THE FOURTH ESTATE : THE POLICE (INCITEMENT TO DISAFFECTION) ACT, 1922 PARALLEL INVESTIGATION AND THE VIEWS OF COURTS
The term Fourth Estate or fourth power refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. Though it is not formally recognized as a part of a political system, it wields significant indirect social influence. Article 19(1) (a) grants every citizen Freedom of Speech and Expression. We hear in News Channel debate that in Mumbai police is using British Era Act. That is The Police (Incitement to Dissatisfaction) Act,1922 ( the said 1922 Act) It was a news for any lawyer. Justice M.C.Chagla had said, there are so many laws in India , that we also come to know when it is argued by an Advocate before us. This was relating to Rationing Law. Under the circumstances its necessary to read and understand the views of the Courts after Independence. Its relevant for us to study and understand the law and its effectiveness. 1. Short title, extent and commencement.— (1) This Act may be called the Police (Incitement to Disaffection) Act, 1922. [(2) It extends to the whole of India, except [the territories which immediately before 1st November, 1956, were comprised in Part B States].] (3) It shall come into force in any State or part of a State on such date as the State Government may, by notification in the Official Gazette, direct. State amendments Andhra Pradesh.—In sub-section (2) of section 1, after the expression ‘except the territories which immediately before the 1st November, 1956 were comprised in Part B States’ add ‘other than the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1956’. [Vide Andhra Pradesh Act 23 of 1958, sec. 3 and Sch. (1-2-1960)] Madhya Pradesh.—In section 1— (i) in sub-section (2), after ‘Part B States’, add ‘other than the Madhya Bharat and Sironja regions of the State of Madhya Pradesh’; (ii) for sub-section (3), substitute the following:— “(3) It shall be in force in all such areas in Madhya Pradesh in which it was in force immediately before the commencement of Madhya Pradesh Second Extension of Laws Act, 1961 (40 of 1961), and shall come into force in other areas, on such date as the State Government may, by notification, appoint”. [Vide Madhya Pradesh Act 40 of 1961 First Schedule, Part A, Item 5.] Maharashtra, Gujarat.—In its application to the State of Maharashtra in section 1.— (i) To sub-section (2), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall extend to the Saurashtra and Hyderabad areas of the State of Bombay”. (ii) To sub-section (3), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall come into force in that part of the Saurashtra area of the State of Bombay in which the Police (Incitement to Disaffection) Act, 1922, as modified and applied to that area by the State of Saurashtra (Application of Central and Bombay Acts) Ordinance, 1948, was in force immediately before such commencement.” [Vide Bombay Act 77 of 1958, sec. 3 (7-10-1958): Act 11 of 1960, sec. 87 (1-5-1960)] (Meghalaya) —In […]
Read moreStatement under S/164 of Cr.P.C, Eye witness and Medical Opinion when accepted and rejected? Is Homicide case maintainable despite contradiction with circumstantial evidence?
In Sushant -Disha murder case this question has arisen. Lets see first provision of Section 164 of Cr.PC Section 164 in The Code Of Criminal Procedure, 1973 164. Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-” I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B. Magistrate”. (5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. Confession: In Narayanaswami v. Emperor (1939) 66 I.A. 66, it was observed that, It is a well accepted rule regarding the use of confessions and admissions that these must either be accepted as a whole or rejected as a whole and that the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. Emperor v. Balmukand (1930) I.L.R. 52 All. 1011, followed Palvinder Kaur vs The State of Punjab […]
Read morePARLIAMENTARY PRIVILEGES UNDER CONSTITUTION AND PRESS
Constituent Assembly: The freedom of press, as one of the members of the Constituent Assembly said, is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail. The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions. James Madison when he offered the Bill of Rights to the Congress in 1789 is reported as having said: ‘The right of freedom of speech is secured, the liberty of the press is expressly declared to be beyond the reach of this Government’. ‘(See 1 Annals of Congress (1789-96) p. 141). Halsbury’s Law of England “Any act or Omission which obstructs any member or officer of the House in the discharge of their duties, or which has a tendency to produce such a result would constitute contempt of legislature” Earl Jowitt, (Lord Chancellor of Great Britain since 1945-51) defines the privilege in the following words, “An exceptional right of advantage, an exemption from some duty, burden or attendance to which certain persons are entitled, from a supposition of the law that the stations they fill or the offices they are engaged in, are such as require all their care, and that therefore, without this indulgence, it would be impracticable to execute such offices so advantageously as the public good requires”. In his book ‘Law Custom and Constitution’ Anson points out that, “The rules of which they (the privileges) consists are not readily ascertainable, for they obtain legal definition when they are cast in statutory form, or when a conflict between the House and the Courts have resulted in some questions of privilege being settled by judicial decisions”. Unlike England where privileges are uncodified in India its codified in the Constitution in Article 105 and 194. However what constitutes breach is uncodified. “A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was “the leading spirit in the preparation of the First Amendment of the Federal Constitution,” that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.”: [Quoted in Near v. Minnesotta] Blackstone in his Commentaries, “the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to say what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.” Fundamental Rights vested under Constitution of India Amongst others inter-alia the Fundamental Rights relating to Freedom of Speech and Liberty are enshrined in Articles 19 to 22. Right to Freedom (Articles 19 – 22) Freedom is one of the most important ideals cherished by any democratic society. The Indian Constitution guarantees freedom to citizens. The freedom right includes many rights such as: Freedom of speech Freedom of expression Freedom of assembly without arms Freedom of association […]
Read moreMOTIVE, GUILT, CULPABLE HOMICIDE WHEN PROVED BY CIRCUMSTANTIAL EVIDENCE
Now a days we hear lots about circumstantial evidence in television debate especially in #SushantSinghCase. How prosecution can prove case on basis of Circumstantial Evidence. So let us first see what is legal provisions: Since we are learning about evidence let us understand provisions of Evidence Act, 1872 Section 32 – Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:– (1) when it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) or is made in course of business.-When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duly; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) or against interest of maker.-When the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) or gives opinion as to public right or custom, or matters of general interests.-When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) or relates to existence of relationship.-When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6) or is made in will or deed relating to family affairs.-When the statement relates to the existence of any relationship [by […]
Read moreThe Future of International Courts and Tribunals in The Hague :
International courts are formed by treaties between nations or under the authority of an international organization such as the United Nations and include ad hoc tribunals and permanent institutions but exclude any courts arising purely under national authority. What is International Court of Justice (ICJ ) ? The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and it commenced its functions April 1946. For India this year is very important as it was preparing to Draft its Constitution and formed Constituent Assembly in December,1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Out of the six principal organs of the United Nations, it is the only one not located in New York (United States of America). Early examples of international courts include the Nuremberg and Tokyo tribunals established in the aftermath of World War II. Two such courts are presently located at The Hague in the Netherlands are “the International Court of Justice (ICJ)” , and “the International Criminal Court (ICC)”. Further international courts exist elsewhere, usually with their jurisdiction restricted to a particular country or issue, such as the one dealing with the genocide in Rwanda. In addition to international tribunals created to address crimes committed during genocides and civil war, ad hoc courts combining international and domestic strategies have also been established on a situational basis. Examples of these “hybrid tribunals” are found in Sierra Leone, Lebanon, East Timor, and Cambodia. Role of ICJ: The Court’s role is to settle legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies as per provisions of its law. Composition of ICJ: The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French. List of international courts Name Scope Years active Subject matter African Court of Justice Africa 2009–present Interpretation of AU treaties African Court on Human and Peoples’ Rights Africa 2006–present Human rights Appellate Body of the World Trade Organization Global 1995–present Trade disputes within the WTO Benelux Court of Justice Benelux 1975–present Trade disputes within Benelux Caribbean Court of Justice Caribbean 2005–present General disputes COMESA Court of Justice Africa 1998–present Trade disputes within COMESA Common Court of Justice and Arbitration of the OHADA Africa 1998–present Interpretation of OHADA treaties and uniform laws Court of Justice of the Andean Community South America 1983–present Trade disputes within CAN Court of the Eurasian Economic Union Former USSR 2015–present Economic disputes and interpretation of treaties within the EAEU East African Courts of Justice Africa 2001–present Interpretation of EAC treaties Eastern Carrabian Supreme Court Caribbean 1967–present General disputes Economic Court of the Commonwealth of Independent States Former USSR 1994–present Economic disputes and interpretation of treaties within the CIS ECOWAS Community Court of Justice Africa 1996–present Interpretation of ECOWAS treaties European […]
Read moreDispute between Australia – New Zealand and Japan over Sothern Bluefin Tuna Case Study
Cause of Action: Australia approached the International Tribunal for the Law of the Sea (‘the Tribunal’) ( ITLOS) to prescribe the provisional measures specified in Australia’s dispute with Japan over Southern Bluefin Tuna (‘SBT’),pending the constitution of an Arbitral Tribunal under Annex VII of UNCLOS (‘the Arbitral Tribunal’). The dispute relates to Japan’s failure to conserve, and to cooperate in the conservation of, the SBT stock, as manifested, inter alia, by its unilateral experimental fishing for SBT in 1998 and 1999. It also included the interpretation and application of certain provisions of UNCLOS. The Arbitral Tribunal were asked to take into account, for the said reasons, the provisions of the 1993 Convention for the Conservation of Southern Bluefin Tuna (‘the 1993 Convention’) and the parties’ practice in relation to that Convention, as well as their obligations under general international law, in particular the precautionary principle. Reasons: Japan’s unilateral experimental fishing for SBT and its lack of cooperation in the conservation and management of SBT which will have the potential to cause serious prejudice to the rights of Australia; Natural environmental changes could combine at any time with the vulnerable state of the resource to cause a further and potentially highly damaging decline to the stock; The reason for requesting provisional measures is that Japan’s current and proposed unilateral actions in relation to SBT, taken in the context of a stock at historically low levels, increase the threat to that stock and undermine the disciplines of the accepted scheme for SBT management; If not addressed by way of provisional measures, the unilateral actions of Japan have the potential to cause serious prejudice to the rights of Australia; This prejudice could not be the subject of adequate remedy in any subsequent decision of the Annex VII Arbitral Tribunal; Pending the constitution of this Arbitral Tribunal under Annex VII of UNCLOS, Australia and New Zealand, on July 30, 1999, each filed a request for the prescription of provisional measures with the International Tribunal for the Law of the Sea (“ITLOS”). Background to the Current Proceedings Southern Bluefin Tuna (Thunnus maccoyi, hereafter sometimes designated “ SBT “) is a migratory species of pelagic fish that is included in the list of highly migratory species set out in Annex I of the United Nations Convention on the Law of the Sea. SBT range widely through the oceans of the Southern Hemisphere, principally the high seas, but they also traverse the exclusive economic zones and territorial waters of some States, notably Australia, New Zealand and South Africa. They spawn in the waters south of Indonesia. The main market for the sale of SBT is in Japan, where the fish is prized as a delicacy for sashimi. Grounds argued and or pleaded: It is common ground between the Parties that commercial harvest of SBT began in the early 1950s and that, in 1961, the global catch peaked at 81,000 metric tons (“mt”). By the early 1980s, the SBT stock had been severely overfished; it was estimated that the parental stock had declined to 23-30% of its 1960 level. In 1982, Australia, New Zealand and Japan began informally […]
Read moreSuicide – Power of State and Center to transfer matter to CBI – Obligations of Courts to protect Fundamental Rights
With alleged Suicide by Sushant Singh Rajput many discussions and debates and view point is expressed by media and other platforms on Power of Central Government to transfer the case to CBI when State Police fails to investigate collect evidence for free and fair trial in the matter. Let us discuss various aspects of this issue in its legal conspectus. Role and Rights of Accused in investigation Union of India and Anr. v. W.N Chadha (1993) Supp. 4 SCC 260, is a judgment which states that the accused has no right to participate in the investigation till process is issued to him, provided there is strict compliance of the requirements of fair investigation Likewise, the judgments in Smt. Nagawwa v. Veeranna Shivalongappa Konjalgi & Ors. (1976) 3 SCC 736, Prabha Mathur and Anr. v. Pramod Aggarwal & Ors., (2008) 9 SCC 469, Narender G. Goel v. State of Maharashtra (2009) 6 SCC 65 and Dinubhai Bhogabhai Solanki v. State of Gujarat & Ors. (2014) 4 SCC 626, which state that the accused has no right to be heard at the stage of investigation, has very little to do with the precise question before us. All these judgments are, therefore, distinguishable. Duty of Police to file F.I.R In Lalita Kumari vs. Govt. of Uttar Pradesh,the question before the Supreme Court was whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under section 154 of the Code of Criminal Procedure, 1973 or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same. It was held that: i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes […]
Read moreInternational Centre for Settlement of Investment Disputes (ICSID) Rules,Procedure, and India’s approach
First let us see why ICSID was formed and here we will see Practice, Rules and Jurisdiction of ICSID. With growing economy and globalization some forum was felt necessary to resolve dispute between investor and Host State. ICSID was established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), is a multilateral international treaty. The ICSID Convention came into force on October 14, 1966. As of May 2016, 153 contracting member states agreed to enforce and uphold arbitral awards in accordance with the ICSID Convention. The primary purpose of ICSID is to provide facilities and services to support conciliation and arbitration of international investment disputes. The ICSID is part of and funded by the World Bank Group, and its headquarter is in Washington, D.C., in the United States of America. It is an autonomous, multilateral specialized institution to encourage international investment and ease non-commercial risks by a treaty drafted by the International Bank for Reconstruction and Development’s( IBRD) executive directors and signed by member countries. The seat may be moved to another place by decision of the Administrative Council adopted by a majority of two-thirds of its members. The Center has an Administrative Council and a Secretariat and maintains a Panel of Conciliators and a Panel of Arbitrators. Unique Features of ICSID Arbitration and conciliation under the Convention is voluntary and require consent of both the investor and State concerned ( Host State) Once such consent is given, it cannot be withdrawn unilaterally and it becomes a binding undertaking. ICSID is an impartial facility, and it does not decide the cases. The independent arbitrators and conciliators appointed to each case and pass award. Organization Structure The President of the Bank is ex officio Chairman of the Administrative Council (hereinafter called the Chairman) but shall have no right to vote. During his absence or inability to act and during any vacancy in the office of President of the Bank, the person for the time being acting as President shall act as Chairman of the Administrative Council. Jurisdiction: Jurisdiction of the ICSID is in Article 25 The term “jurisdiction of the Centre” is used in the Convention as a convenient expression to shall deemed to mean that, the limits within which the provisions of the Convention will apply. The facilities of the Centre will be available for conciliation and arbitration proceedings when its within jurisdiction of ICSID to its members. The jurisdiction of the ICSID extends to any legal dispute arising directly out of an investment, between a Contracting State / Host Sate and an investor/national of another Contracting State, which the parties to the dispute consent in writing to submit to the ICSID. It may be noted that, consent alone doesn’t bring a dispute within its jurisdiction. The jurisdiction of the Centre is further governed by Article 25(1). Article 25 (1) provides that the jurisdiction of ICSID applies to legal disputes arising out of investments. So two basic preconditions which will give ICSID Jurisdiction. The expression “legal dispute” has been used to make clear that while conflicts of rights are within […]
Read moreApplicability of Permit to run Diamond Polishing Unit in Residential Zones U/s 390 of BMC Act, 1888 DCR 1991 and DCPR 2034
Whether the Q Company sought to have obtained a License under Section 390 of B.M.C. Act, 1888? For the ready reference we reproduce below the said Section 390 for your ready reference: “390. Factory of not to be newly established without permission of the Commissioner. (1) No person shall newly establish in any premises any factory, workshop or workplace in which it is intended that stream, water [electrical] or other mechanical power shall be employed, without the previous written permission of the Commissioner, [nor shall any person work, or allow to be worked, any such factory, workshop or workplace without such permission.] (2) The Commissioner may refuse to give such permission if he shall be of opinion that the establishment of such factory, workshop or workplace in the proposed position is objectionable by reason of the density of the population in the neighbourhood thereof, or will be a nuisance to the inhabitants of the neighbourhood. [(3) If any written permission for the establishment of a factory, workshop or workplace granted under sub-section (1) be revoked by the Commissioner in the exercise of his powers under sub-section (3) of section 479, no person shall continue or resume the working or use of such factory, workshop or workplace until such written permission is renewed or a fresh written permission is granted by the Commissioner.]” The term “factory” is defined under Factory Act, 1948 as under: Factory Act, 1948 Factory: S.2 (m) – “factory” means any premises including the precincts thereof – (i) Whereon 10 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on with the air of power, or is ordinarily so carried on, or (ii) Whereon 20 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on without the air or power, or is ordinarily so carried on – but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1962), or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place; Explanation I: For computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account; Explanation II: For the purpose of this clause, the mere fact than an Electronic Data Processing unit or a computer unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or par thereof. The term `factory’ in its general sense is defined as, “a building or buildings where goods are manufactured or assembled in large quantities”. Workplace is defined as, “the office, factory, etc. where you are employed” Workroom is defined a, “a room in which certain work is done”. Service Industry is defined as, “a sector of Industry providing intangibles, not products”. […]
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