List of Current Affairs

Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Prem Prakash v. Union of India through the Directorate of Enforcement has held that bail is Rule, and jail is an exception even in the Prevention of Money Laundering Act 2002 (PMLA).

What was the Background of the Prem Prakash v. Union of India through the Directorate of Enforcement Case?

• In the present case, First Information Report (FIR) was registered for offences punishable under Sections 406, 420, 467, 468, 447, 504, 506, 341, 323 and 34 of the Indian Penal Code, 1860 (IPC).
• In view of Section 420 and 467 of IPC, being Scheduled Offences, investigation under the PMLA was initiated.
• The Enforcement Directorate (ED) investigated the offence.
• The allegation was that accused Rajesh Rai illegally and fraudulently made a Power of Attorney in the name of Imtiaz Ahmad and accused Bharat Prasad and on the basis of said Power of Attorney prepared a forged sale deed and sold the land to accused Punit Bhargava, an accomplice of the appellant.
• It is further alleged that the said land was transferred by accused Punit Bhargava to accused Bishnu Kumar Agarwal vide two sale deeds.
• The appellant was taken into custody on 11th August 2023. He was already in custody from 25th August 2022.
• The appellant argued that due to examination of various witnesses he was not granted bail which violates his fundamental rights.
• Appellant's bail application was rejected by the Special Judge and the High Court.
• Aggrieved, the appellant filed a Special Leave Petition before the Supreme Court.

What were the Court’s Observations?

• The Supreme Court observed that provisions of Section 45 of PMLA which states two conditions to grant bail.
  • This provision is not an exception to the general rule of bail, it provides twin conditions to be followed before granting bail.
  • The Supreme Court highlighted the general rule that “Bail is the Rule and Jail is an exception”.
• The Supreme Court also stated that Section 45 of PMLA is paraphrasing of Article 21 of the Constitution of India (COI) which states that no person shall be deprived of his life or personal liberty except according to the procedure established by the law.
• The Supreme Court further added liberty of the individual is always the rule and deprivation is the exception. Deprivation can be made only by the procedure established by the law which has to be valid and reasonable.
• The Supreme Court therefore accepted the petition of the appellant and granted bail.

What is the Applicability of General Principle of “Bail is Rule” Under PMLA?

About:

• There are different provisions provided in various acts for bail in India.
• Section 45 (1) of the PMLA amended in the year 2019 and deleted the two extra conditions given for granting bail as they were in violation of Article 14 and Article 21 of the COI.
• The changes were brought by the landmark judgement of Nikesh Tatrachand Shah v. Union of India & Othrs. (2017).
• Section 438 of Code of Criminal Procedure, 1973 (CrPC) is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence.
• Section 43D (5) of the Unlawful Activities Prevention Act, 1967 lays down the foundation for bail proceedings, delineating stringent conditions for release.
• Under this provision, an accused facing charges punishable under Chapters IV and VI of the UAPA must prove to the court, based solely on police documentation, that the accusations are not prima facie true.
• This legal framework effectively shifts the burden of proof onto the accused, contravening the fundamental presumption of innocence.

Twin Conditions for Bail Under PMLA:

• Section 45: It states that notwithstanding anything contained in the Code of Criminal Procedure no person accused of an offence under this Act shall be released on bail or on his own bond unless:
  • The Public Prosecutor has been given a opportunity to oppose the application for such release.
  • Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
  • Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees may be released on bail, if the Special Court so directs.
  • Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by
    • the Director; or
    • any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.

What is Bail?

About:

• Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required. It signifies a security/collateral deposited before the Court for release.
• Bail, a legal provision within the Bharatiya Nagarik Suraksha Sanhita facilitates release from prison pending trial or appeal upon depositing security.

Types of Bail in India:

• Regular Bail: It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody.
• Interim Bail: Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
• Anticipatory Bail or Pre-arrest Bail: It is a legal provision that allows an accused person to apply for bail before being arrested. In India, pre-arrest bail is granted under section 438 of the CrPC It is issued only by the Sessions Court and High Court.
• The provision of pre-arrest bail is discretionary, and the court may grant bail after considering the nature and gravity of the offence, the antecedents of the accused, and other relevant factors. The court may also impose certain conditions while granting bail, such as surrendering the passport, refraining from leaving the country, or reporting to the police station regularly.

Why Jail is an Exception?

• Detaining an individual without any reason is a violation of his fundamental right to liberty.
• A person can be detained in the pre-trial stage for the purpose of investigation and if there is a reasonable apprehension to do so.
• Encroachment of fundamental rights of an individual is punitive and is against the principle of natural justice.
• It is the duty of the courts to ensure that an individual is not detained unless it is against the interest of justice.

What are the Landmark Judgements based on Bail is Rule and Jail is an Exception?

• Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry (1973):
  • In this case, the Calcutta High Court explained the principle behind giving Bail.
• State of Rajasthan v. Balchand (1977):
  • Justice Krishna Iyer famously stated, "The basic rule may perhaps be tersely put as bail, not jail."
  • This underscored the presumption of innocence and the right to liberty of an accused person.
• Gurbaksh Singh Sibbia v. State of Punjab (1980):
  • This case dealt with anticipatory bail but emphasized the presumption of innocence.
  • The Court held that the right to bail is directly linked to Article 21 of the Constitution.
• Siddharam Satlingappa Mhetre v. State of Maharashtra (2011):
  • The Court reiterated that bail is the rule and jail is the exception.
  • It emphasized the need to balance individual liberty with societal interests while considering bail applications.
• State of Kerala v. Raneef (2011):
  • The Supreme Court held that bail should be granted where the accused can show that there are reasonable grounds to believe that he is not guilty of the offence.
• Sanjay Chandra v. CBI (2012):
  • The Court held that the object of bail is neither punitive nor preventative.
  • It emphasized that denying bail as a punitive measure would be contrary to the concept of presumption of innocence.
• NIA v. Zahoor Ahmad Shah Watali (2019):
  • This case set a precedent whereby courts are constrained from critically examining the prosecution's evidence during bail proceedings under the UAPA.
  • The Supreme Court said that “At the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities”.
• Vernon v. State of Maharashtra and Anr. (2023):
  • This case introduced a nuanced approach, emphasizing the need for a surface-level analysis of evidence before determining bail eligibility.
  • The Supreme Court held that, “It would not satisfy the prima facie “test” unless there is at least surface analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth”.

Source: Supreme Court

Why in News?

A bench of Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah held that once ample opportunities are given to cross examine the victim allowing an application for recall under Section 311 of CrPC would defeat the purpose of Protection of Children from Sexual Offences Act, 2012 (POCSO).

• The Supreme Court held this in the case of Madhab Chandra Pradhan & Ors v. State of Odisha.

What is the Background of Madhab Chandra Pradhan & Ors v. State of Odisha Case?

• The petitioners kidnapped the minor victim girl and brought her to the village of his maternal uncle.
• It is the case of the prosecution that the petitioner (accused) got her married to the other accused.
• It is also the case of the prosecution that the accused person forcibly made sexual relations with the victim.
• The victim was ultimately rescued by her parents.
• The case was registered against the accused under Section363, 366, 376 (2) and Section 109 read with Section 34 of Indian Penal Code, 1870 (IPC) and Section 4,6 and 17 of Protection of Children from Sexual Offences Act, 2012 (POCSO), read with Sections 9, 10 and 11 of Prohibition of Child Marriage Act, 2006 (PCMA).
• Application filed under Section 311 of Criminal Procedure Code, 1973 (CrPC):
  • The petitioners had filed an application under Section 311 of CrPC to recall the victim for the purpose of reexamination as a witness.
  • This application was dismissed by the Special Court.
  • The petitioner approached the High Court under Section 482 of CrPC to assail the order of the Special Court rejecting their application under Section 311 of CrPC.
  • The Application before the High Court was also dismissed.
  • Hence, the petitioners have approached the Supreme Court.

What were the Court’s Observations?

• There are two provisions at play in this case: Section 311 of the CrPC and Section 33 (5) of the POCSO Act, 2012.
• The Issue to be determined here is:
  • Whether in exercise of its powers under Section 311 of CrPC the Special Court ought to have recalled the victim for re-examination as witness, keeping in mind the mandate under Section 33 (5) of the Act?
• In the case of State (NCT of Delhi) v. Shiv Kumar Yadav (2016), the Supreme Court laid down the guidelines for the plea of recall of witness under Section 311 of CrPC.
  • The plea for recall of a witness under Section 311 must be bona fide and genuine.
  • Applications for recall of a witness under Section 311 should not be allowed as a matter of course and the discretion given to the Court must be exercised judiciously, not arbitrarily.
• The Court held that it is amply clear in this case from the perusal of the record of the case that ample opportunities were given to the defence counsel to cross-examine the victim
• It was observed that when the victim has been examined and then cross examined at length twice mechanically allowing the application for recall of victim especially in trial under POCSO Act would defeat the very purpose of the statute.
• Hence, the Court held that there was no error or illegality in the order passed by the High Court or the Special Court.

What are Special Courts under POCSO Act, 2012?

• Section 28 of POCSO Act, 2012 provides for designation of Special Courts.
• The State Government shall in consultation with the Chief Justice of the High Court designate for each district a Court of Session to be a Special Court to try offences under the Act. (Section 28 (1))
• If any Court has been designated as
  • Children’s Court under Commission for Protection of Child Rights, 2005, or
  • A special Court under any other law
    Such Court shall be deemed to be a Special Court.
• As per Section 28 (2) of POCSO Act, a Special Court shall also try an offence, with which the accused may, under the CrPC, be charged at the same trial.
• As per Section 28 (3) of the Act the Special Court shall have jurisdiction to try offences under Section 67B of the Information Technology Act, 2000.
• As per Section 31 of POCSO Act the provisions of CrPC shall apply to proceeding before the Special Court save otherwise provided in the Act.
• Also, the Special Court shall be deemed to be a Court of Session and the person conducting prosecution shall be deemed to be a Public Prosecutor.

What is the Victim Friendly Provisions with Respect to Trial under POCSO Act, 2012?

• Section 33(2):
  • The Special Public Prosecutor and the counsel for the accused while recording the examination-in-chief, cross examination and re-examination of the child shall communicate the questions to the Special Court who shall in turn put such questions to the child.
• Section 33 (3):
  • The Special Court may permit frequent breaks to the child during trial.
• Section 33 (4):
  • The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.
• Section 33 (5):
  • The Special Court shall ensure that the child is not called repeatedly to testify in the court.
• Section 33 (6):
  • The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial
• Section 33 (7):
  • The Special Court shall ensure that the identity of child shall not be disclosed at any time during the course of investigation or trial
  • For reasons to be recorded in writing the Special Court may permit such disclosure if it is in the interest of the child.
  • The Explanation provides that the identity of the child includes the identity of child’s family, school, relatives, neighborhood or any other information by which identity of the child may be revealed.
• Section 33 (8):
  • The Special Court may in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.
• Section 36:
  • The Court shall ensure that the victim is not exposed in anyway to the accused, at the same time ensuring that the accused can hear the statement of the child and communicate with his advocate.
  • The Special Court may record the statement of a child through video conferencing or by single visibility mirrors or by curtains or other device.
• Section 37:
  • The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence.
  • Proviso to Section 37 provides that where the Special Court is of the opinion that the child needs to be examined at a place other than the court, it shall proceed to issue a commission in accordance with the provisions of Section 284 of the CrPC.
• Section 38:
  • While recording the statement of a child the Court may take help of a translator or an interpreter.
  • If a child is mentally or physically disabled, the Court may take help of a special educator.

Source: Supreme Court

Why in News?

The Supreme Court set aside Canara Bank's show-cause notices to employees who were appointed under the Scheduled Castes (SC) quota based on valid caste certificates. The notices had been issued after a 1977 government circular, which equated the 'Kotegara' community with an SC category, was later deemed invalid following the Supreme Court's ruling in State of Maharashtra v. Milind,2000.

• The Court clarified that only the President can modify SC and ST lists under Articles 341 and 342 of Constitution of India,1950 , rendering the state government's modification void.
• Justices Hima Kohli and Sandeep Mehta held in K. Nirmala & Ors. v. Canara Bank & Anr.

What was the Background of k. Nirmala & Ors. v. Canara Bank & Anr. Case?

• The appellants were employed by various banks and government undertakings in Karnataka in positions reserved for Scheduled Castes (SC).
• The appellants obtained SC caste certificates certifying they belonged to the 'Kotegara' community, which was considered under Scheduled Caste by Karnataka government circulars.
• A Constitution Bench of the Supreme Court ruled in 2001 that state governments have no authority to amend or modify the Scheduled Castes list, as this power is reserved for Parliament.
• Following this ruling, the Ministry of Finance declared the Karnataka government circulars including 'Kotegara' in the SC list to be invalid.
• The Karnataka government subsequently issued circulars in 2002 and 2003 providing protection to individuals employed based on the earlier invalidated caste certificates, allowing them to be treated as General Merit category candidates.
• The appellants' caste certificates were cancelled by the District Caste Verification Committee.
• Criminal proceedings were initiated against some appellants but were later quashed by the High Court.
• The employers (banks and undertakings) issued show-cause notices to the appellants asking why their services should not be terminated based on the cancellation of their caste certificates.
• The appellants challenged these notices through writ petitions in the Karnataka High Court, which were rejected by both the Single Judge and Division Bench.
• The appellants then approached the Supreme Court challenging the High Court's decisions.

What were the Court’s Observations?

• The Supreme Court recognized that while the appellants obtained their Scheduled Caste certificates through due process based on Karnataka Government circulars, the state lacked the constitutional authority to modify Scheduled Caste lists, as only Parliament can do so under Articles 341 and 342 of the Constitution.
• Following the judgment in State of Maharashtra v. Milind, 2000 the Government of Karnataka issued circulars (dated 11th March 2002 and 29th March 2003) to protect the employment of individuals who had obtained caste certificates prior to de-scheduling, while reclassifying them as General Merit candidates for future purposes.
• The Court held that the Ministry of Finance's 17th August 2005 communication, which ratified Karnataka's decision and extended protection to bank employees, takes precedence over the 8th July, 2013 Office Memorandum that was issued without considering the crucial 29th March, 2003 circular.
• The Supreme Court ruled that the appellants are entitled to protection of their services under the 29th March, 2003 circular and the 17th August, 2005 Ministry of Finance communication, thereby quashing any proposed action to terminate their employment and setting aside the impugned judgments of the High Court's Division Bench.

What is Article 341 and Article 342 of Indian Constitution?

• The Constitution of India does not explicitly define who belongs to Scheduled Castes and Scheduled Tribes.
• Article 342 empowers the President to specify, by public notification, the tribes or tribal communities deemed to be Scheduled Tribes in relation to a particular State or Union territory.
• For States, the President must consult with the Governor before issuing such a notification.
• The initial Presidential notification under Article 342(1) can be modified only by an Act of Parliament, as per Article 342(2).
• Parliament may, by law, include in or exclude from the list of Scheduled Tribes any tribe, tribal community, or part thereof specified in the Presidential notification.
• Once issued, a notification under Article 342(1) cannot be varied by any subsequent notification, except through an Act of Parliament.
• The determination of whether a particular group is a Scheduled Tribe must be based on the public notification issued by the President under Article 342(1).
• Similar provisions exist for Scheduled Castes under Article 341 of the Constitution.
• Any question regarding the inclusion or exclusion of a particular tribe within the meaning of Article 342 must be resolved by referring to the Presidential notification.
• The Constitution provides special provisions for the protection of interests of Scheduled Castes and Scheduled Tribes, though these are not enumerated in the given text.
• The power to modify the list of Scheduled Tribes (or Scheduled Castes) is vested solely with the Parliament, emphasizing the significance and sensitivity of such classifications.

What are the Legal Provisions of Article 341 and Article 342?

Article 341:

• Article 341 deals with Scheduled Castes.
• It states that:
  • The President of India is vested with the authority to specify, through public notification, which castes, races, tribes, or parts thereof shall be deemed Scheduled Castes in relation to a particular State or Union Territory.
  • For States, the President is required to consult with the Governor of the concerned State before issuing such a notification.
  • The power to modify the list of Scheduled Castes specified in the Presidential notification is exclusively reserved for the Parliament of India.
  • Parliament may, by enacting a law, include in or exclude from the list of Scheduled Castes any caste, race, tribe, or part thereof.
  • Once a notification has been issued under clause (1) of Article 341, it cannot be varied by any subsequent notification except through an Act of Parliament as stipulated in clause (2).

Article 342:

• Article 342 deals with Scheduled Tribes.
• The President of India has the authority to specify, through public notification, which tribes or tribal communities shall be deemed Scheduled Tribes for constitutional purposes.
• This presidential power extends to any State or Union territory of India.
• In the case of States, the President must consult with the Governor of the concerned State before issuing such a notification.
• The specification of Scheduled Tribes may include entire tribes/communities or parts/groups within them.
• Once a notification is issued under clause (1) of Article 342, it cannot be varied by any subsequent notification.
• Only the Parliament of India, through enacted law, has the power to include in or exclude from the list of Scheduled Tribes specified in the presidential notification.
• The Parliament's power to amend the list is an exception to the general rule that prohibits variation of the original notification.
• The constitutional process for designating Scheduled Tribes involves a two-step process:
  • Initial specification by the President, followed by potential modification only through parliamentary legislation.

What are Landmark Judgments on Article 341 and Article 342 of Indian Constitution?

• State of Maharashtra v. Milind, (2000):
  • The Supreme Court held that only Parliament has the power to amend the list of Scheduled Castes through an Act under Articles 341 and 342 of the Constitution, State governments do not have the authority to modify these lists.
• State of Punjab v. Dalbir Singh (2012):
  • The Supreme Court of India affirmed that under Article 341(1) of the Constitution, the President has the exclusive authority to specify which castes, races, or tribes shall be deemed Scheduled Castes.
  • This ruling clarified the scope and interpretation of Article 341, emphasizing the President's role in determining Scheduled Caste status.
• State of Madras v. Srimathi Champakam Dorairajan (1951):
  • The Supreme Court held that reserving seats in educational institutions solely on caste contravenes the right to equality enshrined in the Constitution.
  • This judgment interpreted Article 15(4), which provides for special provisions for the advancement of socially and educationally backward classes, setting a precedent for the limits of caste-based reservations.
• Indra Sawhney v. Union of India (1992):
  • In this landmark case, also known as the Mandal Commission case, the Supreme Court upheld the constitutional validity of reservation policies for Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
  • However, the Court imposed a 50% cap on reservations and established guidelines for their implementation, significantly shaping India's affirmative action policies.
• V. Chinnaiah v. State of Andhra Pradesh (2004):
  • The Supreme Court ruled that the categorization of Scheduled Castes into subgroups does not amount to 'tinkering' with the Presidential list and is constitutionally permissible.
  • The Court clarified that under Articles 341 and 342, while the President has the power to specify Scheduled Castes and Tribes, any subsequent modifications to these lists can only be made by Parliament through legislation.
  • This judgment highlights the constitutional provisions regarding the classification and modification of Scheduled Caste lists.