Section 149 of the IPC states: ‘…every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.’

By Kaustubh Shukla

A Special CBI Court on Wednesday acquitted senior leaders of the Bharatiya Janata Party in the Babri Masjid Demolition Case. Out of many, a few of the reasons for acquittal was that there is no evidence of common object and the CBI could not prove as to when the plan was hatched to demolish the structure etc.

Despite the witness testimonies of exhortation by the accused, the CBI court held that witness is not credible. It is quite surprising that the CBI could not produce evidence with respect to the exhorting speeches by the accused. It is a matter of record by way of various electronic evidence, witness etc. that prove the presence of the accused persons at the site. The electronic and documentary evidence, when corroborated by the eyewitness testimony, very much inspires confidence.

The issue is not whether the accused persons were rightly acquitted, or not because that it is now going to be the subject matter of the appeal in some days. The issue is whether the legal analogy applied by the CBI Court, especially regarding section 149 of the IPC, also applies to the common citizens who are facing trials and appeals in various courts across the country.

The accused person was charged with Section 147, 149, 120B R/w 114, 153A, 153B, 505, 295, 295A, 395, 332, 338, 201 & 505(1)(B) of the Indian Penal Code. Out of all the above sections the most important and the one which requires consideration, is the parameter of Section 149 of the Indian Penal Code, the critical part of which is as under:

“Section 149: Every member of unlawful assembly guilty of offence committed in prosecution of common object

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

Common object was never an easy thing to prove, it is therefore always for the court to draw inference by connecting the chain of events.

In the background of the prolonged litigation in Babri Demolition Case, wherein Hon’ble Supreme Court in 2017 revived the conspiracy charge and also considering the political history of the movement, the CBI court could have examined the evidence in a more careful manner. The Indian judiciary is already facing criticism on various media platforms. The common citizen is losing hope. In this scenario courts should act as a custodian of the society to uphold the spirit of Constitution.

Keeping aside the merit of all the other sections with which the accused in the Babri Demolition Case are charged with, and focusing on the parameter of section 149, it is very strange the manner in which the CBI court applied its analogy.

Section 149 is a section wherein every person of an unlawful assembly is liable when a member of the unlawful assembly knew that that an offence is likely to be committed in the prosecution of that object. To attract the mischief under Section 149 of the Code, it is not necessary that each of the accused must commit some illegal, overt act. When the assembly is found to be unlawful and if offence is committed by any member of the unlawful assembly, in prosecution of the common object every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly.

It has to be borne in mind that an assembly which is not unlawful when assembled, may subsequently become an unlawful assembly. Overwhelming evidence of firearm, arms etc. are also compelling evidence as stated in Ramesh Vs State of Haryana (2010)13 SCC 409.

It was stated in the case Ramachandran v. State of Kerala, (2011) 9 SCC 257 thatfor “common object”, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly. The common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.

Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under the second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression “know” does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC.

The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.

The Supreme Court in a recent decision in case of Subed Ali & Ors Vs State of Assam has held that there can hardly be any direct evidence on common intention. It is more a matter of inferences to be drawn from the facts and circumstances of each case based on cumulative assessment of the nature of evidence available against participation. The foundation for conviction on the basis of common intention is based on the principal of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared common intention.

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It is therefore not necessary that before a person is convicted on the ground of common intention, that he must be actively involved in the physical activity of assault. A common intention to bring about a particular result may be developed on the spot as between a number of persons deducible from the facts and circumstances of a particular case. Coming together to a place of occurrence, some of all of whom may be armed, the manner of assault the active or passive role played by the accused, are but some of the material for drawing inferences.

Understanding the above legal proposition regarding section 149 of IPC in the background of the decision passed by the CBI court for acquitting the accused persons, the question is: are the propositions suggested by the CBI court really applied by trial courts across the country all the time, or are the propositions applied just because – as in the present case – the accused persons are high profile personalities of our country and their political careers grew to new height because of the demolition of the disputed structure?

Whether the accused should be convicted or not, and if convicted, what the quantum of sentence should be etc. are different issues. We are not concerned with those here.

However, the manner in which the legal principal is applied by the CBI court will raise discontent among various accused whose trial and appeal are pending and have been implicated in the offence for merely being present at the place of occurrence of the offence. The court should take effort to restore the faith in judiciary. The whole country’s eyes are towards high profile cases.

The court is an eye of law, but in the present context and amid recent developments, this eye seems to vary according to the status and political muscle power of litigants. The same is definitely a violation of articles 14 and 15 of the Constitution of India. It is a fact that justice should not only be done, but seen to be done and that is definitely not the case in the present scenario.

The Author is an Advocate-On-Record, Supreme Court of India

Opinions expressed in the above article are the author’s own

There has been a lot of hue and cry over the Farm Bills that the Union government had formulated and pushed through Rajya Sabha. The Opposition protested and protesting farmers, especially from agriculture dominated states like Punjab and Haryana, took to the streets. However, what exactly is the grouse of the farmers?

During the current monsoon session of Parliament, of the three contentious farm bills the Lok Sabha, through voice vote, passed the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 and the Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020. The Essential Commodities (Amendment) Bill, 2020 was passed earlier thisweek.

The bills were passed amid an uproar and highpolitical drama, both inside and outside Parliament. While Prime Minister NarendraModi hailed the farm bills and called their passage a ‘watershed moment’ for Indian farmers, the Opposition termed the bill anti-farmer and compared them to a death-warrant. On this issue the unruly behavior of few MP’s was on display after the opposition MPs stormed the well of the house , threw their microphones and tore up papers which ultimately led to their suspension for a period of 7 days, by Deputy Chairman Harivansh NarayanSingh. 

What are these bills all about?

Notes PRS Legislative Research (PRS): “(The) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 seeks to allow barrier-free trade of farmers’ produce outside the physical premises of the markets notified under the various state Agricultural Produce Marketing Committee laws (APMC Acts).  The Bill will prevail over the APMC Acts in the area outside such markets.

The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 also contains a provision of setting up of electronic trading platforms. As per PRS,

A section of this bill says no fees will be levied by the states. The Bill prohibits the state governments and APMCs from levying any market fee, cess, or any other charge on the trade of scheduled farmers’ produce outside the APMC notified markets.

The bill on agri markets seeks to allow farmers to sell their produce outside APMC ‘mandis’ to whoever they want. Farmers are expected to get better prices through competition and cost-cutting on transportation. 

So why are there protests?

The farmers say that they are apprehensive about not getting the government-promised Minimum Support Price (MSP) for their produce and are also concerned about the upper hand that huge agri-business companies and big retailers would have during negotiations. Moreover, it may actually lead to the reduction of benefits accruing to small farmers, because these huge companies will easily dictate the price at later stages.

But farmers are concerned that this will eventually lead to the end of wholesale markets as they have known it for ages, and also the end of assured prices. That will leave them with with no back-up option. That is, if they are not satisfied with the price offered by a private buyer, they cannot return to the mandi or use it as a bargaining chip during negotiations, once the mandis are abolished by the state governments, because the existence of empty mandis will not serve any purpose to the government.

The government has said the mandi system will continue, and they will not withdraw the Minimum Support Price (MSP) they currently offer either. But farmers are suspicious. Perhaps the government needs to come out with a written law that they will not withdraw the MSP or the mandi system. These pros and cons vary from one farmer to another and person to person. Besides, this Bill could mean states will lose ‘commissions’ and ‘mandi fees’.

Contract farming

Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 provides a framework for farmers to engage in contract farming, i.e. farming as per an agreement with the buyer before sowing, under which farmer promises to sell his produce to the buyer at a pre-determined price.

PRS says: 

The bill allows private buyers to hoard essential commodities for future sales, which only government-authorised agents could do earlier; and they outline rules for contract farming, where farmers tailor their production to suit a specific buyer’s demand. One of the biggest changes is that farmers will be allowed to sell their produce at a market price directly to private players like agricultural businesses, supermarket chains and online grocers. Most Indian farmers currently sell the majority of their produce at government-controlled wholesale markets or mandis at assured floor prices.

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Essential Commodities Amendment Bill

Essential Commodities Amendment Bill 2020 makes provisions for the removal of items such as cereals and pulses from the list of essential commodities and attract foreign direct investment in the sector. Some sections have raised the fear that this will compromise on food security. The bill is aimed at legitimizing what would otherwise be called as hoarding, without the government even having the capability of knowing which stock of which grain exists with who. Even the place and time of such stock would not be known. 

The overall analysis of the agriculture bills makes it appear that these reforms will weaken rules around sale, pricing and storage of farm produce – rules that have protected India’s farmers from the free market for decades.

– By IL News Service

New Delhi: Reacting to Rajya Sabha MP Jaya Bachchan’s claim in Parliament that there were people trying to tarnish the image of the Indian entertainment industry and that this has created a security problem, the Maharashtra government has beefed up the security for the Bachchan family.

Maharashtra is witnessing a huge political drama following the death of actor Sushant Singh Rajput. The Bollywood fraternity has since then been divided into the two groups: those supporting actress Kangana Ranaut and those against her. On Tuesday in Parliament, Jaya Bachchan had said:

Her comments did not go down well with social media users, and she has been trolled since then.

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As per sources, the government has heightened security around the two bungalows that house Amitabh Bachchan, Jaya, Abhishek, Aishwarya and Aaradhya.

– India Legal Bureau

While social media has been blamed for “exploiting” the personal data of citizens, the fact is that these companies cannot be turned into virtual police stations and parliamentary panels can’t meddle with them

By Na Vijayashankar

A topic of hot debate among political parties is whether a social media company should monitor which user is a “hatemonger” and should be evicted from the account. It all started with The Wall Street Journal (WSJ) report recently which quoted an anonymous Facebook insider saying that a committee which filters hateful content for the company had recommended that BJP MLA T Raja Singh be permanently banned for posting objectionable content, but that this wasn’t approved by their public policy executive.

One wonders if politicians would have hailed Facebook as a great conscience-keeper if it had blocked Singh. But since that wasn’t done, many have raised their voices against it for favouring the BJP as it provides it with advertisements. These politicians want to haul Facebook to a Joint Parliamentary Committee (JPC) for inquiry.

Shashi Tharoor, who heads the IT parliamentary committee, issued a notice to Facebook to appear before the JPC without first discussing it with the members. All said and done, Facebook is a commercially oriented IT-enabled company and it is not a member of the Fourth Estate like newspapers or TV news channels and ought to be fully committed to upholding the traditions of free speech. Traditional media nowadays often runs biased stories which are swayed by advertisement revenue and the ideologies of their owners. These often have no relation to what is good for the country or its people.

The idea of an “independent media” is a misnomer today and every discerning media-watcher, therefore, discounts the value of the news depending on the credibility of the newspaper or TV channel. Initially, the public switched to social media in the hope that information there was contributed by individuals and hence, was more reliable than news emanating from media houses. But this too has become politicised as fake accounts and false news are being posted.

This was evident during the Delhi riots earlier this year and the recent Bengaluru riots where Facebook was used as an instrument for creating disharmony in society through fake or biased news. In the past, when the government suggested streaming of rules under Section 69 of the Information Technology Act, 2000, (ITA 2000), the same politicians who are crying foul now were then complaining of unwanted censorship. Now they want private censorship to be imposed by the Facebook management, but only on their political opponents.

If an internal committee of Facebook suggests an action and it is reviewed by a higher authority within the corporate hierarchy, it is preposterous for some reporters to comment that it is biased in favour of the BJP. Most independent observers feel that both Facebook and Twitter are controlled by anti-BJP interests rather than pro-BJP ones. It is, therefore, a question of perception. The beauty of social media is that as long as fake postings and AI-led fake stories are avoided, it is democratic enough and can self-correct itself.

If over and above this, Facebook has a committee and subjects an account for review, it should be appreciated, even though a higher official shot down a recommendation because he had the authority to do so. Opposition politicians are making too much out of what could be a normal corporate decision-making process. The need of the hour is for a responsible media to de-escalate the controversy and ignore the report carried by WSJ, which itself could be a fake report.

In this entire controversy, what is being played out is a fight between traditional and social media. Traditional media has learnt that in the current age and time, most of the action is on social media and that Facebook is more powerful. It is amusing to think that WSJ actually has a page on Facebook and uses its reach to attract more viewers to its content.

The decreasing popularity of traditional media has been accelerated after the Covid-19 lockdown and people have unsubscribed print media on a large scale. This was also reflected in the Indian Newspaper Society asking its members to take stringent action against any WhatsApp group which circulates any e-paper copy. It is this type of frustration that is behind traditional media using Facebook as a whipping boy whenever the opportunity arises.

The attempt of the parliamentary committee to meddle with the internal affairs of a private company like Facebook is another fall-out of this controversy. If this is allowed, tomorrow the committee may summon TCS, Wipro or Infosys and object to their accepting any project of a BJP government or rejecting any project of a non-BJP government. The committee should subject itself to some self-discipline and not behave arrogantly like the Tharoor committee did. It would be prudent for the committee to withdraw the notice and correct its mistake.

We should also focus on what steps can be taken to ensure that popular social media platforms are not used to disturb peace in society. ITA 2000 defines Facebook as an “intermediary” which should follow certain “guidelines”. In 2018, when the government wanted to make some amendments to this guideline, PILs were filed in the Supreme Court about violation of freedom of speech, etc. The government did not have the conviction to fight and allowed the notification to lapse. It is, therefore, not surprising that Opposition politics comes to the fore whenever the government wants to bring any change in laws related to social media. It is now necessary for the government to revisit these intermediary guidelines and bring their discussion back in the next parliamentary session.

One of the requirements of the guidelines was that the intermediary was supposed to implement technologies to identify and remove public access to unlawful information or content. Perhaps Facebook is actually trying out some manual review and one should give it room for some failure in proper implementation.

The new Personal Data Protection Bill, 2019, (PDPB) has another provision whereby social media intermediaries like Facebook should enable the users to put an “Identity Tag” on their account. This would enable segregating the content of people who identify themselves and those who hide behind pseudo identities and spread fake news. If some user is bold enough to give out his views, be it on politics or religion, the identity enables normal judicial process to take control whenever people cross levels of decency.

In such a scenario, the efficiency of the internal committee of Facebook becomes secondary. Hence, efforts should be made to get the PDPB to become a law soon and also for the intermediary guidelines to be notified.

The PDPB will, however, create one more problem because it defines political or religious opinion as “sensitive personal information”. Such information has to be secured properly and collected only on an explicit consent basis. As most of what users say on social media reflects their political or religious beliefs, it will create a situation where the entire content of what is posted would constitute “sensitive personal information” only. Hence, when the PDPB becomes an Act, unless the “religious and political beliefs” are not removed from the “sensitive information category”, we will have more complications as the IT Committee can ask Facebook where is the “explicit consent” of a person who has posted a content which directly or indirectly reflects a political opinion.

While we can blame Facebook or Google for “exploiting” the personal data of citizens and ask for them to be reined in, we also have to be alive to the fact that they are fundamentally business entities. They cannot be turned into virtual police stations and virtual courts trying to analyse every post and photograph to decide what is correct for the BJP or the Congress.

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Even if Facebook decides to balance the number of BJP supporters with the number of Congress supporters, or devises a system of proportional representation, it would mean that pro-BJP content would be much more than pro-Congress content, leaving politicians unhappy.

We need to focus on rooting out fake accounts, and then the views and counterviews will balance each other, with the judiciary taking care of extreme cases.

—The writer is a cyber law and techno-legal information security consultant based in Bengaluru

As the resident editor of a major daily, this writer has had his share of defamation suits. Here is a personal account of the time and energy wasted over frivolous suits aimed at muzzling the press

By Vipin Pubby in Chandigarh

For over 17 years, I had been bearing the cross with my name marked by an asterisk on the back page of the newspaper editions I edited. The symbol was a pointer to the declaration that I was responsible for the selection of stories under the Press and Registration of Books (PRB) Act.

This was also aimed at absolving the editor-in-chief, the managing editor, the executive editor, the printer, publisher and all and sundry from the fangs of defamation laws of the country. And I have had a fair share of brushes with the law.

After signing scores of vakalatnamas, paying innumerable visits to various court premises, spending hours waiting for a call from the peon outside the court rooms, standing still before the magistrates and judges as the counsels argued the cases and getting to sign haajri, I have come out unscathed. Either the cases were dismissed after years of hearings or were withdrawn by the alleged victims of defamation due to sheer exhaustion.

DELAYING TACTICS
The cases dragged on as the advocates employed tactics to deliberately delay the hearings to let the hearings go on for years together. Besides, there were all those adjournments because either the magistrate would go on sudden unannounced leave or there would be a strike by lawyers or the counsel of either side would fall ill or would be busy in some other court. On all such occasions, we would just sign in our presence and get another tareekh.

It is also true that most of the cases had little leg to stand on and it was obvious from the very beginning that these cannot pass muster. Other than the cases which ended up in the courts, there were at least five times the number of legal notices for defamation that were received for the person responsible under the PRB Act. I shall come to that in a moment.

In almost all the cases that were slapped on me, which included both civil and criminal defamation and in many cases both, there was little evidence that I or the newspaper could have had any vested interest. In most cases the newspaper would have been happy to make amends to settle the issue.

CASE DISMISSED
One such case pertained to a woman from Hoshiarpur in Punjab. The Indian Express had run a series on the scandal involving allotment of petrol pumps in the country. While referring to one of the allottees, our reporter mentioned that she was married and related to an influential person. The allotment to her was cancelled among that of several others. After several months, we received a court summon as she had filed a defamation case for describing her as a married woman. She maintained that she was unmarried and she sought damages as no one was ready to marry her citing our story! Not just that, she also filed a complaint with the SC/ST Commission, which marked it to the state vigilance department which, in turn, summoned me for questioning.

The case went on for several years till we heard that she had stopped coming for the hearings and the case had been dismissed.

Interestingly, I also had the “honor” of receiving legal notices from a couple of bureaucrats. The local deputy commissioner once sent us a notice that we were trying to create public disorder by publishing false news about him. The notice was on behalf of the office of the deputy commissioner and not by the officer in his personal capacity. However, it was not taken any further after their seniors were apprised of the notices.

Now coming to the legal notices received by us. The incidence of receiving such notices was at least five times the number of cases finally pursued against us. This was something which our legal team took very seriously and it made it a point to give a detailed reply, evidently to avoid taking the case to the courts.

However, over the years I realized that this ploy was often used to muzzle the media and prevent follow-ups or similar reports appearing in other newspapers. Many of those who sent legal notices also mailed copies to the other editors warning of legal action if they wrote anything about it. This effectively ensured that the story got buried in a deep freeze. Legal departments of newspapers would get extra cautious and even journalists would like to avoid getting into any trouble. This was by far an effective tool to prevent the exposure of scandals.

There are still a couple of cases pending in the courts. One of these involves a senior IPS officer, now retired, who had named nearly 60 editors and reporters as respondents in a defamation case. Though the case was filed about six years ago, nearly half of the respondents have so far not been served the notices.

With the Supreme Court hearing a bunch of petitions challenging Sections 499 and 500 of the IPC (which criminalizes defamatory speech) filed by politicians, some hope is in sight that defamation is at least decriminalized. It is essential that such fetters are removed if free speech is to remain meaningful. Reason-able restrictions are already in place under other existing laws and the provision of exemplary costs under civil proceedings should be sufficient to deter defamation.

The writer served as resident editor of The Indian Express in Chandigarh