Is the Indian Rupee Symbol legal ?

The Department of Economic Affairs, Currency and Coinage of the Ministry of Finance, Government of India, initiated the process of identifying a currency symbol for the Indian Rupee, as distinct from the generic INR which presently has ISO approval. Entries were invited and among the competing entries, 5 were shortlisted, by a 7 member committee of whom 2 were from the Reserve Bank of India. The Union Cabinet selected the new symbol from the 5 entries and declared it to the press officially on 15-07-2010. There is however no Public Gazette Notification available.

Later, the Department of Information Technology, Ministry of Communications & IT, Government of India, has submitted a proposal to ‘Unicode’ to encode the symbol i.e. to assign a number to be used on computers and the same may be done in October, 2010, making way for the symbol to appear along with other currency symbols. Unicode, though a private non-profit body of software organizations, holds a quasi-governmental-like influence across languages and operating systems, and once it encodes the symbol, it will become part of computer word processors across the world. There seems to be no other International Body controlling the currency symbols.


Neither in the RBI Act or the Constitution of India is there a provision that the decision of the Government regarding the currency symbol needs the approval of Parliament. That’s an anomaly. In fact, there are very many vital economic decisions being taken by the Cabinet or an individual Ministry or Department of the Government, by an Executive fiat, without the Parliaments knowledge or Legislative approval. For instance the Economic Liberalization regime initiated in 1991 is through Executive Orders of the Government while still retaining the word Socialism in the Preamble of the Indian Constitution. On the whole the symbol now seems to be legal.

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LAW TERMS FROM THE DEVIL’S DICTIONARY

Ambrose Bierce (1842-1914) U.S. newspaperman and master of Psychological and supernatural horror, called variously as ‘Bitter’ Bierce, Misanthrope etc., was born into a family of 13 children in Meigs County, Ohio, dropped out of a school in Warsaw, worked for an anti-slavery paper in its printing section, enlisted for the Union army in the civil war, wounded himself in the head, but nevertheless grew to be Lieutenant. He trained himself to be a writer, working in a sub-treasury in San Francisco, contributed for papers and left for England as an editor. Back in America, he married Mary Allen Day, had two sons, one of whom was lost at 16 in a gun fight over a girl and left Day on reading compromising letters written to her by an admirer. All this nettled him to write stories of passion, terror and tragedy and he began the Devils Dictionary, initially named, the Cynic’s word book, in 1881 and completed it in 1906. Tired of American life, he wished to visit his old civil war battle fields, crossed the border from Texas into Mexico that was in the throes of rebellion and disappeared without traces.

Devil’s Dictionary is a glossary of timeless aphorisms of sardonic and cynical wit, a new genre of writing a mixture of the graphic descriptive powers of a newspaperman with the gloom of his own nature. Following are the law terms and Bierce’s satirical definitions for them from the Dictionary.

A

Abandon: v.t., To confer the advantage of being rid of you. To recant.

–, v.t., To correct an erring friend or admonish a needy one. Of women the word abandoned is used in the sense of indiscreet.

Abdication, n., The surrender of a crown for a cowl, in order to compile the shin-bones and toe-nails of saints. The voluntary renunciation of that of which one has previously been deprived by force. The giving up of a throne for the purpose of enjoying the discomfiture of a successor. For these several definitions we are indebted to Spanish history.

– n, An act whereby a sovereign attests his sense of the high temperature of the throne.

Abduction, n., In law, a crime; in morals, a punishment.

–, n., A species of invitation without persuasion, See kidnap.

Abet, v.t., To encourage in crime, as to aid poverty with pennies.

Abide, v.i., To treat with merited indifference the landlord’s notification that he has let his house to a party willing to pay.

Abscond, v.i., To be unexpectedly called away to the beside of a dying relative and miss the return train.

– v.i., To ‘move in a mysterious way’, commonly with the property of another.

Accomplice, n., Your partner in business.

–, n., One associated with another in a crime, having guilty knowledge and complicity, as an attorney who defends a criminal, knowing him guilty. This view of the attorney’s position in the matter has not hitherto commanded the assent of attorneys, no one having offered them a fee for assenting.

Accuse, v.t., To affirm another’s guilt or unworthy; most commonly as a justification of ourselves for having wronged him.

Acquit, v.t., To render judgment in a murder case in San Francisco.

Affirm, v.t., To declare with suspicious gravity when one is not compelled to wholly discredit himself with an oath.

Alderman, n., an ingenious criminal who covers his secret thieving with a pretence of open marauding.

A mensa et thoro (Latin, ‘from bed and board’) A term of the divorce courts, but more properly applied to a man who has been kicked out of his hotel.

Amnesty, n., The state’s magnanimity of those offenders whom it would be too expensive to punish.

Apologise, v.i., To lay the foundation for a future offence.

Appeal, v.t., In law, to put the dice into the box for another throw.

Arbitration, n., A patent medicine for allaying international heat, designed to supersede the old-school treatment of blood- letting. It makes the unsuccessful party to the dispute hate two or more nations instead of one-to the unspeakable advantage of peace.

Argue, v.t., To attentively consider with the tongue.

Arrest, v.t., Formally to detain one accused of unusualness.

Arrested, p.p., Caught criming without the money to satisfy the policeman.

Attorney, n., A person legally appointed to mismanage one’s affairs which one has not himself the skill to rightly mismanage.

B

Bandit, n., A person who takes by force from A what A has taken by guile from B

Barrister, n., One of the ten thousand varieties of the genus Lawyer. In England the functions of a barrister are distinct from those of a solicitor. The one advises, the other executes; but the thing advised and the thing executed is the client.

Bigamy, n., A mistake in taste for which the wisdom of the future will adjudge. A punishment called trigamy.

Bondsman, n., A fool who, having property of his own, undertakes to become responsible for that entrusted by another to a third.

C

Cabinet, n., The principal persons charged with the mismanagement of a government, the charge being commonly well founded.

Capital, n., The seat of misgovernment. That which provides the fire, the pot, the dinner, the table and the knife and fork for the anarchist; the part of the repast that himself supplies is the disgrace before meat.

Capital punishment., A penalty regarding the justice and expediency of which many working persons – including all the assassins entertain grave misgivings.

Client, n., A person who has made the customary choice between the two methods of being legally robbed.

Common law, n, The will and pleasure of the judge.

Conjugal, adj., (Latin con, mutual, and jugum, a yoke.) Relating to a popular kind of penal servitude – the yoking together of two fools by a person.

Corporation, n., An ingenious device for obtaining individual profit without individual responsibility.

Court fool, n., The plaintiff.

Creditor, n., A miscreant who would be benefited by resumption.

–, n., One of a tribe of savages dwelling beyond the financial straits and dreaded for their desolating incursions.

D

Debt, n., An ingenious substitute for the chain and whip of the slave-driver.

Debtor, n., A worthy person, in whose interest the national finances should be so managed as to depreciate the national currency.

Defendant, n., In law, an obliging person who devotes his time and character to preserving property for his lawyer.

Desertion, n., An aversion to fighting, as exhibited by abandoning an army or a wife.

Disincorporation, n., A popular method of eluding the agile liability and annexing the coy asset.

Divorce, n., A resumption of diplomatic relations and rectification of boundaries.

–, n., A bulge blast that separates the combatants and makes them fight at long range.

E

Encumbrance, n., That which makes property worthless without affecting its title. Another fellow’s right to the inside of your pie.

Estoppel, n., In law, the kind of a stopple with which a man is corked up with his plea inside him.

Executioner, n., A person who does what he can to abate the ravages of senility and reduce the chances of being drowned.

Executive, n., An officer of the government, whose duty it is to enforce the wishes of the legislative power until such time as the judicial department shall be pleased to pronounce them invalid and of no effect.

Exonerate, n., To show that from a series of vices and crimes some particular crime or vice was accidentally omitted.

F

Fault, n., One of my offences, as distinguished from one of yours, the latter being crimes.

G

Gallows, n., A stage for the performance of miracle plays, in which the leading actor is translated to heaven. In this country the gallows is chiefly remarkable for the number of persons who escape it.

H

Habeas Corpus n., A writ by which a man may be taken out of jail and asked how he likes it.

–, n., A writ by which a man may be taken out of jail when confined for the wrong crime.

Hangman, n., An officer who produces suspended animation.

–, n., An officer of the law charged with duties of the highest of the highest dignity and utmost gravity, and held in hereditary disesteem by a populace having a criminal ancestry. In some of the American States his functions are now performed by an electrician, as in New Jersey, where executions by electricity have recently been ordered – the first instance known to this lexicographer of anybody questioning the expediency of hanging Jerseymen.

Homicide, n., The slaying of one human being by another. There are four kinds of homicide: felonious, excusable, justifiable and praiseworthy, but it makes no great difference to the person slain whether he fell by one kind or another – the classification is for advantage of the lawyers.

I

Inadmissible, adj., Not competent to be considered. Said of certain kinds of testimony which juries are supposed to be unfit to be entrusted with, and which judges, therefore, rule out, even of proceedings before themselves alone. Hearsay evidence is inadmissible because the person quoted was unsworn and is not before the court for examination; yet most momentous actions, military, political, commercial and of every other kind, are daily undertaken on hearsay evidence. There is no religion in the world that has any other basis than hearsay evidence. Revelation is hearsay evidence; that the Scriptures are the word of God we have only the testimony of men long dead whose identity is not clearly established and who are not known to have been sworn in any sense. Under the rules of evidence as they now exist in this country, no single assertion in the Bible has in its support any evidence admissible in a court of law. It cannot be proved tat the battle of Blenheim ever was fought, that there was such a person as Julius Caesar, such an empire as Assyria.

But as records of courts of justice are admissible, it can easily be proved that powerful and malevolent magicians once existed and were a scourge to mankind. The evidence (including confession) upon which certain women were convicted of witchcraft and executed was without a flaw; it is still unimpeachable. The judge’s decisions based on it were sound in logic and in law. Nothing in any existing court was ever more thoroughly proved than the charges of witchcraft and sorcery for which so many suffered death. If there were no witches, human testimony and human reason are alike destitute of value.

Incorporation, n., The act of uniting several persons into one fiction called a corporation, in order that they may be no longer responsible for their actions. A, B and C are a corporation. A robs, B steals and C (it is necessary that there be one gentleman in the concern) cheats. It is a plundering, thieving, swindling corporation. But A, B and C, who have jointly determined and severally executed every crime of the corporation, are blameless. It is wrong to mention them by name when censuring their acts as a corporation, but right when praising. Incorporation is somewhat like the ring of Gyges: it bestows the blessing of invisibility – comfortable to knaves. The scoundrel who invented incorporation is dead- he has disincorporated.

In forma pauperis (Latin) In the character of a poor person – a method by which a litigant without money for lawyers is considerately permitted to lose his case.

Injustice, n., A burden which of all those that we load upon others and carry ourselves is lightest in the hands and heaviest upon the back.

Innocence, n., The state or condition of a criminal whose counsel has fixed the jury.

Inquisition, n., An ecclesiastical court for the discouragement of error by mitigating the prevalence and ameliorating the comfort of the erring.

Insolvent, Adj., Destitute of property to pay just debts. Destitution of the will to pay them is not insolvency; it is commercial sagacity.

J

Judge, n., A person who is always interfering in disputes in which he has no personal interest. An official whose functions, as a great legal luminary recently informed a body of local law-students, very closely resemble those of God.

Jurisprudence, n., The kind of prudence that keeps one inside the law.

Jury, n., A number of persons appointed by a court to assist the attorneys in preventing law from degenerating into justice.

Justice, n., A commodity which is a more or less adulterated condition the State sells to the citizen as a reward for his allegiance, taxes and personal service.

L

Labour, n., One of the processes by which A acquires property for B.

Lawful, adj., Compatible with the will of a judge having jurisdiction.

Lawyer, n., One skilled in circumvention of the law.

Legislator, n., A person who goes to the capital of his country to increase his own; one who makes laws and money.

Liar, n., An attorney with a roving profession. A journalist of any occupation, trade or calling. See Breacher.

Liberty, n., One of imagination’s most precious possessions.

Litigant, n., A person about to give up his skin for the hope of retaining his bones.

Litigation, n., A machine which you go into as a pig and come out of as a sausage.

M

Mace, n., A staff of office signifying authority. Its form that of a heavy club, indicates its original purpose and use in dissuading from dissent.

Magistrate, n., A judicial officer of limited jurisdiction and unbounded incapacity.

Misdemeanour, n., An infraction of the law having less dignity than a felony and constituting no claim to admittance into the best criminal society.

O

Oath, n., In law, a solemn appeal to the Deity, made binding upon the conscience by a penalty for perjury.

P

Pardon, v., To remit a penalty and restore to a life of crime. To add to the lure of crime the temptation of ingratitude.

Penitent, Adj., Undergoing or awaiting punishment.

Pettifogger, n., A competing or opposing lawyer

Precedent, n., In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a judge may chose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament.

Prison, n., A third-class boarding house for temporary lunatics, whose friends can’t afford to get them into a high-toned establishment.

Punishment, n., A weapon which justice has almost forgotten how to use.

R

Redress, n., Reparation without satisfaction.

Among the Anglo-Saxons a subject conceiving himself wronged by the king was permitted, on proving his injury, to beat a brazen image of the royal offender with a switch that was afterward applied to his own naked back. The latter rite was performed by the public hangman, and it assured moderation in the plaintiff’s choice of a switch.

Referendum, n., A law for submission of proposed legislation to a popular vote to learn the nonsensus of public opinion.

Respite, n., A suspension of hostilities against a sentenced assassin, to enable the Executive to determine whether the murder may not have been done by the prosecuting attorney. Any break in the continuity of a disagreeable expectation.

S

Sheriff, n., In America the chief executive officer of a country, whose most characteristic duties, in some of the Western and Southern States, are the catching and hanging of rogues.

T

Trial, n., A formal inquiry designed to prove and put upon record the blameless characters of judges, advocates and jurors. In order to effect this purpose it is necessary to supply a contrast in the person of one who is called the defendant, the prisoner, or the accused. If the contrast is made sufficiently clear this person is made to undergo such an affliction as will give the virtuous gentlemen a comfortable sense of their immunity, added to that of their worth. In our day the accused is usually a human being, or a socialist, but in mediaeval tunes, animals, fishes, reptiles and insects were brought to trial. A beast that had taken human life, or practiced sorcery, was duly arrested, tried and, if condemned, put to death by the public executioner. Insects ravaging grain fields, orchards or vineyards were cited to appeal by counsel before a civil tribunal, and after testimony, argument and condemnation, if they continued in contumaciam the matter was taken to a high ecclesiastical court, where they were solemnly excommunicated and anathematized. In a street of Toledo, some pigs that had wickedly run between the viceroy’s legs, upsetting him, were arrested on a warrant, tried and punished. In Naples an ass was condemned to be burned at the stake, but the sentence appears not to have been executed. D’Addosio relates from the court records many trials of pigs, bulls, horses, cocks, dogs, goats, etc., greatly, it is believed, to the betterment of their conduct and morals. In 1451 a suit was brought against the leeches infesting some ponds about Berne, and the Bishop of Lausanne, instructed by the faculty of Heidelberg University, directed that some of ‘the aquatic worms’ be brought before the local magistracy. This was done and the leeches, both present and absent, were ordered to leave the places that they had infested within three days on pain of incurring ‘the malediction of God’. In the voluminous records of this cause celebre nothing is found to show whether the offenders braved the punishment, or departed forthwith out of that inhospitable jurisdiction.

E-book of Devils’ Dictionary is available at http://www.gutenberg.org/etext/972

Supreme Court on Khusboo

A girl called Khusboo Khan stepped out of Class VIII to try her luck in the tinsel town of Mumbai. Having everything in excess, she was promptly passed on and South India Cinema, reconciled to live largely on English and Hindi film leftovers, greedily lollipopped her up. With a 100 roles in her kitty, she moved on to the idiot box. Khusboo grew too big to be confined to calendars in bars and wine shops and so became a statue in a temple in Tiruchirapalli, transcending one place of temporary inebriation to another of permanent inebriation.

Now, Khusboo took her role seriously and so had to deliver sermons too. Success justifies the means adopted and Khusboo honestly believed that what was good for her was good for the rest of us too, more particularly the fairer sex of Tamil Nadu. So, she chastised society for twining marriage with sex and exhorted that sex need not wait till marriage. She admonished all suitable boys to desist from insisting on virginity of bridegrooms. ‘India Today’, which continually doles out titillating soft-porn- like-pulp-journalism in the name of surveys about life styles, to keep its circulation swelling, promptly carried the sermon in its English and Tamil editions.

The permissive were shocked that their secrets were made public. The rest were genuinely offended. There was a hue and cry. Khusboo believed her base to be too strong to be shaken. And when a reporter of ‘Dhina Thanti’ sought her clarification, she scorned at the hypocrisy of the rabble rousers, who she said were all indulging in pre-marital sex. Public anger knew no bounds and they slapped 24 criminal cases against her across the length and breadth of Tamil Nadu and one in Indore and roused the Temple to the ground.

The allegations against her were that she defamed woman folk, enraged their modesty etc. Obviously, finding it difficult to carry herself to so many police stations and courts, Khusboo carried the matters to the High Court of Madras. She asked the Court to quash the complaints, exercising its powers under Section 482 of the Criminal Procedure Code, which means stopping the investigation by the police and her prosecution by the lower courts, permanently. This was a power to be exercised sparingly in rare cases where the complaint filed against one is glaringly false or vitiated by some fatal technical defect like being barred by the law of limitation, meaning stale.

Khusboo pleaded that the ‘India Today’ comments were protected by her right to freedom of speech and expression guaranteed by the Constitution of India and those in ‘Dhina Thanti’ were not uttered at all. She seems to have issued a legal notice denying the comments.

Mr. Justice Regupathi frowned upon her arguments. He delivered a judgment on 30-04-2008 called “S.Khusboo versus Kanniammal”, reported in (2008) 2 MLJ 1358 (Mad), dismissing her petitions. The Judge found that ‘India Today’ carried the words of Khusboo saying that “in Indian Society, stuffed with conservative taboos, woman is gradually flapping her wings; that the society should get liberated from the thinking that women should not lose their virginity till marriage and that educated persons should not expect their life partners to be with virginity at the time of marriage”. He noted that she further stated that “if a girl is very serious about her relationship with her opposite sex, the parents should allow such relationship and that, while indulging in premarital sex, care should be taken to avoid pregnancy and venereal diseases.”

He also observed that “when a clarification was sought by a reporter of ‘Dhina Thanti’ that her statements would lead to cultural degradation, Khusboo questioned as to which culture they are referring to and asked as to how many men and women are there in Tamil Nadu who did not indulge in pre-marital sex”.

The Judge then laid down the law that, the defence taken by Khusboo that she was voicing her opinion believing it to be true and bona fide, which was an exception for defamation, related to facts that can only be verified through trial by the lower court and the High Court cannot quash the complaints on such grounds. Khusboo’s respite was limited to the Courts order that all the cases pending in various places would be clubbed together and tried by the Court of the Chief Metropolitan Magistrate, Egmore, Chennai.

The judgment of the High Court of Madras is a nice piece of legal literature except the fairly long digression in Paragraph 13, where the actress’s comments on pre-marital sex were given an extended treatment bringing in the concept of heterosexual co-habitation of couples outside marriage. It was unwarranted, having no nexus with the question whether the complaints could be quashed or not. More so, when her comments were not about the phenomenon of live-in partners but were about pre-marital sex. There is thus a mix up that could have been avoided.

Finally, Khusboo’s case landed in the Supreme Court of India and culminated in the juicy comments of the Judges of 23-03-2010, slurped up by the Media and recreated in various forms of sensual sensationalism to almost mean that the Judges had endorsed her views.

Fortunately for Khusboo, our Legal Reporters, as learned as her, if not less, do not know the distinction among comments made by judges while adjudicating the matter, reserving of the judgment and delivering the judgment in open Court. Except a few, all the news reports not only created an impression that the Supreme Court has already confirmed that there is no offence committed by Khusboo but went further to say that the Supreme Court has laid down the law through a verdict that co-habitation without marriage of persons of opposite sex and pre-marital sex were not illegal.

In this sardonic episode, were the Courts ever called upon to decide whether co-habitation of persons of opposite sex and pre-marital sex were legal or illegal? Not at all! Those were not the questions before the Court. Did the Supreme Court deliver any judgement in Khusboo’s case? No! It only heard the matter and reserved the judgment to be delivered later on. Does pre-marital sex attributed by Khusboo to the populace of Tamil Nadu have anything to do with the phenomenon of non-marital co-habitation of opposite sexes? No! Then how on earth did these false reports creep into the media and flashed the world over?

It’s because the Supreme Court of India provided the fodder for the indiscriminately news hungry media. It’s because adjudicatory procedures even in the highest court of the land are wanting in decorum. Because our Judges, only supposed to hear dispassionately, discuss with the counsel or pose questions strictly confining to the subject matters and then deliver the judgment also exhibit a penchant for talking and airing their views on even borderline issues. In umpteen instances the comments of the Courts extricated from the context are given publicity. Ultimately, the comments which are momentary flashes of emotion do not become part of the well considered decisions at all!

Did the presence of parties cause the ease? If the report of the Press Trust of India is to be believed, with goggles pushed over her forehead, Khusboo was relaxing in the front row of the Supreme Court of India, hitherto reserved only for Lawyers arguing cases, while the Judges waxed over her espousal of pre-marital permissiveness drawing parallels with the mythical Radha and Krishna and the media carried the words, the next day. Now it is to be seen what the judgment of the Supreme Court of India is going to be.

Will Khusboo have the last laugh!

Arson of TVs against the Ambanis: A Legal Angle

Mixing of money, news media and politics makes a dangerous brew. Hitherto, only subdued if not hidden, the hazardous trend found its most crystallised expression in founding of newspaper and TV by people in power. A neutral ‘without fear or favour’ version of journalism that is a sine qua non for the thriving of a democracy with free speech has become a causality.

Digressing, the latest aftermath is the arson unleashed against the Ambanis through misuse of the TV to resuscitate the otherwise dissipating relevance of the legacy of late Y.S. Rajasekhar Reddy. The Government in a knee jerk reaction arrested two journalists and raided other TV offices. What are these poor journalists, probably following the dictates of their employer, to do?

Bilal Ahmed Kaloo of the Al-Jihad shows the way to our Journalists accused of striking terror on TV by spreading rumours of conspiracy of Mukesh Ambani of Reliance Industries Limited, being involved in the helicopter crash, in which Chief Minister Y.S. Rajasekhar Reddy died on 02-09-2009.

Consequent to the 1993 bomb blasts in Hyderabad, on 19-01-1994, police arrested Bilal Ahmed Kaloo, a Kashmiri Youth and member of Al-Jihad, a militant outfit. Apprehended in Haribowli, in Hyderabad, with an arm and some ammunition, Kaloo was prosecuted for fomenting communal trouble. Police registered cases for offences under Sections 153 A and 505(2) of the Indian Penal Code, the same Sections slapped on the Journalists now. The allegation against Kaloo was that he was spreading rumours of the personnel of the Indian army committing atrocities on Muslims in Kashmir.

Section 153-A is meant to punish those promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. Section 505 (2) in turn penalises circulation of any statement or report containing rumour or alarming news for creating feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities.

Kaloo was convicted by the local courts and he carried the matter to the Supreme Court of India. The Supreme Court explained that, in respect of the above sections, it is necessary for the prosecution to prove evil intention. It is also necessary that at least two such groups or communities should be involved in the issue. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two penal provisions. Kaloo was set free in so far as these offences are concerned {(1997) 7 SCC 431}. The logic applies to the case of the Journalists at hand too. It is obvious that their airing of the news incited a group owing allegiance to the deceased politician resulting in destruction of property of two business houses but there is no other group or community involved in the issue.

Fortunately for our Journalists, who cooled their heels in Chanchalguda Jail till they secured bail, the Magistrate has already deleted other Sections from the First Information Report prepared by the police except Section 505 (2). Indian Law follows the Doctrine of Precedent, which means that the principle laid down by a Court in a former judgment, is applicable to latter cases involving the same situation. So, no sooner the Journalists approach an Advocate, worth the name, they are bound to be let out and allowed to go scot free. The High Court will have to quash the complaint, even without their going through the throes of prosecution as Section 505 (2) is not applicable.

Such is the haplessness of our law in the face of the TV5, Sakshi TV and NTV, holding the system to ransom by repeatedly telecasting news of a stale, frivolous aspersion of redoubtable veracity from an e-tabloid, to give occasion for anti-social elements to wreck havoc on Reliance Industries Limited and Anil Dhirubhai Ambani Group in order to further a political agenda. There is no law to curb the malicious rumour mongering of the TV!

Airwaves constitute public property and though right to freedom of expression is a fundamental right under the Constitution, private TV has no fundamental right to use public property for exercising right to freedom for private profit. It follows that airing of programmes is amenable to reasonable restrictions that may be imposed by the State. This is the view taken by the Supreme Court in Cricket Association of Bengal Case {(1995) 2 SCC 161}.

In the backdrop of the arson unleashed by rumour mongering of the TV, the state may be demanded to enact a law restraining the rights of the TV, taking advantage of the above legal position. But, would that not be a sword hovering over the electronic media? Will it not give scope for a ruler to cow down the forthrightness that is warranted of our journalists? Though power is given to restrain, it may be used to strangulate free expression which is the hallmark of a democratic society, if the ruler is displeased over a TV. Then it would be like throwing the baby with the bath water!

Freedom of expression is so precious that a political democracy without it is meaningless. Better we leave the noxious trend of rumour mongering to be curbed by formation of a neutral body with members of the Media and the Government. The body can formulate a code of TV ethics. Asking police and law enforcement agencies to do moral tailoring would render freedom of expression a sham.

Law and Legal Reports

At least two things overwhelm a client while in law chambers - the lawyer’s professional fee and the unending racks of law journals. If the client appears to be a paymaster, the lawyer would extend the cordiality of allowing him to ask at least one question, and that would invariably be, ‘do you read all these books?’

To a client, the argot and gobbledygook of law courts and lawyers is so perplexing, that he conjures up a hallowed image of the contents of the law reports. They contain the ‘open sesame’ of his inextricable problems. A mofussil lawyer’s lore has it that he would begin the briefing session scowling, “If you want me to only peruse your papers and give an opinion, it will cost you a 1000, but if you want me to refer to those journals too, that would cost you a 2000!” Without a blink the client would settle for a 2000.

Origins

The common law of England has come to stay and with it the doctrines of precedent and stare decisis and with them the reports of the decisions of the Courts. The legal report, as distinct from a formal record of the court that was first known to be preserved by the Royal Courts inscribed on sheepskin, is a product of the thirteenth century and developed hand in hand with the legal profession. The inception and changes in Law reporting reflected the course of growth of the authority of precedent as law reports form the backbone for the operation of the doctrine of precedent.

Yearbooks, the precursors of modern Law reports, are stated to have appeared as early as 1285, were in vogue until 1535, and were private reports. They were not authorized by the Crown as believed until recently. Abridgments of the Yearbooks, the precursors of modern Digests of case law, came into existence during the reign of Edward II (1307 – 1327). Yearbooks are said to be nowhere near our present day journals and they were too varied in both form and content, more in the nature of expositions of points of pleadings jotted down in the courts and later compiled by students and junior members of the Bar for commercial purposes. They were reports of the interaction between the judges and the counsel. The credibility of the Yearbooks has taken a beating with researchers finding, for instance, that the Trial of the Earl of Huntingdon for treason reported in the Yearbook for the first year of Henry IV (1399) is a work of fiction and the earl was actually executed summarily. [See Leading Cases in the Common Law, A.W. Brian Simpson, Clarendon Press, Oxford, 1995)

Reporting of law as exposited by Courts is said to have begun in the fifteenth century with the growth of doctrine of precedent. Burrow’s Reports (1756–72) paved the way for modern reporting of judge made law adopting the division of a report into head note and facts of the judgment of the Court. Earlier Judges followed decisions made before their days as much as they knew them and could recall them from memory and the phenomenon of citation came much later. The citation of earlier decisions by counsel is believed to have taken shape with Term Reports of 1785. [See Potter’s Historical Introduction to English Law, Fourth Edition, A.K.R. Kiralfy, 1958, Universal Law Publishing Co. Pvt. Ltd, 1999. English Legal History, V.D. Kulshreshtha, Eastern Book Company, 1999].

Indian Law Reports

Did we have law reports in ancient times in India? The scant history to which we have access says no. we have lost our indigenous law and the consensual system of resolution of disputes by non-governmental tribunals, believed to have existed until they were intervened by the Muslim rulers. That amalgam too did not last and was superimposed with English Law that decisively began with introduction in Bengal of the English system of courts in 1772 by Warren Hastings. Writing on ancient legal system of India and law reports, Justice Rama Jois, says “.. in the absence of an established court of record and the reporting of decided cases to serve as law of precedents as also an amending machinery, there was necessity to assimilate into the legal system the accepted positions in law either by interpretation placed by the court or by custom and usage accepted by the society. The commentators fulfilled these requirements admirably. The resultant position was, while the Dharmashastras and Smritis remained the basic law, the commentaries can be said to have embodied the law as in force at the time when the respective commentaries were written”. [See Legal and Constitutional History of India, Justice M. Rama Jois, Universal Law Publishing Co., 1984].

While it is not surprising that recorded decisions of courts were not part of the ancient Indian legal system, the theory that Dharmashastras and Smritis formed the basic law and that commentaries formed the law as applied to specific times is debatable. These notions set into motion by European Sanskritists notwithstanding, the Dharmashastras and Smritis are doubted as mere theoretical constructs of the elite and purely literary works. The Dharmashastras were not law at all and unconcerned with the crowds of inferior castes and Dravidians. Custom was the overwhelming law. (See The Classical Law of India, Robert Lingat, Oxford University Press, 1998.) This is only to say that the notion of Hindu Community does not have an ancient ancestry. (See Interpreting Early India, Romila Thapar, Oxford University Press, 1992). The whole Indian Sub continent being a single state having the Dharmashastras and Smritis as the law are enticing fictions and suffice to state that a system of resolution of disputes that would necessitate law reports was non-existent.

The indispensable importance of law report in modern India needs no emphasis. Delving into the nature of the law journals being published by the All India Reporter Limited, the Supreme Court, in A.I.R. Karamchari Sangh case, stated that judgments of the Supreme Court and the High Courts reported in law reports are source of law, the former being judicial precedents binding on all courts throughout India and the latter being judicial precedents binding on all courts within their territory and having persuasive value before courts outside their territory and are almost as important as statutes, rules and regulations passed by the competent legislatures and other bodies. [See All India Reporter Karamchari Sangh and others v. All India Reporter Limited and others, 1988 (Supp) SCC 472].

Copyright in Judgments

Another interesting decision that touches upon the nature of the law reports is that of the Delhi High Court. In a detailed judgment dated 17.01.2001, in suits filed by Eastern Book Company (EBC) against ‘Grand Jurix’ and ‘The Laws’, alleging that they exact copies of their Supreme Court CD Rom, Justice S.K.Mahajan held that, under Section 2(k) of the Copyright Act, a work which is made or published under the direction or control of any Court, tribunal or judicial authority in India is a Government work. Under Section 52(q), the reproduction of publication of any judgment or order of a Court, Tribunal or other judicial authority shall not constitute infringement of copyright of the Government in these works. However, in case, a person by extensive reading, careful study and comparison and with the exercise of taste and judgment has made certain comments about judgment or has written a commentary thereon, may be such a comment and commentary is entitled to protection under the Copyright Act.

The judge further explained that the orders and judgments of the Court are in the public domain and anyone can publish them. Not only that, the decision being a Government work, no copyright exists in these orders and judgments and no one can claim copyright in these judgments and orders of the Court merely on the ground that he had first published them in his book. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections of typographical mistakes are trivial and hence no copyright exists. There being no copyright in the text of the judgments, it was said that EBC cannot claim copyright in its head-notes. A genuine abridgment of judgments of the Court is an original work and can be the subject matter of infringement of a copy right even if the amount of originality is very small. However, in case the head-notes are verbatim extracts from the judgments of the Courts, there is no amount of skill or labour involved in preparing the head-notes and no person can claim a copyright. Re-production of either a few sentences from the judgments of the Court or the entire paragraph or the joining of some of the sentences of the judgment in the head-note cannot be said to be either a creative or original work or abridgment of the judgment of the Court. It is, therefore, clear that mere re-production of a part of the judgment in the head-note is not an abridgment of the judgment and no copyright can be claimed in it.

Aggrieved EBC appealed to a Division Bench and a judgment in its favour was delivered holding that the head-notes, foot notes and commentary were creative work and so EBC had copy right in the same. The text of the judgments however cannot be subject to copyright. The matter finally culminated in a decision of the Supreme Court. [See (2008) 1 SCC 1] EBC argued that copyright subsists in SCC as a law report as-a-whole based cumulatively and compendiously on all the substantial contributions of skill, labour and capital in the creation of various parts of SCC, that is, head notes, the editorial notes, foot notes, the version of the copy-edited text of judgments as published, the Selection of cases, the Sequence and Arrangement of cases, the indexes, tables of cases, that gives its character as a work as-a-whole. Midway, the respondents conceded that the head-notes and foot notes were copyright material. The Supreme Court after elaborate discussion directed that not only the foot notes and editorial notes but the paragraphs made by EBC in their copy-edited version with internal references and their editor’s judgment regarding the opinions expressed by the Judges by using phrases like “concurring”, “partly dissenting”, etc. on the basis of reported judgments in SCC cannot also be copied. Thus except the copy-edited text of the judgment nothing else is free from copy right. There was originality and creativity in the head notes, foot notes and editorial notes. These together with paragraph numbering and internal references imparted to the judgments some quality and character which the original judgment does not possess. Thus except the raw text of the judgments as provided by the registry of the Courts, anything that enhances the quality seems to have been brought into the ambit of copyright.

Mushrooming of Journals

Since there is no copyright in the text of the judgment several entrepreneurs and enthusiasts tend to publish law reports for commercial purposes at the cost of quality as what matters is not just the report but the head notes, commentary and editorial notes which are a rarity in several of the print and on-line Indian journals. Result is a plethora of journals.

Chief Justice M. Hidayatullah said that addiction to reporting all decisions of the superior courts rendered judicial method more complicated and discovering what the law is at any given moment is a matter of considerable difficulty and a gamble. He instead suggested a centrally controlled system of reporting. Differing from the view the editor of the EBC however suggested different alternatives. Beginning from 1872 to 1969, he said, we have 4000 volumes of reported judgments each of 150 to 300 pages and that they could be revised into a set of 100 volumes. He went further and even suggested to the Courts to avoid lengthy judgments, not to deliver separate judgments when concurring with a senior judge and not to make a fetish of precedent but to state first principles. These comments were from a private enterprise, which started in 1969 with the espoused aim of saving us from the official series, which were ‘too expensive and too delayed’. One of the avowed objectives was to publish SCC at a moderate price within the reach of legal profession at all levels. [See (1969) 1 SCC 3, 7]

Flying in the face of the above suggestions of EBC, we have SCC, the most bulky of the law reports and the highest priced and sometimes even slow, compared to journals once derisively called quickies like SCALE, Judgments Today, Supreme Today etc. The private enterprises publishing reports have no copyright over the decisions and so no royalty need to be paid. The reports do not contain even a semblance of any commentary. There are scant editorial notes. Legal reporting is yet to become a lucrative employment area warranting roping in services of the highly qualified and talented editorial staff. Still the reports are priced very high and the reasons are not far to seek.

Digitalisation

The Report of the National Commission to Review the Working of the Constitution of India, accepting that a satisfactory justice delivery system is not possible without access to law journals, among others, recommended that a Digital Legal Information System in the country shall be set up. [see Para 7.17, Chapter 7, Volume 1, Report of the National Commission to Review the Working of the Constitution, Universal Law Publishing Co. Pvt. Ltd., 2002]. JUDIS, the judgment retrieval system put in place by the National Informatics Centre is already a step towards it. However JUDIS is in an awful stage reporting judgments without editing, citation or comments and so of little use for professional purposes. Now it has judgments of the Supreme Court of India as reported in SCR and several High Courts and head notes are limited to a few.

Exorbitant Prices

Though private entrepreneurs have taken the lead even here, the costs are exorbitant. We boast of barging into a digital era and having the largest number of software professionals. In USA, the epitome of private enterprise, the entire text of 20,380 judgments of the Supreme Court from 1885 along with leading cases from 1793 to 1884, the Constitution, Federalist papers etc. are available on a single CD-ROM that can be run on any number of computers for American Dollars equivalent to approximately INR 10,000. Here, the SCC online with judgments of half a century are being sold at eight times the price and further comes with a hardware key limiting its usage to a single computer.

This is a result of the State leaving us to face the vagaries of market forces in the field of law reporting. The neglect of the State in publishing law reports is a flagrant violation of Section 3 of the Indian Law Reports Act, 1875. This statute having 4 Sections and amended at least 7 times until date, imposes a restriction, through Section 3, that the High Court may not hear, leave alone accept as binding precedent, any decision cited before it but not finding place in the reports published under the authority of the State Government.

Law reports are part of the justice administrative system and the more they grow in bulk, number and price, the more will be the confusion and lesser will be the access to commoners among the legal fraternity and concomitantly the still lesser will be access to justice. A not so famous quote reads that growth for the sake of growth is the ideology of the cancer cell.