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Wednesday, August 14, 2024

Grant of Bail for Accused in "Anti-National" Activities


See the above case? The case we will see today is the same case and the "ex-cop" is the appellant in the case. You can find the case reported here https://www.indiatoday.in/india/story/patana-terror-module-busted-pm-modi-target-india-islamic-nation-2047-pfi-1975412-2022-07-14

It's a familiar scenario: a few accused are charged under sections of the Indian Penal Code (IPC) and the Unlawful Activities (Prevention) Act (UAPA) for criminal conspiracy. The prosecution either fails to produce sufficient evidence to prove the charges or implicates individuals with only remote connections to the case. The Special Court or Trial Court rejects the bail of the accused, which is then challenged in a High Court and rejected again. Eventually, the order is challenged in the Supreme Court, which grants bail subject to certain conditions. This cycle seems endless, with few steps taken to improve the quality of prosecution in framing charges and producing evidence.

Notably, in these cases, the prosecutor is often the National Investigation Agency (NIA), which has a conviction rate of over 90%, an impressive figure. This raises an important question: Is the quality of public prosecutors generally poor, or is it the state's obsession with framing individuals that leads to charges that cannot be proven? This is a topic for another discussion. Now, let's return to the case at hand.

Facts of the Case

The case revolves around a man named Jalaluddin Khan, who owns a property called Ahmad Palace in Patna, Bihar, registered in his wife's name. The first floor of this property was allegedly used by the main accused in the original suit to further the agenda of the Popular Front of India (PFI). Police, acting on information that certain individuals were attempting to sabotage the Prime Minister's visit to the state, raided the property. During the raid, the police found objectionable documents, including "India 2047 Towards Rule of Islamic India."

The case involves three protected witnesses, one of whom claims that after Nupur Sharma's remarks on Prophet Mohammad, directions were given to trained PFI cadres to attack and kill selected targets involved in making derogatory remarks against Islam. It is important to note that the appellant was a former police constable. The charges against him include offences punishable under Sections 121, 121A, and 122 of the IPC, and Sections 13, 18, 18A, and 20 of the UAPA, which deal with terrorism charges.

Issues to Ascertain

  1. Was the accused really a facilitator?
  2. Is the accused entitled to bail?

Analysis of the Issues

Issue 1: Was the Accused a Facilitator?

To prove the charges, the prosecution presented several documents, including CCTV footage. However, the evidence was deemed insufficient, as it merely showed a normal contractual relationship between two parties, such as payment details and a rent agreement. The court observed that the prosecution's claim that the appellant attended a meeting only discussed the conditions of Muslims in India and education within the community. The prosecution also produced CCTV footage showing the appellant removing some objects before the raid, suggesting his involvement in the conspiracy, but the court found this evidence unconvincing.

Issue 2: Is the Accused Entitled to Bail?

The court relied on the judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali, which established guidelines for courts to follow when applying bail limitations under the UAPA. The key points of this judgment include:

  • Prima Facie True: The materials must show the accused's involvement in the offence, sufficient to establish a chain of facts unless contradicted by other evidence.
  • Degree of Satisfaction at Different Stages: After charges are framed, the court must presume a strong suspicion based on the materials presented. The accused must prove that the materials do not make out reasonable grounds for believing the accusation to be prima facie true.
  • Reasoning and Evidence Evaluation: The court must record a finding based on broad probabilities regarding the accused's involvement, without detailed examination of evidence.
  • Material Analysis: The court must consider the totality of the material presented, not individual pieces of evidence.
  • Admissibility of Documents: The court must take documents as they are, without questioning their admissibility at this stage.

The court also referenced the judgment in Thwaha Fasal v. Union of India, which stated that the court must consider whether there are reasonable grounds to believe that the accusation against the accused is prima facie true. If no such grounds exist, the accused is entitled to bail. The court is not expected to hold a mini-trial or examine the merits of the evidence at this stage.

Court's Observation and Conclusion

After applying the reasoning from the above cases and reviewing the evidence, the court noted that there was no allegation in the charge sheet that the appellant was a member of any terrorist gang. The court also observed that the Special Court and High Court did not objectively consider the material in the charge sheet, focusing more on the activities of PFI rather than the appellant's case. The court emphasized that when a case for bail is made, the courts should grant bail without hesitation, in accordance with the law. Denying bail in deserving cases would violate the rights guaranteed under Article 21 of the Constitution.

Thus, the court granted bail to the appellant, allowing the Special Court to set the conditions of bail.

Personal Opinion

In this case, it was established that the appellant knew the other accused were working for PFI. However, at that time, PFI was not designated as a terrorist organization, allowing the appellant to escape liability. This highlights the failure of lawmakers to ban PFI earlier and the prosecution's failure to present strong evidence. In my opinion, the appellant was granted bail primarily because PFI had not been designated as a terrorist organization at the time.

Thursday, August 8, 2024

Torts vs Criminal Liability

Wojak Judge - The Legal Grindset

Recently, I got an opportunity to work on a criminal case, and I was very excited about it. However, after going through the facts of the case, my excitement vanished as I found that it was not a criminal case but a case involving the Law of Torts.

Facts of the Case

In this case, there was a gardener and an employer. The employer here is not the owner of an establishment but a dweller in a regular house with a garden. The gardener is not a registered employee and is actually a daily wage laborer. If we were to ask the gardener, he couldn't produce an employment letter as this sector itself is not regulated. Blue-collar workers are not regulated, and that is the reason why most of them cannot prove their employment status.

Anyways, the case started after the employer asked the gardener to climb up a jackfruit tree and pluck some fruits. While doing that task, the gardener fell down, succumbed to his injuries, and died. Now, a well-wisher of the gardener wrote a letter to the magistrate, and the magistrate, under Section 200 of the CrPC, registered a criminal complaint and directed the police to register an FIR. Since crimes under the IPC are considered crimes against the state, the state becomes the prosecutor, and the Public Prosecutor in this case filed charges under Section 304 of the IPC, which deals with culpable homicide not amounting to murder, and Section 34 of the IPC, which deals with acts done by several persons in furtherance of common intention. Both the husband and wife were made the accused in this case.

Issues

The primary issue I found applicable in this case is that it is not a criminal case at all. I feel this is a case involving torts. I feel that the Public Prosecutor has failed in his job to file the relevant sections. This would actually become a criminal case if the employers did not pay any compensation as per the Employees' Compensation Act.

Why This Is Not a Criminal Case?

This is not a criminal case because the fundamentals of any criminal case require that the actus reus, mens rea, and causal links between the crime and the accused on trial must be proven. The actus reus is there, which is already a matter of dispute, but mens rea is not present, as there is literally no interest of the employer to kill an employee by making him pluck a jackfruit. But for the sake of this case, let us give some benefit of the doubt.

Why This Is a Torts Case?

In my argument, I believe this is a torts case because it checks all the boxes of the essentials of a tort. Tort generally means civil wrongdoings, but actually, it is a case arising not due to someone's fault but due to some twist in the tale. The remedies available in torts are due to the principle of "Ubi jus ibi remedium."

I am focused on the point that this is a torts case due to the following reasons:

  • The prosecution will not be able to prove the case.
  • As advocates, our responsibility is to assist the courts, and I believe it is in the best interest of both aggrieved and accused parties that the case is settled by providing a remedy.
  • It is of no use for the employer to go to prison. I believe true justice lies in getting the remedy to the victim. And as stated by the Supreme Court in the case Naresh Kumar & Anr. vs. State of Karnataka & Anr., the Court stated that the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature. Tort, being a case of a civil nature, should also be tried separately.

How the Prosecutor Can Use the Provisions of the Employees' Compensation Act

The prosecutor could have instead relied on the provisions of the Employees' Compensation Act to seek justice for the deceased gardener. Under this Act, the employer is liable to pay compensation to the employee's family in cases of death or injury during the course of employment. Given that the gardener was carrying out the employer's instructions at the time of the accident, the employer would be responsible for compensating the gardener's family.

The prosecutor could have filed for the compensation under the Act, ensuring that the family receives the financial remedy they deserve. This approach aligns more closely with the principles of justice, as it focuses on providing relief to the victim's family rather than pursuing criminal charges that are difficult to substantiate.

Personal Opinion

I believe we must not romanticize giving criminal punishment over any issue. The main objective of an advocate is to assist the court and that include a Public Prosecutor. If there is a violation of right, the remedy shall be given to the aggrieved but giving a criminal punishment does the aggrieved get any remedy? criminal punishment shall only be given when there is no other alternate remedy available.


Tuesday, August 6, 2024

Why Marvel and DC Don’t Sue Each Other Despite Similar Characters?

 

As a kid I used to wonder, Why Marvel and DC, the two comic book giants don’t constantly sue each other for copyright infringement, especially when some of their characters seem so similar. Take Deadpool and Deathstroke, for example. Both are skilled with guns and swords, have healing powers, and wear similar costumes. The main difference is their personalities: Deadpool is chatty and funny, while Deathstroke is serious and morally complex. Similarly, characters like Hulk and Solomon Grundy share many traits. If we as viewers can spot these similarities, why don’t Marvel and DC file lawsuits over them?

The Idea-Expression Dichotomy

One key reason is the idea-expression difference in copyright law. This principle says that while copyright protects the way ideas are expressed, it doesn’t protect the ideas themselves. In superhero comics, common ideas like super strength or healing abilities can’t be protected. However, the specific way these ideas are shown—through character design, storylines, and dialogue—can be protected.

For example, while Deadpool and Deathstroke are both mercenaries with similar abilities, they are expressed differently. Deadpool’s humor and antics set him apart from Deathstroke’s serious and gritty character. Because of these differences in expression, straightforward copyright claims are hard to make.

Originality and Substantial Similarity

To win a copyright infringement lawsuit, a plaintiff must prove that their work is original and substantially similar to the allegedly infringing work. Marvel and DC characters, even if they share common superhero traits, usually have unique attributes that ensure their originality. Hulk and Solomon Grundy might both be big, green, and super-strong, but their origins, motivations, and story arcs are different enough to avoid substantial similarity claims.

Fair Use Doctrine

Another important part of copyright law is the fair use doctrine, which allows limited use of copyrighted material without permission for purposes like criticism and parody. Marvel and DC have sometimes parodied each other’s characters, which is generally considered fair use. For instance, Marvel’s Deadpool is often seen as a parody of DC’s Deathstroke, highlighting certain traits for comedic effect.

Conclusion

While characters like Deadpool and Deathstroke, or Hulk and Solomon Grundy, might seem too similar to be coincidental, the principles of copyright law explain why Marvel and DC don’t constantly sue each other. The idea-expression difference, requirements for originality and substantial similarity, and the fair use doctrine provide a legal framework that allows both companies to create characters with shared traits without infringing on each other’s copyrights. This way, both Marvel and DC can continue to coexist and thrive in the comic book industry.

Friday, August 2, 2024

Prison Visit

Prison visit in Bangalore Central Prison - The Legal Grindset

So, we visited the Central Prison in Bangalore on 24th July 2024. The reason I'm writing about this now is that, at first, I did not think I would be documenting the prison trip, but few thoughts came to my mind, so I'm putting them right here. First of all, this was a one-of-a-kind trip where we went to prison without doing anything against the law, and I intend to keep it that way in the future as well. The prison literally shocked us. There's no doubt that prison is a very different kind of place, yet it is just like a normal public place in India.

If we were to compare the prison with the rest of Bangalore, we could easily say it was not as good as Malleshwaram, but I can bet my life that it was at least a hundred times better than areas like Cottonpete and Chikpete. I think that with strict compliance, we can actually make India a little cleaner and better. The only difference between Cottonpete and the Central Prison is that in Cottonpete, people have been given liberty, while the prisoners have limited liberty. This seems like a hard pill to swallow, but prison literally seems like a better option than living in some areas of India.

What was most striking in the prison visit was how similar it was to a school or an educational institute in India. The similarities include a large area enclosed in a compound with a fence, hostel-like prison cells, strict timings for everything, and finally, teachers and jailors who go on to beat anyone without any reason.

Reform in prisons in India is a joke. It seemed like all the undertrials in the prison will go out and commit crimes again. The undertrials showed peculiar behavior; to me, it seemed like they were really enjoying their time in prison, and all of them had a kind of pride in being there. Group fights and skirmishes were common in the undertrial area, and generally, it was very chaotic.

The situation in the convict area was completely different. All the convicts showed patience and gentlemanly behavior. They were quiet and cooperative. There were no skirmishes in the convict area, and almost all of them were busy doing some work and ignored the visitors. Undertrials, on the other hand, were staring at the visitors. Some of the undertrials seemed more interested in boys than girls too.

One thing common among all the prisoners was that they were very intimidating. Almost all of them were stunted in height. They were usually short and skinny. I would say they were smaller in physical stature compared to the average in India, as poverty can be one of the main reasons most of them are in prison anyway. But still, they were very intimidating. Just looking at them, I knew that I couldn't take them on one-on-one despite having a better build than most of them. It felt like they had eyes made of stone locked on us, and their pointy, thin fingers seemed like they could pierce a man's flesh easily. Observing them, I felt that I could easily distinguish a criminal from an ordinary man without a trial. The prison visit literally changed my worldview. On one hand, I think that prison is better than living in poverty in India, but if we see it the other way, it is a hell for people who are rich and middle class. We were not able to see the VIP prison cells, so we cannot comment on what the conditions were like there, but the ordinary prison seems like a third-grade government school or college. People who can survive such schools or colleges will love prison.

The State of Punjab and Ors Vs Davinder Singh: Revisiting the Policy of Reservations in India

Reservations in India is perhaps the most controversial topic. A mere mention of the removal or change in this policy is enough to cause riots. This kind of reaction is expected as, except for the General Category, all the classes of people are reserved in India. We don't have the government data regarding the caste-wise population of India, but there are various surveys done to find the details of caste-wise population in India. The most prominent of these surveys is the Pew Research, where the majority of Indians claimed that they were from the lower castes, that is SC/ST or OBC. In a country where the majority are of the lower caste, it is just common sense that it becomes a major topic for politics, and majority appeasement becomes the standard.

History of Reservations in India

Reservations were introduced in India as an affirmative action to support the marginalized or backward communities in India. Initially, only people belonging to SC and ST were given reservations. However, after the VP Singh-led government decided to implement the Mandal Commission, OBCs were also brought under the reservations, changing the nature of politics in India. Post-implementation of the Mandal Commission, India has become more divided by caste, and we have seen the rise of caste leaders such as Lalu Yadav, Mulayam Singh Yadav, and Mayawati as a phenomenon.

Current Situation

Like everything in India, we were not able to achieve the targets for which the reservations were brought. Every time there is a new vacancy, some new policy of the state government is brought to action, which is then challenged in court, leading to endless litigations. This results in delays in the recruitment process, and many seats remain vacant, burdening the government and blunting the efficiency of the administration. The results of this inefficiency are evident in our daily interactions with government offices. One such policy of the governments is to subclassify the reserved communities, and it is over this issue that the Supreme Court passed a landmark judgment on 1st August 2024.

The State of Punjab and Ors Vs Davinder Singh

Background

The issue in this case arises when the State Legislature of Punjab enacted the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006. Section 4(5) of this act provides for 50% reservation in direct recruitment of Scheduled Castes, but priority is to be given to Mazhabi Sikhs or Balmikis as the first preference. This section of the Act was challenged.

Constitutional Provisions Applicable

Article 14 provides for equality before law to all citizens, while Article 15(1) states that the State should not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. However, under Article 15(4), the state has the power to make special provisions for the advancement of any socially and educationally backward classes of citizens. Further, Article 16 deals with equality of opportunity in matters of public employment. Article 341 gives the President the power to notify the castes, races, or tribes which shall be deemed to be Scheduled Castes, and Article 342 does the same for Scheduled Tribes.

Precedent Set

In the case EV Chinniah v. State of Andhra Pradesh, the same issue of the subcategorization of the Scheduled Castes and Scheduled Tribes was discussed and held as unconstitutional, as these groups form a singular group. Based on this decision, the Punjab and Haryana High Court declared the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006 as unconstitutional. The State then challenged the order of the Punjab and Haryana High Court by relying on the 9-judge bench decision in the case Indra Sawhney v. Union of India. In Indra Sawhney v. Union of India, it was held that the backward classes could be divided into the ‘more backward’ and ‘backward’, depending on inter-se backwardness. Further, the Supreme Court relied on various judgments such as State of Kerala v. NM Thomas and Jarnail Singh v. Lachhmi Narain Gupta.

Judgment

The Hon'ble judges, relying on the statistics, noted that deprived and marginalized persons have not been able to achieve the benefit of reservation. The Hon'ble judge further noted that the government has used caste as the basis for upliftment rather than identifying the class of people based on vocation or their social and economic conditions who actually require help to be promoted to the level of the forward class. The experience shows that the better-off among the backward classes take up most of the reserved vacancies/seats, leaving the most backward with nothing in their hands.

This situation was illustrated using an example of three students, A, B, and C. Both A and B come from well-to-do families with similar status, family background, education, and financial capacity. A, a general category candidate, qualifies for admission on merit, whereas B, from a backward class, qualifies for admission in the reserved category. Student C, also from a backward class but without the same advantages, remains unsuccessful. Repeatedly, backward class candidates with similar advantages to A and B qualify, leaving the most backward behind.

The Supreme Court relied on Hindu scriptures such as Skanda Purana and Bhagwat Gita to assert that ancient India was a casteless society. The court observed that reservation is a facility, but its execution revives casteism. Quoting Nani Palkhiwala, the court stated that:

"The basic structure of the Constitution envisages a cohesive, unified, casteless society. By breathing new life into casteism, the judgment fractures the nation and disregards the basic structure of the Constitution. The decision would revitalise casteism, cleave the nation into two – forward and backward - and open new vistas for internecine conflicts and fissiparous forces, and make backwardness a vested interest. It will undo whatever has been achieved since independence towards creating a unified, integrated nation. The majority judgments will revive casteism which the Constitution emphatically intended to end; and the pre-independence tragedy would be re-enacted with the roles reversed – the erstwhile underprivileged would now become the privileged."

The Supreme Court also quoted the views of Jawaharlal Nehru:

"I want my country to be a first-class country in everything. The moment we encourage the second-rate, we are lost. The only real way to help a backward group is to give opportunities for good education, including technical education, which is becoming more important. Everything else is a provision of crutches which do not add to the strength or health of the body."

Based on these views, the Supreme Court concluded that sub-classification of the scheduled castes is constitutionally permissible. The policy of reservation, as enshrined under the Constitution and by its various amendments, requires a fresh re-look and the development of other methods for helping and uplifting the depressed class or the downtrodden. Periodical exercises should exclude those who, after taking advantage of reservation, have reached parity with the general category. The court favored adding the concept of "creamy layer" to the SC and ST population, suggesting that those who have availed reservations once should not be granted the same again, as it deprives other underprivileged individuals.

Personal Opinion

I never thought that I would agree with any judgment in toto, but this judgment is so well reasoned and written that I must admit I agree entirely. These are issues that we are not generally allowed to discuss, as even mentioning them can result in being labeled "anti-dalit," as the Hon'ble Judges have also observed. Ultimately, give a man a fish, and you feed him for a day; teach a man to fish, and you feed him for a lifetime. Giving reservations is like giving that fish, but without skills, the man never learns. The government should explore other ways to help the downtrodden, but instead, they are satisfied with the votes they receive.

Conclusion

The issue of reservations in India remains deeply complex and contentious. While the original intent was to uplift marginalized communities, the implementation and evolution of these policies have led to significant political and social challenges. The Supreme Court's recent judgment highlights the need for a nuanced approach to reservations, recognizing the disparities within the backward classes themselves. The concept of "creamy layer" within the SC and ST populations and the periodic review of reservation policies may be necessary steps to ensure that the benefits reach those truly in need.

The judgment calls for a reassessment of how reservations are administered, suggesting that a focus on education and skill development might be more effective in achieving the goal of social equality. This approach aligns with the vision of a casteless, unified society as envisaged by the framers of the Constitution. As India continues to navigate these complex issues, it is crucial that policies evolve to reflect the changing socio-economic realities, ensuring that the principles of justice and equality are upheld for all citizens.

Problem with Reforms in India

To simply put, you cannot push for reforms in India. "But, India has seen many reforms since independence, how can we say that reforms ...