Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J.  allowed a petition quashing the proceedings, invoking its inherent powers under Section 482 of the Code of Criminal Procedure, 1973, stating that the criminal proceedings against the petitioner were nothing but an abuse of the process of law.

In 2008, there was a search operation at the Transport Bus Stand, Kollam. The petitioners, who were standing together, were asked by the police to hand over their bags, inside which they found a video camera and a digital camera. On inspection, the cameras were found to contain certain sexually explicit pictures and videos of the 2d accused petitioner. The petitioners were arrested and their cameras were taken into custody. The crime was registered, and after investigation, a final report was presented before the Judicial Magistrate. And as the petitioners failed to appear before the court, the case against them was removed to the list of long pending cases as LP No. 334/2014.

The learned counsel appearing for the petitioners, stated that, first, the pictures were of the 2nd and 1st accused together, and the 1st accused was the partner of the 2nd accused, and second, that as there was only possession of the sexually explicit photographs with the accused, and no publication or advertisement, the prosecution has no case against them. The learned Public Prosecutor on instruction submitted that the explicit pictures and videos in the camera, were recorded for the purpose of circulation and distribution.

The Court having considered the submissions of both the sides, stated that the Indecent Representation of Women (Prohibition) Act, 1986, prohibits indecent representation of women through advertisements or publications, and with reliance on it, there is no case for the prosecution there being no advertisement or publication or circulation of their private pictures found in the cameras which were in their possession. The Court laid down that if there are some sexually explicit pictures or videos with a person, of his own, then the mere possession will not be a criminal offence, unless there is distribution or publication of the pictures for advertisement or for any other incidental purpose.

Thus, the petition was allowed, and the proceedings against the petitioners were declared void.[Smitha v. State of Kerala, 2019 SCC OnLine Ker 1834, decided on 26-02-2019]

Case BriefsForeign Courts

Supreme Court of the United Kingdom: “He tried to strangle me.” What would those words convey to an ordinary reasonable reader of a Facebook post? A bench of Lord Reed, Deputy President and Lord Kerr, Lady Black, Lord Briggs and Lord Kitchin considered the above-framed question while deciding an appeal in a case of defamation filed respondent-husband against the appellant, her former wife.

Ronald Stocker was the former husband of the appellant, Nicola Stocker. Their marriage ended in acrimony in 2012. Mr Stocker subsequently formed a relationship with Ms Deborah Bligh. On 23 December 2012, an exchange took place between Mrs Stocker and Ms Bligh on Facebook where Mrs Stocker informed Ms Bligh that Ronald had tried to strangle her. She also said that Ronald had been removed from the house following a number of threats that he had made; that there were some “gun issues”; and that the police felt that he had broken the terms of a non-molestation order. These statements and the allegation that Ronald had tried to strangle her were the basis on which Ronald took proceedings against her for defamation.  

Ronald claimed that the meaning to be given to the words “tried to strangle me” was that he had tried to kill her. Mrs Stocker denied that the words bore that meaning. The High Court, however, ruled in favour of Ronald. Thus, Mrs Stocker filed the present appeal. 

The Supreme Court did not agree with the approach of the trial Judge. The Supreme Court was of the view that his approach produced an obviously anomalous result. The phrase “he strangled me”, on his analysis entails a less serious accusation than the phrase “he tried to strangle me”. This was the consequence of confining the meaning of the words exclusively to dictionary definitions. According to the Supreme Court: “Where a statement has more than one plausible meaning, the question of whether defamation has occurred can only be answered by deciding which single meaning should be given to the statement”.

It was observed: “The primary role of the court is to focus on how the ordinary reasonable reader would construe the words. To fulfil this obligation, the court should be particularly conscious of the context in which a statement is made. The hypothetical reader should be considered to be a person who would read the publication”.

It was opined that the fact that this was a Facebook post is critical and it was necessary for the judge to keep in mind the way in which such postings are made and read. The Court said: “It is unwise to search a Facebook post for its theoretical or logically deducible meaning. The search for meaning should reflect that this is a casual medium in the nature of a conversation rather than a carefully chosen expression. People scroll through Facebook quickly and their reaction to posts is impressionistic and fleeting”.

It was held that through relying on the dictionary definitions, the trial Judge fell into legal error. As a consequence of this, he failed to conduct a realistic exploration of how an ordinary reader of the Facebook post would have understood it. As a result of this error of law, the decision on meaning could not stand and it was felt appropriate by the Supreme Court to determine the meaning of the post itself. In Court’s opinion, an ordinary reader of the post would have interpreted it as meaning that Mr Stocker had grasped Mrs Stocker by the throat and applied force to her neck. 

In light of this, it was held that the defence of justification should succeed. Even if Mrs Stocker’s allegations were considered not to have been established to the letter, there was more than enough to demonstrate that that defence should not fail by reason only that the truth of every charge was not proved. [Stocker v. Stocker, [2019] 2 WLR 1033, dated 03-04-2019] 

Case BriefsHigh Courts

Patna High Court: A Bench comprising of Rajendra Menon, C.J. and Sudhir Singh, J. has dismissed the writ application in which two Government Resolutions were challenged as violative of Articles 14, 19 (1)(g) and 38 of the Constitution.

One of the resolutions, which stipulates that publication of tender notice was not necessary, was challenged as giving rise to arbitrariness and monopoly. The other resolution, which provides for 50% reservation in Public Works Contracts was challenged as violative of Articles 14 and 19 (1)(g). The respondent took recourse to Articles 38 and 46 of the Constitution, which direct the State to eliminate inequality and promote economic interests of the weaker sections of the people.

The Court referred to Article 14 and observed that though it talks about ‘equality before law’, but all persons are not equal by nature, attainment or circumstances, and therefore a mechanical equality may result in injustice. The different needs of different classes of people require differential and separate treatment. It is, therefore, necessary for the State to have the power of making laws to achieve particulars object and, for that purpose, to distinguish, select and classify persons and things. After discussing a catena of judicial decisions on the said matter, it was held that to treat people who are not situated euqally, as equals would itself be violative of Article 14, as this would itself result in inequality. Therefore, if the law in question is based on rational classification, it is not regarded as discriminatory. It was further stated that non-exclusion of creamy layer will be a breach of Article 14. However, in the present case, the Court observed that, in terms of one of the impugned resolutions, ‘creamy layer’ or ‘socially advanced persons’ have been excluded as not being entitled to benefit. Consequently, it was held that the impugned resolutions do not suffer from vice of arbitrariness and unreasonableness, and they are not violative of Articles 14 and 19 of the Constitution. [Sapna Singh v. State of Bihar, 2017 SCC OnLine Pat 679, decided on 11.05.2017]

Supreme Court

Supreme Court: In a PIL filed to seek a writ to restrain the Central and the State Governments from using public funds on Government advertisements and seek guidelines regarding to regulation of Government action in the matter of prevention of wastage of public funds in connection with such advertisements, the Division Bench of Ranjan Gogoi and P.C. Ghose, JJ., held that the practice of publication of the photograph of an individual politician or a State or a Party functionary in an advertisement is to be done away with, as by using an individual’s photograph, there is chance of creation of a personality cult which opposes the principles of democratic functioning. However the Court added that the offices of the President, the Prime Minister and the Chief Justice of India are an exception to this direction. It was further decided that advertisements commemorating the anniversaries of departed personalities can carry the photograph of the departed leader.    

For the petitioners Rishi Kesh contended that under the garb of advertisements the political parties seek undue advantage by way of crediting individual political leaders for being responsible of various governmental achievements and such practice becomes rampant during the time of elections. The petitioners further contended that such advertisements derogate the fundamental rights as guaranteed by Article 14 and 21 of the Constitution. The Central Government on the other hand raised the contention that under Article 142 of the Constitution the issue is related to governmental policies and executive decisions, therefore it would not be appropriate for the Court to issue guidelines on the same. The Court in a previous Order dated 23.04.2014, directed the constitution of a Committee consisting of eminent advocates and jurists. The Committee laid down guidelines with respect to Government’s advertisement campaigns. Some of the important Guidelines were- the advertisement should not be directed to promote interests of the ruling party; the advertisements should be designed to meet the objectives of the campaign; appointment of an Ombudsman to look into the matters of violations and enforcement.

The Court observed that the Guidelines laid down by the committee are comprehensive and would serve public interest by disseminating the information to the public at large and create awareness among them. As regards to the appointment of the Ombudsman, the Court stated that a three-member body consisting of impartial and neutral persons should be constituted by the Central Government. With these observations, the Court gave its approval to the Guidelines laid down by the Committee constituted in the pursuance of the Order dated 23.04.2014. Common Cause v. Union of India, 2015 SCC OnLine SC 479, decided on 13.05.2015