Tuesday, May 31, 2005

STING OPERATIONS - AN INVASION OF PRIVACY*

Is it justified to commit an offence to expose an offence?

*Published in CNN, Vol. 3, No. 9, September 2005, pp. 39-41
The advent of miniaturized audio and video technology, specially the pin-hole camera technology, enables one to clandestinely make a video/audio recording of a conversation and actions of individuals. In India, the Media has been first to grab this state of the art technology to conduct ‘sting operations’ to expose an offence before the police or the Judiciary takes the cognizance of the matter. The phrase ‘sting operation’ illuminates the impact of secret media coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. Thus the media, the supposed fourth pillar of our democracy, usurps the role of the executive and the judiciary. This is not only a sheer violation of state’s substantive and procedural penal laws but a hit on the face of the entire Constitutional framework as well.


There is no check on using the hidden cameras in one’s own house or office, but, in many countries, it is illegal to use them covertly against another person in his or her house or office. In UK there is a heated debate between those who support a free press which is largely uncensored and those who advocate an individual’s right to privacy regardless of what wrong they have done. In US, only the law enforcement agencies and police-licensed private detectives are allowed to use them under certain circumstances, that too under carefully controlled conditions. Licensed private detectives can use them for the collection of evidence, but not in a sting operation. Except the FBI, no private individual, not even a journalists can mount a sting operation. In India, in the absence of law regulating the sting operations, the media has violated and distorted the rules of natural justice and particularly the basic fundamental rights enshrined under Article 20 and 21 of the constitution.


As video cameras and their digital successors and CCTV become wider spread, this type of ‘caught on camera’ incident become more and more common. The use of unauthorized and unauthenticated camouflaged cameras poses real problems for the penal procedural laws as the evidence they provide may be inadmissible for numerous reasons like the probabilities of editing, lack of clear audio and video imaging, unavailability of exact dates, times and places etc.


There have been complaints from US human rights organization that a number of FBI sting operations have caused serious harm to innocent citizens who were the accidental victims of the make-believe criminal organizations set up by the bureau. They have pointed out that an even bigger risk, associated with sting operations aimed at public corruption, is the destruction of the public’s confidence in Government institutions.


The investigative journalism and publicity of pre-mature, half-baked or even presumptive facets of investigation either by the media itself or at the instance of Investigating Agency have almost become a daily occurrence whether by electronic media, radio or press. They chase some wrong-doer, publish material about him little realizing the peril it may cause as it involves substantial risk to the fairness of the trial. It can well lead to miscarriage of justice. Unfortunately we are getting used to it. Again it cannot be excluded that the public becoming accustomed to the regular spectacle of pseudo trials in the news media might in the long run have nefarious consequences for the acceptance of the Courts as the proper forum for the settlement of legal disputes.


The media is supposed to make the people aware of crimes, not to punish criminals. It is in no one’s interest to incite to and create misdeed for the sole purpose of prosecuting and punishing it. After all one cannot be permitted to commit an offence to expose an offence as has been noted in a number of cases ranging from Tehelka case to Shakti Kapoor/Aman Verma exposure to the present Sale Tax and Tihar Jail bribery cases. The issuance of warrants against the President and the Chief Justice of India is a blatant example of abatement of crimes by the electronic media. It is to be understood while there are those who harbour an actual criminal predisposition, the reality is that the majority do not fit this description. These sting operations are constructed so as to take advantages of the fact that everyone makes mistakes. Such a gross abuse of authority and freedom given for spreading awareness, not for generating criminals, deserves the severest condemnation


The view gaining currency is that "invasion of privacy" cannot be condoned and the Government ought to have some mechanism to address such cases. It is heartening to note that the Union Information and Broadcasting Ministry is considering a regulatory mechanism to protect the privacy of individuals. Still under consideration, the view firming up in the Ministry apparently favours the introduction of a clause to address "sting operations" in the proposed Broadcasting Bill.
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© Praveen Kumar Jain
Advocate, Supreme Court of India
Mobile: +91 98712 78525
email: pkj@lawyer.com

Monday, May 16, 2005

MEANING OF LL.B., LL.M., LL.D., JJ. & pp.

An LL.B. is the award of the degree of Bachelor of Laws. LL.B. is a Latin word. It stands for ‘Legum Baccalaureus’, signifying 'Bachelor of Laws'. In Latin abbreviations, the plural form of a word is indicated by doubling the letter- hence ‘LL.’ is short for Laws.

LL.M. is Latin abbreviation for Legum Magister, signifying 'Master of Laws'.

LL.D. is Latin abbreviation for Legum Doctor, signifying 'Doctor of Laws'.

JJ. is Latin abbreviation for "Justices".

pp. is Latin abbreviation for "pages".

 
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Praveen Kumar Jain
Advocate, Supreme Court of India
Mobile: +91 98712 78525
Email: pkj@lawyer.com

Friday, May 13, 2005

ARBITRATION TRIBUNAL OR CONSUMER FORUM - A CONSUMER’S DILEMMA*

*Published in "LEGAL NEWS & VIEWS", Vol. 19, No. 6, June 2005, pp. 14-15 ( A monthly publication of Indian Social Institue, New Delhi - 110 003)
When a potential consumer goes to buy some goods e.g. electronics or vehicle for private use etc. or to hire any service e.g. insurance, electricity or housing construction, etc., he may be required to sign on an agreement paper in which an arbitration clause is also appended. In case a dispute arises out of the transaction, the question pops up whether the aggrieved consumer can approach the Consumer Forum/Commissions or he is bound to be dragged in arbitration proceedings. In other words, whether he has the option of seeking relief in the Consumer Forum/Commissions by avoiding the arbitration.
On the one hand, Section 5 of The Arbitration and Conciliation Act, 1996("Act of 1996") provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I, no judicial authority shall intervene except where so provided in that Part. On the other hand, Section 3 of The Consumer Protection Act, 1986 ("Act of 1986") provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

It is well settled principle of law that a special enactment or rule cannot be held to be overridden by a later general enactment or simply because the latter opens up with a non-obstante clause. There should be a clear inconsistency between the two before giving an overriding effect to the non-obstante clause (See R. S. Raghunath v. State of Karnataka, AIR 1992 SC 81, pp. 147, 148). It is apparent that there is no inconsistency between the two because the Act of 1986 provides an additional remedy to the consumers only, whereas the Act of 1996 affords an alternative method of settling disputes to general civil litigants.

Moreover, main objective of the Act of 1986 is to provide for the better protection of the interest of the consumers and for that purpose to provide for better redressal mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. A three-tier quasi-judicial machinery is set up at the District, State and Central levels. These quasi-judicial bodies observe principles of natural justice and have been empowered to give relief of specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of orders given by quasi-judicial bodies have also been provided. The Act of 1986 enables a consumer to ventilate his grievances before a forum where justice can be done without any procedural wrangles and hyper technicalities. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, it is justified and warranted that the provisions are interpreted broadly, positively and purposefully to give meaning to additional/ extended jurisdiction.
In the case of Skypak Couriers Ltd. V. Tata Chemicals Ltd. (2000) 5 SCC 294, the Apex Court observed that the modern methods of advertisement in media, influence the mind of the consumers and notwithstanding the manufacturing defect or imperfection in the quality, a consumer is tempted to purchase the goods. The Hon’ble Court laid down that even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.

Recently in Secretary Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (Dead) through L. R. & Ors, I (2004) CPJ 1 (SC), the Apex Court gave the reasoning for the non ouster of jurisdiction of Consumer Disputes Redressal Agencies in spite the presence of non obstante clause in the Act of 1996. It observed that the remedies that are available to an aggrieved party under the Act of 1986 are wider. For instance, in addition to granting a specific relief the Forums under the Act of 1986 have jurisdiction to award compensation for the mental agony, suffering, etc., which possibly could not be given under other statutes.

While awarding damages, the Forums make an attempt to serve the ends of justice aiming not only at recompensing the individual but also to bring about a qualitative change in the attitude of trader or service provider (See State of Karnataka v. Vishwabharathi House Building Coo. Society and Ors. (2003)2 SCC 412, pp. 426-427). It attempts to remove the helplessness of a consumer which he faces against powerful, influential and well-organized sectors of manufacturers and traders.
The Forums under this benevolent legislation supplements and not supplants the jurisdiction of the civil courts or other statutory authorities. Therefore, an arbitration clause in a contract cannot debar an aggrieved consumer from knocking the door of the District Forum or the State/National Commission as the case may be and seek shelter under the Act enacted specially and exclusively to protect him.
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© Praveen Kumar Jain
Advocate, Supreme Court of India
+91 98712 78525