TaxTMI 
TaxTMI 
2009 (4) TMI 1065
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....jayan, Ajay Pal, S.R. Hedge, G. Prakash, A. Subhashini, S. Wasim A. Qadri, Anil Katiyar, D.S. Mehra, Vanita, Shail Kumar Dwivedi, Gunnam Venkateswara Rao, Vandana Mishra, A.K. Jha and M.K. Jha, Advs JUDGMENT ARIJIT PASAYAT, J. 1. Taking a serious note of various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings were initiated by a Bench of this Court on 5.6.2007. Dr. Rajiv Dhawan, Senior counsel of this Court agreed to act as Amicus Curiae. After perusing various reports filed, two Committees were appointed; one headed by a retired Judge of this Court Justice K.T. Thomas. The other members of this Committee were Mr. K. Parasaran, Senior Member of the legal profession, Dr. R.K. Raghvan, Ex-Director of CBI, and Mr. G.E. Vahanavati, the Solicitor General of India and an officer not below the rank of Additional Secretary of Ministry of Home Affairs and the Secretary of Department of Law and Justice, Government of India. The Other Committee was headed by Mr. F.S. Nariman, a Senior Member of the Legal Profession. The other members of the Committee were the Editor-in-Chi....
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....as become so rampant during such direct actions called by organizations. In almost all such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair. Of course, it is normally difficult to prove abetment of the offence with the help of direct evidence. This flaw can be remedied to a great extent by making an additional provision in PDPP Act to the effect that specified categories of leaders of the organization which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offence. At the same time, no innocent person, in spite of his being ....
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....ce wherefrom video shooting can conveniently be arranged concentrating on the person/ persons indulging in any acts of violence or other acts causing destruction or damage to any property. iii) No sooner than the direct action subsides, the police officer concerned shall authenticate the video by producing the videographer before the Sub Divisional or Executive Magistrate who shall record his statement regarding what he did. The original tapes or CD or other material capable of displaying the recorded evidence shall be produced before the said Magistrate. It is open to the Magistrate to entrust such CD/material to the custody of the police officer or any other person to be produced in court at the appropriate stage or as and when called for. The Committee felt that offenders arrested for damaging public property shall be subjected to a still more stringent provision for securing bail. The discretion of the court in granting bail to such persons should be restricted to cases where the court feels that there are reasonable grounds to presume that he is not guilty of the offence. This is in tune with Section 437 of the Code of Criminal Procedure, 1973 and certain other modern Crimi....
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....So far as the Committee headed by Mr. F.S. Nariman is concerned the recommendations and the views are essentially as follows: There is a connection between tort and crime - the purpose of the criminal law is to protect the public interest and punish wrongdoers, the purpose of tort-law is to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him: however - the distinction in purpose between criminal law and the law of tort is not entirely crystal-clear, and it has been developed from case-to-case. The availability of exemplary damages in certain torts (for instance) suggest an overtly punitive function - but one thing is clear: tort and criminal law have always shared a deterrent function in relation to wrongdoing. The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognise as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future. There are dicta both ancient and modern that categori....
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.... torts (i.e. wrongs) in property is that there should be `restituto in interregnum' which conveys the idea of "making whole". (2) Where any injury to property is to be compensated by damages, in settling the sum of money to be given for reparation by way of damages the Court should as nearly as possible get at that sum of money which will put the party who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. (3) In this branch of the law, the principle of restitution in interregnum has been described as the "dominant" rule of law. Subsidiary rules can only be justified if they give effect to that rule. In actions in tort where damages are at large i.e. not limited to the pecuniary loss that can be specifically proved, the Court may also take into account the defendant's motives, conduct and manner of committing the tort, and where these have aggravated the plaintiff's damage e.g. by injuring his proper feelings of dignity, safety and pride - aggravated damages may be awarded. Aggravated damages are designed to compensate the plaintiff ....
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....sion in Kuddeus v. CC Leicestershie (supra) where two Law Lords Lord Nicholls and Lord Hutton expressed the view that such damages might have a valuable role to play in dealing with outrageous behaviour. The authors point out that the boundaries between the civil and criminal law are not rigid or immutable and the criminal process alone is not an adequate mechanism to deter willful wrong-doing. The acceptability of the principle of compensation with punishment appears to have been confirmed by the Privy Council (in The Cleaner Co Ltd. v. Abrahams (2004) a AC 628 at 54) where it was felicitously said that "oil and vinegar may not mix in solution but they combine to make an acceptable salad dressing." The authors go on to say that exemplary damages certainly enjoy a continuing vitality in other common law jurisdictions, which, by and large, have rejected the various shackles imposed on them in England and extended them to other situations: thus punitive damages was held to be available in Australia "in cases of "outrageous" acts of negligence. The Law Commission of Australia has also concluded - after a fairly evenly balanced consultation-that exemplary damages should be ret....
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....sociation for Democratic Reforms [2002] 3 SCR 696 , this Court observed: ...It is not possible for this Court to give any directions for amending the Act or statutory Rules. It is for Parliament to amend the Act and the Rules. It is also established law that no direction can be given, which would be contrary to the Act and the Rules. However, it is equally settled that in case when the Act or Rules are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted." (pp.307) This Court has issued directions in large number of cases to meet urgent situations e.g. * Lakshmi Kant Pandey v. Union of India [1984] 2 SCR 795 * Vishaka v. State of Rajasthan AIR 1997 SC 3011 * Vineet Narain v. Union of India 1998CriLJ1208 * State of W.B. v. Sampat Lal 1985CriLJ516 * K. Veeraswami (1992)IILLJ53bSC * Union Carbide Corporation v. Union of India AIR1992SC248 * Delhi Judicial Service Assn. v. State of Gujarat AIR1991SC2150 ....
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...., any government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. ITO [1965]57ITR349(SC) this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." In Hochtief Gammon v. State of Orissa (1975)IILLJ418SC this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the government or its officers. 19. Even had the Division Bench issued a writ of mandamus giving the direc....
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....peared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere by an order of mandamus. In Halsbury's Laws of England, 4th Edn., vol. I, para 89, it is stated that the purpose of an order of mandamus: is to remedy defect of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant consider....
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....he police personnel handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable forms of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third-degree methods during interrogation. 30. Apart from the police, there are several other governmental authorities also like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, RAW, Central Bureau of Investigation '(CBI), CID, Traffic Police, Mounted Police and ITBP, which have the power to detain a person and to interrogate him in. connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well. In In Re: Death of Sawinder Singh Grover (to which Kul....
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....t paras 33 & 34, it was observed as follows: 33. There can be no gainsaying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The Latin maxim salus populi supremo lex (the safety of the people is the supreme law) and salus republicae supremo lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair". Using, .any form of torture for extracting any kind of information would neither be "right nor just nor fair" and, therefore, would be impermissible, being offensive to Article 21. Such a crime suspect must be interrogated - indeed subjected to sustained and scientific interrogation - determined in accordance with th....
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.... in Vineet Narain's case (supra) at pr. 52: Vishaka's paras 8.14,15 8. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest. xxx 14....The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The meaning and content of the fundamental rights guaran....
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....ssment at the workplace] * Vineet Narain v. Union of India 1998CriLJ1208 [Directions were laid down to ensure the independence of the Vigilance Commission] * State of W.B. v. Sampat Lal 1985CriLJ516 * K. Veeraswami (1992)IILLJ53bSC * Union Carbide Corporation v. Union of India AIR1992SC248 * Delhi Judicial Service Assn. v. State of Gujarat AIR1991SC2150 * Delhi Development Authority v. Skipper Construction Co. (P) Ltd. AIR1996SC2005 ; * Dinesh Trivedi, M.P. v. Union of India [1997]3SCR93 * Common Cause v. Union of India [1996]1SCR89 [Directions were issued for revamping the system of blood banks in the country] 28. The present case is one in which guidelines are necessary: (i) to the police to enforce statutory duties (ii) to create a special purpose vehicle in respect of damages for riot cases 29. This issue was examined by the Nariman Committee which considered: ...where (in such cases) there is destruction/damage to properties and loss of lives or injuries to persons - (i) the true measures of such damages (ii) the modalities for imposition of such damages a....
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.... The NBA believes that media that is meant to expose the lapses in government and in public life cannot be obviously be regulated by government, else it would lack credibility. It is a fundamental paradigm of freedom of speech that media must be free from governmental control in the matter of "content" and that censorship and free speech are sworn enemies. It therefore falls upon the journalistic profession to evolve institutional checks and safeguards, specific to the electronic media, that can define the path that would conform to the highest standards of rectitude and journalistic ethics and guide the media in the discharge of its solemn Constitutional duty. There are models of governance evolved in other countries which have seen evolution of the electronic media, including the news media, much before it developed in India. The remarkable feature of all these models is "self-governance", and a monitoring by a "jury of peers". 33. The Committee has recommended the following suggestions: (i) India has a strong, competitive print and electronic media (ii) Given the exigencies of competition, there is a degree of sensationalism, which is itself not harmful so ....