Case BriefsHigh Courts

Orissa High Court: S. K. Sahoo J., ordered the petitioner to be detained in judicial custody and rejected the prayer sought.

The present application was filed by the petitioner for interim bail on the ground that his wife is suffering from multiple types of diseases and the doctor advised her to take complete rest due to COVID-19 pandemic.  A medical prescription and medical fitness certificate certifying the medical condition of one patient namely Santosini Kanhar, who is aged about twenty-five years and she is a female and wife of the petitioner.

Counsel for the State raised doubts about the authenticity of the certificates, pursuant to which vide order dated 09-12-2020 the Deputy Commissioner of Police, Cuttack was directed to depute a responsible Senior Police Officer in the rank of Deputy Superintendent of Police to enquire into the matter by examining the doctor concerned, the O.P.D. register etc. and furnish a report to this Court regarding the authenticity of such documents.

The report stated that the medical documents enclosed with the interim application have been forged and fabricated.

The Court thus observed that as per Section 2(c) of the Contempt of Courts Act, 1971, ‘criminal contempt’ means, inter alia, “the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

The Court further observed that law is well settled that anyone who takes recourse to fraud deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. If a forged and fabricated document is filed in Court to get some relief, the same may amount to interference with the administration of justice and the conduct is punishable as contempt of Court. The fabrication and production of false document can be held to be interference with the due course of justice. Any interference in the course of justice, any obstruction caused in the path of those seeking justice are an affront to the majesty of law and therefore, the conduct is punishable as contempt of Court. Law of contempt is only one of many ways in which the due process of law are prevented to be perverted, hindered or thwarted to further the cause of justice. Due course of justice means not only any particular proceeding but a broad stream of administration of justice. Therefore, due course of justice used in section 2(c) or section 13 of the Contempt of Courts Act, 1971 are of wide import and are not limited to any particular judicial proceeding.

The Court held that Gumesh Mallik has committed contempt of Court and hence has to file show cause as to why necessary action shall not be taken against him for committing criminal contempt of Court under the provisions of the Contempt of Courts Act, 1971.

In view of the above, petition was dismissed.[Chandramani Kanhar v. State of Odisha,  2020 SCC OnLine Ori 930, decided on 21-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court:  Taking a stern stand against several instances of abuse of power by the Andhra Pradesh State Government, the Division Bench of Rakesh Kumar and D. Ramesh, JJ., reprimanded the Government for its high- handedness in dealing with matters concerning the rights of the people of Andhra Pradesh and making attempts at subduing the constitutional bodies such as the Legislative Council, State Election Commission and the Andhra Pradesh High Court itself. Rakesh Kumar, J., who authored the instant Order, minced no words while berating the State Government’s arbitrary actions- “The State by way of filing the interlocutory application, has ventured to malign the image of one of the Members of this Bench (Hon’ble Sri Justice Rakesh Kumar). It is very difficult for me to swallow the allegation of deviating from the principle of impartiality. With a view to uphold the majesty of law and repose the confidence of citizen in the judicial system, such endeavour made by the State is considered as malicious and cannot be approved. If such petitions are entertained, it will amount to allowing the party for hunting the Bench…. the Court cannot be frightened by any such action of the State”.

 Background and Trajectory of the Issue: The writ petition WP (PIL) 127/2020 was filed with a prayer to declare the action of the Government of Andhra Pradesh/ Municipal Administration and Urban Development Department in issuing Notice Inviting Offer to an outright sale of land/land assets available at Guntur and Visakhapatnam for Mission Build AP on “as is where is” basis through E-auction, as illegal and arbitrary. The writ was first taken up by the Division Bench comprising A.V. Sesha Sai and B. Krishna Mohan, JJ., and while granting time for filing a counter-affidavit, passed an interim order restraining finalization of the bidding process. In the meanwhile, other similar writ petitions were filed questioning the act of the State regarding selling/transferring of the Government land through auction. On 16-12-2020, Sudhakar Reddy, A.A.G., filed a petition for recusal of Rakesh Kumar, J., from the case on the ground that the Judge had made an observation while hearing the matter which implied that he will ‘declare a break down of constitutional machinery in the State and hand over the administration to the Central Government’.

Observations: While denying that the aforementioned observation was ever made by him, Rakesh Kumar, J., sternly noted that the instant application is a derogatory and contemptuous act by the State Government. The function of the High Court while exercising jurisdiction under Art. 226 of the Constitution, is to protect and enforce the fundamental right of a citizen if it is infringed or taken away by the State. This is the main protection lying in the hands of the citizen against the unauthorized or illegal act of a State. If the Court has doubts over any issue, then it is its right to ask certain questions. “Honesty, integrity, sincerity, fearlessness and impartiality all are essence of judicial system in general and Judges in particular. If any question is raised without any reasonable basis, the Judge has every right to refer to any undisputed fact even not on record of the said proceeding in his defence”.

Rakesh Kumar, J., went on to make some specific and scathing observations regarding the current attitude of maligning the Judiciary, and the Andhra Govt.’s malicious intent towards the constitutional bodies, especially the A.P. HC. Some of the notable observations are as follows-

  • The Court noted that how a Judge never has a media platform to showcase their impartiality and fearless. “We cannot even go to media for our defence.”
  • The Court also noted “A very disturbing trend has developed in our system. If one is influential, powerful, i.e., both in money and muscle, he feels that he is having every privilege to do anything as per his convenience and to the peril of system or poor citizen”.
  • Regarding the protection of a citizen’s fundamental rights, the Court observed that, “being a Judge of a High Court, it is our primary duty to come forward and examine the right of citizen in which cause of action even partly arose within the jurisdiction of such High Court, and endeavour to get such right enforced”.
  • Justice Kumar further noted the instance wherein the CM had proposed to abolish the Legislative Council itself when they did not agree to proceed with the tune of the Legislative Assembly’s decision regarding the establishment of three capitals in one State
  • Rakesh Kumar, J., also considered whether the letter to Chief Justice of India by the Andhra CM containing allegations against Chief Justices of Telangana and AP HC may have given undue advantage to the CM and people may deduce that the recent transfers of the Chief Justices may have resulted due to the letter. The Court emphasized on the need of transparency in the judicial transfers.
  • Following up on the abovementioned observation, Justice Kumar also noted a plethora of cases against the Chief Minister filed by the CBI and Enforcement Directorate. The Judge noted that the recent transfers are sure to give undue relief to the CM by way of causing delay in hearing of the matters.

With the aforementioned observations, Justice Kumar stated that,It appears that in the aforesaid background, now in the present proceeding, the State by way of filing the interlocutory application, has ventured to malign the image of one of the Members of this Bench”. Accordingly, the prayer for recusal was rejected as, “such prayer is totally untenable and malicious. If Court starts entertaining such petitions; in no case, the Court can be allowed to dispense justice”. In the concluding remarks, the Court stated that the above observations are specifically for considering the prayer for recusal made in this interlocutory application and not on the merits of the case.[Special Officer v. Thota Suresh Babu,2020 SCC OnLine AP 2143, decided on 30-12-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Andhra Pradesh High Court: Lalitha Kanneganti, J., addressed a matter wherein the accused was arrested without warrant alleged to have posted certain material amounting to promote enmity, hatred and ill-will.

The instant criminal petition was filed to quash the FIR wherein the petitioner was accused 1 was alleged to have committed the offences punishable under Sections 120-B, 153-A, 505(2) of Penal Code, 1860.

Respondent 2 who is the Social Media Coordinator of MLA of Mangalagiri Constituency lodged a complaint alleging that the petitioner who belonged to Telugu Desam Party and Admin of Neti Andhra.com posted certain material on the website by promoting enmity, hatred and ill-will between different groups on the ground of political propaganda with a conspiracy by using the name of Alla Ramkrishna Reddy, MLA of Mangalagiri Assembly Constituency and Advisor to Government Ajay Kallam and requested to take action against the petitioner.

In light of the above complaint, the present crime was registered.

Petitioners Counsel submitted that the investigation was politically motivated and has been conducted with a pre-determined and pre-meditated objective to arm-twist, harass and humiliate the petitioner by depriving of his right to free speech and expression.

The said crime was registered without issuing any notice under Section 41-A CrPC, since all the offences were punishable below 7 years and remanded to judicial custody.

Counsel further added that the act of the police in arresting the accused is in clear violation of the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

This Court and Supreme Court in catena of cases held that in order to constitute the ingredients of Section 153-A of IPC, it is necessary that at least two such groups or communities should be involved. Merely enticing the feelings of one community or group without any reference to any other group cannot attract the offence under Section 153-A IPC.

In the instant case, there were no two groups involved as per Section 153-A IPC. The Advisor to the Government and the MLA group cannot be construed as two groups.

Section 505(2) of IPC: Statements creating or promoting enmity, hatred or ill-will between classes.

The counsel for the petitioner submitted that in light of the law laid down by Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 that allegations in the complaint prima facie do not constitute the offences punishable under Section 505(2), 153A and 120B of IPC.

Supreme Court in Arnesh Kumar’s case observed that arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers as well as the police must know about this. The need for caution in exercising the drastic power of arrest has been emphasized time and again.

High Court observed that, in light of the law laid down in Arnesh Kumar’s case, even though the punishment for the offence is below 7 years, the discretion is with the police officer either to arrest the accused or to issue notice contemplated under Section 41-A CrPC.

Further, the Bench noted that, while authorising the detention the magistrate shall record reasons and failure to comply with the directions shall apart from rendering the police officer concerned for departmental action, he shall also be liable for Contempt of Court to be instituted before the High Court.

Even the magistrate will be liable for departmental action by the High Court. 

“Who will police the police” when the police are giving go-by to all guidelines while arresting the accused and producing for remand, the Magistrate shall not mechanically authorise the remand, but shall satisfy that there are sufficient grounds supported by material on which the accused need to be remanded. 

— Justice Krishna Ayyar

In spite of the clear guidelines by the Supreme court, some of the police officials continue to make indiscriminate arrests, immediately after registering the complaint without proper investigation.

Prima Facie, the Court opined that the reasons stated in the remand report were not in consonance with the guidelines issued by the Supreme Court, therefore Bench invited a report along with the record from the magistrate on what basis Section 41A of CrPC was dispensed with and the accused was remanded.

All the further proceedings shall stay in view of the above discussion.

Matter to be posted on 26-11-2020.[Jangala Sambasiva Rao v. State of A.P., IA No. 2 of 2020, decided on 28-10-2020]

OP. ED.SCC Journal Section Archives

Abstract

The internet is one of the most used and innovative additions in the lives of people in this modern world. With the arrival of social media, the internet took socialising to a whole new level because initially it became the medium of sharing thoughts and soon grew into a medium of official communication between people and people, government and government and government and people. With all sorts of information on the social media, humour is one of the biggest user-generated and shared content. The internet brought the expression of humour in the form of satire, sarcasm, and wit with social media posts on the fingertips and memes all over the place, bringing out the dark sense of humour hidden in people as well. Getting in trouble for humour isn’t new, but with the vast reach of the internet, people posting from one corner of the country and someone getting immediately offended from another corner of the country has become common. This opens room for debate on the questions like ‘How can someone be arrested for a joke?’, ‘How can a joke be criminal?’, ‘Should law take social media seriously?’, ‘Is arresting for a social media post a violation of free speech?’ and ‘Do we really need laws to monitor everything on social media?’

The present elaborated discussion is a study of various cases in India related to humour and social media and observes how humour is used as a tool to commit crimes, and how laws are used against them, reasonably and unreasonably. It also observes the nature of people over the internet and how it affects their real lives. It also studies the laws present in India to analyse what the country requires in order to prevent the misuse of both, the laws and the social media, and in the end, concludes with a suggestion of separate Media Law and why it is necessary.

INTRODUCTION

Humour is to speech what salt is to food”.1

The internet is “a cooperative message-forwarding system linking computer networks all over the world”.2 The rise of the internet has given a new platform to the people and has grown enough to become a part of reality. From a common citizen’s social media profile to official government notifications being released on websites, with the passage of time, the internet not only remains a source of information and education, but also of global trade & commerce, of personal and professional connection, and of charity & crime.

The swiftness with which the internet has integrated into the lives of people, it would not be wrong to state that it is now an extension of their own personality. Due to the degree of anonymity and vast reach it provides, it brings out the untamed selves of people, which can be closely associated with what Sigmund Freud referred to as the Id,3 making the internet the “Wild West”.4 “Researchers assume that analysis of comic texts provides us with important insights about what is lurking in the social mind behind the façade of platitudes, conventions, and political correctness”.5 One of the basic reasons behind this is that, over the internet, there exists a very low chance of face to face backlash. Even though countries across the world have taken steps to counter it,6 a complete success in preventing Cybercrime is nowhere in sight.

Along with all types of content, the internet has now also become a platform for sharing humour in an electronic form, which can be done in the form of texts, images, videos or other formats. “Rather than light-hearted entertainment, jokes are in fact important arenas in which sensitive and troubling issues are processed and negotiated”.7 Sigmund Freud happens to be the most important authority on jokes and he called them “a combination of [comic] technique and [humorous] thought”.8 Another popular term on the internet in terms of humour is ‘Memes’. The term meme was coined by Richard Dawkins in his book ‘The Selfish Gene’. The Oxford Dictionary defines meme as “An element of a culture that may be considered to be passed on by non-genetic means, especially, imitation”.9 The term is basically associated with pictorial or video jokes, perhaps because they (as a form of presentation of humour or idea), grew on the internet the most, where they spread, most of the times as a trend, through immediate sharing or imitation.

Even before the existence of internet, satire and humour have been a part of the media with political satire journals like the French La Caricature, which, after ‘an avalanche of legal actions’, was supressed in the year 1835,10 or the weekly satirical Italian magazine L’Asino, which was founded in 1892.11 “Satire plays an important role in journalism, allowing reporters to question the status quo with humour to underline a point and make it more accessible”.12 With the passage of time, more satirical and humorous works entered into the main stream media, like ‘The Onion’ which was initially started as a student free publication,13 or the TV Show ‘Saturday Night Live’, which since its premiere in 1975, has served as a trendsetter in American humour and had a remarkable effect on American mores, manners, music, politics and even fashion.14

Since jokes are ambiguous modes of communication, they often enable people to invoke controversial issues without the sanctions accompanying ‘serious’ communication on such topics.15 Many times, such humour stirs a hornet’s nest, like as stated earlier, La Caricature has to be closed due to legal actions, or the gruesome ‘Charlie Hebdo incident’16 which resulted in death of 12 people and started a trend in the media, the slogan Je Suis Charlie being all over the place in support of the victims as well as free speech.17 Be it by the force of society, or by the force of law, humour has always been seen as a crime by the society or the law in force if made on certain topic or people. The introduction of internet and its swiftness has only fanned both the processes, of creating humour and of creating a backlash.

This gives rise to the question, ‘should humour be regulated by law, and if yes, then how?’

For the same, the below discussed arguments will take this deliberation towards a conclusion on the points of law, justice and social phenomenon.

CRIMINAL HUMOUR : TYPES

Analysing humour is like dissecting a frog. Few people are interested and the frog dies of it.

—E.B. White18

There are various types of crime that are sometimes overlapping, and can be committed through the use of humour and electronic media. They can be understood as below

Defamation

Section 499 of Penal Code, 1860 (hereinafter ‘IPC’) doesn’t mention cyber defamation directly, but it is wide enough to include anything published over the internet. The Indian provision that was actually brought to deal with crimes like cyber defamation was Section 66A of the Information Technology Act, 2000 (hereinafter ‘IT Act’), which was declared unconstitutional and draconian in Shreya Singhal v. Union of India,19 thereby making the IPC the appropriate law to deal with cyber defamation.

In India, there have been many instances of people being defamed online through humour. Indian comedy group AIB was accused of allegedly defaming the Prime Minister of the country over the internet under the guise of a joke.20

Hate Speech

Hate speech is difficult to define and hence is even more difficult to govern. Internationally identified possible definitions of hate speech include speeches that have a significant probability of catalysing or amplifying violence by one group against another or which emphasis statements that can incite the fear in one group that ‘another group’ plans to use violence.21

However, it can be observed that violence is not a part of hate speech but an outcome. What is given very less emphasis is that hate speech perpetuate[s] the discriminatory attitudes prevalent in the society.22 Merely because the audience of such speech was not influenced enough, or that they were mature enough not to resort to violence doesn’t mean that such speech had no element of hate, fear or enmity or it had no intention to promote the same.

With the availability of internet, the dissemination of such fear and hate in sugar coated words is very simple. Such hate can pass as a satire, dark humour or any other form of presentation where the idea of fear is propagated.

Further, such hate speech over the internet need not be in the form of speech only, but even mere pictorial representation is enough. For example, the popular internet meme ‘Pepe the Frog’ has been designated a hate symbol23 and during the 2016 United States Presidential Race, it was condemned for allegedly being associated with the White Supremacist Movement.24

Though, in India, online hate speech has not gone unnoticed. Recently, the Home Ministry has asked the law commission to draft a separate legislation for online hate speech.25

Blasphemy

The term Blasphemy means ‘irreverence toward God, religion, a religious icon, or something else considered sacred’26 and is a crime in many states. However, the punishment for it differs from state to state, for e.g., from a mere fine in Italy27 to death penalty in Pakistan.28

However, many states do not believe in the inclusion of Anti-Blasphemy law in their criminal system. The United States ruled out blasphemy as unconstitutional and violative of the First Amendment.29 Till the year 1927, India too had no law on blasphemy; however in the year 1927, Section 295(A) was brought into the IPC30 after the ‘Rangeela Rasool incident’ which was a pamphlet depicting blasphemous mockery of Prophet Mohammad.31 However, the accused was acquitted due to absence of any proper law for the same. The court noted that the pamphlet was nothing more or less than a scurrilous satire on the founder of the Muslim religion.32 Both, the pamphlet and the acquittal of the accused led to the Lahore Riots. Nonetheless, the accused was convicted later, and was murdered by a man named Ilim Din for the said pamphlet.33 To prevent any such incident in the future, the section 295-A was introduced in the IPC. With the reach of the internet, spreading such blasphemous activities has become much easier.

Sedition

Section 124A of the IPC criminalises speech that is seditious. One of the most famous cases of sedition for satire is of cartoonist and activist Aseem Trivedi34 for making cartoons and uploading on websites namely ‘India against corruption’ and ‘Cartoons against corruption’. The Court noted that “cartoons or caricatures are visual representations, words or signs which are supposed to have an element of wit, humour or sarcasm”.

In 2018, a journalist from Bastar, Chhattisgarh was charged with Sedition for posting a cartoon online.35 Also, retired Supreme Court Justice Katju was booked for Sedition for an online post where he humorously, suggested selling Bihar to Pakistan.36

Over the internet, such content can easily be understood as an intentional attack over the dignity of the country and its related prides like the anthem, the flag, and the Constitution.

Incitement of Discrimination

Sexist or racially charged remarks often keep flying around the internet very casually, as they are perceived by a large portion of the population to be true, like in the case of sexism37. When it comes to sexism, it has been noted that people are actively engaged in diffusion of sexist content over the Web 2.0’s ‘Participatory Culture’-oriented environment’.38 However, such active engagement is not merely limited to sex only, but they are also evident in caste as well as race.

On the 17th of April, 2018, an authentic looking fake Starbucks Coupon that provided free coffee for black people in the United States of America was posted by a member of the message board 4chan for ‘Fun’ and ended up inciting hate expressed through memes and tweets39.

In Karma Dorjee v. Union of India40 the Supreme Court noted the hate and discrimination against the people of North East is common in India and thus issued guidelines to tackle the same. The Bezbaruah Committee Report noted the widespread use of derogatory remark ‘chinki’ against the people of the North-East.41

Moreover, casteism is still practiced in India and to prevent it, the SC/ST (Prevention of Atrocities) Act was passed in 1989. In Gayatri v. State42, the court held that any offensive message posted on Social Media against a person belonging to SC/ST community will be held punishable, immaterial of the privacy settings; however a generalised comment against the whole community won’t be punishable.43

Interestingly, it is evident from the facts of the case that the offensive messages or posts that were uploaded were indeed disguised as jokes.44 However, such posts are not a rarity but are found in abundance45 and no direct laws are present to deal with this.

Cyberbullying

Cyberbullying can be defined as “bullying that takes place over digital devices like cell phones, computers, and tablets. Cyberbullying can occur through SMS, Text, and apps, or online in social media, forums, or gaming where people can view, participate in, or share content”.46 This form of bullying is basically verbal aggression which may be active or passive; however “can also involve property damage resulting from electronic attacks that lead to the modification, dissemination, damage, or destruction’ of private information”.47

Many times, victims are bullied online under the guise of humour or trolling. One such incident is ‘Durgesh Memes’. In 2017, an Instagram handle depicted a story of a paedophilic youth who got cat-fished by a 52-year-old man. The images as well as the story took the internet by storm. However, the account as well as the story turned out to fake and both the victims turned out to be father and son.48

Cyberbullying poses as a threat bigger than other cyber-crimes as it is difficult to notice and under the General Strain Theory of Robert Agnew, bullying exerts stress and strain that leads to deviant behaviour49. Clinical studies prove that the failure to cope with bullying leads to anti-social behaviour and a person may develop suicidal thoughts as well as depression. Such change in the thought process leads to deviance and thus channels the thoughts towards acts like violent revenge,50 which are also the outcome of physical bullying.

Other Activities That are Injurious

The list isn’t exhaustive and there are various other activities that can cause damage or injury in real life like contempt of court etc. In no way can it be doubted that memes and joke can influence an individual in any manner. Hence, the scope of influence cannot be merely limited to direct criminal activities.

Of many other activities that still do not get a direct eye of the law, publication of fake news and propaganda is a major issue.

In June 2017, seven men in India were lynched over hoax WhatsApp forwards warning against child traffickers.51 WhatsApp has become of a hub of fake news and has been a catalyst in inciting the ‘Muzaffarnagar Riots’ and has sent a panic across the North India with a fake news of shortage of salt.52

However, use of memes for spreading hoaxes isn’t unseen. The Russian Troll Factory used the social media platforms for deceiving and influencing people before and after the 2016 United States Elections to push forward Russian agendas53 and trolls were given lists of topics to focus.54 Though, Facebook Co-founder Mark Zuckerberg vowed to hire 10,000 moderators and AI to fight fake news and agendas,55 fighting fake agendas and misinformation through memes is very difficult as “Memes are easy to make… it’s almost a perfect storm that makes these memes the best way to disseminate propaganda” and “it is much harder for a machine learning algorithm to handle memes”.56

Another activity is ‘incitement of crimes’. Since jokes and memes spread very quickly and can make a mockery out of anything, sometimes things posted online without any intention to cause a detrimental effect end up in being either a reason or a catalyst for the same. In 2015, a private video of an Italian woman went viral, which was parodied so much that it pushed her to commit suicide.57

Also, in 2017 a Facebook post by a Class 11 student sparked ‘Basirhat’ Riots in West Bengal. The Decade long communal harmony was broken by a meme of Holy Prophet in Kaaba58 and since there existed no religious enmity among the people living, the meme was solely responsible for inciting hate and triggering the riot. Going by what the neighbours of the youth said, “the boy posted the meme without giving it much thought”.59

CONSEQUENCES OF INTERNET HUMOUR : ARRESTS

Most people enjoy amusement and jesting more than they should … a jest is a kind of mockery, and lawgivers forbid some kinds of mockery—perhaps they ought to have forbidden some kinds of jesting.

—Aristotle60

In cases where the said allegations of ‘criminal joke’ turn out to be bogus, it leaves the accused as a victim of the law as well as the intolerance of the people. In the United Kingdom, five internet trolls are convicted every day.61

In India, making memes for trolling politicians or public figures has seen a much undesired consequence-arrest. In April 2018, a man from Ranchi was arrested for making a meme video of the State Chief Minister.62 In 2012, a teacher was arrested for forwarding a cartoon on West Bengal Chief Minister.63 In 2013, a man in Agra was arrested for cartoons lampooning Prime Minister Manmohan Singh and two other leaders.64 In 2017, a man in Kolkata was arrested for running a Facebook page and making derogatory cartoons about freedom fighters and political leaders.65

Also, a number of incidents have come up related to people being arrested for memes or posts on Prime Minister Narendra Modi. The arrest of a young man from Bhatkal for sending a cartoon,66 of a school principal for posting an image showing the PM and another leader in objectionable manner,67 of an auto rickshaw driver for being the group admin of a WhatsApp group where some content against the Prime Minister was published68 are a few examples. The case of AIB has already been mentioned.69

As observed in most of the cases, the element of Mens Rea is completely absent. However, each time people have to go through the trouble of complaints or arrests. Like in 2017, a 19 year old boy was arrested for sending a WhatsApp message, allegedly defaming the Prime Minister.70 Barely going by the words of the accused’s family and neighbours, the meme was forwarded without any criminal intent as the boy was new to social media.

Sometimes the accused manages to evade such circumstances. Like in the matter of Nanda Bholanath Singh v. State of Maharashtra71 the court granted anticipatory bail to the petitioner who had posted an allegedly defamatory post. However, Madras High Court denied the same to a BJP Leader for sharing a derogatory post.72

Hence, it can be observed that in most of these so-called criminal humour cases, either the laws become a tool to suppress opinions, dissent, question or criticism that are dipped in humour to reach wider audience, or it’s just that the post reaches an over sensitive audience. Therefore, except in cases of intended crimes, criminal laws like the IPC are misused.

Thus, we arrive at the question, ‘Should individuals really be arrested for posting jokes, memes and cartoons online when in most of the cases, the Mens Rea to commit the crime is prima facie absent? If yes, then under what circumstances and how?

LAWS GOVERNING ONLINE HUMOUR : WHY AND WHY NOT?

Humour is like a rubber sword— It allows you to make a point without drawing blood.

—Mary Hirsch73

It is pertinent to note that to regulate humour is to regulate social media as a whole and drafting any regulation related to humour only is not possible. Hence, any further deliberation to regulate humour simply means regulating social media, keeping humour at the centre of it all.

Section 66A of the IT Act criminalised sending message which is offensive, menacing or false information circulated for generating hatred, ill-will, enmity, insult, injury etc.

In wake of an incident in 2012 where a girl was arrested for stating her opinion on Facebook in relation to city shutdown due to death of Bal Thackrey, numerous petitions were filed which later became the case of Shreya Singhal v. Union of India.74 The Apex Court struck down 66A of the IT Act in the view of it being vague and violative of Article 19(1) of the Constitution of India. The Court noted that “there is no demarcating line conveyed by any of these expressions— and that is what renders the Section unconstitutionally vague”75. The Court regarded that if the section wasn’t struck down there would be total chilling effect on free speech.76

One of the main contentions of the petitioners was that, even innocents were getting roped into it and it was ‘open to the authorities to be as arbitrary and whimsical as they like, in booking such persons under the said section’. However, even when section 66A has been struck down, people are still getting arrested for sending or publishing jokes under the IPC.

This leads us to the conclusion that the present laws replace prosecution with persecution when it comes to social media. Hence, it is needed to determine ‘whether laws should really interfere in social media and its user generated content or not’.

The answer to this hangs between lots of factors, discussed ahead.

Laws for Social Media — Why It is Needed

New Crimes Coming Up

From the above discussions it can be clearly seen that there are a lot of crimes that are coming up with the social media which are not dealt with in the IPC, like racism.

It is fundamentally true that section 153(A) of the IPC is a section for hate speech and as held in Babu Rao Patel v. State (Delhi Admn.),77 the section deals with raising enmity on the grounds of not only religion, but also race, caste, gender and the like. But in Bilal Ahmed Kaloo v. State of Andhra Pradesh,78 it was held that the section deals with cases only where the hate is being provoked between ‘two’ or more groups. If there is no promotion of hate between groups, the section won’t be applicable. Merely hurting the sentiments of one group without referring to any other group won’t attract the section.79 Hence, if someone goes on spreading hate and racism against the people from north-east, without bringing in any other group in the context, the said person would be committing no offense under 153(A) of the IPC.

The existing hate against the people of north-east has become a very big concern. In 2014, a student from Arunachal Pradesh was beaten to death after a fight ensued due to mockery.80 With the ‘EyeamIndian’ campaign on social media, where people started to post images of themselves with skin around eyes being pulled back, imitating the eyes of a person of north-east to show solidarity and support the India’s multi-ethnicity, it became increasingly difficult to understand who is doing it promote racism and who is doing it to counter it.81

Further, the law covers only ‘enmity’. Promotion of the feeling of inferiority for a group is still not covered in the section.

Additionally, with the development of new jurisprudence, scholars are recognizing gender discrimination82 as a new form of crime. Humour originated from the patriarchal societies portrays women “through characteristics such as stupidity, illogical thinking, ignorance, or irresponsibility”83. Such sexism is inherent in the society and in future, if a development takes place, such acts can become a matter of criminality.

Hence, we observe that the internet not only hosts presently recognized crimes, it is becoming a home for new growing crimes as well. Thereby, going by the principle of Nulla Poena Sine Lege (no person shall be punished except in pursuance of a statute which fixes a penalty for criminal behaviour)84 makes statutory regulation of online humour a necessity.

Online Humour Disguises Crimes

This point does not need much deliberation, because, in nearly each and every case it can be observed that one or the other crime is just disguised as a harmless joke. In Gayatri85 the alleged offending post was indeed a joke, and was indeed posted with hatred towards the Dhobi caste.

In Chambers v. Director of Public Prosecutions86 a tweet by the accused became a matter of concern and he was convicted for sending by a public electronic communications network a message of a menacing character, even though the accused argued that the tweet was meant to be a joke.

In summary, it is very easy to commit or incite an offence through a post on social media and cover it under a layer of joke, sarcasm or satire, or transform it into a meme or cartoon with creativity. This masks the Mens Rea and makes it difficult to say whether it was intended to be a criminal act or not.

Would Prevent Unnecessary Unlawful Consequences

The Basirhat Riot87 can definitely point that, had the laws been strong and their implementation proper, the post would not have caused riots. The meme kept on circulating till the point it flamed the riots.

This isn’t the only incident where lack of existence of a proper law for the said matter or the immediate enforcement of such law has caused disturbance. In fact, section 295(A) came ‘after’ the Rangeela Rasool incident when a need for a new law was realised to deal with such situations.

Cicero says in De Legibus, ‘Salus populi suprema lex esto’, i.e. the public safety is the supreme law. The Australian High Court in Gratwick v. Johnson88 notes that even though the maxim is not a legal criterion of constitutionality, but is a wise political observation and represents a doctrine of political necessity.89 Hence, taking a preventive approach to protect the public safety, there needs to be regulation over what kind of material is circulated online, especially on social media.

Hereby, it can be stated that had there been a law to counter the Rangeela Rasool, and had the law enforcement agencies taken down the Facebook post before it went viral, the Lahore and Basirhat Riots could have been avoided.

Thus, laws governing internet humour is necessary as it would reduce illegal recourses.

Excessive integration of Social Media in Real life

Scholars are now recognising the virtual space as a part of real life, the way telephonic conversations are seen as a part of offline life90. A new concept of ‘Dual Reality’ has also been discussed. “The dual reality concept (…) incorporates two key ideas— that data streams from real-world sensor networks are the raw materials that will fuel creative representations via interactive media that will be commonly experienced, and that online 3D virtual worlds are an ideal venue for the manifestation and interactive browsing of the content generated from such sensor data streams”.91

Not only is the virtual world integrating with the real world in practical sense, it is also being integrated in the eyes of law. While rejecting the Anticipatory bail plea of BJP leader S Ve Shekher for allegedly sharing a post abusing women journalists, the court held that sharing a post on social media is equal to endorsing it.92

Not only Facebook, the courts themselves are engaging in the use of social media messaging platform WhatsApp to carry official procedures in cases. In SBI Cards & Payments Services (P) Ltd v. Rohidas Jadhav93 the court held that notice delivered in PDF format on WhatsApp is valid. In Karkarduma District Court of Delhi, summon was served through WhatsApp94 and it was held that Blue tick on WhatsApp prima facie means that summon has been served95 and the same happened in Rohini District Court96. In Rohitashwa Kumar Agarwal v. Bar Council of U.P.97 the court summoned the parties through WhatsApp, and during the Shimla Water Crisis, the Himachal Pradesh High Court suggested creation of a WhatsApp group for better coordination while supplying water98.

While even the Courts recognise the fact that social media is so integrated in real life that formal and official formalities can take place over it, it is very evident that such space holds a relevance in the eyes of law should not be left out of the purview legal regulation because law cannot trend on something that is unregulated itself.

Real Life, Permanent and Long Term Impact

Anything posted on social media doesn’t remain just on the internet, but its use very much affects the real life of an individual as well as the state. In R. Mahalakshmi v. Commissioner of Police99 the Court went so far as to state that “Social media has become the danger to our nation”. Content that is posted online as a joke not only impacts the online presence of an individual, but also makes real life impacts.

On top of that, anything posted on the internet becomes permanent.100 Once an information is on the internet, it cannot be determined how far it has reached and how many copies of the information have been made and it can never be claimed that an information has been completely removed from the internet because of its vastness and reach. Also, information is shared cross-platform as well. Like in Basirhat Riots, the original post was taken down from Facebook, but it kept circulating on WhatsApp.

Further, anything posted on Social media can leave a very long term impact. The suicide of the Italian woman, whose private video went viral and was parodied, was preceded by her changing her home as well as her name, winning a case against Facebook to take down the abusive posts, and two failed suicide attempts101.

Summarising all the above points, social media needs a regulation because both it and the internet humour are not only a breeding ground for new crimes, but they can also incite a crime and become a catalyst for unlawful consequences as it is integrated now in the real lives of people, both, practically as well by the practice of court, and because of its vast reach, information can become permanent, doing long term, ruthless and detrimental effects that can harm an individual, a group, or a community as a whole, all this while, under the guise of a joke.

Laws for Internet Humour — Why not Needed

Hinders Freedom of Speech and Expression

“If you should let me go on this condition which I have mentioned, I should say to you, Men of Athens, I respect and love you, but I shall obey the god rather than you”102 were the words of Socrates when he was offered his life in exchange of his right to speak his mind.

The Part III of the Constitution of India guarantees the Fundamental Rights to the people of India including the Freedom of Speech. They are guaranteed as limits on the power of State.103 The ICCPR104 in its Article 19 grants freedom of speech and states that it “shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. Also, blasphemy laws are incompatible with the Covenant,105 and so are defamation Laws106 and ‘the penalization of a media outlet solely for being critical of the government or the political social system espoused by the government can never be considered to be a necessary restriction of freedom of expression’.107

However, Freedom of Speech conferred is not absolute in nature. While discussing the nature of the Freedom of Speech and Expression as given in the Draft Constitution, Dr BR Ambedkar referred108 to the case of Gitlow v. People of the State of New York109 where the court stated that “It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish”.

Under Article 19 of the Constitution of India, the State has the power to impose reasonable restriction on the grounds of ‘security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence’.

However, of all the grounds, one of the weakest points is ‘Public Order’ that is disrupted by any dissenting opinion. The recent movie Padmavat was accused of ‘Negationism’ and led to nation-wide violent protest when court lifted the ban on it.110 Not only the filmmakers, in India even the Apex Court directly has faced protests. With the dilution of SC/ST (Prevention of Atrocities) Act, 1989 the country saw nation-wide disruption of public order111 and the government is now planning to undo the dilution.112 Hence in a country where things such as judgments of courts are leading to mass unrest, it is very much evident that it is completely unpredictable as to what can cause a public disorder.

In the Basirhat Riots, the meme that sparked off the riot was nothing new. Such memes and cartoons are found in abundance on the internet.

Further, when it comes to humour, we must understand that not all forms of humour are under the so called confine of ‘Decency and Morality’. It has been noted that modern genres of comedy like black or dark revolve around topics that are frowned upon and are worthy of censorship.113 In Devidas Ramachandra Tuljapurkar114 the Supreme Court held the poet guilty under section 292 of the IPC merely for a satirical poem that uses strong language to criticise Mahatma Gandhi. Scholars also note that ‘comic works characteristically expose pomposity and smug self-deception, and undermine dull and inhuman mores. By toppling those authorities’ comedy encourages us to understand what is masked by rigorous, sombre approaches to human behaviour. The problem is the virtual certainty that unrestrained comedy will give specific offence and produce outraged reaction from individuals and groups sooner or later”115.

Thereby, if the laws start to censor humour, it will end up outlawing something that is actually smart criticism, only because it fails to go by the standard of morality and decency. Such censorship would not only be violative of free speech, but would end up deterring the critic attitude.

Tool for Oppression

As already stated, it cannot be doubted that internet humour carries a very huge reach and is penetrative in nature. Because of the fact that it is not just another monotonous everyday piece of speech, humour catches attention quicker and in impact, seminates ideas quickly. This makes it a very convenient method of mass dispersal of criticism.

In 2016, the Spanish government proposed to ban memes on politicians to prevent people making fun of politicians.116 This move was not at all democratic in any manner as people who hold offices can and should be open to criticism in a democratic setup.

Also, Russia cracked down memes on Putin which were actually to support gay rights.117 This was labelled as war against internet extremism. However, the memes were for inseminating the idea of gay rights and a protest against the archaic existing laws and the crack-down took the memes down, thus affecting the movement.

These two are clear instances as to how memes and humour is used to put forth a point, and how the government uses the laws and its force to suppress the criticism and dissenting voices.

Thereby laws governing social media are used by those in power to suppress the voices, thus becoming a tool for oppression.

Demotivates Criticism and Expression of Opinion

Apart from suppressing the Free speech, even the existence of a law governing every post on social media, acts as a deterrent.

The very fact that someone got arrested for sharing cartoons on a politician sends a deterring thought to each and every individual, and the very next minute, they start refraining from expressing even legitimate criticism.

For example, in the matter of Wendy Doniger’s book ‘The Hindus : An Alternate History’, Penguin India had to decide not to release the book in India when the book faced a case of section 295(A) of the IPC, and then decided for out of court settlement. The thing that is to be noted is that the court’s order did not come, but Penguin India pulled out from the case stating it has a duty to protect its employees, which Booker-Prize winner author Arundhati Roy called “dismaying shift showing submission to a growing attitude of intolerance”.118

The very same goes for a simple user of social media. Being engaged into a case is way too difficult for a common man who availed the facility of social media to share a meme or a joke. Because of the way public reacts, it is totally unpredictable what will land an individual into a legal dispute, facing arrests, economic loss, and mental agony just for a meme.

Such will then act as a deterrent for a common man, who is unsure of how ugly things may turn out to be, from sharing any sort of view that has a chance of invoking an outrage.

And it is not that it has to be something offensive, or gross for anyone to take offense of the statement. Poet and writer Kanwal Bharti was arrested for a Facebook post questioning a government’s decision.119 In 2015, an 11th grade boy was sent to 14 day judicial remand for merely sharing a Facebook post, of which he didn’t understand the true meaning. The boy was slapped with not only now held unconstitutional section 66-A of IT Act, but also 153A, 504 and 505 of the IPC.120

Such incidents deter people from posting or expressing anything on the electronic media.

Promotes Victimhood and Violence

An interesting observation is that forming laws that take action on disruption of ‘public order’ passively promote violence and victimhood. The IPC in reference to section 295(A) encourages or generates specifically violent display of wounded feeling.121 In terms of section 295(A), scholars note that “the purpose was to curb religious violence by curbing provocative speech. But the strategic field the law put into place worked differently : it extended the strategic value of demonstrating that passions had been aroused that threatened the public peace, in order to induce the government into taking legal action against one’s opponents. Section 295A thus gave a fillip to the politics of religious sentiment122 When it comes to humour, especially dark comedy on the internet, its tendency to incite wound on sentiments is much higher, and when such comedy is on a group, the purposeful display of violence becomes a tool to push their fragile emotion on others.

Difficult to Lay down the Liability

Also, social media is used through electronic devices. Anyone can hack the device, trick a gullible person or exercise personal influence like that of friendship to get access to one’s social media account. In poor families or even in economically sufficient families, every individual does not own an electronic device; hence, sharing of such items is often seen. If the minor child of a person shares something from his social media account that is highly offensive or harasses someone, on whom the liability should lie would be extremely difficult to answer. This can happen with any individual. Setting individuals aside, this can happen with governments too. On 5 Aug, 2018, the official Instagram handle of the Russian Military uploaded a nude image of a woman.123 If this can happen with a government account, it can no doubt happen with a normal user. Thus laying the liability is difficult.

In summary, it can be understood that if laws start governing the social media and internet humour, not only will it start suppressing the quickest and most penetrative method of idea dissemination, but also it becomes a tool for oppression and demotivating criticism. The very fact that the law tells people that, on such and such jokes their emotions ‘can’ get hurt, it reminds people that it is their right to get offended.

CONCLUSION

Defining and analysing humour is a pastime of humourless people.

—Robert Benchley124

In his ideal world, Plato predicted that Laws censoring humour would exist, because poet or a composer of comedy should not be allowed to ridicule or mock any citizen.125 In the Funeral oration of Peloponnesian war for the martyred soldiers, Pericles said “We are free and tolerant in our private lives; but in public affairs we keep to the law. This is because it commands our deep respect126. As the time passed, the concept of freedom expanded. However, it has been observed that Freedom of Speech has never been absolute, and always was, is, will be and should be restricted with reason. Hereby, it should be clear by now that whether it is real life or social media, law has to play a role in its governance. The real question is, are the prevalent Indian laws appropriate enough for its governance?

The answer is no, the present laws are not suited for handling social media, especially internet humour at all. The present laws are excessive in nature as well as broad, especially sections 295(A) and 499. Despite section 66-A of IT Act being held unconstitutional, innocents are still roped in.

Also, the fact is that even though social media now is an integrated part of human existence, it is still not a real world. A person, even in the transparent curtain of anonymity of the internet, changes his personality. Once that changed personality wears the hood of humour, it becomes tricky to dig in the intention to pick up the malice.

Another thing is that the present laws are double edged. As discussed earlier, it becomes a reason for display of violence and victimhood, and the accused has to face the outrage as well as the criminal case, in most cases, only to be acquitted later. Thus not only social media is being misused, the laws are also being misused. In State of Maharashtra v. Sangharaj Damodar Rupawate127 it was held that “effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view”. But this comes when the matter reaches the court and having a full faith in judicial system, it can be said that the Court would not let an innocent suffer. But no one protects the accused from the unnecessary outrage every time, abuse of process and unnecessary arrests, economic cost, loss of repute and time, that too for a Facebook post.

Following the Natural Law School’s maxim Lex Inuista Non Est Lex, i.e., an Unjust law is no law,128 and as Hart puts it, “We think and talk of ‘justice according to Law’ and yet also of the Justice or injustice of Law”,129 there is nothing wrong in stating that using the IPC as well as the complicated procedure of the Code of Criminal Procedure, 1973 for a Facebook Post or a WhatsApp forward is not only excessive, but also unjust by its nature. and as scholars are noting, “higher sanctions and stricter laws may increase crime”.130

Also, the negative side of letting offensive humour go unchained is also clear and visible. Many times trolls intentionally attempt to malign a person and his reputation as noted above, or at least the accused knows that the targeted person is likely to suffer loss or is actually suffering it. Such damage once suffered cannot be reversed and if something reaches the deep web, it is nearly impossible to wipe the data off.

To summarise, humour should also be given a high degree of freedom as they are not mere jokes but speech and expression that has more penetrating reach as compared to any other form because of its brain intriguing and attention grabbing nature. It is for entertainment, as well as for criticism, challenging society’s moral standards, progress and countering prevailing norms, which is important for growth and diversity. As noted in the Shreya Singhal case itself, it allows a bigger public participation that any other form of media because it requires lesser economic cost and effort and everything is done on clicks. However, its negative and darker side cannot be ignored as it is also used as a tool for pushing fake agendas, to defame and malign, harass and bully. But the present laws aren’t compatible with social media as the substantive part either isn’t touching a part or is making it too heinous. Procedure is too cumbersome and harassing for a person whose crime is forwarding a joke.

Also one thing that has been observed throughout the discussion is that, not only the people, but the courts are also using social media, like the WhatsApp messages to forward summons. State officials are using Twitter and Facebook for declaring official information. When a medium is used and has been integrated to such a degree that even the courts and officials are using it, and leaving it to old laws is not viable.

RECOMMENDATION

Keeping everything in focus, it can be believed that the below recommendations will help in governing internet humour better if implemented—

■ Dedicated Social Media Law-In case where the laws were stringent, the Court or the Government have watered them done in the past. However, those were special legislations like the SC/ST Act131 or the Bihar Liquor Ban132. It is not possible to dilute the IPC to suit social media. The country needs a separate Act dealing with social media, with its own procedure that is compatible with the modern Information Technology, and a separate tribunal to deal with the cases of social media and the internet, which makes it easier for the victim to get relief and for the accused to defend himself without excessive loss of reputation as we follow the principle of ‘innocent until proved guilty’ and it is not at all justified to drag someone in a criminal court for a joke when the laws are already presuming him innocent.

■ Balanced Arrest and Complaint Procedure — It has been observed that in cases related to politicians or celebrities being defamed, the politicians or celebrities aren’t the ones who take offence, but it’s someone else who files the case, and the most of the time the celebrity or the politicians don’t even comment on the scene. When it comes to social media humour and offence such as defamation, procedural laws need to establish as who has the locus standi and jurisdiction to complain.

■ Author Romila Thapar notes that there is no quick way to measure how many people have suffered hurt on their sentiments, if the sentiment of the entire group or society has been hurt or only of the people agitating. People, who become vocal, get to censor other’s freedom in the name of attack on religious sentiments and those who aren’t, simply ignore it.133

■ Also, arrest should be the last resort and should not be used against each and every individual and for every kind of social media post, like in the matter of Palghar Girls being arrested for a Facebook status and for ‘liking’ the post,134 the arrest was totally unjust and an abuse of power. However, the police acted wise in the controversy of Tanmay Bhat’s Snapchat video and said that it is not an offence and was posted in a dark taste of humour135 refusing to register an FIR.

■ Well defined, narrow definitions of offences — The point that held section 66-A as unconstitutional was that the section was very vague and offences were not defined properly. and when it comes to jokes it becomes even more difficult. The court in the matter of Shiromani Gurudwara Prabandhak Committee136 the court already noted the difficulty in banning a certain category of jokes, i.e., Sardar Jokes in the said case and said that they cannot frame guidelines for it. Hence, any law that governs the social media and humour should be well defined and since formation of a whole new set of laws is being recommended, it will be easier to make a detailed but narrow definition of what will be held criminal, rather than fitting it in one section only.

■ What is needed to be understood that the sense of humour defers from person to person like in the case of the cartoonist held for sedition,137 the court observed that the cartoons were not humorous, but any other reader may have an entirely different opinion. Also what maybe offensive may not be defaming at all.138 Hence, a clear demarcation while making definitions and of the offenses should be made between offensive post, and injurious post.

If implemented properly, these recommendations may help in reducing the menace of public imposed restriction on Free Speech and one of the greatest gifts to humanity — Sense of Humour.

Arriving at the end, the entire discussion should be closed with two quotes—

Everything human is pathetic. The secret source of humour itself is not joy but sorrow. There is no humour in heaven.

—Mark Twain139

I disagree with what you say, but I will defend to the death your right to say it.

—Evelyn Beatrice Hall in reference to the attitude of Voltaire.140


Note: This Article was first published in RMLNLU CMET Law Journal6 CMET (2019) 77. It has been reproduced with the kind permission of Eastern Book Company.

* Student, BA LLB (Hons), KIIT School of Law Bhubaneswar, Odisha.

1 ‘Political Satire in Modern India’ (The Hindu, 6 April 2018) <https : //thehindu.com/thehindu/lr/2003/04/06/stories/2003040600010100.htm.> accessed 14 January 2019.

2 Douglas A Downing and others, Dictionary of Computer and Internet Terms (10th edn, Barron’s Educational Series Inc US 2009) 256.

3 Sigmund Freud, The Ego and the Id (first Published 1923, Courier Dover Publication 2018) 8.

4 Megan Carpentier, ‘Online Abuse : How Different Countries Deal with It’ (The Guardian, 12 April 2016) <https : //theguardian.com/technology/2016/apr/12/online-abuse-how-harrassment-revenge-pornography-different-countries-deal-with-it.> accessed 15 January 2019.

5 Limor Shifman and Dafna Lemish, ‘“Mars and Venus” in Virtual Space : Post-feminist Humor and the Internet’ (2011) 28 (3) Critical Studies in Media Law 253, 254.

6 The Guardian (n 257).

7 Shifman and Lemish (n 258).

8 Paul Sturges, ‘Comedy as Freedom of Expression’ (2010) 66 (2) Journal of Documentation 279, 281.

9 Susan Blackmore, The Meme Machine (8th edn, OUP 1999).

10 ‘Charles Philipon’, (Encyclopaedia Britannica) <https : //britannica.com/biography/Charles-Philipon#ref51623> accessed 14 January 2019.

11 Geert Lernout, Help My Unbelief : James Joyce and Religion (A&C Black 2010) 80.

12 Abigail Edge, ‘9 Publications Proudly Flying the Flag for Satire’ (Journalism co UK, 8 January 2015) <https : //journalism.co.uk/news/9-publications-proudly-flying-the-flag-for-satire-/s2/a563702/> accessed 14 January 2019.

13 Sarfaraz Mansoor, ‘The Onion prepares to transfer its Newspaper Satire to Television’ (The Guardian, 24 May 2010) <https : //theguardian.com/media/2010/may/24/the-onion-satire-television> accessed 14 January 2019.

14 James Andrew Miller and Tom Shales, Live From New York : The Complete, Uncensored History of Saturday Night Live As Told By Its Stars, Writers, and Guests (Hachette UK 2014) Prologue.

15 Limor Shifman and others, ‘Internet Jokes : The Secret Agents of Globalization?’ (2014) 19 (4) Journal of Computer-Mediated Communication 727, 728.

16 ‘Charlie Hebdo Attack : Three Days of Terror’ (BBC NEWS, 14 January 2015) <https : //bbc.com/news/world-europe-30708237> accessed 14 January 2019.

17 Mukul Devichand, ‘How the World was Changed by the Slogan ‘Je Suis Charlie’’ (BBC NEWS, 3 January 2016) <http : //bbc.com/news/blogs-trending-35108339.> accessed 15 January 2019.

18 John Morreall, Comic Relief : A Comprehensive Philosophy of Humor (John Wiley and Sons 2011).

19 Shreya Singhal v. Union of India, (2015) 5 SCC 1 : AIR 2015 SC 1523.

20 Eugene Volokh, ‘India Comedy Group Subject to Criminal Process for Meme Insulting Prime Minister Narendra Modi’ (Washington Post, 14 July 2017) <https : //washingtonpost.com/news/volokh-conspiracy/wp/2017/07/14/india-comedy-group-subject-to-criminal-process-for-meme-insulting-prime-minister-narendra-modi/?utm_term=.70c5babd1744> accessed 13 January 2019.

21 Iginio Gagliardone and others, Countering Online Hate Speech (UNESCO 2015) 54.

22 Dr Justice B.S. Chauhan, Hate Speech, Report Number 267 (Law Commission of India 2017) 37.

23 Feliks Garcia, ‘Pepe the Frog Meme Designated ‘Hate Symbol’ by the Anti-Defamation League for its Popularity amongst Alt-Right’ (The Independent, 28 September 2016) <https : //independent.co.uk/news/world/americas/pepe-the-frog-hate-symbol-anti-defamation-league-alt-right-meme-a7334181.html> accessed 13 January 2019.

24 Rachael Revesz, ‘Hillary Clinton attacks Donald Trump for Posting Pepe the Frog Meme’ (The Independent, 13 September 2016) <https : //independent.co.uk/news/world/americas/donald-trump-hillary-clinton-pepe-frog-instagram-breitbart-white-supremacist-alex-jones-milo-a7240581.html> accessed 13 January 2019.

25 Vijaita Singh, ‘Centre plans Law on Online Hate Speech’ (The Hindu, 19 March 2018) <http : //thehindu.com/news/national/centre-moves-for-law-on-online-abuse/article23295440.ece.> accessed 13 January 2019.

26 Bryan A Garner (ed), The Black’s Law Dictionary (9th edn, West 2009) 193.

27 Codice Penale 1930, art 724 (Italy).

28 Peter R Blood (ed), Pakistan : A Country Study (6th edn, Library of Congress 1995) 312.

29 Joseph Burstyn Inc v. Wilson 343 US 495 (1952).

30 Criminal Amendment Act No 25 (1927).

31 Neeti Nair, ‘Beyond the ‘Communal’ 1920s : The Problem of Intention, Legislative Pragmatism, and the Making of Section 295A of the Penal Code, 1860’ (2013) 50 (3) Indian Economic and Social History Review 317, 318.

32 Gene R Thursby, Hindu-Muslim Relations in British India : A Study of Controversy, Conflict, and Communal Movements in Northern India 1923-1928 (BRILL 1975) 47.

33 Ayesha Jalal, Self and Sovereignty : Individual and Community in South Asian Islam Since 1850 (Routledge 2000) 295-96.

34 Sanskar Marathe v. State of Maharashtra Crl PIL No 3 of 2015.

35 Ritesh Mishra and S Kareemuddin, ‘Bastar Journo Faces Sedition Charge for Posting FB Cartoon against Govt, Judiciary’ (Hindustan Times, 30 April 2018) <https : //hindustantimes.com/india-news/bastar-journo-faces-sedition-charge-for-posting-fb-cartoon-against-govt-judiciary/story-MZYP4vuSM2KKrsAjkJvGbO.html> accessed 14 January 2019.

36 ‘Markandey Katju Booked for Sedition after Offering Kashmir and Bihar to Pakistan’ (Indian Express, 29 September 2016) <http : //indianexpress.com/article/india/india-news-india/markandey-katju-sedition-bihar-nitish-kumar-kashmir-pakistan-facebook-3054772/> accessed 13 January 2019.

37 Aalen Chacko Issac, ‘Reinforcement of Sexism through Memes’ (National Dialogue On Gender-Based Cyber Violence) <https : //itforchange.net/e-vaw/wp-content/uploads/2018/01/Aalen_Issac-2.pdf.> accessed 11 January 2019.

38 Limor Shifman and Dafna Lemish, ‘“Mars and Venus” in Virtual Space : Post-feminist Humor and the Internet’ (2011) 28 (3) Critical Studies in Media Law 253, 268.

39 Ben Popken and Brandy Zadrozny, ‘Trolls Spread Hateful Fake Starbucks Coupon for ‘People of Color’ only’ (NBC NEWS, 20 April 2018) <https : //nbcnews.com/business/business-news/trolls-spread-hateful-fake-starbucks-coupon-n867501> accessed 13 January 2019.

40 Karma Dorjee v. Union of India WP (C) No 103 of 2014.

41 Bharti Jain, ‘Calling NE People ‘Chinki’ will Land You in Jail’ (Times of India, 2 January 2015)<https : //timesofindia.indiatimes.com/india/Calling-NE-people-chinki-will-land-you-in-jail/articleshow/45732987.cms> accessed 11 January 2019.

42 Gayatri v. State2017 SCC OnLine Del 8942.

43 ‘Derogatory Posts Against SC/ST on Social Media an Offence, Says Delhi High Court’ (The Wire, 5 July 2017) <https : //thewire.in/caste/derogatory-posts-scst-social-media-offence-says-delhi-high-court.> accessed 11 January 2019.

44 Gayatri (n 295) para 5.

45 Balakrishna Ganeshan, ‘Dalits in Telangana Launch Campaign to Remove Instagram Page Abusing Community’ (The News Minute, 28 July 2018) <https : //thenewsminute.com/article/dalits-telangana-launch-campaign-remove-instagram-page-abusing-community-85099> accessed 12 January 2019.

46 ‘What is Cyberbullying’ (StopBullying Gov, 26 July 2018) <https : //stopbullying.gov/cyberbullying/what-is-it/index.html> accessed 12 January 2019.

47 ‘Facts About Bullying’ (StopBullying Gov, 28th July 2018) <https : //stopbullying.gov/media/facts/index.html#suicide> accessed 12 January 2019.

48 Paris Martineau, ‘The Sad Truth Behind the Viral Internet Story of Sanjay and Durgesh’ (New York Magazine, 31 October 2017) <http : //nymag.com/selectall/2017/10/the-sad-truth-behind-the-viral-meme-of-sanjay-and-durgesh.html> accessed 13 January 2019.

49 Richard Donegan, ‘Bullying and Cyberbullying : History, Statistics, Law, Prevention and Analysis’ (2012) 3 (1) The Elon Journal of Undergraduate Research in Communications 33, 36.

50 ibid 37.

51 Danish Raza, ‘I Saw it on WhatsApp : Why People Believe Hoaxes on the Messaging App’ (Hindustan Times, 16 June 2017) <https : //hindustantimes.com/india-news/i-saw-it-on-whatsapp-why-people-believe-hoaxes-on-the-messaging-app/story-FiRtEOi7UvxqpzrzoJ7nnK.html.> accessed 13 January 2019.

52 Samarth Bansal, ‘Faking it on WhatsApp : How India’s Favourite Messaging App is Turning into a Rumour Mill’ (Hindustan Times, 19 May 2017) <https : //hindustantimes.com/india-news/faking-it-on-whatsapp-how-india-s-favourite-messaging-app-turned-into-a-rumour-mill/story-QAkM4RnF3NeeulOXlFDyUK.html> accessed 13 January 2019.

53 ‘Facebook Removes more than 100 Accounts Linked to Russian Troll Factory’ (The Guardian, 4 April 2018) <https : //theguardian.com/technology/2018/apr/04/facebook-removes-more-than-100-accounts-linked-to-russian-troll-factory> accessed 14 January 2019.

54 Jolie Myers and Monika Evastatieva, ‘Meet the Activist Who Uncovered the Russian Troll Factory named in the Mueller Probe’ (NPR, 15 March 2018) <https : //npr.org/sections/parallels/2018/03/15/594062887/some-russians-see-u-s-investigation-into-russian-election-meddling-as-a-soap-ope> accessed 15 January 2019.

55 Anita Balakrishnan, ‘Facebook Pledges to Double its 10,000-Person Safety and Security Staff by End of 2018’ (CNBC, 1 November 2017) <https : //cnbc.com/2017/10/31/facebook-senate-testimony-doubling-security-group-to-20000-in-2018.html.> accessed 15 January 2019.

56 Alfred Ng, ‘Facebook’s Real Fake-News Problem : It’s the Memes, Stupid’ (CNET, 15 April 2018)<https : //cnet.com/news/mark-zuckerberg-facebook-and-fake-news-its-the-memes-stupid/> accessed 15 January 2019.

57 Caroline Mortimer, ‘Investigation Launched into Death of Italian Woman who Killed Herself after Explicit Images went Viral’ (The Independent, 14 September 2016) <https : //independent.co.uk/news/world/europe/tiziana-cantone-sex-tape-suicide-internet-meme-revenge-porn-naples-a7307041.html> accessed 15 January 2019.

58 Neeraj Kumar and Manoj Dayal, ‘Role of Social Media in Basirhat Communal Conflict, 2017 : A Case Study’ (2018) 3 (1) National Journal of Multidisciplinary Research and Development 12, 14.

59 Sweety Kumari, ‘FB Post, Communal Violence Leave West Bengal Town Divided, Scarred’ (The Indian Express, 6 July 2017) <https : //indianexpress.com/article/india/fb-post-communal-violence-leave-west-bengal-town-divided-scarred-4737945/> accessed 15 January 2019.

60 John Morreall, ‘Philosophy of Humor’ (Stanford Encyclopedia of Philosophy, 28 September 2016) <https : //plato.stanford.edu/entries/humor/#HumBadRep> accessed 15 January 2019.

61 ‘Five Internet Trolls a Day Convicted in UK as Figures Show Ten-Fold Increase’ (Telegraph, 24 May 2015) <https : //telegraph.co.uk/news/uknews/law-and-order/11627180/Five-internet-trolls-a-day-convicted-in-UK-as-figures-show-ten-fold-increase.html> accessed 15 January 2019.

62 ‘CM Meme Arrest Sparks Freedom of Speech Debate’ (The Times of India, 6 April 2018) <https : //timesofindia.indiatimes.com/city/ranchi/cm-meme-arrest-sparks-freedom-of-speech-debate/articleshow/63640930.cms> accessed 15 January 2019.

63 Monideepa Banerjie, ‘Professor Jailed for Circulating Mamata Cartoons to be Compensated, Says Court’ (NDTV, 10 March 2015) <https : //ndtv.com/india-news/double-the-compensation-of-jadavpur-professor-arrested-for-circulating-mamata-cartoons-court-tells-g-745593> accessed 15 January 2019.

64 ‘Agra Man Held for Facebook Posts on PM, Kapil Sibal, Mulayam Singh’ (DNA India, 5 February 2013) <http : //dnaindia.com/india/report-agra-man-held-for-facebook-posts-on-pm-kapil-sibal-mulayam-singh-1796456> accessed 15 January 2019.

65 Sweety Kumari, ‘Kolkata : Admin of a Facebook Page Arrested for Allegedly Posting Obscene Memes’ (Indian Express, 20 December 2017) <https : //indianexpress.com/article/cities/kolkata/kolkata-admin-of-a-facebook-page-arrested-for-allegedly-posting-obscene-memes-4991794/> accessed 15 January 2019.

66 Chaitanya Swamy, ‘Youth from Bhatkal Arrested for Sending WhatsApp Message on Modi’ (Bangalore Mirror, 26 May 2014) <https : //bangaloremirror.indiatimes.com/bangalore/crime/Youth-from-Bhatkal-arrested-for-sending-WhatsApp-message-on-Modi/articleshow/35610511.cms> accessed 15 January 2019.

67 ‘Meerut Man Arrested for Controversial FB Posts on PM Modi, RSS Leaders’ (Hindustan Times, 14 October 2016) <https : //hindustantimes.com/india-news/meerut-man-arrested-for-controversial-fb-posts-on-pm-modi-rss-leaders/story-V6qMN89B0VuubEvcXiyrqL.html> accessed 15 January 2019.

68 Nolan Pinto, ‘Karnataka : WhatsApp Group Admin Jailed for Sharing PM Modi’s Picture with ‘Obscene’ Content’ (India Today, 2 May 2017) <https : //indiatoday.in/india/story/karnataka-whatsapp-group-admin-jailed-for-sharing-pm-modis-picture-with-obscene-content-974798-2017-05-02> accessed 15 January 2019.

69 Eugene Volokh, ‘India Comedy Group Subject to Criminal Process for Meme insulting Prime Minister Narendra Modi’ (Washington Post, 14 July 2017) <https : //washingtonpost.com/news/volokh-conspiracy/wp/2017/07/14/india-comedy-group-subject-to-criminal-process-for-meme-insulting-prime-minister-narendra-modi/?utm_term=.70c5babd1744> accessed 13 January 2019.

70 ‘Boy Arrested for Posting Morphed Photo of PM Modi on WhatsApp, Family Says He is only a Child’ (Financial Express, 27 November 2017) <https : //financialexpress.com/india-news/boy-arrested-for-posting-morphed-photo-of-pm-modi-on-whatsapp-family-says-he-is-only-a-child/949452/> accessed 15 January 2019.

71 Nanda Bholanath Singh v. State of Maharashtra2017 SCC OnLine Bom 1381.

72 Selvi J Kavin Malar v. Inspector of Police, Crl OP No. 12229 of 2018.

73 R Mark Giuliano, Speak Easy (Illustrated Williams and Co 2005) 192.

74 Deepa Kharb, ‘Cyber Law’ (2015) 51 Annual Survey of Indian Laws 439.

75 Shreya Singhal v. Union of India(2015) 5 SCC 1 : AIR 2015 SC 1523, 76.

76 Karnika Seth, ‘Cyber Laws’ (2014) 50 Annual Survey of Indian Laws 479, 481.

77 Babu Rao Patel v. State of Delhi, (1980) 2 SCC 402 : AIR 1980 SC 763.

78 Bilal Ahmed Kaloo v. State of Andhra Pradesh(1997) 7 SCC 431 : AIR 1997 SC 3483.

79 ibid 12.

80 Duncan McDuie-Ra, Debating Race in Contemporary India (Springer 2016) 66.

81 ibid 99.

82 Shazia Naureen Qureshi, ‘Understanding the issue of Gender Discrimination as a ‘Crime’ of Gender Apartheid and placing Violence against Women at the Centre of this Matrix’ (2014) 29 (1) Journal of South Asian Studies 91.

83 Limor Shifman and Dafna Lemish, ‘Between Feminism and Fun(ny)mism : Analysing Gender in Popular Internet Humor’ (2010) 13 (6) Information, Communication and Society 870, 872.

84 Jerome Hall, ‘Nulla Poena Sene Lege’ (1937) 47 (2) Yale Law Journal 165.

85 Gayatri v. State2017 SCC OnLine Del 8942, para 5.

86 Chambers v. Director of Public Prosecutions[2013] 1 WLR 1833.

87 Neeraj Kumar and Dr Manoj Dayal, ‘Role of Social Media in Basirhat Communal Conflict, 2017 : A Case Study’ (2018) 3 (1) National Journal of Multidisciplinary Research and Development 12, 14.

88 Gratwick v. Johnson, (1945) 70 CLR 1.

89 ibid 10-11.

90 Daniel Miller and others, How the World Changed Social Media (10th edn, UCL Press 2016).

91 Joshua Lifton and Joseph A Paradiso, ‘Dual Reality : Merging the Real and Virtual’ (2009) 1 International Conference on Facets of Virtual Environment 12.

92 Selvi J (n 325).

93 SBI Cards & Payments Services (P) Ltd v. Rohidas Jadhav2018 SCC OnLine Bom 1262.

94 Akanksha Jain, ‘Delhi Court Allows Service of Summons through WhatsApp, SMS, E-Mail in Domestic Violence Case’ (Live Law, 23 March 2018) <http : //livelaw.in/delhi-court-allows-woman-serve-summons-estranged-husband-australia-whatsapp-sms-e-mail-read-order/> accessed 15 January 2019.

95 Akanksha Jain, ‘Double Tick on WhatsApp Prima Facie Shows Summons have been Delivered’ (Live Law, 4 May 2018) <http : //livelaw.in/double-tick-on-whatsapp-prima-facie-shows-summons-have-been-delivered-read-order/> accessed 15 January 2019.

96 Apoorva Mandhani, ‘Delhi Judge Accepts Whatsapp Blue Double Tick as Receipt Proof of Notice’ (Live Law, 18 May 2017) <http : //livelaw.in/delhi-judge-accepts-whatsapp-blue-double-tick-receipt-proof-notice/> accessed 15 January 2019.

97 Rohitashwa Kumar Agarwal v. Bar Council of UP WRIT – C No 30552 of 2017.

98 State of HP2018 SCC OnLine HP 720.

99 R Mahalakshmi v. Commissioner of Police2016 SCC OnLine Mad 4905.

100 ‘What is Cyberbullying’ (StopBullying Gov, 26 July 2018) <https : //stopbullying.gov/cyberbullying/what-is-it/index.html> accessed 12 January 2019.

101 Caroline Mortimer, ‘Investigation Launched into Death of Italian Woman who Killed Herself after Explicit Images went Viral’ (The Independent, 14 September 2016) <https : //independent.co.uk/news/world/europe/tiziana-cantone-sex-tape-suicide-internet-meme-revenge-porn-naples-a7307041.html> accessed 15 January 2019.

102 Plato, Euthyphro Apology Crito Phaedo Phaedrus (Harold North Fowler tr, Harvard University Press 2005) 109.

103 J.S. Mill, On Liberty and Utilitarianism (first Published 1859, Bantam Classic 2008) 4.

104 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) p 171.

105 ICCPR/C/GC/34 (Human Rights Committee, 102nd Session, Geneva, 2011) para 48.

106 ibid 47.

107 ibid 42.

108 Constituent Assembly Debates 4 November 1948, 1459.

109 Gitlow v. New York1925 SCC OnLine US SC 182 : 69 L.Ed. 1138 : 268 US 652 (1925).

110 ‘Padmavat : Violence after India Top Court Lifts Ban on Film’ (BBC, 22 January 2018) <https : //bbc.com/news/world-asia-india-42771328> accessed 15 January 2019.

111 “SC/ST Act Row : SC Refuses Interim Stay; Violence in Rajasthan, Curfew in Madhya Pradesh; Death Toll Rises to 11’ (The Indian Express, 3 April 2018) <https : //indianexpress.com/article/india/sc-st-act-supreme-court-bharat-bandh-dalit-protests-rajasthan-madhya-pradesh-death-toll-5122177/> accessed 15 January 2019.

112 Shalini Nair, ‘Government Set to Undo ‘Dilution’ of SC/ST Law by Supreme Court’ (The Indian Express, 2 August 2018) <https : //indianexpress.com/article/india/sc-st-act-cabinet-approves-bill-to-restore-provisions-of-dalit-atrocity-law/> accessed 15 January 2019.

113 Rebecca Collings, ‘Shedding Light on Dark Comedy : Humour and Aesthetics in British Dark Comedy Television’ (Doctoral thesis, University of East Anglia 2015).

114 Devidas Ramachandra Tuljapurkar v. State of Maharashtra2015 SCC OnLine SC 1704.

115 Paul Sturges, ‘Comedy as Freedom of Expression’ (2010) 66(2) Journal of Documentation 279, 282.

116 Gabriel Samuels, ‘Spain Moves to Ban ‘Insulting’ Memes about Politicians from the Internet’ (The Independent, 11 November 2016) <https : //independent.co.uk/news/world/europe/spain-moves-to-ban-insulting-memes-about-politicians-from-the-internet-a7411566.html> accessed 15 January 2019.

117 Avi Selk, ‘Russia Cracks Down on Putin ‘Gay Clown’ Memes in War on ‘Internet Extremism’ (The Independent, 6 April 2017) <https : //independent.co.uk/news/world/europe/russia-putin-gay-clown-memes-internet-extremism-opposition-president-kremlin-a7669486.html> accessed 15 January 2019.

118 Soutik Biswas, ‘Wendy Doniger Hindus Book : Penguin India Defends Recall’ (BBC, 14 February 2014) <https : //bbc.com/news/world-asia-india-26184819> accessed 15 January 2019.

119 Vibhuti Agarwal, ‘Poet Arrested for Durga Case Facebook Post’ (The Wall Street Journal, 7 August 2013) <https : //blogs.wsj.com/indiarealtime/2013/08/07/poet-arrested-for-durga-case-facebook-post/> accessed 15 January 2019.

120 ‘UP Student Jailed for ‘Objectionable’ FB Post against Minister Azam’ (Hindustan Times, 18 May 2015) <https : //hindustantimes.com/india/up-student-jailed-for-objectionable-fb-post-against-minister-azam/story-wpgPOQoU7crkMpupyo7PTP.html> accessed 15 January 2019.

121 Raminder Kaur and William Mazzarella (eds), Censorship in South Asia : Cultural Regulation from Sedition to Seduction (Indiana University Press 2009) 173.

122 CS Adcock, ‘Violence, Passion and the Law : A Brief History of Section 295-A and its Antecedents’ (2016) 84 (2) Journal of American Academy of Religion 337, 345.

123 Jacob Dirnhuber, ‘Nude Selfie Accidentally Posted on Russian Defence Ministry’s Official Instagram Account’ (The Sun, 5 August 2018) <https : //thesun.co.uk/news/6944589/nude-selfie-russian-ministry-defence-instagram-rossiyana-markovskaya/> accessed 15 January 2019.

124 M Kumar, Dictionary of Quotations (APH Publishing 2008) 103.

125 Jarno Hietalahti, ‘Humor and Disobedience : Understanding Controversial Humor’ (2016) 3 (3) Filosofiska Notiser 23, 26.

126 Jackson J Spielvogel, Western Civilization : A Brief History (7th edn, Cengage Learning 2010) 55.

127 State of Maharasthra v. Sangharaj Damodar Rupawate, (2010) 7 SCC 398.

128 Norman Kretzmann, ‘Lex Iniusta Non Est Lex, Laws on Trial in Aquinas’ Court of Conscience’ (1988) 33 (1) The American Journal of Jurisprudence 99, 101.

129 HLA Hart, The Concept of Law (Oxford : The Clarendon Press 1961) 7.

130 Emanuela Carbonara, Francesco Parisi and Georg von Wangenheim, ‘Unjust Laws and Illegal Norms’ (2012) 32 International Review of Law and Economics 285, 286.

131 Subhash Kashinath Mahajan v. State of Maharashtra(2018) 6 SCC 454.

132 ‘Bihar Cabinet Approves Amendments to Liquor Prohibition Law, Diluting Stringent Provisions’ (The New Indian Express, 12 July 2018) <http : //newindianexpress.com/nation/2018/jul/12/bihar-cabinet-approves-amendments-to-liquor-prohibition-law-diluting-stringent-provisions-1841922.html> accessed 15 January 2019.

133 Romila Thapar, ‘Banning Books’ (2014) 13 (3) India Review 283, 283.

134 Rashmi Rajput and Mala Das (eds), ‘Two Women Arrested for Facebook Post on Mumbai Shutdown Granted Bail’ (NDTV, 20 November 2012) <https : //ndtv.com/mumbai-news/two-women-arrested-for-facebook-post-on-mumbai-shutdown-granted-bail-504977> accessed 15 January 2019.

135 ‘Cops Not to File FIR Against Tanmay Bhat’ (Times of India, 16 June 2016) <https : //timesofindia.indiatimes.com/tv/news/hindi/Cops-not-to-file-FIR-against-Tanmay-Bhat/articleshow/52763176.cms> accessed 15 January 2019.

136 Shiromani Gurudwara Prabandhak Committee v. Union of India(1986) 3 SCC 600.

137 Sanskar Marathe (n 287) para 16.

138 Deepa Kharb (n 327) 443.

139 Forest G Robinson, The Cambridge Companion To Mark Twain (Illustrated Cambridge University Press 1995) 229.

140 Evelyn Beatrice Hall, The Friends of Voltaire (first Published 1906, Smith Elder and Co ed, 2008) 199.

Op EdsOP. ED.

  1. Section 13-B of the Hindu Marriage Act, 1955[1] (‘HMA’) states as under:

13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

2. Section 13-B of HMA contemplates two stages. The first stage is of Section 13-B(1) that lays down the essential requirements to be fulfilled by the parties as detailed below:

(i) The petition for divorce must be presented to the District Court;

(ii) The said petition must be presented jointly, by both the parties to a marriage whether such a marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976;

(iii) The parties have been living separately for a period of one year;

(iv) The parties have not been able to live together; and

(v) The parties mutually agreed that the marriage should be dissolved.

3. The second stage is of Section 13-B(2) that relates to the manner in which the court exercises its jurisdiction, provides that both the parties must again appear in the Second Motion before the court. The parties are also required to make a joint motion not less than six months after the date of presentation of the First Motion and not later than 18 months after the said date. The period of waiting ranging from six to eighteen months is intended to give an opportunity to the parties to reflect/renege and if one of the parties does not wish to proceed ahead with the divorce during this period, then divorce cannot be granted. The said principle has been explained by the Supreme Court in  Sureshta Devi v. Om Prakash[2],  as under:

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”

The aforesaid view has been reiterated by the Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar[3].

Thus, the object of the cooling-off period is to safeguard both the parties against a hurried decision if there is otherwise a possibility of their differences being reconciled.

4. Now, the issue arises whether this cooling-off period can be waived in law by either of the parties or not. In Krishna Bahadur v. Purna Theatre[4], the Supreme Court inter alia held that a right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein, discussing the principles of waiver as follows:

“10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.”

5. In Shri Lachoo Mal v. Radhey Shyam[5], the Supreme Court has explained that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.

6. The aforesaid principle of waiver has also been elucidated in Union of India v. Pramod Gupta[6], wherein the Supreme Court has observed as:

“111. It is, therefore, not correct to contend that there cannot be any waiver of the right to claim interest. Statutory provisions are made for payment of interest with a view to compensate a party which had suffered damages owing to a positive action or inaction of the other resulting in blockade of money which he would otherwise have received. A party which itself represents before the court of law that it would not claim interest with a view to obtain an order of stay which would be for its own benefit, in our opinion, could not be permitted to take advantage of its own wrong.”

7. In view of the above, it may be concluded that waiver is ordinarily contractual in nature inasmuch as two parties can enter into a contract in their private capacity and agree that one of them being well aware of its rights, will not assert the said right, for a consideration. However, where the statute prohibits contracting out, then the parties cannot enter into such a contract as it would be opposed to public policy.

8. The Kerala High Court in V. Janardhanan v. N.P. Syamala Kumari[7] , observed that an agreement to dissolve a marriage in derogation of the provisions of the 1955 Act is violative of the public policy of India.

9. The aforementioned cooling-off period cannot be waived off by the parties, as it gives an opportunity to both to reconsider reconciliation. The Supreme Court in Anil Kumar Jain v. Maya Jain[8],  has also held that the period of six months between filing a petition of divorce by mutual consent under Section 13-B(1)  and grant of decree of divorce under Section 13-B(2) of the 1955 Act cannot be waived off by the parties or by any civil court or High Court.

10. However, in Amardeep Singh v. Harveen Kaur[9], the abovementioned cooling-off period of six months has been held to be directory and not mandatory. The Supreme Court also interpreted Section 13-B(2) to be procedural in nature and highlighted that where the marriage has irretrievably broken down, the waiting period can be waived off by the court to enable the parties to rehabilitate themselves and start their lives afresh. It is the underlying object of the said provision that has prevailed on the Supreme Court to hold that where a court is satisfied that a case for waiver of the statutory “cooling period” under Section 13-B(2) of the Act is made out, it may waive the said period in certain circumstances. The above view has been expressed as follows:

“17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off  period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. 

  1. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision.

  1. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the First Motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXII-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the First Motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the Second Motion will be in the discretion of the Court concerned.

  1. Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

Therefore, in Amardeep Singh, the Supreme Court acknowledged the change in public policy by permitting waiver of the statutory period of six months, contemplated in Section 13-B of the Act, with the object of preventing a forcible perpetuation of the status of matrimony between unwilling partners. Thus, the cooling-off period of six months has an element of public policy inbuilt therein, for emphasising the sanctity and importance of sustenance of marriage, as opposed to its dissolution.

11. It is noted that a situation may also arise where despite the undertaking(s) given by the couple or either of them before the court of law in obtaining the settlement, one of the partners unilaterally withdraws the consent earlier given to the petition to be filed under Section 13-B of the Act. As already noted hereinabove, the said party may have a right to renege, more so during the cooling-off period meant for the said purpose, however, whether such a withdrawal of consent contrary to the undertaking given shall make the defaulting party liable for contempt under the relevant law, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13-B(2) of the Act?

12. In this regard, it is pertinent to reproduce the relevant provisions of the Contempt of Courts Act, 1971:

2. Definitions.— In this Act, unless the context otherwise requires, –

a) “contempt of court” means civil contempt or criminal contempt;

b) “civil contempt” means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;..

*                                 *                       *

  1. Power of High Court to punish contempt of subordinate courts.— Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself:

Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.

*                          *                *

  1. Punishment for contempt of court.— Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

Provided that the accused may be discharged or the  punishment awarded may be remitted on apology being made to the satisfaction of the court.

Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

  1. Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
  2. Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
  3. Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:

Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

4. Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.

  1. Contempts not punishable in certain cases.—

Notwithstanding anything contained in any law for the time being in force:

a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;

b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoicing the said defence is bona fide.”

13. In Sudhakar Prasad v. Govt. of A.P.[10], the Supreme Court declared that the powers of contempt are inherent in nature and the provisions of the Constitution only recognise the said pre-existing situation. The relevant observations are reproduced below:

“9. Articles 129 and 215 of the Constitution of India declare Supreme Court and every High Court to be a Court of Record having all the powers of such a court including the power to punish for contempt of itself. These articles do not confer any new jurisdiction or status on the Supreme Court and the High Courts. They merely recognise a pre-existing situation that the Supreme Court and the High Courts are courts of record and by virtue of being courts of record have inherent jurisdiction to punish for contempt of themselves. Such inherent power to punish for contempt is summary. It is not governed or limited by any rules of procedure excepting the principles of natural justice. The jurisdiction contemplated by Articles 129 and 215 is inalienable. It cannot be taken away or whittled down by any legislative enactment subordinate to the Constitution. The provisions of the Contempt of Courts Act, 1971 are in addition to and not in derogation of Articles 129 and 215 of the Constitution. The provisions of the Contempt of Courts Act, 1971 cannot be used for limiting or regulating the exercise of jurisdiction contemplated by the said two articles. 

10…..This Court held that courts of record enjoy power to punish for contempt as a part of their inherent jurisdiction; the existence and availability of such power being essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice (para 12). No Act of Parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt and Parliamen’ts power of legislation on the subject cannot be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts though such a legislation may serve as a guide for their determination of the nature of punishment which a Court of Record may impose in the case of established contempt. Power to investigate and punish for contempt of itself vesting in Supreme Court flows from Articles 129 and 142(2) of the Constitution independent of Section 15 of the Contempt of Courts Act, 1971 (para 21). Section 12 of the Contempt of Courts Act, 1971 provides for the punishment which shall ordinarily be imposed by the High Court in the case of an established contempt. This section does not deal with the powers of the Supreme Court to try or punish a contemnor in committing contempt of the Supreme Court or the courts subordinate to it (paras 28, 29, 37). Though the  inherent power of the High Court under Article 215 has not been impinged upon by the provisions of the Contempt of Courts Act, the Act does provide for the nature and types of punishments which the High Court may award. The High Court cannot create or assume power to inflict a new type of punishment other than the one recognised and accepted by Section 12 of the Contempt of Courts Act, 1971.

Similar observation has also been made by the  Supreme Court in Supreme Court Bar Association v. Union of India[11] .

4. The principle of civil contempt has been dealt with in Ashok Paper Kamgar Union v. Dharam Godha[12], wherein the Supreme Court observed as under:

“17. Section 2(b) of Contempt of Courts Act defines ‘civil contempt’ and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of undertaking given to a Court. ‘Wilful’ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case……”

5. In Balasubramaniyam v. P. Janakaraju[13], the High Court of Karnataka has explained the principle of contempt as follows:

“19. Orders of Courts have to be obeyed unless and until they are set aside in appeal/revision. Alternatively in any proceedings for execution or in a collateral proceedings where an order is sought to be enforced or relied on, it is possible for a party to establish that the order is null and void. Then the Court considering the matter, if satisfied, will hold that the order is null and void and therefore not executable or enforceable. In this case, the order of eviction dated 6-8-1996 has been confirmed by the Revisional Court by order dated 18-11-1996  which in turn has been confirmed by order dated 18-12-1996 of this Court. These orders are not set aside. They have not been declared or held to be null and void in any proceedings. Therefore, the respondents cannot assume for themselves that the undertaking given by them is not valid or that therefore they need not comply with it.

  1. The principles relating to contempt are clear. The definition ‘Civil Contempt’ includes wilful breach of an undertaking given to a Court. Public interest requires that solemn undertakings given to a Court with the intention of obtaining any benefit should not be breached wilfully. No litigant can be allowed to wriggle away from a solemn undertaking given to the Court, as it will open dangerous trends and defeat the very purpose of giving undertakings to Court. While Courts will not be vindictive, Courts cannot also allow themselves to be trifled with by violating the solemn undertakings given to them. Litigants ought to understand that once they give an undertaking to a Court, they should comply with it in all circumstances, the only exceptions being fraud or statutory bar. They cannot break an undertaking with impunity and then attempt to justify it. The breach of solemn undertaking given to a Court is a serious matter and will have to be dealt with seriously. Further, while execution ofa decree is a matter between the decree-holder and the judgment- debtor, an undertaking to a Court is a matter between the Court and the person who gives the undertaking to the Court. The right of a landlord to get his tenant vacated in terms of an order of eviction has nothing to do with the solemn undertaking given by a tenant to the Court to vacate the premises to obtain the benefit of grant of time for vacating the premises. It therefore follows that even if the order of eviction becomes inececutable for any reason, that will not absolve the person giving the undertaking to Court, from acting in terms of it.”

16. Similar principles regarding contempt have been reiterated and reemphasised in several pronouncements, including in Rama Narang v. Ramesh Narang[14] , and Shailesh Dhairyawan v. Mohan Balkrishna Lulla[15].

17. In Shikha Bhatia v. Gaurav Bhatia[16], during the pendency of the petition for anticipatory bail in a FIR registered against him and his parents, the respondent husband entered into an agreement with the petitioner wife to pay a quantified amount to her in full and final satisfaction of all her claims and in consideration thereof, the wife agreed to sign the First Motion for grant of divorce by mutual consent and then the petition under Section 13-B(2) of the Act. The wife also agreed not to object to quashing of the FIR. On refusal of the husband to abide by the undertaking given to the wife over making the payments, she initiated contempt proceedings. The Delhi High Court observed that the husband having taken advantage of the agreement entered into with the wife in terms of the settlement, he could not withdraw the same to her detriment. It was thus held that the husband had wilfully and deliberately disregarded the settlement recorded in court on his own representation and accordingly declared him guilty of contempt.

18. In Avneesh Sood v. Tithi Sood[17], disputes had arisen between the parties after a decade of their marriage and they had executed a Memorandum of Understanding (MoU) agreeing inter alia to seek divorce by mutual consent. As per the terms thereof, the husband had agreed to pay a quantified amount to the wife, in instalments. After execution of the MoU, the parties filed a joint petition for dissolution of marriage by mutual consent under Section 13-B(1) of the Act and incorporated therein the terms and conditions of settlement, which were duly accepted by the court during the First Motion proceedings. Later on, when the wife refused to cooperate with the husband for moving the Second Motion petition under Section 13-B(2) of the Act, he filed a contempt petition against the wife on the ground that she had withdrawn from the undertaking given by her to the court at the time of filing the petition for mutual divorce under Section 13-B(1) of the Act before the Family Court. The Court held the wife guilty of contempt of court for having breached the undertaking given to the learned ADJ in the First Motion divorce proceedings under Section 13-B(1) of the Act and issued a notice to show cause  as to why she should not be punished for contempt of court, particularly when she had derived benefits from the husband in terms of the MoU.

19. In view of the above, it thus follows that the Supreme Court and the High Courts, by virtue of being courts of record, have the inherent jurisdiction to punish for contempt of court. Further, Section 2(b) of the 1971 Act encompasses wilful disobedience to any judgment, decree, direction, order etc. of a court, as well as a wilful breach of an undertaking given to the court. Therefore, even though a party who has given an undertaking to the Court withdraws the same exercising the legal right under Section 13-B of the Act, the said party has nonetheless knowingly by his/her undertaking to the Court wilfully breached the same, thus making the said party guilty of civil contempt of court under the 1971 Act.

10. The Division Bench of the Delhi High Court in Rajat Gupta Rupali Gupta[18] answered the following two questions, besides others, referred to it in the following terms:

Q. 1: Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13-B(1) or a motion under Section 13-B(2) of the 1955 Act or both and has also undertaken to appear before the said Court for obtaining divorce can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13-B(2) of the Act?

Ans.: The distinguishing feature of Section 13-B of the 1955 Act is that it recognises the unqualified and unfettered right of a party to unilaterally withdraw the consent or reconsider/renege from a decision to apply for divorce by mutual consent, notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree, to cooperate with the other spouse to file a petition under Section 13-B(1) or a Second Motion under Section 13-B(2) of the Act, or both. Withdrawal of the consent even at the stage of the enquiry, as contemplated under Section 13-B(2), is also in exercise of the right available to a party under the very same provision. Any other view will not only impinge on the jurisdiction of the court which has an obligation under the statute to undertake an independent enquiry before passing a decree of divorce by mutual consent, it will also encroach upon a statutory right vested in a party under Section 13-B(2) of the Act and go against the very spirit of the provision. However, at the same time, a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree. In the event the aggrieved party approaches the court for initiation of contempt proceedings against the defaulting party for wilful/deliberate breach of any of the terms and conditions of an undertaking/settlement agreement/consent order or a decree and takes a plea that as a consequence thereof, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice, the court in exercise of its inherent powers of contempt, supplemented by the 1971 Act has the requisite jurisdiction to entertain the petition and direct restoration of status quo ante in every possible way. Thus, contempt jurisdiction operates in a different field and is uninfluenced by the fetters imposed on a court under the Act of 1955. The only rider to the above is that no direction can be issued even in contempt proceedings to compel the defaulting party to give its consent for a decree of divorce by mutual consent, as it is opposed to the object, policy and intent of Section 13-B of HMA.

 Q. 2: Whether by undertaking before a Court to file a Second Motion under Section 13-B(2) of the Act, 1955 at Section 13-B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under Section 13-B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13-B(2) of the Act, 1955?

Ans.: Notwithstanding any undertaking given by a party before a court to file a Second Motion under Section13-B(2) or at the Section 13-B(1) stage or in any separate court proceedings, its right to rethink/renege under Section 13-B(2) of the Act, cannot be waived for the reason that such a waiver is proscribed by the statute that keeps a window open for the parties to withdraw their consent at any stage till the decree of divorce is finally granted. The right of withdrawal of consent in the above proceedings can be exercised at any stage and exercise of such a discretion cannot be treated as being opposed to public policy. Any other interpretation given to the aforesaid provision would negate the underlying aim, object and intent of the said provision. Once a party decides to have a second thought and on reflection, backs off, the court concerned cannot compel the defaulting party to give its consent on the basis of an earlier settlement/undertaking.


* Advocate and a qualified Chartered Accountant. Author is currently a Senior Associate in the Dispute Resolution Practice at L&L Partners Law Offices, New Delhi. Author’s views are personal.

[1] The Hindu Marriage Act, 1955

[2] (1991) 2 SCC 25

[3] (2011) 5 SCC 234

[4] (2004) 8 SCC 229 

[5] (1971) 1 SCC 619

[6] (2005) 12 SCC 1

[7] 1990 SCC OnLine Ker 13 

[8] (2009) 10 SCC 415

[9] (2017) 8 SCC 746

[10] (2001) 1 SCC 516

[11] (1998) 4 SCC 409  

[12] (2003) 11 SCC 1

[13] 2004 SCC OnLine Kar 226

[14] (2006) 11 SCC 114

[15] (2016) 3 SCC 619

[16] 2010 SCC OnLine Del 1962

[17] 2012 SCC OnLine Del 2445

[18] 2018 SCC OnLine Del 9005

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal (CAT): A Division Bench of Justice L. Narasimha Reddy (Chairman) and A.K. Bishnoi (Administrative Member) took Suo Motu cognizance of the behaviour of an Advocate who made attempts to hoodwink the tribunal.

Background

Sanjiv Chaturvedi an IFS officer of Uttarakhand Cadre was on deputation to the All India Institute of Medical Sciences (AIIMS) Delhi for some period who filed different Applications with regard to recording of ACRs and was represented by Mehmood Paracha, Advocate.

On completion of his deputation, he was repatriated to his parent cadre.

Advocate stated that the Supreme Court dismissed the SLP filed by the AIIMS, by imposing the cost of Rs 25,000. He was also informed that the adjudication before the Uttarakhand High Court and the Supreme Court was only about the power of the Chairman under Section 25 of the Administrative Tribunals Act, 1985 to stay the proceedings while dealing with an application for transfer and that issue no longer subsists, with the adjudication by the Courts.

Sanjiv Chaturvedi was flamboyant in his approach and was in fact exhibiting triumphalism in getting the order of stay passed in the transfer petition, set aside.

Adjournment | Contempt of Court

Further, the applicant i.e. Sanjiv Chaturvedi was also informed that he can argue the PTs themselves so that the issue can be given a quietus. That did not appeal to him and he went on almost browbeating the Chairman and trying to explain as to how the Tribunal should function.

At that stage, he was informed that his conduct before the Tribunal touched the border of the Contempt of Court and it is for him to choose the course of action. Thereupon, he sought adjournment.

Counsel for the respondent, Mehmood Pracha, stated that the Supreme Court dismissed the SLP filed by the AIIMS. Taking note of the said fact, he was asked to proceed with the PTs and advance the arguments which did not appeal to him.

Humiliation

Instead, Counsel Mehmood Parcha who is the respondent in the present matter, started humiliating the other side’s counsel saying that the Supreme Court has shown them their place by the imposition of Rs 25,000 costs and hence they have no right to plead before the Tribunal.

Browbeating the Chairman | Personal attack on Chairman

He created an unfortunate situation in the Court and was browbeating the Chairman through his gestures and dramatics. Seeing that his provocation was not yielding the expected results, Advocate went on to make a personal attack on the Chairman.

Further, he went on to say that he has a lot to be said about the Chairman and the proceedings should be held in camera.

Scandalising the Chairman

He was informed that he can say in the open Court whatever he intends and if that is not done, it would amount to scandalizing the Chairman. His behaviour continued in the same manner and he did not reveal anything.

The Court was full of Advocates of different standings and repeated requests were made by them to pacify the respondent but nothing affected him.

Section 25 of the Administrative Tribunals Act

It was also informed that the PTs are heard only the Chairman under Section 25 of the Act and if he i.e. the Advocate has any other suggestion, he could make it.

Yet, he continued his tirade.

In view of the above occurrence, Advocate was sent a notice requiring him to explain as to why contempt proceedings should not be initiated against him.

Delhi High Court took up the matter of contempt and referring to the Supreme Court decision in T. Sudhakar Prasad v. Government of Andhra Pradesh (2001) 1 SCC 516, and held that the tribunal alone has jurisdiction to hear and decide the contempt case.

The Supreme Court affirmed order in the contempt matter by rejecting SLP (Crl) No. 7850 of 2019 after the draft charge as provided by the Contempt of Courts (CAT) Rules, 1992 were framed on 19-07-2019 on the basis of the remarks and statements made by the respondent herein, in his capacity as an Advocate.

The respondent filed MA. No. 2471/2019 with three prayers viz., (i) to decide certain MAs filed in PT. No. 288/2017; (ii) to decide whether the Chairman has jurisdiction to hear the contempt case; and (iii) to pass orders in respect of draft charge dated 19-07-2019. The MAs were disposed of on 02-08-2019.

Vikramjit Banerjee, Additional Solicitor General appeared to assist the Tribunal.

Decision

Tribunal expressed that the matter falls under Rule 13(b) of the Contempt of Courts (CAT) Rules, 1992.

Criminal Contempt

Solicitor General, Vikramjit Banerjee, stated that even where an Advocate becomes emotional, during the course of hearing, there is a method of setting the things right and persistent behaviour of challenging the very authority of the Tribunal or attempting to denigrate the Chairman would clearly amount to criminal contempt.

To the suggestion made by the learned Additional Solicitor General that the matter can be given a quietus in case the respondent expresses regrets, the latter stated that he will stand by whatever he said in the Tribunal and during the course of proceedings and that there is no question of expressing regrets.

It is not uncommon that a party or his counsel whose view point is not being accepted by the Court gets agitated. Howsoever strong such feeling may be, they have to stop at a particular stage, even while making effort to drive home, their point.

Upholding the dignity of the Institution

Attacking an adjudicator or attributing motives would cut at the very root of the system.

Once the dignity and status of the Institution are compromised, it loses its relevance. The concept of Contempt of Court is evolved inter alia to protect the dignity of the Institution.

Further, the bench stated that in all respects, result in the PTs was poised in favour of the applicant himself. However, what is discerned from the beginning is that his effort was to exhibit the IFS Officer’s personality than to get the relief in accordance with the law.

Tone & Tenor of pleas

The tone and tenor of the pleas are such that the target was certainly highly placed officers and authorities. In an application for transfer, all the above-stated was totally irrelevant.

The matter reached its pinnacle when in the Open Court counsel said that the proceedings be heard in the Chamber because he has to say something about the Chairman.

Though when he was asked to say whatever he wanted to in the Open Court, he went beating around the bush and did not spell out anything.

Hoodwinked the Tribunal

Counsel and his client have hoodwinked the Tribunal at every stage and in all possible manners.

Soon after the contempt notice was issued, a contempt case was filed against the Chairman, in the Uttarakhand High Court. A Single Judge bench entertaining it issued notice. The Supreme Court stayed it.

Tribunal noted that, the attempt in the present case made to add to the personality of the applicant and his counsel and for that purpose, Tribunal became an easy target.

Further, the bench stated that it may take decades of dedicated service for an officer to be recognised for his efficiency or honesty.

For a hardworking Advocate, it would take quite some time to get recognition or fame. Unfortunately, recourse is taken by some, to short cuts, without realising that the one who prefers short cuts is bound to be cut short.The only unfortunate part of it is that severe damage is done to the Institutions, in the meanwhile

In view of the above, the tribunal held the counsel i.e. respondent herein to be guilty of Contempt of Court under Section 14 of the Contempt of Court Act, 1971.

However, there would have been every justification for the tribunal, to impose the sentence, proportionate to the acts of contempt held proved against the respondent.

However, by treating this as a first instance, he has been let off with a severe warning to the effect that if he repeats such acts in future in the Tribunal, the finding that he is guilty of Contempt of Court, in this case, shall be treated as one of the factors in the proceedings, if any, that may ensue. [Tribunal on its own motion v. Mehmood Pracha, Cr. CP No. 290 of 2019, decided on 23-09-2020]

Case BriefsHigh Courts

Bombay High Court: A.S. Kilor, J., held that contravention of the provision of Section 15 of the Hindu Marriage Act, 1955 does not amount to willful disobedience of ‘other process of a Court’ under the provisions of the Contempt of Court Act, 1971.

Willful Disobedience

The petitioner sought action under Section 12(3) of the Contempt of Court Act, 1971 against the respondent for alleged willful disobedience of ‘other process of a Court’ by performing marriage in contravention of the provision of Section 15 of the Hindu Marriage Act, 1955.

Facts 

Respondent preferred a petition under Section 13 of the Act, 1955 against the petitioner for dissolution of marriage on the ground of cruelty and desertion.

Civil Judge had dismissed the petition holding that the respondent failed to prove cruelty and desertion.

Decree of Divorce

The respondent questioned the Judgment and decree which was allowed and thereby declared the marriage between the petitioner and respondent stands dissolved by a decree of divorce.

Petitioner filed the second appeal which is pending before the Court.

While the appeal was in pendency, the contempt petition had been filed alleging that the respondent had performed second marriage in contravention of the mandate of the provision of Section 15 of the Act, 1995 which is willful disobedience of ‘other process of a Court’ as provided by Section 1(b) of the Act, 1971.

Counsel for the petitioner, T.G. Bansod and S.S. Jagtap Counsel for the respondent.

Bench considered the following questions:

“(i) Whether the performance of second marriage by the respondent on 20-03-2016 during the pendency of appeal is unlawful in view of prohibition stipulated under Section 15 of the Act, 1955, and if yes ?

(ii) Whether contravention of Section 15 of the Act, 1955 amounts to willful disobedience of ‘other process of a Court’ as provided in Section 2(b) of the Act of 1971 ?”

Court referred to Section 15 of the Hindu Marriage Act, 1955, which reads as follows:

“Divorced persons when may marry again — When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

High Court noted that the respondent ignored the prohibition and performed the second marriage under an incapacity to marry, stipulated under Section 15 of the Act, 1955.

Ejusdem Generis

Further, to find out the import of the expression ‘other process of a court’ which is a general term, the principle of Ejusdem Generis would be helpful to apply, in the present matter.

Civil Contempt — Section 2(b) of the Contempt Act, 1971

“Civil contempt means willful disobedience to any judgments, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court.”

The expression ‘willful disobedience of process of a Court’ used under Section 2 (b) of the Act, 1971, must also be related to the disobedience of some command issued by the Court during the process of a Court which includes various stages between the filing of any proceeding to a final decision by the Court.

Bench stated that at any stretch of imagination it cannot be said that contravention of the provision of Section 15, amounts to willful disobedience of ‘other process of a Court’ under the provisions of the Act, 1971.

High Court in view of the above held that during the pendency of the appeal, the performance of second marriage would be a breach of prohibition stipulated under Section 15 of the Act, 1955, but in any case, it would not amount to disobedience of any command of the Court consequently such act would not fall within the ambit of the expression ‘willful disobedience of other process of a Court’ under Clause (b) of Section 2 of the Act, 1971.

No Civil Contempt

In view of the observations laid above, Court stated that the second marriage performed by the respondent in contravention of Section 15 of the Act, 1955 would not fall within the purview of clause (b) of Section 2 of the Act, 1971 and hence no civil contempt has been committed.

Accordingly, the contempt petition was dismissed. [Kanchan v. Prashant Manikrao Bagade, 2020 SCC OnLine Bom 911, decided on 08-09-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., held that there may not be an actual interference with the course of administration of justice but it is enough if the offending publishing or act is likely or tends in any way to interfere with the administration of law.

Contempt Proceedings

Suo Motu contempt proceedings were initiated under Article 215 of the Constitution of India read with Section 15 of the Contempt of Courts Act, 1971 where this Court issued a notice under Section 17 of the Contempt of Courts Act to respondents/alleged contemner.

Since every case of criminal contempt under Section 15 is required to be heard and determined by the bench of not less than two judges which is as per Section 18 of the said Act, the matter was placed before the Chief Justice and the same has been placed before this Court by way of a roster.

Factual Matrix

Contemner-Respondent 1 filed an anticipatory bail under Section 438 of the Code of Criminal Procedure for the offences punishable under Sections 143, 145, 332, 504, 186, 147, 153, 269 of the Penal Code and Section 13(1) of the Gujarat Epidemic Disease-19 Regulations, 2020 and Section 3 of the Epidemic Diseases Act, 1897.

On 22-06-2020, a phone call was received by the Judge on her official mobile phone from a person who introduced himself as Niranjan Patel, MLA.

Phone Call

Further, the person inquired as to why he made a phone call, he said there was one criminal case listed before the Court on that day and the Judge immediately stopped him from talking further and clearly told him that he should not have called a Presiding Judge in the manner it was done and disconnected the phone.

The said person called thrice but the Judge did not answer the calls and laters it was noticed that the number belongs to Taufik Faiz Xerox having Vodafone number.

Bench was of the opinion that,

“…it was an act meant to prejudice or interfere with due course of Judicial proceeding, or an act which interfered or tended to interfere with the administration of Justice which would amount to criminal contempt with the meaning of Section 2(c) of Contempt of Courts Act, 1974.”

However, to ascertain as to who in fact was in the custody of the mobile phone number at those hours and who had called and sent the messages, the Superintendent of Police was directed to record the statement of Niranjan Patel, MLA and Tosif Vohra.

Malicious

Niranjan Patel indicated that he had no family relations with respondent 1. With regard to the call in question, he stated that he never had made any such call nor would he ever think to make any such call on behalf of anyone. His name is dragged maliciously.

Decision

In the present matter, on perusal of the submissions, High Court stated that the apology as may be tendered by the parties, the alleged contemners shall need to be regarded by the Court, where it is also to regard as to whether the apology tendered is at the first point of time without attempting to justify the actions and creating the defence or is it being used as an escape route.

Court also needs to regard, “Whether the same is in a case which has been committed the first time.”

The law is also clear that it is not necessary for the Court to accept such an apology, even if found to be unconditional and unqualified when the parameter of genuineness is not found satisfying.

Administration of Law

Further, the Court added that what is also required to be considered is that there may not be an actual interference with the course of administration of justice but it is enough if the offending publishing or act is likely or tends in any way to interfere with the administration of law.

If the Act if is so derogatory to the very dignity of the justice delivery system so as to undermine the confidence of the people, Court would not choose to overlook such a serious dimension.

Even an apology which is conditional but inspiring confidence, being full of contrition and remorse and which is also meant to be sincere, demonstrating clearly that the person concerned has out of repentance and remorse tendered the same and is not a design or manner to overreach the process, can also be accepted.

Section 12 of the Contempt of Court provides for the punishment of contempt.

Supreme Court’s decision in Bal Kishan Giri v. State of U.P., (2014) 7 SCC 280 considered as to when can an apology be considered, where the following was held:

”…apology cannot be a defence, justification or calculated strategy to avoid punishment for an act which tantamount to contempt of court, and is not to be accepted as a matter of course. However, apology can be accepted where conduct for which apology given is such that it can be ignored without compromising dignity of court, or evidences real contrition, and is sincere. Apology cannot be accepted where it is hollow, there is no remorse, no regret, no repentance, or if it is only a device to escape rigour of law that is it is merely paper apology.” On facts, it had been held that the High Court was justified in not accepting apology which was not bonafide.“ It also held that casting of bald, oblique unsubstantiated aspersions not only causes agony and anguish to judges concerned but also shakes confidence of public in judiciary.”

Decision rendered in case of Vishram Singh Raghubanshi v. State of U.P., (2011) 7 SCC 776  also reiterated that not necessarily, apology even if unconditional and unqualified needs acceptance.

Apart from being bonafide, if the conduct is serious which has caused damage to the dignity of the institution, the same need not be accepted.

High Court stated that when the conduct of both alleged respondent 1 and 2 are considered, it can be noticed that both tendered apology which they insisted to be unconditional and unqualified and at the first given opportunity.

Compromising with the dignity of the institution

Present case being an extremely gross case where there is a direct attempt to contact the Presiding Judge of the Court with a clear design to obtain an order in favour of the respondent 1 by camouflage and all possible efforts have been made to interfere with the administration of justice, even if the apology is termed as a qualified and unconditional, accepting the same would amount to compromising with the dignity of the institution.

Prima facie, it appears that with an intent to get the order in his favour, he had hired alleged contemner 2 who in his opinion was having all resources and was having more contact and he made arrangement in his meeting to get the number of Judge.

Apology

It is a very serious case and, in a time, where many litigants harbour a notion to win over and manoeuvre anything and everything by adopting even extra-legal means and whose only goal is the end result which they desire, regardless of the means adopted, the Court is of the clear opinion that acceptance of apology would vindicate such notion that one can get away with any outrageous conduct by merely tendering an apology.

It appears largely a design to procure liberty by an ill design and unpalatable means of contacting the sitting Judge of this Court right on the day when the matter is scheduled to get the order by hook or crook and the means adopted, as can be noticed, prima facie are such which would shake the edifice if permitted to go scot-free.

The glaring facts of the instant case would not permit this Court to accept the apology and discharge the notice as requested by the Counsels appearing for the parties as the Court cannot overlook the vital and fundamental aspect that such acceptance can mean this Court compromising the dignity of the institution and interference with the administration of justice.

Hence, Court is not persuaded in the totality of facts and circumstances, to accept such apology so tendered. [Suo Motu v. Vijay Arvindbhai Shah, 2020 SCC OnLine Guj 1274, decided on 31-08-2020]

Case BriefsSupreme Court

Supreme Court: In the case where the Supreme Court Registry refused to register the application seeking recall of the order dated 04.05.2020 by which the Court sentenced advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan  to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-, the bench of L/ Nageswara Rao and Aniruddha Bose, JJ dismissed the appeal and imposed an exemplary cost of Rs. 25, 000 on advocate Rashid Khan. While doing so the Court said,

“If the Appellant continues to file such repetitive applications in this litigation which are not maintainable, he will be visited with deterrent actions referred above such as initiation of criminal contempt proceedings or a direction to the Registry that no further applications in this litigation will be received.”

The bench of Deepak Gupta and Aniruddha Bose, JJ had on, 27.04.2020, found the 3 advocates guilty of contempt of court in the light of scandalous allegations levelled by them against Justice RF Nariman and Justice Vineet Saran.

“In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice.”

It is worth noting that earlier an application was filed by the contemnors seeking recall of the judgment dated 27.04.2020. This Court was, however, of the opinion that the recall applications were not maintainable and the only proper remedy available to the contemnors is to file a Review Petition.

Hence, calling the present application an abuse of process of court, the bench said,

“The application for recall of an order by which an earlier application for recall of the judgment was dismissed is not maintainable. The only remedy open to the Appellant was to have filed a Review Petition as suggested by this Court in the order dated 04.05.2020.”

The Court held that the order dated 04.05.2020 neither suffered from the vice of lack of jurisdiction nor did it violate the principles of natural justice.

“A perusal of the order dated 04.05.2020 discloses that the Appellant and the other contemnors were heard before the applications were dismissed. Therefore, the contention of the Appellant is without any substance.”

Background of the Contempt proceedings

The basis of the contempt proceedings was two letters dated 20.03.2019 and 19.03.2019 received by Chief Justice of India Ranjan Gogoi and other judges of the Court, admittedly signed by Vijay Kurle (State President of Maharashtra and Goa of the Indian Bar Association) and Rashid Khan Pathan (National Secretary of the Human Right Security Council) respectively. The Court had already discharged Mathews Nedumpara last year in September, after he denied any role in sending those complaints.

It is pertinent to note that the bench of RF Nariman and Vineet Saran, JJ had barred Nedumpara from practicing as an advocate in the Supreme Court for one year, after he had argued before the Court during a proceeding :

“Judges of the Court are wholly unfit to designate persons as Senior Advocates, as they only designate Judges’ relatives as Senior Advocates.”

He was referring to the judgment where with the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.

He also took the name of Senior Advocate Fali S. Nariman. When cautioned by the Court, he took his name again. Thereafter, on being questioned by the Court as to what the relevance of taking the name of Fali S. Nariman was, he promptly denied having done so.

In it’s order dated 27.04.2020, the Court found all 3 advocates guilty of contempt and said,

 “When we read both the complaints together it is obvious that the alleged contemnors are fighting a proxy battle for Shri Nedumpara. They are raking up certain issues which could have been raised only by Shri Nedumpara and not by the alleged contemnors.”

On 04.05.2020, the Court sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days.

All 3 of the advocates were not willing to argue on sentence on the ground that according to them the judgment was per incuriam and they had a right to challenge the same. The Court, hence, noticed that there was not an iota of remorse or any semblance of apology on behalf of the contemnors.

[In re Vijay Kurle, 2020 SCC OnLine SC 711, decided on 03.09.2020]


ALSO READ

Scandalous allegations against SC judges| All 3 advocates to undergo 3 months simple imprisonment with a fine of Rs. 2000

Scandalous allegations against SC judges: SC finds all 3 advocates guilty of contempt

Fact ChecksNews

Screenshots of a tweet by a journalist has been doing the rounds on social media that the Supreme Court Bar Association headed by president Dushyant Dave has passed a resolution not to give farewell to Arun Mishra, J. when he retires on September 2. Along with the screenshot of the tweet, a pdf titled ‘Proposed Resolution of SCBA’ is also circulating. The pdf states that the executive committee of the Supreme Court Bar Association has resolved not to hold any farewell for Justice Mishra upon his retirement. Two points have been mentioned in the pdf which state that he was extremely unpleasant to the members of the Bar and have misbehaved with him on several occasions and that all important matters of the government where assigned to him, and  therefore other judges were relegated to an inferior position. The note ends with the statement that Justice Mishra had caused immense damage to the Supreme Court as an institution and that the Bar registers its protest by not giving any farewell to Justice Mishra. The points can be read in detail in the pdf image given below. 

Now let us test the veracity of the claims in the pdf. We checked the official website of the Supreme Court Bar Association and found that there is a notification published there which states that circulating pdf with respect to the statement tissued by the Executive Committee of the Supreme Court Bar Association on the issue of Farewell to Hon’ble Mr. Justice Arun Mishra on his retirement next month is false. The  notification further states that no such statement had been issued by the Executive Committee and that in fact this matter had not been considered by the EC in any meeting. The Press release being attributed to the EC was not genuine and is strongly denied by Mr Dave on behalf of the EC. Mr Dave strongly condemned the same as being mischievous and an attempt to malign the SCBA. 

The notification uploaded on the SCBA website can be seen below:

Therefore, we can safely say that the circulating message is false and no resolution has been passed by the SCBA to not give a farewell to Justice Mishra.

Case BriefsSupreme Court

Supreme Court: After finding advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan guilty of levelling scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ has sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days.

However, keeping in view the COVID-19 pandemic and the lockdown conditions, the Court directed that the sentence shall come into force after 16 weeks from the date of the order

“when the contemnors should surrender before the Secretary General of this Court to undergo the imprisonment. Otherwise, warrants for their arrest shall be issued.”

All 3 of the advocates were not willing to argue on sentence on the ground that according to them the judgment was per incuriam and they had a right to challenge the same. The Court, hence, noticed that there was not an iota of remorse or any semblance of apology on behalf of the contemnors. The Court, hence, said,

“Since they have not argued on sentence, we have to decide the sentence without assistance of the contemnors. In view of the scurrilous and scandalous allegations levelled against the judges of this Court and no remorse being shown by any of the contemnors we are of the considered view that they cannot be let off leniently.”

Background of the Contempt proceedings

The basis of the contempt proceedings was two letters dated 20.03.2019 and 19.03.2019 received by Chief Justice of India Ranjan Gogoi and other judges of the Court, admittedly signed by Vijay Kurle (State President ofMaharashtra and Goa of the Indian Bar Association) and Rashid Khan Pathan (National Secretary of the Human Right Security Council), respectively. The Court had already discharged Mathews Nedumpara last year in September, after he denied any role in sending those complaints.

It is pertinent to note that the bench of RF Nariman and Vineet Saran, JJ had barred Nedumpara from practicing as an advocate in the Supreme Court for one year, after he had argued before the Court during a proceeding :

“Judges of the Court are wholly unfit to designate persons as Senior Advocates, as they only designate Judges’ relatives as Senior Advocates.”

He was referring to the judgment where with the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.

He also took the name of Senior Advocate Fali S. Nariman. When cautioned by the Court, he took his name again. Thereafter, on being questioned by the Court as to what the relevance of taking the name of Fali S. Nariman was, he promptly denied having done so.

Ruling on guilt

On April 27, 2020, in In re: Vijay Kurle, 2020 SCC OnLine SC 407, the Court held found all 3 advocates guilty of contempt and had said,

“The allegations are also scurrilous and scandalous and such allegations cannot be permitted to be made against the Judges of highest Court of the country.”

Holding both the complaints as ex­facie contemptuous wherein highly scurrilous and scandalous allegations have been levelled against the two judges of this Court, the Court said that though the   alleged contemnors claim that they are not expressing any solidarity with Mathews Nedumpara nor do they have anything personal against Justice R.F. Nariman, the entire reading of the complaints shows a totally different picture.

“When we read both the complaints together it is obvious that the alleged contemnors are fighting a proxy battle for Shri Nedumpara. They are raking up certain issues which could have been raised only by Shri Nedumpara and not by the alleged contemnors.”

[In re: Vijay Kurle, INTERIM APPLICATION NOS. 48502, 48483, 48482 & 48484 OF 2020, decided on 04.05.2020]

 

Case BriefsSupreme Court

Supreme Court:

In the suo motu contempt proceedings initiated against advocates Vijay Kurle, Rashid Khan Pathan, Nilesh Ojha and Mathews Nedumpara for scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ has held Vijay Kurle, Rashid Khan Pathan and Nilesh Ojha guilty of contempt and has listed the matter 01.05.2020 for hearing the issue of sentence, through video conferencing.

Background of the Contempt proceedings

The basis of the contempt proceedings was two letters dated 20.03.2019 and 19.03.2019 received by Chief Justice of India Ranjan Gogoi and other judges of the Court, admittedly signed by Vijay Kurle (State President ofMaharashtra and Goa of the Indian Bar Association) and Rashid Khan Pathan (National Secretary of the Human Right Security Council) respectively. The Court had already discharged Mathews Nedumpara last year in September, after he denied any role in sending those complaints.

It is pertinent to note that the bench of RF Nariman and Vineet Saran, JJ had barred Nedumpara from practicing as an advocate in the Supreme Court for one year, after he had argued before the Court during a proceeding :

“Judges of the Court are wholly unfit to designate persons as Senior Advocates, as they only designate Judges’ relatives as Senior Advocates.”

He was referring to the judgment where with the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.

He also took the name of Senior Advocate Fali S. Nariman. When cautioned by the Court, he took his name again. Thereafter, on being questioned by the Court as to what the relevance of taking the name of Fali S. Nariman was, he promptly denied having done so.

Issues raised by the contemnors in 2 very lengthy letters running into more than 250 pages combined:

  • That the Bench of Justice R. F. Nariman and Justice Vineet Saran could not have taken cognizance of the case because the case was not assigned to them by the Chief Justice and that both the Judges acted as Judge in their own cause.
  • That the Bench has not suo motu taken notice of the contempt and therefore the Registry cannot treat it as a suo motu petition.
  • That even in suo motu contempt proceedings the consent of the Attorney General is necessary.
  • That the proper procedure of framing a charge is not followed because the defects at the initial stage cannot be cured by later orders/developments.
  • That the Judges were bound to disclose the source of information.

Some of the excerpts from the letters as highlighted by the Court in the judgment:

  • “The only irresistible conclusion that can be drawn is that there were no malafides on the part of Advocate Nedumpara and if it were put in notice calling explanation in open Court then  would have exposed Justice Nariman in front of advocates and public and that’s why a very strange and different method is adopted by Justice Nariman by pronouncing conviction of advocate.”

  • “misused his power to use material outside the court record and received by personal knowledge without disclosing its source”

  • “The malafides of Justice Rohington Fali Nariman are writ large as can be seen from the fact that the materials relied by him in para 3,4,5,6,7,8 are totally the personal work of Justice Rohington Nariman and as can be easily inferred. It is clear that the most of the material supplied is from Justice S.J. Kathawala of Bombay High Court who in turn is Rohington’s close and rival of Adv. Nedumpara.”

Ruling on contempt

On proxy battle being fought for Advocate Nedumpara

Holding both the complaints as ex­facie contemptuous wherein highly scurrilous and scandalous allegations have been levelled against the two judges of this Court, the Court said that though the   alleged contemnors claim that they are not expressing any solidarity with Mathews Nedumpara nor do they have anything personal against Justice R.F. Nariman, the entire reading of the complaints shows a totally different picture.

“When we read both the complaints together it is obvious that the alleged contemnors are fighting a proxy battle for Shri Nedumpara. They are raking up certain issues which could have been raised only by Shri Nedumpara and not by the alleged contemnors.”

The Court noticed that even if the contemnors wanted to criticise the judgment on the ground of misuse of power, they could have used temperate language.

On the allegations that the material relied upon by Justice Nariman was supplied by Justice Kathawala

The Court noticed that the contemnor failed to prove the same and in fact, a perusal of the material shows that the materials relied upon were a matter of public record and were part of orders passed in cases that Shri Nedumpara appeared in or part of petitions filed by Shri Nedumpara himself. There is not an iota of evidence on record to show that Justice Kathawala is close to Justice Nariman. The contemnor also failed to prove that  Justice Kathawala is a rival of Shri Nedumpara.

“Justice Nariman in his judgment has relied upon the orders passed by the Bombay High Court in various cases. These are all public documents and we fail to understand how the alleged contemnors assumed that these documents were supplied by Justice Kathawala.”

On right to criticise the judgment of Supreme Court

The Court said that

“no doubt, any citizen can comment or criticise the judgment of this Court.  However, that citizen must have some standing or knowledge before challenging the ability, capability, knowledge, honesty, integrity, and impartiality of a Judge of the highest court of the land.”

The Court, however, failed to understand how a person who has mere 7 years of experience at bar with unknown professional credentials, someone who has failed to check the spelling of the name of the judge he claims to have no knowledge of law, can adorn the robes of a Judge to pass judgment on the Judges of the highest court.

On defence of truth

Truth as a defence is available to any person charged with contempt of Court. However, ongoing through all the written arguments and the pleadings, other than saying that the Judges had misinterpreted the judgments of this Court or had ignored them or that Justice R.F. Nariman was biased, there is no material placed on record to support this defence.

“The allegations are also scurrilous and scandalous and such allegations cannot be permitted to be made against the Judges of highest Court of the country.”

[In re: Vijay Kurle, 2020 SCC OnLine SC 407 , decided on 27.04.2020]

Hot Off The PressNews

Supreme Court: Holding advocate Mathew Nedumpara guilty of contempt, the bench of RF Nariman and Vineet Saran, JJ has barred Nedumpara from practicing as an advocate in the Supreme Court for one year.

The Court had also sentenced Nedumpara to three months in jail, it, however,  suspended the sentence taking note of the unconditional apology tendered by him as also his undertaking that he will never attempt to browbeat any judge either in the Supreme Court or the Bombay High Court.

The bench, meanwhile, issued a fresh contempt notice to Nedumpara and three others for scandalous allegations against both the judges of the bench.

Noticing that serious allegations have been levelled against both the members of the bench in a letter which was received by Chief Justice of India Ranjan Gogoi and other judges of the Court, the Bench requested the CJI to constitute an appropriate bench to hear the fresh contempt issue saying scandalous allegations have been levelled against both the members of the present bench.

The Court had, on March 12, issued notice to Nedumpara after he had argued before the Court:

“Judges of the Court are wholly unfit to designate persons as Senior Advocates, as they only designate Judges’ relatives as Senior Advocates.”

He also took the name of Senior Advocate Fali S. Nariman. When cautioned by the Court, he took his name again. Thereafter, on being questioned by the Court as to what the relevance of taking the name of Fali S. Nariman was, he promptly denied having done so. However, when others present in Court confirmed having heard him take the Senior Advocate’s name, he attempted to justify the same, but failed to offer any adequate explanation.

Considering that Justice Nariman is the son of Senior Advocate Fali S. Nariman, the Court said that:

“the only reason for taking the learned Senior Advocate’s name, without there being any relevance to his name in the present case, is to browbeat the Court and embarrass one of us.”

The Court also took note of various other orders that showed that it was not the first time that Nedumpara has attempted to browbeat and insult Judges of the Court. The Court said:

“In point of fact, the style of this particular advocate is to go on arguing, quoting Latin maxims, and when he finds that the Court is not with him, starts becoming abusive.”

Holding Nedumpara guilty of contempt, the Court directed that the judgment is to be circulated to the Chief Justice of every High Court in this country, the Bar Council of India, and the Bar Council of Kerala.

The contempt order was issued during the hearing of a Writ Petition that sought a second review of the judgment in Indira Jaising v. Supreme Court of India through Secretary General, (2017) 9 SCC 766. On the said petition, the Court said:

“Even otherwise, it is settled law that an Article 32 petition does not lie against the judgment of this Court. We are also of the view that Section 16(2) of the Advocates Act, 1961 is a provision which cannot be said to be unconstitutional and the designation of Senior Advocate cannot be as a matter of bounty or as a matter of right.”


Also read the guidelines issued by the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India

Hot Off The PressNews

Supreme Court: The Court has stayed the Meghalaya High Court judgment holding The Shillong Times editor Patricia Mukhim and publisher Shoba Chaudhuri guilty of contempt. The High Court had also imposed a fine of Rs. 2 lakhs each on both the contemnors.

Backdrop

The Government of Meghalaya decided to withdraw the protocol services provided to retired Judges and their family members without consulting the High Court. The Chief Justice convened a meeting of Government Officers concerned wherein they were asked to immediately restore the protocol services to retired Judges and their family members. However, no action was taken for 2 months and consequently, a suo motu proceeding was endorsed to the Court to take up the matter. Notice was issued but since the Government remained silent, the Court passed the necessary order ordering the Government to comply with its directions within a month. This order is at heart of the controversy. Report, dated 10-12-2018, captioned “When Judges judge for themselves” were published in Shillong Times, an English daily newspaper. Referring to the aforementioned order, the Report stated,

Justice SR Sen, who is set to retire in March, wanted several facilities for the retired chief justice and judges, their spouses and children“.

Furthermore, Patricia Mukhim took the help of social media where, according to the Court, she even went to extent of mocking judicial system of this country and passed certain remarks against the Amicus Curiae which, according to the Court, insulted members of the Bar.

Meghalaya High Court Judgment

Exercising power under Article 215, the Court sentenced the contemnors to sit in the corner of the Courtroom till rising of the Court. A fine of Rs 2 lakhs each was also imposed which was to be deposited with the Registry within a week. Further, “in default of payment, both the contemnors will have to undergo 6(six) months simple imprisonment and the paper so-called ‘Shillong Times’ will automatically come to an end (banned)”

The furious Court said:

“We would like to ask whether the contemnor, Patricia Mukhim wants to control the judiciary as per her desire and will? If it is so, she is very much wrong”. 

The Bench of Mohammad Yaqoob Mir, CJ and S.R. Sen, J, further said:

“The sacred duty of the media is to publish correct news, so that the actual fact reaches the people. They are not at all entitled to write as they like and slur the image of an individual or institution. The contemnors here must remember that though, they have the right to publish news and sell their papers, but it is limited, subject to their duties. They are not supposed to file any report without understanding the background of the case or verifying the truth. Only true news should be published not the false report and if anybody violates, they are liable for defamation and contempt of Courts”.

Statement Issued by Editors Guild of India

Deeply distressed over the Meghalaya High Court judgment, the Editor’s Guild of India issued a Statement where it urged the judiciary to exercise its constitutional powers with utmost caution and care so that the role of a free media in a democracy is duly respected. It said:

“It is ironical that the judiciary which should uphold press freedom has instead issued an order that militates against freedom of expression.”

Case BriefsSupreme Court

Supreme Court: Holding advocate Mathew Nedumpara guilty of contempt, the bench of RF Nariman and Vineet Saran, JJ has issued notice to Nedumpara as to the punishment to be imposed upon him for committing contempt in the face of the Court. Notice returnable within two weeks from today. The Court said that the conduct of this kind deserves punishment which is severe and though it could have punished Nedumpara by this order itself, it was issuing notice in the interest of justice.

Nedumpara had argued before the Court:

“Judges of the Court are wholly unfit to designate persons as Senior Advocates, as they only designate Judges’ relatives as Senior Advocates.”

He also took the name of Senior Advocate Fali S. Nariman. When cautioned by the Court, he took his name again. Thereafter, on being questioned by the Court as to what the relevance of taking the name of Fali S. Nariman was, he promptly denied having done so. However, when others present in Court confirmed having heard him take the Senior Advocate’s name, he attempted to justify the same, but failed to offer any adequate explanation

Considering that Justice Nariman is the son of Senior Advocate Fali S. Nariman, the Court said that:

“the only reason for taking the learned Senior Advocate’s name, without there being any relevance to his name in the present case, is to browbeat the Court and embarrass one of us.”

The Court also took note of various other orders that showed that it was not the first time that Nedumpara has attempted to browbeat and insult Judges of the Court. The Court said:

“In point of fact, the style of this particular advocate is to go on arguing, quoting Latin maxims, and when he finds that the Court is not with him, starts becoming abusive.”

Holding Nedumpara guilty of contempt, the Court directed that the judgment is to be circulated to the Chief Justice of every High Court in this country, the Bar Council of India, and the Bar Council of Kerala, through the Secretary General, within a period of four weeks from today.

The contempt order was issued during the hearing of a Writ Petition that sought a second review of the judgment in Indira Jaising v. Supreme Court of India through Secretary General, (2017) 9 SCC 766. On the said petition, the Court said:

“Even otherwise, it is settled law that an Article 32 petition does not lie against the judgment of this Court. We are also of the view that Section 16(2) of the Advocates Act, 1961 is a provision which cannot be said to be unconstitutional and the designation of Senior Advocate cannot be as a matter of bounty or as a matter of right.”

[National Lawyers’ Campaign for Judicial Transparency v. Union of India, 2019 SCC OnLine SC 411, decided on 12.03.2019]

To read the guidelines issued by the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India, click here.

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ., addressed a petition concerning the defiance of the Court orders in regard to the sealing operations by a Member of Parliament.

The learned Amicus Curiae, Ranjit Kumar filed a report in the Court which stated that Manoj Tewari, being a Member of Parliament acted in defiance of the Apex Court’s order by breaking the seal of premises during the sealing operations being conducted in accordance to the orders of the Court.

Therefore, by taking into consideration the report of the monitoring committee in which it was stated that there had been violation of orders of the Court and interference in the administration of justice which is clearly Contempt of Court. The Bench, in order of the Contempt of Court, issued a notice to the contemnor and asked to return on 25-09-2018.

Further, learned counsel who appeared on behalf of the East Delhi Municipal Corporation stated that he would like to take instructions from the East Delhi Municipal Corporation which had filed an FIR against the contemnor and was also conducting the sealing operations. [M.C. Mehta v. Union of India, Sealing In Re; 2018 SCC OnLine SC 1615, order dated 19-09-2018]

Case BriefsHigh Courts

Delhi High Court: The Delhi High Court took suo motu cognizance of violence and vandalism against members of the Delhi Bar. The Bar in it’s resolution dated 23rd January, 2018 and 22nd January, 2018 mentioned that the Counsel who were victimised were so victimised because they were appearing as counsel for a lady advocate.

The Court noted that there was shocking similarity in the design and manner of the execution of the incidents of violence and vandalism and hence, opined that the incidents could not be treated as separate incidents. The court noted that FIRs have been filed in relation to the incidents but even after a month, minimal steps have been taken by the police in providing assistance and carrying out investigation. The Court, stating that such violence to thwart legal assistance in pending cases is tantamount to criminal contempt of court. In view of above observations, the Court invoked it’s suo motu jurisdiction to call upon an immediate report from the Delhi Police. Also, it directed the matter to be treated as a writ in public interest. [Court on it’s own motion v. Commissioner of Police, Delhi, 2018 SCC OnLine Del 7221, decided on 29.01.2018]

Hot Off The PressNews

Supreme Court: The Court was forced to adjourn the contempt case against Vijay Mallya as the Government failed to produce him before the Court. Attorney General KK Venugopal, appearing for Centre told the Court that Vijay Mallya’s extradition proceedings being conducted in UK Court and would most likely end by December 4.

On 09.05.2017, the bench of A.K. Goel and U.U. Lalit, JJ had held Vijay Mallya guilty of disobeying the Orders passed by this Court in not disclosing full particulars of the assets and said that though Vijay Mallya has not filed any reply to the Contempt Petition nor had he appeared in person but it necessary to give him one more opportunity and also hear him on the proposed punishment and hence, he should personally appear before the Court.

A consortium of banks sought relief from the Court after Vijay Mallya, who owes more than Rs. 9000 crores to the banks, instead of repaying his debts, transferred a huge sum of $40 million to his children. It was alleged by the banks that said transfer was not only in contempt of the Orders passed by the Karnataka High Court but was also an attempt to subvert the Course of Justice by diverting the funds to shield them from ongoing recovery proceedings.

Source: ANI

 

Case BriefsSupreme Court

Supreme Court: The bench of Ranjan Gogoi and Navin Sinha. JJ., held that a wrong understanding of award does not amount to wilfull disobedience or contempt of the Court.

It was the Petitioners’ contention e that the Respondents had not discharged the wages that the jounalist and non-journalist employees were entitled to, as per the Majithia Wage Board Award, constituted under Section 9 of The Working Jounalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The recommendations of the Board were notified by the Central Government and accepted and upheld by the Court as a valid and legitimate in its approach. The Petitioners also alleged that the employees who raised their voice for the implementation of the Award, were silenced by arbitrary transfers or termination. The Labour Commission Reports suggested that the Award was implemented fully in some states, partially in some others and not at all in some. It also listed the reasons for non-implementation which ranged from employees’ voluntary waver to financial constraints and from jurisdiction excluding contractual employees to variable pay which was not accounted for the purpose of calculating other allowances.  The Petitioners submitted that such reasons were not justified as the Act specified that only more beneficial and favourable rates may be accepted if the notified wages are departed.

The respondents submitted that the issues contested in this petition were not dealt with in the previous judgment, which upheld the validity of the recommendations and the jurisdiction of the same could not be exceeded to allege contempt of court. The Court accepted the Respondents’ contention and relied upon a number of judgments to reach the conclusion that the newspaper establishments could not be liable for contempt in the absence of wilful or deliberate intention to commit the same. After clarifying the said award, the Court said that it would be better to resolve such complaints by resorting to the enforcement and remedial machinery provided under the 1955 Act rather than approaching the Courts. [Avishek Raja v. Sanjay Gupta, 2017 SCC OnLine SC 669, decided on 19-06-2017]

Hot Off The PressNews

Supreme Court: The vacation bench of D.Y. Chandrachud and S.K. Kaul, JJ refused to grant interim bail to Justice C.S. Karnan who was arrested yesterday in Coimbatore after being on a run for over a month.

On 09.05.2017, the 7-Judge Bench of Jagdish Singh Khehar, CJ and Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, PC Ghose and Kurian Joseph, JJ, found Justice Karnan guilty of contempt of court and imposed 6 months’ imprisonment upon him. His advocate Mathew J Nedumpara said that the Court had all the powers and should grant the interim bail to Justice Karnan till the reopening of the Court. However, the vacation bench said that it could not override the decision of a 7-judge bench and hence it could neither grant interim bail nor suspend the 6 months’ sentence awarded to him for contempt of court.

Source: PTI