A Court recall that impacts the rights of the accused
The Supreme Court of India’s order on May 1, seeking to recall its own decision in Ritu Chhabaria vs Union of India upon the insistence of the Solicitor-General of India, Tushar Mehta, that central investigation agencies were ‘facing difficulties’, has caused concern among legal professionals. Besides the questionable legality of the Court ‘recalling’ its own decision, what is of concern too is how this order would impact the rights of the accused to be released from custody. On May 12, in its interim order, the Supreme Court clarified that courts could grant default bail independent of and without relying on the Ritu Chhabaria judgment. However, the Court’s decision to suspend the rights of defendants in criminal cases would lead to further erosion of the constitutional rights of the accused and deviate from fundamental principles of criminal procedure.
Right to default bail
The right to statutory bail, often known as default bail, is available to accused persons in cases when the investigating agency fails to complete its investigation within the stipulated time. Under Section 167(2) of the Code of Criminal Procedure (CrPC), the maximum time available to investigators is 60 or 90 days, depending on the seriousness of the offence. If the authorities are unable to complete the investigation within this time period, the accused can seek to be released from custody by applying for default bail under the first proviso to Section 167(2) of the CrPC. Notably, the ‘default’ characteristic of this bail comes from the fact that the application is unrelated to the merits of the case, and is designed to prevent long-term detention of the accused.
The right to default bail has been characterised by the Court in multiple judgments as an indefeasible right, flowing from Article 21 of the Constitution which guarantees the right to life and personal liberty. Therefore, in cases where the investigating authorities attempted to circumvent this procedure, the Court rightly called out these tactics and refused to extend custodial detention of the accused. In Achpal vs State of Rajasthan (2018), the Court held that an investigation report, albeit complete, if filed by an unauthorised investigating officer, would not bar the accused from availing default bail. In S. Kasi vs State (2020), the Court further stated that even during the COVID-19 pandemic, the investigating agencies would not be allowed any relaxation towards computing the maximum stipulated period of investigation, which could lead to additional detention of the accused.
This interpretation draws from the history of Section 167 of the CrPC, which has its roots in a recommendation of the 41st Report of the Law Commission. Under the older version of the CrPC, accused persons could be detained for a maximum of 15 days. Noting the abuse of this provision by the police, who kept the accused under extended periods of custody by misusing other provisions pertaining to trial, the Law Commission recommended extending the period for which an accused could be detained in custody. This found its way into the CrPC through an amendment in 1978. To counter the powers granted to investigating authorities through extended detention, a provision for statutory bail was also introduced so as to ensure that the accused is not detained in custody for long periods of time.
Here too, not a bar
Unfortunately, these protections that were guaranteed to the accused were also whittled away in practice, as investigating authorities routinely filed incomplete or supplementary charge sheets within the 60/90 day period, to prevent the accused from seeking default bail. In other instances, the investigating authorities would file charge sheets, incomplete or otherwise, after the 60/90 day period, but before the default bail application could be filed by the accused. The Supreme Court’s decision in Ritu Chhabaria delegitimised such illegal practices and held that incomplete charge sheets filed by the police would not bar an accused from applying for default bail. The Court emphasised that the preliminary or incomplete nature of these police reports revealed that the investigation was not complete.
Most importantly, in Ritu Chhabaria, the Court did not lay down any radically new proposition. Rather, it drew from prior judgments, such as Uday Mohanlal Acharya v. State of Maharashtra, which delineated the constitutional foundations of the right of an accused to avail statutory bail. Thus, Ritu Chhabaria did not create any additional hurdles in investigation. Rather, highlighting the indefeasible nature of the right to seek default bail, the Court in Ritu Chhabaria simply reiterated that incomplete charge sheets could not prohibit the accused from seeking to be released on default bail.
This is further seen in other judgments which have deviated from Ritu Chhabaria on questions of fact. For instance, in Jasbir Singh (2023), the Supreme Court held that a complete charge sheet filed within time could not be rejected because the investigation did not have sanction. Given these possibilities, it remains unclear as to why the Court would want to consider the possibility of recalling the judgment on legally tenuous grounds.
This decision is particularly alarming because the right to default bail, which has been interpreted so far as flowing from the Indian Constitution, could possibly be made subservient to concerns of ‘difficulties’ faced by investigative authorities. What makes the matter even more serious is the Supreme Court also agreed to defer decisions on default bail for accused persons across the country which would have been decided as per Ritu Chhabaria. Given the serious implications of this judgment on the constitutional rights of the accused, it is imperative that the three-judge bench of the Supreme Court hearing this matter does not sacrifice procedural propriety at the altar of administrative convenience.
The top court’s order seeking to recall its decision in the Ritu Chhabaria case would deviate from fundamental principles of criminal procedure
On sexual harassment in the workplace
How did the PoSH Act come into being? How does it define sexual harassment and the workplace? What does it require employers to do? What are the ‘serious lapses’ flagged by the Supreme Court? What have been the hurdles to the law’s implementation?
The story so far:
Ten years after the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH) came into force, the Supreme Court Bench of India has said there are “serious lapses” and “uncertainty” regarding its implementation.
How was the PoSH Act formed?
In 1992, Bhanwari Devi, a social worker with the Women’s Development Project of the Rajasthan government was gang-raped by five men after she tried to prevent the marriage of a one-year-old girl. While hearing pleas filed by activist groups against the crime, the SC, noting the absence of any law “enacted to provide for effective enforcement of the basic human right of gender equality” guarantee against “sexual harassment at workplaces”, laid down a set of guidelines in 1997, christened the Vishakha Guidelines, to fill the statutory vacuum till a law could be enacted. These were to be “strictly observed in all workplaces” and were binding and enforceable in law.
After this, the Protection of Women against Sexual Harassment at Workplace Bill was introduced by then Women and Child Development Minister, Krishna Tirath, in 2007. It was later tabled in Parliament and went through amendments. The amended Bill came into force on December 9, 2013, as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or PoSh Act.
What is the PoSh Act?
The PoSH Act defines sexual harassment to include unwelcome acts such as physical contact and sexual advances, a demand or request for sexual favours, making sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Under the Act, an employee is defined not just in accordance with the company law. All women employees, whether employed regularly, temporarily, contractually, on an ad hoc or daily wage basis, as apprentices or interns or even employed without the knowledge of the principal employer, can seek redressal to sexual harassment in the workplace.
The law expands the definition of ‘workplace’ beyond traditional offices to include all kinds of organisations across sectors, even non-traditional workplaces. It applies to all public and private sector organisations throughout India.
What are the requirements imposed on employers?
The law requires any employer with more than 10 employees to form an Internal Complaints Committee (ICC) which can be approached by any woman employee to file a formal sexual harassment complaint. It has to be headed by a woman, have at least two women employees, another employee, and a third party such as an NGO worker with five years of experience, familiar with the challenges of sexual harassment. Besides, the Act mandates every district in the country to create a local committee to receive complaints from women working in firms with less than 10 employees and from the informal sector, including domestic workers, home-based workers, voluntary government social workers and so on. The employer has to file an annual audit report with the district officer about the number of sexual harassment complaints filed and actions taken at the end of the year.
What are the hurdles to the Act’s implementation?
The Supreme Court in its recent judgment called out the lacunae in the constitution of ICCs, citing a newspaper report that 16 out of the 30 national sports federations in the country had not constituted an ICC to date. The judgment also flagged the improper constitution in cases where the ICCs were established — pointing out that they either had an inadequate number of members or lacked a mandatory external member. This, however, is not the only implementation-related concern when it comes to the PoSH Act. One of the concerns is that the Act does not satisfactorily address accountability, not specifying who is in charge of ensuring that workplaces comply with the Act, and who can be held responsible if its provisions are not followed. Stakeholders also point out how the law is largely inaccessible to women workers in the informal sector. Additionally, experts have noted that in workplaces sexual harassment cases are hugely underreported for a number of reasons. The framers of the law had recognised that complaints could be more effectively addressed within civil institutions (workplaces) so that women did not have to go through the daunting processes of the criminal justice system related to accessibility and timeliness. However, the inefficient functioning and the lack of clarity in the law about how to conduct such inquiries have ended up duplicating the access barriers associated with the justice system. Most importantly, the power dynamics of organisations and fear of professional repercussions also stand in the way of women for filing complaints.
What are the SC’s recent directions?
The court directed the Union, States and UTs to undertake a time-bound exercise to verify whether Ministries, Departments, government organisations, authorities, public sector undertakings, institutions, bodies, etc. had constituted Internal Complaints Committees (ICCs), Local Committees (LCs) and Internal Committees (ICs) under the Act. These bodies have been ordered to publish the details of their respective committees in their websites.
The PoSH Act defines sexual harassment to include unwelcome acts such as physical contact and sexual advances, a demand or request for sexual favours, making sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
The Supreme Court in its recent judgment called out the lacunae in the constitution of Internal Complaints Committees (ICC), citing a newspaper report that 16 out of the 30 national sports federations in the country had not constituted an ICC to date.
One of the concerns is that the Act does not satisfactorily address accountability, not specifying who is in charge of ensuring that workplaces comply with the Act, and who can be held responsible if its provisions are not followed.
What are the gaps in the AePS transaction model?
What is the Aadhaar-enabled Payment System? How are cybercriminals using Aadhaar for financial fraud?
The story so far:
Pushpendra Singh, a popular YouTuber, in a Twitter thread, shared how his mother’s bank account was drained using an Aadhaar-linked fingerprint without needing a two-factor authentication. His mother was not informed of the transactions by her bank, via message or otherwise. A quick search on Google reveals that similar incidents have been reported in different parts of the country. Cybercriminals are now using silicone thumbs to operate biometric POS devices and biometric ATMs to drain users’ bank accounts.
What is AePS?
The Aadhaar-enabled Payment System (AePS) is a bank-led model which allows online financial transactions at Point-of-Sale (PoS) devices and micro ATMs of any bank using Aadhaar authentication. The model removes the need for OTPs, bank account and other financial details. It allows fund transfers using only the bank name, Aadhaar number, and fingerprint captured during Aadhaar enrolment, according to the National Payments Corporation of India (NPCI).
Is AePs enabled by default?
Neither the Unique Identification Authority of India (UIDAI) nor NPCI mentions clearly whether AePS is enabled by default. Cashless India, a website managed and run by the MeitY, says the service does not require any activation, with the only requirement being that the user’s bank account should be linked with their Aadhaar number. Users who wish to receive any benefit or subsidy under schemes notified under section 7 of the Aadhaar Act, have to mandatorily submit their Aadhaar number to the banking service provider, according to the UIDAI.
How is biometric information leaked?
While Aadhaar data breaches have been reported in 2018, 2019, and 2022, the UIDAI has denied any breach of data. In response to media reports, the UIDAI said that the Aadhaar data, including biometric information, is fully safe and secure. However, UIDAI’s database is not the only source from where data can be leaked. “Aadhaar numbers are readily available in the form of photocopies, and soft copies, and criminals are using Aadhaar-enabled payment systems to breach user information. Scammers have, in the past, made use of silicone to trick devices into initiating transactions,” cybersecurity expert Rakshit Tandon, told The Hindu.
How do you secure your Aadhaar biometric information?
The UIDAI is proposing an amendment to the Aadhaar (Sharing of Information) Regulations, 2016, which will require entities in possession of an Aadhaar number to not share details unless the Aadhaar numbers have been redacted or blacked out through appropriate means, both in print and electronic form. The UIDAI has also implemented a new two-factor authentication mechanism that uses a machine-learning-based security system, combining finger minutiae and finger image capture to check the ‘liveness’ of a fingerprint. Additionally, users are also advised to ensure that they lock their Aadhaar information by visiting the UIDAI website or using the mobile app. This will ensure that their biometric information, even if compromised, cannot be used to initiate financial transactions. It can be unlocked when the need for biometric authentication arises, such as for property registration and passport renewals, after which it can again be locked.
What can be done in case of a financial scam using Aadhaar?
If users have not already locked their Aadhaar biometric information, they should do so immediately in case of any suspicious activity in their bank accounts. Users are also advised to inform their banks and the concerned authorities as soon as possible. Timely reporting can ensure that any money transferred using fraudulent means is returned to the victim. The RBI in a circular has stated that a customer’s entitlement to zero liability arises where the unauthorised transaction occurs, and the customer notifies the bank within three working days of receiving a communication from the bank regarding such unauthorised transaction.
The Aadhaar-enabled Payment System (AePS) is a bank-led model which allows online financial transactions at Point-of-Sale (PoS) devices and micro ATMs of any bank using Aadhaar authentication.
Cybercriminals are now using silicone thumbs to operate biometric POS devices and biometric ATMs to drain users’ bank accounts.
Users are advised to ensure that they lock their Aadhaar information by visiting the UIDAI website or using the mobile app.
One-stop centres for zero waste to be launched in cities
In a step towards cutting down waste generation in urban India, the government will launch one-stop centres where citizens can deposit old clothes, shoes, books, toys and plastic that can be reused or recycled.
These special “Reduce, Recycle and Reuse” centres are to be launched nationwide on May 20. Individuals, institutions and commercial enterprises can deposit the items at these hubs.
The items will then be given to different stakeholders to be refurbished for reuse or would be made into new products contributing to a circular economy, the Ministry of Housing and Urban Poverty Alleviation said in a statement on Monday.
These ‘RRR’ centres would be set up as part of a nationwide campaign ‘Meri LiFE, Mera Swachh Shehar’ (‘My Life, My Clean City’) under the aegis of the Swacch Bharat Mission – Urban 2.0 (SBM-U 2.0) to strengthen citizens’ resolve to reduce, reuse and recycle, the Ministry said.
The objective of the campaign is to take collective action for the protection and conservation of the environment by adopting sustainable daily habits. “The 3Rs form the backbone of ‘Waste to Wealth’ and has empowered many craftsmen, recyclers, self-help Groups, entrepreneurs, startups, etc. to recycle waste into a host of products,” a senior official in the Urban Affairs Ministry said.
The campaign will culminate on World Environment Day on June 5.
SOURCE : THE HINDU