trials in the jails and also the huge expenditure on them[1].
Plea bargaining can be used to avoid uncertainty of the trial and minimise the risk of undesirable results for either side. Plea bargaining is generally regarded as a win-win situation. The accused gets a waived term if he confesses to the crime, while the speedy disposal and decreasing backlog eases the pressure on the prosecutors and the judges.[1]
Before introducing the concept of plea bargaining, various Law Commissions made recommendations in favour of the incorporation of plea bargaining in the Indian criminal jurisprudence. While doing this, various factors were taken into consideration such as the arrears of criminal cases awaiting trial and considerable time taken for disposal of criminal cases. In many cases, trial does not commence even after the accused has been remanded to judicial custody for periods ranging from three to four years.
Therefore, to reduce the delay in disposal of criminal cases, The 154th Report of the Law Commission first recommended the introduction of ‘plea bargaining’ as an alternative method to deal with huge arrears of criminal cases[1]. This recommendation finally found support in the Malimath Committee Report. The committee then submitted its report to the Government of India, Ministry of Home Affairs in March 2003 with a recommendation to introduce plea bargaining into the criminal justice system of India to facilitate earlier resolution of criminal cases and reduce the burden on the courts.
While recommending the concept of plea bargaining in the Indian criminal justice system, it was observed by the 12th Law Commission in its 142nd Report as under:
1. It is not just and fair that an accused who feels contrite and wants to make amends or an accused who is honest and candid enough to plead guilty in the hope that the community will enable him to pay the penalty for the crime with a degree of compassion and consideration should be treated on par with an accused who claims to be tried at considerable time-cost and money-cost to the community.
2. It is desirable to infuse life in the reformative provisions embodied in Section 360 of the Criminal Procedure Code and in the Probation of Offenders Act which remain practically unutilized as of now.
3. It will help the accused who have to remain as under trial prisoners as also other accused on whom the sword of Damocles of an impending trial remains hanging for years to obtain speedy trial with benefits such as- (a) End of uncertainty (b) Saving in litigation cost (c) Saving in anxiety cost (d) Being able to know his or her fate and to start a fresh life without fear of having to undergo a possible prison sentence at a future date disrupting his life or career (e) Saving avoidable visits to lawyer’s office and to court on every date or adjournment.
4. It will, without detriment to public interest, reduce the back-breaking burden of the court cases which have already assumed menacing proportions.
5. It will reduce congestion in jails.
The Law Commission in its 142 Report, having considered the concept as is being practised in other countries, recommended that the scheme for concessional treatment to offenders who plead guilty on their own volition in lieu of a promise to reduce the charge, to drop some of the charges or getting lesser punishment be statutorily introduced by adding a chapter in the Code of Criminal Procedure.
After examining the 142nd Report, the Law Commission in its 154th Report was of the view that plea bargaining can be made an essential component of administration of criminal justice provided it is properly administered[1]. A few recommendations were given in the favour of plea bargaining by the 154th Law Commission report, such as:
1. This concept may be made applicable as an experimental measure, to offences which are liable for punishment with imprisonment of less than seven years and/or fine including the offences covered by Section 320 of the Cr.P.C.
2. Plea bargaining should not be available to habitual offenders, those who are accused of socio-economic offences of a grave nature and offences against women and children.
In India, the system of plea bargaining is in its experimental stage. The system was introduced as a result of criminal law reforms introduced in the Criminal Law (Amendment) Act, 2005 (Act 2 of 2006). Though the Act was passed on January 11, 2006, the provisions were notified and came into effect from July 5, 2006 only.
There was a lot of criticism against the concept of plea bargaining being incorporated in the Cr.P.C. The Supreme Court has also blasted the concept of plea bargaining, saying that negotiation in criminal cases is not permissible. In State of Uttar Pradesh v Chanderlok (2000) Cr. L.J. 384 (384), it held that it is settled law that, on the concept of plea bargaining, a court cannot dispose of the criminal cases. The court has to decide a case on its merits; if the accused confesses his guilt an appropriate sentence is required to be implemented. The court further held in the same case that, mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty, the sentence be reduced.
In civil cases we find compromises actually encouraged as a more satisfactory method of settling disputes between individuals than an actual trial. However, if the dispute…finds itself in the field of criminal law, “law enforcement” repudiates the idea of compromise as immoral or at best a necessary evil. The “State” can never compromise. It must “enforce the law”. Therefore open methods of compromise are impossible.
Further, the Supreme Court in Kasambhai Abdulrehtnanbhai Sheikh v. State of Gujarat AIR 1980 S.C. 854 observed that convictions based on the plea of guilt entered by the appellant as a result of plea bargaining cannot be sustained. It is contrary to the public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilt he will be let off every lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of this new activist dimension of Article 21 of the Constitution unfolded in Maneka Gandhi’s case. It would have the effect of polluting the pure font of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and tough criminal trial, if the process is violative of the spirit of Article 21, as found above, even a statutory backing may not render it legitimate. The second hurdle it may be stopped at is the fact that plea bargaining amounts to waiver of a constitutional right to have a trial implicit in Article 21, which is not permitted under the Indian law Basheshar Nath v Income Tax Commissioner, AIR 1959 SC 149.
But despite such hue and cry, the Government found it acceptable and finally introduced Chapter XXIA to the Code, having Section 256-A to 265-L added in the Cr.P.C., so as to provide for raising the plea of plea bargaining in certain types of criminal cases. While commenting on this aspect, the division bench of the Gujarat High court observed in State of Gujarat v Natwar Harchanji (2005) G.L.J. 2957, that the very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal of criminal cases, fundamental reforms are inevitable.
Applicability: Section 265-A deals with applicability of Chapter XXIA. Benefit of plea bargaining can be extended in two circumstances. One is, if a report is forwarded by a station house officer of a police station after the completion of investigation to the magistrate. The other is, if the magistrate has taken cognizance of an offence on a complaint under Section 190 (a) followed by examination of a complainant and witness under Section 200 or Section 202 and issuance of process under Section 204. Thus, it means, after commencement of proceedings upon a private complaint under S. 190 (a) of the Code.
However, if the accused is involved in an offence which is punishable with death, life imprisonment or of imprisonment more than 7 years, the benefit cannot be extended. Apart from that the offences that affects socio-economic conditions of the country, which are notified[1] by the Central Government as offences against women or offences against a child below the age of 14 years, benefit of plea bargaining is not available. Under Section 265-L the provisions of plea bargaining is not applicable to any juvenile or child as defined under the Juvenile Justice (Care and Protection of Children) Act, 2000. The saving provisions under Section 265-J have extended an independent existence to the Chapter, in case of inconsistency with other provisions of the Code. K.N. Chandrasekharan Pillai (Rev.) R.V. Kelkar’s Criminal Procedure, 5th edition (2008) Eastern book company.
Procedure: As per Section 265-B, the process of plea bargaining starts with an application from the accused. The application is to be filed before the trial court only. The application must be in writing, with brief description of facts of the case supported by an affidavit sworn by the accused affirming the genuineness of the application as voluntarily submitted with details of previous conviction of the accused. Upon receipt of the application, the trial court has to issue notice to the prosecution, either to the public prosecutor or to the complainant in Section 190(a) cases and also to the accused intimating the date of hearing of the application.
While appearing before the court, after receipt of notice from the court, the examination of the accused shall be done in-camera, avoiding the presence of other parties. It is specifically required so, to ensure the genuineness and authority of the application. Before proceeding further, the court has to ensure that the application is made voluntarily by the accused. If the court feels, after examination of the accused, the application is involuntarily submitted or the accused is not eligible for plea bargaining on the ground of earlier conviction in a case charged with same offence, the court has to drop the proceedings and proceed further with the trial from the stage, wherein the application is entertained by the court.
After examination of the accused, if the court feels the accused is eligible for plea bargaining, the courts gives time to the prosecution and the accused to work out a mutually satisfactory disposition of the case. Such a mutually satisfactory disposition includes awarding of compensation and other charges and legal expenses to the victim. There must be a notice to the public prosecutor (defined under Section 2(u) and explained in Section 25 of the Code), investigation officer of the case, the victim or de facto complainant and to the accused, in cases instituted upon police report, to work out the solution in a joint meeting of the parties. In cases instituted otherwise than a police report, there shall be notice to the accused and the complainant/victim to participate in the joint meeting. The accused can participate with his lawyer in the meeting. That means the actual presence of the accused is required irrespective of a representation through the lawyer. Apart from that the court shall ensure that every actions of the parties during the meeting is voluntarily made and without any vitiating or coercive elements. That means the presence of the judicial officer is necessary during the process of joint meeting. Under Section 265-D, the court has to prepare a report if a mutually satisfactory disposition of the case has been worked out and such report shall be signed by the presiding officer of the court and the parties in the joint meeting. If no satisfactory disposition is made out, the court has to proceed with the case, by dropping the proceedings in plea bargain and start the proceedings from the stage, wherein the application is entertained.
Disposal of case on the basis of report: After completion of proceedings under Section 265-D, by preparing a report signed by the presiding officer of the court and parties in the meeting, the court has to hear the parties on the quantum of the punishment or accused person’s entitlement of release on probation of good conduct or after admonition. The court can either release the accused on probation under the provisions of Section 360 of the Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force, or punish the accused, passing the sentence.
The court has to pronounce the judgment, under Section 265-F. in terms of its findings under Section 265-D, either releasing the accused or punishing the accused. The judgment passed under Section 265-F is final and no appeal will lie against such judgment under Chapter 29 of the Code. However, such judgments are subject to challenge under Articles 226 and 227 of the Constitution before a High Court by filing a Writ petition and Article 136 of the Constitution before the Supreme Court by filing a Special Leave Petition. A court, while proceeding with an application of plea bargaining, has all the powers invested with a court, under the provisions of the Cr.P.C. in respect of granting and rejecting bail, trial of offences and other general matters relating to disposal of case, particularly under the provisions in Chapter XXIV of the Code. An accused, while disposal of his application under plea bargaining, is entitled for setting off the period of detention from the sentence of imprisonment imposed under Section 265-E. He is entitled to set off the period of detention he had already undergone in the same case, during the investigation, inquiry or trial, but before the date of conviction, in compliance with the provisions of Section 428 only. This provision enables early release of under trial prisoners, who are the real victims of our delayed judicial process.
Thus the provisions of Chapter XXIA extends the scheme of plea bargaining in the Indian criminal jurisprudence to a limited extent only, by giving discretion to the court, restricting excess power to the prosecution, as seen from international jurisprudence, by giving sufficient measures to prevent the abuse of process.
Plea bargaining is a compromise between the prosecution and the accused. One course of argument questions whether a State should compromise. It is contended that the “State” can never compromise. It must “enforce the law” and hence the notion of law enforcement repudiates the idea of compromise as immoral or at best a necessary evil. Therefore, open methods of compromise are impossible. The State is the guardian of its people and it is incumbent upon it to ensure a criminal justice system which serves as a lifebuoy to the entire social Diaspora.
Some of the major drawbacks of the process of plea bargaining, as observed through various studies, are as follows:
1. Offenders are disposed of undeterred, untreated, and with minimal regard for public safety.
2. Plea bargaining undermines the basic premise of “crime and punishment’ that is the foundation of the criminal law and the criminal justice system.
3. Plea bargaining is an infringement on the court’s responsibility and discretion in sentencing.
4. Bargain-based justice is always more of a bargain for the accused than it is for the state and the public. If the defendant does not consider a plea bargain offer generous enough, he or she can simply hold out for trial, knowing that the legal strength of the state’s case will be weakened further by time.
5. Prosecution has the power to present the accused with unconscionable pressures. The prosecution has the incentive to maximize the benefit of pleading guilty in the weakest cases. The more likely an acquittal at trial, the more attractive a guilty plea is to the prosecution. But in a borderline case that does go forward, the prosecution may very well threaten the most serious consequences to those accused who may very well be innocent.
6. Unfair sentences can be imposed on defendants who plead not guilty and are convicted at trial. The sentence may reflect a punishment for not having entered a bartered guilty plea, thereby penalizing the defendant for exercising the constitutional right to trial.
7. Plea bargaining is dominated entirely by practical considerations that should be irrelevant to the disposition of criminal cases. Such factors neglect justice, penological considerations, the plight of the victim, and the needs of society.
8. By sidestepping formal court proceedings and due process, plea bargaining allows unconstitutional police practices to go un-checked.
9. Unwarranted variation in prison terms attributable to plea bargaining is a source of inmate riots. “No sentence should (ever) be imposed simply because it may result in less expensive, faster resolution of the case.” Bartered guilty pleas are not evidence of genuine repentance for crime, the acceptance of the legitimacy of punishment, or the potential for rehabilitation.
The Supreme Court has time and again criticised against the concept of plea bargaining, saying that negotiations in the criminal cases is not permissible. But due to the fact that plea bargaining provides easy, cheap and expeditious justice by resolution of disputes, including the trial of the criminal cases and considering the present realistic profile of the pendency and delay in disposal of criminal cases, the government found it acceptable and finally introduced it.
© Chawla Publications (P) Ltd.
Trafficking in human beings is not a new phenomenon. Trafficking in women and children for commercial sexual exploitation and other abusive purposes is rampant in India. Women, children and men have been captured, bought and sold in market places for centuries. Human trafficking is one of the most lucrative criminal activities. It is estimated by the United Nations (UN) that 1 to 4 million people are trafficked worldwide each year[1]. Trafficking in women and children is an operation which is worth more than $10 billion annually. The NHRC Committee on Missing Children has reported that about 12.6 million (Governmental sources) to 100 million (unofficial sources) are stated to be child labour; 44,000 children are reported missing annually, of which 11,000 get traced; about 200 girls and women enter prostitution daily, of which 20 per cent are below 15 years of age Bachpan Bachao Andolan v. Union of India and Ors. (Writ petition [C]no. 51 of 2006, Supreme Court of India, decided on 18th April 2011).
Trafficking of women and children for commercial sexual exploitation is one of the most inhuman issues existing in our society. Internal trafficking of women and children for purposes of sexual exploitation, domestic servitude, bonded labour, and indentured servitude is highly widespread across the country, either because their husbands deserted them, or have had broken marriages and are into trafficking through coercion and deception or due to traditional compulsions like Devadasi.[1] Indian women are subjected to several forms of sexual exploitation on the pretext of economic security.
According to estimates by the United States Government, trafficking involving one million people is going on across international borders every year.[1] India, along with Thailand and the Philippines, has 1.3 million children in its sex- trade centres. The children come from relatively poorer areas and are trafficked to relatively richer ones.[2] According to an International Labour Organization (ILO) estimate, 15 per cent of the country’s estimated 2.3 million prostitutes were children, while the U. N. reported that an estimated 40 per cent were below 18 years of age. A large proportion of the women forced into sexual exploitation were tribal’s and Dalits[3] Sixty per cent of prostituted women in Mumbai’s red-light district areas are infected with Sexually Transmitted Diseases (STDs) and Acquired Immuno Deficiency Syndrome (AIDS). More than half of Mumbai’s 1, 00,000 prostitutes are infected with Human Immune deficiency Virus (HIV).[4]
Within the country, women from economically depressed areas often move into the cities seeking greater economic opportunities, and once victimized, traffickers force or coerce them into the sex trade. In some cases, family members sell young girls into the sex trade to sustain their family. Extreme poverty combined with the low social status of women often result in the handover by parents of their children to strangers of what they believe is employment of marriage.
Many indigenous tribal women are forced into sexual exploitation. According to the Indian Centre for Indigenous and Tribal Peoples (ICITP), more than 40,000 tribal women, mainly from Orissa and Bihar, were forced into economic and sexual exploitation. Press reports indicate that children were routinely trafficked from Assam into Haryana and other North Indian states for sexual slavery under the pretext of entering into arranged marriages. Similar to this, many Dalit women also face the triple burden of caste, class and gender. Dalit girls have been forced to become prostitutes for upper-caste patrons and village priests. Hotel Priya v State of Maharashtra & Ors Decided on 6th May, 2011 [Bombay High Court].
Besides inter-state trafficking, inter-country trafficking from Nepal, Bangladesh and Ukraine has substantially promoted immoral trafficking in India.[1]
The National Commission for Women (NCW) reported that organized crime plays a significant role in the country’s sex trafficking trade and that women and girls who were trafficked in the brothels frequently were subjected to extortion, physical beating or assault and torture, rape and sexual abuse, starvation, isolation in dark rooms, injuries, beating with hot iron rods, forced to use drugs and drink, multiple rape, mental torture, forced abortions, burning with cigarette butts and terrorised by gangs and criminals.[1]
Several factors force women and girls to fall into trafficking. The socio-cultural domain is entangled with traditions, superstitions and male chauvinist concepts. These encourage discrimination against women. The caste system and lack of social awareness give rise to degrading social status of women and exploitative traditional practices like dowry and child marriage practice give a neglected status of the girl children. Other reasons include economic exploitation, unfair distribution of wealth, lack of economic justice, unequal land holding system, no role for women in economic decision, denial of women’s rights to parental property, lack of training, skill education and employment. Similarly, lack of political commitment, i.e., issues related to women and children are not prioritised into the political programme. In addition, the lack of adequate laws for the protection and prevention of children who are victims of trafficking and selling complicate the situation. Ineffective implementation and enforcement of the laws and policies regarding the rights or women and children and lack of implementation of national, regional and international commitments on human rights issues are also responsible.
A study of gender reality over the years reveals how violence has always been used as a means to subjugate women and keep them in a position of subordination. Gender-based violence may take different forms and there may be distinctive patterns or manifestations of gender violence. Gender violence is present in all societies; it is a structural phenomenon embedded in the context of culture, socio-economic and emotional dependency. It is produced within class, caste and patriarchal social relations in which male power dominates. A narrow definition of violence may define it as an act of criminal use of physical force. But this is an incomplete definition. Violence also includes exploitation, discrimination, upholding of unequal economic and social structures, creation of an atmosphere of terror, threat, or reprisal and forms of religio-culture”. Varsha Kapoor v Union Of India & Ors on 3rd June, 2010 Delhi High Court, http://www.indiankanoon.org/doc/1107375
International conventions exist to punish and suppress trafficking especially women and children[1] Trafficking is now defined as an organized crime and a crime against humanity. The convention being an international convention is limited to cross border trafficking but does not address trafficking within the country.
The malady of prostitution is not only a social but also an economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive. This devastating malady can be suppressed and eradicated only if the law-enforcing authorities in that regard take very severe and speedy action against all the erring persons such as pimps, brokers and brothel keepers.
In spite of the stringent and rehabilitative provisions of law contained in the Constitution of India, 1950; The Immoral Traffic (Prevention) Act, 1956; The Indian Penal Code, 1860 and The Juvenile Justice Act, 2000; it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived demanding an objective multi-dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring the most rational measures to weed out the vices of illicit trafficking. Vishal Jeet v Union Of India (AIR 1990 SC 1412).
Article 23 of the Constitution of India which is a Fundamental Right and which has been put under the caption ‘Right against exploitation‘ prohibits ‘traffic in human beings and beggar and other similar forms of labour’ and provides that any contravention of Article 23(1) shall be an offence punishable in accordance with law. The expression ‘traffic in human beings’ is evidently a very wide expression including the prohibition of traffic in women for immoral or other purposes.
Article 35(a) (ii) of the Constitution reads that “Notwithstanding anything in this Constitution, Parliament shall have, and the legislature of a State shall not have, power to make laws for prescribing punishment for those acts which are declared to be offences under this part. The power of legislation, under this article, is given to the Parliament exclusively, for, otherwise the laws relating to fundamental rights would not have been uniform throughout the country. The power is specifically denied to the state legislatures.
In implementing of the principles underlying Article 23(1), The Suppression of Immoral Traffic in Women & Girls Act, 1956 (SITA) has been enacted under Article 35 with the object of inhibiting or abolishing immoral traffic in women and girls.
In this connection, it is significant to refer to Article 39 which relates to ‘Directive Principles of State Policy‘ under Part IV of the Constitution. Article 39 particularizes certain objectives. Clause (f) of Article 39 was substituted by the Forty- Second Amendment Act, 1976. One of the objectives under Clause (e) of Article 39 is that “The State should, in particular, direct its policy towards securing that the tender age of children are not abused”. One of the objectives under Clause (f) is that “The State should, in particular, direct its policy towards securing that childhood and youth are protected against exploitation and against moral and material abandonment”. These objectives reflect the great anxiety of the Constitution-makers to protect and safeguard the interests and welfare of the children of our country. The Government of India has also, in pursuance of these constitutional provisions of Clauses (e) and (f) of Article 39, evolved a national policy for the welfare of the children.
It will be apposite to make reference to one of the principles, namely, principle no. (9), formulated by the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on November 20, 1959. The said principle reads:
“The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.”
Before the adoption of SITA, there were enactments in some of the states for suppression of immoral traffic, but they were not uniform, nor were they found to be effective. With the growing danger in society to healthy and decent living with morality, the world public opinion congregated at New York in a convention for suppression of traffic in persons for exploitation for immoral purposes. Pursuant to the signing of that convention on May 9, 1950, our Parliament has passed an Act called “Suppression of Immoral Traffic in Women and Girls Act, 1956 which is now changed as “The Immoral Traffic (Prevention) Act, 1956” to which certain drastic amendments were introduced by the Amendment Acts of 46 of 1978 and 44 of 1986. This Act aims at suppressing the evils of prostitution in women and girls and achieving a public purpose viz, to rescue the fallen women and girls and to stamp out the evils of prostitution and also to provide an opportunity to these fallen victims so that they could become decent members of the society.
Besides the above Act, here are various provisions in the Indian Penal Code, 1860 such as Sections 366-A (dealing with procreation of minor girl), Section 366-B (dealing with offence of importation of girl from foreign country), Section 372 (dealing with selling of minor for purposes of prostitution etc.) and Section 373 (dealing with 367 the offence of buying minor for purposes of prostitution etc.).
The Juvenile Justice Act, 2000 which provides for the care, protection, treatment, development and rehabilitation of neglected or juveniles in conflict with law contains a specific provision namely Section 12 which empowers a police officer or any other person or organization authorized by the State Government in this behalf to take charge of any neglected juveniles and bring them before the board constituted under this Act. The board under Section 33 has to hold an enquiry and make such orders in relation to the neglected juveniles as it may deem fit.
The Immoral Traffic (Prevention) Amendment Bill, 2006 was introduced in The Lok Sabha on May 22, 2006. The Bill has been referred to the Parliamentary Standing Committee on Human Resource Development.
The Immoral Traffic (Prevention) Amendment Bill, 2006 amends the Immoral Traffic (Prevention) Act, 1956 to combat trafficking and sexual exploitation for “commercial purposes“. The Bill deletes provisions that penalised prostitutes for soliciting clients. It penalises any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. All offences listed in the Bill would be tried in camera, i.e., the public would be excluded from attending the trial. The term “trafficking in persons” has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution. The Bill constitutes authorities at the centre and state level to combat trafficking.
While prostitution is not an offence, practising it in a brothel or within 200 m of any public place is illegal. There seems to be a lack of clarity on whether prostitution ought to be a legitimate way of earning a living if entered into by choice.
The trafficking of women and children seems to be a journey from marginalization to stigmatization and ostracism via exploitation and torture. This paper in its conclusion would like to provide certain suggestions in order to combat trafficking.
International organizations should support research institutions and non-governmental organizations to undertake state-specific research into the trafficking phenomenon in order to disseminate credible information for public consumption.
Both State Government and the Central Government should be assisted to train, equip and empower personnel who are charged with overseeing the in and out migration of its people with the aim of protecting them against the nefarious activities of the traffickers.
The government should be well equipped to provide better rehabilitation facilities to women during natural disasters. The problem of trafficking does not end with the return of the survivors. There should, therefore, be proper rehabilitation and reintegration programmes for those who return to their homeland.
© Chawla Publications (P) Ltd.
‘Part III – Fundamental Rights’ is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as India. Fundamental rights were deemed essential to protect the rights and liberties of the people against the encroachment of power delegated by them to their government.
In Maneka Gandhi’s case, Bhagwati justice, observed: “These fundamental rights represent the basic value cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and to create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights, and impose negative obligations on the state not to encroach on individual liberty in its various dimensions”.
Personal liberty is the most important of all the Fundamental Rights. Articles 19 to 22 deal with different aspects of the basic rights. Taken together these 5 articles form a chapter on personal liberties which provides the backbone of the chapter on fundamental rights.
These articles deal with the following different aspects of right to freedom:
1) Six fundamental freedoms (Article 19)
2) Protection in respect of conviction for offences (Article 20)
3) Protection of life and personal liberty (Article 21)
4) Right to education (Article 21-A)
5) Protection against arrest and detention in certain cases (Article 22)
Article 19 is available only to the citizens of India but Article 20-22 is available to both i.e. citizens as well as foreigners.
Six fundamental freedoms (Article 19): Article 19(1) of the constitution guarantees to the citizens of India the following six fundamental freedoms:
a) Freedom of speech and expression
b) Freedom of assembly
c) Freedom to form association
d) Freedom to movement
e) Freedom to reside and to settle
f) Deleted by 44th amendment, 1978
g) Freedom to profession, occupation, trade or business
These six freedoms are not absolute as absolute individual rights cannot be guaranteed by nay modern state. If people were given complete and absolute liberty without any social control the result would be ruin. Liberty has got to be limited in order to be effectively possessed.
Pantanjali shastri, J, in A.K. Gopalan v. State of Madras, observed “Man as rational being desires to do many things, but in a civil society his desired have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals”.
The restrictions on these freedoms are provided in clause 2 to 6 of Article 19 of the constitution. The restrictions which may be imposed under any of the clauses to be constitutionally valid must be:
For the purposes mentioned in clauses 2 to 6 of Article 19
Reasonable restriction
Article 19(1) (a) secures to every citizen the freedom of speech and expression and should be read with clause(2) which empowers the state to put reasonable restrictions on the following grounds:
a) Security of the state
b) Friendly relationship with foreign states
c) Public order
d) Decency and morality
e) Contempt of court
f) Defamation
g) Indictment to an offence
h) Integrity and sovereignty of India
The freedom of speech and expression means the right to express ones convictions and opinions freely by the word of mouth, writing, printing, pictures, electronic media or nay other mode addressed to the eye or the ear. It also includes the right to publish views of other people (freedom of press).
Freedom of speech and expression has 4 broad special purposes to serve:
1) It helps an individual to attain self fulfilment.
2) It assists in discovery of truth.
3) It strengthens the capacity of an individual in participating in decision making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
The liberty of the press consists in printing without any licence subject to the consequences of law. Thus the liberty of press means liberty to print and publish what one pleases, without previous permission. This freedom is not only confined to newspapers and periodicals, it also includes pamphlets, circulars and every sort of publication giving information and opinion. The press has the same rights as those of an individual.
Bennett Coleman & Co. v. Union of India; (AIR 1973 SC 106)
Facts and Issue: In this case the import policy for newsprint for 1972-73 read with newspaper control order, 1962 issued under section 3 of the essential commodities act, 1955 was questioned, which imposed various restrictions, viz.
1) Bar on starting newspapers or editions by common ownership units, as also interchangibility within common ownership units,
2) It fixed the maximum number of pages i.e., 10 pages which a newspaper could publish with an allowance of 20% increase only to newspaper below 10 pages
The validity of the newsprint control order was challenged as violative of fundamental rights guaranteed under Article 19(1)(a)and 14 of the constitution.
1) The government defended the measures on the ground that it would help small newspapers to grow and to prevent a monopolistic combination of big newspapers
2) Government also sought to justify the reduction in the page level on the ground that the big dailies devote high percentage of space to advertisements and therefore, the cut in pages will not be felt by them if they adjusted their advertisement space.
Decision:
1) The court held that the newsprint policy was not reasonable restrictions within the ambit of Article 19(2) and violative of Article 19(1) (a). The newsprint policy takes away the petitioners right of freedom of speech and expression. The newspaper are not allowed there right of circulation. They are not allowed the right of pages growth. The common ownership units of newspapers cannot bring out the newspaper or new editions. The newspaper operating above 10 pages level and newspapers operating below 10 pages have been treated equally for assessing the needs and requirements of newspapers which are not their equals. Once the quota is fixed and a direction to use the quota is in accordance with the newsprint policy if made applicable, the big newspaper will be prevented from increasing the page limit.
2) The court further held that fixation of page limit will not only deprive the petitioners of their economic viability but also restricts the freedom of expression by compulsive reduction of page level entailing reduction of circulation and area of coverage for news and views. If as a result of reduction in pages, the newspaper will have to depend on advertisement as their main source of income, they will be denied dissemination of news and views. That will also deprive them of freedom of speech and expression. On the other hand, if as a result of restriction on page limit, the newspapers will have to sacrifice advertisements and thus weaken the link of financial strength, the organisation will crumble. The loss of advertisement may not only entail the closing down but also effect the circulation and thereby infringe on freedom of speech and expression.
3) The court held that the government can make a fair and equitable allotment of available newsprint to newspapers but once the allotments are made, newspapers must be left free to determine how they will adjust their newsprints. They must be left free to determine their pages, circulation and news edition within the quota allotted to them.
4) The court held that the test in determining the question whether a legislation or executive action infringes the fundamental right is to examine its “effect” and not its object or subject matter. If the direct effect of the impugned law is to abridge a fundamental right , its object or subject matter will be irrelevant.
In the instant case the court held that although the subject-matter of the newsprint policy was different, its direct effect was newspaper control and hence violative of article 19(1) (a).
In Romesh Thappar v. State Of Madras (AIR 1950 SC 124), while quoting U.S. SUPREME COURTS view in Lovell v. City Of Griffin (1937) 303 U.S. 404, the apex court held that the freedom of speech and expression, guaranteed under Article 19(1)(a), means right to speak and to express ones opinions by word of mouth, writing, printing, pictures or in any other manner. It is to express ones convictions and opinions or ideas freely, through any communicational medium or visible representation, such as gestures, signs and the like. This freedom is essential for the proper functioning of the democratic process.
Brij Bhushan v. State of Delhi ;( AIR 1950 SC 129):
FACTS AND ISSUE: The question of validity of censorship came up for consideration in this case. The chief commissioner of Delhi, in pursuance of section 7 of the east Punjab safety act, 1949, issued an order against the printer, publisher, editor of an English weekly of Delhi, called the ORGANISER, directing them to submit for scrutiny in duplicate before publication till further orders, all communal matters and news and views, about Pakistan including photographs and cartoons other than dose derived from official sources or supplied by news agencies.
HELD: The court struck down the order observing: “The imposition of pre-censorship of a journal is a restriction on the liberty of the press which is an essential part of THE FREEDOM OF SPEECH AND EXPRESSION declared by article 19(1)(a)”.
In Sakal Paper v. Union Of India; (AIR 1962 SC 305) the court referred to the ruling in Dwarkadas Shrinivas v. The Sholapur And Weaving Co. Ltd(1954 AIR 119,SCR 674): The daily newspaper(price and control) order 1960, which fixed a minimum price and number of pages which a newspaper was entitled to publish, was held unconstitutional, as it infringed the liberty of the press. An increase in price without an increase in number of pages would reduce circulation. On the other hand any decrease in number of pages, would reduce column and space for news. The order therefore acted as a “double edged knife”.
The state justified the law as a reasonable restriction on the business activity of the newspapers in the “interest of general public”. The court rejected this contention, and said that freedom of speech and expression can only be restricted on the grounds mentioned in Article 19(2). It cannot, like the freedom to carry on business, be curtailed in the interest of general public. The freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers. Freedom of press is both quantitative and qualitative. Freedom lies both in circulation and in its content (news and views).
DISSENTING OPINION: Drawing inspiration from American first amendment, Mathew j,. was of the opinion that there might be an abridgement of speech, but not an abridgment of the freedom of speech, and observed that if the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involved a regulation of the press which would amount to abridgement of freedom of speech.
However, the Majority pointed out that the American first amendment contained no exception like Article 19(1) and (2) of Indian constitution, and the American decisions established that a governmental regulation was justified in America as an important an disentail government interest which was unrelated to the suppression of free expression. The Supreme Court in India has established that the freedom of press is to speak and express and it cannot be taken away in the manner the impugned import policy had done.
In Express Newspapers v. Union Of India (AIR 1958 SC 578): The validity of the working journalists act, 1955 was challenged. The act was enacted to regulate conditions of services of persons employed in newspaper industry e.g., hours of work, leave, fixation of wages, etc. It was contended that the at would adversely affect financial position of the newspaper, and would curtail circulation, and hence the act was violative of Article 19(1) (a).
The court held that the act was valid. It was said that the press is not immune from the laws of general application or ordinary forms of taxation, or laws of industrial relations. The act was passed to improve the service condition of workmen in the newspaper industry, and therefore, impose reasonable restrictions on the rights guaranteed by Article 19(1) (a).
Again in Indian Express News Paper v. Union Of India (1985 1 SCC 647) on the same line of footing as above imposition of import duty and leaving of auxiliary duty of the news print was held valid as long as tax is within reasonable limits.
In State Trading Corporation Of India Ltd. v. The Commercial Tax Officer, Vishakapatnam and Tata Engineering & Locomotive Co. v. State Of Bihar expressed the view that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of this Court was that the word “citizen” in Part 11 and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke fundamental rights. In the State Trading Corporation case the Court was not invited to “tear the corporate veil”. In the Tata Engineering & Locomotive Co. case Court said that a company wag a distinct and separate entity from shareholders. The corporate veil it was said could be lifted in cases where the company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities. In Chiranjit Lal Choudhary v. The Union Of India & Ors. Mukherjee J. Expressed the minority view that an incorporated company can come up to this Court for enforcement of fundamental rights.
Advertisement is undoubtedly a form of speech. But every form of ad is not a form of speech and expression of ideas e.g. social, political, literary, etc. An ad of a “commercial nature” is not protected under Article 19(1)(a). Such ad has an element of trade and commerce. Professionals like doctors, lawyers, C.A, are legally forbidden to advertise their services.
In TATA PRESS V. MTNL (1995) 5 SCC 139, the supreme court declared that the right to “commercial speech” or advertisement is part of the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a). A private agency like Tata press is, therefore entitled to bring out yellow pages comprising advertisements, the annual buyers guide for Bombay. The larger implication of the right to advertisement being elevated to the status of a fundamental right is that from now on it can be restricted only on the grounds specified in Article 19(2). MTNL cannot come in the way of Tata press yellow pages in “public interest” as no such ground in mentioned in Article 19(2). Commercial speech now enjoys as much protection as any other speech.
Kuldip Singh, j. however, made it clear that the commercial advertisements which are deceptive, unfair, misleading and untruthful could be regulated by the government. The court referred to the judgement in Hamdard Dawakhana v. Union Of India (AIR 1960 SC 554) In which it was held that an obnoxious advertisement (advertisements of prohibited drugs having magic qualities for curing diseases) would not come within the scope of Article 19(1)(a).
The court said advertisement as a “commercial speech” has two facts. Advertisement which is no more than a commercial transaction is nonetheless dissemination of information regarding the product- advertised. Public at large is benefited by the information made available to them through advertisement. In a democratic economy, free flow of commercial information is indispensable. There cant be honest and economical marketing by the public at large without being educated by the information disseminated through ads.
Examined from another angle, the court said that the public at large has a “right to receive” the “commercial speech”. Article 19(1)(a) not only guaranteed freedom of speech and expression but also protects the right of an individual to listen, read and receive the said speech.
The media plays an important role in a democratic society. It acts as the fourth institute outside the Government. Sting operations are methods of uncovering information. Although, the Indian Constitution does not expressly mention the liberty of the press, it is evident that the liberty of the press is included in the freedom of speech and expression under Article 19(1) (a). Various Constitutions have guaranteed free press or media as a fundamental right. Freedom of press is a special right under art. 19(1) (a) of the Constitution of India, 1950 but it has certain restrictions. The democratic credentials are judged by the extent of freedom the media enjoys in a particular state. Further the media has a right to impart the information to the public. Freedom of speech includes freedom to communicate, advertise, publish or propagate ideas and the dissemination of information. Furthermore Art. 19(1) also incorporates within itself right to receive information about any event, happening or incident etc. “The heart of journalism has to be public interest” and Sting operations, serve public interest.
In State v Charita (AIR 1999 SC 1379), the Supreme Court held that the press does not have any “unfettered “right to interview an under trail prisoner in a jail. The court while granting permission will have to weigh the competing interest between the right of the press and the right of the authorities prohibiting such interviews in the interest of administration of justice. The permission granted by court would be subject to the relevant rules/regulations contained in the jail manual.
Earlier, in M. Hasan v Govt. of A.P. (AIR 1998A.P. 35), the Andhra Pradesh high court held that refusal to journalist and videographers seeking interview with condemned prisoners amounted to deprivation of citizens fundamental right to freedom of speech and expression under Article 19(1)(a). A condemned prisoner like a free citizen has a right to give his ideas and was entitled to be interviewed or televised. The apprehension of jail authorities that such reporting or videography is not reasonable and in the interest of safety and security was unfounded.
In S.P. Gupta v. Union Of India(1982) 2 SCR 365, the court said “No democratic Government can survive without accountability and the basic postulate of accountability is that people should have the information about the working of the Government.”
In Prabha Dutt v. Union Of India (1982) 1 SCC 1. The Supreme Court upheld the right claimed by the press to interview prisoners that the right claimed by the Press was not the right to express any particular view or opinion but right to means of information through the medium of interview of the prisoners.
The learned Chief Justice said:
“Before considering the merits of the application, we would like to observe that the constitutional right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution, which includes the freedom of the press, is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information. The press is entitled to exercise its freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India, the security of the State, public order, decency and morality. But in the instant case, the right claimed by the petitioner is not the right to express any particular view or opinion but the right to means of information through the medium of an interview of the two prisoners who are sentenced to death. No such right can be claimed by the press unless in the first instance, the person sought to be interviewed is willing to be interviewed. The existence of a free press does not imply or spell out any legal obligation on the citizens to supply there is under section 161 (2) of the Criminal Procedure Code. No data has been made available to us on the basis of which it would be possible for us to say that the two prisoners are ready and willing to be interviewed”.
The court stated that “With great power comes great responsibility, therefore the freedom under Article 19(1) (a) is correlative with the duty not to violate any law. Every institution is liable to be abused, and every liberty, if left unbridled, may lead to disorder and anarchy..
In Time v. Hill the U.S. Supreme Court said: “The constitutional guarantee of freedom of speech to press is not for the benefit of the press so much as for the benefit of all the people. The same principle was followed by Mathew, J. in Bennett Coleman and Co. v. Union of India.
Article 19(2) – An Exception to Article 19(1): It is however pertinent to mention that, freedom of speech and expression of press is not absolute but is qualified by certain clearly defined limitations under Article 19(2) in the interests of the public. “The right to privacy by itself has not been identified under the Constitution. As a concept it may be too wide and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.”Today the sting operations is taking place for commercial gains therefore the Supreme Court should take observations about it. Problem with the media is that it only campaigns for cases which appeal to its market and its imagination, which may result in its good reputation in front of the society. To avoid falling into that trap, the sting operations need a code of conduct. Laws too, should be strengthened in this regard. Sting operations are completely justified if they are carried out with the protocol that has been talked about.
In R. Rajagopal v. State Of Tamil Nadu(1994) 6 SCC 632, the editors of the Tamil magazine “NAKKHEERAN” published from madras moved to the supreme court and asked for a writ restraining government officials from interfering with their rights to publish the autobiography of “auto Shankar” who had been convicted for several murders and awarded death sentence. Auto Shankar had written his autobiography in jail which depicted close relationship between the prisoner and several IAS, IPS, and other officials, some of whom were partners in several crimes. The announcement by the magazine that very soon a sensational life history of auto Shankar would be published created panic amongst several police officials that they might be exposed. The I.G. wrote the publisher that the autobiography was false and should not be published.
The Supreme Court held that the petitioners have a right to publish THE AUTO BIOGRAPHY OF AUTO SHANKAR in so far it is based upon public records, even without his consent and authorisation. But if they go beyond that and publish his life history they may be invading his right of privacy. Once a matter becomes a matter of public record, the “right to privacy” no longer subsists and it becomes a legitimate subject for comment by press and media. It’s enough for the press to prove that he acted for a reasonable verification of the facts; its not necessary for the press to prove that what was published was true.
Sheela Barse v. Union Of India(1987) 4 SCC 373;
FACTS AND ISSUE: Sheela Barse, a free lance journalist, sought permission to interview the female prisoners in the Maharashtra State Jails. The permission was granted by the Inspector-General of Prisons. As, however, the journalist started tape-recording her interviews with the prisoners, the permission to interview was withdrawn. Feeling aggrieved by the cancellation of the permission, the journalist moved this Court in its writ jurisdiction on the ground that a citizen has a right to know under Articles 19(1) (a) and 21 of the Constitution, if the Government is administering the jails in accordance with law, and that the Press has a special responsibility to collect information on public issues to educate the people.
Contention of the defendant: The permission was cancelled, as stated by the Inspector-General of Prisons in his counter affidavit to the Writ Petition, on the ground inter alia that the permission had been granted to the petitioner in contravention of the Maharashtra Prison Manual and the rules made there under, which govern the interviews with the prisoners; the petitioner, an amateur free lance journalist not employed by any responsible newspaper, was not covered by the said rules. The respondent also contended that the Articles of the Constitution referred to by the petitioner were not attracted to the case.
DECISION: The term ‘life‘ in Article 21 covers the living conditions of the prisoners, prevailing in the jails. The prisoners are also entitled to the benefit of the guarantees provided in the Article subject to reasonable restrictions. The petitioner is not entitled to uncontrolled interviews. The factual information collected as a result of the interviews should usually be cross-checked with the authorities, so that a wrong picture of a situation may not be published. Disclosure of correct information is necessary, but there is to be no dissemination of wrong information. Persons, who get permission to interview, have to abide by reasonable restrictions. As for tape-recording the interviews, there may be cases where such tape-recording is necessary, but tape-recording is to be subject to special permission of the appropriate authority. The interviews cannot be forced upon anyone and willingness of the prisoners to be interviewed is always to be insisted upon. There may also be certain other cases, where, for good reasons, permission to interview the prisoners may be withheld, which situations can be considered as and when they arise. The petitioner can make a fresh application for permission to interview the prisoners, which is to be dealt with in accordance with the guidelines laid down.
In State v. Charulata Joshi,(1999) 4 SCC 65: the Supreme Court held that “the constitutional right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution which includes the freedom of the press is not an absolute right. The press must first obtain the willingness of the person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness”.
It is justified under Article 19(2) on the grounds that films have to be treated separately from other forms of art and expression because a motion picture can stir up emotions more deeply. Hence, classifications of films into “A” & “U” categories was held to be valid in Ka Abbas v. Union Of India( AIR 1971 SC 481)
Life Insurance Corporation Of India v. Mannubhai D. Shah (1992) 3 SCC 637: The Supreme Court examined the scope and extent of the freedom of speech and expression.
The respondent published a study paper entitled “found on the policy holders” which depicted the discriminatory practice adopted by LIC, which adversely affected the interest of a large number of policy holders. A member of LIC published a counter in the magazine published by LIC but denied to publish the rejoinder of the respondent.
The Supreme Court held that LIC is state within the meaning of Article 12 and therefore it must function in the best interest of the community. The respondents fundamental right of speech and expression entitles him to insist that his views on the subject should reach those who read the magazine. The court explaining the scope of freedom said “the words freedom of speech and expression must be broadly constructed to include the freedom to circulate ones views by words of mouth or writing or through audiovisual media”.
In the other case regarding refusal to telecast the documentary film on the Bhopal gas disaster titled “beyond genocide”, the court held that the respondent has a right to convey his perception of the gas disaster. In fact the community was keen to know and what actually happened, what is happening. Which remedial measures the state authorities are taking and what are the likely consequences of gas leak.
In Odyssey Communication Pvt Ltd v. Lokvidayan Sanghtana ( 1988) 1 SCC 131: a social organisation of Pune, filled a public interest litigation under article 226 to restrain the union of India, ministry of information and broadcasting and state of Maharashtra from telecasting the serial “HONI-ANHONI” on the grounds that its likely to spread false and blind beliefs and superstition amongst the members of public.
It was however held that, the rights of a citizen to exhibit a film on Doordarshan, on the terms and conditions imposed by Doordarshan is a fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) which can be curtailed only on the grounds mentioned in Article 19(2). The respondent failed to show that the exhibition of the serial was prime facie prejudicial to the community.
In Bobby Art International v. Ompal Singh Hoon (1996) 4 SCC 1: popularly known as “bandit queen case” the respondent filled a writ petition in the court for quashing the certificate of exhibition given to the film “bandit queen” and restraining its exhibition in India. The film is the story of Phoolan Devi exposed to from an early age to the brutality and lust of man. The film was granted A certificate by the censor board and the appellate tribunal. The high court held that the film was obscene and quashed the order of the tribunal, thus restraining the exhibition of the film altogether.
The Supreme Court held that the certificate issued to the film upon conditions imposed by the tribunal is valid and is, therefore, resorted. Held that the film must be judged in its entirety and from the point of view of its over-all impact. The story of a film is a serious and a sad story of a village born female child becoming a dreaded dacoit. The scene where she is humiliated stripped and paraded naked does not arouse the cinemagoers lust but to arouse in him sympathy for the victim and disgust for the perpetrators. In fact, that scene is central to the story. A film that carries the message that the social evil is evil cannot be impermissible on the ground that it depicts the social evil.
The supreme court has observed that the right to information is a part of right to speech and expression which is a fundamental right under Article 19(1)(a) of the constitution. According to the Supreme Court, right to speech and expression cannot be exercised without right to information.
In recognition of the need to promote transparency in public affairs and to curb corruption, the parliament enacted the right to information act in 2005. It is a path breaking legislation to empower the people specially the weaker section of the population. While right to information is guaranteed by the constitution, the act sets out the practical regime for the citizens to secure access to information on all matters of governance. The act is thus a landmark initiative to mark the public administration accountable and the decision-making process participatory.
This law is very comprehensive, covers almost all levels of governance and has widest possible reach. It is applicable to not only the union, state and local governments and the public authorities but also to the recipients of government grants. Access to information under this act is extensive with the minimum exemptions to safeguard national interests. Even the exempted organisations are subjected to the citizens right to know when the matter relates to corruption or human right violation. The citizen does not have to establish his locus standi to seek information. It overrides anything contrary to any other act including the ‘official secrets act‘.
In Secretary, Ministry Of I & B v. Cricket Association, Bengal (AIR 1995 SC 1236):
FACTS AND ISSUE: The cricket association of Bengal (CAB) and board of cricket control of India (BCCI) have sought a license to telecast their matches through a foreign agency and through telecasting equipments brought in by such foreign agency. In case of HERO CUP matches organised by CAB, they wanted unlinking facility to INTELSAT through the government agency VSNL also. They wanted the permission to import the telecasting equipments along with the personnel to operate it by moving it to the places all over the country wherever matches to be played. They claimed this licence (or permission) as a matter of right said to be flowing from Article 19(1) (a).
In late 1993, challenging a decision of CAB to award exclusive rights to an international broadcasting company (TWI) to cover hero cup tournament, the ministry of I & B directed VSNL (the governments international telecom monopoly) to deny up linking facilities. The CAB petitioned the high court, which permitted the telecast. In turn the ministry appealed against the decision in the Supreme Court contending that it had monopoly over it under the telegraph act, 1885. The word telegraph included telecast. The Supreme Court turned aside the appeal and delivered a landmark judgement
DECISION: The supreme court made in this case an important innovation and widened the scope and extent of right to freedom of speech and expression and held that the government has no monopoly on electronic media and that a citizen under Article 19(1)(a) has a right to telecast and broadcast to the viewers, listeners through electronic media, television or radio any important event.
The ratio of the Supreme Courts judgement is as follows:
1) The court allowed the private broadcasters the right to airwaves. The court ruled that airwaves are public property and as such they must be regulated by an independent, autonomous public authority representative of all sections and interest in society
2) The autonomous authority or body is to decide who really should have the right to airwaves. It should rescue the electronic media from the government monopoly and bureaucratic control. The court directed the government to set up such autonomous body immediately.
3) The court expanded the scope of the fundamental right to speech and expression [Article 19(1) (a)]. The court observed that a citizen has a fundamental right to use the best means of imparting and receiving information and as such have access to telecasting for the purpose. The government has no exclusive right to use broadcast media or to deny the use by others.
4) The court declared that the freedom of speech and expression applied not just to print media but aloes to electronic media. The airwaves are a public resource and must, therefore, be regulated in the public interest.
5) The court ruled that the freedom of speech and expression includes the right to educate, inform and entertain. According to the court, sport is an expression of self. The right to telecast sporting event also includes the right to educate and inform present and prospective sportsmen interested in a particular sport and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the “free speech” element is absent from his right.
6) Freedom of speech and expression includes right to communicate effectively. A citizen under Article 19(1)(a) has a right to telecast/broadcast to the viewers through electronic media any important event. The government can impose restrictions on such a right only on grounds specified in Article 19(2). State monopoly on electronic media is not mentioned in Article 19(2)
The government of India has so far curbed private, foreign and Indian companies from broadcasting sports, news, etc by claiming that the telegraph act gives it exclusive power to uplink- telecast direct from the Indian soil. By this judgement the apex court has paved the way for a revamp of the countrys archaic broadcasting policy. The judgement allowed private broadcasters to buy rights from the sports organisations, and to present live news and current affairs.
In Pandit M.s.m Sharma v. Krishna Sinha,( AIR 1956 SC 395), proceedings for the breach of privilege had been started against an editor of a newspaper for publishing those parts of the speech of a member delivered in Bihar legislative assembly which the speaker had ordered to be expunged from the proceedings of the Assembly. The editor in a writ petition under Article 32 contended that the House of Commons had no privilege to prohibit either the publication of the publicly seen and heard proceedings that took place in the House or of that part of the proceedings which had been directed to be expunged.
The Supreme Court by a majority of four to one rejected the contention of the petitioner. Das C.J., who delivered the majority judgement, observed that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that took place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate version of such debates or proceedings.
Now Article 361-A inserted by the 44th Amendment with effect from June 20, 1979 provides that no person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of Parliament or a State Legislature unless the reporting is proved to have been made with malice. This provision does not apply to the reporting of proceedings of secret sittings of the Houses.
In Union Of India v. Naveen Jindal (2004) 2 SCC 410, the supreme court made certain important observations in respect of the flying of the national flag:
1) Right to fly the national flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1) (a) being an expression and manifestation of his allegiance and feelings and sentiment of pride for the nation. However, such a right is subject to reasonable restrictions under Article 19(2).
2) The emblems and names(prevention of improper use) act, 1950 and the prevention of insults to national honour act, 1971 regulate the use of the national flag
3) Flag code although is not a law within the meaning of Article 13(3) of the constitution of India, for the purpose of Article 19(2) it would not restrictively regulate the free exercise of the right of the flying of the national flag. However, the flag code to the extent it provides for preserving respect and dignity of the national flag, the same deserves to be followed.
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