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TMI Blog2009 (4) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... , A. Subhashini, S. Wasim A. Qadri, Anil Katiyar, D.S. Mehra, Vanita, Shail Kumar Dwivedi, Gunnam Venkateswara Rao, Vandana Mishra, A.K. Jha and M.K. Jha, Advs JUDGMENT ARIJIT PASAYAT, J. 1. Taking a serious note of various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings were initiated by a Bench of this Court on 5.6.2007. Dr. Rajiv Dhawan, Senior counsel of this Court agreed to act as Amicus Curiae. After perusing various reports filed, two Committees were appointed; one headed by a retired Judge of this Court Justice K.T. Thomas. The other members of this Committee were Mr. K. Parasaran, Senior Member of the legal profession, Dr. R.K. Raghvan, Ex-Director of CBI, and Mr. G.E. Vahanavati, the Solicitor General of India and an officer not below the rank of Additional Secretary of Ministry of Home Affairs and the Secretary of Department of Law and Justice, Government of India. The Other Committee was headed by Mr. F.S. Nariman, a Senior Member of the Legal Profession. The other members of the Committee were the Editor-in-Chief of the Indian Express, the Times of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair. Of course, it is normally difficult to prove abetment of the offence with the help of direct evidence. This flaw can be remedied to a great extent by making an additional provision in PDPP Act to the effect that specified categories of leaders of the organization which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offence. At the same time, no innocent person, in spite of his being a leader of the organization shall be made to suffer for the actions done by others. This requires the inclusion of a safeguard to protect su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o sooner than the direct action subsides, the police officer concerned shall authenticate the video by producing the videographer before the Sub Divisional or Executive Magistrate who shall record his statement regarding what he did. The original tapes or CD or other material capable of displaying the recorded evidence shall be produced before the said Magistrate. It is open to the Magistrate to entrust such CD/material to the custody of the police officer or any other person to be produced in court at the appropriate stage or as and when called for. The Committee felt that offenders arrested for damaging public property shall be subjected to a still more stringent provision for securing bail. The discretion of the court in granting bail to such persons should be restricted to cases where the court feels that there are reasonable grounds to presume that he is not guilty of the offence. This is in tune with Section 437 of the Code of Criminal Procedure, 1973 and certain other modern Criminal Law statutes. So we recommend that Section 5 may be amended for carrying out the above restriction. Thus we are of the view that discretion to reduce the minimum sentence on condition of recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him: however - the distinction in purpose between criminal law and the law of tort is not entirely crystal-clear, and it has been developed from case-to-case. The availability of exemplary damages in certain torts (for instance) suggest an overtly punitive function - but one thing is clear: tort and criminal law have always shared a deterrent function in relation to wrongdoing. The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognise as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future. There are dicta both ancient and modern that categories of tort are not closed and that novelty of a claim is no defence. But generally, the judicial process leading to recognition of new tort situations is slow and concealed for judges are cautious in making innovations and they seldom proclaim their creative role. Normally, a new principle is judicially ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. (3) In this branch of the law, the principle of restitution in interregnum has been described as the dominant rule of law. Subsidiary rules can only be justified if they give effect to that rule. In actions in tort where damages are at large i.e. not limited to the pecuniary loss that can be specifically proved, the Court may also take into account the defendant's motives, conduct and manner of committing the tort, and where these have aggravated the plaintiff's damage e.g. by injuring his proper feelings of dignity, safety and pride - aggravated damages may be awarded. Aggravated damages are designed to compensate the plaintiff for his wounded feelings-they must be distinguished from exemplary damages which are punitive in nature and which (under English Law) may be awarded in a limited category of cases. Exemplary damages has been a controversial topic for many years. Such damages are not compensatory but are awarded to punish the defendant and to deter him and others from similar behaviour in the future. The law in Englan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment appears to have been confirmed by the Privy Council (in The Cleaner Co Ltd. v. Abrahams (2004) a AC 628 at 54) where it was felicitously said that oil and vinegar may not mix in solution but they combine to make an acceptable salad dressing. The authors go on to say that exemplary damages certainly enjoy a continuing vitality in other common law jurisdictions, which, by and large, have rejected the various shackles imposed on them in England and extended them to other situations: thus punitive damages was held to be available in Australia in cases of outrageous acts of negligence. The Law Commission of Australia has also concluded - after a fairly evenly balanced consultation-that exemplary damages should be retained where the defendant had deliberately and outrageously disregarded the plaintiffs rights. In the absence of legislation the following guidelines are to be adopted to assess damages: (I) Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto. (II) Where there is more than one state involved, such action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill the vacuum or void till the suitable law is enacted. (pp.307) This Court has issued directions in large number of cases to meet urgent situations e.g. Lakshmi Kant Pandey v. Union of India [1984] 2 SCR 795 Vishaka v. State of Rajasthan AIR 1997 SC 3011 Vineet Narain v. Union of India 1998CriLJ1208 State of W.B. v. Sampat Lal 1985CriLJ516 K. Veeraswami (1992)IILLJ53bSC Union Carbide Corporation v. Union of India AIR1992SC248 Delhi Judicial Service Assn. v. State of Gujarat AIR1991SC2150 Delhi Development Authority v. Skipper Construction Co. (P) Ltd. AIR1996SC2005 ; Dinesh Trivedi, M.P. v. Union of India [1997]3SCR93 Common Cause v. Union of India [1996]1SCR89 Supreme Court Advocates-on-Record Association v. Union of India AIR1994SC268 Positive Mandamus Cases (i) Mandamus to enforce the law The situation in which a positive mandamus to do a particular act in a particular way, may be broadly classified in the following manner. First are the broad mandamus cases where this Court has held that the court may issue a positive mandamus to enforce the law. Thus in Vineet Narain's case (supra) detailed orders were passed for the investigation of the Hawala transaction cases. It is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. In Hochtief Gammon v. State of Orissa (1975)IILLJ418SC this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the government or its officers. 19. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago, Martin, B., in Mayor of Rochester v. Regina said: But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen's Bench. That court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to he used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. This is especially im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person and to interrogate him in. connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well. In In Re: Death of Sawinder Singh Grover (to which Kuldip Singh, J. was a party) this Court took suo moto notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an enquiry conducted by the Additional District Judge, which disclosed a prima facie case for investigation and prosecution, this Court directed the CBI to lodge an FIR and initiate criminal proceedings against all persons named in the report of the Additional District judge and proceed against them. The Union of India/Directorate of Enforcement was also directed to pay a sum of Rs 2 lakhs to the widow of the deceased by way of ex gratia payment at the interim stage. Amendment of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need. 31. There is one other aspect also which needs our consideration. We are conscious of the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any form of torture for extracting any kind of information would neither be right nor just nor fair and, therefore, would be impermissible, being offensive to Article 21. Such a crime suspect must be interrogated - indeed subjected to sustained and scientific interrogation - determined in accordance with the provisions of, law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to terrorism . That would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. Independence of judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister for Immigration and Ethnic Affairs v. Tech 128 ALR 353, has recognised the concept of legitimate expectation of its observance in the absence of a contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia. 15. In Nilabati Beher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such damages (ii) the modalities for imposition of such damages and... (p.2 of the Report) 30. These guidelines shall cease to be operative as and when appropriate legislation consistent with the guidelines indicated above are put in place and/or any fast track mechanism is created by Statute(s). 31. So far as the role of media is concerned the Mr. F.S. Nariman Committee has suggested certain modalities which are essentially as follows: a) The Trusteeship Principle - Professional journalists operate as trustees of public and their mission should be to seek the truth and to report it with integrity and independence. b) The Self Regulation Principles - A model of self-regulation should be based upon the principles of impartiality and objectivity in reporting; ensuring neutrality; responsible reporting of sensitive issues, especially crime, violence, agitations and protests; sensitivity in reporting women and children and matters relating to national security; respect for privacy. c) Content Regulations - In principle, content regulation except under very exceptional circumstances, is not to be encouraged beyond vetting of cinema and advertising through the existing statues. It sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t news as it occurs - and eschew comment or criticism. There are differing views as to whether the media (particularly the electronic media) has exercised its right and privilege responsibly. But generalisations should be avoided. The important thing is that the electronic (and print) media has expressed (unanimously) its wish to act responsibly. The media has largely responsible and more importantly, it wishes to act responsibly. (iii) Regulation of the media is not an end in itself; and allocative regulation is necessary because the 'air waves' are public property and cannot technically be free for all but have to be distributed in a fair manner. However, allocative regulation is different from regulation per se. All regulation has to be within the framework of the constitutional provision. However, a fair interpretation of the constitutional dispensation is to recognize that the principle of proportionality is built into the concept of reasonableness whereby any restrictions on the media follow the least invasive approach. While emphasizing the need for media responsibility, such an approach would strike the correct balance between free speech and the independence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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