The SS. Lotus Case (France v Turkey) 1926

INTRODUCTION

The terms international waters or trans-boundary waters apply where any of the following types of bodies of water (or their drainage basins) transcend international boundaries: oceanslarge marine ecosystems, enclosed or semi-enclosed regional seas and estuariesriverslakesgroundwater systems (aquifers), and wetlands.

Oceans, seas, and waters outside of national jurisdiction are also referred to as the high seas or, in Latinmare liberum (meaning free seas).

Ships sailing the high seas are generally under the jurisdiction of the flag state (if there is one); however, when a ship is involved in certain criminal acts, such as piracy, any nation can exercise jurisdiction under the doctrine of universal jurisdiction. International waters can be contrasted with internal watersterritorial waters and exclusive economic zones.

The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision between the S.S.Lotus, a French steamship (or steamer), and the S.S. Boz-Kourt, a Turkish steamer, in a region just north of Mytilene (Greece). As a result of the accident, eight Turkish nationals aboard the Boz-Kourt drowned when the vessel was torn apart by the Lotus.

The Lotus principle or Lotus approach, usually considered a foundation of international law, says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition. The application of this principle – an outgrowth of the Lotus case – to future incidents raising the issue of jurisdiction over people on the high seas was changed by article 11 of the 1958 High Seas Convention. The convention, held in Geneva, laid emphasis on the fact that only the flag state or the state of which the alleged offender was a national had jurisdiction over sailors regarding incidents occurring in high seas.

Statement of Facts:

On August 2nd, 1926, just before the midnight, an accidental collision occurred between the French mail, Lotus and a Turkish collier Boz – Kourt. The French ship was heading towards Constantinople. The Turkish ship after the collision was cut into two and sank into the water, eight Turkish nationals, who were on board died as a result of the collision. After making some of the best efforts, ten people on board were saved after the tragic shipwreck. The French ship continued for Constantinople and arrived there on August 3rd, 1926.

When the mishap occurred on August 2nd, 1926 the French Captain on the ship was Lieutenant Monsieur Demons, while the Turkish ship was under the command of its captain, Hassan Bey, who was one of the ten nationals rescued from the shipwreck.

The Turkish authorities took the action, as early as on August 3rd. The Turkish authorities conducted some enquiries and the report of the collision was forwarded to the authorities on August 4th. On August 5th, the French captain Demons was requested by the Turkish authorities to go ashore and give evidence. The examination conducted by the Turkish authorities resulted in the arrest of the French Lieutenant, Demons and also the arrest of Hassan Bey. The arrests were made without prior notice to the French Consul – General. This arrest had been characterised as an arrest pending trial (arrestation preventive). This arrest was instituted to ensure the criminal proceedings against the two officers, on the charge of manslaughter, by the Public Prosecutor of Stamboul, on the complaints made by the family members of the victims in the shipwreck.

The case was first heard by the Criminal court of Stamboul, on August 28th. On that instance Lieutenant Demons appealed that the Turkish court had no jurisdiction upon the matter in question, however the appeal was overruled. Subsequently on September 13th, the decided to release the Lieutenant on bail for an amount fixed at 6,000 Turkish pounds.

It was also a established fact that the between the parties the Turkish Republic has entered an appeal against that decision, which had the effect of suspending its execution until the decision upon the appeal had been given; that such decision has not been given; but that the special agreement of October 12th, 1926, did not have the effect of suspending the “criminal proceedings …. now in progress in Turkey”.

The actions taken by the Turkish judicial authorities with regards to the matter of Lieutenant Demons gave rise to many diplomatic representations by the French government in the country of Turkey. The French demanded either release of the Lieutenant or the transfer of the case from Turkish courts to the French courts.

As a result of such political and diplomatic representation, the Turkish Republic declared on September 2nd, 1926, that ‘it would have no objection if the case gets transferred from the Turkish courts to the court at Hague, in the Hollands’.

The issues involved:

The issues which were put before the Permanent Court of International Justice (PCIJ) was that –

  1. Did Turkey violate the law when it exercised its jurisdiction upon the case of Lotus, the crime which was committed by a French national outside the territory of the Turkish nation?
  2. If yes, then whether Turkey is obliged to pay compensation to the country of France?

Law on the point:

The clause and the Article involved in the particular case as the law on the point was – Article 6 of the Turkish Penal Code, Law No. 765 of March 1st, 1926 (Official Gazette No. 320 of March 13th, 1926)

The point of dispute and debates was arisen on the Article 6 only.

Relevant Findings of the Case:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule of international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?

  1. On the question of Turkey establishing its jurisdiction – the court said that the jurisdiction in the particular case is territorial. It said, “A state cannot exercise its jurisdiction outside its territory, unless an express international treaty or any other customary law permits a country to do the same. This was called as The First Lotus Principle.

Following the judgment given by the PCIJ –

Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.”[1]

 

  1. On the question whether the jurisdiction carried out was within its territory – the court established the second lotus principle – a state can exercise its jurisdiction, in any cases, where there is no established International principle / law permitting it to carry out such jurisdiction. In such cases, a state a wide measure of the discretion of its jurisdiction, unless barred by the prohibitive rules of International law.

Following the judgment given by the PCIJ –

“It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”[2]

“This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States …In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”[3]

 

The PCIJ also talked about the sovereign will of the state and gave the reasoning that International law governs relations between different states. The rule of law binding in such states therefore emanates from the free will of the state as per the conventions and according to the domestic laws applied in a particular state and also to regulate the relations between the co – existing communities within the state. Therefore the actions of an independent state cannot be bound on unreasonable grounds and therefore restriction on such states cannot be presumed.

Territorial Jurisdiction:

France alleged that the flag State of a vessel would have exclusive jurisdiction over offences committed on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel carrying the flag of another State. The Court held that Turkey and France both have jurisdiction in respect of the whole incident; i.e. there is a concurrent jurisdiction.

According to the court – the offence committed by Lieutenant Demons on the French vessel had a direct and inseparable effect on the vessel belonging to the nation of Turkey. It is as if the negligence if overlooked in this case renders the whole case as non – existent. Therefore in this situation Turkish jurisdiction over the case cannot be restricted.

Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of the Lotus Case

Advisory Opinion on the Unilateral Declaration of Kosovo (2010)

In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of Kosovo of February 2008 was ‘in accordance with’ international law. The Court inquired and concluded that the applicable international law did not prohibit a unilateral declaration of independence. Based on this finding, the Court decided that ‘the adoption of the declaration of independence did not… violate any applicable rule of international law’.

Judge Simma disagrees, inter alia, with Court’s methodology in arriving at this conclusion. He imputes the method to the principle established in the Lotus case: that which is not prohibited is permitted under international law. He criticises the Lotus dictum as an out dated, 19th century positivist approach that is excessively differential towards State consent. He says that the Court should have considered the possibility that international law can be deliberately neutral or silent on the international lawfulness of certain acts. Instead of concluding that an the absence of prohibition ipso facto meant that a unilateral declaration of independence is permitted under international law, the  court should have inquired whether under certain conditions international law permits or tolerates unilateral declarations of independence.[4]

Conclusion

After reading the SS Lotus case, and analysing the all the facrs and circumstances in the given situation, it can be said that the PCIJ’s decision in the case was a fair one because the incident allegedly took place on the high seas and according to the agreement between France and Turkey there was no fixed jurisdiction of any state. The agreement and any other International treaty/convention was silent upon the fact that if the jurisdiction of any state is not specified for any water body?

The PCIJ did right not to bar Turkey from taking the appropriate action against the French captain Demons, because if it is not mentioned about the powers of any state in a particular area, then the state should be assumed to enjoy unlimited powers in that area.

BIBLIOGRAPHY

For compiling the research paper, following literary works were referred to:

BOOKS:

1). Anand, R.  P.  Confrontation or Cooperation:  International Law and the Developing Countries (1987)

2). Dixon, M. (2007). Textbook on international law (6th ed.). Oxford: Oxford University Press.

 

Web sources

1). www.manupatra.com

2). www.lexisnexis.com

3).  https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-case-summary/

 

 

 

 

 

[1] Para 45

[2] Para 46

[3] Para 47

[4] https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-case-summary/

Divorce by Mutual Consent in Muslim Law – MUBARAT

INTRODUCTION

Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce. Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst. Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together.

There are two forms of divorce by mutual consent, in both the woman has to part with her property. One is the “khula” divorce and the other one is the “mubarat” form of divorce.  In mubarat, the feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end. The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.

History of Divorce in Muslim Law:

Among the pre – Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time with or without any reason. They could also revoke their divorce, and divorce again whenever they felt convenient. They could arbitrarily accuse the wife of adultery and dismiss them while they themselves would go exempt from any responsibility of maintenance or legal punishment.

The prophet of islam looked on these customs of divorce, with extreme disapproval and regarded their practice as calculated to undermine the foundation of society. However, the existing condition of the society was very difficult to abolish. Accordingly, he allowed the exercise of the power of divorce to husbands under certain conditions. He permitted to divorced parties three distinct and separate periods in which they might try to reconcile their differences but should all attempts at reconciliation prove unfruitful, then in the third period the divorce becomes effective.[1]

The reforms of Prophet Mohammad marked a new departure in the history of Eastern legislation. He restrained the unlimited power of divorce by the husband and gave to the woman the right of obtaining the separation on reasonable grounds.

An effective check placed by Islam on frequent divorce and remarriage was that in case of irrevocable separation, it is essential for remarriage that the wife should marry another man, and this marriage should be consummated before divorce and the wife should observe the period of iddat. This new procedure rendered the divorce to fewer in number as compared to before that time.[2]

The greatest defect of the Islamic system is the absolute power given to the husband to divorce his wife without any reasonable cause. Dower to some extent restricts the use of this power. But experience shows that greater suffering is endangered by the husband’s withholding divorce than by his irresponsible exercise of the right.

MUBARAT:

The literal meaning of the word Mubarat is ‘obtaining release from each other.’ It is said to take place when the husband and wife, with mutual consent and desire, obtain release and freedom from their married state. The offer for separation in mubarat may proceed either from the wife or from the husband and as soon as it is accepted dissolution is complete. It takes effect as one irrevocable divorce without the aid of the court. Under Hanafi law, mubarat is equivalent to one irrevocable pronouncement of talaq, making it necessary for the parties to contract a fresh marriage with each other if they wish to resume a marital relationship.

According to the holy             Quran; the basis of Mubarat is Surah – al – Baqrah[3], it is given in the book, “that there is danger in mubarat, just as with all forms of divorce, to which the parties might act hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is prescribed. Two divorces (with attempted reconciliation in between) are allowed. After that the parties must definitely make up their minds, either to dissolve their union permanently or to live together in mutual love and forbearance”.[4] If the husband is the one who makes the initial offer of a mubarat, his offer may not be retracted. It is up to the wife, then, to either accept or reject this offer. This is primarily because this offer by the husband is deemed equivalent to an oath of repudiation, which becomes effective immediately when the wife signifies her acceptance of the offer. On the other hand, if the wife makes the initial offer of a mubarat, she may retract her offer at any time before acceptance by the husband. Since mubarat requires consent of both parties to the marriage contract, the agreement to divorce may be voidable if either or both the parties lacked the necessary intent or have been induced into acceptance by fraud or duress.

While in the Khula divorce, the request proceeds from the wife to be released and the husband agrees for certain consideration, usually the mahr, in mubarat apparently both are happy at the prospect of being rid of each other. No formal form is insisted on for mubarat by the Sunnis. The offer may come from either side. When both the parties enter into mubarat all mutual rights and obligations come to an end.[5]

At first in the Indian sub – continent the form of Khula talaq and mubarat were not recognised as form of a valid talaq acoording to law. It was in the case of Mst. Umar Bibi v Muhammad Din[6] that the concept of mubarat was recognised and brought in the fore front.

“So, the second khalifa, Umar, shut up a petitioning wifein a filthy room for three days and three nights in order to determine the extent of revulsion. On being taken out, the Khalifa enquired as to how she had fared, and she replied, “By Allah, these three days have been the only days of peace of my life since marriage.”

The divorce was subsequently given in this case. The judge relied on the spoken words of the wife.[7] The judge decided that even where there was mutual dislike or extreme incompatibility of temperament between husband and wife there can be mubarat, sukoon, and rehmat in the married life (declared to be objectives of marriage by the Qur’an) with the procreation of children.

In the case of Mst. Sayeeda Khanam v. Muhammad Sami[8], it was decided that “incompatibility of temperaments, aversion or dislike cannot form a ground for a wife to seek dissolution of her marriage at the hands of a Qazi or court, but is to be dealt with under the powers possessed by the husband and the wife under Muslim law, as parties to the marriage contract”. This case defined khula as dissolution of a marriage by agreement between the parties for a consideration paid or to be paid by the wife to the husband. It was necessarily a case of mubarat.

Some relevant contentions made:

  1. On whether mubarat is equivalent to talaq: it has been discussed profoundly and confirmed by the Islamic experts that mubarat is not equivalent to talaq, but a category separate. In talaq, the husband/spouses can revoke the divorce and can live peacefully again but mubarat is an irrevocable form of divorce and cannot be reverted back.

Also in talaq, the husband takes the initiative of divorce but in mubarat the initiation of divorce can be from wife’s side too.

  1. On the question of consideration: on the question of consideration; it has been confirmed that because it is a divorce by mutual consent; no consideration should be given to either of the spouses. Also the period of iddat has to be observed by the wife before getting separated.
  1. Divorce by consent: it has been confirmed that, the divorce of mubarat should be affiliated from both the sides, if the husband refuses to divorce his wife then the concept of mubarat would fail, and it would be zulm done by the husband on her wife. In such cases, the qazi present at the courts would have their final say.
  1. On what grounds can mubarat be claimed by the spouses: if the spouses develop extreme, intense dislike for each other, in one case it was confirmed that the spouses wanted to spit on each other’s faces. Such dislike between the spouses should prove to be a reasonable ground for the spouses to get divorce by

Conclusion

From the research paper made and studied about the concept and procedure of mubarat as a concept of divorce in muslim law, it has been known that a wife can also ask for divorce by the husband under the twin concepts of khula and mubarat. The wife under the Islamic law has been given an equal opportunity like the husband to initiate and pronounce divorce on her husband. If the husband gives the consent then the divorce under mubarat is commenced. There is no question of consideration it being a mutual break up of marriage tie.

The spouses can ask for divorce under mubarat if there is a continuous hatred between them and they are failing to continue their marriage bond. Relevant cases show that how the concept of mubarat evolved in the Indian sub – continent.

The divorce under mubarat have always been considered as separate from the normal talaq.

[1] Bhartiya V. P. “Muslim Law”, ed. 5, pp. 104.

[2] Ibid.

[3] ‘The Holy Quran’,Text,Translation and Commentary by Abdullah Yousaf Ali,Sh.Mohammad Ashraf    Publishers & book sellers, Surah Al-Baqrah

[4] Ibid.

[5] Bhartiya V. P. “Muslim Law”, ed. 5.

[6] AIR 1945 Lah. 51

[7] http://heinonline.org/HOL/Page?handle=hein.journals/modlr30&div=32&g_sent=1&collection=journals

[8] PLD 1952 (WP) Lah 113 (FB)

Case comment…Bilal v State of Andhra Pradesh (1997) 7 Supreme Today 127

Introduction

This project is based on a real criminal case which took place in the city of Hyderabad, Andhra Pradesh. This is a very interesting case where an individual who was convicted with life imprisonment and other rigorous punishment by the lower court finally gets acquitted by the highest court of the country. This case involves the conviction of a youth by the lower courts but eventually after a successful appeal to the Supreme Court of India, he was acquitted of the offences committed on most of the issues. The issues involved in this particular case are very serious and startling. The evidences here were scrutinised by various administrative officials and forensic departments and finally the appellant was acquitted.

The case here shows the wise of the Supreme Court in deciding this case as the Supreme Court while making decision. The case is overruled by the Supreme Court and also the Supreme Court warns the lower court of any such judicial negligence in the future by the lower courts in making any decision. This case shows the negligence of the lower court in scrutinizing the evidences and arriving at a justified rationale for the decision.

Brief Statement Of Facts

Bilai Ahmed Kaloo was an active member of a militant outfit called Al-Jehad which was formed with the ultimate object of liberating Kashmir from Indian Union. With this in mind appellant spread communal hatred among the Muslim youth in the old city of Hyderabad and exhorted them to undergo training in armed militancy and offered them arms and ammunitions. He himself was in possession of lethal weapons like country-made revolver and live cartridges. He was propagating among the Muslims that in Kashmir Muslims were being were being subjected to atrocities by the Indian Army personnel.

During the period when series of bomb-blasting occurred in the city of Hyderabad the police kept a close watch on the activities of the appellant who was then staying in a room adjacent to Masjid-e-Niyameth Kha-e-ali at Mir-ka-Daira at Haribowli in Hyderabad. He was arrested on 19-1-1994 and after recording his confessional statement the police seized a revolver and two cartridges which were produced by him. After investigation was completed he was challaned before the Designated Court at Hyderabad for offences under Sections 124-A, 153-A and 505(2) IPC, and under Sections 3(3), 4(3) and 5 of the TADA, and also under Section 25 of the Indian Arms Act.

As mentioned above the Designated Court acquitted him of the offences under TADA but convicted him of the offences under the Indian Penal Code and also under Section 25 of the Indian Arms Act and was sentenced as aforesaid.

Issues Involved

The issues involved in this particular case were –

  • Whether the appellant was guilty under 124-A of the IPC.
  • Whether the appellant was guilty under the Sec 153-A of the IPC.
  • Whether the appellant was guilty under 505(2) of the IPC.
  • Whether the appellant was guilty under 25 of Arms Act.

The designated court had already acquitted the appellant under Sec. 3(3), 4(3) and 5 of TADA Act.

 

Law on the Point

The law involved in this case is mostly related to the provisions in the Indian Penal Code, 1860, the Arms Act and the TADA Act.

The sections involved in this particular case are –

INDIAN PENAL CODE

  1. Section 124 – A: Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards,102 [***] the Government estab­lished by law in 103 [India], [***] shall be punished with 104 [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]

 

  1. Section 153 – A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—

Whoever—

by words, either spoken or written, or by signs or by visible representations or                       otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, or

  1. b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, 2[or] 2[(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the partici­pants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.—(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious wor­ship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

 

  1. Section 505(2): Statements conducing to public mischief.—2[

(1) ]  Whoever makes, publishes or circulates any statement, rumour or report,—

(a)   with intent to cause, or which is likely to cause, any offi­cer, soldier, 3[sailor or airman] in the Army, 4[Navy or Air Force] 5[of India] to mutiny or otherwise disregard or fail in his duty as such; or

(b)   with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity; or

(c)   with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to 6[three years], or with fine, or with both. 7[(2) Statements creating or promoting enmity, hatred or ill-will between classes.—Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(3)   Offence under sub-section (2) committed in place of worship, etc.—Whoever commits an offence specified in sub-section (2) in any place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

(Exception) —

It does not amount to an offence, within the meaning of this section when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it 8[in good faith and] without any such intent as aforesaid.

 

  1. Section 25 of the Arms Act: whoever –
  • manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
  • shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or21 [***]

(c) bring into, or takes out of, India, any arms or ammunition of any class or description  in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

 

Decision of the Court

The unanimous decision of the court was that the appellant was not guilty under the sections 124-A, 153-A and 505(2) of the Indian Penal Code but he was guilty under the section 25 of the Arms Act. So the appellant was liable for the punishment under the section 25 of the Arms Act.

 

 

 

Ratio

The Supreme Court in its decision laid the ratio that the appellant was not liable under the section 124-A, of the IPC because clearly by the facts the appellant did not create any hatred against the government, he was only supplying the people with arms and ammunitions.

Regarding the section 153-A and section 505(2) are concerned, they both deal with the common ingredient of promoting feeling of enmity, hatred or ill-will between different religious or racial or linguistic or regional groups or castes or communities. Section 153A covers a case where a person by “words, either spoken or written, or by signs or by visible representations”. But the appellant never promoted feelings of enmity between any groups which are mentioned above hence the appellant was not guilty under the sections 153-A and section 505(2) of the IPC.

Regarding the section 25 of the Arms Act the court said that because there was no challenge by the appellant against the seizure report of the arms that were recovered, thus it is implied that the appellant confirm the presence of those arms in his house. Thus he was convicted under the section 25 of the Arms Act.

My Comment

On reading the case, my personal opinion is that the Supreme Court is very justified in pronouncing such a judgement. Bilal was staying in Hyderabad and propagating the view that the military officials in Kashmir were creating problems for the residents of Jammu and Kashmir. He was distributing arms and ammunitions to the people of Hyderabad. But to be charged with provision of sedition, the conditions were not fulfilled. As per the case of Kedar Nath Singh v. State of Bihar[1] it was discussed that sedition against the country is constituted when a person arises hatred in the minds of people against the country. But here the appellant did nothing which would incite hatred in the minds of people against the country, merely informing about the behaviour of the army officials towards the citizen does not mean that Bilal was inciting people against the state. Thus in my opinion the court is justified in acquitting Bilal under section 124-A of IPC.

Regarding the provision of 153-A and 505(2), the common ingredient in both the offences is promoting feeling of enmity, hatred or ill-will between different religious or racial or linguistic or regional groups or castes or communities. Section 153A covers a case where a person by “words, either spoken or written, or by signs or by visible representations” promotes or attempts to promote such feeling. Under Section 505(2), promotion of such feeling should have been done by making and publishing or circulating any statement or report containing rumour or alarming news. In Balwant Singh and Ors v. State of Punjab[2]  that mens rea is a necessary ingredient for the offence under Section 153A. Mens rea is an equally necessary postulate for the offence under Section 505(2) also as could be discerned from the words “with intent to create or promote or which is likely to create or promote” as used in that sub-section. In this case there was no Mens Rea on the part of the appellant. In Sunilakhya Chowdhury v. H.M. Jadwet and Ors[3] it has been held that the words “makes or publishes any imputation” should be interpreted as words supplementing to each other. A maker of imputation without publication is not liable to be punished under that section. The common feature in both sections being promotion of feeling of enmity, hatred or ill-will “between different” religious or racial or language or regional groups or castes and communities it is necessary that at least two such groups or communities should be involved. Merely inciting the felling of one community or group without any reference to any other community or group cannot attract either of the two sections. So I appreciate the decision of the Supreme Court.

And last, regarding the provisions of section 25 of the Arms Act, as per the facts when the Superintendent of the police along with the revenue officers reached the appellant’s house, the appellant yielded a gun and live cartridges. The recovered arms were immediately sent to the Forensic laboratory where the arms were examined. The doctor of the Forensic Dept. issued a certificate that the gun was in full working condition. It was also contended that the recovered arms were kept in the police station for a substantial time, so the arms could have been tampered with by the police officials. But no such claims were made by the appellant in the whole proceedings. This shows that the appellant confirms that the arms belonged to him and he was guilty of carrying deadly arms without a proper licence. Thus he was convicted under the Arms Act.

I appreciate the decision of the Supreme Court, as there was a proper scrutiny of the evidences and the witnesses, every minutes were taken care of and the court came out with the most justified answer to the problem/case.

Conclusion

This case clearly shows the negligence of the lower court in making the decision, this case is a clear example of the Supreme Court being the superior court in the country in terms of position and in terms of justice delivery system. The court here takes full care in deciding the case and is vigilant regarding each and every detail of the case. The way the lower court had convicted the appellant under the sections 124-A, 153-A and 505(2) was highly unexpected from the court and it does serve the purpose at all.On searching I have not found any follow up of this particular case.

[1] AIR 1962 SC 955.

[2] (1995) 3 SCC 214.

[3] AIR 1968 SC 266.

Should Indian Premier League be banned…an opinion

India, where the game of cricket is treated as a religion without any question. The Indian cricket team won the  inaugural World T20 in the year 2007….the date being 24th September….which brought a wave of joy for every Indian as it was the first World Cup after 1983….

The next year BCCI, said to be the richest cricket board…..a franchise in itself decided to start a league….a tournament where 8 teams would take part in it where every team would be bought by a franchise…..

Big-big names came forth….Ambanis, Mallyas, actresses like Zinta, Shetty, and also the king of bollywood SRK…..

It was the IPL…..INDIAN PREMIER LEAGUE

There was a buzz across the whole nation….news channels were covering every news related to the event….people were anxious to see great players playing from one team and too the host of the tournament were Indian stadiums….I myself was pretty anxious…..to be very true…..

The first event was a great success….a revolution….for the television broadcasters….as it had every spice in it….from cheerleaders to actors to musicians to singers to dance performers….which added glamour to the game of cricket….it also served as a job employers for many struggling models who became anchors in that event….even for the wagering market it became an unprecedented event….across the globe…..it created tremendous amount of money…..

The ICC even granted its place in the ICC calender of events across the world….

Rajasthan Royals came out to be the surprise winners…..where the stakes were set upon Chennai Super Kings….team led by MS Dhoni….people found this tournament to be full of surprises as it brought forth the surprising talents of Yusuf Pathan as he was the man of the match in the finals….and many other players which were not in people’s eyes….became a symbol of hope for them in future…..

What next….people prayed for another event…..the same came….in 2009….it repeated its success across the globe….

The people were so hopeful to think that the talent brought forth would make India a dominant country in the world sport….

Its rightly said, hoping too much from something always leads to sorrow and letdowns….same happened with this tournament too…..

In the year 2009, due to this tournament one of the big gun of Indian cricket was injured and became unfit for the coming World T20 held in England….from 21st June….because of the unavailabilty of that cricketer there were much controversies regarding the team lineups….which ultimately cost the defending champions with their title….

That being just the beginning of the side effects of the so called “INDIAN PREMIER LEAGUE”…..it further caused problems….because of the tiring schedule of the tournament containing more than 70 matches…..it made several good players unfit….coz some were injured…some were tired and many other reasons….

This tournament is also said to have played a big role in the defeat of the Indian team in England in 2011….

The pacers who bowled at 140+ in Indian pitches got reduced their pace to 132-137….which was not good on the English turf….hmm…..this happened due to the tired body of the Indian players which did not allow them to bend their back and bowl at a faster pace…..

Some years later there was an introduction of IPL post match parties…..where all the players could indulge in late night parties….with models, girlfriends and actresses…..they were also offered shots of whisky and rum….to contribute to their enjoyment….

The shocking news from this extra hyped tournament came when five of the Indian players were caught in “spot fixing”…..the biggest name being of S. Sreesanth…..they were charged with serious allegations of taking money for not performing upto their potential…..who can forget that epic “Towel Case” from the famous Indian bowler…..which ultimately imposed life bans on two players and one year+ ban on other three…..

These were certain facts which were put by me in this blog…..now coming to the conclusion…..

In my opinion this tournament should be banned which coupled with CL T20 led one of the finest talents to lose their track….and become one of the struggling cricketers of modern times….its also said about one the Indian batsman…..that he performs a lot better in IPL as compared to the national team…..why so……becuase the IPL fetch them a lot more money than the national team…..maybe this is the biggest reason….some cricketers say….”they performed so well because they wanted to deliver for their franchise and team owners”, what a shame….they do not want to perform anymore for their motherlands….such players are not only from India but overseas players also have such notions…..

I think the money makers should now stop making mockery of this game and stop corrupting this game with models, vines, dances…..etc…..they should rather try to bring back the lost sanctity of the game…..

This event according to me should be banned…..because instead of tiring the cricketers….they could be rested….or they could be sent to university of cricket which are overseas…..so that it would prepare them to perform well on overseas soils and not only on subcontinent turf…..which would wash away the  blotch on Indian cricket team of not performing well outside India…..

I think this would lead to the real development of the young cricketers……

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DISCLAIMER 

The blog was strictly based upon real facts…..and its just an opinion…..not a criticism…..any person whose sentiments have been  hurt by such commentary on cricket must take this as a passing opinion and do not be disturbed by the same…..

Thank you.