The Law Blog

A case for a BAN ON POLYGAMY in India after the Landmark Triple Talaq Judgement

Posted on 8 Feb 20198 Feb 2019 by The Law Blog

The Supreme Court of India on March 22, 2017, made a mark in history by declaring the practice of Triple Talaq as unconstitutional by 3:2 majority. The court said that it violates the fundamental rights of Muslim women as it irrevocably ends a marriage and is against the basic tenets of Qur’an. This judgement opens the door for challenging Polygamy on the basis of its being arbitrary, unilateral, and unconstitutional.

Sec 494 of the Indian Penal Code, 1860 outlaws polygamy but since the examination of personal laws is a pre-requisite to the applicability of this section, it is legal in the Muslim community as Islamic law allows polygamy for men (only in exceptional conditions) and imposes monogamy on women. Verse 4:3 of the Quran says that,

“And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]”

In the pre-Islamic era, men were entitled to have more than one wife. One must not forget the significance of the period and the circumstances in which verse 4:3 was revealed allowing men to marry up to four wives; the battle of Uhud took a heavy toll on men, leaving a large number of widows and orphans. The multiplicity of wives became a social necessity and in verse 4:3 which was revealed after this great battle, the Holy Prophet, allowed polygyny but under the strict injunction that all the wives must be treated with perfect equality. Many Classical jurists interpret the last portion of the verse to mean that polygamy should be restricted as The Quran states in the same chapter that it is not possible to be equitable and fair in these situations; “Ye are never able to do justice between wives even if it is your ardent desire”

It is a well-known jurisprudential rule in Islam, that “verses in the Qur’an explain each other,” i.e., the Qur’an is an integral whole and thus the full and proper meaning of any verse cannot be understood in isolation from other verses in the rest of the Qur’an. We can thus logically conclude that a man should marry only one wife. Therefore, the general belief that under Muslim Law, a husband has an unfettered right to marry again even where his earlier marriage is subsisting is egregious and baseless. This is clearly a manifestation of how patriarchal interpretation can prevail over reason and gender equity.

Polygamy clearly violates Article 21 of the Indian constitution as the Right to Life also includes the right to live with dignity. As far as Indian Judiciary is concerned, a catena of Indian case laws suggests that the touchstone of judging laws on polygamy can be our own constitution. In Javed v. The State of Haryana, the court held that “Polygamy is injurious to public morals and can be superseded by the state just as the practice of Sati.”

The flag bearers of Polygamy have contended that banning polygamy would be in violation of Article 25 of the Indian Constitution which guarantees Freedom of conscience and free profession, practice, and propagation of religion. While interpreting the right to Religious freedom, Judiciary takes into consideration the essential religious practices and not the non-essential ones. Judicial decisions have made an attempt to make a distinction between ‘essential’ and ‘non-essential’ religious practices. In the recent judgement of the Supreme Court in the case of Khursheed Ahmed Khan v. State Of U.P. & Ors , the honourable court reproduced the 1952 judicial precedent in the Narasu Appa Mali case;

“Sharp distinction must be drawn between religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give away before the good of the people as the State as a whole”

There can be no denying of the fact that Polygamy is an anathema to women’s economic, social and emotional well-being and hence, it is clearly opposed to Public order and morality. It is, therefore, safe to conclude that any law in favour of monogamy does not interfere with to right to profess, practice, and propagate religion and does not involve any violation of Article 25 of the Constitution.

Indian Judiciary through its various judgements has made it clear that Polygamy is an inhumane practice which should be eradicated from the society to restore the dignity of Muslim women and achieve the goal of gender justice. The legal reform in personal laws has been one of the critical and yet neglected areas in the Indian Democracy. Muslim women are denied their legal rights in the personal realm despite various rulings of The Supreme Court and various high courts which have declared the practice of Polygamy as unconstitutional. Practices such as polygamy persist in our society despite there being no sanction on these in the Quran.

It is extremely significant to note that a large no. of Muslim countries or countries with a large Muslim population have undertaken significant reforms in marriage and divorce laws. As per the Indian Law Commission’s report, bigamy has been fully abolished or severely controlled by law in most Muslim countries of the world. Turkey and Tunisia have completely outlawed it while in Egypt, Syria, Jordan, Iraq, Yemen, Morocco, Pakistan and Bangladesh; it has been subjected to administrative or judicial control. It is now India’s turn as the World’s largest democracy to put a complete ban on polygamy, thereby ensuring dignity and gender equality to women.

ABOUT THE AUTHOR

Rashi Rawat

Rashi Rawat is a second-year student from Gujarat National Law University, Gandhinagar pursuing B.A. LLB (Hons.). She has a keen interest in Competition law, Intellectual Property Rights, Family Law, Public International law and Human Rights law. She is also a member of the Editorial Board of the GNLU Journal of Law and Economics and keeps herself updated with the role that law and economics play in improving the efficiency of laws. Being a staunch feminist, she loves to read and research about contemporary issues revolving around women empowerment. She’s a huge Potterhead and firmly believes in the saying, “It is our choices that show what we truly are, far more than our abilities.”

Editorial

Democratising the Blogosphere, one blog at a time

Posted on 2 Feb 2019 by The Law Blog

So, blogging can aid in social transformation. It helps in building an online identity. It can propel my professional development. But, why me? Aren’t there millions of blogs already? Why particularly should I ‘plus one’ to this vast existing number?

Well, the answer is, because even a single voice does matter, a lot!

Let’s start with an analogy. Suppose, on a lazy summer afternoon, you aren’t particularly happy about how your room is smelling. What do you do? You simply open the windows, and let the fresh air from outside come in – with the hope that the room will freshen up eventually.

The same applies to the cyberspace. We obviously aren’t happy with the biased and baseless opinions ruling the blogosphere, the fake news circulating the cyberspace, and the hatred being spread through online media – what do we do? We encourage the competent and the young to enter the blogosphere, and make their voice heard.

The concept is simple – the more diverse the writers base gets, the more the number of people involved ‘consciously’ in the cyberspace, the more inclusive and democratic the cyberspace gets. Tired of reading biased opinions? Get argumentative writers do more writing. Tired of discrimination and hate-speech? Let the discriminated writers reach a wider audience. Tired of shallow speeches? Let the reasoned and wise do the talking. As simple as that.

Sounds good? I bet that is!

ABOUT THE AUTHOR

ANSHUMAN SAHOO

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at http://www.anshumansahoo.com.

International Law

Chemical Attacks on Syria: a blot on Principles of International Law

Posted on 1 Feb 2019 by The Law Blog

‘To really change the world we have to change the way people see the world.’

The United Nations, as well as the International Committee of Red Cross, has sincerely initiated efforts to achieve international peace and global security. And success lies in the fact that today there are no conventional wars which devastated masses of lives.

However, the Gulf Crisis, War between Iran and Iraq, Palestine- Israel issue as well as Syrian Gulf War are incidences which throw light on circumstances where humanitarian grounds are actually criticized and international humanitarian law has failed to establish peace. Syrian Civil War is one amongst those armed conflicts which have actually ruined the peace of civilians. Moreover, lethal chemical weapon attacks are a blot, portraying the failure of international law.

Critical Analysis of Chemical Attacks in Syria: A Grave Threat to Human Rights

The recent chemical attacks by the USA on Bassad’s territory under the shelter of humanitarian intervention have actually brought severe criticisms in the international community. This is because the stand taken by the Trump government in support with the UK, France was without the permission of the UNSC and hence these attacks were termed as illegal. In the further pages, there will be a discussion on various international norms which are actually infringed by such stands by countries.

Jus ad bellum and jus in bello

The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law, therefore, addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just. Till 2015, the Syrian crisis were not termed as a humanitarian crisis and there was no step taken to rehabilitate or fight for justice of victims.

Moreover, the strikes did not fall within the exceptions to the overall prohibition on the use of force in Article 2 (4) of the UN Charter. This is because Syria did not consent to the use of force on its territory; the strikes were not authorized by the UN Security Council; Syria’s alleged repeated use of chemical weapons on its own population did not constitute an armed attack that would trigger a right to self-defence for any of the three countries who carried out the strikes. Furthermore, to the extent the strikes should be perceived as a countermeasure in response to Syria’s unlawful use of prohibited weapons, and thus its violation of international law and it must be noted that armed countermeasures are prohibited under the jus ad bellum.

Thus, chemical weapons conflict with the International Humanitarian Law (IHL) principle of distinction that requires parties to a conflict not to use weapons that cannot distinguish between military and civilian objectives. In the seminal Tadíc case, the International Criminal Tribunal for the former Yugoslavia (ICTY) used chemical weapons as an example of a weapon that is inherently inhumane[1].

Principle of Distinction

The principle of distinction specifies that combatants must distinguish themselves from civilians. As a result, combatants must neither deliberately target nor indiscriminately or disproportionally harm civilians. The definition of who falls within the categories of combatants or civilians is therefore of crucial importance in IHL. The concept of “civilian” is “defined in contra-distinction to combatants: civilians are those who are not combatants”. In essence, whoever does not fulfil the criteria of a combatant is considered as a civilian. However, the recent attack by the USA violates the principle of distinction because chemical weapon attack did not just devasted the peace of the Syrian government but also took the lives of many innocent civilians.

A right to use force to deter the use of chemical weapons would only emerge in customary international law if there is a supportive general practice among states that is accepted as legally relevant (opinio juris). However, not all countries support this hence it is very difficult, at least now, to convert this practice as customary international law. Hence, the chemical attacks by the three governments are unlawful.

ICRC and UN: Hegemony of Big Powers

Although the main aim is peace, still the two organizations have at various times have been in conflict. This is because humanitarian laws and norms have at various times manipulated by UNSC. Although this report has never come out, their conflict is visible in their working. This is because UN is sometimes hegemony of big powers. The greatest example to the argument is US intervention in Iraq and even in Syrian civil war also. So, through these instances, the existence of relevance of laws comes to question – because justice needs to be equal for all.

Missile Strikes: Humanitarian Measures or Brutal Attack on Human Rights

The United Nations is established for ensuring peace and stability at the international level. However, the veto powers to the P5 nations is not always used to fulfil the objective of UN. This is evident from the recent Syrian issue. This is because whenever UNSC tries to take stand against Syrian government it is vetoed by Russia. Recently UNSC 2554 RESOLUTION which urges all members to ceasefire has been revoked by Russia and Turkey and hence the problem continues.

This intervention was illegitimate because it was devoid of permission of UNSC. Using force for humanitarian purposes in the absence of UN authorization will be compatible with international law if ‘there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief’; ‘it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved’; and ‘the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim[2]. But the Missile strike aimed at curbing the atrocities in Syria didn’t do much good instead it was a brutal attack on human rights.

Conclusion and Suggestions

It has become the obligation of the states to revive the international humanitarian law. Through diplomatic, economic, and political activities, states can push the parties to the conflict to comply with international humanitarian law and end the targeting of innocent Syrian civilians. Nationwide condemn to states involved in violence and economic blockades can pave a way to deter unlawful force internationally. The time has come when Syrian insurgencies and violence be termed crime against humanity and invoke universal jurisdiction in the matter because justice delayed is justice denied.

[1] Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1 (2 October 1995), paras. 120-124.).

[2] International Humanitarian Law Sri Lanka Journal of International Law, Vol. 15, pp. 3-6.

ABOUT THE AUTHOR

Divyanshi Shrivastava

Divyanshi Shrivastava is a second-year student of MNLU Nagpur. She has attended various national and international conferences on law and society. Recently she has been adjudged as the best speaker in a reputed conference. She loves reading and writing. She considers law as a tool to empowerment.

Critical Analysis

Conundrum of Modification and Application of Personal Law, Customs, and Religious Doctrines in Society

Posted on 27 Jan 2019 by The Law Blog

Personal Laws and Customs are integral to societal behaviour and norms. Invalidating them vide avenues of Legal Fiction often results in intruding into the lives of citizens, thereby eroding their faith in the system. Certain customs seem to be exemplary of alleged inequality; however, they are not always detrimental, especially when the said inequality may be a derivation of a religious sanction or historically accepted tradition. In this regard, would it not be appropriate to state that ‘To erode a man’s faith is perhaps a crime, even when facilitated by an institution of Justice.’

In Narasu Appa Mali v. State of Bombay[1], the Bombay High Court held that Personal Laws are not a part of Article 13, nor they are outside the ambit of Judicial Scrutiny. Justice Chandrachud in the Indian Young Lawyers Association v. The State of Kerala[2] overruled, by implication, the celebrated judgement, and presented refuting arguments on the same. The article presented herewith attempts to include additional arguments in the said matter, in addition to those stated in Narasu Appa.

Firstly, MP Jain emphasized that Personal Laws are not covered under Article 13. Courts deemed it prudent not to interfere with these laws on the touchstone of fundamental rights.[3] In the case of Krishna Singh v. Mathura Ahir[4] the Apex Court while considering the question whether a Sudra could be a Sanyasi or Yati held that Part III of the Constitution is not applicable to Personal Laws, and if the constitutional validity of such Personal Laws is to be verified, then the trail of study, research and application must be carried out with reference to all sources of the laws being considered. The same was upheld by the Hon’ble Supreme Court in the case of Madhu Kishwar & Ors v. State Of Bihar & Ors.[5] On the issue of constitutional validity, Chief Justice Khehar and Abdul Nazir J. held that Triple Talaq cannot be challenged as it had been in practice for over 1400 years, continues to be an accepted norm, and is also included in Sharia Law. They further held that Triple Talaq is not open to challenge on the grounds of violation of Fundamental Rights as it was a Personal Law.[6]

In the case of Harvinder Kaur v. Harmendar Singh[7], the Delhi High Court was required to decide as to whether the provisions of Section 9 of the Hindu Marriage Act,1955 providing for restitution of conjugal rights is in violation of Article 14 and Article 21 of the Constitution. The court upheld the validity of the section and also held that ‘the introduction of Constitutional Law in the home is most inappropriate, and it could be a ruthless destroyer of the marriage institution and all that it stands for’. It was also held that in the privacy of the home, and in married life, neither Article 21 nor Article 14 are appropriate for application. Marriage is an integral part of every religion and hence in the case Sardar Sydena Taher Saifuddin Sahed v. State of Bombay[8] it was stated that the exception to the Freedom of Religion as provided in Article 25(2) enabling the state to frame laws for ‘social welfare and reform’ cannot permit the legislature to ‘reform’ a religion and transform its orignal existence or identity. In this case, the Court elucidated that the intention of Article 25 (2) (b) is to cover only those laws that do not contravene the essentials of a religion, and a law which infringes such right cannot be permitted in the name of social reform because such action would place a religion out of existence. The expression ‘social reform’ doesn’t extend to the basic and essential practices of religion, which is guaranteed by Article 25(1) itself. In fact, it sanctions ‘social’ reform and not ‘religious’ reform. It has been observed by H.M. Seervai in the case of Inayatullah v. Gobins Dayal[9] that, Hindu and Mohammedan Laws are so intimately connected with religion that they cannot readily be dissevered from it. Personal Law is intrinsic to Religion, and it should hence be the prerogative of the doctrines of religion, to decide what is a part of that particular religion.

In case of a conflict between religious practice and the need for social reform, religion must be the dominant force. [10]A similar viewpoint was observed in the Constitutional Assembly debate, where Naziruddin Ahmed pleaded that the abrogation of a Personal Law should not be treated as a regulation of secular affairs surrounding a religion or as a measure of social welfare and reform.[11]

Additionally, in the early years of British rule in India, there was a policy of non-interference in religion and laws of Muslims. A manifestation of such non-interference is The Hastings Plan of 1772 and Article xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims in all suits regarding inheritance, marriage, caste and other religious circumstances or institutions’. The Hastings Plan of 1772 provided for Maulvis (Muslim Priests) to help and advise the courts on matters of Muslim Personal Laws. Muslims continued to follow their un-codified personal laws in matters such as succession of property, marriage and divorce. There was no interference from the courts in the Personal Laws of people.

It is also said that Personal Laws form the immutable element of religion. This is because there is always, even above the constitutional law or a written transnational law, an immutable unwritten higher law rooted in nature or reason which is more precious and deserves to be zealously guarded against a passing law written by a particular legislature at a given time. Religious personal laws are divine and inviolable because such laws are deemed to be an ordinance by God or the Prophets. Law cannot become a fulcrum of change, if society is unwilling to accept them.[12] Similarly, Gudrun Kramer asserts that justice can be realized by various means, as long as they do not conflict with the immutable elements of divine law.[13] Now, if it is possible to amend Sharia law, the problem remains ‘who has the right to reform these laws?’[14]This is because what constitutes essential parts of religion, is determined in respect of the doctrines of that religion itself.[15] Any institution of state should not be given unchecked authority to decide upon the essence of religious denomination and the (un)essential practices thereof.[16] It is also submitted that in the exercise of the power to regulate, authorities cannot sit in judgment over the professed views of the adherents of the religion to determine whether the practice is warranted by the religion or not. This is not considered to be their function.[17]

For instance, as stated by the court in the Shirur Mutt case, if the tenets of any religious sect of the Hindus prescribe that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be recital of sacred texts in terms of marriage, all these would be regarded as parts of religion. Under the Hindu religion, marriage as a sacramental union implies that it is a sacrosanct union; such a marriage then cannot take place without rituals and ceremonies.[18] Under the Muslim law, however, accordance of marriage is not a sacrament but a civil contract hence consent of the parties is integral to a Muslim marriage.[19] Under the Parsi[20] and the Jew[21] laws their respective religious ceremonies, ashirbad and katuba are considered to be essential to the religions. It is important that all these different observations are respectively respected and not placed in a hierarchy, thereby pitting one religious approach against another.

Thirdly, the acclaimed jurist H.M. Seervai has observed that it is not uncommon in a Constitution to make express provisions for matters to which its makers attach great importance, instead of leaving them to the dilatory and hazardous process of litigation.[22] Hence, if personal laws are not mentioned specifically in Article 13 of the Constitution one cannot presume the fact the personal laws come under the ambit of laws under Article 13.

Fourthly, bringing Personal Laws under the wide umbrella of Judicial Scrutiny goes against Art. 29 of the Indian Constitution. Article 29 protects the interests of minorities by making a provision that any citizen/section of citizens having a distinct language, script or culture have the right to conserve the same.[23] While framing a law it has to be borne in mind that cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for a threat to the territorial integrity of the nation.^[24] The Supreme Court in T.M.A Pai Foundation v. State of Karnataka and Ors.^[25] reiterated that: The essence of secularism in India is recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole united India.

Therefore, a harmonious construction is very much required between Religion and Society, by delving deep again into this issue. Law would never be able to become the Fulcrum of Change, if it is not accepted by society.

[1] State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.

[2] Indian Young Lawyers Association v. The State of Kerala 2018 SCC OnLine SC 1690.

[3] 1 MP Jain, Indian Constitutional Law 990 (5th ed. 2003).

[4] Krishna Singh v. Mathura Ahir, (1981) 4 S.C.C. 421

[5] Madhu Kishwar v. State Of Bihar, (1996) 5 S.C.C. 125.

[6] Shayara Bano v. Union of India, A.I.R. 2017 S.C. 4609

[7] Harvinder Kaur v. Harmendar Singh, A.I.R. 1984 Del. 66.

[8] Sardar Sydena Taher Saifuddin Sahed v. State of Bombay 1962 AIR 853.

[9] Inayatullah v. Gobins Dayal, (1885) I.L.R. 7 ALL. 775.

[10] Khursheed Ahmad Khan v. State of Uttar Pradesh, A.I.R. 2015 S.C. 1429.

[11] VII Constitutional Assembly Debates, 540-41 (1948)

[12] Justice D.M. Dharmadhikari, Law: Fulcrum of Change?,(2013) 4 SCC J-44

[13] Rudolph C. Barnes, Jr., Religion, Law and Conflicting Concepts of Legitimacy (2016).

[14] Myriam Sfeir, Round Table Personal Status Laws 21 (2006).

[15] The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others (1983) 4 SCC 522

[16] Mohammad Ghouse, Freedom of Religion and Judicial Review: A Critique of the Canon of Adjudication, The Indian Law Institute (Dec. 22, 2016), http://14.139.60.114:8080/jspui/bitstream/123456789/712/31/Freedom%20of%20Religion%20and%20Judicia l%20Review%20.pdf.

[17] Jesse Cantwell v. State of Connecticut J., 310 U.S. 296 (1940)

[18] Paras Diwan, Law of Marriage and Divorce 18 (7th ed. Universal Law Publishing)

[19] Ghulam Kubra v. M. Shaf, A.I.R. 1941 Oudh. 284.

[20] Parsi Marriage and Divorce Act, 1936 § 3 cl. b

[21] Benjamin v. Benjamin, I.L.R. 50 Bom. 359.

[22] 1 H.M. Seervai, Constitutional Law of India (4th ed. Universal Law Publishers 1991)

[23] Indian Const. art. 29

[24] Law commission of India Consultation Paper on reform of family law, 9 (31 Aug. 2018)

[25] T.M.A. Pai Foundation v. State of Karnataka, (1994) 2 S.C.C. 195

ABOUT THE AUTHOR

Deeksha Sharma

Deeksha Sharma is currently a second-year student at Dr. Ram Manohar Lohiya National University, Lucknow. Her areas of interest are Constitutional Law, Arbitration Law and Criminal Law. She has written many papers, especially areas covering women and her rights. She has won “Best Memorial” (Petitioner) at M.C Chagla Memorial Moot, GLC Mumbai.

Cyber Law, Law of Evidence

Admissibility of Electronic Evidence – Part III (Post-Anvar situation & development of jurisprudence)

Posted on 27 Nov 2018 by The Law Blog

This post constitutes the third and final part of a three-post-series blog post dealing with the courtroom trend with respect to the development of jurisprudence with regard to the admissibility of electronic evidence.

The first part dealt with the background and the problems with the admissibility of the electronic evidence where the author has given an account of the manifestation of the provision in brevity. The second part dealt with the initial development of the jurisprudence on the admissibility of electronic evidence and pre-Anvar P.V. status. This post (the third part) deals with the post-Anvar P.V. status of the provision and the current scenario and conclusion of the series.

Ankur Chawla v. CBI[1], was the case where the High Court of Delhi decided upon the admissibility of audio and video clips in the form of a compact disc for this particular case and stated that it is inadmissible. The trial court admitted the electronic evidence in this case in an erroneous manner. In another case of Jagdeo Singh v. State[2], the court rejected the electronic evidence which was a compact disc, having the data of an intercepted phone call records, because they were not produced along with the certificate which is required by virtue of section 65B. In Sanjaysinh Ramrao v. D. G. Phalke[3], the court upheld the decision of the apex court in the case of Anvar P.V.v. P.K.Basheer[4], and said that since the recorder was not verified, therefore, the transcription and the translation of the recorded voice cannot be admitted as evidence. It pressed upon the question of the authenticity of the source.

In Anvar P.V.[5], the court acknowledged the addition of the special provision to the Act by way of an amendment, after the framing of the IT Act. This case is known for changing the plots in the courtroom, and is a landmark case, as in this judgment by a three-judge-bench, the court discussed about the reliability of secondary data and decided that the secondary data (all the electronic evidences) cannot be treated as admissible evidence unless they are accompanied by the certificate of which section 65B talks about. The certificate ascertains the authenticity of the evidence here. Thus, The case is known for its attempt in setting up the threshold for the admissibility of electronic evidence under section 65B of the Act.

The court also made a distinction in this case, by putting forth its reasoning for the treatment of CD as primary evidence and the recordings as secondary evidence. The court while making a distinction said that since the recordings are made using other electronic devices, therefore they have to be categorized under the head of secondary evidence, whereas, the compact discs are solely used in their very form and hence could be considered as a primary evidence. Later, the Rajasthan High Court adhering to the aforementioned distinction ruled that the recording done on a camera having an HDD can be considered as primary evidence and thus the applicability of section 65B will not be followed in this situation.[6] Therefore, it is imperative to make a distinction between the primary evidence and the secondary evidence in every case as this delineates the requirement of certificate and the provision under which the evidence can be admitted.

The court in the aforementioned case did bring the clarity regarding the electronic evidence and the need of certificate while adducing it, but it did not make it clear as to when are the certificates required precisely. Considering the procedural aspect of the Act, it is the basic rule that the courts cannot deny justice for any flaw in the adherence to the procedures. The whole idea of procedural law is to ease out the process of attainment of justice. The courts, in the cases, such as Paras Jain v. State of Rajasthan[7], and Kundan Singh v. State[8], have also pronounced the same. In both the cases, the Rajasthan High Court, and the Delhi High Court, respectively, said that, the certificate required for the admissibility of the secondary evidence in the form of electronic evidence could be provided at the later stage of trial initiation, post the charge sheet is filed, and this will not dilute its gravity and value.

“23. When legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced alongwith the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form.”[9]

“40. The computer output – when provisions of section 65-B are satisfied is treated as evidence of the contents of the original or facts therein of which direct evidence is admissible. The secondary evidence in the form of a paper print out or media output produced by copying, recording or storing files is treated as a document and are admissible and bear the same status as “direct evidence” on the question of admissibility. The provision, therefore, negates and does not require production of the original computer/equipment/media, on which the data was stored and from which computer output be it in the form of printed paper or optical or magnetic media data has been obtained. The expression “direct evidence” as strictly understood in the Evidence Act, has been explained below.

Paragraph 21 quoted above records and notices that in State (NCT of Delhi)v. Navjot Sandhu alias Afzal Guru, (2005) 11 SCC 600, a responsible officer had certified the document at the time of production itself and the signatures in the certificate were also identified and, therefore, there was compliance of Section 65B of the Evidence Act. In these circumstances, we do not accept the legal ratio in Ankur Chawla v. Central Bureau of Investigation, (Crl. M.C. No. 2455/12 & Crl. M.A. Nos. 8308 and 8318/2014 and Crl. Rev. P. 385/2012 decided on 20^th November, 2014 by the Delhi High Court) wherein it has been held that the certificate under Section 65B must be issued when the computer output was formally filed in the court and certificate under Section 65B cannot be produced when the evidence in form of electronic record is tendered in the court as evidence to be marked as an exhibit. The said certificate can be produced when the electronic record is to be admitted and taken on record, i.e., when the prosecution, defence or a party to the civil litigation wants the electronic record to be marked as an exhibit and read in evidence. As far back as 1931, the Lahore High Court in Baldeo Sahai v. Ram Chander, AIR 1931 Lahore 546 had stated:-

“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are resumed to the party who produced them with an endorsement thereon to that effect.” ”[10]

Essentially, the judgment in the Anvar P.V.[11], actually shed light upon the correct procedure of law and the manner in which the electronic evidence can be adduced. The importance of the certificate was made paramount, and courts around the country, heavily relied upon the rationale of this case. For instance, Bala Shaheb Gurling Todkari v. State of Maharashtra[12], Ankur Chawla[13], and D.G.Phalke[14], are few of the cases which relied their decisions upon the aforementioned Supreme Court judgment.

There have also been a plethora of cases where the Supreme Court itself along with the High Courts resorted to an alternate view regarding the admissibility of secondary evidence in form of electronic evidence. For instance, in the case of Thomas Bruno v. State of U.P.[15], the apex court cited the judgment given in the Navjot Sandhu[16] case, regarding the admissibility of electronic evidence. Though the court did not go against the ruling and the basic principle and rationale which the Anvar P.V.[17] case spawned.

The most recent view of the apex court on the debate surrounding the admissibility of the electronic evidence has relied upon the Anvar[18], judgment where the two-judge-bench of A.K.Goel J. and U.U.Lalit J., decided and said that, if a party is not in possession of the device responsible for the procurement of the information, then it is obvious that he will not be able to produce the required certificate, and hence, this cannot come in way of dissemination and impartation of justice. The decision was given considering the fact that the requirement of the certificate is only a procedural need and this cannot and should not be acting as a threat to justice delivery.

“29. The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(4) is not always mandatory”[19]

This judgment seems per incuriam though, considering two factors essentially. One, the judgment being in contravention to the rationale which was provided in the relying case which necessitated the need of the certificate, and second, the bench strength is less than what it needs to be to overturn the decision.

Thus, the legal scenario post the Anvar P.V.[20] case seems quite incoherent to some extent but also welcoming as it widens the door for the admissibility of electronic evidence and brings down the threshold of the authenticity of the same, though with a caveat of scepticism attached to it regarding the proper implementation of this procedure, which cannot be done away with.

Conclusion

This seems quite obvious seeing the trend in which the court has expanded the ambit of the rule for the admissibility of the electronic evidence, that the court’s only motive is to impart justice in the best way possible so that none of the person could be denied of its right to justice. Also, this is not done blindly.

As seen from the development of the jurisprudence in the Indian scenario, there are a plethora of issues which revolve around the electronic evidence, such as the probability of it getting manipulated or the question of its genuineness. In such cases, the court had initially let the allowed the admission of the electronic evidence without much hassle and procedural safeguards. But subsequent to the increasing usage of technology, and framing of the IT Act, there was an amendment brought into the Act. The court interpreted this amendment in a strict sense in order to not let the justice delivered to the wrong person.

It should always be remembered that the Act is applicable to civil as well as criminal matter in a non-bias manner. The evidence adduced does not ascertain the validity of the information in any manner. The burden of proof lies on the accused and on the person who is adducing the evidence, regarding the fact that how valid is the content of the evidence procured.

Over the years, the court has raised the bar for admissibility of electronic evidence in a gradual manner. The requirement of the certificate was made mandatory, and the adherence to the requirements enlisted under the provision of section 65B was necessitated for an electronic evidence to be made admissible. This has been a step much appreciated as this prevents the abuse of the concept of the electronic evidence. The reason for this is also to safeguard the interest of any single innocent person, as it would be extremely unjust if any innocent person is denied justice due to the admissibility of flawed evidence.

The judgments by Supreme Court have made the rule a stricter one over the years and have well delineated the jurisprudence in this arena for the welfare of all. It cannot be alleged that the apex court did not consider the daily scenario which a common mass might face in such regards. The most recent case of Shafhi Mohammad v. State of Himachal Pradesh[21], is an example par excellence for this. The court relaxed the requirement of the certificate in certain scenario where a common man might just be unable to adduce it due to the absence of possession of the device. At the same time, this case also elucidates that the court itself is not certain regarding the usage and implementation of the procedure, as has been mentioned already. Therefore, the trend over the years, according to the pronouncements and interpretation of the provisions related to the admissibility of the electronic evidence has been pretty relaxed yet a strict one. The Courts have always been inclined towards incorporating the needs of changing time and technology along with the need of the people, for justice dissemination.

[1] Ankur Chawla v. CBI, 2014 SCC OnLine Del 6461.

[2] Jagdeo Singh v. State, Crl. A. Nos. 527, 529 and 607 of 2014.

[3] Sanjaysinh Ramrao v. D.G.Phalke, (2015) 3 SCC 123.

[4] Arnav P.V. v. P.K.Basheer, AIR 2015 SC 180.

[5] Id.

[6] Preeti Jain v. Kunal Jain, AIR 2016 Raj 153.

[7] Paras Jain v. State of Rajasthan, (2016) 2 RLW 945 (Raj).

[8] Kundan Singh v. State, 2015 SCC OnLine Del 13647.

[9] Supra 27.

[10] Supra 28.

[11] Supra 24.

[12] Bala Saheb Gurling Todkari v. State of Maharashtra, 2015 SCC OnLine Bom 3360.

[13] Supra 21.

[14] Supra 23.

[15] Thomas Bruno v. State of U.P., (2015) 7 SCC 178.

[16] Supra 14.

[17] Supra 24.

[18] Supra 24.

[19] Shafhi Mohammad v. state of Himachal Pradesh, (2018) 1 SCC (Cri) 860.

[20] Supra 24.

[21] Id.

ABOUT THE WRITER

Shivam Sharan

Shivam Sharan is a third-year law student at NALSAR University of Law, Hyderabad. Although he has no particular area of interests as such in the legal field, but he likes to keep experimenting with new things and is open to edification by way of exploration. Apart from his work, he likes painting and listening to music.

Cyber Law, Law of Evidence

Admissibility of Electronic Evidence – Part II (Case laws review & analysis of trend set by judicial pronouncements)

Posted on 27 Nov 201827 Nov 2018 by The Law Blog

This post constitutes the second part of a three-post-series blog post dealing with the courtroom trend with respect to the development of jurisprudence with regard to the admissibility of electronic evidence.

This post (the second part) deals with the initial development of the jurisprudence on the admissibility of electronic evidence and pre-Anvar P.V. status. The first part dealt with the background and the problems with the admissibility of the electronic evidence where the author has given an account of the manifestation of the provision in brevity. The third part shall deal with the post-Anvar P.V. status of the provision and the current scenario and conclusion of the series.

One can trace the advent of the admissibility of electronic evidence and the surrounding debate from the case of, Som Prakash v. Sate of Delhi[1], where the Supreme Court of India observed the need of statutory change to include the electronic evidence. The court insinuated that denying such discoveries to be admitted in the court of law is crude and that a statutory change could help criminal trials.

“10. It is but meet that science-oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt.”[2]

Later on, in the case of SIL Import v. Exim Aides Exporters[3], the apex court again promoted and encouraged the use of technology, by saying that when parliament is considering the advancement in technology while framing the laws then the courts in the country should not condone the usage of the same. And information from it should be included.

“15. Facsimile (or fax) is a way of sending handwritten or printed or typed material as well as pictures by wire or radio. In the West such mode of transmission came to wide use even way back in the late 1930s. By 1954 the International News Service began to use facsimile quite extensively. Technological advancement like facsimile, internet, e-mail etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament. So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modern devices and equipment already in vogue.”[4]

These cases established a threshold of admissibility of electronic evidences to the courtroom. This was further substantiated in Grid Corporation of Orissa v. AES Corporation[5], the issue involved two arbitrators who had to sit together in order to appoint a third arbitrator. The court said that it is not necessary to meet the people in person, when it could be done through electronic means.

“23. enience of the parties and also saves them from avoidable expenditure. When an effective consultation can be achieved by resort to electronic media and remote conferencing it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties. The appointment need not necessarily be by a writing signed by the two arbitrators; it satisfies the requirement of law if the appointment (i) has been actually made, (ii) is preceded by such consultation as to amount to appointment by the two, and (iii) is communicated. It is not essential to the validity of the appointment that the parties should be consulted, or involved in the process of appointment or given a previous notice of the proposed appointment.”[6]

Pre Anwar P.V. v. P.K. Basheer state

The very first instance of the case which required the admissibility of electronic evidence emerged in the case of, State v. Mohd. Afzal and Ors.[7]. This case is also referred to as the parliament attack case and was further decided by the Supreme Court. The Delhi High Court, in this case, pronounced that, the data and information which are produced by a computer can be treated as electronic evidence and should be admitted. The only pre-requisite for the admissibility is that the evidence of this sort should adhere to the checklist provided in the provisions mentioned under section 65B of the Act.

In 2005, the Supreme Court had to decide upon the requirement of the certificate as mentioned under section 65B of the Act, for adducing the evidence. This was in the case of State v. Navjot Sandhu[8], where the court said, that the phone records can be admitted. In this case, the court did not consider the need for a certificate. It just said that the call records can be admitted as secondary evidence, under sections 63 and 65 of the Act. The provision for the requirement of a certificate is mentioned under section 65B. Further, the court said that if the certificate is not being provided, then also the evidence could be put forth in the court if it is a legitimate one and fulfils the requirements given under the section 63 and section 65.

“150. According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”[9]

In Rakesh Kumar v. State[10], the Delhi High Court affirmed with the abovementioned decision of the apex court regarding the adducing of the call records as secondary evidence.

In State of Maharashtra v. Dr. Praful B. Desai[11], the court while turning the decision of the high court, allowed the witness to give the statement through video conferencing, and also spawned the advantages of the mode as follows:

“20. Recording of evidence by video-conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the accused. The accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded courtroom. They can observe his or her demeanour. In fact the facility to playback would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better. The facility of playback would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in court. All these objects would be fully met when evidence is recorded by video-conferencing. Thus no prejudice, of whatsoever nature, is caused to the accused. Of course, as set out hereinafter, evidence by video-conferencing has to be on some conditions”[12]

The case of Avnish Bajaj v. State[13], was the case where the court had to look upon the question that what differences exist between ISP and CP. It did highlight that the police needs to be abreast with the changing times and that they need to get edified about the same. At the end, the court propounded that as the ISP was the accused in this case, therefore, the burden lies upon the ISP to provide the proof of its allegations and innocence.

In Abdul Rahman Kunji v. The State of West Bengal[14], the Calcutta High Court was deciding upon the admissibility of an email as electronic evidence. The court said that the witness’ statement could be admitted to ascertain the genuineness of the copy of the email as an evidence.

Therefore, we see that the court did not necessitate the requirement of the certificate until this stage and the admissibility of the electronic evidence was not contingent upon the certificate proving the authenticity of the evidence.

[1] Som Prakash v. State of Delhi, AIR 1974 SC 989.

[2] Id.

[3] SIL Import v. Exim Aides Exporters, (1999) 4 SCC 567.

[4] Id.

[5] Grid Corpn. of Orissa ltd. v. AES Corpn., 2002 AIR (SC) 3435.

[6] Id.

[7] State v. Mohd. Afzal & Ors., (2003) DLT 385.

[8] State v. Navjot Sandhu, AIR 2005 SC 3820.

[9] Id.

[10] Rakesh Kumar v. State, (2009) 163 DLT 658.

[11] State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601.

[12] Id.

[13] Avnish Bajaj v. State, 2008 (105) DRJ 721.

[14] Abdul Rahman Kunji v. The State of West Bengal, (2015) 1 Cal LT 318.

ABOUT THE WRITER

Shivam Sharan