SC Update: Matters to be heard by Constitution Benches in September 2013

Guest Post by Manish G.

 

On 22.08.2013, the Supreme Court Registry issued a notice listing certain pending matters before a Constitution Bench that will commence hearings w.e.f. 03.09.2013. The list is nearly ten pages long and broadly involves five sets of cases. This post takes a look at these and briefly summarises the points of law involved in each.

The first set of cases (Hardeep Singh v. State of Punjab, Crl. A. No. 1750/2008 and others) turn on the interpretation of s. 319 of the Code of Criminal Procedure, 1973 (Cr.P.C.), which deals with the trial court’s power to proceed against any person other than the accused, if it appears from the evidence that such person has committed the offence. These matters arise out of a reference from a three-judge Bench (way back in December 2011), which noted a conflict between the views of various earlier three-judge Benches regarding the interpretation of s. 319 [Dharam Pal v. State of Haryana, (2004) 13 SCC 9; Ranjit Singh v. State of Punjab, (1998) 7 SCC 149; Kishun Singh v. State of Bihar (1993) 4 SCC 392], and framed the following questions for reference to a larger Bench:

(i) What is the stage at which power under Section 319 of the Code of Criminal Procedure,1973 can be exercised?
(ii) Whether the word "evidence" used in Section  319(1)  of the     Code       of   Criminal Procedure, 1973 could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) of  the     Code of Criminal Procedure, 1973 has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
(iv)      What is  the   nature      of    the satisfaction required to invoke the power under Section 319 of the Code of Criminal Procedure to arraign      an   accused? Whether the   power     under Section      319(1)      of       the     Code       of   Criminal Procedure, 1973  can be exercised only if the court   is  satisfied that  the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 of  the Code of Criminal Procedure, 1973 extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

It should be noted that question (v) above has already been answered (in the affirmative) by another Constitution Bench in Dharam Pal v. State of Haryana (July 2013), where the Bench affirmed that it was Kishun Singh and not Ranjit Singh that espoused the correct position of law in this regard. While this question is thus rendered redundant, it will be interesting to note the effect, if any, that decision has on the present Bench, given that the correctness of Kishun Singh vis-a-vis Ranjit Singh is also in question here.

The second set of cases (Lalita Kumari v. Govt of U.P., W.P. (Crl.) No. 68/2008 and others) is of critical importance in clarifying the position on whether an officer in charge of a police station, upon receiving information regarding a cognisable offence, is mandated to register an FIR under s. 154 of the Cr.P.C., or whether the officer has the discretion to conduct a preliminary enquiry before registering an FIR. The case arose out of a reference from a three-judge Bench which noted inconsistencies between several earlier Benches, and directed that “In view of the divergent opinions in  a  large  number  of cases decided by this Court, it has become extremely  important  to  have  a clear enunciation of law and adjudication by a larger Bench  of  this  Court for the benefit of all concerned - the courts,  the  investigating  agencies and the citizens.” The pronouncement of the Court in this matter is sure to be eagerly watched by prosecutors, defence lawyers and the police.

The third matter (Sarah Mathew v. Institute of Cardiovascular Diseases, Crl. A. No. 829/2005) is a single case on the issue of computation of the limitation period in criminal cases. The case arises out of a reference from a three-judge Bench which doubted the correctness of the decision in Krishna Pillai v. T.A. Rajendran, 1990 (Supp.) SCC 121, and also raised the issue of its non-consideration by later two-judge Benches [Bharat Damodar Kale v. State of A.P., (2003)  8  SCC  559;  Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394]. The view taken in the latter two cases, which has been referred to the Constitution Bench for affirmation, is essentially that “for the purpose of computing the  period of limitation, the relevant date must be considered  as the  date  of filing of complaint or the institution of prosecution and not the date of taking cognizance by a Magistrate  or  issuance of process by  a Court”.

The fourth matter (Swasthya Raksha Samiti Rati Chowk v. Chaudhary Ram Harakh Chand, C.A.No.1391/1999) is also a single case, the oldest of all the matters under consideration by the present Bench. It arises out of a 2002 judgment of a three-judge Bench, which was itself a reference from an earlier two-judge Bench. The issue turns on the nature of enquiry to be conducted by the Collector under Rule 4(2)(iii) of the Land Acquisition (Companies) Rules, 1963, in cases where land is being compulsorily acquired for a company under Chapter VII of the Land Acquisition Act, 1894 (LAA). In view of the conflicting views expressed in earlier cases (Shyam Nandan Prasad v. State of Bihar, 1993 (4) SCC 255, State of Gujarat v. Patel Chaturbhai Narsibhai, 1975 (1) SCC 583; Babu Barkya Thakur v. State of Bombay, 1961 (1) SCR 128] as to whether such an enquiry was mandatory or whether it could be subsumed by the regular enquiry to hear objections under s. 5A of the LAA (which takes place in all land acquisition proceedings), the matter has been placed before the Constitution Bench. The case is expected to have ramifications on pending land acquisition proceedings all over the country.

The fifth and final set of cases (Kone Elevator India Pvt. Ltd. v. State of T.N., W.P.(C). No. 232/2005 and others) are a series of service tax matters involving the determination of whether sale and installation of lifts constitutes a contract of sale or a works contract for the purposes of taxation. The view of a three-judge Bench in State of Andhra Pradesh v. Kone Elevators (India) Ltd. (February 2005), which held that these were contracts of sale and not works contracts since the installation was incidental to the sale, appears to have been called into question in all these cases. Clearly, this case will be critical in determining what regime of taxation appears to transactions involving the sale and installation of lifts across the country.

The composition of the Bench is not yet known. Given that the cases involve diverse aspects of law (three criminal, one land acquisition and one taxation), it will probably be as interesting to observe the Judges who form part of this Bench, as much as the deliberations and judgments on these critical matters.

 

Manish G. is a Researcher at the National Law University, Delhi

The Impracticality of Jan Chaukidar

We bring you a guest post from Shambo Nandy, a recent graduate of the West Bengal National University of Juridical Sciences who now works with Raju Ramachandran, a leading Supreme Court counsel. 

The judgment of the Supreme Court in Chief Election Commissioner v Jan Chaukidar has been criticised by many. While some have condemned it as being open to severe misuse, others have assailed the correctness of the order. While these fears are warranted, I feel that the judgment in its current form suffers from another vice, viz. impracticality. The judgment says that a person who is confined in a prison or in the lawful custody of the police, loses the right to vote, and is disqualified from contesting elections. In other words, since he is not a voter he cannot stand for elections, being disqualified under s. 62(5) of the Representation of People Act, 1951. Consequently, even undertrials (who are in the lawful custody of the police) will now be debarred from standing for elections. The judgment is problematic as it gives rise to several possibilities all of which is riddled with its own share of problems and this makes it impractical to implement. 

As we know, before any election the Election Commission notifies not only the dates on which elections will be held and the results declared, but it also lists the dates by which nominations will be accepted and withdrawn. Usually there is a 2-4 days gap between the last date for submitting nomination papers and the date for the withdrawal of candidatures. After this date, the elections are invariably conducted within a month's time. 

Now for example, let us say that a candidate has submitted his nomination papers. It has been scrutinized and the date of withdrawal of candidatures is also over. Subsequently, the Election Commission has also published his name in the list of candidates from that particular constituency. It has also published the ballot papers and the Electronic Voting Machines have been readied. In doing all of these, substantial time and effort has been spent and elections are only a week away. At this stage, what happens if a candidate is arrested? Will his name still be struck off from the list of candidates? If yes, then will it be done at the risk of countermanding elections (as is done if a candidate dies during this stage)? 

Normally, when the police receive a cognizable complaint, it does not arrest a person without conducting a preliminary investigation. However, in certain cases the police make an immediate arrest; a complaint under s. 498A of IPC is one such instance where arrests are immediately made. The same holds true for other cases where complaints involve allegations of grave offences and some evidence or eye witness exists. Hence, in all such cases where arrests are immediately made, what happens to the fate of the candidate? Can his name be struck off when his name has already been published amongst the list of candidates and election is just a few days away? Is it possible that the candidate can remain among the list of candidates, but all the votes obtained by him will be declared to be invalid? 

The Patna High Court in its judgment in 2004 had stated that the name of the candidate should be struck off forthwith and in such cases the Election Commission can “decide what action to take, even if it be countermanding the elections wherever such persons have participated as candidates.’’ However, if this suggestion of the High Court is accepted by the Election Commission (since the Supreme Court has not added anything new), then that would entail sufficient wastage of time and monetary resources. Moreover, in many situations countermanding elections will lead to unnecessary delay in the formation of the government. These are not alarmist apprehensions; there are several instances at present to point out that these fears may well turn out to be true in the recent future. For example, the ruling coalitions in both the states of Kerala and Uttarakhand have a wafer-thin majority. In a future election in Kerala, if election to a particular seat has to be countermanded because of the Jan Chaukidar judgment, and if both the coalitions muster up 70 seats each (total number of seats being 141), then we will face a hung assembly for some time. Normal government activities which involve expenditure will be held up till the result of that one seat comes out. Such a long time gap may also see a spurt in dirty horse trading activities as we have previously seen in Bihar and Jharkhand. While the example is only of Kerala, such a situation can arise in many other states which have lesser seats in their legislative assemblies. 

Another problematic area which would arise if elections are countermanded would be if the candidate in lawful custody gets bail the day after the Election Commission notifies countermanding of election to that seat. The candidate can contest again from that seat and countermanding elections in such a case will be farcical. Countermanding elections, in effect, will be a boon for lawyers as during elections there will be an exponential increase in bail matters. 

The other option is also not devoid of criticism. If the Election Commission adopts it, i.e. of declaring the candidate’s votes as invalid, then the real winner will not be the true representative of the people. India follows the ‘first past the post system.’ Often a candidate gets elected because there is a division of votes between the other parties. There is enough criticism as to how a candidate getting as low as thirty per cent of the total number of votes gets elected. Hence, declaring a candidate’s votes as invalid will further complicate the situation as the votes obtained by him could have been split between the first two candidates and a different winner could have arisen. To illustrate, let us take into account a scenario where the difference in votes obtained between the first two candidates is 3000 and the candidate who is in lawful custody gets 5000 votes. Now, these 5000 invalid votes could have gone to either of the first two candidates (with some votes going to the other candidates in the fray) and there is a possibility that the person coming second could have been the winner. This possibility will always arise in cases where the total number of votes obtained by the candidate in lawful custody is more than the victory margin of the winning candidate. 

This confusion could have been easily put to rest if the Supreme Court had given a more reasoned judgment in stead of just saying that “we do not find any infirmity in the findings of the High Court.” Surely, it did not spend too much time analyzing the practical problems that this judgment would create. If it had, then the Court could have easily avoided a lot of confusion by proposing a realistic solution which would fulfil the intention of the court if in case situations such as those mentioned in the preceding paragraphs arose. 

Unlike the Supreme Court, the Patna High Court cannot be faulted for not giving a reasoned judgment. Unfortunately, it was not properly assisted by the counsels appearing for either the Election Commission, or the Central and State Governments. In fact, the court puts it on record that the Advocate General “kept away from the Court” when he was issued notice. It sadly notes that no “responsible report” was left with the Registrar General of the High Court on whether criminals or persons in the lawful custody of the police have entered the arena of elections. 

The Supreme Court could have agreed with the High Court’s decision but at the same time should have been more articulate in its reasoning. This is reasonable to expect in cases such as this, where fundamental matters relating to the functioning of our democratic system are decided. Since brevity is not a characteristic feature of court judgments, one can only wonder as to why the Supreme Court made this an aberration. This hurried judgment is also a reflection of the Supreme Court’s paucity of time in writing judgments. 

On the point of questions of law, like the Supreme Court, the Patna High Court too has made the same mistake that Anup Surendranath has pointed out on this blog – that of conflating the denial of voting rights under s. 62(5) of the 1951 Act and the disqualification of being on an electoral roll under s. 16(1)(c) of the 1950 Act. Probably, if the parties to the case had seriously contested the case offering an “in depth analysis” of their own to the High Court, this mistake would have come to the fore and we would have been spared a wrong and impractical judgment. Similarly, the Supreme Court ought to have heard the Union of India and other interested parties such as political groups who will be directly affected by this judgment. A lackadaisical attitude amongst all the parties is majorly responsible for this. 

Since the Patna High Court has left it open to the Election Commission on the course of action, it will be interesting to see its response as and when it is confronted with such a situation.