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More tools for litigators after Commercial Courts Act boosts discovery in India

JSaiDeepak_OnTrialI have often heard it lamented that India lacks U.S.-style discovery mechanisms at trial. While I am no expert on U.S. procedural law, I believe that Indian civil procedure contains substantial mechanisms for discovery. Let us now look at the mechanisms available under the Code of Civil Procedure, 1908 (“CPC”) including those recently introduced to the CPC through the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act“). Employed effectively, they can narrow down the scope of facts and issues that need examination at trial.

Discovery under the CPC

Section 30 of the CPC provides for a court’s power to order discovery. At any time during the conduct of a suit, this provision empowers a court, either of its own motion or on the application of a party, to pass necessary and reasonable orders relating to the delivery and answering of interrogatories; the admission of documents and facts; and the discovery, inspection, production, impounding, and return of documents or other material objects that may be produced as evidence. The provision also empowers a court to issue summons to persons whose attendance is required either to give evidence or to produce documents or other objects that may be led in evidence. A court can also order any fact to be proved by way of an affidavit. While it is commonly assumed that only Order XI of the CPC corresponds to Section 30, Orders XII, XIII, and XVI also contain provisions that relate to Section 30.

What’s the role of a court in discovery proceedings?

The framework that emerges from a combined reading of Section 30 and Orders X, XI, XII, XIII, XVI, and XVIII informs us that the assumption that Indian courts lack powers of discovery because they adhere to the adversarial system of justice may not be true. In Maria Margadia Sequeria v. Erasmo Jack De Sequeria (2012), the Supreme Court, holding that discovery was one of the main purposes of the existence of courts, made some telling observations:

“A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

41. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.

42. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.”

The Court also quoted from the report of the Malimath Committee, which had highlighted the drawbacks in a strictly adversarial system and recommended that courts be statutorily mandated to become active seekers of truth. This fundamental shift in the Indian approach to disputes must be borne in mind when one invokes the mechanisms for discovery. In A. Shanmugam v. Ariya K.R.K.M.N.P.Sangam (2012), the Court, apart from reiterating the ratio of Maria Margadia Sequeria, categorically observed that ensuring discovery and production of documents and a proper admission or denial is imperative for the effective adjudication of civil cases.

Bar raised by Commercial Courts Act

The Commercial Courts Act, 2015 builds on this approach further by introducing an improved discovery mechanism, evident from the language and structure of Rules 1 to 5 in the revised Order XI, which is specific to suits of a commercial nature. The spirit of the revised framework is perhaps best captured by Sub-rule 12 of Rule 1. It unequivocally states that the duty to disclose documents that have come to the notice of the party shall continue until the disposal of the suit. It goes without saying that the reference here is to documents, which are relevant and necessary to decide any question that is germane to the dispute before the court. Critically, both parties are expected to file a list of all relevant documents which are in their power, possession, or control regardless of whether those documents support or undermine their respective positions on merits. Clearly, the bar has been raised under the Commercial Courts Act and both the parties and the courts have access to fairly effective discovery options to facilitate expeditious disposal of suits. The actual employment of these options, of course, remains to be seen.

In the next part of this series, I shall discuss framing of issues and the commencement of trial.

J. Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

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‘Material facts’, ‘material particulars’ and other common CPC terms that are vital for a trial lawyer

JSaiDeepak_OnTrialThere are some terms that are frequently used in the Code of Civil Procedure, 1908 (“CPC”), and it is important to understand them well because the maintainability of a civil action can depend on your understanding. As you know, the court will not address the merits of a dispute until it is prima facie satisfied about the maintainability of an action.

Cause of action, act, and interest

In Orders 1 and 2 of the CPC, where joinder of parties and causes of actions are discussed among other things, one frequently comes across the terms “cause of action”, “interest”, and “act or transaction”. While Order 1 Rule 1 refers to “acts or transactions”, Order 1 Rule 8, which permits the filing of a representative suit, clarifies in its explanation that those claiming to file a representative suit need only have the “same interest”, they need not have the “same cause of action”. What do these terms mean?

An “act or transaction” is different from “cause of action”. The former gives rise to the latter. An actionable cause arises from an act when the act amounts to the infraction of a party’s right. For instance, selling a patented product without consent is an act which gives rise to a cause of action in favour of the patentee. The same act could also give rise to different causes of action in favour of the same right owner or several right owners. In the example above, the sale of a product could result in infringement of a patent as well as a trademark held by the same individual or could infringe several patents held by unrelated parties.

In contrast to Order 1, Rule 1, which deals with joinder of plaintiffs and Order 1, Rule 3 which deals with joinder of defendants, Order 1, Rule 8,which permits filing of a representative suit, uses the term “interest” to increase the scope for joinder of parties beyond what is provided in Rules 1 and 3. The word “interest” has been used to facilitate adjudication of all questions which arise from the same set of acts or transactions. This provision is intended to avoid multiplicity of litigation where all persons are aggrieved by the same acts or transactions. Importantly, this permits one person to represent all other “interested parties”. For instance, if a host of tenants have an issue with an act or acts of the landlord, instead of filing multiple suits or instead of naming all tenants as parties in one suit, one tenant may represent the rest. Therefore, Rule 8 enlarges the scope of joinder of parties so long as there is a communion of “interest” between the parties.

The distinction between “act or transaction”, “cause of action”, and “interest” affects the maintainability of a civil action. The failure to disclose a prima facie cause of action, for instance, would result in the dismissal of a suit at the outset under Order 7, Rule 11. Similarly, to justify arraying a host of parties as defendants, a plaintiff must set out their relationship inter se, along with their nexus to the transaction which has given rise to the cause of action in favour of the plaintiff against all the defendants. Should the plaintiff fail to justify this, his plaint could be assailed for misjoinder of parties or non-joinder of necessary parties.

Now, let us look at “facts” and “particulars”, two terms that occur frequently in relation to pleadings in Order VI.

Facts, material facts, and material particulars

CPCcontentsOrder VI of the CPC, as discussed earlier, deals with pleadings. It uses the terms “material facts” and “particulars” in different places. Are “material facts” and “particulars” the same? The rules of statutory interpretation and even a common sense understanding of the English language tell us that there is a clear difference. “Facts” refer to the broad matrix or the canvas in the backdrop of which a dispute is contested. “Material facts” are those facts which must find mention in a party’s pleadings in order to establish a claim. “Particulars”, on the other hand, refer to the addition of greater detail to the facts.

The absence of material facts prejudices a party’s case at the outset. The absence of material particulars on the other hand, is curable. The Supreme Court has discussed the distinction between material facts and particulars in Udhav Singh v. Madhav Rao Scindia (1975)In this case, the Court held that “all primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts”. The Court also explained the consequences of the absence of material facts and material particulars.

“The distinction between “material facts” and “material particulars” is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure.

If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.”

These terms not only affect the the maintainability of an action, they also influence a party’s prospects at trial when a party is expected to lead evidence with respect to facts in issue. If such facts have not even been pleaded, the party cannot lead evidence to prove such facts. This would necessitate amendment of pleadings under Order 6, Rule 17, which can be a pretty messy affair.

In the next post, I will discuss interim applications under the CPC and the circumstances in which they may be employed.

 J.Sai Deepak, an engineer-turned-litigator, is an Associate Partner in the Litigation Team of NCR-based Saikrishna & Associates. Sai is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation and policy. All opinions expressed here are academic and personal.c 

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New Gujarat terror law creates vague crimes, allows confessions to the police, permits secret trials, gives police immunity

Manish_authorOn March 31, the Gujarat Assembly passed the Gujarat Control of Terror and Organised Crime Bill, 2015 (“the Bill”), which is now awaiting the Governor’s assent. It is modelled on the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”), a law that was criticised for being draconian, in excessive violation of civil liberties, and with several documented instances of misuse. This bill had previously been passed on two occasions, in 2003 and in 2009. Each time, it was unsuccessfully referred for the President’s assent. Now, the Opposition has abstained from voting on it and has appealed to the Governor to decline assent.

Poor drafting, vague definitions

The Bill is poorly drafted, especially in places where it deviates from MCOCA. Definitions of “continuing unlawful activity”, “organised crime”, and “organised crime syndicate” (Sections 2(1)(d), (e), and (f) respectively) all refer to one another in a circular manner and offer little clarity. The definitions are also vague. “Organised crime” includes “cyber crimes having severe consequences” and “running large scale gambling rackets”. What constitutes “severe consequences” or “large scale” has not been defined. These terms are absent in MCOCA. The Bill also attempts to define “terrorist act” in Section 2(h) through a long-winded, logically inconsistent, and grammatically incorrect sentence that is painfully strung together and offers no useful guidance regarding what exactly constitutes the act in question. A much clearer definition (with the same ingredients) is found in Section 15 of the Unlawful Activities Prevention Act, 1967.

The substantive offences are defined in Sections 3 and 4 and are mostly similar to those defined in the MCOCA except for the addition of “terrorist act” in addition to “organised crime”. Besides these acts themselves, conspiracy, abetment, harbour, membership of an organised crime syndicate, and possessing property derived therefrom are all criminalised, with the possibility of life imprisonment (and the death penalty if the organised crime or terrorist act causes death).

Special courts

Sections 5 through 12 deal with special courts and their functioning. The state government, with the concurrence of the Chief Justice, is empowered to set up one or more special courts and appoint judges for exclusively trying offences under the Bill. The special courts have the powers of sessions courts but can also take cognisance of offences. Of interest is Section 10, reproduced verbatim from MCOCA, which states that trials before a special court shall have precedence over trials before any other courts, and imposes a de facto stay on all other proceedings for the period of the trial.

Evidentiary rules for intercepted communication and confessions

Section 14 provides for the admissibility of evidence collected through the interception of wire, oral, or electronic communication. This is where the Bill makes a significant departure from MCOCA – while the latter actually provides a procedure for the interception of communications, the Bill does not do so, only making existing intercepts admissible. Therefore, the procedure that will have to be followed will be as laid down in Rule 419A of the Telegraph Rules, 1951 and Rule 3 of the IT (Interception, Monitoring and Decryption) Rules, 2009. The unhappiness of the drafting reveals itself in a rather confusing (and possibly unnecessary) non-obstante clause at the beginning of the section, followed by the words “under the provisions of any other law”. Interestingly, the first proviso to the section also requires that the accused be provided with a copy of the order of the authority authorising the interception, ten days prior to the hearing where the intercept is sought to be admitted as evidence. This is partially nullified by the second proviso, which gives the judge the discretion to waive the period of ten days.

Among the most controversial of the Bill’s provisions is Section 16, clause (1) of which makes a confession to a police officer admissible in evidence. This section overrides Section 162 of the Code of Criminal Procedure and Sections 25 and 26 of the Indian Evidence Act, 1872, which specifically prohibit the use of statements made to police officers in evidence, in order to protect the rights of the accused by preventing the extraction of confessions under duress or torture by the police. While investigating agencies ordinarily have the option to record statements before a magistrate under Section 164 of the Criminal Procedure Code, the Gujarat bill destroys this delicate balance between the rights of the accused and the powers of the investigative agencies. It opens the door to egregious violations of human rights while extracting confessions from persons detained under its provisions. By means of an eyewash, the Bill provides some ‘safeguards’ in clauses (2) to (4), which are mostly meaningless given that the authority administering them is not independent, but a part of the investigating process. The shallowness of the provision is revealed by clauses (5) and (6), under which both the statement and the person making it are required to be forwarded to a magistrate within 48 hours. In such a circumstance, the statement could well have been recorded by the magistrate. This section appears to be an elaborate ruse for legitimising confessions to the police, and the inhuman machinations that go behind it: under clause (7), an allegation of torture by the person making the confession does not invalidate the confession, but merely prompts a reference to a civil surgeon for a medical examination.

Witness protection and closed trials

Section 17 contains provisions for the protection of witnesses, and is modelled on Section 19 of MCOCA. It empowers the special courts to hold the trial in-camera and take any measures necessary for concealing the identity and address of the witnesses. As part of this power, Clause 3(d) allows the court to make a decision that “it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner”. This is an extreme provision which is reminiscent of the attempt at holding a “secret trial” in the UK for terrorist offences, which was rejected by the Court of Appeal on the ground that “open justice” was both an integral part of common law and a means of ensuring public confidence in the legal system. The same considerations regarding open trials apply to India as well: Section 327 of the Criminal Procedure Code mandates that trials be held in open court, with limited exceptions on reporting. In a situation where the Supreme Court has already laid down guidelines for court reporting, the blanket media gag proposed by the Bill is extremely troubling and avoidable.

Procedural safeguards diluted, stricter conditions for bail

Section 20 dilutes several procedural safeguards provided to the accused under the Code of Criminal Procedure. On the lines of MCOCA and UAPA, it increases the time for which a person may be detained in police and judicial custody, pending investigation, to 30 and 180 days respectively. Clause (3) removes the option of anticipatory bail and clause (4) provides for extremely restrictive conditions regarding bail, almost mandating the acquiescence of the public prosecutor. Clause (5) is another controversial provision, which denies bail even if the accused had been released on bail in an offence under any other law on the date of the offence. This clause is based on Section 21(5) of MCOCA, which was held to be unconstitutional by the Supreme Court in 2008. The Bill therefore deviates from the well-established jurisprudence of bail being a right and jail being the exception. Thus, even if no charges are made out, people detained under the provisions of the Bill will have to languish in jail.

Burden of proof shifted

Section 21 of the Bill, which is identical to Section 22 of MCOCA, is a reverse-onus clause, which shifts the burden of proof from the prosecution to the accused in certain circumstances. In doing so, it dispenses with the presumption of innocence of the accused and breaks the “golden thread” of criminal jurisprudence, requiring the prosecution to prove the guilt of the accused beyond reasonable doubt, which originated in common law but has become a settled proposition in Indian criminal jurisprudence as well.

Immunity for state functionaries

Image above is from the website of the All India Radio.

Image above is from the website of the All India Radio.

As a matter of abundant caution, Section 24 of the Bill contains another non-obstante clause giving it overriding effect over all other laws for the time being in force. Section 25 caps off the draconian legislation by granting complete immunity to all state functionaries for any action taken under the provisions of the Bill. This effectively provides impunity to police officers for torture and extra-judicial methods employed in criminal investigations, under the garb of “anti-terror operations”. Thus, even in cases of false prosecutions, like the 2002 Akshardham terror attack, the victims will be left empty handed and without any recourse to justice.

“Tough anti-terror laws” have rarely if ever proven useful at combating terrorism, and usually serve to provide a cover for the incompetence of investigating agencies. A case in point is the aforementioned Akshardham terror attack case, where the Supreme Court came down heavily on the investigating agencies for conducting a shoddy investigation, which led to the framing of innocent persons, while the actual masterminds behind the attack were still at large. Gujarat already has a history of draconian legislation in the Gujarat Prevention of Anti-Social Activities Act, 1985 (“PASA”), which authorises preventive detention, and has been heavily criticised for being used to detain activists and protestors. For now, hope rests with the Governor and the President to prevent the new Bill from becoming law. Unfortunately, judicial history shows that the Supreme Court has also been extremely restrained while testing the validity of these laws under the Constitution, with the most draconian provisions being upheld repeatedly. The last of these was MCOCA in 2008, which was upheld (although the challenge was mainly on grounds of legislative competence rather than violation of Article 21). While hope is eternal, the outlook remains bleak if the Bill is assented to.

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

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Where process is punishment: Supreme Court shows how additional police powers in terror laws encourage injustice

ShadanFarasat_SupremeCourtofIndiaOn July 18, the Supreme Court delivered a judgment releasing from custody, twelve men who had been accused of orchestrating the blasts in Surat in 1993. Justices T.S. Thakur and C. Nagappan delivered the decision titled Hussain Ghadialy and Others v. State of Gujarat in Criminal Appeal No. 92 of 2009. The judgment itself does not point out the period for which the accused had been incarcerated. Given that the blasts happened over twenty-one years ago, it would be reasonable to presume that the accused had spent over fifteen years in custody for an offence that the Supreme Court has now determined they did not commit.


Justices Thakur and Nagappan of the Supreme Court of India.

Speaking for the Court, Justice T.S. Thakur held that the under Section 20A of the now-lapsed Terrorist and Disruptive Activities Act, 1987 (“TADA”), the approval of the District Superintendent of Police was necessary before any information about the commission of an offence under the provisions of TADA can be recorded. In this case, no such permission was obtained. All proceedings under TADA therefore, stood vitiated. The only evidence against the accused was their confessions before the police, which could be admitted as evidence under Section 15 of TADA. Since the provisions of TADA were not applicable however, the convictions could not be sustained without independent evidence.

In another recent judgment, that of A.S. Ajmeri v. State of Gujarat, Criminal Appeal No. 2295-96 of 2010, delivered on May 16, another bench of the Supreme Court released on very similar grounds, the accused under the Prevention of Terrorism Act, 2002 (“POTA”). In this case too, the police force involved was the  Gujarat Police and the Court passed severe strictures against them.

LawSchoolInductionThese two cases really highlight the severe damage caused by the provisions of these draconian laws. Far from making the apprehension and conviction of actual terrorists more credible, these provisions gave the police another tool to frame innocent individuals only to show that the case has been solved, even as the actual perpetrators of such violence remain un-apprehended.

The more recent case before the Supreme Court was one of the many where the sole basis for conviction in a TADA case was the confession before the police. Under the normal criminal law, such confessions are inadmissible as evidence. In most of these cases, the designated TADA courts have given too much leeway to the prosecution and convicted the accused only on the basis of a confession before the police, even though there were serious irregularities in the initiation of proceedings under TADA or in the recording of the confessions, which are very often fabricated. Under TADA, the first and only appeal lies to the Supreme Court. By the time the Supreme Court finally corrects these errors and acquits the accused, more than a decade has passed. The process itself becomes the punishment.

While TADA itself has been repealed, many of the questionable convictions made under this law are still pending appeal before the Supreme Court. Even if the accused are released in these appeals, given the absence of jurisprudence in India over compensation for wrongful or malicious prosecution, they are usually not granted any compensation for the crucial years of their life that they spent in custody. After the years of incarceration, most of the accused are just happy to be out of jail and reunite with their families.

policeindiaThis experience with TADA and POTA shows that draconian provisions giving additional powers to the police, especially in relation to the admissibility of evidence is, in the absence of genuine police reform, likely to encourage an already compromised police force to misuse them to frame innocent civilians while the real perpetrators roam free. The solution lies in having a more professional and uncompromised police force that is able to honestly investigate and solve both regular crimes and terrorism cases alike.

Shadan Farasat is an Advocate-on-Record at the Supreme Court of India.


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Rape shield: Prohibit use of victim’s sexual history in rape trials

SuhasaniRao_RainmakerfacultyUnderstanding the need for greater awareness to deal with sexual offences has come into focus over the last two years. The law in this regard is changing. However, there still remain some gaping holes in a framework that should be comprehensive. This article explores some of the issues that remain unaddressed by the current laws in force, in India, concerning sexual offences.

Rape Shield Laws

In India, victims of sexual offences are guaranteed anonymity. Under Section 228A of the Indian Penal Code, 1860, disclosing the identity of a victim of certain sexual offences is a crime. Till as late as 2003, it was lawful to bring up the previous sexual history of a victim of rape in order to establish consent. In 2003, a provision of the Indian Evidence Act, 1882 (“Evidence Act”) was deleted in a move towards providing protection to the victims of rape. Further, Section 146 of the Evidence Act now prohibits the questioning of a victim of rape along the lines of her previous sexual history in order to prove consent, in a rape trial. These provisions together, provide a limited rape shield in the Indian legal framework.

Rape shield laws limit the ability of defendants to cross-examine complainants in rape trials about their past sexual history. They also prohibit the disclosure of the identity of alleged rape victims.

SexualHarassmentAtTheWorkplaceMOOC2The philosophy behind these laws, firstly, is that the prior sexual history of a complainant is irrelevant to the question of whether an offence of rape can be established. The facts of the particular instance should be the only evidence that determines guilt. They provide an extra layer of protection to “victim blaming”, the phenomenon of holding the victims of crimes partially or even completely responsible for the rape. The violation of their anonymity and the disclosure of the identity of a rape victim often lead to more violation through increased scrutiny and the stigma attached to the offence of rape. Moreover, given that sexual offences violate the most fundamental right of a human being to exist in peace with full bodily integrity, rape victims often feel a deep sense of fear and trauma when identifying their attackers. Maintaining the anonymity of rape victims is therefore also aimed at providing victims with a sense of security when noting their testimony.

Rape shield laws around the world

These laws trace their origins to the 1970s and 1980s in the United States of America when most of the states provided different levels of protection for rape victims such as mandatory anonymity and restrictions on the admissibility of the previous sexual history of victims as evidence in rape trials. Since then, rape shield laws have been formulated in many jurisdictions. In the United Kingdom, the Youth and Criminal Justice Act of 1999 prohibited the use of a victim’s sexual history as evidence in a trial. In New Zealand, a rape victim’s sexual history has to be vital to the context of the trial for it to be permitted in evidence. Otherwise, the law prohibits the use of such evidence. Similarly, in Australia, rape shield protection is applicable in all territories. Even Ireland, a fairly conservative jurisdiction, has rape shield protection for victims of sexual offences with very limited exceptions to the prohibition of admissibility of the victim’s sexual history as evidence.

Conflict with fair trial rights

Often however, rape shield laws present a conflict with the defendant’s rights to a fair trial, including the defendant’s right to confront the complainant and challenge the veracity of the allegation. The rape shield law in the United Kingdom for example, was read down by the House of Lords, holding that a law that bans juries in rape trials from hearing evidence that an accused had a previous sexual relationship with the accuser breached his right to a fair trial.

Thus, most rape shield laws are couched in negative terms, completely excluding the rape victim’s sexual history from being introduced as evidence. Thereafter, exceptional cases are listed where such evidence may be introduced, notable among them being situations where the defendant’s constitutional right to a fair trial may be violated.

The argument for some measure of anonymity of the defendant in trails of sexual offences is finding some ground in current debate as well. It is opined that it is necessary to keep the identity of the defendant under wraps, at least until the judgment in the case is declared. This is because the stigma attached to sexual offences can deeply affect and destroy the lives of not just the direct victims of the offences, but also the relatives and family members of the defendants.

Absence of a rape shield law in India

Indian laws provide limited protection to victims of sexual offences by prohibiting the disclosure of their identity. The need for a rape shield law in India needs to be seen alongside efforts to combat other types of secondary victimisation of rape victims. Rape victims in India would often be subject to insensitive examination and humiliation by public authorities such as medical examiners and law enforcement professionals in charge of investigating the offence, including the “two-finger test”, (“TFT”) involving a physical examination by a medical practitioner of the rape victim’s genitalia. (In India, a man cannot be a victim of rape). The medical practitioner would insert two fingers into the rape victim in order to establish the “laxity” of her muscles and determine whether the victim was “habituated to sex”. A finding that the complainant was habituated to sex would assist the defence. In fact, in such cases, the defendant would claim that any sexual intercourse between the victim and himself was consensual since the victim was “used to sexual intercourse”.  The pervasiveness of the two-finger test meant that successful prosecutions for rape were limited to instances where the victim was a virgin or at least perceived to be so, at the time of the occurrence of the crime.

The Supreme Court of India has repeatedly grappled with the TFT and has had many a scathing opinions on its applicability. A decisive change of the law occurred last year in Lillu v. State of Haryana in 2013. The Court outlawed the TFT in the following words: “…., the two finger test and its interpretation violates the right of rape survivors to privacy,  physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

In light of this judgment, on December 16, 2013, the Department of Health Research under the Indian Council of Medical Research issued guidelines to prohibit the use of the TFT in forensic medical examinations of victims of rape. This prohibition is now part of the Instruction Manual for Forensic Medical Examination Report of Sexual Assault (Victim) brought out by the Government of India.

It is now a medically accepted fact that the loss of virginity can occur without intercourse. Given this scientific evidence, it becomes necessary to re-evaluate the way the law perceives and protects victims of sexual offences. Discarding the use of the TFT was a small step.

There is an immediate need for clear legislative directives throughout the judicial hierarchy, the media and members of the law enforcement agencies to approach the crime of rape with greater sensitivity. It is the need of the hour to implement a humane and a sensitive understanding of the offence of rape so that a rape victim’s trauma is not prolonged through brutal investigation and trial procedures.

(Suhasini Rao is part of the faculty on

(This article was corrected on May 1, 2014 to remove an error of law. The prior version did not take into account the 2003 amendment to the Evidence Act. We are grateful to our readers for bringing this to our attention. – Editor)

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New rules of evidence

Image above is by Aju John for

Image above is by Aju John for

In May this year, the Indian Express carried a report about a woman whose husband of two months had not updated his relationship status on Facebook from “single” to “married”. She approached an Aurangabad court for divorce, claiming that she was unable to trust him.

On June 2, the Times of India reported the story of a man, who had reportedly been patient with his spouse in spite of her refusal to consummate the marriage, but had a change of heart and filed for annulment when he chanced upon photos of her mingling with male friends on Facebook. He is now using them as evidence against his wife.

These are not isolated incidents. Prashant Mendiratta, who practises family law and criminal law in New Delhi, said that in his experience, eighty per cent of cases somehow involve the Internet. “You have cases where the husband is secretly watching the wife’s profile on the Internet, following her online movements and activities, and vice versa.” Mrs. Ujjwala Mandagi, a Bangalore-based family advocate, said that while issues of privacy had to be dealt with firmly, Facebook was like a detective agency. “You can discover many things that you wouldn’t otherwise come across.”

Lawyers are not digging up this evidence alone. “Clients themselves bring in these issues”, said Mr. Mendiratta. People often find that their spouses have web pages where they have posted incorrect information, including about their marital status. Complaints that the spouse had locked up their mobile phone or laptop computer or that they had uploaded “questionable” photos onto their web pages, were common, he said.

The use of social media evidence is more common in some other jurisdictions. A recent survey conducted by the American Academy of Matrimonial Lawyers showed that eighty-one per cent of the top divorce attorneys in America had said that they had witnessed a rise in the number of cases using social media in evidence. Sixty-six per cent said Facebook was their primary source of social media related evidence. Californian family law attorneys Dishon & Block released a very interesting infographic about the use of social media in evidence and the various ways in which it being used in court. According to it, social media evidence is now used as evidence of a person’s state of mind, of time and place, and of a person’s actions and communications. In the U.K., a law firm revealed that over two years, it had seen a fifty per cent increase in the number of behaviour-based divorce petitions containing the word Facebook. Thirty-three per cent of the five-thousand divorce petitions filed with the firm mentioned the popular social networking website.

Probative value

Questions have also been raised about the manner in which this evidence has been used in courts. Mr. Sreekumar, a Bangalore-based family lawyer, feels that such evidence is often used to mislead courts because “it is taken out of context”.

What is the probative value of material such as photos published on social media and status messages, especially when removed from their original context? Sensitive matters like divorce proceedings normally demand a greater measure of caution and circumspection. Says Sreekumar, “Because of the permissibility of electronic media as evidence, as long as the items introduced meet the broad requirements of the Indian Evidence Act, 1860, anything and everything can be brought into evidence.”

Mrs. Mandagi added that even though some of this evidence is dubious, judges do allow it provided that the parties agree to it. “If one party produces a photo from Facebook, and the other party agrees that it was a photo of them and that it was on Facebook, the judges allow it to be introduced into evidence.” According to Mrs. Poorvi Chothani, a partner at a Mumbai-based firm, a balance needs to be struck when considering social media evidence. “[W]hile I personally feel that such evidence ought not to be disregarded straight away, it should not be given too much importance either, without necessary corroboratory evidence.”

Judges, who play an important role in such matters, have not been consistent. Some judges have allowed the evidence to be admitted too easily and some others do not take it seriously enough. Mr. Mendiratta provided a pointed example of the latter situation, where, in one case, both the Delhi High Court and the Supreme Court refused to entertain evidence drawn from social networking website Orkut. “[Here], his wife had an Orkut profile where she had put up a lot of false information about herself, such as her being unmarried and without children, whereas in reality, she was married and had a child. She had put up several explicit photos of herself and there were a lot of sexually related comments posted by viewers as well.” The High Court rejected the husband’s claims, disregarding the evidence on the grounds that the husband had married a “city girl”, and therefore shouldn’t be complaining about such matters. The Apex Court too refused to entertain the husband’s petition, hinting that the husband could put up photos of his own and that he might already be viewing questionable content online. Mr. Mendiratta believes that with the increased use of social networking and the ease of creating fake identities on the Internet, the judiciary would take note of the dangers posed by the use of social media related evidence and similar content.

Ranjana Iyer, a Mumbai-based advocate, called for sound judicial action to overcome these hurdles. “Judges ought to consider what is at stake before them, before giving such evidence too much weight.” Advocate Sreekumar suggests a different route – a skillful and thorough cross-examination. “The true trustworthiness and strength of such evidence has to be tested against a good cross examination, which can often serve to demolish the credibility of things like out of context photos and the like.” Others feel that the best precaution is to pre-empt the problems by exercising caution when putting up information about oneself on the Internet. Says Mrs. Iyer, “More than anything else, I think one has to be extremely wary of social networking, and what information one puts up about oneself online, because the potential for abuse is enormous. And the numerous cases coming before the courts with disputes caused by social networking sites is evidence of this abuse.”

(Akshay Sreevatsa is a Features Writer at

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Conflict between the CPC and the Evidence Act

In the case of Dinesh Viniyog Limited and Others v. The Oriental Gas Company Limited and OthersG.A. No. 859 of 2009 (2011 AIR CC 1405 (CAL)), the judgement was given by Justices Bhaskar Bhattacharya and Sambuddha Chakrabarti. The brief facts of the case were thus:

The respondents in the appeal had filed an execution application in the Calcutta High Court for execution of a decree and order passed in an English court in favour of the respondents. The appellant filed an objection, saying that the decree and order were not properly certified and that the decree holder had already realised more than the decretal dues by selling certain shares. The Single Judge of the High Court acknowledged the objection and gave the respondents three months time to remedy the same. Pursuant to such direction, the respondents filed the certified order. The appellant objected to the same again. However, the Single Judge rejected such objection and passed an order. The appeal was filed in appeal to the same.

Justice Bhaskar Bhattacharya Image above is from the website of the Calcutta High Court.

Justice Bhaskar Bhattacharya
Image above is from the website of the Calcutta High Court.

The appellants raised two main objections in the instant Letters Patent appeal. At first, it was contended that the purported certificate and the true copy of the order were not in compliance with the Supreme Court Rules, 1965 as applicable in India. It was further contended that there was a binding requirement to comply with Order 71, Rule 13(4) of the aforesaid rules for a judgment to be executed in India. Secondly, it was contended that an interest amount had been levied which was contrary to law and was passed without jurisdiction.

The Court negatived both the contentions of the appellant. With regard to the first contention, the Hon’ble Division Bench was pleased to hold that the purported certificate and true copy of the order passed by the English Court were in compliance with Section 44A of the Code of Civil Procedure, 1908 (“the CPC”) and thus executable in courts of India. Section 44A of the CPC is set out below:

Section 44A: Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of Section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Explanation 1- “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2 – “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect to a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.

As regards the second contention, the Hon’ble Division Bench stated that appellant should have contested the objection to such interest levied in the appropriate forum in England and the same issue could not be opened or adjudicated in India. However, the appellant failed to do so. The Hon’ble Division Bench, being only the executing court, was bound by the certificate showing interest had been levied.

The first part of the judgment needs a closer scrutiny and consideration. The decision of the Hon’ble court is based purely on the CPC. The Hon’ble division bench, however, failed to take into account Section 82 of the Indian Evidence Act, 1872 (“the Evidence Act”). That section provides for the presumptions to be followed by a court of law with regard to documents which are admissible in England:

Section 82 of the Evidence Act, 1872 states as follows:

Presumption as to document admissible in England without proof of seal or signature – When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

Section 44A of the CPC merely provides for the processor execution of a foreign judgment in the courts of India. However, Section 82 of the Indian Evidence Act is a special law with regard to England and Ireland and thereby all such documents which would have been admissible in England would be deemed to be admissible in India. The Hon’ble division bench, when deciding the instant matter, could have taken advantage of this provision and decided on the admissibility of the documents produced on this basis. The court, however, failed to do the same, which unfortunately in my opinion is a grave mistake for admissibility of judicial documents coming from England could only be analysed through the prism of Section 82 of the Indian Evidence Act.


(Anubhav Sinha is an advocate in Kolkata.)

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Krishna Chandra Mahato(2011): Lax approach to evidence in paternity disputes

In Krishna Chandra Mahato v. Smt. Ali Mahato and Another, the Jharkhand High Court was recently asked to decide a girl’s claim of maintenance from her father. The matter was taken up as a criminal revision petition with the Lower Court holding in favour of the girl. The Court had ordered a monthly maintenance of Rupees Two thousand five hundred to be paid by the alleged father. With respect to the discussion of the law involved in Section 125 of the Criminal Procedure Code, 1973, the matter does not reveal any extraordinary feature. The method adopted by the Court to adjudicate the matter however, will interest the student or practitioner of law.

The petitioner disputed the allegation that he had a relationship with the applicant girl’s mother and that the applicant girl was born as a result of the cohabitation. He argued that there was no material evidence to show that the girl concerned was his daughter. It was at this juncture that the Court went into the findings of fact and considered the various documents produced before it.

Justice Jaya Roy mainly looked at two documents—the birth certificate of the applicant girl and the school register. The birth certificate of the applicant girl bore the name of the petitioner as the father, and it was contended before the Court that this fact alone proved that the petitioner was indeed the father of the girl. Furthermore, it was submitted that the fact that the name of the petitioner had also been placed in the school register as the father of the respondent, conclusively proved that she was the daughter of the petitioner.

ND Tiwary, seen in the picture above at a function he attended while he was Chief Minister of Uttarakhand, was recently ordered by the Delhi High Court to submit to a DNA analysis of his blood sample during the course of a paternity suit. The Supreme Court refused to stay the order. The Jharkhand High Court however, did not feel the need for the accuracy offered by medical tests, and chose to rely on two documents presented in evidence. Image above is from the website of the Press Information Bureau.

ND Tiwary, seen in the picture above at a function he attended while he was Chief Minister of Uttarakhand, was recently ordered by the Delhi High Court to submit to a DNA analysis of his blood sample during the course of a paternity suit. The Supreme Court refused to stay the order. The Jharkhand High Court however, did not feel the need for the accuracy offered by medical tests, and chose to rely on two documents presented in evidence.
Image above is from the website of the Press Information Bureau.

At a superficial level, this may seem conclusive. In the case of a birth certificate however, there is no requirement for the father to be present or that certified documents of the father are produced for entering in the name of the father in that certificate. Therefore, when a child is born, it is not unlikely that one parent, without any verification, may enter the name of another. In such a situation, in spite of the presumption under Section 114 Illustration e of the Indian Evidence Act (though this was never taken into account by the Court), it can never be conclusively stated that a birth certificate in any manner indicates the validity of any proposition in relation to a dispute regarding paternity. Secondly, the insertion of the name of the petitioner as the father in the school register was accorded after the institution of the maintenance application. Again, no certification process or verification is required for putting anyone’s name as a parent in the school. A person could enter the father’s name as Machu Pichu and no one would still question it. This kind of documentary evidence has no real value to solve a paternity dispute.

The High Court however, held that the aforementioned documents were conclusive proof that the petitioner was indeed the father of the applicant girl. The Court overcame the hurdle of the name of the petitioner in the school register having been inserted at a later date by holding that the petitioner had not taken any action against such insertion and so a positive inference of his consent to such an insertion could be drawn.

The Court unfortunately, failed to appreciate the medical and legal developments of the past hundred years in coming to such a conclusion. There are two main tests that have evolved over the years with regard to paternity disputes—and DNA analysis seems the most authoritative. The Supreme Court has however, opined that DNA analysis should not be resorted to as a matter of course and can only be resorted to in extreme cases. The reasoning for such restriction is in itself clouded with ambiguity and perhaps the Apex Court feels that the procedure is too expensive but the mechanism is available for judicial use to resolve disputes. The other mechanism is a blood test. Here too, the Supreme Court has held that no person can be forced to give a blood test. However, if the party is not reluctant to provide the required blood samples then such tests can be ordered and the court can use the results of the same.

The Court in Krishna Chandra Mahato did not resort to any of the proven medical methods and based its decision on ambiguous documents in its hurry to do some justice. It does not appear from the judgment that the father was even provided with an opportunity to run a blood-sampling test. The reasoning as well as the judgment is at best not in consonance with the ideas that have pervaded legal systems around the world. The decision needs to be looked into and the Apex Court should take a stricter note of such judgments.

(Anubhav Sinha is an advocate in Kolkata.)

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Photostat copies as proof: Secondary evidence and notice

Can a photocopy of a contract allegedly breached be produced as evidence of it by the plaintiff? Image above is from Aashim Tyagi's photostream on Flickr.

Can a photocopy of a contract allegedly breached be produced as evidence of it by the plaintiff?
Image above is from Aashim Tyagi’s photostream on Flickr.

The Gauhati High Court was recently posed a question pertaining to secondary evidence in a matter relating to the claim of damages for breach of contract. In Pranab Kumar Saha v. Tripura Truck Owners Syndicate, the plaintiff had a contract with the Food Corporation of India (“the Corporation”) as a sub-contractor, and alleged that the disputes before the Court arose from the same contract. He claimed that he did not have a copy of the original contract, and only produced its photocopy to prove his case. The plaintiff alleged that he was never provided with the ‘general copy’ or a ‘true copy’ of the contract.

The question before the Division Bench of Chief Justice R.S. Garg and Justice A.C. Upadhyay was a technical one. The respondents’ argued that the plaintiff could not lead secondary evidence as proof of the contract that was breached, as he had failed to serve notice to the Corporation to provide an original copy of the contract to the Court, under Section 66 of the Indian Evidence Act. It was not in dispute whether secondary evidence could be used in court to prove the facts alleged by the plaintiff.

Section 66 of the Indian Evidence Act provides:

Rules as to notice to produce. Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.”

The Gauhati High Court strangely upheld this technical objection and ruled that the plaintiff could use no secondary evidence, as the technical requirements of Section 66 of the Indian Evidence Act had not been met. The Court held that the ordinary photocopy of the contract, which the plaintiff had produced, could not be taken into consideration.

I disagree with the ruling on two counts. Firstly, I feel that the Court completely overlooked the Clause 2 of the Proviso to Section 66. The Clause states that the notice requirement shall be waived where “from the nature of the case, the adverse party must know that he will be required to produce it”. In this case, the defendant knew of the dispute, and the fact that the entire matter hinged on the agreement that the plaintiff and defendant had entered into, the original copy of which was in the possession of the defendant. This is a fit case for application of the Proviso and it was not necessary to serve a notice to the defendant, who had tendered appearance in all the proceedings, to produce the contract in original.

Secondly, the Supreme Court has recognised – for instance, in Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., AIR 2009 SC 12 – that even photocopies of agreements containing an arbitration clause would be sufficient. The mood of the judiciary has shift significantly towards the acceptance of photocopies of documents as genuine, largely due to technological advancements. In light of this, the Gauhati High Court erred in restricting the plaintiff from adducing secondary evidence, solely because of that technical defect.

(Anubhav Sinha is an advocate in Kolkata.)

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