List of Current Affairs

Why in News?

• The Supreme Court (SC) has said that all accused have a right to silence and they cannot be forced to speak up their guilt by the investigators.

Background

• The matter pertains to the facts where the wife has levelled charges of dowry and assault against the husband.
• The Allahabad High Court, in February 2023 dismissed the pre-arrest bail of the man, the Supreme Court thereafter protected him from arrest in May 2023.
• Now, when the matter again came up for hearing before the Supreme Court, adjournment was sought by the husband’s advocate.
• The same was objected to by the other side on the ground that the husband was not cooperating in the probe.

Court’s Observations

• A bench of Justices Surya Kant and Dipankar Datta retorted that one cannot argue that an accused is not cooperating on the basis that he has not confessed to all the charges as “cooperation” during an investigation cannot mean “confession”.
• The Court further stated that the investigating agency cannot make out a case against the accused just because they choose to remain silent.
• While emphasizing that the right against self-incrimination is a fundamental canon of law, the court held that right to silence emanates from Article 20(3) of the Indian Constitution, which provides that an accused has the right against self-incrimination.

Legal Provisions

• Example of self- incrimination – Suppose an accused is brought for questioning by an officer, it is the duty of the accused to answer truly to all the questions. Where such an officer threatens him or uses force to compel him to answer the questions, then his right to self-incrimination would arise and he can refuse to answer such questions.
• Confession - It is admission suggesting the inference that the person making it has committed the crime.
• Judicial Confession – Confessions made in court or before the magistrate in the legal proceeding.

Constitutional Law Aspect

• Criminal Law rests upon the principle that prosecution must prove the accused guilty beyond reasonable doubt.
• The Constitution of India grants right against self-incrimination under Article 20(3) which enshrines under its ambit the following:
• The accused is presumed to be innocent;
• The prosecution has to prove him guilty beyond reasonable doubt;
• The accused cannot be forced to give a statement against his will.
• Article 20(3) – No person accused of an offence shall be compelled to be a witness against himself.
• It is based on the legal maxim nemo tenetur prodere accusare seipsum, which means no man is obliged to be a witness against himself.

Case Law

Selvi v. State of Karnataka (2010)

• The Supreme Court in this case considered the constitutionality of various neuroscientific investigative techniques including narcoanalysis, BEAP (Brain Electrical Activation Profile) or ‘brain mapping’, and polygraph tests.
• The court opined that a narcoanalysis test without the consent of the accused would amount to violation of the right against self-incrimination.

Confession under other Legislations

Indian Evidence Act, 1872

• Section 24 - Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
  • The provision provides that a confession made under the circumstances provided above would not be relevant in criminal proceedings against the accused.

Criminal Procedure Code, 1973

Section 164 - Recording of confessions and statement — (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial.

Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

• According to the above said provision any Metropolitan Magistrate or Judicial Magistrate, not even having jurisdiction in the case, has the authority to record a confession or statement made to him by a person, in the course of an investigation or after it, but prior to the inquiry or trial.
• The Magistrate should tell the accused that he is before a Magistrate independent of police and give assurance that he would not be under threat for not making a confession or a statement and if he makes any, it can be used against him. This should be made clear to him in the plainest words possible rather than in a ritualistic manner.
• No oath is administered to the accused while the confession is recorded.

Why in News?

Recently, the Bombay High Court in the matter of Ashik Ramjan Ansari v. State of Maharashtra & Anr., said that several countries have reduced the age of consent for adolescents to have a consensual sexual relationship and our Country and Parliament should also take note of the happenings around the world.

Background

• In this case, the High Court acquitted a man convicted under the Protection of Children from Sexual Offences Act (POCSO), 2012 for raping a minor girl in 2016.
• Both the man (25-years-old in 2016) and the girl (17-year-old in 2016) claimed that they were in a consensual relationship.
• The High Court noted that the evidence clearly established consensual sexual activity, and the conviction was erroneous.

Court’s Observations

• The HC said the criminalization of romantic relationships has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system.
• The Court observed that though the POCSO Act natural feelings could not stop towards the opposite sex in adolescence, punishing a boy who entered into a consensual relationship with a minor girl, in grip of their biological changes, would be against “the best interest of child” and that “adolescents cannot be deprived of this right”.
• The Court added that the age of consent necessarily must be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect.
• The Court further noted the age of consent was 14 in Germany, Italy, Portugal and Hungary, and 16 in London, Wales and Sri Lanka. In Japan, 13 is the age of consent and in Bangladesh, punishment for rape is handed out for sexual intercourse with a girl below 16 years of age. India has probably one of the highest age of consent globally with 21 years for men and 18 years women as per Prohibition of Child Marriage Act, 2006.
• Justice Dangre said that ultimately it is for Parliament to ponder upon the said issue, but being cognizant of the cases, which are coming before the courts, with a huge chunk, being the romantic relationship.

Legal Provisions

POCSO Act, 2012

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• This Act criminalizes all sexual acts among those under 18 regardless of whether consent is present factually among the minors.
• It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO amendment bill, 2019.
• Section 4 of this Act prescribes punishment for penetrative sexual assault.
• Under section 2(1) (d) of the POCSO Act, a child is defined as any person below the age of 18 years.

Age of Consent under POCSO Act, 2012

• The POCSO Act raised the age of consent for sexual activity to 18 years from 16 years in 2012 and it denies consensual sexual agency for young persons falling in the 16 to 18 years age bracket.
• In the case of State of Madhya Pradesh v. Balu (2004), the Supreme Court held that the consent of minors has no value in the eyes of law, hence it is not valid.
• In AK v. State Govt of NCT of Delhi (2022), the HC stated that the intention of POCSO Act, 2012 was to protect children below the age of 18 years from sexual exploitation and not to criminalize romantic relationships between consenting young adults.
• In December 2022, the government told the Parliament that it does not have any plan to revise the age of consent.

Criminal Law Amendment Act, 2013

• This Amendment Act raised the age of consent from 16 to 18, implying that sexual intercourse by an adult with a girl below 18 would amount to rape, irrespective of the presence of consent in a given case.

Why in News?

• The Delhi High Court has accepted the apology as “expression of deep remorse” and discharged editor of Tamil political weekly “Thuglak” and RSS Ideologue S Gurumurthy.
• The court was hearing a criminal contempt petition Delhi High Court Bar Association Through its Secretary v. S. Gurumurthy.

Background

• The case was filed against him for his tweet against Justice S Muralidhar in 2018.
• Gurumurthy had posted a question asking whether Justice Muralidhar was a junior of Senior Advocate P Chidambaram.
• The tweet was made after an interim protection was granted to Karti Chidambaram by a division bench headed by Justice Muralidhar in the INX Media case.

Court’s Observations

• The bench observed that judge’s dignity rests on a surer footing. Judges are not dependent on criticism, fair or unfair, for our dignity.

Criminal Contempt

• In India, contempt proceedings are governed by Contempt of Courts Act, 1971.
• Section 2(c) of the Contempt of Courts Act, 1971 defines “criminal contempt” in the form of publication scandalizing, interfering or obstructing court proceedings or administration of justice.
• In the case of criminal contempt, the Supreme Court or the High Court may take action on its own motion or on a motion under Section 15 of the Act.
  • Article 129 of the Constitution of India empowers Supreme Court to be a court of record and shall have all the powers of such a court, including the power to punish for contempt of itself.
• The Supreme Court bench headed by Justice Arun Mishra in In Re: Prashant Bhushan & Anr. (2020) remarked on criminal contempt practices.
  • The bench held that “If we do not take cognizance of such conduct, it will give a wrong message to the lawyers and litigants throughout the country”.

Defences Available in the Act

1. Innocent Publication: Under Section 3 if the persons so publishing had at the time of its publication no reasonable grounds for believing that the proceeding was pending, the publication is described as “innocent”.
2. Fair and Accurate Report of Judicial Proceeding: Under Section 4 a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.
3. Fair Criticism: Under Section 5 it is the privileged right of the Indian citizen to believe what he considers to be true and to speak out his mind.
4. Complaint Against Presiding Officer: Under Section 6 A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court.
5. Truth as a Defence: Section 13 enables the Court to permit justification by truth as a valid defence in any contempt proceedings if it is public interest or bona fide.
6. Apology: Proviso to Section 12(1) says that the accused may be discharged, or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

Legal Provisions

Section 2 (c) Contempt of Courts Act, 1971

“criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

Article 129: Supreme Court to be a court of record

The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.