Involuntary Manslaughter and Michael Jackson's Death Case

Involuntary manslaughter can be defined as the act when a person intends to do harm to another person, as a consequence death is resulted which was neither foreseen nor was it intended on the part of the guilty person.[1]While, manslaughter can be understood as an unlawful killing of another without malice, either expressed or implied.[2]Under Indian Penal Code, manslaughter can be categorised under Culpable Homicide.[3]The recent case with regard to the death of famous pop singer Michael Jackson (“King of Pop”), and the conviction of Conrad Murray, Michael’s doctor, has come out recently and has once again thrown light on the issue as regards Involuntary Manslaughter.[4]The doctor has been sentence to jail for a period of upto 4 years. He was accused to providing Michael with propofol before the latter died because of cardiac arrest. Negligence had been alleged on the part of the doctor.

Though before independence, a similar case can be found in the Indian context when Privy Council enunciated the principles as regards Criminal Negligence by a doctor.[5]In this case, doctor was accused of manslaughter, reckless and negligent act. Council, while dealing with the case, was of the firm opinion that a doctor cannot be held liable for the death of the patient as long as his acts are not negligent. Another such case came before the House of Lords, where it was of the view that in order to make doctor liable for manslaughter, it shall be shown that a breach of duty was carried out by the doctor. Thereafter, it should be proved that the breach so caused has in fact resulted into the death of the patient.[6]Another important decision as regards involuntary manslaughter is Regina v. Prentice,[7] where court laid down certain tests which ought to be fulfilled before concluding that the doctor is in fact liable for involuntary manslaughter. And according to this decision, important ingredients for the offence of involuntary manslaughter are breach of duty, that breach of duty to cause death.

In American context too, involuntary manslaughter has been dealt with due care and attention. California Penal code defines involuntary manslaughter as “......as in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or with due caution and circumspection”[8]In the case People v. Seiler, court was of the opinion that the degree of negligence for making oneself liable for involuntary manslaughter need not go to the extent of being reckless. Although, being an equivalent to culpable would suffice the purpose.

Even American Courts are not untested with the difficulty which may arise while dealing with these cases. There can, sometimes, come up certain situation when it would become quite difficult for the court to decide on the matter. Let us take an example where a doctor, whole performing an operation, acts negligently (Minor Negligence) because of which the patient dies, who was already suffering from such a treacherous disease where his chance of emerging safely from the operation is negligent. In such a situation, can the doctor be made liable for the death of the patient? He can be or cannot be made liable depending on the facts and circumstances of each case, and by also taking into consideration the fact whether the doctor reasonable care and professionalism which is mandatorily required to be maintained. Still, problem does not seem to be an easy one.

Again coming to the Indian Context, Section 304-A of the Indian Penal Code deals with the situations as regards medical negligence, and this section would be applied along with Section 299 (Culpable Homicide) while dealing with the cases as regards involuntary manslaughter. In the instant case, defence attorneys for Dr. Murray argued that Jackson was addicted to the consumption of propofil so that he could sleep easily. On the other hand, it had d been testified by the expert witnesses that propofol does not have any sort of bearing on the sleep of a person. Some of these facts convinced the jury (Jury system had been abolished in India after Famous “Nanavati Case”) to convict Dr. Murray.[9] This means that Dr. Murray was in fact guilty of breach of duty because of the negligence of his part, which eventually turned out to be the causation of death of Jackson because of the negligence so caused.

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[1] REGINA v. CREAMER, [1965] 3 WLR 583

[2] Black’s Law Dictionary

[3] Section 299, Indian Penal Code, 1960

[4] http://www.thehindu.com/todays-paper/tp-national/article2610185.ece

[5] John Oni Akerele v. R., AIR 1943 PC 72

[6] REGINA v. ADOMAKO, [1994] 3 WLR 288

[7] [1994] Q.B. 302

[8] Section 182, California Penal Code,

[9] Supra note 4

Defamation and the Suits Filed by ITC against Suhel Seth

Defamation finds itself placed under Indian Penal Code, where it has been defined as such a publication (both oral and written) which is intended to harm the reputation of a person.[1]The recent suits filed by ITC against Suhel Seth, who once retained the advertisement work of ITC.[2]Two suits one in Kolkata and other in Bangalore, each begging for Rs 100 crore, have been filed in these cities. Interestingly, these suits refer to the comments made by Seth on twitter, and some of the comments can be read as[3] –

"YC Deveshwar of ITC has had a sterling track-record of avoiding retirement at all costs...he could also be offered to the Maosits (sic) but then...."

"YC Deveshwar of ITC has just been nominated CHAIRMAN ETERNUS (sic)...forget Emeritus..." Seth has recently removed a few of his comments on Deveshwar from Twitter.”

'Yogi Devesh will teach the insider trading course at Tihar School of Business.”

Before concluding whether these comments can be considered as something which can impair the reputation of Y C Deveshwar, ITC Chairman and ITC itself, the important elements which ought to be satisfied for a defamation claim must be understood. Since it is a civil suit, conditions which are required to be satisfied in case of criminal defamation are not mandatorily being fulfilled, mens rea being one of them.[4]But again, a prima facie defamation should appear to the court.[5]

Article 19 of (1)(a) of the Constitution of India confers right on every citizen of India. At the same time, no right can be absolute and reasonable restrictions can be placed by the state, and so is with this right to freedom of speech and expression.[6]

Apparently, defamation can be categorised into libel and slander, where former requires the defamatory statement to subsist in permanent form, no such prerequisite is needed in the case of the latter. While slander is only a civil offence rather being a criminal offence in UK, no such distinction is present in India where both libel and slander are considered to be both criminal and civil offence. In the present case, statements made by Seth seem to be of permanent nature and can certainly be categorised as libel. Since, only civil suits have been filed by ITC, no requirement as regards criminal nature of defamation would be required to understand this situation. Before moving further, it is important here to know the imperative elements with regard to libel -

1. That the statement which is being made by the defendant (Seth in this case) is false. In the absence of the statement being false, plaintiff would not be able succeed in his claim.

2. It must be shown that the statement so published is static in form, and it can be both in writing and printing.

3. Thirdly, it must be shown that the statement so made is actually defamatory in nature. Now, what is defamatory is a matter of fact, and would depend on the facts and circumstances of each case. In general, the statement should either expose plaintiff to hatred, contempt, ridicule, or it should tend to harm his profession or trade, or it should cause him to be avoided by his society members, neighbours to be more specific.

It shall be noted here that even if plaintiff is not directly defamed by the statement, he can have a locus standi in case he has a reason to be believe that the statements are in fact directed against him and has caused injury to his reputation.[7]And further, if the statement is made against a company, then its directors can surely move a suit against defendant.[8]

In order to prove their case substantially, ITC has to satisfy all these conditions. Since the damages so demanded seem to be considerably high in nature, succeeding in getting such an amount seems difficult. One reason why usually higher monetary claims are made in the cases related to defamation can be attributed to the fact that in such a situation, plaintiff may be able to get proportionally lesser amount which would be at least more than what he could have received had he have claimed a lesser amount.

Also, whether the statements so made would actually harm the plaintiff shall also be taken into account in these cases, and whether it would harm ITC by any means whatsoever would again be a matter of fact.

Some other recent cases as regards defamation include the recent trail against Medha Patkar, and also the case against Carvan Magazine and Siddhartha Deb by IIPM.

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[1] Section 499, Indian Penal Code, 1860

[2]http://articles.economictimes.indiatimes.com/2011-11-06/news/30364142_1_itc-spokesman-itc-officials-tweets

[3] Ibid

[4] S. Khushboo v. Kanniammal, (2010) 5 SCC 600 at page 616

[5] Ibid

[6] Article 19(2), Constitution of India, 1950

[7] John Thomas v. K. Jagadeesan (Dr), (2001) 6 SCC 30 at page 35

[8] Ibid

Proviso to Section 437(1) of CrPC : Is Bail a matter of Right?

Bail, in non-bailable offences, is not a matter of right of the accused person. Section 437 of the Code of Criminal Procedure envisages the provision as regards bail in case of non-bailable offences, which may or may not be granted depending on the discretion of the court. But this provision also provides a proviso which exempts women, and empowers court to grant bail to a woman irrespective of the gravity of the crime. The recent take of CBI Court by refusing bail to Kanimozhi, Member of Parliament who is one of the accused in 2-G Scam case, on the ground that no special consideration can be given to a woman has come with differed opinions. A step on it, an appeal was filed before the Delhi High Court against the decision of CBI court on the ground that the lower court erred in classifying the term “woman” under CrPC when no such classification can be made under CrPC or the Constitution of India. No matter what will be the decision of the High Court, the proviso to Section 437 of the Indian Constitution illustrates the gender biased behaviour of the Criminal law prevailing since its inception. It would be quite interesting to keep a watch on the prospective stand of Delhi High Court in this case. Section 437 of CrPC uses the word “may”, which means it is not mandatory for the court to grant bail to the woman, who is an accused. It is merely an enabling provision which empowers the court to grant bail not only to a woman, but it should also be kept in mind that those provisions which affect fundamental rights of a person shall be given effect generally.[1]

Supreme Court, once while dealing with Section 437 of CrPC, was of the view that though this Section gives special consideration to a woman, it cannot be considered to be a mandatory provision.[2]Though once it had been held by Allahabad High Court that this proviso to Section 437 shall be exercised mandatorily,[3]but the same decision was reversed by Allahabad High Court itself stating that the provision is not mandatory in nature.[4]In the former case, High Court was of the view that the word “may” provided therein under the Code is not discretionary but mandatory in nature, while in the latter case it was of the view that is subjected to judicial discretion. Now, it will depend on the discretion of the Delhi High Court whether it will grant bail to Kanimozhi. Since it would not be mandatory for the court to provide remedy to her under this proviso, claiming bail based on this proviso will not be of much help. Though other instance may go in favour of her for e.g. the duration for which she has been in jail and the tedious behaviour of CBI by not opposing the bail plea. No doubt these facts may well go in her favour, but it would be interesting to see the reaction of the high court towards the reasoning of lower court judge.

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[1] Gurubaksh Singh Sibba v. State of Punjab AIR 1980 SC 1632

[2] Prahalad Singh Bhati v. N.C.T. Delhi & Ors. (2001) 4 SCC 280

[3] Smt. Shakuntala Devi v. State of U.P. 1986 Cri LJ 365 (All.)

[4] P.K. Manglik & Ors. v. Sadhna Rani & Ors. 1989 Cri LJ 1771 ( All.)

Compensation Under Public Law Remedy – A Review of Uphaar Cinema Judgment

The decision of Supreme Court in case as regards Uphaar Cinema tragedy which occurred back in the year 1997 may have come along with several criticisms for reducing the amount of compensation. But, it has been able to throw light on certain imperative aspects of law, specifically the recourse which shall be adopted while awarding compensation under Public Law Remedy. Public Law remedy, as distinct from Private Law Remedy, can be exercised by the Constitutional Courts (High Courts and Supreme Court) under Article 226 and 32 of the Constitution of India, 1950. The judgment encompasses two parts, first part deals with the liability of the officials under Public Law, and secondly it deals with the amount of compensation which can be awarded under Public Law Remedy.

The appeals have been filed by Municipal Corporation of Delhi, Commissioner of Police (Licensing Authority) and M/s. Ansal Theatre and Clubotels Pvt. Ltd. These appeals are against order of Delhi High Court.

A separate judgment was delivered by Justice K.S. Radhakrishnan wherein he discussed the issue as regards Constitutional Tort.

Public Law Remedy

A Public Law can be defined as those laws which construct a relationship between Individuals and the state. Constitution is one such kind of law, and remedy provided therein under such law can be termed as a Public Law Remedy. In the instant case also, original suit had been filed before the Delhi High Court under Article 226 of the Constitution, on the ground that impugned irregularities and the negligence on the part of the appellants led to the infringement of Right to Life as provided under Article 21 of the Indian Constitution. The remedy provided by the court under such category will not be categorised under ordinary tort law, rather it would be categorised under Constitutional Tort Law. Supreme Court in this case relied on the judgment of Rabindra Nath Ghosal Vs. University of Calcutta and Ors. (2002) 7 SCC 478, where it had been held by the court that by means of moulding relief under Article 32 or 226 penalises the wrong doer or the state monetarily for the wrong which they have committed. Further, court was of the firm view that before any action can be taken against state, it shall be unquestionably being shown that the acts of the public functionaries were arbitrary and capricious that eventually left victim helpless.

Extent of the Liability of Public Functionaries under Public Law Remedy

In the instant case, court discussed its judgment in Rajkot Municipal Corporation v. M.J. Nakum (1997) 9 SCC 552, wherein it had been held by the court that a mere omission to do something which cannot reasonably give rise to a legal action against the state. Court relied on this judgment with reference to the contentions put forth by the MCD for exonerating it from all the claims. It can be concluded from this judgment that in order to succeed in a claim against the state under Public Law Remedy, claimant has to prove his claim substantially. A Canadian Judgment in the case of John Just v. Her Majesty The Queen -- (1989) 2 SCR 1228 was discussed by the court along with some English and other Canadian Cases. In this Case, Canadian Supreme Court had held that –

“...In order for a private duty to arise in this case, the plaintiff would have to establish that the Rockwork Section, having exercised its discretion as to the manner or frequency of inspection, carried out the inspection without reasonable care or at all. There is no evidence or indeed allegation in this regard......I would therefore dismiss the appeal.”

Supreme Court was of the view that just because an authority owes a public law duty under any statue, it cannot in any way mean that such a statue will give rise to a duty of care, The wordings of the judgment can be read as follows –

“A duty of care at common law can be derived from the authority's duty in public law to give proper consideration to the question" whether to exercise power or not (p.411). This public law duty cannot by itself give rise to a duty of care. A public body almost always has a duty in public law to consider whether it should exercise its powers but that did not mean that it necessarily owed a duty of care which might require that the power should be actually exercised............ An absolute rule to provide compensation would increase the burden on public funds”

Eventually, MCD was exonerated from its liability on the ground that an authority cannot in any manner be held liable merely because of the reason that it had discharge some duty, or it failed to discharge its duty in a proper manner. The same should be grave. MCD’s liability was only limited to the action which it ought to have taken against the parapet wall raised by the Licensees. At the time when the wall was raised, MCD was not the sanctioning authority, instead PWD was responsible. And by the time MCD was conferred with this sanctioning power, the wall was already in existence for some 20 years. And this turned out to be the prime factual point which eventually favoured MCD. Nonetheless, this did not exonerate Delhi Vidyut Board (“DVB”) and Licensees. Also, MCD was exonerated because parapet wall did not turn out be the prime reason for the tragedy to take place. Rather, it was the inside construction carried out by the Licensees in the hall.

Amount of Compensation under Public Law

While dealing with this matter, court came across the calculation carried out by the Delhi High Court while awarding damages to the claimant. High Court framed out the average income of the deceased persons, and thereafter multiplied it with the digit 15 in order to conclude the final amount to be awarded to each of the claimants. In this matter, High Court awarded Rs. 18 lakhs to the legal heirs of those deceased aged 20 years or more, and Rs. 15 lakhs to the legal heirs of those deceased persons aged 20 years or less. Supreme Court put itself in front of a question that whether the impugned method adopted by the High Court in awarding compensation could have actually been carried out by means of a Public Law Remedy under Article 32 and 226 of the Constitution. The nature of compensation awarded under Public Law Remedy is palliative in nature, and the same cannot be equated with the damages under civil law. A person can approach a civil court if he is not satisfied with the compensation under Public Law Remedy. This position can be derived from the stand of Supreme Court in the case of Rudul Sah vs. State of Bihar [1983 (4) SCC 141, and the same line of reasoning can be found in the case of Sube Singh vs. State of Haryana [2006 (3) SCC 178]. Further, Court while discussing the issue of compensation under Public Law in the case of Nilabati Behera alias Lalita Behera vs. State of Orissa [1993 (2) SCC 746]

“The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

Supreme Court, in the case, was of the opinion that considerable amount of compensation by means of Public Law Remedy is not safe and this turned out to be the reason for the reduction of compensation by the Supreme Court. Nonetheless, Supreme Court made arrangements for the speedily. In determining the amount of compensation, factors which play crucial role are

The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses)

Reference as to these criterion can be made to the Judgment of Supreme Court in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121

But, the same amount shall exclusively be borne by the Licensees i.e. Theatre Owner.

Punitive Damages

Punitive damages are also known as exemplary damages, and are awarded so as to deter the defendant from carrying out any such action in future. In the instant case, Delhi High Court awarded Rs. 2.5 crore to the claimants by means of Punitive Damages. But this view of the High Court was not appreciated by the Supreme Court. High Court, while calculating the damages, took into account the 52 seats which had additionally been installed in the theatre. But, High Court ignored that fact that sanction was given to the installation of 37 seats by the Delhi High Court at the time of installation. Hence, Supreme Court calculated the benefit which was derived out by the theatre owners in the between the period 1979-1996, which eventually reduced the damages from Rs. 2.5 crore to Rs. 25 Lakhs.

Separate Judgment of Justice K.S. Radhakrishnan

The separate judgment of Justice Radhakrishnan dealt with the issue of Constitutional Tort. He aptly pointed out the shortcomings in the existing remedy under Public Law, and recommended that a specific legislation is urgently required so as to address the compensation claim under Public Law. He opined that most of the cases under Public Law which come before the court are very often based on violation of personal liberty, right to life or human rights.

Sovereign Immunity

Sovereign Immunity is a legal concept which depicts that a state cannot commit any wrong. But, there can be circumstances when state can be held liable for the wrongs committed by its functionaries, and for those acts no sovereign immunity can be claimed. In the absence of action against state, fundamental rights may act only as a unresponsive provisions. This issue was discussed by Justice Radhakrishnan, and he referred to the judgments of State of Rajasthan v. Vidyawati AIR 1962 SC 933, Kasturi Lal v. State of U.P. AIR 1965 SC 1039 to signify that there is a distinction between sovereign functions and non-sovereign functions of the state. While, state cannot be held liable for the former, it can incontestably be held liable for the latter. In N. Nagendra Rao v. State of A.P., AIR 1994 SC 2663, it had been held by the Supreme Court that in modern era, emphasis is more on the liberty, equality and rule of law and less emphasis is on the efficiency and dignity of the state as a juristic person in comparison to the former. Further, court in this case was of the view that when public official can be held liable in their personal capacity, there is no reason why state cannot be held liable for the same.

Constitutional Tort

Constitutional Tort, according to Justice Radhakrishnan, found its expression in the case of Devaki Nandan Prasad v. State of Bihar 1983 (4) SCC 20, For this purpose, case of Khatri & Others v. State of Bihar & Others (1981) 1 SCC 627, where a claim was brought before the court for the infringement of fundamental right enshrined under Article 21 of the Constitution.

Other Judgments - Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, Bhim Singh v. State of J. & K. (AIR 1986 SC 494), Saheli v. Commissioner of Police, Delhi, (AIR 1990 SC 513), Inder Singh v. State of Punjab (AIR 1995 SC 1949), Radha Bai v. Union Territory of Pondicherry AIR 1995 SC 1476, Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787), Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, Gudalure M.J. Cherian v. Union of India 1995 Supp (3) SCC 387, Sube Singh v. State of Haryana 2006 (3) SCC 178

In other words, it would not be wrong to say that sovereign immunity cannot be claimed for the cases involving violation of fundamental rights. This position of law can be found in the case of Nilabati Behera v. State of Orissa (AIR 1993 SC 1960), where in it had been held by the court that a remedy provided in the form of fundamental rights is based on the strict liability of the state, and the same cannot be compared with the remedies provided under private law, or in the words of the court –

“It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution."

At the same, no strait jacket formula can be applied in computation of the compensation for claim made under Public Law (D.K. Basu vs. Union of India (1997) 1 SCC 416). And the remedy shall only be invoked under special and extreme circumstances where grave violation of fundamental rights has been proved.

abhinav.s@nujs.edu

Preliminary Decree - Not Sufficient for the Partition of a Hindu Joint Property

Amendment to the Hindu Succession Act, 1956 (“Act”) in the year 2005 turned to be an enabling provision for women by providing them with the rights over the ancestral property, which for long period of time was denied to them. Section 6 of the Act was amended so as for this purpose which provided rights to daughters equivalent to those of a sons in a family property by virtue of their birth. But, it shall be noted here that act so amended cannot be applied to the partitions or property arrangements executed before the commencement of the act. Statement of Objects and reason of the amendment act, if read carefully, will aptly connote that the said amendment to the act was indeed carried out because disallowing women from claiming any kind of share in the property was behaving as a discriminatory provision against the women. In other words, it was a gender biased provision. The date on which this amended act came into force was September 9, 2005.

Some of the ways by means of which a Hindu Joint Property can be divided are a registered instrument of a partition, and a decree of the court. In the former case, sometimes it becomes difficult to conclude at what stage of the trail a decree of the court can be considered to be sufficient for the final partition of a Hindu Joint Property. In other words, whether preliminary decree can be considered to be sufficient enough for the partition of a Hindu Joint Property? This question has recently been addressed by the Supreme Court in Ganduri Koteshwaramma & Ors v. Chakiri Yanadi & Ors Civil Appeal No. 8538 of 2011, where issue as regards the rights of the daughters/appellants under the amended act had come before the court.

Preliminary decree had been passed by the trial court in the year 1999, at a time when the impugned act was not amended by the legislature. Before the final decree passed, the act was amended in the year 2005 thereby conferring rights over the appellant on in the piece of property which they had not been holding any kind of share earlier. The same amendment was allowed by the trail court and the final decree was made only after taking into consideration the amended act. In the meantime, Sons/Respondent preferred an appeal before the Andhra Pradesh High Court, and interestingly High Court reversed the decree of trial court, and further high court was of the view that final decree shall always be in conformity with the preliminary decree after taking into consideration Order XX Rule 18 of CPC. Eventually, the matter came before the Supreme Court by means of a civil appeal.

Supreme Court aptly discussed the issue as regards the substance which one should provide to the preliminary decree. Court held that a suit for partition cannot said to have been disposed off only by means of a preliminary decree, and the same shall stand to be concluded only when the final decree has been passed. Further Court was of the opinion that the same preliminary decree can be amended as many times as court wants to amend before the final , and no provision under Civil Procedure can said to be a deterrent to the same. Court, while opining this, relied on the case of Phoolchand and Anr. Vs. Gopal Lal [AIR 1967 SC 1470], wherein it had been held by the court that –

"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. . . . .. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; ........... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree.... ............"

Court also relied on the case of S. Sai Reddy vs. S. Narayana Reddy and Others [(1991) 3 SCC 647 11], wherein it had been held by the court that

“Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete”.

Eventually, court in this case, while appreciating the fact that this amended act shall not be applied to the partitions which had already been executed before this amended act, Court allowed the appeal.