MOST RESPECTFULLY SHOWETH
G R O U N D S
P R A Y E R
(MATHEWS J.NEDUMPARA)
New Delhi
Drawn on :
Filed on :
SYNOPSIS
Thursday, 3 September 2015
Capitation Fee Writ Petition
(MATHEWS J.NEDUMPARA)
New Delhi
Drawn on :
Filed on :
Why Capitation Fee?
ng population, neither the Govt. nor the Christian management could cope with the same. The vacuum was filled up by the individuals masquerading as charitable societies and institutions, solely with the intention to make profit. Karnataka happened to take the lead in that. Kerala with the highest literacy rate and Tamilnadu following, supplied the students to such mushrooming colleges.
For Kerala, with its red tag, private professional colleges were an anathema. Many of such colleges that had mushroomed in Karnataka in a short span of time, evolved into first class institutions with the huge capitation fee they could collect mostly from students from Kerala. Kerala happened to be the major contributor because of the sizeable N.R.I population. Roughly from 1980 to 2000, both the 'Left' and the 'Right' that governed the State did not allow a single private institution to come up. The very word ‘private’ was a taboo. It was then thought that Co-operatives could be permitted. And finally came up self-financing Colleges by even private individuals. It should be said to the credit of the Congress that it at last realized the folly of keeping the door of professional education shut for private investment. But the agony is that it lacked the courage to openly state what it felt strongly. That resulted in its venturing to choke into suffocation those who dared to invest in the field, sensing a goldmine. Populist legislation where the treasury and opposition unanimously vote for was the end product of the highest order of hypocrisy and self deceit.
The legislations provided for all sorts of conceivable and inconceivable quotas and restrictions which made impossible the functioning of institutions. The self financing Colleges were destined to bleed to death. Therefore, they went to the Courts in challenge. Thus, came the landmark judgment of an eleven judge Constitutional Bench of the Supreme Court in T.M.A. Pai case. That was a major deviation from the conventional notions about the “Education Industry”. We Indians practice a whole deal of hypocrisy. Publicly, we swear by what we privately denounce to the core of our heart. Education was not still accepted as an 'industry' or 'business' in T.M.A Pai case. One could find the Supreme Court at fault the least for that. None of the Self Financing Colleges, even the unaided, had the courage to plead so. It was indeed only because of the wisdom of the Supreme Court; “Education” was accepted at least as an ‘Occupation’. The Supreme Court further said in T.M.A. Pai that the Governmental-interference should be minimal and that too only in prescribing standards. But at the same time the Supreme Court put a laid of a definite 'no' to capitation Fee and profiteering. The Court even gave the reasons for a ban on Capitation Fee. Doctors who had secured admission into Medical Colleges paying Rs.30 to 50 lakhs as capitation fee on coming out of the College would try to recoup the same by unethical means.
Nobody can question the rationale behind such an assumption. However, unfortunately, none including the Supreme Court considered why the “capitation fee” does exist? And why no legislations can absolutely assure that it does not exist? Capitation fee is bad. Nay, it is a horrendous crime. But, can any law prevent it unless the ground realities because of which it exists are not addressed? Namely, the imbalance of demand and supply. Everybody knows for certain that capitation fees from 25 to 50 lakhs are taken by self financing Colleges both Christian and Muslim, aided and unaided, minority and majority. The NRI’s are the ones who are the worst victims of such highway robbery. Then, what is the Answer? Today, smuggling is non-existent. COFEPOSA, FERA/FEMA and SAFEMA are statutes in the cold storage. If at all there is smuggling, that is in high speed diesel.
Opening up of economy by late Narasimha Rao, who died in ignominy, but is sure to be accepted as the father of modern India in less than 30 years ahead, made smuggling no longer a lucrative economic activity. High speed diesel is high in demand in smuggling, because international price of diesel is less than half of domestic price thanks to heavy duty on petroleum products. Therefore, I dare to suggest the unthinkable. Don’t stop at recognizing Education as an Occupation. Go further. Accept it as an industry or business, where profiteering is not only permissible but even the prime motive. Let the profiteers which certainly include even the church run institutions, be permitted to accept capitation fee openly. Let there be no ban by law. In any case, even the holy priests of all colours are accepting it beneath the table. The market forces in a short span of time will certainly make capitation fee non-existent. It will make all law which prohibits capitation fee irrelevant in the same way the liberalization has vanished smuggling and made COFEPOSA irrelevant.
One need to wait only for a few years to see for the ‘profiteers’ running after students offering courses at affordable rates. Only the best will survive. Those among them, who can’t provide the standards; the weak and meek, will suffer a natural death. If, the laws of the market could work well in the rest of the world, it will work well in India too. The IIMs in India are an example. Admissions to it are the most sought after. Graduates, who come out of it, are picked up in the campus by MNCs and big companies in India and abroad. Rs.85 lakhs was the package offered last year! There are hundreds of other Management Institutions in India, poor cousins of the IIMs. They go with a begging bowl looking for faculties and students. The same could be the fate of the ‘self financing colleges' who today enter the market with their eyes on quick money.
The market will take care of such malignancies. Only those who could provide the best of education, maintain the best of standards, best of faculty and good infra structure alone will survive. Others who had mushroomed, hoping to make quick buck will have the fate of mushrooms themselves. They will wither away. There is no need for even a law to regulate standards. But we already have a plethora of laws by the Parliament like the Medical Council of India Act, AICTE Act etc to regulate. Therefore, there is no need for the Governments to step in. They did so with “vote banks” in mind.
During every monsoon in Mumbai not only floods cause calamity. Many people die in old unsafe buildings which collapse unable to bear brunt of the rains. The BMC has in its list hundreds of buildings which are declared unsafe. Bombay stands in the top of the list, when it comes to price of square foot of land. Yet, worthless, dilapidated buildings fill the sight of the city thanks to Rent Control Act. Like fashion, compare the taxis in Bombay, which is a shame to the city, with the ones in any other foreign city. If the government could issue taxi permits liberally, like in Singapore, an ordinary citizen could travel even in a Benz car as taxi for affordable charges. Again think of the “progressive” nationalization of Banks by late Indira Gandhi. In 1971, the prime lending rates were less than 10%. After nationalization it shot up to 23%. And thanks to that the Indian Industry had to survive on ventilation till banking sector was opened up and alien concept of “securitization” was brought in. Today, a young employed, middle class couple could buy a house worth Rs. 50 lakhs on loan up to 90% of the cost and that too without any other security than the house.
It is a matter of disbelief that the aforesaid economic realities were hardly heard and discussed in the course of hearing of the self financing colleges by a Division Bench of the High Court of Kerala, as happened in TMA Pai’s case earlier.
There is yet another aspect as clear as broad day light which still missed. The Kerala Act of 2006 provides for reservation upto 82% including 25% to OBCs. The minority/management quota was reduced to 15%. In a country where any criticism of reservation is a sacrilege, the Kerala Act of 2006 was somewhat fair as it introduced for the first time reservation on economic basis at 12%.
However, the Christian and Muslim leaderships challenged the Act with all their might; in the Courts as also in the streets. However, they could not be but pleading for their vested interests only. There cannot be a greater deceit than their claim for the protection of minority rights. Protection against whom? They run more than 90% of the institutions. Not the silent majority of the Christians and Muslims, the so called minorities, but the Church and Muslim leaderships. And the silent majority in no way could join cause with them. The author too is a member of a minority community.
The high pitched talk of minority interest at imminent danger is nothing but dishonesty. It is a tragedy that the church leadership too wittingly or unwittingly fell into the trap laid by wrong-headed people. The Christian Institutions like C.M.C.Vellore, St. Johns, Bangalore, St. Stephens, Delhi and many like them are still in their zenith of glory, for a long time. In Kerala, Christians run majority of the institutions. Now Muslims too are trying to catch up fast. Together they run majority of the private professional and other educational institutions. If they still cry wolf, they would be making, not them, but the silent majority of the minorities pay a price for that. They would be by their selfishness tearing the fabric of harmonious social co-existence of the people of different religions. Anyone who for selfish reasons raises the minority card should remember that the best protection that could be given to the minorities is the protection which the majority gives. The morally unjust and unethical, high pitched clamour for protection of minority interest and the dishonest cry that it is in imminent danger will only provide the fertile soil for the growth of communal and divisive forces among the majority community. You are sowing the seeds of distrust of minorities among the poor Hindus who are known the world over for their tolerance all through the history.
It might sound bizarre. The Kerala Self Financing Colleges Act drawing strength from the 93rd Constitutional Amendment make reservations for OBC's and others mandatory. I am not going to the hypocrisy and the narrow political motives behind it. The reservations, time has proved, cannot be a blessing. But it is only a bane. It is just like the economic polices intended for the benefit of the poor. Economists today think economic policies intended to benefit the rich, actually benefit the poor more. Opening up of telecom sector, aviation etc. is a case in hand, Today, a rickshaw puller of Calcutta has a mobile in his hand. A low rung employee of a private company could travel from Mumbai to Delhi for less than Rs.2,500/-, while many of the telecom companies and airlines are bleeding. Like manner, reservation has only hit, the "reserved" badly. Take the case of the Latin and Syrian Catholics of Kerala.
The former enjoy reservation while the latter not. The Syrian Catholics and, particularly, the poor among them who do not enjoy any reservation are far better off than their cousins, Latin Catholics. The Syrian Catholics who did not enjoy reservation, out of economic compulsions took to nursing and other para-medical courses and ventured to Gulf, Europe and Americas. They are today gainfully employed and are well off. Their cousins who enjoy reservation end up with small Governmental jobs with little pay. In like fashion, the men folk of Syrian Christians went abroad and managed to come up in life. This reality is so stark that it needs no proof. A mere visit to Kottayam and Pathanamthitta districts dominated by Syrian Christians and the Latin Catholic belt of Kochi and Quilon districts will reveal this.
As an epilogue, I should say the interest of the student community, the minorities and the backward classes will be better served, if hypocratic, political and legislative interferences in the name of their betterment which actually do no good and do immense harm are put to an end. Let, the laws of nature and market shape their future. There could be inequities, hardships and even agonies, which the “markets” will not take care of. But it is still a far more welcome situation than the injuries caused by artificial interference by the state, which has failed here as also in the rest of the world.
Mathews. J. Nedumpara
Advocate
http://nedumpara.com/
Advocate
http://nedumpara.com/
S.11C of SEBI ACT is unconstitutional?
OPINION
SECTION 11 OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT, 1992 VIS-À-VIS PROTECTION AGAINST SELF-INCRIMINATION.
1. The protection against self incrimination which a person whom the Securities and Exchange Board of India (SEBI) considers has indulged in fraudulent and unfair trade practices, including insider trading, is a subject which remains res integra – an undecided question.
The common impression among lawyers, Judges and informed citizens is that our Constitution affords a protection against self-incrimination if one is an accused. Since Article 20(3) reads “No person accused of any offence shall be compelled to be a witness against himself”, the general impression is that the protection is available only to those who have been formally accused and even the most liberal is willing to consider the protection to those though not formally placed in the position of an accused and not beyond.
Though Article 20(3) is couched in simple words, what exactly is the import of the protection conferred by it continues to be an enigma. I think there could be only few other Articles in the Constitution which were subjected to judicial interpretation by many a Constitutional Benches of the Supreme Court. To refer to all the judgments could be needlessly taxing. I am confining myself to a few of the most important judgments.
2. The first judgment on the subject since independence was rendered by a Full Court of 8 Judges in M.B. Sharma v. Satishchandra, AIR 1954 SC 300. The whole Court sat to hear the said case as the strength of the Supreme Court then was of 8 Judges. This judgment, in my opinion, constitutes the foundation of what the law is on Article 20(3). The Court here did not answer all questions relating to Article 20(3). It answered only one legal issue, namely, whether the protection under Article 20(3) is confined to Court Rooms or is available to outside also.
The Court said that the constitutional provision has to be given the widest import and the protection is available not merely to Court Rooms but outside as well. It also definitely said that once a person is formally accused, then the protection is certainly available. The broad question whether such protection is available to persons who are yet to be formally accused was not answered, but was kept open (see paragraph 10 of the judgment).
3. With utmost respect to the Full Court of the Supreme Court, the judgment in M.B. Sharma (cited supra) could not bring absolute clarity. Many doubts remain. Therefore, in State of Bombay v. Karthi Kalu Oghard, AIR 1961 SC 1808, the Full Court of 11 Judges (the then strength of the Supreme Court) thought it appropriate to re-visit Article 20(3). In this case, Chief Justice B.P. Sinha wrote the judgment for himself and 7 Brother Judges and Justice Dasgupta wrote a concurring judgment for himself and Brother Judges S.K. Das and A.K. Sarkar. It re-affirmed what was held by the Full Court in M.B. Sharma’s case. It, however, said that being made to give thumb impression, handwriting, signature, etc., did not amount to compulsion of a witness against himself. This judgment also did not make any authoritative pronouncement on the question left open by the Full Court in M.B. Sharma, namely, whether the protection could be claimed by a person who is yet to be formally accused. The judgments of the Full Courts of the Supreme Court in M.B. Sharma and Karthi Kalu Oghard are incapable of being overruled as all other judgments on the subject are by Constitutional Benches of 5 Judges or of lesser strength. I will come to those judgments a little later.
4. The expressions “accused” and “accused of any offence” find their definitions in Sections 24 and 25 of the Evidence Act and in a number of decisions of the Supreme Court. The Supreme Court in State of U.P. v. Deoman Upadhyay, 1960 SC 1125 (paragraph 7) states that it does not predicate a formal accusation against him at the time of making the statement sought to be proved. Webster Law Dictionary and Black’s Law Dictionary describe an accused as a person against whom a charge of crime or misdemeanour is brought or a person who has been blamed for wrong doing, especially a person who has been subjected to actual restraint on liberty through an arrest. The constitutional provisions deserve liberal interpretation. Therefore, an accused would mean a person against whom a charge of crime or misdemeanour is brought and not necessarily a person against whom First Information Report is filed. The expressions “prosecution”, “punishment”, “offence”, etc., appear in Article 20(3), which reads thus:-
“20. Protection in respect of conviction for offences.—
(3) No person accused of any offence shall be compelled to be a witness against himself.”
Article 20(3) says that no person accused of any offence shall be compelled to be a witness against himself. A Constitution Bench of the Supreme Court had occasion to consider the meaning of the expression “prosecute” in Thomas Dana v. State of Punjab, AIR 1959 SC 375; so also in Maqbool Hussain v. State of Bombay, AIR 1953 SC 235 and S.V. Venkatram v. Union of India, AIR 1954 SC 375. In these judgments, the Supreme Court took the view that imposition of a penalty at the hands of Sea Customs authorities or adjudicating authorities under the Foreign Exchange Regulation Act, 1973, since repealed, constitutes punishment for an offence. However, the majority held that an adjudication proceeding does not amount to a prosecution as such proceeding is not judicial in nature. The distinction between judicial and administrative proceedings becomes extinct with the judgment of the House of Lords in Ridge v. Baldwin, 64 Appeal Cases 40 and of the Supreme Court in A.K. Kraipak & Ors. v. Union of India & Ors., AIR 1970 SC 150, Maneka Gandhi v. Union of India, AIR 1978 SC 597, Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664, Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, and Kihoto Hollohan v. Zachillhu, (1992) Supp. 2 SCC 651 = AIR 1993 SC 412. Prior to Ridge v. Baldwin, there existed a clear-cut distinction between judicial and administrative functions. It was thought that only if a proceeding is judicial in nature, principles of natural justice were to be complied with. ____________________ is the last judgment where this distinction was re-affirmed before the concept underwent a sea change with the judgment in Ridge v. Baldwin followed by A.K. Kraipak and others, cited above.
5. Certain legislative changes also took place in the meanwhile. Many legislations, like Foreign Exchange Regulation Act, 1973, clearly stated that an adjudication proceeding is a judicial proceeding and clothe the adjudicating authority with the power of a Civil Court. In short, in my opinion, unlike what was the legal position at the time of Thomas Dana, S.V. Venkatram, Maqbool Hussain, etc., in the 1950s, an adjudication proceeding at the hands of a quasi-judicial authority created by statutes like FERA, FEMA, SEBI Act, etc., amounts to a prosecution. It may, however, be added here that the proposition which I canvass here remains res integra. I have raised this issue in a Writ Petition (Seema Silk & Sarees Ltd. v. Union of India & Ors.); the same is admitted and is pending before the High Court of Bombay.
6. I have discussed so far as a preface so that it will be easier to appreciate my propositions on protection against self-incrimination vis-à-vis Section 11 of the SEBI Act. Section 11 of the SEBI Act is an interesting provision. Section 11(4) confers power on the Securities & Exchange Board of India (Board, for short) to suspend the trading of any security in a recognised stock exchange; restrain persons from accessing the securities market and prohibit any person associated with securities market to buy, sell or deal in securities; impound and retain the proceeds or securities in respect of any transaction which is under investigation; attach bank account or accounts, etc., where it has reasonable grounds to believe that a Company which is under its purview has been indulging in insider trading or other fraudulent and unfair trade practices. The proviso to sub-Section (4) of Section 11 states that the Board shall afford an opportunity of being heard to the person against whom orders as aforesaid are passed, either before a decision is taken or after. Sub-Section (3) of Section 11 also vests the Board with the powers which a Civil Court enjoys under Section 30 of the Code of Civil Procedure while adjudicating a lis before it. Such power includes the power to summon, enforce attendance and examine a person on oath. The power which is vested in the Board under Section 11 is primarily administrative or regulatory in nature. In exercising such regulatory powers, it is clothed with powers to pass orders which could entail in serious adverse civil consequences. Therefore the SEBI Act has provided the Board with power to take evidence and act like a Civil Court adjudicating a dispute between two parties. Provisions like Section 11 of the SEBI Act are not very common, but it cannot also be said that such provisions are not seen at all. Section 132 of the Income Tax Act, 1961, for instance, clothes similar powers on the assessing authorities. An assessing authority under the Income Tax Act, the Board under Section 11 of the SEBI Act and Banks and Financial Institutions under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (Securitisation Act, for short), are clothed with both judicial and administrative powers. To do so is against the fundamental principle of natural justice, namely, nemo debet esse judex in propria causa or nemo iudex in sua causa – no man shall be a judge in his own cause – and iniquum est aliquem rei sui esse judicem – “it’s wrong for anyone to judge his own complaint or cause”. However, vesting of such jurisdiction could be justified on the doctrine of necessity. In my personal view, the doctrine of necessity could be a justification.
7. Section 11C speaks about investigation and it empowers the Board to appoint an investigating authority where it has reasonable ground to believe that transactions in security are being dealt with in a manner detrimental to the interest of the investors or the securities market. There cannot be any quarrel in the Board being conferred with such powers. However, sub-sections (5), (6) and (7) of Section 11C are unthinkable, draconian and certainly unconstitutional. For convenience, I am extracting below the said sub-sections:-
“11C. (1) Where the Board has reasonable ground to believe that –
(a) the transactions in securities are being dealt with in a manner detrimental to the investors or the securities market; or …
(1) to (4) … … …
(5) Any person, directed to make an investigation under sub-section (1), may examine on oath, any manager, managing director, officer and other employee of any intermediary or any person associated with securities market in any manner, in relation to the affairs of his business and may administer an oath accordingly and for that purpose may require any of those persons to appear before it personally.
(6) If any person fails without reasonable cause or refuses –
(a) to produce to the Investigating Authority or any person authorised by it in this behalf any book, register, other document and record which is his duty under sub-Section (2) or sub-section (3) to produce; or
(b) to furnish any information which is his duty under sub-Section (3) to furnish; or
(c) to appear before the Investigating Authority personally when required to do so under sub-section (5) or to answer any question which is put to him by the Investigating Authority in pursuance of that sub-section; or
(d) to sign the notes of any examination referred to in sub-section
(7) he shall be punishable with imprisonment for a term which may extend to one year, or with fine, which may extend to one crore rupees, or with both, and also with a further fine which may extend to five lakh rupees for every day after the first during which the failure or refusal continues.
(7) Notes of any examination under sub-section (5) shall be taken down in writing and shall be read over to, or by, and signed by, the person examined, and may thereafter be used in evidence against him.”
The above-quoted sub-sections authorise the investigating authority to examine any manager, managing director, officer, other employee, etc., on oath and if the person who is subjected to such examination refuses to answer any question which is put to him, he is liable for imprisonment for a term which may extend to one year or a fine which may extend to one crore rupees or both and also with a further fine which may extend to five lakh rupees for every day after the first during which the failure or refusal continues. Sub-Section (7) of Section 11C is more horrible. It says that the answers so given could be used against the person who is compelled to give evidence under oath to the investigating agency.
8. In none of the judgments which I have referred to above, except the one which I am referring now, the Supreme Court had occasion to contemplate a situation similar to the one in Section 11C of the SEBI Act. Before I examine the said judgment, I need to very briefly state what exactly was the legal position available under the common law. The maxims accusare nemo se debet nisi coram deo, namely, nobody is bound to incriminate himself, and nemo tenetur seipsum accusare – no one shall be compelled to bear witness against himself – remain from time immemorial, were the indisputable legal position. While India was under the British rule, it was the common law which was administered by Courts. When the Constitution was promulgated, the common law became part of the law of the land by Article 372 thereof, which states that the laws which were prevailing at the time of the promulgation of the Constitution will continue to be in force. In common law, validity of the aforesaid maxims was beyond challenge. The protection against self incrimination was not confined to a person who is an accused. The same was available even to a witness. The proviso to Section 132 of the Indian Evidence Act, 1872 gives enough indication that in the British India too, the fundamental principle, namely, accusare nemo se debet nisi coram deo, was irrefutable. A person while in the witness box though could not refuse to answer a question on the ground of self incrimination, the proviso to Section 132 of the Evidence Act guarantees that no criminal proceeding will lie against him based on the evidence so given. Article 20(3) of the Constitution only reaffirms the protection which was available to an accused or somebody who is yet to be accused by giving it the status of a fundamental right. It cannot be said that the Founding Fathers of our Constitution intended to in any manner undermine the protection which even a witness enjoyed under the common law. The judgments of the Constitution Benches of the Supreme Court referred to above and in Mohd. Dastagir v. Union of India, AIR 1960 SC 756, Rajanarayanlal Bansilal v. Manek Firoze Mistry, AIR 1961 SC 29 and State of Gujarat v. Shyamlal Mohanlal Chokshi, AIR 1965 SC 1251, which I am not elaborating for reason of brevity, have not at all discussed the question of protection which a witness enjoys under the common law. In so far as none of the judgments of the Supreme Court, referred to above, has directly considered the scope and ambit of the protection which a witness enjoys under the common law, the references made in the judgments referred above on the scope of Article 20(3) cannot be said to be a ratio decidendi at the hands of the Supreme Court, but only an obiter dictum.
9. Sub-Section (5) of Section 11C of the SEBI Act has to be considered in the backdrop of common law which, by virtue of Section 372 of the Constitution, is the law of the land. Under common law, whether it be civil or criminal proceeding, the burden of proof is on the person who makes the charge or accusation. Affirmanti non neganti incumbit probatio or ei incumbit probation qui decit non qui negat – the burden of proof is upon him who affirms, not upon him who denies and actori incumbit onus probandi - the burden of proof lies on the Plaintiff – are the maxims applicable. The reus or the accused is called upon to defend the case made out against him. There existed no legislation in England which was in conflict with the aforesaid common law principles. However, in India one comes across Section 108 of the Customs Act and even more draconian law such as sub-sections (5), (6) and (7) of Section 11C of the SEBI Act. Sub-sections (5), (6) and (7) of Section 11C take it back to the days of Star Chambers. These sub-sections which empower an investigation officer to examine a person who could be in the place of an accused; compel him to produce documents; on failure to do so he can be prosecuted; permitting the evidence so obtained under compulsion and that too under oath against him, etc., are all against the common law, Magna Carta, the Bill of Rights and the fundamental rights guaranteed under Part III of the Constitution. Section 108 of the Customs Act has been in existence for a couple of decades. However, the validity of the said provision on the touchstone of Part III of the Constitution is yet to be decided. The question remains res integra. Section 11C of the SEBI Act was introduced by virtue of SEBI (Amendment) Act of 2002 with effect from 29th October, 2002. The afore-quoted sub-sections (5), (6) and (7) of Section 11C, which are manifestly in conflict with the fundamental rights guaranteed under Part III of the Constitution are as draconian as the law which prevailed in the Dark Ages, have till date not been challenged on the touchstone of Part III of the Constitution.
10. Section 11C of the SEBI Act is in conflict with many a judgment of the Supreme Court on the scope and ambit of Articles 14 and 21 of the Constitution, particularly Anwar Ali Sarkar,Royappa______________, ______________ and Menaka Gandhi_______________. Section 11C, to my mind, comes in clear conflict with the judgments which are referred to above and in particular with Ramanlal Bhogilal Shah v. D.K. Guha, AIR 1973 SC 1196. In the said judgment it is said that once someone is an accused, there under the Indian Penal Code (IPC), such person cannot be compelled to give evidence before the Enforcement Directorate under FERA, though the offence of which he is formally accused of under the IPC and one under FERA are different. The judgment of the Five-Judge Constitution Bench of the Supreme Court in Tukaram Gaonker v. _______________, AIR 1968 SC 1050 (Please check this, the page number does not tally) on the question whether a person who has been an accused could at all be summoned by an administrative investigating agency is also equally relevant.
11. To my mind, the following are the crucial questions:-
(a) Whether the Rajus are “accused” within the meaning of Article 20(3) of the Constitution in view of the fact that no FIR has been filed against them for commission of an offence under the SEBI Act?
At first blush one might conclude that since no FIR is filed for commission of any offence under the SEBI Act but the FIR which is filed is under the IPC or some other enactment, they cannot claim protection under Article 20(3) of the Constitution in respect of the investigation which the investigating authority under Section 11C of the SEBI Act has undertaken. In my view, this view, which is not beneficial to the Rajus, is not an impenetrable one. It could be strongly contended that contrary to the view that was in force prior to State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269, A.K. Kraipak, etc., a quasi-judicial inquiry at the hands of the Board could be construed to be a prosecution. The judgments in Thomas Dana, S.V. Venkatram, etc., which took the view that a departmental adjudication proceeding is not a prosecution because such administrative authority is not a judicial authority, are no longer good law. Therefore it could be contended that since the SEBI Act expressly states that the inquiry contemplated under Section 15 is an adjudication proceeding at the hands of a quasi-judicial authority, the same amounts to a prosecution like the one before a Criminal Court. This proposition may face aggressive opposition. However, the point remains res integra. There is no harm in agitating the point with conviction, for the maxim is nil desperandum, never despair, never give up.
(b) In my view, none of the judgments of the Supreme Court touching upon Article 20(3) of the Constitution had gone deeply into the question whether a person who is a witness could claim protection under the said Article. In none of the judgments the common law protection to a witness against self incrimination vis-à-vis Article 20(3) has been discussed or decided. Whatever observations, some of which to the effect that to claim the protection under Article 20(3) one ought to be formally accused, were in the nature of an obiter and not a ratio decidendi. To constitute an opinion of a Court, even of the Constitution Bench, as a ratio decidendi, there must be a deliberation on the issue and a conclusion based on reasoning.
(c) Whether an investigating agency could ever be clothed with the powers of compelling a person, who is an accused or likely to be an accused, under oath to produce documents and make him liable for imprisonment and penalty for failure to answer under oath; providing for the evidence so taken under compulsion to be used against him, etc., are against the common law principles in force from time immemorial and which is now sacrosanct as fundamental rights, which not only prohibit self incrimination but casts the burden of proof on the accuser which finds a place of near divinity in the Bill of Rights and as fundamental rights under Part III of the Constitution. No judicial powers can be vested in the investigating agencies, for to do so is in conflict with the doctrines of iniquum est aliquem rei sui esse judicem “It is wrong for anyone to judge his own complaint or cause” and nemo debet esse judex in propria causa or nemo iudex in sua causa – no man shall be a judge in his own cause.
12. I think, the proceedings under the SEBI Act could effectively be countered. All that is required is to harp on the fundamental legal principles which I have discussed above. By not raising these issues and seeking the protection of fundamental rights/common law rights, nothing is gained. On the contrary, by insisting upon compliance with the basic principles of natural justice, you will be able to effectively defend yourselves. In your case, the facts may be bad, but I believe the law could be turned to your advantage, provided you are smart enough to take advantage of the fundamental legal principles. Remember the oft quoted advice: “You don’t need merits to win a case; the law after all is an ass”. It is all about making black into white and white into black, to borrow from Charles Dickens.
Author : Mathews J. Nedumpara
http://nedumpara.com/
(3) No person accused of any offence shall be compelled to be a witness against himself.”
Author : Mathews J. Nedumpara
http://nedumpara.com/
Tuesday, 1 September 2015
Biology Vs Law
Author : Nedumpara
Is sexual offence really an offence at all ? An out of Box view.
In the days prior to Christ, many believed homosexuality and unnatural sex like sodomy were horrendous crimes. Bible says that God even punished Sodom and Gomorra by fire from heaven, because they practiced homosexuality and anal sex. During the times of Jesus Christ and before, and in many countries even today, adultery is an offence punishable with death. Even the Indian Penal Code holds anal sex, homosexuality and adultery, all as punishable offences.
But, ought these sexual offences really be offences at all? And will they remain as an offence, fifty years from now? The answer to the first question to the vast majority of the masses could only be a definite “yes”. The answer to the second question could be a definite “no”. The concept of morality, right from the day when man moved out of his caves and lived as a society, evolved around sex. In the early stages of civilization or may be till very recently, the mighty, the rich and the powerful, always had the absolute freedom to enjoy any woman of his choice. Polyandry was the order. Monogamy became a virtue with the spread of Christianity and with the Europeans gaining control over the world by colonizing it. The Victorian Christian morality of monogamy became the universal yardstick of morality, though, monogamy is completely at variance with the way men’s brains were “wired” or “programmed” by our genes.
Today scientists tell us that we humans have evolved from small mammals to monkeys, to ape to man. We are also told that 96% of the genes of pigs, 97.5% of Gorillas and 98.4% of Chimpanzees and of us are the same. We both men and women behave the way our brains have been “wired” over the millions of years. Like any other mammal, say lion, stallion, bull, tusker, a man too is aggressive. His first lookout is for food and then sex. Studies in mammals, say lions, cheetahs, stallions, bull, etc. and in humans have shown that like mammals the brain of man too is “wired” to impregnate as many healthy women as possible. A stallion, which is tired of mating the same female, will still enthusiastically mount on a new mare, if offered. One needs to visit the Pune’s Stud Farms to observe this. A man who is happily married and had repeated satisfying sex with his wife would still be readily willing to mate if a healthy young woman is available. If he does not, it is not because he is not enthusiastic of the idea, but of external factors like, social environment, morality, religion etc. If he does not get enthused, it could be that the testosterone level in him is much lower. Almost 20% of men constitute this category of homosexuals and men of abnormally low libido.
A woman is not as polygamous as a man, except, a nymphomaniac, who constitutes only a small minority. The sexual drive in woman is low compared to a man. This is because the area devoted to sex in her brain is only 40% of that of a man. The brains of men and women are different. A man can have sex without love and can have a perfectly enjoyable sex with a woman who is a total stranger to him. Otherwise, red light streets would have been empty. The areas of his brain dealing with sex and love are different and unconnected unlike in women. The MRI/PET scans establish this. He behaves exactly like any dominant male mammal like lion, bull, ox, dog or rhino. All that his unconscious mind looks for is whether the woman is capable of conception. And a woman with 7 to 10 ratio of waist to hips is the woman with right curves, the healthiest and most ideal for conception. That is why belly dance where the curves are exposed is highly popular among men. Sex in woman is more in her ears. For a man it is much in his eyes. That is why men are so fond of nudity and throughout the history they were after pretty woman and fought many battles to possess them. Not alone men even the Gods, for Gods after all is only an imagination of man. A woman cannot think of sex without love for the areas of her brain relating to love and sex are interconnected.
That is why she cannot condone her man who has an adulterous relationship with another women even when he swears that he has only a mere physical sex and no emotional relationship. She can think of sex only if she loves a man. She therefore does not believe him and breaks the relationship. Scientists say all relationships are initiated by men and broken by women.
A woman looks for emotional relationship, for a man who will protect her and her offspring during her pregnancy and thereafter. It is believed that humans could evolve from monkeys to a more intelligent species, homo sapiens, as over millions of years woman opted for intelligent men to mate with, than those merely stout. In those days women did consider the physical prowess of the men as well. Because the world then was full of dangers and her men ought to be fit enough to fight or chase away predators. The modern women too look for the physical strength in a man. Her unconscious mind can in 3 seconds decode the state of a man’s immune system and find him attractive only if his immune system is complimentary to or stronger than of her own. She is attracted by men who are more resourceful, rich and powerful. That is why we often find Presidents and Prime Ministers and business tycoons and celebrities embroiled in sex scandal. High testosterone leads to success. Success leads to still higher testosterone levels. It is a pity to see them fall in disgrace as they cannot control their sex drive.
During the primitive days like in mammals, many men who were not strong and dominant enough were to die as virgins. Among mammals only the strongest alone can enjoy sex. And it has to prove itself to be so. They in the process get seriously maimed or even get killed as right to sex is exclusive to the winner. Females among some mammals like rhinos, dogs, etc. would still demand the successful male further establish the quality of its genes by making it further run for hours before sex. The nature may be cruel but it has a purpose. It wants the best genes alone to go down so that the species could continuously improve its strength and quality so that it does not get extinct. It also wants the strongest male with the best genes to sow it as vast as it could by impregnating as many females as possible. This has precisely happened in human as well. Had the weak and the meek equal sexual rights as the strong and powerful, the human species would not have survived. Today DNA helps us to trace the ancestry of a man to hundreds of years in the history. Scientists today could trace the DNA to the great warrior,Genghis Khan Mangolia. It appears that, during his life he had mated hundreds of women and he had thousands of children.
Science also tells us that woman seduces man and more so during ovulation and virtually jumps on him at that point of time where she has the highest chance of conception. How does a woman seduce a man. Her “unconscious mind” tells her that for a man what is paramount in him is not her richness, background and education but her curves, her healthy body. A man thinks about sex every 58 seconds and young men in their early 20s, with the high flow of testosterone in the blood, gets erection at every 5 minutes. So a woman seduces a man with her body, exposing her nakedness and showing her curves. Scientists have observed that woman on ovulations wears the most sexually explosive or seductive dress. She would wear the shortest of skirt and the top that would expose her assets. All this is not done by her conscious mind. The seduction she resorts to she may not be realizing. Like animals, though in much lesser degree, we humans too have ability to assess the quality of genes of the opposite sex. An unconscious mind of a woman can gauge the immunity system of a man. Like that men too unconsciously get attracted to a woman who is ovulating. Our unconscious mind makes most of these decisions, both in men and women. However, we are unaware of that. Our society which is unduly influenced by the conservative Victorian Christian values and Islamic influence cannot reconcile with these basic biological factors.
Sex is the most passionate instinct in humans, next only to food. All the laws which the society had imposed on him are against his biology. Human beings are no longer the cave men, we cannot allow our behaviour to be solely guided by biology. If that were so, like the mammals, we will fight, kill or maim the competitor for sex. Even the word ‘competitor’ is incorrect. Male mammals, say a lion, stallion, bull or a monkey, which is closely related to humans, will fight to death for sex even when plenty of females are around for both the fighting males to mate with. Here, the nature wants only the strongest alone to procreate so that the best genes are passed down and the species constantly improve.
It is the very testosterone which is the cause for all sexual crimes and aggressiveness that has helped the human species to survive, fighting and killing enemies and dangers. However, in the modern world, unlike primitive days, testosterone has much less utility. Man today is facing a role reversal. He cannot succeed in life with aggressiveness. In many a business and profession to be successful, he needs to learn to handle things with smoothness and gentleness, the womanly skills. In the jungle world, his survival depended on his physical strength. Today his success depends on his ability to communicate soothingly. However, his brain is not wired for that. Millions of years he has spent in the jungles speechlessly for hours waiting for his prey. Today, the men’s brain which is wired to lead a life in the jungle, hunting animals, is unsuitable for most of the modern day avocations. His spatial skills’ use is limited to jobs requiring navigational skills. He could be good in engineering, mathematics, science, driving, sports, etc. But, in all other areas, men stand to great disadvantages. The government and the societies should recognize this biological incompatibility of a modern man with the surroundings he lives. And the laws should be shaped accordingly. Unfortunately, the Courts and the law makers are completely disconnect with this reality. The Supreme Court, disturbed by the “growing” sexual harassment in work places, made a law banning sexual harassment in its celebrated judgment in Visakha’s case. It defined sexual harassment as an “unwelcome, sexually determined:
(a) physical contact and advances, (b) demand or request for sexual favors and (c) sexually colored remarks or any other physical/verbal or non-verbal conduct of a sexual nature”. This judgment of the Supreme Court is a much hailed one. It certainly is entitled for such acclaim going by the accepted social norms. But the said judgment is in complete disconnect with the biology. All men ogle at woman. And in terms of the Supreme Court’s dictum, it is a sexual harassment. Woman too ogles at men. But they are never caught, because women with their wider peripheral vision can see all of a man without being seen as staring at him.
Men commit most crimes, murder, robbery, etc. He is unable to shape himself to the requirement of modern society. Because of the way his brain is wired, he continues to violate the sexual mores of the society. Even eminent men like John F. Kennedy, Bill Clinton etal. are accused of being adulterous. Young men harass and sometimes even rape women. No law made by the society, however stringent, could be a solution. Repressive laws and social ethos can only aggravate the situation. Testosterone needs an outlet. That is good sex. And good sex is a health tonic too. Where sexual opportunities are repressed, the men find an outlet in aggression, crime and destructiveness. We need a liberal approach to sexual morality as we cannot bring down the crimes and aggressiveness in our men by injecting estrogen, a soothing female hormone, except may be in the case of aggressive prisoners. It is equally unscientific to control the aggressiveness, crimes, particularly relating to sex by laws which are absolutely in disconnect with our biology. The Supreme Court in banning ogling, touching, sexually coloured remarks, etc., has completely ignored the biology. It is like expecting a lion not to taste meat. The biology of man requires him to take the initiative in a sexual relation with a woman. The woman’s biology welcomes it. “Oxytocin”, a hormone in women, generates a desire to be touched. Woman welcomes and enjoys all the sexual initiative by men, unless it denigrates into a crass behavior. Being ignored by men could even affect the psyche of a woman very badly. The whole judgment was based on the Victorian concept of sexuality. The whole world today value the liberal sexual mores of India, the land of kamasutra and Ajanta caves. The fact that human beings are also mammals guided by our genes and our sexual behavior is guided by our unconscious mind based on the wiring of our brain was completely forgotten. Our unconscious mind which works at a supersonic speed cannot be influenced by any law or any judgment. The judgment of the Supreme Court has not helped in any manner in reducing sexual harassment at work places. And it will not. But, what is required is an attempt to evolve our social values in consonance with our biology and to make laws recognizing it. Our laws need to be completely overhauled. The all emphasis ought not to be on punishing people. Or in defining more heads of sexual offences or prescribing harsher punishment. The remedy lies in promoting liberal thinking. Accepting sex as a fact of life and not as a sin. And bringing in sexual education from upper primary classes and evolving a healthy concept of sex. Sex is so complex that no society could ever be free of sex related problems. Sexual problems and disorders ought to be accepted with a broader mind. Many sexual problems are amenable for treatment. They can be cured by medication and also by psychotherapy. The root cause of sexual offences should also be addressed. Rejection and lack of touch and love and violence at young ages produces sex offenders. Even pet patting therapy has worked wonders among sex offenders.
No law can suppress sexual desire or aggressiveness. On the contrary, a liberal society can better manage the male aggressiveness. Prostitution is the oldest of professions. It is made a crime in India. Not because, the Indian culture and tradition disapproved it. Prostitution was made an offence because of the British. British did so in those days because of the influence of the medieval Christianity on the then British society. For the medieval Christianity, sex was a sin. And the only exception was sex for procreation. Homosexuality was forbidden. Sodomy was unnatural sex. Oscar Wild had to go to jail for homosexuality. The British have changed with the times. Homosexuality is no more an offence. Sodomy is no more an unnatural sex and prostitution is not a great taboo. But India, after independence, refused to evolve into a liberal society. The British are only strict about pedophilia. But we are least concerned about that. We are concerned more about the morality of dance bars. We need to make an honest introspection. We must take a break from our hypocrisy. All men commit adultery at heart. They cannot be blamed for that because that is in their genes. But we must show the honesty to publicly standby what privately we swear. Those who for moral reasons still cannot think of legitimization of prostitution need only think of the words of Christ “whichever among you who have not sinned shall throw the first stone at her”.
In India, Bombay is a case in hand. Unlike Delhi, prostitution is open and accepted by all, though not yet by law. And Bombay has fewer sexual crimes than Delhi where tracking prostitution in hushed up places is a lucrative business for the Police. Pedophilia, to my mind, is the most horrendous crime. They do it because of genetic disorders. They cannot distinguish between a matured woman and a child. But whatever be the reason, we cannot allow a pedophile to be let loose. The Police and the society must protect our innocent kids and girls from Pedophiles, rapists and other sex maniacs as if from a poisonous snake. Keep them in jail, treat them recognizing that their crime is because of their genes or upbringing, both. And don’t release them till they are completely cured even if it means a life imprisonment.
Moralists and conservatives could ask: Are we humans mere animals? Hasn’t God given us the power of knowing evil and good? The answer is: All will depend upon our genes. If our genes have that ability, we will. If not, not. May be, nurture could also play a small role. Christ did not endorse any punishment by man. He abhorred judging another. Great as he was, he knew the futility of punishment and asked for forgiveness of the sinner. He practiced it to perfection by his last words on the cross: Lord forgive them for they know not what they are doing.
Mathews. J. Nedumpara
Advocate
Mumbai, Delhi, Cochin. (0) 9818248048
Advocate
Mumbai, Delhi, Cochin. (0) 9818248048
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