Mr.SubodhMarkandeya

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NATIONAL ANTHEM DECEMBER 5, 2016

There is an avalanche of criticism of the interim directions given by the Supreme Court on November 30, 2016 for playing the national anthem in cinema halls across the country before the screening of any film, and requiring the audience to stand up. Former Attorney General Soli Sorabjee was the first to voice his disapproval on the basis of Binoe Emannual’s Case holding that students cannot be expelled from school for refusal to sing the national anthem. Pratap Bhanu Mehta decried the judiciary’s attempt for forced playing of national anthem. Surjeet Bhalla and Tavleen Singh also mocked the court’s order. Prof. Anuj Bhuwania found in this move, an echo of Emergency. India’s elite seems to be uncomfortable with the prospect of standing for 56 seconds – duration of playing the first stanza of Tagore’s song Jana Gana Mana in raga Alhiya Bilawal - some what martial tune which is India’s national anthem.Constitution of India is a package deal - no citizen can say that he will enjoy only rights but will not bear any burden of duties. If in compliance with Article 51-A [a] we cannot stand for 56 seconds, how will we withstand privations and hardships involved in the duty cast by clause [d] to defend the country and render national service in the face of calamities and disasters? Argument of “non-justiciability” of Article 51-A is misplaced. For courts of India every provision of the Constitution is justiciable. Unlike Article 37 which makes provisions of Part IV non enforceable, there is nothing in Part IV-A to make it so. Further, in spite of Article 37, Justice O. Chinappa Reddy held in U.P. State Electricity Board vs. Hari Shankar Jain that Part IV as addressed to the courts, requires them to evolve, affirm and enforce rules of interpretation which are in consonance with Part IV and eschew rules which are contrary to it. Mr. Sorabjee’s reliance on the 1986 decision in Bijoe Emanuel case is not apt.In that case the appellants always respectfully stood up when national anthem was sung but they refused to sing it on ground that their religion [Christian sect called Jehovah’s Witnesses] forbids such singing. After that case, there was a spate of writ petitions in the Supreme Court, including one by the Attorney General seeking directions for compulsory singing of national anthem in the schools - in effect, reviewing and reversing the verdict in Bijoe Emanual’s Case. But after the defeat of Rajiv Gandhi the then Prime Minister in the election, the successive Governments’ enthusiasm to pursue that case waned. The controversy surrounding the national anthem is a little unbecoming. The national flag, emblem and anthem are trappings of a sovereign nation. For India they are also symbols of centuries of long and glorious struggle for freedom in which millions participated, suffered, sacrificed and lakhs of them died. Each one of the symbols – flag, emblem and anthem has a history; each was chosen after lot of thought and deliberation. So far as our National Anthem is concerned, the first stanza of Rebindranath Tagore’s song “Jana Gana Mana in raga Alhiya Bilawal was selected as national anthem even before Independence after discussion, deliberation and debate on the report of a committee headed by Jawaharlal Nehru with Subhas Chandra Bose and Pattabhi Sitaramayya as members. During his European exile, Netaji Bose personally got it recorded in Hamburg, Germany and it was officially played for the first time on 26th January 1942 by the “Free India Centre” – India’s legation in Berlin. It was adopted by the Constituent Assembly on 24th January 1949. National Anthem is too precious a heritage to be mired in needless controversies.   

 

 

 

                                         

AGAIN NATIONAL ANTHEM JANUARY 9, 2017

Indian Express in front page news item says that the US Chapter of Jehovah’s Witnesses is  jumping

into the fray of challenging Supreme Court’s order requiring cinemas across the country to play the

Indian national anthem before the commencement of each show and the audience to stand up.

Bejoe Emmanuel et al who had challenged the singing of national anthem in a Kerala school before

Kerala High Court are also jumping on to this band wagon. Their writ petition was dismissed by the

High Court but they succeeded before the Supreme Court. They cannot challenge the requirement

about standing up when national anthem is played, because their own case was that they were

always standing up when the national anthem was played; their objection was to its singing because

their religion forbade it.

A nation’s flag, emblem and anthem are symbols of its sovereignty. For us it is also symbol of

fraternity of our people - rising above gender, religion, creed, colour and the like. During freedom

struggle we were yearning for them. It is surprising that we allow obscure alien cults to subvert our

proud symbols which are outcome of our two-centuries of our struggle for freedom.

Public memory is proverbially short. Supreme Court’s 1986 judgment in Emanual’s case had

 outraged the nation and a spate of writ petitions were filed challenging that judgment. My

client – a retired Superintendent of Police from Hyderabad had filed one. In deference to public

opinion,  the then Attorney General Mr. K. Parasaran, obviously on instructions of the then Rajiv

Gandhi government had also filed a writ petition questioning the judgment in Emanuel’s case.

Later successive governments were too weak to pursue those cases; they became victims of apathy

and neglect. All residents in India – its citizens and others have minimum duty of respecting the

symbols of India’s sovereignty and fraternity of its people. They are as sacrosanct as the

Constitution itself.     

  

Indian Express in front page news item says that the US Chapter of Jehovah’s Witnesses is  jumping

into the fray of challenging Supreme Court’s order requiring cinemas across the country to play the

Indian national anthem before the commencement of each show and the audience to stand up.

Bejoe Emmanuel et al who had challenged the singing of national anthem in a Kerala school before

Kerala High Court are also jumping on to this band wagon. Their writ petition was dismissed by the

High Court but they succeeded before the Supreme Court. They cannot challenge the requirement

about standing up when national anthem is played, because their own case was that they were

always standing up when the national anthem was played; their objection was to its singing because

their religion forbade it.

A nation’s flag, emblem and anthem are symbols of its sovereignty. For us it is also symbol of

fraternity of our people - rising above gender, religion, creed, colour and the like. During freedom

struggle we were yearning for them. It is surprising that we allow obscure alien cults to subvert our

proud symbols which are outcome of our two-centuries of our struggle for freedom.

Public memory is proverbially short. Supreme Court’s 1986 judgment in Emanual’s case had

 outraged the nation and a spate of writ petitions were filed challenging that judgment. My

client – a retired Superintendent of Police from Hyderabad had filed one. In deference to public

opinion,  the then Attorney General Mr. K. Parasaran, obviously on instructions of the then Rajiv

Gandhi government had also filed a writ petition questioning the judgment in Emanuel’s case.

Later successive governments were too weak to pursue those cases; they became victims of apathy

and neglect. All residents in India – its citizens and others have minimum duty of respecting the

symbols of India’s sovereignty and fraternity of its people. They are as sacrosanct as the

Constitution itself.     

  

BHULABHAI DESAI AND INA TRIALS ADDRESS TO THE FRIDAY GROUP ON JANUARY 20, 2017

 

 

 

                                                         BHULABHAI  DESAI  AND  INA  TRIALS

                                                   Their Place in India’s National Legal Legacy

 

                                                                      Subodh Markandeya

                                                                          Senior Advocate

 

The defence address delivered by Mr. Bhulabhai Desai, Senior Advocate and the doyen of the

Bombay Bar at the trial of Maj. Gen. Shah Nawaz, and Cols. GS Dhillon and PK Sehgal of the Indian

National Army [INA] by the General Court Martial held in the  Red Fort of Delhi was published by the

“INA Defence Committee” in January 1946. A bound copy of that defence address is lying in my

library. It should be re-published as a tribute to the incomparable advocacy of Bhulabhai Desai, the

case – and the cause  that he espoused.

 

So first about the great lawyer.

Bhulabhai Desai was born in Valsad a town in south Gujrat on October 13, 1877. His father, Jivanji

Desai, was a Government Pleader.  After early education at Avabai School in Valsad, in south Gujrat

he went to Bombay and  matriculated in 1895 from  Bharda High School  standing first in his school. 

 He graduated from Elphinston College, Bombay with History and English literature, winning the

Wordsworth Prize. After obtaining M.A. in English from the Bombay University he became Professor

 of English and History at the Gujrat College, Ahmedabad and was very popular amongst the

 students.  He simultaneously studied law.  After obtaining LL.B. he passed the Advocates (Original

 Side) examination, and was enrolled as an advocate and started practice on the original side of the

 Bombay  High Court. By dint of his intellect and hard work, by 1913 he became one of the front

 ranking lawyers, and was acclaimed by the Bench and the bar. Amongst his distinguished juniors

were Hiralal J. Kania, the first Chief Justice of India, Motilal Setalwad, Republic of India’s first

Attorney General and K.M. Munshi who earned fame not only as a lawyer but as the most prolific

author of modern Gujrati literature and founderof Bharatiya Vidya  Bhawan. In his Reminiscences

Munshi relates an interesting anecdote about the human side of Desai’s personality:  Munshi  had 

received court summons for having depicted a Jain hermit in adverse light in one of his novels as a

result of which  Jain community of Bombay brought criminal action against Munshi.  With fear of

being severely admonished writ large on his face he approached Bhulabhai Desai, who asked:

“Aren’t there enough briefs in my chamber that you have to write novels? To enable me to decide

whether I have to defend you, tell me what else have you written?” On being informed that under

pseudonym “Ghanshyam”,  Munshi  had written popular social novel called “Ver ni Vasulat” Desai

relieved Munshi’s tension by saying that he would definitely defend the author of “Ver ni Vasulat” as

he was in love with the heroine of that novel!

Desai joined Indian National Congress and was elected to the Central Assembly.  He distinguished

himself as the Leader of Congress Legislature Party. The defeat of war budget in 1945 was largely

due to his strategy.

Now, about the caseand the cause:

Due to tight censorship imposed by the British Government in India from 1939 and the draconian

Defence of India Act and Rules, very few people in India knew that Subhas Chandra Bose had –

  •  escaped from British dragnet and on reaching Berlin, organised the Free India Centre on the scale of a legation, which made broadcasts in 12 languages; he founded the India Legion from the Indian Prisoners of War [POWs] captured in Libya by the legendary German Marshal Rommel [Desert Fox], but
  • sensing that his mission to liberate India by combination of diplomatic and military efforts, may  materialise from Far-east better than Germany,  left for Japan in a German U-boat and
  • after perilous sea journey arrived in South East Asia by Japanese submarine, and
  •  on reaching Singapore he galvanised two million persons of Indian origin (PIOs) throughout South East Asia.

Information about the Provisional Government of Free India, Indian National Army, Free

India Centre, Berlin and the Indian Legion was perceived to be so dangerous that the Government

of UK forbade the BBC from publishing anything about them. Listening to broadcast by Bose was

punishable with death. 

On October 23, 1943 Bose formed the Provisional Government of Free India (PGFI) which -

  • was accorded recognition by nine countries[Burma, China, Croatia, Germany, Italy, Japan, Manchuko, Philippines and Thailand].Ireland also extended full support to the PGFI,
  • pledged to free India from the British yoke, and protect life and property of Indians in the Far East and for those purpose it raised three-division strong Indian National Army (INA), from the remnants of Indian officers and men who had been delivered by the British Army to Japan on the collapse of Singapore and fresh civilian PIOs recruited  by the PGFI and also formed Police force.
  • acquired territories including Andaman and Nicobar islands [which Bose named as Swaraj and Shahid islands] and administered them through its trained civilian arm – Azad Dal,
  • established Azad Hind Bank having at least 60 crore rupees at the time of end of WW 2,
  •  printed for issue, the currency notes and postage stamps
  • promulgated INA Act to govern raising, training and discipline of officers and men; INA Act also avoided the application of Japanese Military Code to the INA.

PGIF inspired the whole generation of leaders in Indonesia, Malasia, Viet Nam and other countries.

The INA and its ally the Japanese Army came knocking at India’s eastern cities of Imphal and

Kohima. However, the tide of war had turned against them forcing their withdrawal, first to

Rangoon and then to Singapore.

With the U.S. use of atom bombs on Hiroshima and Nagasaki, Japan surrendered to the allied forces

on August 15, 1945 bringing the Second World War to end. President Bose paid off and discharged

the officers and men of the PGIF and INA and himself flew off to seek help for India’s  freedom –

never to return.  His accredited representative Major General  A.C. Chatterjee  was arrested in

Rangoon by the advancing British forces . Maj. Gen. Chatterjee’s counterpart in Singapore Major

General M.Z. Kiani was arrested by Lord Louis Mountbatten’s forces.  On landing on 6th September

1945 their first act was to dynamite the marble memorial “Shaheed Smark” fondly built by Netaji on

the Connaught Drive in Singapore to honour the INA heroes who had died fighting for India’s

freedom. For decades, various Government in India dithered in getting the Shaheed Smark restored

but Government of Singapore has restored it as part of its own national heritage.

The arrested officers and men of the INA and ministers and functionaries of the PGFI were

hastily brought to Delhi and incarcerated in the detention camps without being accorded the status

of Prisoners  of War (POWs) that they were.                   

 

End of War loosened tight censorship imposed in 1939, enabling the nationalist press to publish

mass of material brought from South-East Asia and Europe about the exploits and activities of the

PGFI,  the INA, the Free India Centre and the Indian Legionaries. Such silent spread of saga of

Netaji and his achievements impacted the general public but much more the Indian jawans and

officers of the British armed forces.   Film about the P.G.F.I. and I.N.A. brought from Singapore was

doing rounds and rounds of sympathetic audiences in Delhi and elsewhere. As recorded by “The

Hindu” Mahatma Gandhi eulogised Netaji’s achievements :

      “...the greatest amongst these was to gather together, under one banner, men from all religions

        and races of India, and to infuse into them the spirit of solidarity and oneness to the utter

        exclusion of all communal or parochial sentiments.  It is an example that we should all emulate.”

 In this background the decision of the British Government to try three officers of the INA – Major

General Shah Nawaz, Colonel G.S. Dhillon and Col. Prem Kumar Sehgal created outrage throughout

India. Mahatma Gandhi wrote to Viceroy Lord Wavell:

      “I am never blind to the valour and the patriotism of these men.  India adores them. No doubt

        the government has overwhelming  might on their side.  But it would be misuse of that power if

        it is used in the teeth of universal Indian opposition.”

In the words of Pandit Jawaharlal Nehru, the trio  had become “symbols of India’s right for

 independence. It was a trial of strength between the will of the Indian people and the will of those

who held power in India.” Muslim League President M.A. Jinnah advised “leniency” in dealing with

them.  Jaya Prakash Narain the noted socialist leader of his times lauded Netaji as a “fervent

patriot” and justified acceptance of military aid by him from the Axis powers for securing India’s

 independence. Gandhiji even met the Commander-in-Chief Claude Auchinleck to dissuade him from

 proceeding with the trial.  The Viceroy turned down Gandhiji’s plea to abandon the trial.

Charge-sheets dated September 17, 1945 were served on three accused under the Indian Army Act,

1912.  By order dated 25th October 1945 of Brig. L.L. Thwaytes, British commander of Bahadurgarh

Area a seven member General Court Martial under the presidentship of Maj. Gen. A.B. Baxland was

convened. The GCM consisted of four British and three Indian officers. Sir N.P. Engineer, the

Advocate General for India was appointed as the Chief Prosecutor. Shahnawaz, Dhillon and Sehgal

faced charges of –

  • Waging War against the King-Emperor
  • Murder
  • Abetment.

The All India Congress Committee (AICC) in its Resolution dated September  22, 1945 stated:

      ” It would be a tragedy if these officers, men and women were punished for the offence of

        having laboured for the freedom of India.”

It constituted the “INA Defence Committee” of 17 distinguished lawyers of India, including Bhulabhai   

Desai, Tej Bahadur Sapru, Asaf Ali, K.N. Katju and Jawaharlal Nehru, former High Court Judges, Tek

Chand, Dilip Singh and P.K. Das, I.D. Dua [who later became a Judge of the Supreme Court of India]

 and S.N. Andley [who later rose to be the Chief Justice of Delhi High Court]. Bhulabhai Desai, doyen

of the Bombay Bar and leader of the Congress Legislature party in the Central Assembly was

entrusted with the task of defending the accused.

On the eve of the INA  trial Bhulabhai Desai was taken seriously ill and was advised complete rest

by his doctors.  Disregarding medical advice he drowned himself in INA papers. Reading them

brought about a complete transformation  of his perceptions about Netaji  and the INA.  He

unreservedly confessed to Dilip Kumar Roy  great musician of his time  and disciple of Sri Aurobindo:

     “I had grown to echo what coterie in which I moved said against him...finally scales fell

       from my eyes. Netaji was a far-seeing statesman, a born realist, a strategist to his finger tips

       and an idealist cum seer who was haunted by an irresistible, almost a mystic  call he had to

       answer with his freedom-hungry blood.”

The trial opened on 5th November 1945 in a make-shift court in the historic Red Fort of Delhi. The

prosecution placed before the court over 250 pages of oral evidence of 30 PWs and about 150 pages

of Exhibits which included the “Proclamation of the Provisional Government of Free India” dated

23rd October 1943 and statement made by the Japanese Premier General Tojo in the Diet [Japanes

Parliament regarding  transfer of Andaman and Nicobar islands to the Provisional Government. The

defence evidence consisted of depositions of 12 witnesses - Japanese dignitaries and top

functionaries of the PGFI and the INA to prove -

  • their aim viz. liberation of India, and
  •  their total independent functioning , organisation, campaigns etc.

Facts were established by the prosecution evidence itself. Bhulabhai Desai sharply cross-examined

the prosecution witnesses to demolishet its case of murder; he could establish that -

  • the charge of murder was baseless,
  • in fact those persons who were allegedly murder were deserters,
  •  they were tried and found guilty by INA court martial and were  sentenced to be shot, but
  • in fact that no death sentence was, however, carried out.

Bhulabhai Desai’s defence address was spirited.  He spoke for two days - over ten hours without

notes. Published verbatim it occupies 132 pages. He marshalled facts with great ability and built up

the legal case that -

  • as a consequence of British surrender of Singapore and handing over of Indian men and officers to Japan, they stood released from their oath of allegiance to the British crown, which formed the basis of the charge of “Waging War against the King”,
  • with the Proclamation  of the  Provisional Government of Free India ,the INA  became an instrumentality of the  sovereign PGFI which had all the trappings of the “State” under Public International law,
  • the PGFI and the INA  were following  their goal of winning India’s independence and

under Public International law as well section 79 IPC, acts of officers and men of the INA were beyond the purview of the Court martial trying Shah Nawaz, Dhillon and Sehgal,

  • expression “law” in section 79 includes Public international law, therefore, the principal of Public international law that acts of belligerents are beyond the purview of municipal courts like the court martial trying Shahnawaz, Sehgal and Dhillon, and
  • recognition envisaged under Public International law for immunity of acts  is recognition as a belligerent and not diplomatic recognition of the INA by the British Government.

Dr. Kailash Nath Katju a leading member of the Allahabad Bar who at different times was Union

Minister for Home and Defence, Chief Minister of Madhya Pradesh and Governor of West Bengal

ranked Bhulabhai Desai’s defence address at the INA trial as a great forensic performance, adding:

        “It was definitely the first argument delivered before a tribunal which endeavoured to justify

          in point of law both International and municipal, the right of the Indian people to wage a

          war for the liberation of their country from foreign bondage.”

Historian N.G.Jog adds:

           “Desai’s extempore address was a tour de force of great legal erudition and forensic skill.

             The pity of it was that it was addressed to a court martial composed of officers innocent

             of law and not to judges trained to understand and appreciate the subtleties and intricacies

             of international law.”

The court martial gave its verdict on December 31, 1945 finding the accused guilty of the charges

levelled against them and sentenced them to transportation for life.  The Commander-in Chief,

however, remitted their sentence to cashiering.

This was perhaps the last major case argued by Bhulabhai Desai.  He fell seriously ill on April 30,

1946 and passed  away on May 6, 1946.

INA trials had electrifying effect –

  • In the elections to the Constituent Assembly, Indian National Congress won massive majority,
  • There were mutinies on limited scale in the Army and R.IA.F.at Dehradun and Jabalpur which were put down with heavy hand,
  • Ratings aboard the Royal Indian Navy ship “Narbada” mutinied on 18-2-1946 and it soon

spread on almost all the ships stationed in Karachi, Bombay, Madras, Vishakapatnam, Calcutta and Andamans. They hauled down the Union Jack and hoisted the Tricolour; firing raged for almost a week in Bombay and Karachi; with heavy deployment of British officers and men, the mutiny was put down but it shook the British Empire from its foundation,

In the file titled “Treatment of Bose” Lt. Gen. Tucker, GOC-in-C, East Command, Field Marshal Claude

Auchinleck, the War and Home Members of Viceroy’ Executive Counsel and F.M. Archibald Wavell,

the Viceroy himself attributed the sea change in the attitude of officers and men of the British India

Army, Navy and Air Force, the police and civil staff from deep loyalty to the Crown to undiluted

patriotism to Netaji and his INA. Their view was confirmed by Clement Atlee , the then British Prime

Minister himself. London came to the inexorable conclusion that it is no longer possible to govern

The Empire. Such transformative change, in my humble view, makes the INA Trials, our glorious

legal legacy.      

             

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SUPREME COURT OF INDIA .STORM IN THE PROVERBIAL TEA CUP SUPREME COURT OF INDIA .STORM IN THE PROVERBIAL TEA CUP

FRIDAY, January 12, 2018, was a remarkable day in the annals of the Supreme

Court.  On that day, four members of the Collegium, [body comprising of the

Chief Justice of India and four senior-most Judges, who essentially select

Judges for the Supreme Court and the High Courts] rose midway through their

judicial work and headed for the official residence of Mr Justice J.

Chelmeshwar – senior-most amongst them. An impromptu Press Conference

had been arranged there.  Such a thing had never happened before. There was

shock, outrage and bewilderment all around in the Supreme Court Bar.

Notwithstanding the screechy TV anchors and preachy politician jamming the

news channels, freely doling out their conflicting and ill-considered views, the

crisis is real. More than anything else, it exposes the fragility of the Collegium

System, which is unable to resolve the inter-se differences – whatever they

are.  Those who conceptualised the Collegium System and those who upheld it

brusquely two years ago could not have imagined its untenability.

Outwardly, within a day the storm in the proverbial teacup dissipated. Two of

the four judges disclaimed the existence of any crisis situation; it appeared that

the issues related largely to the internal working of the Collegium and the

temperamental differences of its members.  

It is tragic that the existence of burning issues relating to the Supreme Court,

on which rests the future of rule of law, do not receive any attention it

deserves from those directly concerned.

It is a stark reality that the litigant public has quite some time ago lost hope

of getting any hearing of their cases in the Supreme Court, much less receiving

any justice. In the current year 2018, out of 190 working days, not less than 75

days  will be consumed by miscellaneous [admission] matters, leaving only 115

days for the final hearing of 60,500 pending cases. It is well known that even on

the “non-miscellaneous days” [NMDs] on an average 30 minutes out of 4 hours

30 minutes are consumed by miscellaneous cases, leaving only four hours a

day for final hearing cases. In terms of “Judge Hours” [JHs] out of 855 JHs

available during the year 2018, 460 JHs will be consumed by final hearing cases

and 395 JHs by the miscellaneous [admission] cases. At this rate, for decades to

come, turn of final hearing cases admitted 6-10 years back is unlikely to come.

Will all such cases and the cases now being admitted not become infructuous?

It is difficult to erase from the public mind the deeply ingrained impression

that Supreme Court now deals only with “breaking news” type of high profile

corporate or PIL cases; it has no time for an ordinary run of cases concerning the

common man.

Ever since the entrenchment of “Collegium system” [which concept does

not find place in any express or implied provision of the Constitution],  it is

widely held public perception that appointments to the Supreme Court and the

High Courts is a “closed-circuit” phenomenon.  To replace that system, process

of constitutional amendment involving Parliament and all the State

Legislatures had been followed. Striking down a constitutional amendment of

such a character and having far-reaching consequences by anything less than

full strength of Judges of the Supreme Court remains unconvincing.

These are the pertinent issues which must receive immediate attention of

the Supreme Court, Parliament and Legislatures, Bar Council of India and the

Supreme Court Bar Association.

News

The Hon'ble Supreme Court of India in its recent judgment of Social Action Forum for Manav Adhikar and Another v Union of India Ministry of Law and Justice and Others1 revisited the important issue relating to Section 498-A of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC"). Section 498-A was brought into the IPC in the year 1983 to curb the menace of cruelty to married women, which often led to dowry deaths.

In order to protect helpless women who were regularly getting abused and beaten and tortured by their respective husbands and husband's family members, multiple changes were made to IPC. Accordingly, under Section 498A cruelty to a woman by her husband or any relative of her husband was made punishable for with an imprisonment for a term of three years and also with fine. This was further supported by Section 304B where a woman had committed suicide within 7 years of her marriage or died in circumstances raising a reasonable suspicion that some other person has committed an offence, provisions were being made for inquest by Executive Magistrates. Further, the Indian Evidence Act, 1872 was also amended to provide that in cases where the woman had committed suicide within 7 years of marriage and it is shown that her husband or any other relative of her husband had subjected her to cruelty, then the Court may presume that such suicide was abetted by her husband or such relative of the husband.

However, since the Section was subject matter of controversy, the Hon'ble Supreme Court observed that it was often being "used as weapons rather than shield by disgruntled wives."2 Because of this, various judgments over time have also read down the Section.

In Social Action Forum for Manav Adhikar and Another, the judgment of Rajesh Sharma and others v. State of U.P. and another3 passed by the Hon'ble Supreme Court came in question. In the Rajesh Sharma judgment, the Hon'ble Supreme Court, in order to prevent misuse of S. 498-A, gave a number of directions such as –

  1. One or more Family Welfare Committees were to be constituted by the District Legal Services Authorities in every district. Every complaint under Section 498A received by the police or the Magistrate would then be referred to and looked into by such Committee which would within one month give its report to such committee. Till the report was received, no arrest would be normally effected.
  2. The complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area.
  3. Further, in cases where a settlement is reached, the District and Sessions Judge or any other senior Judicial Officer nominated by him could dispose of the proceedings and close the criminal case if dispute primarily related to matrimonial discord.
  4. If a bail application was filed with at least one clear day's notice to the Public Prosecutor/ complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.
  5. In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.
  6. It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
  7. Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

In Social Action Forum for Manav Adhikar and Another,the Hon'ble Supreme Court examined whether the Court in Rajesh Sharma could, by the method of interpretation, have issued above such directions. With due deliberations, the Hon'ble Supreme Court was pleased to modify the directions issued in Rajesh Sharma case.

With respect to the constitution of Family Welfare Committee, the Hon'ble Supreme Court has ruled that constitution of the Family Welfare Committees by the District Legal Services Authorities and the prescription of duties of the Committees and further action thereof are beyond the IPC and the same does not really flow from any provision of the IPC and have nothing to do with the IPC. Accordingly, the same was impermissible.

However, the Court issued direction to the officers investigating under S 498-A to be careful and be guided by the principles propounded in the landmark Supreme Court judgments of Joginder Kumar v. State of U.P and others4, D.K. Basu v. State of W.B5, Lalita Kumari v. Government of Uttar Pradesh and others6 and Arnesh Kumar v. State of Bihar and another7.

Further, with respect to the direction regarding disposal of the case by District and Sessions Judge or any other senior Judicial Officer nominated by him in cases where settlement was reached, the Court observed that the same was not a correct expression of law and in a criminal case which was not compoundable, only the concerned High Court has the power to quash proceedings under S. 498-A. Thus the same could not be done by District or the Sessions judge and it was open to the parties to approach the High Court.

The Honble Supreme Court did not interfere with respect to the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail.

With respect to the directions regarding clubbing of "appearance of all family members and outstation members by video conferencing", the Court directed that an application could be filed either under Section 205 or Section 317 of Criminal Procedure Code depending upon the stage at which the exemption is sought.

The Hon'ble Supreme Court therefore, found that some of the directions given in the Rajesh Sharma case had potentially entered into the legislative field. Keeping this in mind, the Hon'ble Supreme Court undertook a re-examination of the directions and only retained the ones that find their bedrock within the Indian Penal Code - and in doing so - propounded a more balanced approach towards the application of section 498A.

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