Professional Documents
Culture Documents
Case Comment On Priyadarshini Matoo Case
Case Comment On Priyadarshini Matoo Case
case
Santosh Kumar Singh vs. State through CBI-
( 2010)9SCC747
Though I know he is the man who committed the crime,
I acquit him, giving him the benefit of doubt.
Conclusion:
The Indian courts have emerged as the most powerful
courts in the world with virtually no accountability. But
every institution even the courts go wrong. The judiciary
are peopled by judges who are human, and being human
they are occasionally motivated by considerations other
than an objective view of law and justice. It would be
foolish to contend that none of them at least at some
point in time are motivated by considerations of their
own personal ideology, affiliations, predilections, biases
and indeed even by nepotistic and corrupt
considerations. But the Courts cannot afford to award
judgments based on ethical and moral grounds, rather
the bases should be purely legal in character. The role of
a judge is not to read between lines but to offer a fair,
just and reasonable interpretation of question of law
posed before it. Justice may not only be done but it
must also seem to be done. Thus, the judiciary as a
fillip to the nation must strive to deliver justice in all
circumstances without any fear, favour, affection or ill
will.
Bibliography:
# Bachan Singh Vs. State of Punjab. SLP Cr.No. 1732 of
1979 (The Supreme Court, 9 May 1980).
# Machhi Singh Vs. State of Punjab. Cr.Appeal No. 419 of
1982 (The Supreme Court, 20 July 1983).
# Rao, Dr. M.Sriniwas. Political Obligation. New Era Law
Publications, 2005.
# Singh, Hemraj. Matto Judgement. Lawyers Update,
November 2010: 14-17.
# State of Haryana Vs. Nirmal Singh. Cr.Appeal 489 of
1997 (High Court of Punjab and Haryana, 29 September
1998).
# State of Mizoram Vs. Lalrinawms. Cr.Ref. 1 of 1999
(High Court of Gauhati, 23 February 2000).
Should Ratan Tata
be Afforded the
Right to Privacy?
The Ratan Tata case has raised many important questions pertaining to
privacy. This note looks at a few of those questions, and the debate that
centers around them.
Introduction
In 2008 and 2009 conversations between Nira Radia- a professional corporate
lobbyist , and many different individuals were intercepted by Income Tax officials.
The interception was approved by the Ministry of Home Affairs. The interception was
conducted for suspected tax evasion, possible money laundering, and restricted
financial practices. The individuals included: A. Raja, the then Cabinet Minister of
the Ministry of Communications and Information Technology; Ratan Tata, a client of
Nira Radia and Chairman of the Tata group of companies; and various journalists
including: Barkha Dutt, NDTV journalist alleged to have lobbied in support of A.
Rajas appointment as minister, and Vir Sanghvi, editor of the Hindustan Times
alleged to have edited articles reducing the blame in the Nira Radia tapes. Earlier
this year, these conversations were leaked to the media by an unknown source. The
leak exposed a scam to manipulate the upcoming auctioning off of the 2G spectrum.
In response to his leaked conversations with his consultant Nira Radia, Ratan Tata
has filed a petition in the Supreme Court, claiming that his privacy has been invaded.
Tata claims that the conversations were private, and that the tapes should be
withdrawn from the public. He has not objected to the use of the tapes in court,
acknowledging that they were obtained legally. On December 2nd the Supreme
Court issued a notice to restrain the unauthorised publication of the intercepted
tapes [1].
Questions of Privacy
The Nira Radia tapes case raises many important questions about privacy,
wiretapping, transparency and ethics. It will be interesting to see how the court rules
on different issues as the case progresses. First, it will be meaningful to see how the
court responds to Tatas plea for privacy. Indian courts have seen only a handful of
cases that have directly appealed for protection of privacy as a fundamental right
[2]. The type of privacy that has been invaded in this situation is unclear. If one looks
at the privacy invasion as the data that was improperly protected, thus leading to
the leak, the Tax Department may be found to have violated the informational privacy
of Tata. If one looks at the invasion of privacy as the fact that personal contents of
conversations were made public with the intent to expose the 2G scam, the claim is
really one that his personal privacy has been invaded. Because India does not have
a specific legislation on privacy, there is no clear definition of what privacy is, and
whether or not Tata has had his privacy invaded. The decision by the courts will help
to clarify how Indian society defines privacy, and where the line between public and
private falls.
aw On Phone-tapping In India
February 4, 2015 by raghavi 1 Comment
EDITORS NOTE:-
The recent times have exposed the diabolic methods used by government agencies
all over the world for the greater good of national security. Deployment of such
techniques is invasive of the fundamental right to privacy that citizens are entitled to.
In a democracy such as India, in the light of the recent controversies such as the
Nira Radia case as well as the Rupert Murdoch case, it has become imperative for
the Courts to develop a legal framework on the extent to which phone-tapping can be
allowed and the purposes for which it is conducted. More importantly, it is crucial for
the Courts to lay down rules and regulations pertaining to their admissibility as
evidence.
INTRODUCTION
Art.21 of the Indian Constitution says that No person shall be deprived of his life
or personal liberty except according to procedure established by law.
The expression personal liberty includes right to privacy. A citizen has a right to
safeguard his personal privacy, plus, that of his family, education, marriage,
motherhood, child bearing, and procreation, among other matters.
Both, the Central and the State Governments have a right to tap phones
under Section 5(2) of Indian Telegraphic Act, 1885. There are times when an
investigating authority/agency needs to record the phone conversations of the person
who is under suspicion.[vi] Such authorities are supposed to seek permission from
the Home Ministry before going ahead with such an act. In the application specific
reasons have to be mentioned. In addition, the need for phone tapping must be
proved. Then the ministry considers the request and grants permission upon
evaluating the merits of the request.
Every agency fills out an authorization slip before placing a phone under
surveillance. For the States, it is the State Home Secretary who signs this.
Telephones of politicians cannot be tapped officially[vii]-a qualifier on the slip says
the surveyed person is not an elected representative. Today, every cellular service
provider has an aggregation station which is a clutch of servers called mediation
servers (because they mediate between the cellular operators and the law
enforcement agencies) to intercept phones. There are two kinds of interception
facilities available today-Integrated Services Digital Network (ISDN) and the leased
line. In ISDN facility, a mediation server intercepts a call and then transmits it through
a Primary Rate Interface (PRI) line to the office of a government agency. Also, the
police can listen to the phone on their PRI line and store the recording to attached
computers. A sound file of the intercepted call is also recorded and stored in the
mediation server, simultaneously.
In this high profile case, the highest Court in the land ruled that wiretaps constituted
a serious invasion of an individuals privacy. Further, the Supreme Court recognized
the fact that the right of privacy is an integral part of the fundamental right to
life enshrined under Article 21 of the Constitution. This right can also be traced
to Article 17 of the International Covenant on Civil and Political Rights
[ICCPR] to which India is a signatory. But, the right is only available and enforceable
against the state and not against action by private entities. If, a person is talking on
the telephone, he is exercising his or her right to freedom of speech and expression.
Thus, telephone tapping would also infringe Art 19(1)(a) unless it came within the
restrictions on this right set out in Art 19(2). It is significant to note that the Supreme
Court while not wanting to strike down the system of phone tapping altogether,
wanted to soften the law by introducing guidelines that were to be followed by the
government. These guidelines define who can tap phones and under what
circumstances. The Union Home Secretary, or his counterpart in the states, can only
issue an order for a tap. Further, the government is also required to show that the
information sought cannot to be obtained through any other means. Also, the Court
mandated the development of a high-level committee to review the legality of each
wiretap. But the decision to set up a review system was severely criticized.
Prominent lawyers dismissed it as enabling those who authorize taps to review their
own orders with a conclave of colleaguesbeing arbitrary, secretive, and shabby
and an insult to the protection of privacy and civil liberties.
Overall, it appears that the Court has done a decent job and has at least laid the
groundwork for a regulatory system. It is an accepted fact that every arbitrary and
seemingly intrusive law can be effectively softened with a foolproof mechanism to
ensure its proper and legal implementation. But, given the fact that Indian laws suffer
from the problem of a significant implementation deficit; only time will tell whether
these guidelines are honored or not.
Substantive safeguards
In 1997, the Supreme Court, in response to a petition filed by Justice Sachar in the
PUCL case, laid down that Right to Privacy guaranteed under Article 21 is subject to
reasonable restrictions which might be imposed by the State. Reasonable restrictions
can be imposed by the state in -the interests of national sovereignty and integrity,
state security, friendly relations with foreign states, public order or for preventing
incitement to the commission of an offence.
The first step under Section 5(2) of the Act, therefore, is the occurrence of any
public emergency or the existence of a public-safety interest. Thereafter the
competent authority under Section 5(2) of the Act is empowered to pass an order of
interception after recording its satisfaction that it is necessary or expedient so to do
in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii)
friendly relations with foreign States, (iv) public order or (v) for preventing incitement
to the commission of an offence.[ix]
A bare reading of the above provision shows that for the purpose of making an order
for interception of messages in exercise of powers under Sub-Section (1) or Sub-
Section (2) of Section 5 of the Telegraph Act, 1885, the occurrence of any pubic
emergency or the existence of a public safety interest is the sine qua non.
The Act also provides safeguards against illegal and unwarranted interference in the
telegraph and telephone mechanisms. Accordingly, Section 25 states that, any
person intending to intercept or to acquaint himself with the contents of any message
damages, remove, tampers, with or touches any battery, machinery, telegraph line,
post or other thing whatever, being part of or used in the working thereof shall be
punished with imprisonment for a term which may extend to three years or with a
fine, or both.
Recourse
Unauthorized tapping is in violation of the right to privacy and the aggrieved
person can file a complaint in the Human Rights Commission.
An FIR can be lodged in the nearest Police Station when unauthorized phone
tapping comes into the knowledge of the person.
Additionally, the aggrieved person can move the Court against the
person/company doing the Act in an unauthorized manner under Section 26
(b) of the Indian Telegraphic Act which provides for 3 year imprisonment for
persons held for tapping. The person (s) can also be prosecuted for
authorized tapping but sharing of the data in an authorized manner.
ADMISSIBILITY OF TAPED
CONVERSATIONS AS EVIDENCE
Controversial Judgment in the Malkani Case
The case of R.M. Malkani v. State of Maharashtra[xi] revolved around the question
of whether criminal prosecution could be initiated against a person on the basis of
certain incriminating portions of a telephone conversation that he had with another
individual. In the case, the Appellant was the Coroner of Mumbai and was trying to
obtain illegal gratification of Rs. 15,000 from an honest doctor from whom he planned
to implicate in a case involving the negligent death of a patient. This doctor was not
interested in paying the bribe and instead contacted the Anti-Corruption Bureau of
the Police. The doctor then, on the directions of the police officials, proceeded to
have a phone conversation with the Appellant where they discussed the amount of
money to be paid, and also the place of delivery, etc. This conversation was recorded
without the knowledge of Malkani and charges were filed against him on the basis of
the incriminating statements that he had made.
The Supreme Court held that having another person listening in on a conversation
was a mechanical process and that there was no element of compulsion or coercion
involved which would have otherwise violated the Act. With regards to the
admissibility issue, the Court appreciated the method, terming it a mechanical
eavesdropping device. However, then perhaps realizing that it was wrong, it hastily
added that -it should be used sparingly, under proper direction and with
circumspection. The tape-recorded evidence was compared with a photograph of a
relevant incident and based on this assumption it was decided that Sections 7 and 8
of the Evidence Act [1872] would not bar the admission of improperly obtained
evidence. Hence, what the Apex Court did was to hold that illegally obtained
evidence would be admitted in Court since the eavesdropper neither subjects the
person to duress nor interferes with his privacy. While giving the verdict, Ray, J., was
influenced by the American case law on the subject. Reliance was placed on the
judgment of the US Supreme Court in the case of Roy Olmstead v. United States
of America[xii], which had by then been overruled by the Berger and Katz cases. In
the Olmstead case the doctrine adopted, was that surveillance without trespass and
without the seizure of any material fell outside the constitutional ambit. Hence, Ray,
J. was of the opinion that the tape recording of the conversation would not be
repugnant to Articles 20(3) and 21 of the Indian Constitution.
Following the dictum laid down in the Malkani case many judgments have been
passed by the Courts accepting illegally obtained evidence for the purposes of
conviction. In the case of S. Pratap Singh v. State of Punjab[xiii], the Supreme
Court allowed the tape record of a telephonic conversation between the Chief
Ministers wife and a doctor to be admitted as evidence to corroborate the evidence
of witnesses who had stated that such a conversation had taken place. Further,
in Yusufalli Esmail Nagree v. State of Maharashtra[xiv], a conversation that was
recorded by means of a tape recorder placed in a room was admitted in evidence. In
the case, the Appellant Nagree had offered a bribe to a municipal clerk Munir Ahmed
Sheikh. The clerk Sheikh informed the police who then laid a trap at his residence by
concealing a voice recording apparatus in the room where the bribe amount was to
be paid. Then, this tape was allowed as evidence by the Court to corroborate the
Sheikhs testimony. The Court noted that if a photograph taken without the
knowledge of the person being photographed, applying the same principle to the
case of a tape-record of a conversation that is unnoticed by the talkers, will also
become relevant and admissible. The Apex Court in delivering the judgment was
heavily influenced by the decision of an English Court in the case of R v. Maqsud
Ali[xv]. In that case two persons suspected of murder went voluntarily with the Police
Officers into a room where unknown to them, there was a microphone connected
with a tape recorder in another room. Thereafter, when they were left alone, the
accused persons had a conversation during which some incriminating remarks were
made. The Court decided that the tape-recording of the incriminating evidence had
to be admitted as evidence. In N. Sri Rama Reddy v. V.V.Giri[xvi], better known as
the Presidential Election case the Petitioner had alleged that a certain Jagat Narain
had tried to dissuade him from contesting the election. Then, their tape-recorded
telephone conversation was then produced in Court to disprove Narains claims that
the incident never took place. Here the Court utilized the conversation to show that
a witness might be contradicted when he denies any question tending to impeach
his impartiality [Section 153 of the Indian Evidence Act] and thus observed that the
tape itself would become the primary and direct evidence.
The problem is that while this may represent the easy way out for the police, these
short cuts imperil the liberties of the citizens. Further, no respect has been attached
to the means by which the end could be achieved.. Sadly the safeguards suggested
were wholly inadequate and could not compensate for the fact that mechanical
eavesdropping had been freed from all constitutional restraint. This development is
especially important when one takes into account the amendment of 1971 that
granted the Government the license to tap any phone conversation it wished without
being made accountable or answerable to anybody. Safeguards in the form of
guidelines were only framed two decades later when a voluntary organization took
the initiative and approached the Supreme Court for assistance.[xvii]
Later on, the Radia tapes controversy related to the taped conversations of
politicians, industrialists and corporate, bureaucrats, officials, journalists and aides,
that were taped by the Indian Income Tax Department in 200809. These tapes led
to government and public accusation that these calls evidence the planning of the 2G
spectrum scam and other criminal and unconstitutional activities.
COMPARISONS WITH OTHER
JURISDICTIONS
The British Perspective
English law has evolved considerably since the blanket endorsement of any and all
methods to obtain evidence-a method propounded in the Leatham case, even though
one might be inclined to disbelieve this statement in the light of an observation in R v
Sang[xix], where it was stated that there was no discretion to refuse to admit
relevant admissible evidence on the ground that it was obtained by improper or unfair
means. The Court is not concerned with how it was obtained. For the moment, this
statement must be placed in the background, in order be state that as the law stands
now it is not illegal for the police to bug someones phone but it is forbidden to use
the information gleaned in a Court of law.
The law concerning admissibility of stolen evidence in England is a lot more flexible,
as opposed to India. A notable factor of significance in determining whether tapping
may be appropriate is the seriousness of the offence being investigated. When a
serious crime is committed coupled with significant breach of the code, evidence
obtained is admissible. In R v Khan[xx] , evidence was deemed admissible with the
Court acknowledging that the seriousness of the crime being investigated was of
importance and was seen to outweigh the improper conduct of the police. Further, in
that case trespass to property, breach of privacy and also damage to such; along
with the usage of listening devices in private premises were found in the conduct of
the police. Hence, the value of evidence that the police anticipate discovering
through improper conduct may be of significance in justifying a decision to so act.
Lord Steyn, an English Judge, acknowledged that while no Court will approve readily
of trickery and deception being used, there are some circumstances in which one
has to recognize, living in the real world that this is the only way in which some
people are ever going to be brought to trial. Additionally, there is no consensus as
to what should be admissible in evidence and what should not though as recent
cases reveal there seems to be a growing tendency to move away from the
exclusionary principle, in favor of admitting tape-recorded evidence in a Court of law.
The RIP Act of 2000 repealed the prior legislation in this area (the Interception of
Communications Act 1985). Section 2(2) of the RIP Act 2000 dealt with the
intercepting of a communication in the course of its transmission by a
telecommunication system. Additionally, there is control exerted by the Home
Secretary over the granting of telephone intercept warrants to the Director General of
Intelligence and Security. Such authorization is provided under an Interception
Warrant which must name or describe either one person as the Interception Subject
or a single set of premises where the interception is to take place. It must be noted
that RIP Act establishes a Tribunal which can investigate on whether there was a
warrant and whether it was properly issued. Thus, where it is found that an
Interception Warrant has been improperly issued, the Tribunal has power to order
compensation and the destruction of the recorded material. Additionally, if the
interception takes place without a warrant, then the Director of Public Prosecution
must consent to criminal prosecution. Hence, in the UK it is now an offence for any
person intentionally and without lawful authority to intercept any communication in
the course of its transmission through a public telecommunication system and
except in specified circumstances through a private telecommunication system.
Also, though private telephone tapping is an offence, it can be stated that the English
law is now on par with the law in India (POTA) and that in the USA (PATRIOT Act).
In the Olmstead case, the majority judgment was in favor of adjudicating the issue of
telephone tapping outside of the domain of right to privacy and the Fourth
Amendment. The judgment is notable because of the famous dissent expressed by
Justice Brandeis who observed, the right to be let alone- the most comprehensive of
rights and the right most valued by civilized men. To protect that right, every
unjustifiable intrusion by the government upon the privacy of the individual, whatever
the means employed, must be deemed a violation of the Fourth Amendment. This
was cited in 1967 when the Supreme Court in the Katz case declared that the
protection of the Fourth Amendment would be extended to all recording of oral
statements overheard, without any technical trespass under property law, i.e. using
methods such as telephone tapping. In overruling the Olmstead judgment, the Court
held that recording by police of conversation in public telephone booth was in
violation of the Fourth Amendment because the speaker had a reasonable
expectation of privacy in the booth. However, in the following decades, there were as
many as 32 judgments that expressed consenting and dissenting opinions with Katz
judgment. Recent case law in the USA confirms the fact that A recorded
conversation is generally admissible unless the unintelligible portions are so
substantial that the recording as a whole is untrustworthy. Also, Courts have relied
on the exclusionary rule and have maintained that it promotes the respect for
constitutional guarantee, by removing the incentive to disregard it. Although, English
law appears to have accepted even taped conversations in foreign languages as
evidence- in the R v. Maqsud[xxii] case [where the conversation recorded was in the
Punjabi dialect]. But, the Courts in the US have appeared more reluctant to do the
same. The attacks of September 11, 2001 and the events that followed necessitated
the passing of a new law- the PATRIOT Act. This Act, like POTA in India, liberalized
the telephone tapping procedures and aimed at making wiretapping an easier and
less procedure-ridden operation. Additionally, it extended the authority of the Federal
Bureau of Investigation [FBI] to spy on Americans for intelligence purposes. Under
Section 218, the FBI was given the power to secretly conduct a physical search or
wiretap , primarily to obtain evidence of crime without proving probable cause of
crime. This provision goes against the spirit of the Fourth Amendment to the
Constitution that requires the Government to prove to a judicial officer that it has
probable cause of crime before it conducts an invasive search [like telephone
tapping], for evidence of any crime.
Recently, the Obama administration has come under increased attack when it
revealed that it had been keeping tabs on the phone records of millions of Americans
for the past few years despite the justification that it was done in light of national
security.
Position in Canada
Under S.186, Criminal Code, any investigative authority has to apply for a judicial
authorization to intercept a private communication that is contingent on satisfaction of
the Judge to whom such an application has been made. S.184, Criminal Code
however, allows a police officer to proceed with interception of a private
communication without a judicial authorization in exigent circumstances.
Investigative measures such as wiretapping have been dealt with strictly by the
Canadian Supreme Court. To effectuate the restrictive approach, the Court curtailed
the scope of the expression other investigative procedures are unlikely to succeed
in S.186(1)(b), Criminal Code49 which authorized the police officers to wiretap on
failure of other investigative procedures.
The Supreme Court of Canada in a recent judgment, has ruled that Section-184,
Criminal Code54which authorizes the police officers to intercept a private
telecommunication without a judicial warrant, is constitutionally invalid.
The cardinal rule requires the investigating authorities to first intercept those private
communications that may be lawfully intercepted pursuant to S. 184(c) and
immediately apply to the Court for a warrant as there is no certainty as to how long
the investigation may take and an individuals privacy cannot be kept at stake for any
unspecified period of time.
COMMON FINDINGS
The significance of a judicial warrant to intercept private telephonic conversations of
an individual has been emphasized in the judicial pronouncements of the American
as well as the Canadian Courts. Even in the most compelling and demanding
circumstances, the Court has been reluctant to discard the crucial qualification of a
prior Court warrant for wiretapping. The Courts, while harmonizing laws related to
national security and an individuals privacy, have often held that the right of an
individual to privacy cannot be put to risk due to uncertainty of the time period
involved in such investigations.
CONCLUSION
The vast strides that have been made in the field of technology in the recent past
have brought people closer like never before. So, as long as criminals and terrorists
seek to misuse technology in pursuance of their evil motives, Governments all over
the world will continue to use technology to invade our private spaces. Hence, this
brings us to the question; does it take a thief to catch a thief? Then, should States
imperil the liberty and the right to privacy of entire populations in order to apprehend
a miniscule number of dangerous deviants? The Human Rights activists and liberal
intellectuals believe that Privacy is too important a right to surrender to the State
without a fight. The decision of the Supreme Court in the Malkani case was
disappointing because it left the police free to steal evidence and the Court to admit
the stolen evidence. It is useful to note that Justice Holmes suggested in 1928 in his
dissent in the Olmstead case, that it is a less evil that some criminals should escape
than that the Government should play an ignoble part. Permission for telephone
tapping in the Malkani case was given without taking into consideration a regulatory
mechanism that could serve the purpose of preventing the excesses that one
normally associates with laws in our Country that give the Government wide powers.
There is also a growing body of opinion both in India and abroad that supports
telephone tapping and describes it as a necessary evil. The emergence of terrorism
on a global scale has made most nations enact tough anti-terror legislations like the
PATRIOT Act in the USA and the Indian POTA (currently repealed). These laws
curtail civil liberties greatly and their most important provisions deal with telephone
tapping. Additionally, Governments feel that this is the most effective method to
combat the menace of terrorism- by pre-empting any terrorist strikes by making
proper use of the information obtained by the electronic eavesdropping procedures.
The fact remains that everyone condemns telephone tapping but no one refrains
from using it when needed. The above is particularly true in cases of politicians like
Richard Nixon in the USA and Indian leaders like Rajiv Gandhi, and Chandra
Shekhar, who at some point or the other have been either the victims or the
beneficiaries of telephone tapping.
Both sides to the argument have valid reasons for clinging on to their views on the
subject. No one view has been accepted as the correct one but the fact of the
matter is that electronic eavesdropping is here to stay. Thus, the best that can be
done is to evolve comprehensive regulatory mechanisms to soften the impact of the
States intrusion into our private spaces. In addition, there is also an urgent need
especially in India, to come up with guidelines focusing on the admissibility of
different types of evidence in Courts of law. Plus, the new Central Monitoring
System(CMS) has been made operational from April 2013.The CMS would further
help empower Government agencies to tap phones without authorization. Hence,
effective safeguards need to be evolved at once otherwise the Right to Privacy
guaranteed under Article 21 of the Constitution is in serious jeopardy.
[ii] See HM Seervai, Constitutional Law of India, vol 3, 4th edn, NM Tripathi, 1996, pg
2332.
[iii] ibid
[iv] Entry 31, Schedule VII, Constitution of India: Posts and telegraphs; telephones,
wireless, broadcasting and other like forms of communication..
[ix] at paragraph 23
[xii] Roy Olmstead v. United States of America 277 U.S. 438 (1928)
[xxiv] ibid
Filed Under: Indian Evidence Act, Information Technology Law, International Human Rights
Law, Media & Cyber Law, Public International LawTagged With: phone-tapping, right to
privacy, telegraph act
Jessica Lal : A case of Indian Realism
To many who study India, it has become a tad trite to describe this complex nation-state as one that is filled
with contradictions. Attuned observers know that what India has accomplished during its fifty- plus years
of independence is nothing short of astounding. As serious, if not more so of a problem, but one that has
received passing attention by most scholars, is the inefficiency of the countrys judicial system. We all
know about the judgement of Jessica lals murder case has come as a closure of something. Dozens of
people witnessed the killing inspite of that all the nine high profile accused walked off like free birds. With
efforts of media and her family members, people have become aware about misuse of power by politicians,
bureaucrats and public outrage has build up across the country over the acquittal of all the nine accused.
Jessica lal was a model in New Delhi, who was working as a celebrity barmaid at a crowded socialite party
when she was shot dead on 29 April 1999. Dozens of witnesses pointed to Manu Sharma, the son of vinod
Sharma, a wealthy congress politician in Haryana, as a murderer. In the ensuring trial, and a number of
others were acquitted on 21 February 2006. Following intense media and public pressure, the prosecution
appealed and the Delhi high court conducted proceedings on a fast track with daily hearings over 25 days.
The lower court judgments was found guilty of having murdered Jessica lal. He was sentenced to life
imprisonment on 20 December 2006.
During the summer of 1999, leading socialite bina ramani had been organizing Thursday special nights,
at her newly opened tamarind court restaurant, at qutub colonnade, a refurbished haveli overlooking the
qutub minar in mehrauli.
On 29 April 1999, it was the seventh and last Thursday Special of the season; also being celebrated was the
foreign visit of Bina Ramanis Canadian husband Georges Mailhot, for a period of six months. Though the
restaurant was yet to receive its liquor license, drinks could be bought through discreetly marked QC
coupons, and on that night, several models and friends were serving drinks at the Once Upon A Time bar,
including Jessica Lal, Bina Ramanis daughter Malini Ramani, friends shavan munshi, and others.
Manu Sharma along with amrinder singh gill, a general manager of coca-cola bottling unit in new Delhi,
alok khanna, a colleague of amrinder, and vikas yadav, a son of rajya sabha member, d.p.yadav reached
tamarind court at11:15 pm. As it was busy night, the drinks were soon over, at about 2 a.m. manu Sharma
asked for a drink , which Jessica refused; he then tried to offer a thousand rupees, which see refused as
well. Though there are many versions of what happened next, sometime soon, the inebriated and enraged
manu Sharma shot at Jessica twice at point blank range ,the first bullet hitting the ceiling. The second one
proved to be fatal, as it hit Jessica.
Then on 3rd August1999, delhi police filed the charge sheet in the court of metropolitan magistrate, where
manu Sharma was named the main accused charged under section 302, 201, 120(b) and 212 of indian
penal code and sections 27,54 and 59 of arms act. While other accused, like Vikas Yadav, Coca-Cola
Company officials Alok Khanna and Amardeep Singh Gill (destroying evidence of the case and
conspiracy); were all charged variously under sections 120(b), 302, 201 and 212 of the IPC (for giving
shelter to the accused and destroying evidence).
The case went up for trial in August 1999. Four of the witnesses who had initially said they had seen the
murder happen eventually turned hostile. Shayan munshi , a model and friend who was serving drinks
beside Jessica Lall, changed his story completely; as for earlier testimony recorded with the police, he said
that the writing was in Hindi, a language he was not familiar with, and it should be repudiated. Also, it
appears that the cartridges used in the murder were altered. Although the gun was never recovered, these
cartridges were for some reason sent for forensic evaluation, where it turned out that they had been fired
from different weapons. This led to a further weakening of the prosecutions case.
After extensive hearings with nearly a hundred witnesses, a Delhi trial court headed by Additional Sessions
Judge S. L. Bhayana, acquitted 9 accused in Jessica Lall Murder case, on 21 February 2006. Those
acquitted were, Manu Sharma,Vikas Yadav, Manus uncle Shyam Sundar Sharma, Amardeep Singh Gill
and Alok Khanna, both former executives of a multinational soft drinks company, cricketer Yuvraj Singhs
father Yograj Singh, Harvinder Chopra, Vikas Gill and Raja Chopra. The judgment faulted the police for
deciding on the accused first and then collecting evidence against him, instead of letting the evidence lead
them to the murderer. Since the prosecution had failed to establish guilt beyond doubt, all nine accused
were acquitted.
After the verdict many experts pointed fingers at the flaws in the Indian Evidence Act of 1872, especially
Sections 25-29: No confession made by any person whilst he is in the custody of a police officer, unless it
be made in the immediate presence of a Magistrate, shall be proved as against such person. Though, the
clauses were initially added for the protection of the defendants from giving confession under police
torture, it was later exploited by many a guilty defendants as well, as in this case, where many a witnesses
withdrew their testimony, after first giving it to the police during interrogation.
After an immense uproar, hundreds of thousands e-mailed and smsed their outraged on petitions
forwarded by media channels and newspapers to the president and other seeking remedies for the alleged
miscarriage of justice. On 25 March 2006, the Delhi High Court admitted an appeal by the police against
the Jessica Lall murder acquittals, issuing non-bailable warrants against prime accused Manu Sharma and
eight others and restraining them from leaving the country. This was not a re-trial, but an appeal based on
evidence already marshalled in the lower court.
On 19 April 2010, the Supreme Court of India has approved the life sentence for the guilty. The two judge
bench upholding the judgement of the delhi high court stated that, The prosecution has proved beyond
reasonable doubt the presence of Manu Sharma at the site of the offence.
As we can see inspite of all its success, Indias democracy is at risk of becoming de-legitimized because of
increasing lack of faith many Indians have in the judicial process. Yet the problem is that in the
democracy, the judiciary is constituted to serve as the counter-majoritarian protector of minority interests.
Now that the courts are also seen by many as a futile forum in which to bring about social change, it is a
little wonder why those who are aware of the turmoil within the Indian legal system fear that this great
democratic experiment is encountering one of its biggest crises to date.
RELEVANT CASES
There are many such incidents which have taken place, just like Jessica lal in our Indian legal system. One
such incident is priyadarshini mattoo case. Priyadarshini matto ) was a 25 year old law student who was
found raped and murdered at her house in new delhi on January 23, 1996. On October 17, 2006, the Delhi
High Court found Santosh Kumar Singh guilty on both counts of rape and murder and on October 30 of the
same year sentenced him to death. On October 6, 2010, the supreme court of india commuted the death
sentence to life imprisonment. Santosh Kumar Singh, the son of a Police Inspector-General, had earlier
been acquitted by a trial court in 1999, and the High Court decision was widely perceived in india as a
landmark reversal and a measure of the force of media pressure in democratic setup. This decision went in
favor because the facts were not presented correctly in the lower court. The intense media spotlight also led
to an accelerated trial, unprecedented in the tangled Indian court system.
The acquittal of Santosh Singh in 1999 had led to a massive public outcry and the investigating agency
CBI, under considerable pressure, challenged the judgment in the delhi high court on February 29, 2000.
Public pressure mounted greatly after an acquittal verdict in the Jessica case, where a number of accused
including politicians son manu sharma were released despite the murder taking place in a high-society bar
in the presence of dozens of people. The case is one of several in India that highlight the ineffectiveness of
traditional criminal law system, especially when it comes to high profile perpetrators, including the manu
sharma acquittals.
Another incidence which also show the mockery of our judicial system is nitish katara case. nitish katara
was a 24 year old indian business executive in delhi, who was murdered in the early hours of February 17,
2002, by vikas yadav the son of influential criminal-politician d.p. yadav. Nitish had recently graduated
from the Institute of Management Technology, Ghaziabad, where, he had fallen in love with his
classmate, bharti yadav, sister of Vikas. The trial court held that Nitishs murder was an honour
kiling because the family did not approve their relationship. Vikas and Vishal Yadav were later found
guilty by the trial Court and awarded life sentence on 30 May 2008.
Vikas and Bharti Yadavs father, D. P. Yadav, is a noted criminal-politician, the unrivalled don of western
Uttar Pradesh. Before entering politics, D. P. Yadav had racked up nine murder charges, and was
implicated in a bootlegged liquor sale which killed 350 people in the early 1990s. Since 1989, he has
served several terms as minister in the state government with mulayam singh yadav. In 2004, he became a
member of the Indian Parliament under the bharatiya janata party but such was the ensuing scandal that the
party threw him out within daysMost recently, he narrowly won the uttar Pradesh assembly
elections,2007 from sahaswan (margin of 109 in 114,000 votes cast). Bhartis mother, Umlesh Yadav, is
also a state legislator, representing neighbouring bisauli.
The Yadav family never liked Bhartis liaison, and Nitish had received threats several times. However, he
was an idealist, and believed in standing up to injustice.On the night of 17 February 2002, Nitish and
Bharti were attending a common friends wedding, where Bhartis brother, Vikas and a cousin were present
as well. From there, Nitish was taken for a drive by Bhartis brother Vikas and Vishal Yadav, and never
returned. Nitishs fatal mistake was that he agreed to go with them, apparently thinking that Vikas really
wanted to talk and sort out the differences between them; he failed to sense that the hidden motive behind
the drive was solely to end Bhartis love tangles with him. Three days later, his body was found beside the
highway; he had been battered to death with a hammer, diesel poured on him, and set aflame.
The ensuing trial followed the trajectory of many cases involving money and muscle power in India. A
number of respectable witnesses, including key friends of both Nitish and Bharti, repudiated their initial
testimony. However, owing to intense media scrutiny, and also the strength of the evidence, a conviction
ensued.
Another incidence which shows how the Indian courts have realized about the importance of women in our
society and also the change which is required in our law. In bodhisatwa gautam vs subhra chakraborty
(1996) the supreme court awarded an interim compensation of Rs 1000 per month to the victim of rape
until her charges of rape are decided by the trial court. Justice saqhir ahmed observed that unfortunately, a
women in our country, belongs to a class or group of society who are in a disadvantaged position on
account of several social barriers and impediments and have therefore, been victims of tyranny at hands of
the men with whom they, under the constitution enjoy equal status. The court also further held that rape
is a crime against basic human rights and is also violative of the victims most cherished of the
fundamental rights, normally, the right to life contained in article 21.
Another such incidence which relate how are Indian courts works through giving decisions is through
shriram food and fertilizers case. there was leakage of chlorine gas from the plant resulting in death of one
person and causing hardships to workers and residents of locality. This was due to the negligence of the
management maintenance and operation of the caustic chlorine plant of the company. The matter was
brought before the court through PIL.
Further the court held that legal system of a developing nation cannot afford to subject itself to a distant
rule which was developed at such a distant time when science and technology was not so developed. It
also held that application of exceptions to strict liability is inapplicable. The court held that when an
industry is involved into hazardous or inherently dangerous activity, then it is absolutey liable in case any
accident mishap. The court basically tried to held the difference between strict liability and absolute
liability and how the courts give their decisions which are beneficial to the society.
Indian realism also tells us about how the court decides validity to law. Citing the example of suneel jaitely
vs state of haryana , the reservation of 25 seats for admission to m.b.b.s. and b.d.s. course for students who
were educated from classed 1st to 8th in common rural schools was held to be violative of article14 and
invalid as the classification between the rural educated and urban educated students for this purpose was
wholly arbitrated and irrational having no nexus to the object sought to be achieved of providing extra
facilities to students coming from schools to enter medical college. Therefore we can see that how
decision making by the court is also the form of law making.
We also come to know that Indian realism contains some characteristics found in western democracies. But
it is not so much that the rulings from the Indian courts have run contrary to the interests of democracy.
Rather the time it takes to receive a verdict is so long that most social policy movements opt not to engage
in the legal process. In effect,Such disregard for the judicial system, as we will discover, puts into question
what role the rule of law plays within the Indian democratic society.
In the conclusion the judiciary must be the institution for redress when there is curtailment in the operation
of those political processes ordinarily to be relied upon to protect minorities. There should be substantive
changes to be made in both Indian civil and Indian criminal procedure codes. As already seen, the current
codes allows for endless appeals in cases being continued for decades or simply never heard. In addition
india desperately needs more judges and more physical courts. Finally, a more accountable system of
alternative dispute resolution could provide structural assistance for those group that wish to resolve issues
in a less adversarial, perhaps even more efficient manner
In the landmark murder case the Delhi high court, in 2006, had
convicted 10 persons for the 1999 murder of Delhi-based model
and actor Jessica Lal. The Supreme Court, in 2010, upheld the
convictions including that of main-accused Manu Sharma who had
fired gunshots at Lal at the party where she, as a bartender, had
refused to serve him a drink. Sharma is the son of Haryana
Congress leader Vinod Sharma.
The duty of an expert is to furnish the court his opinion and the
reasons for his opinion along with all the materials. It is for the
court thereafter to see whether the basis of the opinion is correct
and proper and then form its own conclusion.