Criticizing Government is illegal in State of Kerala

Free Speech???

Kerala Government has issued an ordinance amending the Police Act whereby any act of threatening, abusing, humiliating or defaming any person is made punishable. However there is no specific definition of these words chosen from moral vocabulary. Therefore the concerned police officer will be free to define these words and make arrests as per his or her whim and fancy.

Full Text of Ordinance

ORDINANCE No. 79 OF 2020

THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020

Promulgated by the Governor of Kerala in the Seventy-first Year of the Republic of India.

AN
ORDINANCE
further to amend the Kerala Police Act. 2011.

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Challenge to Order Framing of Charge in Writ Jurisdiction

Whether an order on charge would be an interlocutory order for the purposes of Section 19(3)(c) PCA:

If contrary to the above law, at the stage of charge, the High Court adopts the approach of weighing probabilities and re-appreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in exceptional situation for correcting a patent error of lack of jurisdiction, exercise of such jurisdiction has to be limited to rarest of rare cases.

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Contempt of court

The right to approach Supreme Court under Article 32 of the Constitution of India is itself a fundamental right.

Assistant Secretary, Maharashtra Vidhan Mandal Sachivalaya issued this letter to Arnab Goswami, Editor of Republic TV, as follows :

“You were informed that the proceedings of the House are confidential………….despite this, it has been observed that you have presented the proceedings of the House before the Supreme Court on October 8, 2020. No prior permission was taken from the Speaker of the Maharashtra Assembly before presenting such proceedings in court. You have knowingly breached the orders of the Speaker of Maharashtra Assembly and your actions amount to breach of confidentiality. This is definitely a serious matter and amounts to contempt,…….”

Article 32(1) of the Constitution of India reads as under :

“32(1). The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”

There is no doubt that if a citizen of India is deterred in any case from approaching Supreme Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country.

Show Cause for contempt:

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Police Summoning a person from New Delhi to Kolkata on a facebook post.

Facebook post implying State bias towards a community:

The FIR contains a statement that the posts imply that:

(i) the State administration was going soft on the violation of the lock down at Rajabazar as the area is predominantly inhibited by a particular community and;

(ii) that the State administration is complacent while dealing with lock down violations caused by a certain segment of the community.

Reasonable Exercise of power of summoning:

The court must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. There is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass.

Full Order of Supreme Court:

SLP(Crl) 4937/2020
1
ITEM NO.20 Court 6 (Video Conferencing) SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No.4937/2020
(Arising out of impugned final judgment and order dated 29-09-2020
in CRAN No. 2/2020 passed by the High Court at Calcutta)
ROSHNI BISWAS Petitioner(s)
VERSUS
STATE OF WEST BENGAL & ANR. Respondent(s)

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Considerations for Transfer of Criminal Trial out of State

Balancing the convenience

While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses,the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.

Credibility of Judiciary:

The transfer of trials from one state to another would inevitably reflect on the credibility of the State’s judiciary and but for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked. This case is not perceived to be one of those exceptional categories.

Accused/Journalist involved in property disputes:

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Scope of Right to Protest in India

Shaheen Bagh Agitation was not warranted:

India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.

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Maintainability of Special Leave Petition against an Order passes in Review

Consistency is the cornerstone of the administration of justice.

It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy.

The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended.

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Exercise of statutory discretion by Government has to be in public interest.

The mighty says to the meek that you cannot command me to act; I shall act if f like, I shall not act if I choose not to act. The meek says that I possess the strength of law to give you the command; the law, which is no respector of person and which does not allow anybody to rise so high as to be above it.

State Of Orissa vs Janamohan Das, AIR 1993 Ori 180

Discretion of the Government:

Cuttack was calm when the day dawned. Who had known that a “disaster of unprecedented proportions” was going to strike and disturb placid waters of the Mahanadi and Katha-jodi? But it took place. A man-made tragedy took a great toll 124 deaths, according to the State), and it was our well known hooch tragedy. Not that the people of this State have not know a about such tragedies taking place in the past, but then, it was the great dimension of the tragedy which stunned the people, so much so that they almost lost faith in all instrumentalities of the State. People started thinking whether they had been left to the wolves to be killed. The question with which we are seized is about the responsibility of the State to find out why spurious liquor took the toll of 124 lives, and what steps are required to be taken to stop recurrence of such a heinous crime, at the root of which lies the naked greed for money and nothing else.

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CBI to investigate death of Sushant Singh Rajput.

Jurisdiction of Bihar Police:

Having regard to the law enunciated by this Court as noted above,it must be held that the Patna police committed no illegality in registering the Complaint. Looking at the nature of the allegations in the Complaint which also relate to misappropriation and breach of trust, the exercise of jurisdiction by the Bihar Police appears to be in order. At the stage of investigation,they were not required to transfer the FIR to Mumbai police.For the same reason, the Bihar government was competent to give consent for entrustment of investigation to the CBI and as such the ongoing investigation by the CBI is held to be lawful.

CBI investigation of murder:

While the steps taken by the Mumbai police in the limited inquiry under Section 174 CrPC may not be faulted on the material available before this Court,considering the apprehension voiced by the stakeholders of unfair investigation, this Court must strive to ensure that search for the truth is undertaken by an independent agency, not controlled by either of the two state governments. Most importantly, the credibility of the investigation and the investigating authority, must be protected.

The ongoing investigation by the CBI is held to be lawful.In the event a new case is registered at Mumbai on the same issue, in the fitness of things, it would be appropriate if the latter case too gets investigated by the same agency, on the strength of this Court’s order. Such enabling order will make it possible for the CBI to investigate the new case,avoiding the rigors of Section 6 of the DSPE Act,requiring consent from the State of Maharashtra.

Directions for murder:

Because both states are making acrimonious allegations of political interference against each other, the legitimacy of the investigation has come under a cloud. Accusing fingers are being pointed and people have taken the liberty to put out their own conjectures and theories. Such comments,responsible or otherwise, have led to speculative public discourse which have hogged media limelight. These developments unfortunately have the propensity to delay and misdirect the investigation. In such situation,there is reasonable apprehension of truth being a casualty and justice becoming a victim.

The actor Sushant Singh Rajput was a talented actor in the Mumbai film world and died well before his full potential could be realised. His family, friends and admirers are keenly waiting the outcome of the investigation so that all the speculations floating around can be put to rest. Therefore a fair, competent and impartial investigation is the need of the hour. The expected outcome then would be, a measure of justice for the Complainant, who lost his only son. For the petitioner too, it will be the desired justice as she herself called for a CBI investigation. The dissemination of the real facts through unbiased investigation would certainly result in justice for the innocents, who might be the target of vilification campaign. Equally importantly, when integrity and credibility of the investigation is discernible, the trust, faith and confidence of the common man in the judicial process will resonate. When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well.

Satyameva Jayate.

In such backdrop, to ensure public confidence in the investigation and to do complete justice in the matter, this Court considers it appropriate to invoke the powers conferred by Article 142 of the Constitution. As a Court exercising lawful jurisdiction for the assigned roster, no impediment is seen for exercise of plenary power in the present matter. Therefore while according approval for the ongoing CBI investigation, if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well. It is ordered accordingly.

Transfer petition of Rhea Chakrovarti dismissed.

Read full judgment here:

Prashant Bhushan Convicted for Contempt of Court.

Supreme Court convicts Prashant Bhushan:

Offensive tweets of Prashant Bhushan:

Supreme Court today convicted Prashant Bhushan, the perpetual Public interest litigator for contempt of Court. As per the orders of Supreme Court Prashant Bhushan had tweeted as under:

“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!”

(29th June 2020 at 11.37AM)

Another tweet was published in the Times of India which was made by Shri Prashant Bhushan on June 27, 2020, when he tweeted,

“When historians in future look back at the last 6 years to see how 3democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

Damage Caused by Tweet:

Indian judiciary is not only one of pillars on which the Indian democracy stands but is the central pillar.The Indian Constitutional democracy stands on the bedrock of rule of law. The trust, faith and confidence of 102the citizens of the country in the judicial system is sine qua non for existence of rule of law. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand. The tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy. The tweet clearly tends to give an impression,that the Supreme Court, which is a highest constitutional court in the country, has in the last six years played a vital role in destruction of the Indian democracy. There is no manner of doubt,that the tweet tends to shake the public confidence in the institution of judiciary. We do not want to go into the truthfulness or otherwise of the first part of the tweet,inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice. In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.

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