Generated by All in One SEO Pro v5.0.1.1, this is an llms-full.txt file, used by LLMs to index the site. # LawFoyer A daily dose for inquisitors ## Posts ### [Blog](https://lawfoyer.in/blog/) **Published:** October 19, 2016 **Author:** LawFoyer --- ### [RES JUDICATA under Civil Procedure Code, 1908: Meaning, Provisions, Principles and Cases](https://lawfoyer.in/res-judicata-under-civil-procedure-code-1908-meaning-provisions-principles-and-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Deepti, MERI Professional and Law Institute

INTRODUCTION

Res Judicata is a principle used in law which is derived from Latin which means ‘a matter judged’. It basically in law means that when a case has been delivered with a judgment which was final then both the parties cannot claim another subsequent proceeding. Its main motive is to promote finality and efficient judicial system. As per Section 11 of Civil Procedure Code, states that “When a final judgment has been served to a lawsuit by the competent court after adjudication, the same issue cannot be re-litigated in any subsequent suit by any of the two parties.”[1]

MEANING, PROVISIONS, PRINCIPLES AND CASES

  1. Understanding the meaning of Res Judicata
Res Judicata, a fundamental principle in civil procedure, states the idea that when a matter has been decided for the last time by the competent court, it cannot be filed again by either of the parties. This doctrine in law serves several crucial fundamentals within the legal system and providing stability of judicial decisions. It ensures that the parties in a lawsuit are needed to follow the final judgment given by the court preventing the parties from litigating the same issue several times.
  1. Two main Doctrines of Res Judicata
  2. CLAIM PRECLUSION (Merger): This doctrine prevents both the parties from taking the same cause of action or claim to the court again and again if the same matter has been adjudicated already. Once when the final judgment has been given, no party is allowed to adjudicate the same claim subsequently. It includes both the claim that was actually raised and also the claim that could have been raised. The main aim of this doctrine is to prevent both the parties from engaging in piecemeal litigation.
  3. ISSUE PRECLUSION (Collateral estoppel): Like the Claim preclusion prevents the parties to adjudicate the same claim again, this doctrine prevents both parties from re-litigating specific issues that were given judgment in the prior proceeding. Even if the subsequent case involves different cause of action, this doctrine bars re-adjudication the same issue multiple times.
Under the Civil Procedure Code, the application of res judicata is governed by some specific provisions which explains the conditions under which it applies.

Elements of Res Judicata

  1. Final Judgment- Res Judicata applies only when the final judgment has been given by a competent court. A judgment can is only considered final when it contains the rights and obligations of both the parties respectively involved in the lawsuit.
  2. Identity of Parties- Res Judicata can only be applied when the same parties have re-adjudicated the same cause of action. If the parties are not same in the re-litigation then res judicata have no relevance.
  3. Identity of Subject Matter- Res Judicata only applies when the subsequent lawsuit involves the same cause of action as the previous judgment given. This means that the claim in the subsequent case must be substantially similar to those litigated in the prior judgment.
  4. Identity of Cause of Action- The cause of action in the next lawsuit must arise out of the same fact as of the prior lawsuit. In this case, Res Judicata prevents both the parties from splitting or dividing the cause of action and re-adjudicating the claims that have been given in the prior judgment.
  5. Finality of the Judgment- The judgment which was given in the prior lawsuit should be final and binding, which means that it cannot be challenged through appellate process. But there is an exception that Res Judicata does not apply to Judgments that are subject to revision or that can be appealed.
  6. Competency of the Court- The court that gave the final judgment to the lawsuit should have the jurisdiction over the parties and the subject matter.

Principles guiding Res Judicata

Under the Civil Procedure Code, several principles guide the application of Res Judicata:
  1. Finality- Res Judicata is based on the principle of finality, which basically means that once a matter had been finally adjudicated by a court, it cannot be appealed further in another court between the same parties. This principle promotes the conclusiveness of a lawsuit’s judgment.
  2. Judicial Efficiency- One of the main aims of Res Judicata is to promote efficiency of judicial system by preventing both the parties of the lawsuit to litigate again and again for no reason which leads to wasting time of the honourable court. By limiting the re-adjudication of claims that have been already served with a judgment to conserve the judicial resources.
  3. Prevention of Multiple Litigation- Res Judicata bars the parties from dividing the causes of actions or changing claims in different proceedings that could have been solved in prior lawsuit. Promoting the fact that all the important issues should be solved in a single lawsuit.
  4. Preservation of Integrity- By binding both the parties to follow the judgment given by the court strictly, Res Judicata plays an important role to maintain this principle by preserving integrity of the judiciary.
  5. Promotion of Fairness- Res Judicata also promotes fairness by giving both the parties with certainty in the judgment of their disputes. Once the matter has been provided with the final judgment, both the parties can conclude with their issue finally being resolved.

Procedural application of Res Judicata under Civil Procedure Code

  1. Identification of prior judgment- The Procedural application of Res Judicata includes to know and find out whether there is a prior judgment given or not which can affect the application for Res Judicata.
  2. essment of identification of parties- If there has been a subsequent lawsuit filed, then it is mandatory to find out details about the applicant parties whether they were involved in the prior judgment or not. Res Judicata only applies when same parties apply the subsequent lawsuit so that both the parties could be prevented from re-adjudicating the same.
  3. Analysis of identity of subject matter and cause of action- There is a requirement to assess whether the subsequent suit have the same claim or cause of action or not i.e. to know whether the claim was given under the prior judgment or not. This includes knowing whether the claim raised has been covered under the prior lawsuit.
  4. Review of finality of the prior judgment- The final judgment which was given must be conclusive enough to apply Res Judicata. The judgment should not need any further review or appeal in any case.
  5. Verification of Competency of the court- It needs to be verified whether the prior judgment which was given by the competent court having the correct jurisdiction or not. Res Judicata cannot be applied if the court which gave the judgment lacked jurisdiction to hear that particular case.
  6. Application of Statutory Provisions- Reference of specific and valid statutory provisions are needed within the Civil Procedure Code that governs the doctrine of Res Judicata. These statutes provide framework to the conditions which governs the application of Res Judicata and provides guidance to its procedure and procedural effects.
  7. Judicial Determination- It is up to the discretion of the honourable court whether to apply Res Judicata or not. Relevant statutes and factors would be considered by the court to determine the application of the doctrine.

Important cases guiding Res Judicata

  1. Avtar Singh v. Jagjit Singh- In this case a plaint was filed regarding the court’s arbitration in the revenue court by one of the parties, sustaining the objection the plaint was returned to the respective party. Giving the reason that the revenue court was not having the jurisdiction to try the suit. Hence, it was concluded that the suit was rejected by following the guidelines mentioned under the doctrine of Res Judicata.
  2. Devilal Modi v. Sales Tax Officer- In this leading case, the validity of an assessment was challenged under Article 226. The Petition was dismissed mentioning about the facts and merits. The same appeal was dismissed by the honourable Supreme Court mentioning the same issue. Another writ petition was filed in the High Court but still there was rejection of the appeal. The Supreme Court made the final decision that the same case was rejected under the guidelines mentioned under Res Judicata,
  3. Mathura prasad v. Dossabai N.B. Jeejeebhoy- It was held that Res Judicata can not be operated in the subsequent proceeding. If there is different question of law as of the previous one then Res Judicata cannot be applied. To apply Res Judicata the decision given should be held by the court with competency. It was also stated that if the issue of law gives rise to right then Res Judicata is not applicable.

Significance and Implications of Res Judicata

  1. Judicial efficiency- Res Judicata prevents both sides of the parties to re-adjudicate same issue or claims again and again that have already been provided with a judgment in form of appeal which promotes efficiency in judicial system and save resources. Courts would be able to focus on other and new cases rather than wasting time on same lawsuit.
  2. Fairness and equality- This doctrine helps to maintain equality and fairness among all the parties by ensuring that either of the party cannot re-litigate the issue and maintain same rules and regulations for both the parties. It provides parties with closure and prevents waste of time and exploitation of rights.
  3. Stability of legal system- Res Judicata promotes the stability of legal judiciary system by providing proper framework and consistency I judicial decisions. Once a court provides judgment to a case it helps to set a precedent for the upcoming cases to establish clear rules and standards.
  4. Prevention of Forum Shopping- It promotes respect for the judgment making system of the court binds parties to adjudicate in good faith and not to play unfair. Res Judicata discourages both the parties to practice Forum Shopping i.e. litigants applying lawsuit in court where they think the judgment will be in their favour after an unfavourable judgment has been passed rendered.
  5. Preservation of Judicial integrity- By preventing the parties to re-litigate and to respect the judgment of the court by not repeatedly challenging the decisions. It helps to maintain the authority, respect and integrity of the court by being a watchdog of the judgment passed.

CONCLUSION AND COMMENTS

In Conclusion, Res Judicata is a fundamental principle which is covered under framework of the Civil Procedure Code, embodying the principles of finality, fairness, and efficiency which helps in perfect administration of justice. By barring parties from re-litigating again and again saving time of the court. Res Judicata serves its main aim to save resources of the court to provide judgment when already concluding judgment has been provided to both the parties. Furthermore, it sets legal precedent and guidelines for next cases and enhances confidence of people in the judicial system. Res Judicata is not only a doctrine of law but a cornerstone of judiciary system, it ensures that the integrity of the judiciary system is maintained.

REFERENCES

  1. Kumar S, “Res Judicata Can’t Be Decided in Application under Order VII Rule 11 CPC: Supreme Court” Live Law (September 18, 2023); https://www.livelaw.in/supreme-court/supreme-court-ruling-res-judicata-plaint-rejection-application-order-7-rule-11-cpc-238024&#; accessed March 2, 2024
  2. Paliwala M, “Meaning, Nature, Scope of Legal Doctrine of Res Judicata under Section 11 of Code of Civil Procedure” (iPleaders, September 1, 2023); https://blog.ipleaders.in/overview-on-doctrine-of-res-judicata/ ; accessed March 2, 2024
  3. M S, “Doctrine of Res Judicata: Sec 11 of Civil Procedure Code” (CLATalogue, August 3, 2023); https://www.lawctopus.com/clatalogue/clat-pg/doctrine-res-judicata-section-11-cpc/ ; accessed March 3, 2024
  4. “Free Law” Free Law (July 21, 2023); https://www.freelaw.in/legalarticles/Key-Principles-and-Applicability-of-Res-Judicata ; accessed March 3, 2024
[1] The Code of Civil Procedure, 1908, s11 **Content:** **Author-Deepti, MERI Professional and Law Institute** ### **INTRODUCTION** Res Judicata is a principle used in law which is derived from Latin which means ‘a matter judged’. It basically in law means that when a case has been delivered with a judgment which was final then both the parties cannot claim another subsequent proceeding. Its main motive is to promote finality and efficient judicial system. As per Section 11 of Civil Procedure Code, states that “When a final judgment has been served to a lawsuit by the competent court after adjudication, the same issue cannot be re-litigated in any subsequent suit by any of the two parties.”[\[1\]](#_ftn1) ### **MEANING, PROVISIONS, PRINCIPLES AND CASES** 1. **Understanding the meaning of Res Judicata** Res Judicata, a fundamental principle in civil procedure, states the idea that when a matter has been decided for the last time by the competent court, it cannot be filed again by either of the parties. This doctrine in law serves several crucial fundamentals within the legal system and providing stability of judicial decisions. It ensures that the parties in a lawsuit are needed to follow the final judgment given by the court preventing the parties from litigating the same issue several times. 2. **Two main Doctrines of Res Judicata** 3. **CLAIM PRECLUSION (Merger):** This doctrine prevents both the parties from taking the same cause of action or claim to the court again and again if the same matter has been adjudicated already. Once when the final judgment has been given, no party is allowed to adjudicate the same claim subsequently. It includes both the claim that was actually raised and also the claim that could have been raised. The main aim of this doctrine is to prevent both the parties from engaging in piecemeal litigation. 4. **ISSUE PRECLUSION (Collateral estoppel):** Like the Claim preclusion prevents the parties to adjudicate the same claim again, this doctrine prevents both parties from re-litigating specific issues that were given judgment in the prior proceeding. Even if the subsequent case involves different cause of action, this doctrine bars re-adjudication the same issue multiple times. Under the Civil Procedure Code, the application of res judicata is governed by some specific provisions which explains the conditions under which it applies. ### **Elements of Res Judicata** 1. Final Judgment- Res Judicata applies only when the final judgment has been given by a competent court. A judgment can is only considered final when it contains the rights and obligations of both the parties respectively involved in the lawsuit. 2. Identity of Parties- Res Judicata can only be applied when the same parties have re-adjudicated the same cause of action. If the parties are not same in the re-litigation then res judicata have no relevance. 3. Identity of Subject Matter- Res Judicata only applies when the subsequent lawsuit involves the same cause of action as the previous judgment given. This means that the claim in the subsequent case must be substantially similar to those litigated in the prior judgment. 4. Identity of Cause of Action- The cause of action in the next lawsuit must arise out of the same fact as of the prior lawsuit. In this case, Res Judicata prevents both the parties from splitting or dividing the cause of action and re-adjudicating the claims that have been given in the prior judgment. 5. Finality of the Judgment- The judgment which was given in the prior lawsuit should be final and binding, which means that it cannot be challenged through appellate process. But there is an exception that Res Judicata does not apply to Judgments that are subject to revision or that can be appealed. 6. Competency of the Court- The court that gave the final judgment to the lawsuit should have the jurisdiction over the parties and the subject matter. ### **Principles guiding Res Judicata** Under the Civil Procedure Code, several principles guide the application of Res Judicata: 1. Finality- Res Judicata is based on the principle of finality, which basically means that once a matter had been finally adjudicated by a court, it cannot be appealed further in another court between the same parties. This principle promotes the conclusiveness of a lawsuit’s judgment. 2. Judicial Efficiency- One of the main aims of Res Judicata is to promote efficiency of judicial system by preventing both the parties of the lawsuit to litigate again and again for no reason which leads to wasting time of the honourable court. By limiting the re-adjudication of claims that have been already served with a judgment to conserve the judicial resources. 3. Prevention of Multiple Litigation- Res Judicata bars the parties from dividing the causes of actions or changing claims in different proceedings that could have been solved in prior lawsuit. Promoting the fact that all the important issues should be solved in a single lawsuit. 4. Preservation of Integrity- By binding both the parties to follow the judgment given by the court strictly, Res Judicata plays an important role to maintain this principle by preserving integrity of the judiciary. 5. Promotion of Fairness- Res Judicata also promotes fairness by giving both the parties with certainty in the judgment of their disputes. Once the matter has been provided with the final judgment, both the parties can conclude with their issue finally being resolved. ### **Procedural application of Res Judicata under Civil Procedure Code** 1. Identification of prior judgment- The Procedural application of Res Judicata includes to know and find out whether there is a prior judgment given or not which can affect the application for Res Judicata. 2. essment of identification of parties- If there has been a subsequent lawsuit filed, then it is mandatory to find out details about the applicant parties whether they were involved in the prior judgment or not. Res Judicata only applies when same parties apply the subsequent lawsuit so that both the parties could be prevented from re-adjudicating the same. 3. Analysis of identity of subject matter and cause of action- There is a requirement to assess whether the subsequent suit have the same claim or cause of action or not i.e. to know whether the claim was given under the prior judgment or not. This includes knowing whether the claim raised has been covered under the prior lawsuit. 4. Review of finality of the prior judgment- The final judgment which was given must be conclusive enough to apply Res Judicata. The judgment should not need any further review or appeal in any case. 5. Verification of Competency of the court- It needs to be verified whether the prior judgment which was given by the competent court having the correct jurisdiction or not. Res Judicata cannot be applied if the court which gave the judgment lacked jurisdiction to hear that particular case. 6. Application of Statutory Provisions- Reference of specific and valid statutory provisions are needed within the Civil Procedure Code that governs the doctrine of Res Judicata. These statutes provide framework to the conditions which governs the application of Res Judicata and provides guidance to its procedure and procedural effects. 7. Judicial Determination- It is up to the discretion of the honourable court whether to apply Res Judicata or not. Relevant statutes and factors would be considered by the court to determine the application of the doctrine. ### **Important cases guiding Res Judicata** 1. Avtar Singh v. Jagjit Singh- In this case a plaint was filed regarding the court’s arbitration in the revenue court by one of the parties, sustaining the objection the plaint was returned to the respective party. Giving the reason that the revenue court was not having the jurisdiction to try the suit. Hence, it was concluded that the suit was rejected by following the guidelines mentioned under the doctrine of Res Judicata. 2. Devilal Modi v. Sales Tax Officer- In this leading case, the validity of an assessment was challenged under Article 226. The Petition was dismissed mentioning about the facts and merits. The same appeal was dismissed by the honourable Supreme Court mentioning the same issue. Another writ petition was filed in the High Court but still there was rejection of the appeal. The Supreme Court made the final decision that the same case was rejected under the guidelines mentioned under Res Judicata, 3. Mathura prasad v. Dossabai N.B. Jeejeebhoy- It was held that Res Judicata can not be operated in the subsequent proceeding. If there is different question of law as of the previous one then Res Judicata cannot be applied. To apply Res Judicata the decision given should be held by the court with competency. It was also stated that if the issue of law gives rise to right then Res Judicata is not applicable. ### **Significance and Implications of Res Judicata** 1. Judicial efficiency- Res Judicata prevents both sides of the parties to re-adjudicate same issue or claims again and again that have already been provided with a judgment in form of appeal which promotes efficiency in judicial system and save resources. Courts would be able to focus on other and new cases rather than wasting time on same lawsuit. 2. Fairness and equality- This doctrine helps to maintain equality and fairness among all the parties by ensuring that either of the party cannot re-litigate the issue and maintain same rules and regulations for both the parties. It provides parties with closure and prevents waste of time and exploitation of rights. 3. Stability of legal system- Res Judicata promotes the stability of legal judiciary system by providing proper framework and consistency I judicial decisions. Once a court provides judgment to a case it helps to set a precedent for the upcoming cases to establish clear rules and standards. 4. Prevention of Forum Shopping- It promotes respect for the judgment making system of the court binds parties to adjudicate in good faith and not to play unfair. Res Judicata discourages both the parties to practice Forum Shopping i.e. litigants applying lawsuit in court where they think the judgment will be in their favour after an unfavourable judgment has been passed rendered. 5. Preservation of Judicial integrity- By preventing the parties to re-litigate and to respect the judgment of the court by not repeatedly challenging the decisions. It helps to maintain the authority, respect and integrity of the court by being a watchdog of the judgment passed. ### **CONCLUSION AND COMMENTS** In Conclusion, Res Judicata is a fundamental principle which is covered under framework of the Civil Procedure Code, embodying the principles of finality, fairness, and efficiency which helps in perfect administration of justice. By barring parties from re-litigating again and again saving time of the court. Res Judicata serves its main aim to save resources of the court to provide judgment when already concluding judgment has been provided to both the parties. Furthermore, it sets legal precedent and guidelines for next cases and enhances confidence of people in the judicial system. Res Judicata is not only a doctrine of law but a cornerstone of judiciary system, it ensures that the integrity of the judiciary system is maintained. ### **REFERENCES** 1. Kumar S, “Res Judicata Can’t Be Decided in Application under Order VII Rule 11 CPC: Supreme Court” Live Law (September 18, 2023); [https://www.livelaw.in/supreme-court/supreme-court-ruling-res-judicata-plaint-rejection-application-order-7-rule-11-cpc-238024&#](https://www.livelaw.in/supreme-court/supreme-court-ruling-res-judicata-plaint-rejection-application-order-7-rule-11-cpc-238024&); accessed March 2, 2024 2. Paliwala M, “Meaning, Nature, Scope of Legal Doctrine of Res Judicata under Section 11 of Code of Civil Procedure” (iPleaders, September 1, 2023); ; accessed March 2, 2024 3. M S, “Doctrine of Res Judicata: Sec 11 of Civil Procedure Code” (CLATalogue, August 3, 2023); ; accessed March 3, 2024 4. “Free Law” Free Law (July 21, 2023); ; accessed March 3, 2024 [\[1\]](#_ftnref1) The Code of Civil Procedure, 1908, s11 **Categories:** Articles --- ### [IPR Rights of Creator on AI Made Content](https://lawfoyer.in/ipr-rights-of-creator-on-ai-made-content/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author : MAHASWETAA R Law Student at CHETTINAD SCHOOL OF LAW** **Edited By: Naman Jain Law student at Galgotias University** 1. **INTRODUCTION** With the dynamic change in the technological aspect of our country, AI tools have become more capable of creating content, art music etc. These works are depicted as if humans originally made them. The creator of the work uses both the AI tools and his mind where the question arises of who should get these rights of owning the Intellectual property rights. Copyright protection is usually given to only human-made creations. But when AI tools are involved in the creation, it becomes difficult to determine who deserves to get the ownership, whether it’s the creator of AI-Tool, the author or the AI itself or whether these creations deserve IP protection or not is still unanswered. Technological advancements are growing in our country and this matter is still in debate. In this article, we’re going to study this in detail. ***Keywords:*** *Intellectual Property, Right of IP Owner, AI Content, Copyright* 1. **Defining AI-Generated Content: What Constitutes AI-Made Content?** Artificial intelligence refers to machines that possess intelligence and idea-generation skills similar to the human intellect minds. It also has the power to solve and generate unique and reasonable solutions to problems and works beyond the power of the human brain. AI can generate text, videos and photos and also can create animations by processing the algorithms given and producing the output. ChatGPT and DALL-E are famous AI creations. - AI-generated content makes use of artificial intelligence, either wholly or partly, which gives the most prompt explanations or answers by responding to the questions asked by humans. Humans use AI for writing assignments, articles blogs etc. - There are 2 scenarios where it is said AI-made content: 1. When only an AI system is used wholly to create content, 2. Where AI is partly used i.e., Content created by using AI tools along with human-mind 3. **Copyright protection and AI-generated content** - First of all, copyright protection is giving credit to the creator of the work and that creator must be a human which is provided under the Copyright Act, 1957. It is the humans who get all these rights like distribution, performance reproduction rights etc. - These are traditional copyright laws that had the thought that only humans can be creative and they use their minds to write literature, music, journalism, dramatic content etc i.e., the subjects that come under section 2 of Copyright Act, 1957. But as technology is developing as years pass by, AI’s are more capable of doing all this creative stuff that makes it look human-made. - When it comes to copyright protection, the originality of work is checked, but when there are AI-generated works it is difficult to determine the originality. Also, if the content or music or literature is fully made by AI, then why should the creator of the work i.e., humans, should be getting the copyright protection in the first place? Even if the AI tools are partly involved in the creation of something, should the author i.e., humans be getting all the copyright protection or is it the creator of AI, who’ll be getting the same is a huge question here. As AI, itself cannot be recognised as a person, is it fair that people using AI in order to create something and gain ownership and authorship is acceptable or not should be answered? 3. **Trademarks and AI-Generated Branding** - Trademarks are basically, logos, phrases and other brand elements that help in distinguishing from one brand to another. These are basically used in marketing. To register a trademark, it should be unique and a distinctiveness feature must be fulfilled, which is basically a creation of humans. - Now that, there are AI technologies which can create unique logos and slogans, which help in deciding the brand names or logos in a fraction of a second, there lack of human mind. This might land in a complexity in future. AI-generated logos must be carefully regulated in order to avoid legal issues. Every time, AI tools can’t provide us with a unique and distinctive feature that doesn’t look similar to other brands. That part should be taken care of. - Deciding the ownership of such AI-generated logos or slogans is in question. But then it can registered if the logos or slogan can show its distinctiveness. 4. **Patent and AI-generating inventions** - A patentis an element, in the realm of intellectual property law that represents a type of right granted by the government to inventors. This grant gives them rights to use, manufacture and market their innovations for a period of around 20 years. Patents play a role in safeguarding creators’ concepts and breakthroughs allowing them to benefit from their - The three primary categories of patents include Utility,design and plant patents. The scope of patent protection is confined to regions limiting its enforceability to the country where it is granted. To secure protection, for inventions patent applications must be submitted in each desired country or region. - Foran innovation to be eligible for patent protection, it has to satisfy certain conditions like statutory, new, non-obvious and useful. AI is likely to satisfy such When it comes to the innovation process, AI plays multifarious roles in the innovation process from aiding the inventor in the innovation process to bringing up new ideas on its own. - When using AI systems in invention, it is important that there are clear agreements stating what role each party is playing in relation to intellectual property ownership and modes of collaboration so that there will be no disputes about AI-generated works’ patents. AI-generated works may be patented but this has some legal challenges and controversies especially when considering attribution of rights and inventorship. The best way forward regarding these issues remains arguable since they are always evolving in this space. **Example:** - India gave co-authorship to the AI in an AI-generated work.AI RAGHAV is an intelligent graphics and art visualizer. The AI got its name from Raghav Gupta who is the creator but the owner of the AI is Sahni who asked to invent that app. For this AI India gave patent rights for both Sahni and AI. Raghav became the author and Sahni and AI RAGHAV became the co-authors of the invention. 5. **Challenges in enforcing IPR on AI-Generated Content** There are various challenges involved in enforcing IPR on AI-generated content. They are as follows: - The data that AI uses are already in existence and it would be difficult to give justice to the originality, uniqueness and novelty which are important factors used for deciding while giving IP Protection - There is confusion in deciding the owner and author of the creation. - AI cannot be treated as a “human” and give them rights because if there’s any case of infringement, there’ll be no one liable for the wrong act. - Innovations in AI Technologies and protecting the rights of the human creation must go hand in hand. Keeping the balance between them is a huge challenge. - There are various legal and ethical issues as well to consider. 6. **International Perspectives on AI-Generated Content and IPR** 7. **Status Of Copyright Protection for Generated Works In Different Countries:** - The issue of copyright protection for AI-generated works arose in the case of Kristina Kashtanova who filed an application for the comic book, “Zarya Of The Dawn” and here the US Copyright Office rejected the application and does not give copyright protection for this AI-generated work stating that the author has only used the AI to create the images and it also stated that AI-generated works would not get copyright protection under USCO as it lacks the human authorship. - In the UK, the UK Intellectual Property Office stated that AI-generated works also get copyright protection as human-generated works as the UK government aimed to make the UK a leader in AI. But this decision is under review process which may either continue further or pass off after the decision of the government. - The copyright protection for an AI-generated work isnot entertained by the copyright office of India but the copyright protection is given in India for the first time for an AI The Next Rembrandt. A painting was found for which Rembrandt is the artist. That painting is said to be an addition to his paintings in The Rembrandt Museum. ING, an international banking group which is partnered with Microsoft and the Rembrandt house museum created an algorithm to recreate the style of Rembrandt. This recreation painting was done by the AI using the data fed to them without the interference of any human contribution. So it is copyrighted and has protection under IPR. 1. **Status Of Patent Protection for Generated Works In Different Countries:** - The patent protection granted to works made by AI varies throughout countries due to differences in legal frameworks, interpretations, and the dynamic nature of AI technology. - AI-generated innovations have been granted patents in the US by the US Patent and Trademark Office (USPTO). AI-generated creations are typically recognised as patentable under US law, so long as they satisfy the requirements. On the other hand, the question of who owns and who is the creator of inventions produced by AI is still up for dispute in court. - The innovationscreated by artificial intelligence are granted patents by the European Patent Office (EPO) if the conditions mentioned in rulings of the European Patent Office are satisfied such as new, statutory, non-obvious and industrial - even thoughthe legal and regulatory framework in Canada does not separately and clearly deal with patent protection for AI-created works, patent rights have been granted by the Canadian Intellectual Property Office(CIPO) for AI-created technologies. however, in order to know the patent protection status for AI-created technologies clearly, amendments to patent law or rulings should be made by the Canadian - South Africa is the first country to give patents to AI-generated work. AI DABUS is a device for the Autonomous Bootstrapping of Unified Science. Stephen Thaler is the creator of this DABUS. The creator states that DABUS invented an emergency warning light and food containerthat increases the grip and the transfer of heat. As the AI invents things on its own by the given input without human interference South Africa gave patent rights to DABUS. 9. **CASE LAWS:** - **Naruto vs. Slater[\[1\]](#_ftn1)** This is a case where a monkey took selfies and PETA claimed copyrights for it. The court held that animals cannot own copyright, only a human being can hold copyright. - **Lush vs Amazon[\[2\]](#_ftn2)** In this instance, it was determined that Amazon had violated Lush’s trademark. On Google, Amazon placed a bid for the keyword “Lush.” People looking for “Lush” were redirected to Amazon as a result. Genuine Lush items were not available on Amazon. Because similar products were recommended by Amazon’s AI system, the court found that Amazon was liable for infringement. 1. **CONCLUSION & COMMENTS** There are cases where IP protection is given for AI-generated works. But definitely, certain amendments must be made especially in the Copyrights Act and Patent Act where AI tools are mostly used. How much of AI is used should be considered. The ownership of the creation is still in debate. In my opinion, AI cannot be given protection and rights as it’ll be a problem when it comes to infringement. but isn’t it unfair to wholly give protection to humans when some of the content is AI-generated is still the question in my mind? When it is wholly based on AI-generated content, then IP protection must not be given. For a fact, AI cannot be avoided, as the future is fully based on these technological advancements. So AI-generated content or creation can be protected when the human mind is also involved provided that all the criteria of intellectual property are fulfilled. 1. **REFERENCES** 2. **Online Articles / Sources Referred** 1. 2. 3. https://www.legalserviceindia.com/ 3. **Cases Referred** 1. Naruto vs Slater 2. Lush vs amazon 4. **Statutes Referred** 1. Copyrights Act, 1957 2. Patent Act, 1970 3. Trademark Act, 1999 [\[1\]](#_ftnref1) 2018, 9th Cir. [\[2\]](#_ftnref2) 2014, (EWHC) 181 (CH) **Categories:** Articles, Artificial Intelligence --- ### [Student Awareness Workshop on Protection from Sexual Harassment and Cyber Crime organised by Out Lawed India in collaboration with LawFoyer at MPS International Jaipur](https://lawfoyer.in/student-awareness-workshop-on-protection-from-sexual-harassment-and-cyber-crime-organised-by-out-lawed-india-in-collaboration-with-lawfoyer-at-mps-international-jaipur/) **Published:** September 2, 2024 **Author:** LawFoyer **Content:** **Authored By: Gyanu Patel, Student Editor, Team LawFoyer** **Jaipur, 31st August 2024:** Outlawed India, in collaboration with LawFoyer and MPS International School Jaipur, successfully organized an offline workshop on the crucial topics of Prevention of Child Sexual Abuse and Dealing with Cyber Crime. Held on 31st August 2024, the workshop aimed to empower youth with knowledge and equip them to safeguard themselves in the digital age. ![](https://lawfoyer.in/wp-content/uploads/2024/09/WhatsApp-Image-2024-09-01-at-08.47.29_86697b8c-1024x768.jpg)The workshop garnered an enthusiastic participation from students, who engaged actively in discussions and interactive sessions. Led by experts from Outlawed India and LawFoyer, the workshop delved into the prevention of child sexual abuse, highlighting warning signs, reporting mechanisms, and legal recourse. ![](https://lawfoyer.in/wp-content/uploads/2024/09/WhatsApp-Image-2024-09-01-at-08.47.16_b6374b4d-1024x768.jpg)It also covered the growing issue of cybercrime, emphasizing the importance of online safety, identifying threats, and protecting personal information. The students’ active engagement and insightful questions demonstrated their commitment to understanding these pressing issues. To recognize the proactive participation of students, certificates of appreciation were presented by Mr. Ritesh Singh Shekhawat, Head of Public Relations at LawFoyer. The ceremony acknowledged the students’ enthusiasm and their role in spreading awareness about these critical topics. ![](https://lawfoyer.in/wp-content/uploads/2024/09/WhatsApp-Image-2024-09-01-at-08.47.20_38ab4cf9-1024x768.jpg)The workshop was graced by the presence of the following dignitaries: – Mrs. Manju Sharma, Principal, MPS International – Mr. Deepak Sharma, Secretary, MPS International – Ms. Saloni Olivera, Campus Ambassador, Outlawed India Legal Education Foundation – Mr. Ritesh Singh Shekhawat, Head of Public Relations, LawFoyer ![](https://lawfoyer.in/wp-content/uploads/2024/09/WhatsApp-Image-2024-09-01-at-08.47.14_0eccf5a4-1024x768.jpg)The successful collaboration between Outlawed India, LawFoyer, and MPS International School Jaipur underscores the shared commitment to protecting children and empowering the next generation with the knowledge to navigate the digital landscape safely and responsibly. ![](https://lawfoyer.in/wp-content/uploads/2024/09/WhatsApp-Image-2024-09-01-at-08.47.24_dcc0f105-1024x768.jpg) **Categories:** Courses & Workshops, Events --- ### [Amity Law School is organizing National Seminar on 24th & 25th Oct 2024: Win Prizes worth Rs 15000/-](https://lawfoyer.in/amity-law-school-is-organizing-national-seminar-on-24th-25th-oct-2024-win-prizes-worth-rs-15000/) **Published:** September 27, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/09/seminar-Poster-1-Small.png) # **ABOUT THE ORGANIZERS** Amity Law School Lucknow Campus (ALS-L) is a constituent unit of Amity University, Uttar Pradesh. It was established in 2007 with the sole objective to impart research and innovation-driven education in the region. The Law School is currently headed by Prof. (Dr.) J.P. Yadav. A variety of events have been organized throughout the year, such as International and National Seminars, Law Fests and Carnivals, Workshops, National Quizzes, National and Intra Moot Court Competition, and National Faculty Development Program. ## **ABOUT THE SEMINAR** “The Importance of Women Empowerment in Bringing Gender Equality, Enhancing the Social Status of Women, and Achieving Family Goals in the Present Scenario: Issues and Remedies.” This seminar promises to be a pivotal platform for addressing critical issues surrounding women’s empowerment, gender equality, and the enhancement of women’s social status. We aim to shed light on the pressing challenges faced by women in today’s society and explore innovative solutions to achieve family goals in the context of gender equality. ## **ELIGIBLITY CRITERIA** Policymakers, Researchers and academics, Social worker, and counselors, Legal professionals, NGO representatives, Students in related fields, anyone passionate about women’s rights and gender equality students are all welcome to attend the seminar. It seeks to promote an intellectually stimulating and multidisciplinary interchange. ## **PRIZE/AWARDS** **PRIZES WORTH Rs. 15,000/-** - **Best Research Paper:** Smart Watch or Earbuds worth Rs. 5000/- + Trophy + Hardcopy Certificate - **Best Presenter:** Smart Watch or Earbuds Worth Rs. 5000/- + Trophy + Hardcopy Certificate - FREE Publication of Top 2 Papers in International Peer Reviewed Journal. [Click to know More](https://lijdlr.com/cfp-lawfoyer-international-journal-of-doctrinal-legal-research/) - FREE Access to all the participants on the Mastering the Art of Legal Research: A Comprehensive Certification Course (Worth Rs. 500). [Click to know more](https://academy.lawfoyer.in/courses/mastering-legal-research-a-comprehensive-ai-legal-research-guide-for-law-students-and-legal-professionals/) - FREE Publication of Abstracts on book with ISBN Number. - 20% Discount to all the participants on Certification Course on Using Ai in Legal Work For Law Students And Legal Professionals (Worth Rs. 1000/-). [Click to know more](https://academy.lawfoyer.in/courses/mastering-legal-research-a-comprehensive-ai-legal-research-guide-for-law-students-and-legal-professionals/) - 50 % Discount to all the Participants on Publication of Papers on Law Foyer International Journal of Doctrinal & Legal Research (ISSN: 2583-7753) - Certificate of the participation to all. **Registration Link:** ## **IMPORTANT DATES** - **Last date for Abstract Submission:** **15th October, 2024** - **Date of Confirmation of Abstract:** **17th October, 2024** - Last date for Submission of Full Paper (Soft Copy): **19th October, 2024** - Date of International Seminar: **24th and 25th October** ## **REGISTRATION FEES** - **For Amitians:-** 500 - **For Non-Amitians:-** Rs 700 + GST [Registration Link](https://alsnationalseminar.in/seminar-details/) --- [Download Brochure](https://alsnationalseminar.in/wp-content/uploads/2024/09/Lucknow-ALS-brochure-v4-Curve.pdf) ## **SUB – THEMES OF THE SEMINAR** 1. Legal frameworks for women’s rights and gender equality. 2. Education as a tool for empowerment. 3. Political participation and representation. 4. Combating gender-based violence. 5. Health and reproductive rights. 6. The role of men and society in promoting gender equality. 7. Technology and digital empowerment. 8. Agrarian Reform & Participation of Women in rural development & empowerment of rural women. ## **PAPER PRESENTATION GUIDELINES** 1. The Seminar shall have paper presentations that shall be selected after a blind review procedure to be conducted by the editorial 2. The presenters will present their papers before a panel of experts who shall adjudge the paper 3. The participants may adopt any suitable means for presenting the papers including Audio-Visual aids, Power Point Presentations etc. 4. In case of co-authorship at least one author must attend the Seminar to present the paper. ## **SUBMISSION GUIDELINES** - **Language:** All submissions must be in English - **Word Limit:** The abstract should be between 250-300 words along with 5-7 The full research paper should be between 3000-5000 words (inclusive of all citation and references/footnote) - **Font and Line Spacing:** Submissions must be typed in Times New Roman, Font Size 12 on A4 size paper with 1-inch margin on all sides with 5-line spacing. Potential contributors are required to adhere to a uniform mode of citation (20th Edition of The Bluebook or OSCOLA Citation Style, APA, MLA, etc.). It shall be submitted in MS-Word file only. - **Plagiarism Percentage:** All the submitted Manuscripts will be checked for plagiarism through Turnitin Software and Plagiarism up to 20% will be allowed. - **Registration:** Submission of the abstract will be considered as a provisional registration and the co- authors are also required to get registered for the - **Abstract Submission:** Abstract of the paper should be submitted through form on or before 15th October, 2024 at 11:59 M. IST through below mentioned link. - **Submission of Full Paper:** The full paper has to be submitted via form link on or before 19th October 2024 at 11:59 M. IST. The google form link for full paper submission will be sent with the mail of acceptance. - If the paper is selected for publication in an ISBN-numbered book or conference proceedings, a statement by the author declaring that all submissions are original and faithful work of the author must be submitted. - **Hard Copy:** A hard copy of the full paper and abstract must be brought on the day of Seminar. ## **LOCATION:** The seminar will be conducted in offline mode. The sessions will be conducted at Amity Law School, AUUP, Lucknow Campus. ## **CONTACT INFORMATION:** **STUDENT CONVENER:** Ms. Ria Singh | Mobile: +91-9076978755 Ms. Tanya Giri | Mobile: +91-6387777090 **STUDENT CO-CONVENER:** Ms. Shreya Atri | Mobile: +91-9058293961 **EMAIL-ID**– **Categories:** Courses & Workshops, Events, Webinar **Tags:** als, alsnationalseminar, amity, genderequality, lawfoyer, nationalseminar, womenempowerment --- ### [17th LawFoyer Quiz on Indian Constitutional Law: Prizes worth Rs. 15K +](https://lawfoyer.in/17th-lawfoyer-quiz-on-indian-constitutional-law-prizes-worth-rs-10k/) **Published:** December 1, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/12/Quiz-Competition-Poster-724x1024.png) [ Download Corrected Answer Key ](https://lawfoyer.in/wp-content/uploads/2025/01/updated-answer-key-17th-Quiz.pdf) [ Check Result ](https://lawfoyer.in/result-17th-lawfoyer-quiz-on-indian-constitutional-law/) [ Download Certificate ](https://lawfoyer.in/certificate-of-17th-lawfoyer-quiz-on-indian-constitutional-law/) ## Clarifications in Answer Key (Released) Claimed Question Number Previous Answer Key Updated Answer Key Q1 B B Q34 A B Q44 B A Q59 C A ## Dates - **Date of Quiz:- 26/01/2025** **(5 Pm)** - **Last Date to Apply:-** **24/01/2025, 11:00 pm** - **Result Declaration:-** **30/01/2025** ## Prizes - **1st Prize- Rs 1,500 + Smart Watch worth Rs. 5,000/- + Winner Trophy + Hardcopy Certificate of (Excellence & Participation)** - **2nd Prize- Rs 1000 + Earbuds worth Rs. 2000/- + 1st Runner Up Trophy + Hardcopy Certificate of (Excellence & Participation)** - **3rd Prize- Rs 500 + 2nd Runner Up Trophy + Hardcopy Certificate of (Excellence & Participation)** - **4th-10th Prize- Rs 250 +** **Certificate of (Excellence & Participation)** - **FREE Access to LawFoyer’s Advanced Certification Course on Supercharging Litigation & Academics with AI worth Rs. 4000 for Top 10 Rankers, [Click Here to Read About the Course](https://academy.lawfoyer.in/courses/mastering-legal-research-a-comprehensive-ai-legal-research-guide-for-law-students-and-legal-professionals/?preview=true)** - **FREE Practice E-Book with 1000 + MCQs for Practice** - **FREE 2000+ Legal Drafts & FREE Legal Drafting Guide** - **FREE 2 AI Plagiarism Report by Turnitin to All Participants.** - **Certificate of Appreciation for All the Registered Participants** - **Top 10 Rank will get 50% Discount on Publication at LawFoyer International Journal (ISSN: 2583-7753)**. [**Click to know more**](https://lijdlr.com/cfp-lawfoyer-international-journal-of-doctrinal-legal-research/) **Note:-** The Winners Trophy & Certificates will be dispatched to the designated recipients’ physical address without any additional charges. ![](https://lawfoyer.in/wp-content/uploads/2024/01/WhatsApp-Image-2024-01-22-at-01.00.07_ac7cf468-1024x576.jpg "WhatsApp-Image-2024-01-22-at-01.00.07_ac7cf468 | LawFoyer | LawFoyer | LawFoyer | LawFoyer | LawFoyer | LawFoyer | LawFoyer | LawFoyer") ## **Registration Fees** - **Rs 149/- Only** [ Register Now ](#1) ## ELIGIBILITY - Law Students - Legal Professionals - Legal Practitioners - Judiciary Aspirants - UPSC Aspirants - AIBE Aspirants - JLO Aspirants - IBPS SO Aspirants - Government Exam Aspirants - Any person Interested in Constitutional Law ## **Important Guidelines** - **Format of Quiz:** Quiz shall take place online, and a paper will include multiple-choice questions**.** - The participant can take this exam on their laptop or mobile phone. - The platform for the quiz will be google Forms, Microsoft Forms, etc. - In the case of the same marks, time will be considered (a person who submits early will be given preference). - The link will be shared 24 hours prior to the start of the quiz. ## **Rules & Regulations** - **60 MCQ(s) \[60 Question on Indian Constitutional Law.** - The time allotted will be **25** minutes. (This includes time for filling the basic details like Name, email, etc.) - **Every question carries 04 marks & there will be no negative marking.** - The Result will be declared on **30th January 2025** ([www.lawfoyer.in](https://lawfoyer.in/)). ## ## Registration Form **Categories:** Events, Quiz **Tags:** aibe constitutional law, all about the law, all of law, bar exam constitutional law, basic information about law, basic law quiz, becoming a constitutional lawyer, by laws, comparative constitutional law, comparative law, constitution exam, constitution exam for teachers, constitution online quiz, constitution online test, constitution pretest, constitution quiz questions, constitution test, constitution test questions, constitution test quiz, constitution trivia, constitution trivia questions, constitutional criminal law, constitutional law 1, constitutional law 2, constitutional law 2nd, constitutional law and criminal law, constitutional law and international law, constitutional law bar exam, constitutional law education, constitutional law exam, constitutional law for aibe, constitutional law ii, constitutional law practice, constitutional law practice exam, constitutional law quiz, constitutional law test, constitutional litigation, constitutional quiz, criminal constitutional rights, daily ias quiz, daily mcq for upsc, daily mcq practice for upsc, daily mcq upsc, daily prelims quiz, daily prelims test, daily quiz for upsc, daily quiz for upsc prelims, daily quiz ias, daily quiz upsc, daily test for upsc, daily upsc mcq, daily upsc quiz, free online quiz, free online trivia, free quiz, free quiz questions, free trivia, ias daily quiz, ias exam quiz, ias mcq, ias mcq test, ias online quiz, ias prelims quiz, ias question quiz, ias quiz, ias quiz questions, ias quiz questions with answers, ias quiz test, information about laws, international law and constitutional law, know your constitution quiz, law, law and laws, law degree, law for students, law in law, law information, law of laws, law of the law, law question, law quiz for beginners, law quiz questions, law rules, laws of government, laws of law, lawyer, legal, legal of law, legal quiz, legal quiz questions, mcq for ias, mcq for ias exam, mcq ias, mcq on constitutional law, mcq on upsc, mcq practice for upsc, mcq upsc prelims, online law quiz, online mcq test for upsc, online quiz, online quiz constitution, online quiz for upsc, online quiz test, online quiz upsc, our constitution quiz, prelims daily quiz, prize for quiz, quiz, quiz about constitution, quiz about law, quiz for, quiz for upsc exam, quiz for upsc prelims, quiz ias, quiz on, quiz on law, quiz on upsc, quiz questions, quiz questions for ias exam, quiz questions for upsc, quiz questions for upsc exam, quiz site, quiz test, quiz upsc, quizz com, quizzes com, quizzes to take, rules and law, state constitutional law, study for constitution test, the constitution test questions, the law of laws, the law of the law, the lawyer, the quiz, trivia about the constitution, trivia online, trivia questions about the constitution, trivia questions online, trivia questions trivia quiz, trivia quiz, trivia quiz questions, trivia quizzes online, upsc daily mcq, upsc daily mcq questions, upsc daily questions, upsc daily quiz, upsc daily test, upsc exam mcq, upsc exam quiz, upsc mcq, upsc mcq test, upsc online mcq test, upsc online quiz test, upsc prelims daily quiz, upsc prelims mcq test, upsc prelims quiz, upsc question quiz, upsc quiz, upsc quiz daily, upsc quiz online, upsc quiz questions, upsc quiz with answers. --- ### [2-Day Certification Bootcamp on ADR Law in India, International Framework & Practical Application](https://lawfoyer.in/2-day-bootcamp-adr-law-international-framework/) **Published:** December 31, 2024 **Author:** LawFoyer **Content:** ![1](https://lawfoyer.in/wp-content/uploads/2024/09/1-1024x256.png) ![3](https://lawfoyer.in/wp-content/uploads/2024/09/3-1024x256.png) ![4](https://lawfoyer.in/wp-content/uploads/2024/09/4-1024x256.png) ![5](https://lawfoyer.in/wp-content/uploads/2024/09/5-1024x256.png) # ![sticker.png](https://lawfoyer.in/wp-content/uploads/2024/06/sticker.png) Introducing # 2-Day Certification Bootcamp on ADR Law in India, International Framework & Practical Application Want to dive deep into the world of Alternative Dispute Resolution (ADR), understand its significance in India and on the global stage, and learn practical negotiation techniques? Looking to enhance your legal career with in-depth knowledge of ADR laws and case studies? Look no further! LawFoyer brings you a Certification Bootcamp on **ADR Law in India and International Framework**, from **25th to 26th January 2025**. [ Enroll Now ](https://lawfoyer.in/?ff_landing=18) ![](https://lawfoyer.in/wp-content/uploads/2024/12/2-Day-bootcamp-poster-1024x1024.png) # Bootcamp COMMENCING IN ### Boot Camp Duration 2 Days ### Boot Camp Starts from 25 January (Live) ### Recordings Validity Lifetime ### Course Fee ₹ 299/- [ Enroll Now ](https://lawfoyer.in/?ff_landing=18) ## IMPORTANT DETAILS - **Bootcamp Dates:** 25th to 26th January 2025 - **Platform:** Live Classes + Recordings (with Lifetime Access) - **Registration Fee:** 299/- - 2 Days of Power-Packed Learning with Comprehensive Coverage on ADR Laws - Personalized LMS Dashboard with 24/7 Access to Course Material (including Recordings of Live Sessions) - Notes, E-Books, Templates, Drafting Assignments, and Sample Settlement Agreements - Discounted Publication Opportunity with LawFoyer International Journal of Doctrinal Legal Research (LIJDLR) - Interactive Case Studies, Negotiation Techniques, and Drafting Assignments to Enhance Learning ## Bootcamp Curriculum ## Day 1: ADR in India 1. Definition and Importance of ADR: Why ADR is the cornerstone of effective dispute resolution in modern law. 2. Historical Evolution of ADR in India: Understanding its roots and growth in the Indian legal landscape. 3. **Types of ADR:** 1. Mediation 2. Arbitration 3. Conciliation 4. Negotiation 5. Lok Adalats 4. Important Acts and Provisions: Comprehensive analysis of key legislations governing ADR in India. ## Day 2: International Framework of ADR, Negotiation Techniques, and Practical Application with Case Studies 1. **International Framework of ADR:** 1. UNCITRAL Model Law 2. New York Convention 3. Other important international frameworks shaping ADR. 2. **Practical Exercise and Case Studies:** 1. Explanation and hands-on experience of solving a case study using negotiation techniques. 3. **Drafting of Settlement Agreements:** 1. Principles, structure, and format of drafting settlement agreements. 2. Practical drafting assignment using templates and hypothetical case studies. ## BONUS GIVEAWAYS 1. Notes, Templates, and Sample Drafts for Settlement Agreements. 2. Interactive Q&A Session with Anupriya Ma’am on ADR Techniques. 3. Discounted Publication Opportunity with LawFoyer International Journal of Doctrinal Legal Research (LIJDLR). 4. Bonus Workshop on Supercharging Litigation and Academics with AI Bonus Workshop on Mooting and Trial Advocacy 5. Bonus Workshop on Mooting and Trial Advocacy [ Enroll Now ](https://lawfoyer.in/?ff_landing=18) ## Frequently Asked Questions [ Will the classes be live? ](#collapse-14514dc6aa13a1a1774d) Yes, the bootcamp will be conducted through live online classes on January 25th-26th, 2025, starting from 7 PM onwards each day. You'll get the best of both worlds - you can attend the sessions live to interact directly with the instructor during Q&As and participate in real-time case study discussions, while also having lifetime access to the recorded sessions through your personalized LMS dashboard. This flexible format ensures you can revisit the content at your own pace and never miss out on any important concepts, even if you can't attend a live session. The platform provides 24/7 access to all course materials, including session recordings, notes, e-books, templates, and drafting assignments, allowing you to learn and practice at your convenience. [ What happens if I am unable to attend a live class? ](#collapse-c29457c6aa13a1a1774d) We highly recommend attending the live classes after thorough preparation to maximize your learning experience. Just as the true excitement of a live match or performance lies in witnessing it in real-time, the real value of our live classes comes from actively participating and engaging with the content and instructors. During the live sessions, a wealth of new and practical information is covered, and you'll have the opportunity to ask questions and receive immediate feedback. However, we understand that sometimes life gets in the way, and you may miss a live class. In such cases, you can access the recordings of the live sessions through your personalized Learning Management System (LMS) dashboard. The LMS dashboard provides 24/7 access to all course materials, including the live session recordings, ensuring that you can catch up on any missed content at your convenience. [ Is this bootcamp suitable for beginners with no prior experience? ](#collapse-23e82e36aa13a1a1774d) Yes! This ADR Law bootcamp is specifically designed to welcome beginners while being valuable for those with some experience too. The course starts with fundamental concepts, covering the basics of ADR including its definition, importance, and historical evolution in India. Through a structured learning approach, you'll progressively build your understanding from core principles to practical applications. The comprehensive course materials, including notes, templates, and sample drafts, ensure you have all the resources needed to grasp the concepts effectively. Additionally, the interactive format with live Q&A sessions provides ample opportunity to clarify doubts and build confidence in ADR practices. Whether you're a law student just starting to explore ADR or a professional looking to develop new skills, this bootcamp provides the foundational knowledge and practical experience needed to begin your journey in alternative dispute resolution. [ How will this bootcamp benefit my career? ](#collapse-0e5ca9a6aa13a1a1774d) This ADR Law bootcamp will enhance your career by equipping you with practical dispute resolution skills that are increasingly valued in modern legal practice. Through hands-on training in negotiation, mediation, and arbitration techniques, along with real case studies and drafting exercises, you'll gain expertise that law firms actively seek. The certification, combined with potential publication opportunities and networking with experts, will strengthen your resume and demonstrate your commitment to mastering alternative dispute resolution methods that are becoming essential in today's legal landscape. [ Is the Registration Fee Refundable? ](#collapse-90b9c1a6aa13a1a1774d) The Registration Fee is non-refundable. We assure quality legal education. [ Enroll Now ](https://lawfoyer.in/?ff_landing=18) ![](https://lawfoyer.in/wp-content/uploads/2024/12/WhatsApp-Image-2024-12-28-at-16.44.57_299b045a-768x542.jpg) [ Enroll Now ](https://lawfoyer.in/?ff_landing=18) ## WHO SHOULD PARTICIPATE? - Law Students and Legal Professionals eager to understand and master ADR Laws in India and internationally. - Law Students aiming to enhance their practical skills in negotiation, mediation, and arbitration. - Individuals interested in improving their legal drafting skills with hands-on assignments and expert feedback. ## WHAT WILL YOU LEARN? - Fundamentals of ADR and its significance in modern legal practice. - Comprehensive understanding of the evolution and framework of ADR laws in India. - Practical insights into international ADR frameworks like UNCITRAL Model Law and New York Convention. - Key techniques for effective negotiation and dispute resolution. - Principles and skills required for drafting settlement agreements - Hands-on experience with ADR case studies and negotiation exercises ## Contact Us Have questions about our Certification Bootcamp? We’re here to help! Whether you’re curious about learning ADR techniques or you want to know more about unlocking your potential as an expert in ADR, our team is ready to assist. Don’t miss this opportunity to elevate your legal career with LawFoyer! Register now on [www.lawfoyer.in](https://chatgpt.com/c/www.lawfoyer.in) or contact us at [**lawfoyer@gmail.com**](mailto:lawfoyer@gmail.com) [ Contact Us ](https://web.whatsapp.com/send?phone=+918574723478) [ Contact Us ](https://web.whatsapp.com/send?phone=+916386500823) ![](https://lawfoyer.in/wp-content/uploads/2024/09/chatting.png) **Categories:** Courses & Workshops, Events **Tags:** 1 day bootcamp, 1 day certification courses, 2 certificate, 2 classes, 2 courses, 2 learning, 5ers bootcamp, a and t application, a and t course, about international law, about law courses, access classes, access your, adr case, adr case laws, adr cert, adr certificate, adr certificate course, adr competitions, adr course, adr course content, adr courses in india, adr negotiation cases, ai & law, ai and law course, ai certificate course, ai certification in india, ai law course, all about law, all course, alternative dispute resolution case law, alternative dispute resolution certificate, alternative 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a lawyer what do you need, to study law, to study law what do you need, use of law, we course, work experience in law, you can study, your application, your classes, your course, your education, your internship, your research, your schedule, your study --- ### [Constitutional Law Notes](https://lawfoyer.in/constitutional-law-notes/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** Notes on Constitutional Law | Notes of Constitution of India | Constitution of India Notes | Indian Constitution Notes | Indian Constitution **Content:** **Topic****Link to Notes****Preamble of the Indian Constitution**[**https://lawfoyer.in/preamble-of-the-indian-constitution/**](https://lawfoyer.in/preamble-of-the-indian-constitution/)**Salient Features of the Indian Constitution**[**https://lawfoyer.in/salient-features-of-the-indian-constitution/**](https://lawfoyer.in/salient-features-of-the-indian-constitution/)**Historical Evolution of the Indian Constitution**[**https://lawfoyer.in/historical-evolution-of-the-indian-constitution/**](https://lawfoyer.in/historical-evolution-of-the-indian-constitution/)**Fundamental Rights under Part III**[**https://lawfoyer.in/fundamental-rights-under-part-iii-of-the-indian-constitution-an-overview/**](https://lawfoyer.in/fundamental-rights-under-part-iii-of-the-indian-constitution-an-overview/)**Directive Principles of State Policy (DPSP)**[**https://lawfoyer.in/directive-principles-of-state-policy-dpsp/**](https://lawfoyer.in/directive-principles-of-state-policy-dpsp/)**Fundamental Duties of Indian Citizens**[**https://lawfoyer.in/fundamental-duties-of-indian-citizens/**](https://lawfoyer.in/fundamental-duties-of-indian-citizens/)**Union and its Territory: Articles 1-4**[**https://lawfoyer.in/union-and-its-territory-articles-1-4/**](https://lawfoyer.in/union-and-its-territory-articles-1-4/)**Citizenship Provisions: Articles 5-11**[**https://lawfoyer.in/citizenship-provisions-articles-5-11/**](https://lawfoyer.in/citizenship-provisions-articles-5-11/)**Right to Equality: Articles 14-18**[**https://lawfoyer.in/right-to-equality-articles-14-18/**](https://lawfoyer.in/right-to-equality-articles-14-18/)**Right to Freedom: Articles 19-22**[**https://lawfoyer.in/right-to-freedom-articles-19-22/**](https://lawfoyer.in/right-to-freedom-articles-19-22/)**Right against Exploitation: Articles 23-24**[**https://lawfoyer.in/right-against-exploitation-articles-23-24/**](https://lawfoyer.in/right-against-exploitation-articles-23-24/)**Right to Freedom of Religion: Articles 25-28**[**https://lawfoyer.in/right-to-freedom-of-religion-articles-25-28/**](https://lawfoyer.in/right-to-freedom-of-religion-articles-25-28/)**Cultural and Educational Rights: Articles 29-30**[**https://lawfoyer.in/cultural-and-educational-rights-articles-29-30/**](https://lawfoyer.in/cultural-and-educational-rights-articles-29-30/)**Right to Constitutional Remedies: Article 32**[**https://lawfoyer.in/right-to-constitutional-remedies-article-32/**](https://lawfoyer.in/right-to-constitutional-remedies-article-32/)**Writ Jurisdiction of the Supreme Court**[**https://lawfoyer.in/writ-jurisdiction-of-the-supreme-court/**](https://lawfoyer.in/writ-jurisdiction-of-the-supreme-court/)**Writ Jurisdiction of High Courts: Article 226**[**https://lawfoyer.in/writ-jurisdiction-of-high-courts-article-226/**](https://lawfoyer.in/writ-jurisdiction-of-high-courts-article-226/)**Judicial Review in India**[**https://lawfoyer.in/judicial-review-in-india/**](https://lawfoyer.in/judicial-review-in-india/)**Doctrine of Basic Structure**[**https://lawfoyer.in/doctrine-of-basic-structure/**](https://lawfoyer.in/doctrine-of-basic-structure/)**Separation of Powers in the Indian Constitution**[**https://lawfoyer.in/separation-of-powers-in-the-indian-constitution/**](https://lawfoyer.in/separation-of-powers-in-the-indian-constitution/)**Federalism in India: Unitary and Cooperative Features**[**https://lawfoyer.in/federalism-in-india-unitary-and-cooperative-features/**](https://lawfoyer.in/federalism-in-india-unitary-and-cooperative-features/)**Parliament: Composition and Functions**[**https://lawfoyer.in/parliament-composition-and-functions/**](https://lawfoyer.in/parliament-composition-and-functions/)**State Legislatures: Composition and Functions**[**https://lawfoyer.in/state-legislatures-composition-and-functions/**](https://lawfoyer.in/state-legislatures-composition-and-functions/)**Executive Powers of the President**[**https://lawfoyer.in/executive-powers-of-the-president/**](https://lawfoyer.in/executive-powers-of-the-president/)**Executive Powers of the Governor**[**https://lawfoyer.in/executive-powers-of-the-governor/**](https://lawfoyer.in/executive-powers-of-the-governor/)**Judiciary: Supreme Court of India**[**https://lawfoyer.in/judiciary-supreme-court-of-india/**](https://lawfoyer.in/judiciary-supreme-court-of-india/)**Judiciary: High Courts and Subordinate Courts**[**https://lawfoyer.in/judiciary-high-courts-and-subordinate-courts/**](https://lawfoyer.in/judiciary-high-courts-and-subordinate-courts/)**Emergency Provisions: Articles 352-360**[**https://lawfoyer.in/emergency-provisions-articles-352-360/**](https://lawfoyer.in/emergency-provisions-articles-352-360/)**Amendment Procedure: Article 368**[**https://lawfoyer.in/amendment-procedure-article-368/**](https://lawfoyer.in/amendment-procedure-article-368/)**Schedules of the Indian Constitution**[**https://lawfoyer.in/schedules-of-the-indian-constitution/**](https://lawfoyer.in/schedules-of-the-indian-constitution/)**Official Language Provisions: Articles 343-351**[**https://lawfoyer.in/official-language-provisions-articles-343-351/**](https://lawfoyer.in/official-language-provisions-articles-343-351/)**Special Provisions for Certain States: Articles 370 and 371**[**https://lawfoyer.in/special-provisions-for-certain-states-articles-370-and-371/**](https://lawfoyer.in/special-provisions-for-certain-states-articles-370-and-371/)**Panchayati Raj Institutions: Articles 243-243O**[**https://lawfoyer.in/panchayati-raj-institutions-articles-243-243o/**](https://lawfoyer.in/panchayati-raj-institutions-articles-243-243o/)**Municipalities: Articles 243P-243ZG**[**https://lawfoyer.in/municipalities-articles-243p-243zg/**](https://lawfoyer.in/municipalities-articles-243p-243zg/)**Scheduled and Tribal Areas: Articles 244-244A**[**https://lawfoyer.in/scheduled-and-tribal-areas-articles-244-244a/**](https://lawfoyer.in/scheduled-and-tribal-areas-articles-244-244a/)**Anti-Defection Law: Tenth Schedule**[**https://lawfoyer.in/anti-defection-law-tenth-schedule/**](https://lawfoyer.in/anti-defection-law-tenth-schedule/)**Freedom of Trade and Commerce: Articles 301-307**[**https://lawfoyer.in/freedom-of-trade-and-commerce-articles-301-307/**](https://lawfoyer.in/freedom-of-trade-and-commerce-articles-301-307/)**Right to Property: From Fundamental Right to Legal Right**[**https://lawfoyer.in/right-to-property-from-fundamental-right-to-legal-right/**](https://lawfoyer.in/right-to-property-from-fundamental-right-to-legal-right/)**Public Interest Litigation (PIL) in India**[**https://lawfoyer.in/public-interest-litigation-pil-in-india/**](https://lawfoyer.in/public-interest-litigation-pil-in-india/)**Doctrine of Eclipse**[**https://lawfoyer.in/doctrine-of-eclipse/**](https://lawfoyer.in/doctrine-of-eclipse/)**Doctrine of Severability**[**https://lawfoyer.in/doctrine-of-severability/**](https://lawfoyer.in/doctrine-of-severability/)**Doctrine of Pith and Substance**[**https://lawfoyer.in/doctrine-of-pith-and-substance/**](https://lawfoyer.in/doctrine-of-pith-and-substance/)**Doctrine of Colourable Legislation**[**https://lawfoyer.in/doctrine-of-colourable-legislation/**](https://lawfoyer.in/doctrine-of-colourable-legislation/)**Doctrine of Territorial Nexus**[**https://lawfoyer.in/doctrine-of-territorial-nexus/**](https://lawfoyer.in/doctrine-of-territorial-nexus/)**Doctrine of Repugnancy**[**https://lawfoyer.in/doctrine-of-repugnancy/**](https://lawfoyer.in/doctrine-of-repugnancy/)**Doctrine of Prospective Overruling**[**https://lawfoyer.in/doctrine-of-prospective-overruling/**](https://lawfoyer.in/doctrine-of-prospective-overruling/)**Doctrine of Laches**[**https://lawfoyer.in/doctrine-of-laches/**](https://lawfoyer.in/doctrine-of-laches/)**Doctrine of Waiver**[**https://lawfoyer.in/doctrine-of-waiver/**](https://lawfoyer.in/doctrine-of-waiver/)**Doctrine of Legitimate Expectation**[**https://lawfoyer.in/doctrine-of-legitimate-expectation/**](https://lawfoyer.in/doctrine-of-legitimate-expectation/)**Doctrine of Pleasure: Article 310**[**https://lawfoyer.in/doctrine-of-pleasure-article-310/**](https://lawfoyer.in/doctrine-of-pleasure-article-310/)**Doctrine of Public Trust**[**https://lawfoyer.in/doctrine-of-public-trust/**](https://lawfoyer.in/doctrine-of-public-trust/)**Doctrine of State Action**[**https://lawfoyer.in/doctrine-of-state-action/**](https://lawfoyer.in/doctrine-of-state-action/)**Doctrine of Stare Decisis**[**https://lawfoyer.in/doctrine-of-stare-decisis/**](https://lawfoyer.in/doctrine-of-stare-decisis/)**Doctrine of Res Judicata**[**https://lawfoyer.in/doctrine-of-res-judicata/**](https://lawfoyer.in/doctrine-of-res-judicata/)**Doctrine of Res Sub Judice**[**https://lawfoyer.in/doctrine-of-res-sub-judice/**](https://lawfoyer.in/doctrine-of-res-sub-judice/)**Doctrine of Double Jeopardy**[**https://lawfoyer.in/doctrine-of-double-jeopardy/**](https://lawfoyer.in/doctrine-of-double-jeopardy/)**Doctrine of Audi Alteram Partem**[**https://lawfoyer.in/doctrine-of-audi-alteram-partem/**](https://lawfoyer.in/doctrine-of-audi-alteram-partem/)**Doctrine of Nemo Judex in Causa Sua**[**https://lawfoyer.in/doctrine-of-nemo-judex-in-causa-sua/**](https://lawfoyer.in/doctrine-of-nemo-judex-in-causa-sua/)**Doctrine of Natural Justice**[**https://lawfoyer.in/doctrine-of-natural-justice/**](https://lawfoyer.in/doctrine-of-natural-justice/)**Doctrine of Proportionality**[**https://lawfoyer.in/doctrine-of-proportionality/**](https://lawfoyer.in/doctrine-of-proportionality/)**Doctrine of Reasonableness**[**https://lawfoyer.in/doctrine-of-reasonableness/**](https://lawfoyer.in/doctrine-of-reasonableness/)**Doctrine of Legitimate Expectation**[**https://lawfoyer.in/doctrine-of-legitimate-expectation-2/**](https://lawfoyer.in/doctrine-of-legitimate-expectation-2/)**Doctrine of Public Accountability**[**https://lawfoyer.in/doctrine-of-public-accountability/**](https://lawfoyer.in/doctrine-of-public-accountability/)**Doctrine of Separation of Powers**[**https://lawfoyer.in/doctrine-of-separation-of-powers/**](https://lawfoyer.in/doctrine-of-separation-of-powers/)**Doctrine of Checks and Balances**[**https://lawfoyer.in/doctrine-of-checks-and-balances/**](https://lawfoyer.in/doctrine-of-checks-and-balances/)**Doctrine of Judicial Activism**[**https://lawfoyer.in/doctrine-of-judicial-activism/**](https://lawfoyer.in/doctrine-of-judicial-activism/)**Doctrine of Judicial Restraint**[**https://lawfoyer.in/doctrine-of-judicial-restraint/**](https://lawfoyer.in/doctrine-of-judicial-restraint/)**Doctrine of Political Question**[**https://lawfoyer.in/doctrine-of-political-question/**](https://lawfoyer.in/doctrine-of-political-question/)**Doctrine of Executive Privilege**[**https://lawfoyer.in/doctrine-of-executive-privilege/**](https://lawfoyer.in/doctrine-of-executive-privilege/)**Doctrine of Parliamentary Sovereignty**[**https://lawfoyer.in/doctrine-of-parliamentary-sovereignty/**](https://lawfoyer.in/doctrine-of-parliamentary-sovereignty/)**Doctrine of Constitutional Supremacy**[**https://lawfoyer.in/doctrine-of-constitutional-supremacy/**](https://lawfoyer.in/doctrine-of-constitutional-supremacy/)**Doctrine of Harmonious Construction**[**https://lawfoyer.in/doctrine-of-harmonious-construction/**](https://lawfoyer.in/doctrine-of-harmonious-construction/)**Doctrine of Implied Powers**[**https://lawfoyer.in/doctrine-of-implied-powers/**](https://lawfoyer.in/doctrine-of-implied-powers/)**Doctrine of Ancillary Powers**[**https://lawfoyer.in/doctrine-of-ancillary-powers/**](https://lawfoyer.in/doctrine-of-ancillary-powers/)**Doctrine of Occupied Field**[**https://lawfoyer.in/doctrine-of-occupied-field/**](https://lawfoyer.in/doctrine-of-occupied-field/)**Doctrine of Incidental or Ancillary Powers**[**https://lawfoyer.in/doctrine-of-incidental-or-ancillary-powers/**](https://lawfoyer.in/doctrine-of-incidental-or-ancillary-powers/)**Doctrine of Judicial Precedent**[**https://lawfoyer.in/doctrine-of-judicial-precedent/**](https://lawfoyer.in/doctrine-of-judicial-precedent/)**Doctrine of Constitutional Silence**[**https://lawfoyer.in/doctrine-of-constitutional-silence/**](https://lawfoyer.in/doctrine-of-constitutional-silence/)**Doctrine of Constitutional Morality**[**https://lawfoyer.in/doctrine-of-constitutional-morality/**](https://lawfoyer.in/doctrine-of-constitutional-morality/)**Doctrine of Transformative Constitutionalism**[**https://lawfoyer.in/doctrine-of-transformative-constitutionalism/**](https://lawfoyer.in/doctrine-of-transformative-constitutionalism/)**Doctrine of Living Constitution**[**https://lawfoyer.in/doctrine-of-living-constitution/**](https://lawfoyer.in/doctrine-of-living-constitution/)**Doctrine of Original Intent**[**https://lawfoyer.in/doctrine-of-original-intent/**](https://lawfoyer.in/doctrine-of-original-intent/)**Doctrine of Popular Sovereignty**[**https://lawfoyer.in/doctrine-of-popular-sovereignty/**](https://lawfoyer.in/doctrine-of-popular-sovereignty/)**Doctrine of Rule of Law**[**https://lawfoyer.in/doctrine-of-rule-of-law/**](https://lawfoyer.in/doctrine-of-rule-of-law/)**Doctrine of Due Process of Law**[**https://lawfoyer.in/doctrine-of-due-process-of-law/**](https://lawfoyer.in/doctrine-of-due-process-of-law/)**Doctrine of Procedure Established by Law**[**https://lawfoyer.in/doctrine-of-procedure-established-by-law/**](https://lawfoyer.in/doctrine-of-procedure-established-by-law/)**Doctrine of Equal Protection of Laws**[**https://lawfoyer.in/doctrine-of-equal-protection-of-laws/**](https://lawfoyer.in/doctrine-of-equal-protection-of-laws/)**Doctrine of Equality Before Law**[**https://lawfoyer.in/doctrine-of-equality-before-law/**](https://lawfoyer.in/doctrine-of-equality-before-law/)**Doctrine of Reasonable Classification**[**https://lawfoyer.in/doctrine-of-reasonable-classification/**](https://lawfoyer.in/doctrine-of-reasonable-classification/)**Doctrine of Non-Arbitrariness**[**https://lawfoyer.in/doctrine-of-non-arbitrariness/**](https://lawfoyer.in/doctrine-of-non-arbitrariness/)**Doctrine of Legitimate Expectation**[**https://lawfoyer.in/doctrine-of-legitimate-expectation-3/**](https://lawfoyer.in/doctrine-of-legitimate-expectation-3/)**Doctrine of Proportionality**[**https://lawfoyer.in/doctrine-of-proportionality-2/**](https://lawfoyer.in/doctrine-of-proportionality-2/)**Doctrine of Wednesbury Unreasonableness**[**https://lawfoyer.in/doctrine-of-wednesbury-unreasonableness/**](https://lawfoyer.in/doctrine-of-wednesbury-unreasonableness/)**Doctrine of Margin of Appreciation**[**https://lawfoyer.in/doctrine-of-margin-of-appreciation/**](https://lawfoyer.in/doctrine-of-margin-of-appreciation/)**Doctrine of Subsidiarity**[**https://lawfoyer.in/doctrine-of-subsidiarity/**](https://lawfoyer.in/doctrine-of-subsidiarity/)**Doctrine of Federal Supremacy**[**https://lawfoyer.in/doctrine-of-federal-supremacy/**](https://lawfoyer.in/doctrine-of-federal-supremacy/)**Doctrine of Implied Limitations**[**https://lawfoyer.in/doctrine-of-implied-limitations/**](https://lawfoyer.in/doctrine-of-implied-limitations/)**Doctrine of Basic Features**[**https://lawfoyer.in/doctrine-of-basic-features/**](https://lawfoyer.in/doctrine-of-basic-features/)**Doctrine of Essential Features**[**https://lawfoyer.in/doctrine-of-essential-features/**](https://lawfoyer.in/doctrine-of-essential-features/)**Doctrine of Non-Derogable Rights**[**https://lawfoyer.in/doctrine-of-non-derogable-rights/**](https://lawfoyer.in/doctrine-of-non-derogable-rights/)**Doctrine of Horizontal and Vertical Application of Rights**[**https://lawfoyer.in/doctrine-of-horizontal-and-vertical-application-of-rights/**](https://lawfoyer.in/doctrine-of-horizontal-and-vertical-application-of-rights/) **Categories:** Articles, Constitutional Law --- ### [CERTIFICATION COURSE ON USING AI IN LEGAL WORK FOR LAW STUDENTS AND LEGAL PROFESSIONALS](https://lawfoyer.in/certification-course-on-using-ai-in-legal-work-for-law-students-and-legal-professionals/) **Published:** September 2, 2024 **Author:** LawFoyer **Content:** ![1](https://lawfoyer.in/wp-content/uploads/2024/09/1-1024x256.png) ![2](https://lawfoyer.in/wp-content/uploads/2024/09/2-1024x256.png) ![3](https://lawfoyer.in/wp-content/uploads/2024/09/3-1024x256.png) ![4](https://lawfoyer.in/wp-content/uploads/2024/09/4-1024x256.png) ![5](https://lawfoyer.in/wp-content/uploads/2024/09/5-1024x256.png) # ![sticker.png](https://lawfoyer.in/wp-content/uploads/2024/06/sticker.png) Introducing # CERTIFICATION COURSE ON USING AI IN LEGAL WORK FOR LAW STUDENTS AND LEGAL PROFESSIONALS Want to learn how to leverage AI for professional Legal Research, Writing, Drafting, Oration, Practice, Personal Branding, CV Building, Acing Competitions and Academics? Want to Unlock the Super Lawyer in yourself? 🏆 Look no further! LawFoyer brings you the Certification Course in AI for Legal Work, starting on October 19, 2024. 📅 [ Enroll Now ](https://lawfoyer.in/?ff_landing=12) ![](https://lawfoyer.in/wp-content/uploads/2024/09/AI-Course-Poster-1.jpg) # COURSE COMMENCING IN ### Course Duration 7 Week ### Course Starts from 19 October (Live) ### Recordings Validity 2 Years ### Course Fee ₹ 999/- [ Enroll Now ](https://lawfoyer.in/?ff_landing=12) ## Course Content - Module 1 - Module 2 - Module 3 - Module 4 - Module 5 - Module 6 - Bonus Workshop & Giveaways [ Module 1: Introduction & Orientation ](#collapse-bc228306aa187fc93c44) - ##### Introduction to AI and its Usage in Day to Day Legal Work (Research, Writing, Drafting & Oration) - ##### **How to use LMS Portal and How to Access Course Materials?** [ Module 2: Al Powered Case Finding, Reading and Analysis ](#collapse-bc228306aa187fca268f) - ##### Using AI for Case Finding, Reading and Analysis (Boolean Method, SCC Online, Manupatra, E-SCR, E-HCR, Judicial Sources) - ##### Case Analysis Writing and Case Brief Preparation using AI [ Module 3: Al Powered Legal Research & Analysis for Legal Work ](#collapse-bc228306aa187fcb3f6e) - ##### The 4Ws of Legal Research and Using AI for Legal Research - ##### Application of Doctrinal and Empirical Legal Research using AI [ Module 4: Al Powered Legal Writing ](#collapse-bc228306aa187fcca4c9) - ##### Legal Writing leveraging Modern AI Tools & Technology - ##### Citations, Plagiarism Elimination, Grammar Corrections, Editing and Proofreading using AI [ Module 5: Using Al in Academics (Note Making, PPTs and Exam / Competition Preparations, CV Building, LinkedIn, Personal Branding) ](#collapse-bc228306aa187fcd95b6) - Using AI for Note Making and PPTs - Using AI for Exam Preparations and Acing Competitions - Using AI for CV Building, SOPs, Cover Letters, LinkedIn & Personal Branding [ Module 6: Al Powered Legal Drafting ](#collapse-bc228306aa187fce7098) - Foundational Principles of Legal Drafting (Overview of Civil, Criminal, Corporate, ADR, IPR & Contracts Drafts) - Using AI for Legal Drafting (Transitioning to become a Super Lawyer) [ Bonus Workshop & Giveaways ](#collapse-bc228306aa187fcf170f) - Bonus Workshop on Acing Moot Courts and Trial Advocacy. - Bonus Workshop on New Criminal Laws (BNS, BSA and BNSS) - Giveaway of 300+ AI Tools & 8000+ Legal Drafts. - Discounted Publication Opportunity with LawFoyer International Journal of Doctrinal Legal Research (LIJDLR). - Research Internship Opportunity with LawFoyer ## Course Content ## Module 1: Introduction and Orientation 1. **Introduction to AI and its Usage in Day to Day Legal Work (Research, Writing, Drafting & Oration) 2. How to use LMS Portal and How to Access Course Materials?** ## Module 2: Al Powered Case Finding, Reading and Analysis 1. **Using AI for Case Finding, Reading and Analysis (Boolean Method, SCC Online, Manupatra, E-SCR, E-HCR, Judicial Sources) 2. Case Analysis Writing and Case Brief Preparation using AI** ## Module 3: Al Powered Legal Research & Analysis for Legal Work 1. **The 4Ws of Legal Research and Using AI for Legal Research 2. Application of Doctrinal and Empirical Legal Research using AI** ## Module 4: Al Powered Legal Writing 1. **Legal Writing leveraging Modern AI Tools & Technology 2. Citations, Plagiarism Elimination, Grammar Corrections, Editing and Proofreading using AI** ## Module 5: Using Al in Academics (Note Making, pvrs and Exam / Competition Preparations, CV Building, LinkedIn, Personal Branding) 1. **Using AI for Note Making and PPTs 2. Using AI for Exam Preparations and Acing Competitions 3. Using AI for CV Building, SOPs, Cover Letters, LinkedIn & Personal Branding** ## Module 6: Al Powered I egal Drafting 1. **Foundational Principles of Legal Drafting (Overview of Civil, Criminal, Corporate, ADR, IPR & Contracts Drafts) 2. Using AI for Legal Drafting (Transitioning to become a Super Lawyer)** ## Bonus Workshop & Giveaways 1. **Bonus Workshop on Acing Moot Courts and Trial Advocacy. 2. Bonus Workshop on New Criminal Laws (BNS, BSA and BNSS) 3. Giveaway of 300+ AI Tools & 8000+ Legal Drafts. 4. Discounted Publication Opportunity with LawFoyer International Journal of Doctrinal Legal Research (LIJDLR). 5. Research Internship Opportunity with LawFoyer** [ Enroll Now ](https://lawfoyer.in/?ff_landing=12) # KEY FEATURES ![](https://lawfoyer.in/wp-content/uploads/2024/06/education_15869606-150x150.png) ### Weekened live lectures ![](https://lawfoyer.in/wp-content/uploads/2024/06/study_15192524-150x150.png) ### 20+ Lessons ![](https://lawfoyer.in/wp-content/uploads/2024/06/webinar_2997592-150x150.png) ### 2 Bonus Workshops\* ![](https://lawfoyer.in/wp-content/uploads/2024/06/dashboard_2782066-150x150.png) ### Personalised LMS Dashboard ![](https://lawfoyer.in/wp-content/uploads/2024/06/recording_4658842-150x150.png) ### 24\*7 Access to Recordings ![](https://lawfoyer.in/wp-content/uploads/2024/06/certificate_6703900-150x150.png) ### Completion and Merit Certificates ![](https://lawfoyer.in/wp-content/uploads/2024/06/educational-video_13972594-150x150.png) ### 300+ Tools, 4000+ AI Prompt Templates, 8000+ Legal Drafts ![](https://lawfoyer.in/wp-content/uploads/2024/06/quiz_3407038-150x150.png) ### Assignments + quizzes ## Frequently Asked Questions [ Do you offer daily live classes? ](#collapse-14514dc6aa187fc5c898) No, our course does not include daily live classes. Instead, you will have the opportunity to attend live Weekend lectures, each lasting approximately 90 minutes. The schedule for these live sessions is released at the beginning of the course. We understand that our learners may be students or working professionals, so we strive to accommodate everyone's schedules. Most of our live sessions are held on weekends or in the late evenings, allowing all participants to attend without compromising their regular classes or work commitments. [ What happens if I am unable to attend a live class? ](#collapse-c29457c6aa187fc5c898) We highly recommend attending the live classes after thorough preparation to maximize your learning experience. Just as the true excitement of a live match or performance lies in witnessing it in real-time, the real value of our live classes comes from actively participating and engaging with the content and instructors. During the live sessions, a wealth of new and practical information is covered, and you'll have the opportunity to ask questions and receive immediate feedback. However, we understand that sometimes life gets in the way, and you may miss a live class. In such cases, you can access the recordings of the live sessions through your personalized Learning Management System (LMS) dashboard. The LMS dashboard provides 24/7 access to all course materials, including the live session recordings, ensuring that you can catch up on any missed content at your convenience. [ What is the recommended time commitment for completing the course? ](#collapse-35c8fe46aa187fc5c898) To successfully complete the course, we recommend dedicating approximately 3 hours per week to your learning journey. The total course duration is 7 weeks. How you choose to allocate these 3-5 hours throughout the week is entirely up to you and your schedule. You may opt to spend around 40 minutes each day engaging with the course materials, or you may prefer to consolidate your learning time over the weekend. Our flexible learning approach allows you to tailor your study schedule to best suit your needs and commitments. [ Is this course suitable for beginners with no prior experience? ](#collapse-23e82e36aa187fc5c898) Absolutely! This course is tailored for individuals at all levels, including those with no prior experience in AI. It offers a comprehensive introduction to the fundamentals of applying AI in legal work, with a focus on practical skills and real-world applications. Whether you’re a law student, a practicing lawyer, or a legal professional aiming to enhance your expertise, this course will equip you with essential tools and knowledge to leverage AI in legal research, drafting, and decision-making processes. Even experienced legal professionals will find immense value, as the course provides cutting-edge insights and techniques to optimize their legal practice with AI. If you are looking to stay ahead in the rapidly evolving legal landscape, this course will provide the skills you need to effectively integrate AI into your legal work. [ Is access to paid Platforms like Chat GPT, Gemini, Manupatra or SCCOnline etc. necessary for this course? ](#collapse-48e70416aa187fc5c898) Not at all! While paid legal databases and resources can be valuable, they are not a requirement for successfully completing this course. Our Mentor will guide you on how to efficiently leverage Non-paid as well for legal work. [ How will this course benefit my career? ](#collapse-0e5ca9a6aa187fc5c898) This certification course on using AI in legal work is designed to provide you with a competitive edge in the evolving legal landscape. By mastering AI tools and techniques, you'll enhance your efficiency and accuracy in legal research, document review, and case analysis, allowing you to focus more on strategic and high-value tasks. Whether you are a law student, a practicing attorney, or a legal professional, this course will help you stay ahead of the curve by equipping you with practical skills that are increasingly in demand in the legal industry. Additionally, having this certification on your resume demonstrates your commitment to innovation and professional growth, making you a more attractive candidate to employers who are looking to integrate AI into their legal operations. ## Certificate of Completion & Merit ### Certificate of Completion and Merit Completing this course earns you a Completion and Merit Certificate with a unique ID and link. Showcase your achievement and skills by adding the certificate to your LinkedIn Achievements section, demonstrating your dedication to learning and making your profile stand out to potential employers and colleagues. [ Enroll Now ](https://lawfoyer.in/?ff_landing=12) - version="1.0" encoding="UTF-8"? - HEY! Click on the Certificate to Enroll [![](https://lawfoyer.in/wp-content/uploads/2024/06/unnamed-300x163.png)](https://lawfoyer.in/?ff_landing=12) ![WhatsApp Image 2024-09-02 at 18.45.14_ede6b67b](https://lawfoyer.in/wp-content/uploads/2024/09/WhatsApp-Image-2024-09-02-at-18.45.14_ede6b67b-1.jpg) [ Enroll Now ](https://lawfoyer.in/?ff_landing=12) ## What Will You Learn? - Fundamentals of AI in Legal Practice - Al Powered Case Finding, Reading and Analysis - Al Powered Legal Research & Analysis for Legal Work - Al Powered Legal Writing & Legal Drafting - Using Al in Academics (Note Making, PPTs and Exam / Competition Preparations, CV Building, LinkedIn, Personal Branding) [ Enroll Now ](https://lawfoyer.in/?ff_landing=12) ## Material Includes - All In One Coverage of Legal Research, Writing, Drafting and Oration Skills - FREE 300+ AI and Non-AI Tools for Efficient Legal Research, Writing, Drafting and Oration - FREE AI Prompts and Guide - FREE 8000+ Legal Drafts - FREE Bonus Workshops on Mooting and New Criminal Laws - FREE Notes and E-Books ## Requirements - No need of any prior knowledge of law or artificial intelligence. - Have a basic understanding of Computer. - Commit to dedicating sufficient time for coursework and assignments. - Actively participate in discussions and group activities. - Complete all assigned readings, quizzes, and projects within the stipulated deadlines. - Seek guidance from faculty when needed. ## Contact Us Have questions about our AI for Legal Work Certification Course? We’re here to help! Whether you’re curious about leveraging AI for legal research, writing, or personal branding, or you want to know more about unlocking your potential as a Super Lawyer, our team is ready to assist. Contact us for any inquiries regarding course content, schedules, or registration for the upcoming session starting October 12, 2024. Don’t miss this opportunity to transform your legal career with LawFoyer! [ Contact Us ](https://web.whatsapp.com/send?phone=+918574723478) [ Contact Us ](https://web.whatsapp.com/send?phone=+916386500823) ![](https://lawfoyer.in/wp-content/uploads/2024/09/chatting.png) **Categories:** Courses & Workshops, Events --- ### [LIFE INSURANCE: PRINCIPLES AND PRACTICES](https://lawfoyer.in/life-insurance-principles-and-practices/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** Life insurance is a contract between an individual and an insurer, where the insurer promises to pay a designated beneficiary a sum of money upon the insured's death or after a set period. This financial tool provides security against the economic impact of the insured's death, ensuring their dependents' financial stability... **Content:** Life insurance is a contract between an individual and an insurer, where the insurer promises to pay a designated beneficiary a sum of money upon the insured’s death or after a set period. This financial tool provides security against the economic impact of the insured’s death, ensuring their dependents’ financial stability. ### **MEANING, DEFINITION & EXPLANATION** Under **Section 2(11) of the Insurance Act, 1938**, **“Life Insurance Business”** encompasses contracts of insurance on human life, including those assuring payment upon death or other life-contingent events. It also covers annuities dependent on human life and contracts subject to premiums for a term based on human life. ### **HISTORICAL BACKGROUND / EVOLUTION** Life insurance in India traces back to the early 19th century with the establishment of the **Oriental Life Insurance Company in 1818**. Initially catering to Europeans, the sector evolved to include Indian lives, notably with the formation of **Bombay Mutual in 1871**. The industry underwent significant changes post-independence, culminating in the nationalization of life insurance in **1956 through the Life Insurance Corporation Act**, leading to the creation of the **Life Insurance Corporation of India (LIC)**. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** 1. ***Insurable Interest***: The policyholder must have a financial stake in the insured’s life. In ***Life Insurance Corporation of India v. Asha Goel***, the Supreme Court emphasized the necessity of **insurable interest** to validate a life insurance contract. 2. ***Utmost Good Faith (Uberrimae Fidei)***: Both parties must disclose all **material facts**. Non-disclosure can render the contract void. In ***Life Insurance Corporation of India v. Smt. G.M. Channabasamma***, the court held that suppression of **material facts** by the insured invalidates the policy. 3. ***Consideration***: Payment of premiums by the insured constitutes **consideration**, ensuring the contract’s enforceability. 4. ***Competent Parties***: Both insurer and insured must have the legal capacity to contract, adhering to the **Indian Contract Act, 1872**. 5. ***Lawful Object***: The contract’s purpose must be legal and not against public policy. ### **PRINCIPLES OF LIFE INSURANCE** 1. ***Principle of Indemnity***: While this principle ensures compensation for losses in **general insurance**, life insurance operates differently. Life insurance provides a **predetermined sum** upon the insured event, not necessarily correlating to the exact financial loss. 2. ***Principle of Insurable Interest***: The policyholder must have a legitimate interest in the insured’s life. This principle ensures that the policyholder stands to suffer a **genuine loss** upon the insured’s death. 3. ***Principle of Utmost Good Faith***: Both parties must act with **complete honesty**, disclosing all relevant information. In ***Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod***, the Supreme Court reiterated that any suppression or misstatement by the insured can render the policy voidable. 4. ***Principle of Subrogation***: Though primarily applicable to **general insurance**, in life insurance, after paying the claim, the insurer may acquire certain rights related to the insured property. 5. ***Principle of Contribution***: This principle is less relevant in life insurance, as multiple policies can be claimed **independently**. 6. ***Principle of Causa Proxima (Nearest Cause)***: The immediate cause of the insured event must be covered under the policy. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - **Insurance Act, 1938**: Governs insurance business in India, setting **regulatory standards**. - **Insurance Regulatory and Development Authority of India (IRDAI) Act, 1999**: Establishes the **IRDAI** as the regulatory body overseeing insurance practices. - **Section 45 of the Insurance Act, 1938**: Addresses policy disputes, stating that after **two years**, a policy cannot be called into question on grounds of **misstatement**, except in cases of **fraud**. ### **GUIDELINES / RULES / REGULATIONS** - **IRDAI Regulations**: Mandate transparency, **solvency margins**, and **policyholder protection measures**. - **Nomination and Assignment**: Governed by **Section 39** and **Section 38** of the **Insurance Act**, respectively, allowing policyholders to nominate beneficiaries and assign policies. ### **CASE LAWS / PRECEDENTS** 1. ***Life Insurance Corporation of India v. Asha Goel***: The Supreme Court emphasized the insurer’s duty to act fairly and not **repudiate claims** without substantial grounds. 2. ***Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod***: The court held that suppression of **material facts** by the insured allows the insurer to repudiate the policy. 3. ***Life Insurance Corporation of India v. Smt. G.M. Channabasamma***: The court ruled that **non-disclosure** of material facts by the insured renders the policy void. ### **DOCTRINES / THEORIES** - **Doctrine of Waiver and Estoppel**: If an insurer, knowing a **breach**, continues to accept premiums, they may be estopped from denying liability later. - **Doctrine of Constructive Notice**: Policyholders are presumed to know the **policy terms** once the document is delivered. ### **MAXIMS / PRINCIPLES** - **Uberrimae Fidei**: Emphasizes **utmost good faith** in insurance contracts. - **Caveat Emptor (Let the Buyer Beware)**: While applicable in general contracts, in insurance, the onus is on **both parties** to disclose **material facts**. ### **AMENDMENTS / ADDITIONS / REPEALING** - **Insurance Laws (Amendment) Act, 2015**: Introduced reforms, including increasing the **foreign investment cap** and enhancing **policyholder protection**. ### **STATISTICAL ANALYSIS / DATA ANALYSIS** - **Life Insurance Penetration in India**: As per **IRDAI’s annual report**, life insurance penetration in India was **2.82% in 2019**, indicating **growth potential**. ### **FUTURE IMPLICATIONS** The life insurance sector in India is poised for growth with **technological advancements**, regulatory reforms, and increasing awareness, leading to enhanced **customer-centric products and services**. ### **CRITICISM / APPRECIATION** While life insurance offers **financial security**, challenges include **mis-selling**, lack of awareness, and **complex products**. Regulatory bodies are striving to address these issues to protect policyholder interests. ### **REFERENCES** 1. ***Life Insurance Corporation of India v. Asha Goel***, (2001) 2 SCC 160. 2. ***Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod***, (2019) 6 SCC 175. 3. ***Life Insurance Corporation of India v. Smt. G.M. Channabasamma***, AIR 1991 SC 392. 4. **Insurance Act, 1938**. **Categories:** Articles, Constitutional Law --- ### [GENERAL INSURANCE: SCOPE AND APPLICATIONS](https://lawfoyer.in/general-insurance-scope-and-applications/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** General insurance encompasses non-life insurance policies, providing financial protection against unforeseen events such as accidents, natural disasters, and liabilities. In India, it plays a crucial role in safeguarding individuals and businesses from potential financial losses.... **Content:** General insurance encompasses non-life insurance policies, providing financial protection against unforeseen events such as accidents, natural disasters, and liabilities. In India, it plays a crucial role in safeguarding individuals and businesses from potential financial losses. ## **MEANING, DEFINITION & EXPLANATION** **General insurance** refers to policies that offer coverage for risks other than life, including property damage, health emergencies, and legal liabilities. Unlike **life insurance**, which deals with human life contingencies, general insurance addresses tangible assets and liabilities. ## **HISTORICAL BACKGROUND / EVOLUTION** The Indian general insurance sector traces its origins to the establishment of **Triton Insurance Company Ltd. in 1850** in Calcutta. The industry underwent significant transformation with the **nationalization of general insurance businesses in 1972**, leading to the formation of the **General Insurance Corporation (GIC)**. The sector reopened to private and foreign investment in **1999** with the formation of the **Insurance Regulatory and Development Authority of India (IRDAI)**. ## **TYPES OF GENERAL INSURANCE** 1. ***Fire Insurance***: Covers damages caused by fire to property and goods. 2. ***Marine Insurance***: Provides protection against losses during the transportation of goods over sea or land. 3. ***Motor Insurance***: Offers coverage for vehicles against accidents, theft, and third-party liabilities. 4. ***Health Insurance***: Covers medical expenses incurred due to illnesses or injuries. 5. ***Liability Insurance***: Protects against legal liabilities arising from third-party claims. 6. ***Miscellaneous Insurance***: Includes policies like burglary, fidelity guarantee, and personal accident insurance. ## **PRINCIPLES OF GENERAL INSURANCE** 1. ***Utmost Good Faith (Uberrimae Fidei)***: Both parties must disclose all material facts honestly. Non-disclosure can render the contract void. 2. ***Insurable Interest***: The insured must have a legal stake in the subject matter of the insurance. Without **insurable interest**, the contract is void. 3. ***Indemnity***: Ensures that the insured is compensated for the actual loss suffered, preventing profit from insurance. 4. ***Subrogation***: After compensating the insured, the insurer gains the legal rights to recover the loss from third parties responsible for the damage. 5. ***Contribution***: If multiple policies cover the same risk, insurers share the claim amount proportionally. 6. ***Proximate Cause (Causa Proxima)***: Determines the closest cause of loss to establish liability, especially when multiple causes exist. ## **LEGAL PROVISIONS / REGULATORY FRAMEWORK** The general insurance sector in India is governed by several key legislations: - **Insurance Act, 1938**: Provides the foundational legal framework for insurance operations in India. - **General Insurance Business (Nationalisation) Act, 1972**: Led to the nationalization of general insurance companies and the establishment of **GIC**. - **Insurance Regulatory and Development Authority Act, 1999**: Established **IRDAI** as the regulatory body overseeing the insurance sector, ensuring its development and regulation. ## **CASE LAWS / PRECEDENTS** 1. **LIC of India v. G.M. Channabasemma, AIR 1991 SC 392**: The Supreme Court emphasized the principle of ***utmost good faith***, stating that non-disclosure of material facts by the insured can render the policy voidable at the insurer’s discretion. 2. **General Assurance Society Ltd. v. Chandumull Jain, AIR 1966 SC 1644**: The Court held that insurance contracts are subject to special principles, including the duty of disclosure and the doctrine of ***indemnity***. 3. **Reliance Life Insurance v. Rekhaben Nareshbhai Rathod**: This case underscored that if the insured does not reveal important information when signing an insurance contract, the insurer can reject policy claims. 4. **New India Assurance Co. Ltd. v. Paresh Mohanlal Parmar**: The Supreme Court dealt with the interpretation of policy terms, emphasizing that clear and unambiguous terms must be upheld as per their plain meaning. ## **DOCTRINES / THEORIES** - **Doctrine of Contribution**: If multiple insurers cover the same risk, they share the loss proportionally. - **Doctrine of Loss Minimization**: The insured must take reasonable steps to minimize the loss or damage to the insured property. ## **MAXIMS / PRINCIPLES** - **Uberrimae Fidei (Utmost Good Faith)**: Both parties must act with complete honesty and disclose all material facts. - **Causa Proxima (Nearest Cause)**: The proximate cause of the loss is considered to determine liability. ## **GUIDELINES / RULES / REGULATIONS** The **Insurance Regulatory and Development Authority of India (IRDAI)** issues various guidelines to regulate the general insurance sector, ensuring transparency, policyholder protection, and market development. These include norms on product design, pricing, and grievance redressal mechanisms. **Categories:** Articles, Insurance Law & Banking Law --- ### [Preamble of the Indian Constitution](https://lawfoyer.in/preamble-of-the-indian-constitution/) **Published:** December 18, 2024 **Author:** LawFoyer **Excerpt:** The Preamble to the Indian Constitution serves as an introductory statement, encapsulating the fundamental values and guiding principles of the nation. It declares India as a Sovereign, Socialist, Secular, Democratic Republic, committed to securing Justice, Liberty, Equality, and Fraternity for its citizens. The Preamble reflects the aspirations of the people and sets the tone for the Constitution's provisions.... **Content:** ## MEANING, DEFINITION & EXPLANATION The **Preamble to the Indian Constitution** serves as an introductory statement, encapsulating the **fundamental values and guiding principles** of the nation. It declares India as a **Sovereign, Socialist, Secular, Democratic Republic**, committed to securing **Justice, Liberty, Equality, and Fraternity** for its citizens. The **Preamble reflects the aspirations of the people** and sets the tone for the Constitution’s provisions. ## **HISTORICAL BACKGROUND / EVOLUTION** The **Preamble** draws inspiration from the **Objectives Resolution**, introduced by **Jawaharlal Nehru in the Constituent Assembly on December 13, 1946**, and adopted on **January 22, 1947**. This resolution outlined the **foundational principles for the Constitution**. The **Preamble was adopted on November 26, 1949**, and came into effect on **January 26, 1950**. The **42nd Amendment Act of 1976** introduced the terms **“Socialist,” “Secular,” and “Integrity”** into the Preamble, reflecting the evolving aspirations of the nation. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The **Preamble** comprises several key elements: - **Sovereign**: **India is independent and free from external control.** - **Socialist**: **Emphasizes social and economic equality.** - **Secular**: **Ensures equal respect for all religions.** - **Democratic**: **Power derives from the people.** - **Republic**: **The head of state is elected.** - **Justice**: **Social, economic, and political fairness.** - **Liberty**: **Freedom of thought, expression, belief, faith, and worship.** - **Equality**: **Equal status and opportunity for all citizens.** - **Fraternity**: **Promotes national unity and individual dignity.** ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** While the **Preamble** is not **enforceable in a court of law**, it provides a **guiding framework for interpreting the Constitution**. It reflects the **intentions of the framers** and aids in understanding the Constitution’s provisions. The **Preamble has been referenced in various judicial decisions** to elucidate the Constitution’s objectives. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - **Berubari Union Case (1960)**: The **Supreme Court held** that the **Preamble is not a part of the Constitution** and cannot be a **source of power or limitations**. However, it can be used to **interpret ambiguous constitutional provisions**. - **Kesavananda Bharati v. State of Kerala (1973)**: The **Supreme Court overruled the Berubari decision**, declaring that the **Preamble is an integral part of the Constitution**. The Court introduced the **“basic structure” doctrine**, stating that **Parliament cannot amend the Constitution’s basic structure**, as reflected in the Preamble. - **S.R. Bommai v. Union of India (1994)**: The **Supreme Court emphasized the secular nature of the Indian state**, as declared in the **Preamble**, and held that any action contrary to this principle would be **unconstitutional**. - **Union Government v. LIC of India (1995)**: The **Supreme Court reaffirmed** that the **Preamble is a part of the Constitution**, but is **not directly enforceable in a court of law**. ## **INTERPRETATIONS / EXPLANATIONS** The **Preamble** has been interpreted as the **“soul” of the Constitution**, reflecting its **fundamental philosophy**. It serves as a **guiding light for the interpretation** of the Constitution’s provisions, ensuring that laws align with the **nation’s core values**. ## **DOCTRINES / THEORIES** - **Basic Structure Doctrine**: Established in the **Kesavananda Bharati case**, this doctrine asserts that certain **fundamental features of the Constitution**, as reflected in the **Preamble**, **cannot be altered or destroyed** through amendments. ## **MAXIMS / PRINCIPLES** - **“Salus populi suprema lex”**: **The welfare of the people is the supreme law.** This principle aligns with the **Preamble’s commitment to justice, liberty, equality, and fraternity**. ## **AMENDMENTS / ADDITIONS / REPEALING** The **Preamble** has been amended only once through the **42nd Amendment Act of 1976**, which added the words **“Socialist,” “Secular,” and “Integrity”** to reflect the **nation’s evolving ethos**. ## **CRITICISM / APPRECIATION** The **Preamble** has been lauded for encapsulating the **Constitution’s essence** in a concise manner. However, some critics argue that terms like **“Socialist” and “Secular”** are open to interpretation and debate. Despite this, the **Preamble remains a symbol of India’s commitment to its foundational principles**. ## **REFERENCES** 1. **Berubari Union Case (1960)**: In Re Berubari Union and Exchange of Enclaves, **AIR 1960 SC 845**. 2. **Kesavananda Bharati v. State of Kerala (1973)**: **AIR 1973 SC 1461**. 3. **S.R. Bommai v. Union of India (1994)**: **AIR 1994 SC 1918**. 4. **Union Government v. LIC of India (1995)**: **AIR 1995 SC 1811**. 5. **42nd Amendment Act, 1976**: Introduced the terms **“Socialist,” “Secular,” and “Integrity”** into the Preamble. 6. **Preamble to the Constitution of India**: [https://en.wikipedia.org/wiki/Preamble\_to\_the\_Constitution\_of\_India](https://en.wikipedia.org/wiki/Preamble_to_the_Constitution_of_India) 7. **Kesavananda Bharati v. State of Kerala**: [https://en.wikipedia.org/wiki/Kesavananda\_Bharati\_v.\_State\_of\_Kerala](https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala) 8. **Preamble of the Indian Constitution: Everything you need to know**: 9. **Preamble to the Indian Constitution – दृष्टि आईएएस**: 10. **Preamble of Indian Constitution – Drishti Judiciary**: **Categories:** Articles, Constitutional Law --- ### [Salient Features of the Indian Constitution](https://lawfoyer.in/salient-features-of-the-indian-constitution/) **Published:** December 18, 2024 **Author:** LawFoyer **Excerpt:** Salient Features of the Indian Constitution. The Indian Constitution is the world's lengthiest written constitution. Initially, it comprised 395 articles, 22 parts, and 8 schedules. Over time, amendments have expanded it to 448 articles and 12 schedules. This comprehensive nature ensures detailed governance guidelines, accommodating India's vast diversity..... **Content:** ## **1. LENGTHIEST WRITTEN CONSTITUTION** The Indian Constitution is the world’s **lengthiest written constitution**. Initially, it comprised **395 articles, 22 parts, and 8 schedules**. Over time, amendments have expanded it to **448 articles and 12 schedules**. This comprehensive nature ensures detailed governance guidelines, accommodating India’s vast diversity. --- ## **2. SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC** The **Preamble** declares India as a **sovereign, socialist, secular, democratic republic**. **Sovereignty** signifies India’s complete autonomy. **Socialism** reflects the commitment to social and economic equality. **Secularism** ensures equal respect for all religions. **Democracy** denotes a government by the people, and **republic** indicates the head of state is elected. --- ## **3. PARLIAMENTARY SYSTEM OF GOVERNMENT** India adopts a **parliamentary system**, with the **President** as the nominal executive head and the **Prime Minister** as the real executive authority. This system, inspired by the **British model**, ensures collective responsibility of the executive to the legislature. --- ## **4. FEDERAL SYSTEM WITH UNITARY BIAS** The Constitution establishes a **federal structure** with a strong central government. It divides powers between the **Centre and States** but allows the **Centre** to assert authority during emergencies, reflecting a **unitary bias**. --- ## **5. FUNDAMENTAL RIGHTS** **Part III** guarantees **fundamental rights** to citizens, including the **Right to Equality** (**Articles 14-18**), **Right to Freedom** (**Articles 19-22**), **Right against Exploitation** (**Articles 23-24**), **Right to Freedom of Religion** (**Articles 25-28**), **Cultural and Educational Rights** (**Articles 29-30**), and **Right to Constitutional Remedies** (**Article 32**). These rights are enforceable by courts, ensuring protection against state actions. --- ## **6. DIRECTIVE PRINCIPLES OF STATE POLICY** **Part IV** outlines **Directive Principles**, guiding the state in policy-making to establish a just society. Although **non-justiciable**, they are fundamental in governance, aiming at **social and economic democracy**. --- ## **7. FUNDAMENTAL DUTIES** **Article 51A** lists **fundamental duties** for citizens, introduced by the **42nd Amendment** in 1976. These duties promote a sense of responsibility among citizens towards the nation. --- ## **8. INDEPENDENT JUDICIARY** The Constitution ensures an **independent judiciary**, free from executive and legislative influence. The **Supreme Court** and **High Courts** have the power of **judicial review** to uphold the Constitution’s supremacy. --- ## **9. MIXTURE OF RIGIDITY AND FLEXIBILITY** While certain constitutional provisions require a **special majority** for amendment, others can be amended by a **simple parliamentary majority**. This balance allows adaptability without compromising fundamental principles. --- ## **10. SINGLE CITIZENSHIP** Unlike federal systems like the **USA**, where **dual citizenship** exists, the Indian Constitution provides for **single citizenship**, promoting national unity. --- ## **11. UNIVERSAL ADULT SUFFRAGE** **Article 326** grants the **right to vote** to all citizens aged **18 and above**, irrespective of caste, creed, religion, or gender, ensuring a democratic process. --- ## **12. EMERGENCY PROVISIONS** The Constitution provides for emergencies: **National Emergency** (**Article 352**), **State Emergency** (**Article 356**), and **Financial Emergency** (**Article 360**). These provisions enable the **Centre** to manage extraordinary situations effectively. --- ## **13. SECULARISM** The state maintains **neutrality in religious matters**, ensuring equal treatment of all religions without favoring or discriminating against any. --- ## **14. JUDICIAL REVIEW** The judiciary has the authority to **review laws and executive actions** to ensure they conform to the Constitution, safeguarding citizens’ rights. --- ## **15. BASIC STRUCTURE DOCTRINE** The **Supreme Court**, in the **Kesavananda Bharati v. State of Kerala** case (1973), established that while **Parliament** can amend the Constitution, it cannot alter its **basic structure**. This doctrine ensures the preservation of fundamental constitutional principles. --- ## **16. RESERVATION POLICY** The Constitution provides for **reservation** in education and public employment for **Scheduled Castes**, **Scheduled Tribes**, and **Other Backward Classes** to promote **social equality**. --- ## **17. PANCHAYATI RAJ SYSTEM** The **73rd Amendment** introduced the **Panchayati Raj system**, establishing a **three-tier structure** of local self-governance in rural areas, empowering local bodies. --- ## **18. SCHEDULED AND TRIBAL AREAS** Special provisions exist for the administration of **scheduled and tribal areas** to protect the interests of **indigenous communities**. --- ## **19. LANGUAGE PROVISIONS** The Constitution recognizes **Hindi and English** as **official languages** and lists **22 scheduled languages**, promoting linguistic diversity. --- ## **20. SPECIAL PROVISIONS FOR MINORITIES** Provisions exist to protect the **cultural and educational rights** of **minorities**, ensuring their development and preservation of heritage. --- ## **21. AMENDMENT PROCEDURE** **Article 368** outlines the procedure for **constitutional amendments**, allowing adaptability to changing needs while protecting core principles. --- ## **22. JUDICIAL ACTIVISM** The judiciary has played an active role in interpreting the Constitution to expand rights and address social issues, exemplified by **Public Interest Litigations (PILs)**. --- ## **23. PUBLIC INTEREST LITIGATION (PIL)** **PIL** allows individuals or groups to approach courts for public causes, enhancing access to justice and addressing societal issues. --- ## **24. SEPARATION OF POWERS** The Constitution delineates powers among the **executive, legislature, and judiciary**, ensuring checks and balances within the government. --- ## **25. RULE OF LAW** The principle of **rule of law** is upheld, ensuring that all actions are conducted according to established laws, maintaining order and justice. --- ## **26. SOCIAL JUSTICE** The Constitution aims to promote **social justice**, striving to create an equitable society by addressing inequalities. **Categories:** Articles, Constitutional Law --- ### [Historical Evolution of the Indian Constitution](https://lawfoyer.in/historical-evolution-of-the-indian-constitution/) **Published:** December 18, 2024 **Author:** LawFoyer **Excerpt:** Historical Evolution of the Indian Constitution **Content:** ## **1. EARLY LEGISLATIVE FRAMEWORKS** - **Regulating Act of 1773**: This Act marked the beginning of parliamentary control over the **East India Company**, establishing a **Governor-General in Bengal** and creating a **Supreme Court in Calcutta**. - **Pitt’s India Act of 1784**: Introduced a dual system of control by setting up a **Board of Control** in Britain to oversee the Company’s affairs in India, enhancing governmental oversight. - **Charter Act of 1833**: Centralized administration by designating the **Governor-General of Bengal** as the **Governor-General of India**, marking a significant step towards a unitary form of government. - **Charter Act of 1853**: Introduced an **open competition system** for civil services and separated the **legislative and executive functions** of the **Governor-General’s council**. ## **2. TRANSITION TO CROWN RULE** - **Government of India Act 1858**: In response to the **Revolt of 1857**, this Act transferred control from the **East India Company** to the **British Crown**, establishing the office of the **Secretary of State for India**. - **Indian Councils Act 1861**: Allowed for the inclusion of **Indian members** in **legislative councils**, introducing a limited degree of representation. - **Indian Councils Act 1892**: Expanded the functions of **legislative councils** and increased the number of additional members, allowing for greater Indian participation. - **Indian Councils Act 1909 (Morley-Minto Reforms)**: Introduced **separate electorates for Muslims**, a move that institutionalized **communal representation** in Indian politics. ## **3. TOWARDS SELF-GOVERNMENT** - **Government of India Act 1919 (Montagu-Chelmsford Reforms)**: Established a **dyarchical system**, dividing subjects into ‘transferred’ and ‘reserved’ categories, with the former under **Indian ministers** and the latter under **British officials**. - **Simon Commission (1927)**: Aimed to assess the functioning of the constitutional system in India but faced widespread opposition due to the **absence of Indian members**. - **Government of India Act 1935**: Proposed an **all-India federation** and introduced **provincial autonomy**, though the federal provisions were never implemented. ## **4. CONSTITUENT ASSEMBLY AND DRAFTING** - **Formation of the Constituent Assembly (1946)**: Comprised representatives from various political backgrounds, tasked with drafting the **Constitution of independent India**. - **Drafting Committee**: Chaired by **Dr. B.R. Ambedkar**, this committee was instrumental in formulating the draft Constitution, drawing from various global constitutions to suit India’s unique needs. - **Adoption of the Constitution (26th November 1949)**: The **Constituent Assembly** adopted the Constitution, which came into effect on **26th January 1950**, establishing India as a **sovereign, socialist, secular, and democratic republic**. ## **5. KEY FEATURES AND INFLUENCES** - **Federal Structure with Unitary Bias**: The Constitution establishes a **federal system** with a strong **central authority**, allowing for **unitary features during emergencies**. - **Fundamental Rights and Duties**: Inspired by the **U.S. Bill of Rights**, **Part III** of the Constitution guarantees **fundamental rights**, while **Part IV-A** outlines **fundamental duties** for citizens. - **Directive Principles of State Policy**: Drawn from the **Irish Constitution**, these principles guide the state in formulating policies aimed at **social and economic welfare**. - **Parliamentary System**: Adopted from the **British model**, establishing a **bicameral legislature** with the **Lok Sabha** and **Rajya Sabha**. ## **6. LANDMARK JUDICIAL INTERPRETATIONS** - **Kesavananda Bharati v. State of Kerala (1973)**: This case established the **‘Basic Structure’ doctrine**, asserting that while **Parliament** can amend the Constitution, it cannot alter its **fundamental framework**. - **Minerva Mills Ltd. v. Union of India (1980)**: Reaffirmed the **Basic Structure doctrine**, emphasizing the balance between **fundamental rights** and **directive principles**. - **S.R. Bommai v. Union of India (1994)**: Clarified the scope of **Article 356** regarding the imposition of **President’s Rule**, emphasizing that **secularism** is a basic feature of the Constitution. ## **7. DOCTRINES AND PRINCIPLES** - **Doctrine of Basic Structure**: Asserts that certain fundamental features of the Constitution cannot be altered by amendments, ensuring the preservation of its **core principles**. - **Rule of Law**: Establishes that all individuals and institutions are subject to and accountable under the **law**, ensuring **equality before the law**. - **Separation of Powers**: Divides the functions of government among the **legislative**, **executive**, and **judicial branches** to prevent the concentration of power. **Categories:** Articles, Constitutional Law --- ### [Fundamental Rights under Part III of the Indian Constitution: An Overview](https://lawfoyer.in/fundamental-rights-under-part-iii-of-the-indian-constitution-an-overview/) **Published:** December 18, 2024 **Author:** LawFoyer **Excerpt:** Fundamental Rights, enshrined in Part III (Articles 12-35) of the Indian Constitution, are essential human freedoms guaranteed to all citizens. These rights ensure individual liberty, equality, and dignity, forming the cornerstone of India's democratic framework. They are enforceable by courts, allowing individuals to seek redressal when violated... **Content:** ## **MEANING, DEFINITION & EXPLANATION** **Fundamental Rights**, enshrined in **Part III (Articles 12-35)** of the Indian Constitution, are essential human freedoms guaranteed to all citizens. These rights ensure **individual liberty, equality**, and **dignity**, forming the cornerstone of India’s democratic framework. They are **enforceable by courts**, allowing individuals to seek redressal when violated. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **Fundamental Rights** in India draws inspiration from various sources: - **British Legacy**: The colonial experience highlighted the need for **civil liberties**. - **U.S. Constitution**: The **Bill of Rights** influenced the inclusion of justiciable rights. - **International Declarations**: Documents like the **Universal Declaration of Human Rights** emphasized the global importance of fundamental freedoms. The framers of the Indian Constitution incorporated these rights to ensure a **democratic society** where **individual freedoms** are protected. ## **CLASSIFICATION OF FUNDAMENTAL RIGHTS** The Fundamental Rights are categorized into six broad classes: 1. **Right to Equality (Articles 14-18)**: Guarantees **equality before the law** and prohibits **discrimination**. 2. **Right to Freedom (Articles 19-22)**: Includes freedoms of **speech, assembly, association, movement, residence, and profession**. 3. **Right against Exploitation (Articles 23-24)**: Prohibits **human trafficking, forced labor**, and **child labor**. 4. **Right to Freedom of Religion (Articles 25-28)**: Ensures **religious freedom** and the right to **manage religious affairs**. 5. **Cultural and Educational Rights (Articles 29-30)**: Protects the rights of **minorities** to **preserve their culture** and establish **educational institutions**. 6. **Right to Constitutional Remedies (Articles 32-35)**: Allows individuals to approach courts for **enforcement of Fundamental Rights.** ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - **Article 12**: Defines ‘State’ to include the **Government and Parliament of India**, the **Government and Legislature of each State**, and all **local or other authorities** within Indian territory or under the control of the **Government of India**. - **Article 13**: Declares that **laws inconsistent with Fundamental Rights are void**. It introduces doctrines like: - ***Doctrine of Severability***: Invalid portions of a law can be severed if the rest remains enforceable. - ***Doctrine of Eclipse***: A law inconsistent with Fundamental Rights is not null but dormant and can become active if the inconsistency is removed. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - **Kesavananda Bharati v. State of Kerala (1973)**: Established the ***Basic Structure Doctrine***, ruling that Parliament cannot alter the Constitution’s fundamental framework, including Fundamental Rights. - **Maneka Gandhi v. Union of India (1978)**: Expanded the interpretation of **Article 21**, asserting that **‘life and personal liberty’** cannot be curtailed except through a procedure established by law, which must be **just, fair, and reasonable**. - **Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)**: Recognized the **Right to Privacy** as intrinsic to the **Right to Life and Personal Liberty** under **Article 21**. ## **DOCTRINES / THEORIES** - **Basic Structure Doctrine**: Asserts that certain fundamental features of the Constitution, including Fundamental Rights, cannot be altered by amendments. - **Doctrine of Waiver**: Individuals cannot waive their **Fundamental Rights**; they are **inalienable**. - **Doctrine of Lifting the Veil**: Courts can look beyond the literal interpretation of laws to ensure **Fundamental Rights** are not violated. ## **MAXIMS / PRINCIPLES** - **“Ubi jus ibi remedium”**: Where there is a right, there is a remedy. This principle underlies **Article 32**, ensuring individuals can approach the **Supreme Court** directly when Fundamental Rights are infringed. ## **AMENDMENTS / REPEALING** - **44th Amendment Act, 1978**: Removed the **Right to Property** from the list of Fundamental Rights, making it a **constitutional right** under **Article 300A**. ## **GUIDELINES / PRINCIPLES** - **Directive Principles of State Policy (Part IV)**: While not enforceable in court, these principles guide the State in formulating policies that aim to establish **social and economic democracy**, complementing the Fundamental Rights. ## **CASE STUDY: KESAVANANDA BHARATI v. STATE OF KERALA (1973)** - **Facts**: Kesavananda Bharati, a seer of a mutt in Kerala, challenged the Kerala government’s attempts to impose restrictions on the mutt’s property, invoking the validity of constitutional amendments that curtailed Fundamental Rights. - **Issue**: Whether Parliament’s power to amend the Constitution was unlimited, extending to altering Fundamental Rights. - **Held**: The Supreme Court ruled that while Parliament can amend the Constitution, it cannot alter its **‘Basic Structure,’** which includes Fundamental Rights. ## **CASE STUDY: MANEKA GANDHI v. UNION OF INDIA (1978)** - **Facts**: Maneka Gandhi’s passport was impounded by the government without providing reasons, leading her to challenge the action as a violation of her **Fundamental Rights**. - **Issue**: Whether the procedure established by law under **Article 21** must be fair, just, and reasonable. - **Held**: The Supreme Court expanded the interpretation of **Article 21**, asserting that any law affecting **life and personal liberty** must be **just, fair, and reasonable**, thus broadening the scope of Fundamental Rights. **Categories:** Articles, Constitutional Law --- ### [Directive Principles of State Policy (DPSP)](https://lawfoyer.in/directive-principles-of-state-policy-dpsp/) **Published:** December 19, 2024 **Author:** LawFoyer **Excerpt:** The Directive Principles of State Policy (DPSP) are guidelines enshrined in Part IV (Articles 36-51) of the Indian Constitution. They direct the state to establish a just society by promoting social and economic welfare. Although non-justiciable, meaning they cannot be enforced in a court of law, DPSPs are fundamental in governance, aiming to create a welfare state. **Content:** ## **MEANING, DEFINITION & EXPLANATION** The **Directive Principles of State Policy (DPSP)** are guidelines enshrined in **Part IV (Articles 36-51)** of the **Indian Constitution**. They direct the state to establish a just society by promoting social and economic welfare. Although **non-justiciable**, meaning they cannot be enforced in a court of law, **DPSPs** are fundamental in governance, aiming to create a welfare state. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **DPSP** is inspired by the **Irish Constitution**, which in turn drew from the **Spanish Constitution**. Indian Constitution framers incorporated **DPSPs** to address socio-economic challenges and guide the state in policy-making. The **Government of India Act, 1935**, also influenced the inclusion of these principles. ## **CLASSIFICATION OF DIRECTIVE PRINCIPLES** **DPSPs** are broadly classified into three categories: 1. ***Socialistic Principles***: Aim to provide social and economic justice, setting the path toward a welfare state. They include provisions like **securing a living wage**, **equal pay for equal work**, and **promoting the welfare of the people**. 2. ***Gandhian Principles***: Reflect **Mahatma Gandhi’s ideals**, focusing on promoting **cottage industries**, organizing **village panchayats**, and improving **public health**. 3. ***Liberal-Intellectual Principles***: Aim to secure a **uniform civil code**, **protect the environment**, and **promote international peace and security**. ## **KEY ARTICLES AND THEIR PROVISIONS** - **Article 38**: Mandates the state to promote the welfare of the people by securing a social order based on **justice—social, economic, and political**. - **Article 39**: Directs the state to ensure **adequate means of livelihood**, **equal pay for equal work**, and prevent the **concentration of wealth**. - **Article 40**: Obligates the state to organize **village panchayats** and endow them with necessary powers to function as units of **self-government**. - **Article 44**: Encourages the state to secure a **uniform civil code** for all citizens across India. - **Article 45**: Provides for **free and compulsory education** for children below the age of six years. - **Article 47**: Directs the state to raise the level of **nutrition** and **standard of living** and to improve **public health**. ## **RELATIONSHIP WITH FUNDAMENTAL RIGHTS** Initially, there was a perceived conflict between **Fundamental Rights (Part III)** and **DPSPs (Part IV)**. In ***State of Madras v. Champakam Dorairajan*** (**AIR 1951 SC 226**), the **Supreme Court** held that in case of conflict, **Fundamental Rights** would prevail. However, subsequent amendments and judgments, such as the **42nd Amendment** and the ***Minerva Mills Ltd. v. Union of India*** (**AIR 1980 SC 1789**), emphasized the harmony and balance between **Fundamental Rights** and **DPSPs**, stating that both are essential features of the **Constitution**. ## **IMPLEMENTATION AND JUDICIAL INTERPRETATION** While **DPSPs** are non-justiciable, they have been instrumental in shaping policies and laws. The judiciary has often referred to **DPSPs** to interpret laws and **Fundamental Rights**. In ***Unni Krishnan v. State of Andhra Pradesh*** (**1993 SCC (1) 645**), the **Supreme Court** recognized the **right to education** as a **Fundamental Right**, drawing inspiration from **Article 45**. ## **SIGNIFICANCE IN GOVERNANCE** **DPSPs** serve as a beacon for the state to formulate policies aimed at **social and economic welfare**. They reflect the ideals and aspirations of the **Constitution**, guiding the state toward achieving **social justice** and establishing a **welfare state**. ## **CRITICISM** Critics argue that the **non-justiciable** nature of **DPSPs** renders them ineffective. Some principles are considered vague, and there are instances of conflict between different directives. However, their role as **guiding principles in governance** remains undisputed. ## **CONCLUSION** The **Directive Principles of State Policy** are integral to the **Indian Constitution**, embodying the vision of a **just and equitable society**. They act as a guiding force for the state to implement policies that aim to **reduce inequalities** and promote the **welfare of the people**, thus playing a crucial role in the nation’s governance. ## **REFERENCES** 1. ***Directive Principles of State Policy***, iPleaders Blog. 2. ***Directive Principles of State Policy: Articles 36 – 51 Under Indian Constitution***, iPleaders Blog. 3. ***Directive Principles of State Policy (DPSPs)***, Next IAS. 4. ***Directive Principles of State Policy***, Drishti Judiciary. 5. ***Directive Principles of State Policy (DPSP) – Indian Polity Notes***, BYJU’S. 6. ***Directive Principles of State Policy***, Ministry of External Affairs. **Categories:** Articles, Constitutional Law --- ### [FUNDAMENTAL DUTIES OF INDIAN CITIZENS](https://lawfoyer.in/fundamental-duties-of-indian-citizens/) **Published:** December 19, 2024 **Author:** LawFoyer **Excerpt:** FUNDAMENTAL DUTIES OF INDIAN CITIZENS. Fundamental Duties, enshrined in Article 51A of the Indian Constitution, outline the moral obligations of citizens to promote patriotism and uphold the unity of India. These duties serve as a constant reminder that while citizens enjoy rights, they also bear responsibilities towards the nation. **Content:** ## **MEANING, DEFINITION & EXPLANATION** **Fundamental Duties**, enshrined in **Article 51A** of the **Indian Constitution**, outline the moral obligations of citizens to promote patriotism and uphold the unity of India. These duties serve as a constant reminder that while citizens enjoy **rights**, they also bear responsibilities towards the nation. Incorporated by the **42nd Amendment Act in 1976**, **Part IV-A** lists ten duties, with an eleventh added by the **86th Amendment in 2002**. These duties encompass respect for **national symbols**, cherishing **noble ideals**, upholding **sovereignty**, promoting **harmony**, protecting the **environment**, and striving for **excellence**. Although **non-justiciable**, meaning they are not enforceable by law, they play a crucial role in guiding citizen conduct and fostering a sense of duty among Indians. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **Fundamental Duties** was introduced based on the recommendations of the **Swaran Singh Committee**, constituted by the government in 1976. The committee drew inspiration from the constitutions of **socialist countries**, particularly the **USSR**, which emphasized citizens’ duties alongside rights. The **42nd Amendment Act, 1976**, added ten Fundamental Duties to the Constitution. Later, the **86th Amendment in 2002** introduced the eleventh duty, emphasizing the responsibility of parents to provide **education** to their children aged six to fourteen years. This evolution signifies the Indian state’s recognition of the importance of balancing citizens’ **rights** with their **duties** to ensure a harmonious and progressive society. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 51A** of the Constitution specifies the **Fundamental Duties** of every citizen: - **To abide by the Constitution** and respect its ideals and institutions, the **National Flag**, and the **National Anthem**. - **To cherish and follow** the noble ideals that inspired the **national struggle for freedom**. - **To uphold and protect** the **sovereignty**, **unity**, and **integrity** of India. - **To defend the country** and render **national service** when called upon to do so. - **To promote harmony** and the spirit of common brotherhood among all people of India, transcending **religious**, **linguistic**, and **regional or sectional diversities**; and to renounce practices derogatory to the dignity of women. - **To value and preserve** the rich heritage of the country’s **composite culture**. - **To protect and improve** the natural **environment**, including **forests**, **lakes**, **rivers**, and **wildlife**, and to have compassion for living creatures. - **To develop scientific temper**, **humanism**, and the spirit of inquiry and reform. - **To safeguard public property** and to abjure violence. - **To strive towards excellence** in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement. - **For parents or guardians,** to provide opportunities for **education** to their child or ward between the ages of six and fourteen years. These duties, though **non-justiciable**, are intended to serve as a constant reminder to citizens of their responsibilities towards the nation. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** While **Fundamental Duties** are **non-justiciable**, the judiciary has referred to them in various judgments to emphasize the responsibilities of citizens: - In ***AIIMS Students Union v. AIIMS* (2001)**, the **Supreme Court** highlighted that Fundamental Duties are as important as **Fundamental Rights**. The case involved the validity of **institutional reservations** in postgraduate medical courses. The Court held that while **rights** are enforceable, **duties**, though non-justiciable, cannot be overlooked, emphasizing the need for a balance between rights and duties. - In ***M.C. Mehta v. Union of India* (1988)**, concerning **environmental pollution** caused by industries near the **Ganga River**, the **Supreme Court** invoked **Article 51A(g)**, emphasizing the duty of citizens to **protect the environment**. The Court directed industries to install **pollution control devices**, underscoring citizens’ duty to protect the environment. - In ***Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh* (1987)**, known as the **Dehradun Quarrying Case**, the **Supreme Court** ordered the closure of **limestone quarries** causing **ecological imbalance**, referencing the duty to protect the environment under **Article 51A(g)**. ## **DOCTRINES / THEORIES** The introduction of **Fundamental Duties** aligns with the **Gandhian principle** that **rights and duties are correlative**. **Mahatma Gandhi** emphasized that real **rights** are a result of the performance of duty. This perspective suggests that the enjoyment of **Fundamental Rights** is intrinsically linked to the discharge of **Fundamental Duties** by citizens, promoting a balanced and responsible exercise of individual freedoms. ## **MAXIMS / PRINCIPLES** The maxim **“Jus et officium ex invicem nascuntur”** translates to **“Rights and duties arise from each other.”** This principle underscores the interdependence of **rights and duties**, suggesting that the existence of one necessitates the acknowledgment of the other. In the context of **Fundamental Duties**, it implies that the safeguarding of citizens’ **rights** is contingent upon the fulfillment of their **duties** towards the nation. ## **AMENDMENTS / ADDITIONS / REPEALING** The **42nd Amendment Act of 1976** introduced ten **Fundamental Duties** into the Constitution. Subsequently, the **86th Amendment Act of 2002** added the **eleventh duty**, which mandates that **parents or guardians provide opportunities for education** to their children or wards between the ages of six and fourteen years. These amendments reflect the evolving understanding of citizens’ roles in **nation-building** and the importance of **education** in personal and national development. ## **CRITICISM / APPRECIATION** While the inclusion of **Fundamental Duties** has been lauded for promoting a sense of responsibility among citizens, criticisms have been raised regarding their **non-justiciable nature**, meaning they cannot be enforced by law. Some argue that without **legal enforceability**, these duties may be overlooked. **Categories:** Articles, Constitutional Law --- ### [Union and its Territory: Articles 1-4](https://lawfoyer.in/union-and-its-territory-articles-1-4/) **Published:** December 20, 2024 **Author:** LawFoyer **Excerpt:** Articles 1 to 4 of the Indian Constitution define the structure and territorial extent of India, detailing the formation, alteration, and admission of states and union territories. **Content:** Articles 1 to 4 of the Indian Constitution define the structure and territorial extent of India, detailing the formation, alteration, and admission of states and union territories. ### **ARTICLE 1: NAME AND TERRITORY OF THE UNION** **Article 1(1)** declares, **“India, that is Bharat, shall be a Union of States.”** This emphasizes the indestructible nature of the Indian Union, where states have no right to secede. The term **“Union”** signifies a cohesive entity formed not by agreement among states but as a singular nation. **Article 1(2)** specifies that the territory of India comprises: - **Territories of the States**: Regions with their own governments. - **Union Territories**: Areas directly governed by the Central Government. - **Acquired Territories**: Any regions that may be acquired by India in the future. This classification underscores the comprehensive nature of India’s territorial jurisdiction. ### **ARTICLE 2: ADMISSION OR ESTABLISHMENT OF NEW STATES** **Article 2** grants **Parliament** the authority to admit new states into the Union or establish them on terms it deems appropriate. This provision has facilitated the integration of various regions into India post-independence. For instance, the incorporation of **Sikkim as a state in 1975** was executed under this article. ### **ARTICLE 3: FORMATION OF NEW STATES AND ALTERATION OF AREAS, BOUNDARIES, OR NAMES OF EXISTING STATES** **Article 3** empowers **Parliament** to: - **Form new states** by separating territory from existing ones. - **Increase or diminish** the area of any state. - **Alter the boundaries** of any state. - **Change the name** of any state. However, such actions require the **President** to first refer the proposed changes to the **legislature of the concerned state** for its views within a specified period. This ensures a consultative process, respecting the federal structure while maintaining the Union’s integrity. ### **ARTICLE 4: LAWS MADE UNDER ARTICLES 2 AND 3 TO PROVIDE FOR THE AMENDMENT OF THE FIRST AND THE FOURTH SCHEDULE AND SUPPLEMENTAL, INCIDENTAL, AND CONSEQUENTIAL MATTERS** **Article 4** stipulates that laws enacted under **Articles 2 and 3**, concerning the admission or establishment of new states and the alteration of existing ones, may include provisions to amend the **First Schedule** (listing states and union territories) and the **Fourth Schedule** (allocation of seats in the Rajya Sabha). Such laws are **not considered constitutional amendments under Article 368**, allowing for a more straightforward process to reorganize state boundaries and names. ### **CASE LAWS AND JUDICIAL INTERPRETATIONS** The **Supreme Court of India** has deliberated on matters related to Articles 1-4, reinforcing the Union’s indestructible nature and **Parliament’s authority** in territorial adjustments. In the **Berubari Union Case (1960)**, the Court examined the cession of Indian territory to Pakistan, concluding that such an action required a **constitutional amendment under Article 368**, as it was not covered by Articles 3 or 4. This case highlighted the limitations of Parliament’s power under these articles, emphasizing the need for constitutional amendments for ceding territory. ### **HISTORICAL CONTEXT AND EVOLUTION** At the Constitution’s commencement, India comprised **Part A, B, C, and D states**. The **States Reorganization Act, 1956**, and the **Seventh Constitutional Amendment** reorganized these into **14 states and 6 union territories**, streamlining administrative divisions based on linguistic and cultural identities. This reorganization aimed to promote administrative efficiency and accommodate the diverse linguistic demographics of the country. ### **COMPARISON WITH OTHER FEDERAL STRUCTURES** Unlike the **United States**, where states possess the right to secede, **India’s Union is indestructible**. **Dr. B.R. Ambedkar** emphasized that the term **“Union”** was chosen to indicate that states have no right to secede, ensuring **national unity and integrity**. This distinction underscores the unique nature of Indian federalism, where the emphasis is on unity and the seamless integration of diverse regions. ### **PROCEDURAL ASPECTS AND PARLIAMENTARY AUTHORITY** The process of altering state boundaries or names involves: 1. **Presidential Reference**: The President proposes the change and refers it to the concerned state’s legislature. 2. **State Legislature’s Opinion**: The state legislature expresses its views within a specified period. 3. **Parliamentary Legislation**: Parliament considers the state’s opinion but is not bound by it and can enact the law effecting the change. This procedure balances state interests with national imperatives, ensuring a democratic approach to territorial reorganization. ### **DOCTRINES AND PRINCIPLES INVOLVED** The principle of an **“indestructible Union with destructible states”** applies, meaning while the Union remains intact, state boundaries can be altered for administrative and political reasons. This doctrine ensures flexibility in governance while maintaining national unity. ### **RECENT APPLICATIONS AND AMENDMENTS** The creation of **Telangana in 2014** from Andhra Pradesh exemplifies **Article 3’s application**, where Parliament passed the **Andhra Pradesh Reorganization Act, 2014**, after obtaining the state’s views. Similarly, the reorganization of **Jammu and Kashmir in 2019** into two union territories—**Jammu & Kashmir**, and **Ladakh**—was executed through parliamentary legislation, demonstrating the dynamic nature of India’s federal structure. ### **CONCLUSION** **Articles 1 to 4** of the Indian Constitution provide a robust framework for defining and modifying the Union’s territorial extent. They empower Parliament to admit new states, alter boundaries, and ensure the nation’s integrity while accommodating regional aspirations. This flexibility has enabled India to adapt its internal boundaries to changing political, cultural, and administrative needs, fostering **unity in diversity**. ### **REFERENCES** 1. **Constitution of India, Article 1**. 2. **Constitution of India, Article 2**. 3. **Constitution of India, Article 3 and Article 4**. **Categories:** Articles, Constitutional Law --- ### [Citizenship Provisions: Articles 5-11](https://lawfoyer.in/citizenship-provisions-articles-5-11/) **Published:** December 21, 2024 **Author:** LawFoyer **Excerpt:** The Indian Constitution's Articles 5 to 11 define citizenship at its commencement, detailing criteria for individuals to be recognized as Indian citizens. These provisions address various scenarios, including migration and foreign residence, and empower Parliament to legislate on citizenship matters. **Content:** The Indian Constitution’s **Articles 5 to 11** define citizenship at its commencement, detailing criteria for individuals to be recognized as Indian citizens. These provisions address various scenarios, including migration and foreign residence, and empower **Parliament** to legislate on citizenship matters. ### **ARTICLE 5: CITIZENSHIP AT THE COMMENCEMENT OF THE CONSTITUTION** **Article 5** grants citizenship to individuals domiciled in India at the Constitution’s commencement (**January 26, 1950**) who meet any of the following conditions: - **Born in the territory of India.** - **Either parent was born in the territory of India.** - **Resided in India for at least five years immediately preceding the commencement.** This provision ensured that individuals with a substantial connection to **India** became citizens upon the Constitution’s adoption. ### **ARTICLE 6: RIGHTS OF CITIZENSHIP OF CERTAIN PERSONS WHO HAVE MIGRATED TO INDIA FROM PAKISTAN** **Article 6** addresses citizenship for persons migrating from **Pakistan** to **India**. It distinguishes between those who migrated before and after **July 19, 1948**: - **Migrated before July 19, 1948**: Granted citizenship if either parent or grandparent was born in **India** as defined in the **Government of India Act, 1935**, and they have been residing in **India** since the date of migration. - **Migrated on or after July 19, 1948**: Eligible for citizenship if they registered as citizens of **India** after residing in **India** for at least six months preceding the application. This article aimed to accommodate individuals displaced during the **Partition**, facilitating their integration into **India**. ### **ARTICLE 7: RIGHTS OF CITIZENSHIP OF CERTAIN MIGRANTS TO PAKISTAN** **Article 7** pertains to individuals who migrated to **Pakistan** after **March 1, 1947**, but returned to **India** under a permit for resettlement. Such individuals are deemed citizens if they have resided in **India** since their return. This provision allowed those who initially left for **Pakistan** but chose to return to **India** to regain citizenship, reflecting the fluid migration patterns during the **Partition**. ### **ARTICLE 8: RIGHTS OF CITIZENSHIP OF CERTAIN PERSONS OF INDIAN ORIGIN RESIDING OUTSIDE INDIA** **Article 8** grants citizenship rights to persons of **Indian origin** residing outside **India** if they, or their parents or grandparents, were born in **India** as defined in the **Government of India Act, 1935**. Such individuals could register as citizens with **Indian diplomatic missions**. This provision recognized the **Indian diaspora**, allowing them to establish formal ties with **India**. ### **ARTICLE 9: PERSONS VOLUNTARILY ACQUIRING CITIZENSHIP OF A FOREIGN STATE NOT TO BE CITIZENS** **Article 9** stipulates that any person who voluntarily acquires citizenship of a foreign state after the Constitution’s commencement ceases to be an **Indian citizen**. This article prevents **dual citizenship**, ensuring allegiance to **India** remains undivided. ### **ARTICLE 10: CONTINUANCE OF THE RIGHTS OF CITIZENSHIP** **Article 10** ensures that individuals recognized as citizens under the preceding articles continue to be citizens, subject to any laws made by **Parliament**. This provision provides continuity and acknowledges **Parliament’s** authority to regulate citizenship. ### **ARTICLE 11: PARLIAMENT TO REGULATE THE RIGHT OF CITIZENSHIP BY LAW** **Article 11** empowers **Parliament** to make laws regarding the acquisition and termination of citizenship and all related matters. This article grants **Parliament** the flexibility to address citizenship issues as they evolve. ### **THE CITIZENSHIP ACT, 1955** Pursuant to **Article 11**, **Parliament** enacted the **Citizenship Act, 1955**, detailing provisions for acquiring and terminating citizenship: #### **Acquisition**: - **By Birth**: - Individuals born in **India** on or after **January 26, 1950**, but before **July 1, 1987**, are citizens by birth. - Those born between **July 1, 1987**, and **December 3, 2004**, are citizens if either parent is an **Indian citizen**. - After **December 3, 2004**, a person is a citizen by birth if both parents are citizens, or one is a citizen and the other is not an **illegal migrant**. - **By Descent**: - Persons born outside **India** on or after **January 26, 1950**, but before **December 10, 1992**, are citizens by descent if their father was an **Indian citizen** at the time of birth. - After **December 10, 1992**, a person is a citizen if either parent is an **Indian citizen**. - **By Registration**: Certain categories, such as persons of **Indian origin** residing outside **India**, spouses of **Indian citizens**, and others, can acquire citizenship by registering with the prescribed authority. - **By Naturalization**: Foreigners can acquire citizenship by naturalization if they meet specific qualifications, including residence in **India** for **twelve years** and renouncing previous citizenship. #### **Termination**: - **Renunciation**: Voluntary renunciation by declaration leads to termination of citizenship. - **Deprivation**: The government can deprive citizenship obtained by registration or naturalization under certain conditions, such as **fraud** or **disloyalty**. The Act has been amended multiple times to address emerging issues, including the **Citizenship (Amendment) Act, 2019**, which provides a pathway to citizenship for specific persecuted minorities from neighboring countries. ### **JUDICIAL INTERPRETATIONS AND CASE LAWS** The judiciary has played a crucial role in interpreting citizenship provisions: - **State of Bihar v. Kameshwar Singh (1952)**: The **Supreme Court** examined the validity of laws concerning citizenship and property rights, emphasizing the importance of **legislative competence** and constitutional provisions. - **Kulathil Mammu v. State of Kerala (1966)**: The **Supreme Court** interpreted **Articles 5 to 7**, ruling that individuals migrating to **Pakistan** after **March 1, 1947**, and returning under a permit for resettlement could be deemed citizens, provided they met specific residency requirements. **Categories:** Articles, Constitutional Law --- ### [Right to Equality: Articles 14-18](https://lawfoyer.in/right-to-equality-articles-14-18/) **Published:** December 21, 2024 **Author:** LawFoyer **Excerpt:** The Right to Equality, enshrined in Articles 14 to 18 of the Indian Constitution, forms a cornerstone of India's democratic framework, ensuring that every individual is treated equally under the law. These provisions collectively prohibit discrimination and promote social justice, making them essential for law students to comprehend. **Content:** The Right to Equality, enshrined in **Articles 14 to 18** of the Indian Constitution, forms a cornerstone of India’s democratic framework, ensuring that every individual is treated equally under the law. These provisions collectively prohibit discrimination and promote social justice, making them essential for law students to comprehend. ## **ARTICLE 14: EQUALITY BEFORE LAW AND EQUAL PROTECTION OF LAWS** Article 14 states: **“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”** This provision embodies two concepts: - **Equality Before Law**: This implies the absence of any special privileges in favor of individuals and the equal subjection of all classes to the ordinary law. It is a negative concept, originating from the English common law. - **Equal Protection of Laws**: This is a positive concept, borrowed from the American Constitution, requiring the state to provide equal treatment to individuals in similar circumstances. ## **DOCTRINE OF REASONABLE CLASSIFICATION** While **Article 14** prohibits class legislation, it does not forbid reasonable classification. The Supreme Court, in ***State of West Bengal v. Anwar Ali Sarkar***, AIR 1952 SC 75, held that classification is permissible if it is based on an intelligible differentia and has a rational relation to the objective sought. In this case, the Court struck down a law that allowed certain cases to be tried by a special court without any reasonable basis for such classification, deeming it arbitrary and discriminatory. ## **PRINCIPLE OF ABSENCE OF ARBITRARINESS** In ***E.P. Royappa v. State of Tamil Nadu***, AIR 1974 SC 555, the Supreme Court emphasized that equality is antithetical to arbitrariness. The Court stated that where an act is arbitrary, it is implicit that it is unequal both according to political logic and constitutional law, thus violating **Article 14**. This case involved the arbitrary transfer of a senior official, which the Court found to be in violation of **Article 14** due to the lack of a fair and transparent process. ## **ARTICLE 15: PROHIBITION OF DISCRIMINATION** **Article 15** prohibits discrimination on grounds of **religion, race, caste, sex, or place of birth.** It ensures that no citizen is denied access to public places and that the state can make special provisions for **women, children,** and **socially and educationally backward classes.** ## **SPECIAL PROVISIONS FOR ADVANCEMENT** The Constitution permits affirmative action to uplift disadvantaged groups. In ***State of Madras v. Champakam Dorairajan***, AIR 1951 SC 226, the Supreme Court invalidated caste-based reservations in educational institutions, leading to the **First Constitutional Amendment**, which introduced **Article 15(4)** to allow such reservations. This amendment enabled the state to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the **Scheduled Castes and Scheduled Tribes.** ## **ARTICLE 16: EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT** **Article 16** guarantees equal opportunity in matters of **public employment** and prohibits discrimination on specific grounds. It allows the state to make provisions for the reservation of appointments in favor of any **backward class** not adequately represented in public services. ## **RESERVATION IN PROMOTIONS** In ***Indra Sawhney v. Union of India***, AIR 1993 SC 477, the Supreme Court held that while reservations in appointments are permissible, reservations in promotions are not. However, the **77th Constitutional Amendment** introduced **Article 16(4A)**, allowing reservations in promotions for **Scheduled Castes and Scheduled Tribes.** This amendment was a response to the Court’s decision, aiming to ensure adequate representation of these communities in higher positions within public employment. ## **ARTICLE 17: ABOLITION OF UNTOUCHABILITY** **Article 17** abolishes **“untouchability”** and forbids its practice in any form. The enforcement of any disability arising from untouchability is an offense punishable by law. ## **PROTECTION OF CIVIL RIGHTS ACT, 1955** To enforce **Article 17**, the Parliament enacted the **Protection of Civil Rights Act, 1955**, prescribing punishments for offenses related to untouchability. This Act provides a legal framework to eradicate the practice of untouchability and ensure that individuals subjected to such discrimination have a means of redress. ## **ARTICLE 18: ABOLITION OF TITLES** **Article 18** prohibits the state from conferring titles, except **military or academic distinctions,** to prevent the creation of an artificial hierarchy in society. It also forbids citizens from accepting titles from foreign states. ## **HONORS AND AWARDS** In ***Balaji Raghavan v. Union of India***, AIR 1996 SC 770, the Supreme Court upheld the validity of national awards like **Bharat Ratna** and **Padma Vibhushan**, stating that they do not violate **Article 18** as they are not titles but honors conferred for exceptional service. The Court emphasized that these awards do not create a title or a hereditary distinction and are thus permissible under the Constitution. ## **INTERNATIONAL INSTRUMENTS ON EQUALITY** India is a signatory to various international instruments that promote equality, such as the **Universal Declaration of Human Rights (UDHR)** and the **International Covenant on Civil and Political Rights (ICCPR)**. **Article 7 of the UDHR** states: **“All are equal before the law and are entitled without any discrimination to equal protection of the law.”** These international commitments reinforce India’s constitutional mandate to uphold equality. ## **LEGAL MAXIMS RELATED TO EQUALITY** - ***“Ubi jus ibi remedium”***: Where there is a right, there is a remedy. This maxim underscores that the legal system must provide remedies for violations of rights, including the right to equality. - ***“Audi alteram partem”***: Hear the other side. This principle of natural justice ensures that all parties receive a fair hearing, promoting equality in legal proceedings. ## **DOCTRINES UPHOLDING EQUALITY** - **Doctrine of Legitimate Expectation**: This doctrine ensures that if a public authority induces a reasonable expectation in a citizen, it should act fairly and honor that expectation, promoting fairness and equality. - **Principle of Non-Arbitrariness**: This principle asserts that state actions should be free from arbitrariness, as arbitrariness undermines the equality guaranteed under **Article 14**. **Categories:** Articles, Constitutional Law --- ### [Right to Freedom: Articles 19-22](https://lawfoyer.in/right-to-freedom-articles-19-22/) **Published:** December 21, 2024 **Author:** LawFoyer **Excerpt:** The Right to Freedom, enshrined in Articles 19 to 22 of the Indian Constitution, forms a cornerstone of India's democratic framework. These provisions guarantee essential civil liberties, ensuring citizens can express themselves, assemble peacefully, and live with dignity. Understanding these articles is crucial for law students, as they encapsulate the balance between individual freedoms and societal interests. **Content:** The **Right to Freedom**, enshrined in **Articles 19 to 22** of the **Indian Constitution**, forms a cornerstone of India’s democratic framework. These provisions guarantee essential civil liberties, ensuring citizens can express themselves, assemble peacefully, and live with dignity. Understanding these articles is crucial for law students, as they encapsulate the balance between individual freedoms and societal interests. **ARTICLE 19: PROTECTION OF CERTAIN RIGHTS REGARDING FREEDOM** **Article 19** grants six fundamental freedoms to **Indian citizens**: 1. ***Freedom of Speech and Expression***: Allows individuals to express their opinions freely. However, this right is subject to **reasonable restrictions** in the interests of the **sovereignty and integrity of India**, **security of the state**, **friendly relations with foreign states**, **public order**, **decency or morality**, **contempt of court**, **defamation**, or **incitement to an offense**. 2. ***Freedom to Assemble Peaceably and Without Arms***: Citizens can gather for peaceful meetings without weapons. **Restrictions** can be imposed to maintain **public order** and the **sovereignty and integrity of India**. 3. ***Freedom to Form Associations or Unions***: Enables the formation of groups, unions, or societies. **Reasonable restrictions** apply in the interests of **public order**, **morality**, and the **sovereignty and integrity of India**. 4. ***Freedom to Move Freely Throughout the Territory of India***: Allows movement across state boundaries without hindrance. **Restrictions** may be imposed for reasons of **security**, **public order**, or protecting the interests of **Scheduled Tribes**. 5. ***Freedom to Reside and Settle in Any Part of the Territory of India***: Permits citizens to live in any state. **Limitations** can be placed to protect **indigenous populations** and maintain **public order**. 6. ***Freedom to Practice Any Profession, or to Carry on Any Occupation, Trade, or Business***: Grants the right to choose one’s profession. The **state** can impose restrictions in the interest of the **general public**. **CASE LAW: ROMESH THAPPAR V. STATE OF MADRAS, 1950** - **Facts**: *Romesh Thappar’s journal was banned by the Madras government, citing public safety.* - **Issue**: *Whether the ban violated the freedom of speech and expression under Article 19(1)(a).* - **Held**: The **Supreme Court** held that **freedom of speech and expression** is essential for democracy. The ban was **unconstitutional** as it did not fall under the **reasonable restrictions** permitted by the Constitution. **ARTICLE 20: PROTECTION IN RESPECT OF CONVICTION FOR OFFENSES** **Article 20** provides three key protections: 1. ***Ex-Post Facto Law***: No person can be convicted for an act that was not an offense at the time it was committed. Additionally, **penalties** cannot be increased **retroactively**. 2. ***Double Jeopardy***: No person shall be prosecuted and punished for the same offense more than once. 3. ***Prohibition Against Self-Incrimination***: No individual can be compelled to be a **witness against themselves**. **CASE LAW: K.M. NANAVATI V. STATE OF MAHARASHTRA, 1961** - **Facts**: *Nanavati was tried for murder by a jury, which returned a not-guilty verdict. The verdict was overturned by the Bombay High Court, and Nanavati was retried.* - **Issue**: *Whether the retrial violated the principle of double jeopardy under Article 20(2).* - **Held**: The **Supreme Court** held that since the initial trial did not result in a **conviction or acquittal** by a competent court, the **retrial did not violate Article 20(2)**. **ARTICLE 21: PROTECTION OF LIFE AND PERSONAL LIBERTY** **Article 21** states that no person shall be deprived of their **life or personal liberty** except according to the **procedure established by law**. This article has been expansively interpreted to include various rights essential to **life and personal liberty**. **CASE LAW: MANEKA GANDHI V. UNION OF INDIA, 1978** - **Facts**: *Maneka Gandhi’s passport was impounded by the government without providing reasons.* - **Issue**: *Whether the action violated Article 21.* - **Held**: The **Supreme Court** held that the **procedure established by law** must be **just, fair, and reasonable**. The impounding of the passport without a fair procedure violated **Article 21**. **ARTICLE 21A: RIGHT TO EDUCATION** Introduced by the **86th Amendment Act, 2002**, **Article 21A** mandates the **state** to provide **free and compulsory education** to all children aged six to fourteen years. **ARTICLE 22: PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES** **Article 22** provides safeguards against **arbitrary arrest and detention**: 1. ***Rights of Arrested Persons***: - To be informed of the **grounds of arrest**. - To consult and be defended by a **legal practitioner** of their choice. - To be produced before a **magistrate** within **24 hours of arrest**. - Protection against detention beyond the said period without the authority of a magistrate. **Categories:** Articles, Constitutional Law --- ### [Right against Exploitation: Articles 23-24](https://lawfoyer.in/right-against-exploitation-articles-23-24/) **Published:** December 21, 2024 **Author:** LawFoyer **Excerpt:** The Indian Constitution enshrines the Right Against Exploitation in Articles 23 and 24, safeguarding individuals from human trafficking, forced labor, and child labor. These provisions uphold human dignity and prohibit practices that exploit vulnerable sections of society. **Content:** The Indian Constitution enshrines the **Right Against Exploitation** in **Articles 23 and 24**, safeguarding individuals from **human trafficking**, **forced labor**, and **child labor**. These provisions uphold **human dignity** and prohibit practices that exploit vulnerable sections of society. **ARTICLE 23: PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOR** **Article 23(1)** explicitly prohibits: - **Traffic in human beings**: Encompasses practices like the sale and purchase of men, women, and children for immoral or other purposes. - **Begar**: A form of forced labor without payment, historically prevalent in India. - **Other similar forms of forced labor**: Includes **bonded labor**, **serfdom**, and other forms of coerced work. Any contravention of this provision is **punishable by law**, ensuring the protection of individuals from exploitation. This right is available to both **citizens and non-citizens** and is enforceable against the **State** as well as **private individuals**. **EXCEPTIONS UNDER ARTICLE 23** **Article 23(2)** permits the **State** to impose **compulsory service** for public purposes, such as **conscription for national defense** or **social services**, provided it does not discriminate on grounds only of **religion**, **race**, **caste**, or **class**. **ARTICLE 24: PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES, ETC.** **Article 24** prohibits the **employment of children below the age of 14 years** in **factories**, **mines**, or any other **hazardous employment**. This provision aims to protect children from **exploitation** and ensure their right to **education** and **development**. **LEGISLATIVE MEASURES SUPPORTING ARTICLES 23 AND 24** To give effect to these constitutional mandates, several laws have been enacted: - **The Bonded Labour System (Abolition) Act, 1976**: Abolishes all forms of **bonded labor** and frees all bonded laborers from any obligation to render bonded labor. - **The Child Labour (Prohibition and Regulation) Act, 1986**: Prohibits the engagement of children in certain employments and regulates the conditions of work in others. - **The Juvenile Justice (Care and Protection of Children) Act, 2015**: Provides for the **care**, **protection**, and **rehabilitation** of children in need, including those rescued from **exploitative labor**. **JUDICIAL INTERPRETATIONS AND LANDMARK CASES** The judiciary has played a pivotal role in interpreting and enforcing the **Right Against Exploitation**: - **People’s Union for Democratic Rights v. Union of India (1982)**: The Supreme Court held that “the scope of **Article 23** is wide and unlimited and strikes at ‘**traffic in human beings**‘ and ‘**begar**‘ and other forms of **forced labor** wherever they are found.” The case involved laborers employed in the construction of facilities for the **Asian Games** in Delhi under exploitative conditions. The Court ruled that **non-payment of minimum wages** amounts to **forced labor**, thus violating **Article 23**. - **M.C. Mehta v. State of Tamil Nadu (1996)**: This case addressed the issue of **child labor** in hazardous industries, specifically focusing on children working in match factories in **Sivakasi**. The Supreme Court directed the government to ensure that children under the age of 14 are not employed in **hazardous occupations** and emphasized the importance of providing **education** to all children. - **Bandhua Mukti Morcha v. Union of India (1984)**: The Supreme Court recognized the prevalence of **bonded labor** in various parts of the country and issued directives for the **identification**, **release**, and **rehabilitation** of bonded laborers. The Court emphasized that **bonded labor** is a violation of **Article 23**. **INTERNATIONAL INSTRUMENTS AND INDIA’S COMMITMENTS** India is a signatory to several international conventions aimed at combating exploitation: - **Universal Declaration of Human Rights (UDHR), 1948**: **Article 4** states that “no one shall be held in **slavery** or **servitude**; slavery and the slave trade shall be prohibited in all their forms.” - **International Labour Organization (ILO) Conventions**: - **Forced Labour Convention, 1930 (No. 29)**: Aims to suppress the use of **forced or compulsory labor** in all its forms. - **Abolition of Forced Labour Convention, 1957 (No. 105)**: Calls for the immediate and complete abolition of **forced or compulsory labor**. - **Minimum Age Convention, 1973 (No. 138)**: Seeks to abolish **child labor** by setting the minimum age for employment. - **Worst Forms of Child Labour Convention, 1999 (No. 182)**: Focuses on the elimination of the **worst forms of child labor**, including **slavery**, **trafficking**, and **hazardous work**. **PRINCIPLES AND DOCTRINES RELATED TO THE RIGHT AGAINST EXPLOITATION** Several legal principles underpin the **Right Against Exploitation**: - **Doctrine of Social Justice**: Advocates for the removal of **economic inequalities** and provides for the welfare of all citizens, ensuring that individuals are not subjected to exploitation. - **Parens Patriae**: The principle that the **State** must act as a **guardian** for those who are unable to care for themselves, such as **children**, ensuring their protection from exploitation. **STATISTICAL ANALYSIS** Despite constitutional provisions and legislative measures, exploitation persists: - According to the **2011 Census**, India had over **10 million working children** in the age group of **5-14 years**. - The **Global Slavery Index 2018** estimated that there were **8 million people living in modern slavery** in India. **CHALLENGES AND CRITICISMS** While **Articles 23 and 24** provide a robust framework against exploitation, challenges remain: - **Enforcement Issues**: Implementation of laws is often weak, with **inadequate monitoring** and **insufficient penalties** for violators. - **Socio-Economic Factors**: **Poverty**, lack of **education**, and **unemployment** drive individuals into exploitative labor conditions. **Categories:** Articles, Constitutional Law --- ### [Right to Freedom of Religion: Articles 25-28](https://lawfoyer.in/right-to-freedom-of-religion-articles-25-28/) **Published:** December 21, 2024 **Author:** LawFoyer **Excerpt:** The Right to Freedom of Religion, enshrined in Articles 25 to 28 of the Indian Constitution, guarantees individuals the liberty to profess, practice, and propagate their chosen faith. This fundamental right underscores India's commitment to secularism and ensures equal treatment of all religions. **Content:** The Right to Freedom of Religion, enshrined in **Articles 25 to 28** of the **Indian Constitution**, guarantees individuals the liberty to profess, practice, and propagate their chosen faith. This fundamental right underscores **India’s commitment to secularism** and ensures equal treatment of all religions. ## **MEANING, DEFINITION & EXPLANATION** - ***Article 25***: Grants every individual the **freedom of conscience** and the right to freely **profess**, **practice**, and **propagate religion**, subject to **public order**, **morality**, and **health**. This encompasses both the internal belief and external expressions through rituals and dissemination of religious tenets. - ***Article 26***: Affords **religious denominations** the autonomy to manage their own affairs in matters of religion, establish and maintain institutions, and administer property, again subject to **public order**, **morality**, and **health**. - ***Article 27***: Prohibits the imposition of **taxes** whose proceeds are specifically appropriated for the promotion or maintenance of any particular religion or religious denomination. - ***Article 28***: Restricts **religious instruction** in educational institutions wholly funded by the State, ensuring that attendance at religious worship or instruction is voluntary in State-recognized or State-aided institutions. ## **HISTORICAL BACKGROUND / EVOLUTION** The framers of the **Indian Constitution** were deeply influenced by the nation’s **diverse religious landscape** and the need to prevent **religious conflicts**. Drawing lessons from **colonial history** and **communal tensions**, they incorporated provisions to ensure **religious freedom** while maintaining **state neutrality** in religious matters. The inclusion of these articles reflects a commitment to **secularism**, where the state does not favor any religion and individuals are free to follow their conscience. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - ***Freedom of Conscience***: The absolute inner freedom of an individual to mold their religious or non-religious beliefs. - ***Right to Profess***: Open declaration and acceptance of one’s faith. - ***Right to Practice***: Performance of religious rituals and customs. - ***Right to Propagate***: Transmission and dissemination of one’s religious beliefs to others. ## **LIMITATIONS AND RESTRICTIONS** While **Articles 25 to 28** provide broad religious freedoms, they are not absolute and are subject to: - ***Public Order***: Practices that disturb **public tranquility** can be regulated. - ***Morality***: Actions deemed **immoral** by societal standards may be curtailed. - ***Health***: Practices detrimental to **health** can be restricted. - ***Other Fundamental Rights***: Religious freedoms should not infringe upon other **constitutional rights**. ## **CASE LAWS / PRECEDENTS** - ***The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)***: This case defined the scope of **religious practices**, distinguishing between essential and non-essential practices. The **Supreme Court** held that what constitutes an **essential part of a religion** is primarily to be ascertained with reference to the doctrines of that religion itself. - ***Rev. Stainislaus v. State of Madhya Pradesh (1977)***: The **Supreme Court** upheld laws prohibiting **forcible conversions**, stating that the right to propagate does not include the right to convert another person against their will. The Court emphasized that **Article 25** grants the freedom to propagate religion but does not grant the right to convert. - ***S.R. Bommai v. Union of India (1994)***: The Court declared **secularism** as a **basic feature of the Constitution**, emphasizing that the **State must treat all religions equally** and that religion and politics should be kept separate. ## **DOCTRINES / THEORIES** - ***Doctrine of Essential Religious Practices***: Established in the **Shirur Mutt case**, this doctrine determines which practices are **fundamental to a religion** and thus protected under **Article 25**. The Court held that the term **“religion”** will cover all rituals and practices integral to a religion. ## **MAXIMS / PRINCIPLES** - ***Secularism***: The principle that the **State has no religion** and treats all religions equally, ensuring that religious groups do not interfere in governmental affairs and vice versa. This principle was reinforced by adding the word **“secular”** to the **Preamble** through the **42nd Amendment**. ## **AMENDMENTS / ADDITIONS / REPEALING** - ***42nd Amendment Act, 1976***: Inserted the term **“secular”** into the **Preamble**, reinforcing the commitment to **religious neutrality**. ## **COMPARISON WITH OTHER COUNTRIES** Unlike the strict separation of church and state in countries like the **USA**, **India’s model of secularism** allows for **state intervention** in religious matters to ensure equality and reform. This unique approach aims to respect all religions while preventing discrimination and promoting social welfare. ## **GUIDELINES / RULES / REGULATIONS** The **State** can enact laws regulating or restricting any **economic**, **financial**, **political**, or other secular activities associated with religious practices. For instance, laws have been implemented to prohibit practices like **untouchability** and to promote social reforms within religious communities. ## **CUSTOMS / USAGE / TRADITIONS-BASED LAW** While **customs** and **traditions** are respected, they are subject to **constitutional provisions**. Practices that violate **fundamental rights** or **public morality** can be challenged and reformed. For example, the practice of **triple talaq** was declared unconstitutional in recent years. ## **STATISTICAL ANALYSIS / DATA ANALYSIS** India is home to a multitude of religions, with significant populations of **Hindus**, **Muslims**, **Christians**, **Sikhs**, **Buddhists**, and **Jains**. **Categories:** Articles, Constitutional Law --- ### [Cultural and Educational Rights: Articles 29-30](https://lawfoyer.in/cultural-and-educational-rights-articles-29-30/) **Published:** December 21, 2024 **Author:** LawFoyer **Excerpt:** Cultural and Educational Rights, enshrined in Articles 29 and 30 of the Indian Constitution, safeguard the interests of minorities by allowing them to preserve their unique languages, scripts, and cultures, and to establish and administer educational institutions of their choice. **Content:** **Cultural and Educational Rights**, enshrined in **Articles 29 and 30** of the **Indian Constitution**, safeguard the interests of minorities by allowing them to preserve their unique languages, scripts, and cultures, and to establish and administer educational institutions of their choice. ### **MEANING, DEFINITION & EXPLANATION** **ARTICLE 29: PROTECTION OF INTERESTS OF MINORITIES** - ***Clause (1):*** **Grants any section of citizens residing in India, having a distinct language, script, or culture, the right to conserve the same.** This provision ensures that minority groups can preserve their heritage without interference. - ***Clause (2):*** **Prohibits denial of admission to any citizen into educational institutions maintained by the State or receiving State aid, solely on grounds of religion, race, caste, language, or any of them.** This clause upholds the principle of non-discrimination in educational access. - **ARTICLE 30: RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER EDUCATIONAL INSTITUTIONS** - ***Clause (1):*** **Affirms the right of all religious and linguistic minorities to establish and administer educational institutions of their choice.** This empowers minorities to create institutions that reflect their cultural and educational preferences. - ***Clause (2):*** **Ensures that the State shall not discriminate in granting aid to educational institutions on the basis that they are under the management of a minority, whether based on religion or language.** This provision promotes equality in the distribution of state assistance to educational bodies. ### **HISTORICAL BACKGROUND / EVOLUTION** The framers of the **Indian Constitution** recognized the nation’s vast cultural diversity and the potential marginalization of minority communities. To address this, **Articles 29 and 30** were incorporated to protect minority rights, ensuring that these groups could preserve their unique identities and have autonomy over their educational institutions. This inclusion was pivotal in promoting national unity while respecting cultural plurality. ### **COMPARISON WITH OTHER COUNTRIES** In contrast to India, where minority rights are constitutionally enshrined, many countries address cultural and educational rights through general anti-discrimination laws. For instance: - **The United States** relies on the **Equal Protection Clause of the 14th Amendment** to prevent discrimination but does not provide specific provisions for minority groups to establish educational institutions. - Similarly, **The United Kingdom** ensures equality through the **Equality Act 2010**, without explicit constitutional rights for minorities to manage their own educational establishments. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - ***Distinct Identity:*** The group must have a distinct language, script, or culture. - ***Minority Status:*** The group should qualify as a religious or linguistic minority. - ***Establishment and Administration:*** The minority must establish and administer the educational institution. - ***Non-Discriminatory Aid:*** State aid should be provided without discrimination based on minority management. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - ***Article 29(1):*** Protects the right to conserve distinct language, script, or culture. - ***Article 29(2):*** Prohibits discrimination in admission to state-funded educational institutions. - ***Article 30(1):*** Grants minorities the right to establish and administer educational institutions. - ***Article 30(2):*** Prevents the State from discriminating in granting aid to minority-run educational institutions. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. **State of Bombay v. Bombay Education Society, AIR 1954 SC 561:** The **Bombay government** issued an order requiring Anglo-Indian schools to either admit only Anglo-Indian students or switch to Hindi as the medium of instruction to receive aid. The **Supreme Court** struck down this order, holding that it violated **Article 29(2)** by denying admission based solely on language. This case reinforced the right of minority educational institutions to admit students of their choice, even when receiving government aid. 2. **Re Kerala Education Bill, AIR 1958 SC 956:** The **Kerala government** proposed a bill regulating the administration of educational institutions, including those run by minorities. The **Supreme Court** held that while minorities have the right to establish and administer educational institutions under **Article 30(1)**, the State can impose reasonable regulations to ensure educational standards, provided they do not infringe upon the fundamental rights of minorities. 3. **St. Stephen’s College v. University of Delhi, AIR 1992 SC 1630:** **St. Stephen’s College**, a Christian minority institution, reserved 50% of its seats for Christian students. The **University of Delhi** challenged this practice. The **Supreme Court** upheld the college’s right to reserve seats for Christian students, stating that such a measure was essential to preserve the minority character of the institution under **Article 30(1)**. 4. **T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481:** This case involved the rights of minority and non-minority educational institutions concerning admission procedures and fee structures. The **Supreme Court** held that all citizens have the right to establish and administer educational institutions under **Article 19(1)(g)**, but minority institutions have additional protection under **Article 30(1)**. The Court also stated that while the State can impose reasonable regulations to maintain educational standards, it cannot interfere with the day-to-day management of minority institutions. ### **DOCTRINES / THEORIES** - **Doctrine of Reasonable Restrictions:** While **Articles 29 and 30** provide rights to minorities, the State can impose reasonable regulations to ensure educational standards and maintain public order, morality, and health. These restrictions must not, however, erode the essence of the rights guaranteed. ### **MAXIMS / PRINCIPLES** - ***Equality Before Law:*** Embodied in **Article 14**, this principle ensures that all citizens are treated equally before the law, reinforcing the non-discriminatory provisions of **Articles 29 and 30**. - ***Non-Discrimination:*** **Articles 29(2) and 30(2)** emphasize that no citizen shall face discrimination in educational matters based on religion, race, caste, or language. **Categories:** Articles, Constitutional Law --- ### [Right to Constitutional Remedies: Article 32](https://lawfoyer.in/right-to-constitutional-remedies-article-32/) **Published:** December 21, 2024 **Author:** LawFoyer **Excerpt:** Article 32 of the Indian Constitution empowers citizens to approach the Supreme Court directly for enforcement of their fundamental rights, underscoring its role as the "protector and guarantor of Fundamental Rights." **Content:** **Article 32** of the Indian Constitution empowers citizens to approach the **Supreme Court** directly for enforcement of their **fundamental rights**, underscoring its role as the “protector and guarantor of Fundamental Rights.” ## **MEANING AND EXPLANATION** **Article 32** provides a guaranteed remedy for the enforcement of **fundamental rights**. It authorizes the **Supreme Court** to issue directions, orders, or **writs**, including **habeas corpus**, **mandamus**, **prohibition**, **quo warranto**, and **certiorari**, to enforce these rights. **Dr. B.R. Ambedkar** referred to **Article 32** as the “heart and soul” of the Constitution, emphasizing its critical importance. ## **HISTORICAL BACKGROUND** The framers of the Indian Constitution, influenced by the experiences of **colonial rule** and the need to protect **individual liberties**, incorporated **Article 32** to ensure that citizens had a direct means to seek redressal from the highest court in cases of **fundamental rights violations**. This provision was designed to provide a swift and effective remedy, reflecting the importance of **fundamental rights** in the constitutional framework. ## **TYPES OF WRITS UNDER ARTICLE 32** **Article 32** empowers the **Supreme Court** to issue five types of **writs** for the enforcement of **fundamental rights**: 1. **Habeas Corpus**: Meaning “you may have the body,” this **writ** is a safeguard against **unlawful detention**. It commands the detaining authority to produce the detained person before the court to examine the legality of the detention. - In **ADM Jabalpur v. Shivakant Shukla**, the **Supreme Court** controversially held that **habeas corpus** could be suspended during an emergency, a decision later criticized and overturned. 2. **Mandamus**: Meaning “we command,” this **writ** directs a **public official** or **governmental body** to perform a duty they are obligated to execute. It cannot be issued against the **President** or **Governors** acting in their official capacities. - In **S.P. Gupta v. Union of India**, the court discussed the scope of **mandamus** in compelling public duties. 3. **Prohibition**: This **writ** is issued by a **superior court** to a **lower court** or **tribunal**, directing it to cease proceedings in a case where it lacks jurisdiction. Its purpose is to prevent inferior courts from exceeding their jurisdiction. - In **East India Commercial Co. Ltd. v. Collector of Customs**, the **Supreme Court** elaborated on the circumstances under which **prohibition** can be issued. 4. **Certiorari**: Issued by a **higher court** to a **lower court** or **tribunal**, this **writ** seeks the transfer of a case for review, typically to quash an order or decision due to lack of jurisdiction or error of law. - In **Hari Vishnu Kamath v. Ahmad Ishaque**, the **Supreme Court** clarified the grounds for issuing **certiorari**. 5. **Quo Warranto**: Meaning “by what authority,” this **writ** challenges the legality of a person’s claim to a **public office**. It prevents unlawful usurpation of public positions. - In **University of Mysore v. Govinda Rao**, the **Supreme Court** outlined the application of **quo warranto**. ## **ESSENTIALS FOR ISSUANCE OF WRITS** For the **Supreme Court** to issue these **writs** under **Article 32**, certain conditions must be met: - **Existence of a Fundamental Right**: The petitioner must demonstrate that a **fundamental right** guaranteed by the Constitution has been violated. - **Locus Standi**: Traditionally, the petitioner should have a direct interest in the case. However, the **Supreme Court** has relaxed this requirement in **Public Interest Litigations (PILs)**, allowing individuals or groups to file petitions on behalf of others whose rights are infringed. - In **S.P. Gupta v. Union of India**, the court recognized the legitimacy of **PILs**. - **Absence of Alternative Remedy**: Generally, if an effective **alternative remedy** exists, the court may refuse to exercise its jurisdiction under **Article 32**. However, in cases of gross violation of **fundamental rights**, the **Supreme Court** may intervene directly. ## **PROCEDURE UNDER ARTICLE 32** The procedure for filing a petition under **Article 32** involves: 1. **Drafting the Petition**: Clearly stating the facts of the case, the specific **fundamental rights violated**, and the relief sought. 2. **Filing the Petition**: Submitting the petition to the **Supreme Court registry**, adhering to prescribed formats and court fees. 3. **Preliminary Hearing**: The court examines the petition to determine if a **prima facie** case exists. 4. **Notice to Respondents**: If the court admits the petition, it issues notices to the respondents, seeking their replies. 5. **Final Hearing**: The court hears arguments from both sides before delivering its judgment. ## **SIGNIFICANCE OF ARTICLE 32** **Article 32** holds immense significance in the **Indian legal system**: - **Guardian of Fundamental Rights**: It empowers the **Supreme Court** to act as the protector of citizens’ **fundamental rights**. - **Direct Access**: Allows individuals to approach the **highest court** directly without the need to go through lower courts, ensuring prompt redressal. - **Judicial Activism**: Facilitates the **Supreme Court’s** proactive role in upholding rights through instruments like **PILs**. ## **CASE LAWS ILLUSTRATING ARTICLE 32** 1. **Bandhua Mukti Morcha v. Union of India**: A landmark **PIL** where the **Supreme Court** addressed the issue of **bonded labor**, emphasizing that **Article 32** imposes a duty on the court to enforce **fundamental rights**. 2. **Vineet Narain v. Union of India**: The court, under **Article 32**, issued directions to ensure **fair investigation** in the Jain Hawala case, showcasing its role in ensuring accountability. **Categories:** Articles, Constitutional Law --- ### [Writ Jurisdiction of the Supreme Court](https://lawfoyer.in/writ-jurisdiction-of-the-supreme-court/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Supreme Court of India holds the authority to issue writs for enforcing fundamental rights, as enshrined in Article 32 of the Constitution. This provision empowers individuals to directly approach the Supreme Court when their fundamental rights are violated, ensuring immediate judicial intervention. **Content:** The Supreme Court of India holds the authority to issue writs for enforcing fundamental rights, as enshrined in **Article 32 of the Constitution**. This provision empowers individuals to directly approach the Supreme Court when their fundamental rights are violated, ensuring immediate judicial intervention. ### **MEANING AND DEFINITION** **Writ jurisdiction** refers to the Supreme Court’s power to issue specific orders, known as writs, to enforce fundamental rights. **Article 32(2) of the Indian Constitution** grants the Supreme Court the authority to issue directions, orders, or writs, including **habeas corpus**, **mandamus**, **prohibition**, **quo warranto**, and **certiorari**, for enforcing the rights conferred by **Part III of the Constitution**. ### **HISTORICAL BACKGROUND** The concept of writs in India traces its origins to **English common law**, where such orders were employed to ensure justice. The framers of the Indian Constitution incorporated these writs to provide a robust mechanism for protecting individual rights against state actions. **Dr. B.R. Ambedkar** emphasized the significance of **Article 32**, referring to it as the **“heart and soul” of the Constitution**, underscoring its pivotal role in safeguarding fundamental rights. ### **TYPES OF WRITS** 1. ***Habeas Corpus***: This writ commands that a person detained be brought before the court to examine the legality of the detention. It serves as a safeguard against unlawful confinement. In ***Sohanlal v. Union of India* (1957)**, the Supreme Court issued a writ of **habeas corpus**, ensuring the release of an individual unlawfully detained. 2. ***Mandamus***: Meaning **“we command,”** this writ directs a public authority to perform a duty it has failed to fulfill. In ***Sohanlal v. Union of India* (1957)**, the Supreme Court held that the writ of **mandamus** can be issued where a public servant has denied its jurisdiction, which it has under the law. 3. ***Prohibition***: This writ is issued by a superior court to prevent a lower court or tribunal from exceeding its jurisdiction. In ***S. Govinda Menon v. Union of India* (1967)**, the Supreme Court held that the writ of **prohibition** can be issued both when there is an **excess jurisdiction** and **absence of jurisdiction** by a lower court. 4. ***Certiorari***: Issued to quash the order of a lower court or tribunal that has acted beyond its jurisdiction or committed an error of law. In ***S. Govinda Menon v. Union of India* (1967)**, the Supreme Court quashed the order of a lower court that had exceeded its jurisdiction. 5. ***Quo Warranto***: This writ challenges the legality of a person’s claim to a public office. In ***University of Mysore v. C.D. Govinda Rao* (1965)**, the Supreme Court held that the writ of **quo warranto** can be issued only against an office of **‘substantive nature’**. ### **LEGAL PROVISIONS AND PROCEDURE** - **Article 32**: Empowers individuals to approach the Supreme Court directly for the enforcement of fundamental rights. The Court can issue appropriate writs to address violations. - **Article 226**: Grants High Courts the power to issue writs for enforcing fundamental rights **and for any other purpose**, providing a broader scope compared to **Article 32**. ### **PRINCIPLES AND DOCTRINES** - **Doctrine of Basic Structure**: Established in ***Kesavananda Bharati v. State of Kerala* (1973)**, this doctrine asserts that certain fundamental features of the Constitution cannot be altered by amendments, ensuring the preservation of its core principles. - **Locus Standi**: Traditionally, only the person whose rights are violated can approach the court. However, in cases of **habeas corpus**, the Court has relaxed this rule, allowing others to file petitions on behalf of the detained individual. ### **CASE LAWS AND PRECEDENTS** - ***Minerva Mills Ltd. v. Union of India* (1980)**: The Supreme Court applied and evolved the **basic structure doctrine**, reinforcing the limitations on Parliament’s power to amend the Constitution. - ***Suganmal v. State of M.P.* (1965)**: The Supreme Court clarified that if an alternative legal remedy is available, the writ of **mandamus** cannot be invoked. ### **COMPARISON WITH HIGH COURTS’ WRIT JURISDICTION** While both the Supreme Court and High Courts can issue writs, their jurisdictions differ: - **Supreme Court (Article 32)**: Can issue writs only for the enforcement of **fundamental rights**. - **High Courts (Article 226)**: Can issue writs for enforcing **fundamental rights and for any other purpose**, providing a wider ambit. ### **ESSENTIALS FOR ISSUANCE OF WRITS** - **Existence of a Legal Right**: The petitioner must demonstrate the violation of a legal right. - **Absence of Alternative Remedy**: Generally, writs are not issued if an effective alternative remedy exists, except in cases where the alternative remedy is inadequate or involves a lengthy process. ### **GUIDELINES AND LIMITATIONS** - **Discretionary Power**: The issuance of writs is at the discretion of the Court, based on the merits of each case. - **Non-interference in Policy Matters**: Courts typically refrain from issuing writs in matters involving policy decisions unless there is a clear violation of fundamental rights. ### **CONCLUSION** The writ jurisdiction of the Supreme Court is a cornerstone for the enforcement of **fundamental rights**, ensuring justice and protecting citizens against the abuse of state power. The interplay between **Article 32** and **Article 226** enhances the accessibility of judicial remedies, strengthening the constitutional framework for safeguarding rights. **Categories:** Articles, Constitutional Law --- ### [Writ Jurisdiction of High Courts: Article 226](https://lawfoyer.in/writ-jurisdiction-of-high-courts-article-226/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** Article 226 of the Indian Constitution empowers High Courts to issue writs for enforcing fundamental and other legal rights. This provision ensures judicial oversight over administrative actions, safeguarding citizens' rights. **Content:** **Article 226** of the Indian Constitution empowers High Courts to issue **writs** for enforcing **fundamental** and other **legal rights**. This provision ensures judicial oversight over administrative actions, safeguarding citizens’ rights. ### **MEANING AND SCOPE OF ARTICLE 226** **Article 226** grants High Courts the authority to issue **directions**, **orders**, or **writs**, including **habeas corpus**, **mandamus**, **prohibition**, **quo warranto**, and **certiorari**, to any person or authority within their **territorial jurisdiction**. This power extends beyond the enforcement of **fundamental rights**, encompassing other **legal rights** as well. ### **HISTORICAL BACKGROUND** The origin of **writ jurisdiction** in India traces back to **British colonial rule**, particularly the **Indian High Courts Act of 1861**, which established High Courts in **Calcutta**, **Bombay**, and **Madras** with the authority to issue **writs**. This framework was further refined in the **Government of India Act of 1935** and eventually incorporated into the **Indian Constitution** as **Article 226**. ### **TYPES OF WRITS UNDER ARTICLE 226** 1. ***Habeas Corpus***: Aimed at releasing a person unlawfully detained, ensuring **personal liberty**. In ***Kanu Sanyal v. District Magistrate, Darjeeling***, the Supreme Court emphasized that the primary purpose of the writ is to ensure the release of a person from **illegal detention**. 2. ***Mandamus***: Commands a **public authority** to perform a duty it has failed to fulfill. In ***State of West Bengal v. Nuruddin***, the court issued a writ of **mandamus**, directing the state to consider the respondent’s application for a license, highlighting the writ’s role in compelling authorities to act. 3. ***Prohibition***: Restrains a subordinate court or tribunal from exceeding its jurisdiction. In ***East India Commercial Co. Ltd. v. Collector of Customs***, the Supreme Court issued a writ of **prohibition** against the Collector, preventing him from acting beyond his authority. 4. ***Certiorari***: Used to quash orders of authorities acting without or in excess of jurisdiction. In ***Hari Vishnu Kamath v. Ahmad Ishaque***, the Supreme Court quashed an **election tribunal’s order**, illustrating the application of **certiorari**. 5. ***Quo Warranto***: Challenges the legality of a person’s claim to a **public office**. In ***University of Mysore v. Govinda Rao***, the Supreme Court examined the validity of an appointment to a university chair, demonstrating the use of **quo warranto**. ### **COMPARISON WITH ARTICLE 32** While both **Articles 32** and **226** empower courts to issue **writs**, **Article 32** is confined to the enforcement of **fundamental rights** and is available only in the **Supreme Court**. In contrast, **Article 226** has a broader scope, allowing **High Courts** to address violations of **fundamental** as well as **other legal rights**. ### **TERRITORIAL JURISDICTION** **Article 226(2)** extends the jurisdiction of High Courts to cases where the **cause of action** arises, wholly or partly, within their **territorial limits**, even if the authority or person against whom the writ is issued is located **outside**. This provision ensures **flexibility** in addressing grievances. ### **PRINCIPLES GOVERNING WRIT JURISDICTION** - ***Locus Standi***: Traditionally, the petitioner must have a **direct interest** in the case. However, **Public Interest Litigations (PILs)** have relaxed this requirement, allowing broader access to justice. - ***Alternative Remedy***: Generally, writs are not issued if an effective **alternative remedy** exists. However, in cases involving **fundamental rights violations**, this rule may be relaxed. - ***Delay and Laches***: Petitions should be filed without **unreasonable delay**. Courts may deny relief if the petitioner is found guilty of **undue delay**. ### **LANDMARK CASE LAWS** - ***L. Chandra Kumar v. Union of India (1997)***: The Supreme Court affirmed that the power of **judicial review** vested in **High Courts** under **Article 226** is part of the **basic structure** of the Constitution and cannot be curtailed. - ***Bandhua Mukti Morcha v. Union of India (1984)***: The court expanded the scope of **Article 226** by entertaining a **PIL** for the release of **bonded laborers**, emphasizing the role of writ jurisdiction in **social justice**. ### **LIMITATIONS AND SELF-IMPOSED RESTRICTIONS** **High Courts** exercise writ jurisdiction with caution, refraining from interfering in matters involving: - **Highly disputed facts**, - **Contractual obligations**, or - Cases where **efficacious alternative remedies** are available. This **judicial restraint** ensures that writ jurisdiction is invoked appropriately. ### **CONCLUSION** **Article 226** serves as a vital tool for upholding the **rule of law** in India. Its broad scope and the discretionary power vested in **High Courts** ensure the protection of **citizens’ rights** against **administrative excesses**, reinforcing the judiciary’s role as a **guardian** of **constitutional** and **legal rights**. ### **REFERENCES** 1. ***Kanu Sanyal v. District Magistrate, Darjeeling***, AIR 1973 SC 2684. 2. ***State of West Bengal v. Nuruddin***, AIR 1998 SC 394. 3. ***East India Commercial Co. Ltd. v. Collector of Customs***, AIR 1962 SC 1893. 4. ***Hari Vishnu Kamath v. Ahmad Ishaque***, AIR 1955 SC 233. 5. ***University of Mysore v. Govinda Rao***, AIR 1965 SC 491. 6. ***L. Chandra Kumar v. Union of India***, AIR 1997 SC 1125. 7. ***Bandhua Mukti Morcha v. Union of India***, AIR 1984 SC 802. **Categories:** Articles, Constitutional Law --- ### [Judicial Review in India](https://lawfoyer.in/judicial-review-in-india/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** Judicial review in India empowers the judiciary to assess the constitutionality of legislative and executive actions, ensuring adherence to the Constitution. This mechanism upholds the rule of law and safeguards citizens' rights. **Content:** Judicial review in India empowers the judiciary to assess the constitutionality of legislative and executive actions, ensuring adherence to the Constitution. This mechanism upholds the rule of law and safeguards citizens’ rights. ## **MEANING AND DEFINITION** **Judicial review** refers to the judiciary’s authority to examine and invalidate governmental actions that contravene the Constitution. It ensures that all branches of government operate within their constitutional limits, maintaining the supremacy of the Constitution. ## **HISTORICAL EVOLUTION** The concept of judicial review in India has evolved through several landmark judgments: - **Shankari Prasad v. Union of India (1951)**: The **Supreme Court** upheld the constitutionality of the **First Amendment**, stating that **Parliament’s power to amend the Constitution under Article 368** includes the authority to amend **fundamental rights**. - **Golaknath v. State of Punjab (1967)**: The **Court** reversed its earlier stance, ruling that **Parliament** could not amend **fundamental rights**, emphasizing their sacrosanct nature. - **Kesavananda Bharati v. State of Kerala (1973)**: This landmark judgment introduced the **‘Basic Structure Doctrine,’** asserting that while **Parliament** can amend the Constitution, it cannot alter its **basic structure**. - **Minerva Mills Ltd. v. Union of India (1980)**: The **Court** reinforced the **Basic Structure Doctrine**, striking down amendments that sought to curtail **judicial review**, thereby preserving the balance between **fundamental rights** and **directive principles**. ## **CONSTITUTIONAL PROVISIONS** Several articles in the **Indian Constitution** provide a foundation for judicial review: - **Article 13**: Declares that **laws inconsistent with fundamental rights** are void. - **Article 32**: Grants individuals the **right to approach the Supreme Court** for enforcement of **fundamental rights**. - **Article 226**: Empowers **High Courts** to issue **writs** for enforcement of rights. - **Article 131**: Provides the **Supreme Court** with **original jurisdiction** in disputes between states or between the center and states. - **Article 136**: Allows the **Supreme Court** to grant **special leave to appeal** against any judgment or order. - **Article 143**: Enables the **President** to seek the **Supreme Court’s opinion** on questions of law or fact. ## **TYPES OF JUDICIAL REVIEW** Judicial review in India can be categorized into three types: 1. **Judicial Review of Constitutional Amendments**: Ensures that amendments do not alter the Constitution’s **basic structure**. 2. **Judicial Review of Legislation**: Examines the validity of legislative enactments concerning **fundamental rights** and the **distribution of powers**. 3. **Judicial Review of Administrative Actions**: Assesses the **legality** and **reasonableness** of executive decisions and actions. ## **PRINCIPLES AND DOCTRINES** Several legal principles underpin judicial review in India: - **Doctrine of Basic Structure**: Asserts that certain fundamental features of the Constitution cannot be altered by amendments. - **Doctrine of Eclipse**: States that **laws inconsistent with fundamental rights** are not **void ab initio** but become unenforceable; they can revive if the constitutional prohibition is removed. - **Doctrine of Severability**: Allows **invalid portions of a statute** to be severed, preserving the remainder if it can stand independently. - **Doctrine of Prospective Overruling**: Enables the **Court** to limit the retroactive effect of its decisions, applying them **prospectively** to avoid disruption. ## **LANDMARK CASE LAWS** Several judgments have shaped the contours of judicial review in India: - **Indira Nehru Gandhi v. Raj Narain (1975)**: The **Supreme Court** invalidated a constitutional amendment that sought to immunize the election of the **Prime Minister** from judicial scrutiny, reinforcing the principle of **free and fair elections** as part of the **basic structure**. - **S.R. Bommai v. Union of India (1994)**: The **Court** held that the proclamation of **President’s Rule under Article 356** is subject to judicial review, preventing its misuse for political purposes. - **I.R. Coelho v. State of Tamil Nadu (2007)**: The **Supreme Court** ruled that **laws placed in the Ninth Schedule** after the **Kesavananda Bharati judgment** are open to judicial review if they violate **fundamental rights** or the **basic structure**. ## **MAXIMS AND LEGAL PRINCIPLES** Certain legal maxims are pertinent to judicial review: - **“Ubi jus ibi remedium”**: Where there is a right, there is a remedy; underscores the judiciary’s role in enforcing rights. - **“Lex iniusta non est lex”**: An unjust law is no law at all; justifies the invalidation of unconstitutional laws. ## **COMPARISON WITH OTHER COUNTRIES** While judicial review exists in various countries, its scope and application differ: - **United States**: **Judicial review** was established through **Marbury v. Madison (1803)**, allowing courts to strike down unconstitutional laws. - **United Kingdom**: **Parliamentary sovereignty** limits judicial review; courts cannot invalidate **primary legislation** but can review **administrative actions**. - **India**: Combines aspects of both systems, with courts empowered to review **legislation**, **executive actions**, and **constitutional amendments**, ensuring they adhere to the Constitution’s **basic structure**. ## **CRITICISM AND CHALLENGES** Despite its significance, judicial review in India faces criticism: - **Judicial Activism**: Concerns arise when **courts** are perceived to overstep their mandate, encroaching upon **legislative** or **executive functions**. - **Delay in Justice**: Judicial backlog can impede timely review, affecting the efficacy of **justice delivery**. - **Subjectivity**: Interpretation of the **‘basic structure’** can be subjective. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Basic Structure](https://lawfoyer.in/doctrine-of-basic-structure/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Basic Structure is a judicial principle in Indian constitutional law that restricts Parliament's power to amend the Constitution, ensuring that its fundamental features remain unaltered. This doctrine maintains the Constitution's core values, preventing any amendments that could undermine its essential framework. **Content:** The **Doctrine of Basic Structure** is a judicial principle in Indian constitutional law that restricts Parliament’s power to amend the Constitution, ensuring that its fundamental features remain unaltered. This doctrine maintains the Constitution’s core values, preventing any amendments that could undermine its essential framework. ### **MEANING AND EXPLANATION** The **Basic Structure Doctrine** asserts that while Parliament holds the authority to amend the Constitution under **Article 368**, it cannot alter or destroy its fundamental features. This ensures the preservation of the Constitution’s core principles, such as the **supremacy of the Constitution**, the **rule of law**, and the **separation of powers**. The Supreme Court introduced this doctrine in the landmark case of ***Kesavananda Bharati v. State of Kerala***, **AIR 1973 SC 1461**, establishing that certain constitutional elements are beyond the scope of parliamentary amendment. ### **HISTORICAL BACKGROUND AND EVOLUTION** The evolution of the **Basic Structure Doctrine** can be traced through several landmark judgments: 1. ***Shankari Prasad v. Union of India (1951)***: The Supreme Court upheld the **First Amendment**, stating that Parliament’s amending power under **Article 368** includes the authority to amend **fundamental rights**. 2. ***Sajjan Singh v. State of Rajasthan (1965)***: The Court reaffirmed its stance from *Shankari Prasad*, allowing amendments to **fundamental rights**. 3. ***Golaknath v. State of Punjab (1967)***: Reversing its earlier position, the Supreme Court ruled that Parliament could not amend **fundamental rights**, emphasizing their inviolability. 4. ***Kesavananda Bharati v. State of Kerala (1973)***: This landmark judgment introduced the **Basic Structure Doctrine**, allowing Parliament to amend the Constitution without altering its essential framework. 5. ***Indira Nehru Gandhi v. Raj Narain (1975)***: The Supreme Court applied the **Basic Structure Doctrine** to invalidate clauses that sought to curtail **judicial review**, reinforcing the doctrine’s significance. 6. ***Minerva Mills Ltd. v. Union of India (1980)***: The Court struck down provisions of the **42nd Amendment**, emphasizing that a limited amending power is a basic feature of the Constitution. 7. ***Waman Rao v. Union of India (1981)***: The Supreme Court reaffirmed the **Basic Structure Doctrine**, stating that amendments made after the *Kesavananda Bharati* case would be subject to judicial review. 8. ***I.R. Coelho v. State of Tamil Nadu (2007)***: The Court held that laws placed under the **Ninth Schedule** after the *Kesavananda Bharati* decision are open to judicial review if they violate the **basic structure**. ### **KEY FEATURES OF THE BASIC STRUCTURE** While the Supreme Court has not provided an exhaustive list, several features have been recognized as part of the Constitution’s **basic structure**: - **Supremacy of the Constitution**: The Constitution is the supreme law, and all laws and amendments must conform to its provisions. - **Rule of Law**: Every individual and institution is subject to the law, ensuring fairness and justice. - **Separation of Powers**: The division of governance among the legislature, executive, and judiciary prevents the concentration of power. - **Judicial Review**: The judiciary’s power to review and invalidate unconstitutional laws and amendments. - **Federalism**: The distribution of power between the central government and states, maintaining a balance. - **Secularism**: The state’s impartiality towards all religions, ensuring religious freedom and equality. - **Democracy**: A system of government by the people, ensuring representation and participation. ### **LEGAL PROVISIONS AND JUDICIAL INTERPRETATIONS** **Article 368** of the Indian Constitution grants Parliament the power to amend the Constitution. However, the **Basic Structure Doctrine** imposes implicit limitations on this power. The Supreme Court, through various judgments, has interpreted these limitations to preserve the Constitution’s core principles. For instance, in the ***Minerva Mills*** case, the Court held that the power to amend does not include the power to destroy the Constitution’s **basic structure**. ### **SIGNIFICANCE OF THE DOCTRINE** The **Basic Structure Doctrine** serves as a safeguard against potential misuse of parliamentary power, ensuring that amendments do not alter the Constitution’s fundamental essence. It maintains the balance between **flexibility** and **rigidity**, allowing for necessary changes without compromising core principles. This doctrine upholds the **supremacy of the Constitution** and protects **democratic values**, **fundamental rights**, and the **rule of law**. ### **CRITICISM AND DEBATES** Despite its significance, the **Basic Structure Doctrine** has faced criticism: - **Lack of Clear Definition**: The absence of a definitive list of basic features leads to ambiguity and judicial discretion. - **Judicial Overreach**: Critics argue that the doctrine grants the judiciary excessive power over constitutional amendments, potentially undermining parliamentary sovereignty. - **Subjectivity**: Determining what constitutes the **basic structure** can be subjective, leading to inconsistent interpretations. ### **CONCLUSION** The **Doctrine of Basic Structure** is a cornerstone of Indian constitutional law, ensuring that the Constitution’s fundamental principles remain intact. Through various landmark judgments, the judiciary has reinforced this doctrine, balancing the need for constitutional amendments with the preservation of core values. For Indian law students, understanding this doctrine is crucial, as it highlights the dynamic interplay between constitutional flexibility and rigidity, and the role of the judiciary in upholding the Constitution’s sanctity. ### **REFERENCES** 1. ***Kesavananda Bharati v. State of Kerala***, **AIR 1973 SC 1461**. 2. ***Shankari Prasad v. Union of India***, **AIR 1951 SC 458**. 3. ***Sajjan Singh v. State of Rajasthan***, **AIR 1965 SC 845**. 4. ***Golaknath v. State of Punjab***, **AIR 1967 SC 1643**. 5. ***Indira Nehru Gandhi v. Raj Narain***, **AIR 1975 SC 2299**. **Categories:** Articles, Constitutional Law --- ### [Separation of Powers in the Indian Constitution](https://lawfoyer.in/separation-of-powers-in-the-indian-constitution/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Indian Constitution implicitly embodies the doctrine of separation of powers among the legislative, executive, and judicial branches, ensuring a system of checks and balances essential for democratic governance. **Content:** The Indian Constitution implicitly embodies the doctrine of **separation of powers** among the legislative, executive, and judicial branches, ensuring a system of **checks and balances** essential for democratic governance. ### **MEANING AND EXPLANATION** The doctrine of **separation of powers** divides governmental responsibilities into distinct branches to prevent the concentration of power and provide checks and balances. In India, while the Constitution does not explicitly mention this doctrine, it delineates functions among: - **Legislature**: *Responsible for enacting laws.* - **Executive**: *Tasked with implementing laws.* - **Judiciary**: *Entrusted with interpreting laws and adjudicating disputes.* This framework ensures that no single branch oversteps its bounds, maintaining the **rule of law** and protecting **individual liberties**. ### **HISTORICAL EVOLUTION** The concept traces back to ancient thinkers like **Aristotle**, who identified three governmental functions: deliberative, magisterial, and judicial. In the 18th century, **Montesquieu’s ‘The Spirit of the Laws’** articulated the modern form of this doctrine, emphasizing the need for separate branches to prevent tyranny. The framers of the Indian Constitution, influenced by these ideas, incorporated a **functional separation** to suit India’s **parliamentary system**. ### **CONSTITUTIONAL PROVISIONS** While the Indian Constitution does not explicitly state the **separation of powers**, several articles imply this doctrine: - **Article 50**: *Directs the state to separate the judiciary from the executive in public services.* - **Articles 121 and 211**: *Prohibit legislative discussions on judicial conduct, reinforcing judicial independence.* - **Articles 122 and 212**: *Restrict judicial intervention in parliamentary proceedings, ensuring legislative autonomy.* ### **JUDICIAL INTERPRETATION AND LANDMARK CASES** The Indian judiciary has played a pivotal role in defining and enforcing the **separation of powers** through various landmark judgments: 1. **In Re Delhi Laws Act Case (1951)**: *The Supreme Court observed that while the Constitution does not explicitly enshrine the doctrine, it provides for a functional separation among the branches.* 2. **Kesavananda Bharati v. State of Kerala (1973)**: *This landmark case established the ‘basic structure’ doctrine, asserting that Parliament cannot alter the Constitution’s fundamental framework, including the separation of powers.* 3. **Indira Nehru Gandhi v. Raj Narain (1975)**: *The Court held that the separation of powers is an integral part of the Constitution’s basic structure, immune to parliamentary amendment.* 4. **Minerva Mills Ltd. v. Union of India (1980)**: *The Supreme Court reinforced that a balance between Parts III and IV of the Constitution is essential, and any amendment destroying this balance violates the basic structure.* ### **CHECKS AND BALANCES** The Indian system incorporates mechanisms where each branch can check the others, ensuring no single entity wields unchecked power: - **Judicial Review**: *Courts can invalidate unconstitutional legislative and executive actions.* - **Legislative Oversight**: *Parliament supervises the executive through questions, debates, and committees.* - **Executive’s Legislative Role**: *The President can promulgate ordinances when Parliament is not in session, though these require subsequent legislative approval.* ### **EXCEPTIONS AND OVERLAPS** Despite the separation, certain overlaps exist to ensure coordinated governance: - **Ordinance-Making Power**: *The executive can legislate temporarily through ordinances under Article 123.* - **Judicial Appointments**: *The executive participates in appointing judges, though the judiciary has a significant say, especially post the collegium system’s establishment.* - **Delegated Legislation**: *The legislature delegates certain law-making powers to the executive for efficiency and expertise.* ### **DOCTRINE OF SEPARATION OF POWERS: GLOBAL AND INDIAN PERSPECTIVE** The **separation of powers** is a fundamental principle in democratic governance, ensuring that the legislative, executive, and judicial branches operate independently to prevent the concentration of authority. Globally, this doctrine has been interpreted and implemented in various ways, influenced by historical, cultural, and political contexts. #### **GLOBAL PERSPECTIVE** In the **United States**, the Constitution explicitly delineates the powers of the three branches, establishing a system of **checks and balances**. This clear separation aims to prevent any single branch from becoming too powerful. Similarly, in **France**, the doctrine is integral to the Fifth Republic’s Constitution, with a distinct separation between the executive and legislative branches. However, the degree of separation varies; for instance, the **United Kingdom** follows a more flexible approach due to its parliamentary system, where the executive is part of the legislature. #### **INDIAN PERSPECTIVE** The Indian Constitution does not explicitly mention the **separation of powers** but embodies the doctrine through its structure and provisions. Articles such as **Article 50**, which directs the state to separate the judiciary from the executive, and **Articles 121 and 211**, which restrict legislative discussions on judicial conduct, reflect this principle. The judiciary, through landmark judgments like **Kesavananda Bharati v. State of Kerala**, has reinforced the doctrine by identifying it as part of the Constitution’s basic structure. ### **COMPARISON WITH OTHER COUNTRIES** While the **separation of powers** is a common feature in many democracies, its application differs: - **United States**: *Exhibits a rigid separation with a presidential system, where the President (executive) is separate from Congress (legislature).* - **United Kingdom**: *Features a flexible separation within a parliamentary system, with the Prime Minister and Cabinet drawn from Parliament.* - **France**: *Maintains a semi-presidential system with a clearer separation between the executive and legislature compared to the UK.* **Categories:** Articles, Constitutional Law --- ### [Federalism in India: Unitary and Cooperative Features](https://lawfoyer.in/federalism-in-india-unitary-and-cooperative-features/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** India's federal structure uniquely blends unitary and cooperative elements, balancing centralized authority with regional autonomy. This design ensures national unity while accommodating the country's vast diversity. **Content:** India’s federal structure uniquely blends unitary and cooperative elements, balancing centralized authority with regional autonomy. This design ensures national unity while accommodating the country’s vast diversity. ### **MEANING AND DEFINITION** **Federalism** denotes a governance system where two levels of government operate within their jurisdictions, directly governing the people. The **Indian Constitution** establishes a federal structure with a strong centralizing tendency, often termed **“quasi-federal”** or **“cooperative federalism.”** **Article 1** describes India as a **“Union of States,”** indicating an indestructible union with destructible states. ### **HISTORICAL EVOLUTION** The **Government of India Act 1935** introduced a federal framework, dividing powers between the center and provinces. Post-independence, the framers of the Constitution adopted a federal structure with **unitary features** to maintain unity and integrity. **Dr. B.R. Ambedkar** emphasized that while India is a federation, it has a **unitary bias** to address emergencies and ensure national cohesion. ### **FEDERAL FEATURES OF THE INDIAN CONSTITUTION** - ***Dual Polity***: The Constitution establishes a dual polity, comprising the **Union** and the **States**, each endowed with sovereign powers in their respective domains. - ***Written Constitution***: India’s Constitution is a single, written document that delineates the structure, powers, and functions of both the Union and State governments. - ***Division of Powers***: The **Seventh Schedule** of the Constitution specifies the distribution of legislative powers between the Union and the States through three lists: - **Union List**: Subjects of national importance, such as **defense**, **foreign affairs**, and **atomic energy**, fall under the exclusive legislative domain of the Parliament. - **State List**: Matters of regional and local significance, including **police**, **public health**, and **agriculture**, are under the exclusive legislative jurisdiction of State legislatures. - **Concurrent List**: Subjects like **education**, **marriage**, and **bankruptcy** are within the purview of both the Parliament and State legislatures. In case of a conflict between Union and State laws on a concurrent subject, the **Union law prevails**. - ***Supremacy of the Constitution***: The **Constitution** is the supreme law of the land, and both Union and State governments must operate within its framework. - ***Independent Judiciary***: An **independent judiciary**, headed by the **Supreme Court**, acts as the guardian of the Constitution and adjudicates disputes between the Union and the States. ### **UNITARY FEATURES OF THE INDIAN CONSTITUTION** - ***Strong Centre***: The **Union government** possesses more extensive powers compared to the States, particularly in matters of national importance. - ***Single Citizenship***: Unlike other federal countries, India provides for **single citizenship**, reinforcing the concept of unity. - ***Flexibility of the Constitution***: Certain provisions of the Constitution can be amended by the **Parliament alone**, without requiring the consent of the States, indicating a **unitary tilt**. - ***Emergency Provisions***: During a **national emergency**, the **Union government** can assume greater control over the States, centralizing power. - ***Appointment of Governors***: The **President** appoints **Governors** for each State, who act as representatives of the **Union government**, thereby ensuring central influence over State administration. ### **COOPERATIVE FEDERALISM IN INDIA** **Cooperative federalism** in India emphasizes collaboration between the Union and State governments to achieve common national goals. This approach fosters interdependence and mutual support, ensuring that policies and programs are effectively implemented across the country. ### **MECHANISMS PROMOTING COOPERATIVE FEDERALISM** - ***Inter-State Council***: Established under **Article 263**, the Inter-State Council facilitates coordination between the Union and State governments on matters of common interest. - ***Zonal Councils***: These statutory bodies promote interstate cooperation and coordination, addressing regional issues and fostering balanced development. - ***Finance Commission***: Constituted under **Article 280**, the Finance Commission recommends the distribution of financial resources between the Union and the States, ensuring **fiscal federalism**. - ***Goods and Services Tax (GST) Council***: The GST Council is a federal body where both the Union and State governments participate to decide on **GST rates**, ensuring uniformity in indirect taxation across the country. ### **JUDICIAL INTERPRETATIONS UPHOLDING FEDERALISM** The judiciary has played a pivotal role in interpreting the federal structure of the Constitution, ensuring a balance between unitary and federal features. - ***S.R. Bommai v. Union of India (1994)***: This landmark case curtailed the arbitrary imposition of **President’s Rule** under **Article 356**, reinforcing the federal structure. The **Supreme Court** held that the power under **Article 356** is an exceptional power and should be used sparingly. - ***State of West Bengal v. Union of India (1963)***: The **Supreme Court** held that the Indian Constitution is not truly federal. The case involved the **Union government’s** competence to acquire property belonging to the State of West Bengal. The Court ruled in favor of the **Union**, emphasizing the **unitary bias** of the Constitution. ### **EMERGENCY PROVISIONS AND THEIR IMPACT ON FEDERALISM** The Constitution’s **emergency provisions** (**Articles 352, 356, and 360**) allow the Union government to assume greater control during crises, impacting the federal balance. - ***Article 352***: Proclamation of **National Emergency** can alter the federal structure by empowering the Parliament to legislate on **State subjects**. - ***Article 356***: **President’s Rule** can be imposed if the constitutional machinery in a State fails, leading to the centralization of power. - ***Article 360***: **Financial Emergency** can be declared if the financial stability of India or any part thereof is threatened, allowing the Union to direct States on financial matters. ### **CONCLUSION** India’s federal structure is a complex amalgamation of **unitary and cooperative features**, designed to maintain national unity while accommodating regional diversity. The **Constitution** provides a flexible framework that allows for both centralization and decentralization as needed, ensuring the country’s integrity. **Categories:** Articles, Constitutional Law --- ### [Parliament: Composition and Functions](https://lawfoyer.in/parliament-composition-and-functions/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Parliament of India serves as the supreme legislative authority, embodying the democratic ethos of the nation. It comprises the President and two houses: the Rajya Sabha (Council of States) and the Lok Sabha (House of the People). This bicameral structure ensures representation at both national and regional levels, facilitating comprehensive governance. **Content:** The Parliament of India serves as the supreme legislative authority, embodying the democratic ethos of the nation. It comprises the **President** and two houses: the **Rajya Sabha (Council of States)** and the **Lok Sabha (House of the People)**. This bicameral structure ensures representation at both national and regional levels, facilitating comprehensive governance. ### **COMPOSITION OF THE INDIAN PARLIAMENT** 1. **PRESIDENT OF INDIA**: An integral part of Parliament, the **President’s duties** include summoning and proroguing sessions, and giving assent to **bills**, which is essential for them to become **law**. 2. **RAJYA SABHA (COUNCIL OF STATES)**: - ***Membership***: The Rajya Sabha can have up to **250 members**. Currently, it comprises **245 members**: **233 elected by state and union territory legislatures**, and **12 nominated by the President** for their expertise in fields like literature, science, art, and social service. - ***Tenure***: Members serve staggered six-year terms, with **one-third retiring every two years**, ensuring continuity. - ***Election Process***: Elected members are chosen by the **elected members of State Legislative Assemblies** through a **proportional representation system** using a **single transferable vote**. 3. **LOK SABHA (HOUSE OF THE PEOPLE)**: - ***Membership***: The Lok Sabha can have up to **552 members**. Presently, it has **543 members** directly elected from territorial constituencies across India. - ***Tenure***: Members serve five-year terms unless the house is dissolved sooner. - ***Election Process***: Members are elected based on **universal adult suffrage** through a **first-past-the-post system**. ### **FUNCTIONS OF THE INDIAN PARLIAMENT** 1. **LEGISLATIVE FUNCTIONS**: - ***Law-Making***: Parliament enacts **laws** on subjects enumerated in the **Union** and **Concurrent Lists** of the **Constitution**. In certain situations, it can also legislate on **State List** subjects. - ***Amendments***: It possesses the authority to amend the **Constitution**, adhering to the procedures outlined in **Article 368**. 2. **EXECUTIVE OVERSIGHT**: - ***Question Hour and Debates***: Members question ministers and engage in debates to scrutinize **government policies** and actions. - ***No-Confidence Motion***: The Lok Sabha can express a lack of confidence in the **Council of Ministers**, potentially leading to its resignation. 3. **FINANCIAL FUNCTIONS**: - ***Budget Approval***: The **Union Budget** is presented in the Lok Sabha, requiring **parliamentary approval** for government expenditure. - ***Money Bills***: Such bills must originate in the Lok Sabha. The Rajya Sabha can suggest amendments but lacks the power to reject or amend them decisively. 4. **JUDICIAL FUNCTIONS**: - ***Impeachment***: Parliament can impeach the **President** for constitutional violations. Additionally, it can remove **judges of the Supreme Court and High Courts** on grounds of proven misbehavior or incapacity. 5. **ELECTORAL FUNCTIONS**: - ***Elections***: Members of Parliament participate in the elections of the **President** and **Vice-President**. ### **KEY DOCTRINES AND PRINCIPLES RELATED TO PARLIAMENT** 1. **DOCTRINE OF PARLIAMENTARY SOVEREIGNTY**: While Parliament holds extensive legislative powers, its sovereignty is subject to the **Constitution’s provisions** and the judiciary’s power of **judicial review**. 2. **DOCTRINE OF BASIC STRUCTURE**: Established in ***Kesavananda Bharati v. State of Kerala***, **AIR 1973 SC 1461**, this doctrine asserts that **Parliament cannot alter the Constitution’s basic structure**, even through amendments. ### **NOTABLE CASE LAWS INVOLVING PARLIAMENTARY FUNCTIONS** 1. ***Kesavananda Bharati v. State of Kerala***, **AIR 1973 SC 1461**: - **Facts**: Swami Kesavananda Bharati challenged the Kerala government’s attempts, under state **land reform laws**, to impose restrictions on the management of his religious property. - **Issue**: Whether Parliament’s power to amend the Constitution is unlimited. - **Held**: The **Supreme Court** ruled that while Parliament can amend the **Constitution**, it cannot alter its **basic structure**. 2. ***Indira Nehru Gandhi v. Raj Narain***, **AIR 1975 SC 2299**: - **Facts**: The validity of Prime Minister **Indira Gandhi’s election** was challenged on grounds of **electoral malpractices**. - **Issue**: Whether Parliament could pass a **law** that has the effect of nullifying judicial decisions. - **Held**: The **Supreme Court** invalidated the **39th Constitutional Amendment**, emphasizing that **Parliament cannot exercise unchecked power**, especially in matters affecting the judiciary’s role. ### **PROCEDURES IN PARLIAMENT** 1. **LEGISLATIVE PROCEDURE**: - ***Introduction of Bills***: **Bills** can be introduced in either house, except **Money Bills**, which must originate in the Lok Sabha. - ***Three Readings***: Each **bill** undergoes three readings in each house—**introduction**, **consideration**, and **passage**. - ***Joint Sitting***: In case of a **deadlock** between the two houses, a **joint sitting** may be convened to deliberate and vote on the **bill**. 2. **FINANCIAL PROCEDURE**: - ***Annual Financial Statement***: The **Budget** is presented annually, detailing the **government’s estimated revenue and expenditure**. **Categories:** Articles, Constitutional Law --- ### [State Legislatures: Composition and Functions](https://lawfoyer.in/state-legislatures-composition-and-functions/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** State legislatures in India are pivotal in the federal structure, responsible for law-making and governance at the state level. Their composition and functions are delineated in Part VI of the Indian Constitution, encompassing Articles 168 to 212. **Content:** State legislatures in India are pivotal in the federal structure, responsible for law-making and governance at the state level. Their composition and functions are delineated in **Part VI** of the **Indian Constitution**, encompassing **Articles 168 to 212**. **COMPOSITION OF STATE LEGISLATURES** The composition of state legislatures varies between unicameral and bicameral systems: - ***Unicameral Legislature***: Comprises the **Governor** and a single legislative body, the **Legislative Assembly (Vidhan Sabha)**. Most Indian states, such as **Gujarat** and **Punjab**, follow this model. - ***Bicameral Legislature***: Includes the **Governor**, **Legislative Assembly (Vidhan Sabha)**, and **Legislative Council (Vidhan Parishad)**. States like **Bihar**, **Karnataka**, and **Uttar Pradesh** have this structure. **LEGISLATIVE ASSEMBLY (VIDHAN SABHA)** - ***Composition***: Members are directly elected from territorial constituencies. The Assembly’s size ranges from a minimum of **60** to a maximum of **500** members, though exceptions exist for smaller states like **Sikkim** and **Goa**. - ***Tenure***: The Assembly’s term is **five years**, unless dissolved earlier. During a **national emergency**, **Parliament** may extend this term by up to one year at a time. **LEGISLATIVE COUNCIL (VIDHAN PARISHAD)** - ***Composition***: A permanent body with staggered terms, ensuring one-third of members retire every two years. The Council’s size cannot exceed one-third of the Legislative Assembly’s membership and must have at least **40 members**. Members are elected through various constituencies, including **local authorities**, **graduates**, **teachers**, and **legislative assembly members**, with some nominated by the **Governor**. **CREATION AND ABOLITION OF LEGISLATIVE COUNCILS** **Article 169** empowers **Parliament** to create or abolish a state’s Legislative Council upon the Legislative Assembly’s resolution, passed by a special majority. This flexibility allows states to adapt their legislative structures based on administrative needs. **QUALIFICATIONS AND DISQUALIFICATIONS FOR MEMBERSHIP** - ***Qualifications***: A member must be an **Indian citizen**, a **voter in the state**, and at least **25 years old** for the Legislative Assembly or **30 years** for the Legislative Council. - ***Disqualifications***: Grounds include holding an **office of profit**, **unsound mind**, **undischarged insolvency**, or **defection** under the **Tenth Schedule**. **SESSIONS AND PROCEDURES** - ***Sessions***: The **Governor** summons sessions of the state legislature, ensuring it meets at least **twice a year**, with no more than **six months** between sessions. - ***Legislative Procedure***: Bills can be introduced in either house (except **Money Bills**, which originate in the **Legislative Assembly**). A bill becomes law after passing both houses and receiving the **Governor’s assent**. **POWERS AND FUNCTIONS OF STATE LEGISLATURES** 1. ***Legislative Functions***: - **State List**: Exclusive authority to legislate on subjects like **police**, **public health**, and **agriculture**. - **Concurrent List**: Shared authority with **Parliament** on subjects like **education** and **marriage**. In case of conflict, central law prevails. 2. ***Financial Powers***: - **Money Bills**: Can only originate in the **Legislative Assembly**. The **Council** can recommend amendments within **14 days**, but the Assembly may accept or reject them. - **Budget Approval**: State legislatures approve the **annual financial statement**, sanctioning government expenditure and taxation. 3. ***Electoral Functions***: - **Rajya Sabha Elections**: **Legislative Assembly members** elect representatives to the **Rajya Sabha**. - **Presidential Elections**: State legislators participate in electing the **President of India**. 4. ***Constitutional Amendments***: - Certain amendments require ratification by at least half of the **state legislatures**, ensuring federal balance. 5. ***Judicial Functions***: - **Impeachment**: State legislatures can initiate proceedings for the removal of judges of the **High Court**. 6. ***Other Functions***: - **Control over Executive**: Through **questions**, **debates**, and **motions**, the legislature holds the executive accountable. - **Privileges**: Members enjoy certain privileges, including **freedom of speech** within the house and **immunity** from legal proceedings for actions within the legislature. **CASE LAWS AND JUDICIAL INTERPRETATIONS** - **S.R. Bommai v. Union of India (1994)**: This landmark case clarified the use of **Article 356** (**President’s Rule**) and emphasized the importance of **floor tests** in the **Legislative Assembly** to determine majority support, reinforcing the autonomy of state legislatures. - **Kihoto Hollohan v. Zachillhu (1992)**: The **Supreme Court** upheld the constitutional validity of the **Tenth Schedule**, which deals with **anti-defection laws**, ensuring stability in the political structure. **Categories:** Articles, Constitutional Law --- ### [Executive Powers of the President](https://lawfoyer.in/executive-powers-of-the-president/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The President of India, as the ceremonial head of state, wields significant executive powers defined by the Constitution. These powers, exercised in accordance with constitutional provisions and judicial interpretations, are crucial for the nation's governance. **Content:** The President of India, as the ceremonial head of state, wields significant executive powers defined by the Constitution. These powers, exercised in accordance with **constitutional provisions** and **judicial interpretations**, are crucial for the nation’s governance. ### **MEANING, DEFINITION & EXPLANATION** **Article 53** of the Indian Constitution stipulates that the **executive power of the Union** is vested in the President, exercisable directly or through subordinate officers, in accordance with the Constitution. This encompasses the authority to implement laws, manage national affairs, and oversee the functioning of the central government. However, the President typically acts on the **aid and advice of the Council of Ministers**, led by the Prime Minister, as mandated by **Article 74(1)**. The **42nd Amendment (1976)** made it explicit that the President shall act in accordance with such advice, and the **44th Amendment (1978)** added that the President may require the Council of Ministers to reconsider such advice but must act in accordance with the advice tendered after such reconsideration. ### **HISTORICAL BACKGROUND / EVOLUTION** The framers of the Indian Constitution adopted the **parliamentary system** from Britain, designating the President as the constitutional head, akin to the British monarch. This structure ensures a balance between ceremonial duties and actual governance, which is conducted by the elected Council of Ministers. Over time, **constitutional amendments** and **judicial interpretations** have refined the President’s role, emphasizing the importance of acting on ministerial advice while retaining certain discretionary powers. ### **COMPARISON WITH OTHER COUNTRIES** In contrast to the Indian system, where the President’s role is largely ceremonial, countries like the **United States** vest substantial **executive authority** in the President, who serves as both the head of state and government. This **presidential system** centralizes executive power, differing from India’s **parliamentary framework** that separates the head of state from the head of government. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** The President’s executive powers encompass several key functions: - **Appointment Powers**: - **Appoints the Prime Minister** and, on their advice, other ministers. - Appoints **judges of the Supreme Court and High Courts**, **governors of states**, the **Attorney General**, and other key officials. - **Military Powers**: - Serves as the **Supreme Commander of the Armed Forces**, with the authority to declare war and conclude peace, subject to **parliamentary approval**. - **Diplomatic Powers**: - Represents India in **international forums**, appoints **ambassadors**, and receives foreign dignitaries. - **Ordinance-Making Power**: - Under **Article 123**, can promulgate ordinances when Parliament is not in session, which must be approved by Parliament within six weeks of reassembly. - **Emergency Powers**: - Can declare **national, state, and financial emergencies** under **Articles 352, 356, and 360**, respectively, with varying conditions and **parliamentary oversight**. ### **CASE LAWS / PRECEDENTS** - **Ram Jawaya Kapur v. State of Punjab (1955)**: - **Facts**: The Punjab government engaged in the business of printing and selling textbooks without legislative authorization. - **Issue**: Whether the executive could undertake trade without legislative sanction. - **Held**: The Supreme Court held that while the **executive power** is vested in the President, real authority is exercised by the **Council of Ministers**. The executive can undertake actions without prior legislative approval unless prohibited by law. - **S.R. Bommai v. Union of India (1994)**: - **Facts**: The central government dismissed several state governments under **Article 356**, citing failure of constitutional machinery. - **Issue**: The extent and justiciability of the President’s power under **Article 356**. - **Held**: The Supreme Court ruled that the President’s proclamation under **Article 356** is subject to **judicial review**. The Court can examine whether the material behind the proclamation is relevant and not based on extraneous grounds. This judgment curtailed the arbitrary use of **Article 356**, emphasizing **federalism** and the **democratic process**. - **Shamsher Singh v. State of Punjab (1974)**: - **Facts**: The appellant challenged the validity of disciplinary actions taken by the Punjab government, arguing they were not personally approved by the Governor. - **Issue**: Whether the Governor or President must personally exercise executive functions. - **Held**: The Supreme Court clarified that the **President and Governors** are constitutional heads and must act on the **aid and advice of their respective Councils of Ministers**, except in matters where discretion is granted by the Constitution. ### **DOCTRINES / THEORIES** - **Doctrine of Aid and Advice**: - This principle mandates that the President exercises executive powers based on the **aid and advice of the Council of Ministers**. The **42nd and 44th Constitutional Amendments** have reinforced this doctrine, ensuring **parliamentary supremacy** and **democratic governance**. - **Doctrine of Judicial Review**: - The **judiciary** holds the authority to review the President’s actions, especially concerning the **proclamation of emergencies**, to ensure they align with **constitutional provisions**. This serves as a check against potential misuse of executive powers. ### **MAXIMS / PRINCIPLES** - **“Nemo judex in causa sua”**: - Translates to **“no one should be a judge in their own cause.”** This principle underscores the importance of **unbiased decision-making**, relevant when the President acts on ministerial advice to prevent conflicts of interest. **Categories:** Articles, Constitutional Law --- ### [Executive Powers of the Governor](https://lawfoyer.in/executive-powers-of-the-governor/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Governor serves as the constitutional head of a state in India, embodying the state's executive authority. While the Governor's role is largely ceremonial, the Constitution of India entrusts the office with significant executive powers, primarily exercised on the advice of the Council of Ministers led by the Chief Minister. These powers are pivotal for the state's governance and administration. **Content:** The Governor serves as the constitutional head of a state in India, embodying the state’s executive authority. While the Governor’s role is largely ceremonial, the **Constitution of India** entrusts the office with significant executive powers, primarily exercised on the advice of the **Council of Ministers** led by the **Chief Minister**. These powers are pivotal for the state’s governance and administration. ## **MEANING, DEFINITION & EXPLANATION** The Governor’s executive powers encompass the authority to execute decisions, make appointments, and oversee the state’s administrative functions. As per **Article 154** of the Constitution, the executive power of the state is vested in the Governor and is exercised either directly or through officers subordinate to him, in accordance with the Constitution. This provision establishes the Governor as the nominal executive head, with real executive authority residing with the elected **Council of Ministers**. ## **HISTORICAL BACKGROUND / EVOLUTION** The role of the Governor in India has its roots in the colonial era, where Governors acted as representatives of the **British Crown**, wielding substantial authority. Post-independence, the framers of the **Constitution** retained the position, redefining it to fit the democratic framework. The Governor was envisioned as a constitutional head, ensuring the state’s governance aligns with constitutional provisions and acting as a liaison between the state and the central government. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** Several constitutional articles delineate the Governor’s executive powers: - **Article 154**: Vests the state’s executive power in the Governor. - **Article 155**: Provides for the appointment of the Governor by the President. - **Article 156**: Specifies the term of office and conditions under which the Governor holds office. - **Article 163**: Mandates that the Governor act on the aid and advice of the **Council of Ministers**, except in matters where discretion is permitted. - **Article 166**: Stipulates that all executive actions of the state government are to be taken in the Governor’s name and allows the Governor to make rules for the more convenient transaction of the business of the government. ## **POWERS AND FUNCTIONS OF THE GOVERNOR** 1. ***Appointment Powers***: - **Chief Minister**: The Governor appoints the Chief Minister, typically the leader of the majority party in the **Legislative Assembly**. In situations where no clear majority exists, the Governor’s discretion becomes crucial in appointing a candidate who can potentially command the Assembly’s confidence. This was evident in the case of ***Mahabir Prasad v. Prafulla Chandra***, where the Governor’s discretion in appointing the Chief Minister was upheld. - **Council of Ministers**: On the advice of the **Chief Minister**, the Governor appoints other ministers. The **Council of Ministers** is collectively responsible to the **Legislative Assembly**. - **Advocate General**: The Governor appoints the **Advocate General** for the state, who provides legal advice to the government. - **State Election Commissioner**: Responsible for overseeing municipal and panchayat elections, the **State Election Commissioner** is appointed by the Governor. - **Vice-Chancellors of State Universities**: The Governor, often designated as the **Chancellor** of state universities, appoints Vice-Chancellors, playing a pivotal role in higher education administration. 2. ***Administrative Powers***: - **Executive Actions**: All executive actions of the state are formally taken in the Governor’s name, as stipulated by **Article 166** of the Constitution. This includes issuing orders, notifications, and other official documents. - **Rule-Making Authority**: The Governor can make rules for the more convenient transaction of the business of the state government and for the allocation of such business among the ministers. - **Seeking Information**: The Governor has the right to be informed of all decisions of the **Council of Ministers** relating to the administration and proposals for legislation. 3. ***Discretionary Powers***: - **Reservation of Bills**: The Governor can reserve certain bills passed by the state legislature for the President’s consideration, especially if they conflict with the **Constitution** or the larger interests of the country. - **Dissolution of Legislative Assembly**: The Governor may dissolve the **Legislative Assembly** on the advice of the Chief Minister. However, in situations where the government loses majority support, the Governor’s discretion is pivotal in deciding whether to dissolve the Assembly or invite an alternative government formation. - **Report to the President**: Under **Article 356**, if the Governor believes that the state’s governance cannot be carried out per constitutional provisions, they can report to the President, potentially leading to **President’s Rule** in the state. The **Supreme Court**, in the ***S.R. Bommai v. Union of India*** case, emphasized that such reports are subject to judicial review to prevent misuse. ## **CASE LAWS / PRECEDENTS** - ***S.R. Bommai v. Union of India (1994)***: This landmark judgment curtailed the arbitrary dismissal of state governments under **Article 356**. The **Supreme Court** ruled that the imposition of **President’s Rule** is subject to judicial review, ensuring that the Governor’s report recommending such action must be based on relevant material and not on whims. - ***Rameshwar Prasad v. Union of India (2006)***: The Court invalidated the dissolution of the **Bihar Assembly**, stating that the Governor’s recommendation was based on extraneous considerations. This case underscored the principle that the Governor’s actions should align with constitutional morality and not be influenced by political biases. - ***Shamsher Singh v. State of Punjab (1974)***: The **Supreme Court** held that the Governor, like the President, is bound by the aid and advice of the **Council of Ministers**, except in situations where the **Constitution** explicitly provides for discretion. **Categories:** Articles, Constitutional Law --- ### [Judiciary: Supreme Court of India](https://lawfoyer.in/judiciary-supreme-court-of-india/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Supreme Court of India stands as the apex judicial authority, entrusted with upholding the Constitution and serving as the ultimate interpreter of law. Established on January 26, 1950, it functions as the guardian of fundamental rights and the final court of appeal. Its comprehensive jurisdiction encompasses original, appellate, and advisory capacities, ensuring the maintenance of constitutional order and the delivery of justice. **Content:** The Supreme Court of India stands as the **apex judicial authority**, entrusted with upholding the **Constitution** and serving as the ultimate interpreter of law. Established on **January 26, 1950**, it functions as the guardian of **fundamental rights** and the final court of appeal. Its comprehensive jurisdiction encompasses **original**, **appellate**, and **advisory** capacities, ensuring the maintenance of constitutional order and the delivery of justice. ## **MEANING, DEFINITION & EXPLANATION** The Supreme Court of India, as delineated in **Articles 124 to 147 of the Constitution**, is the highest judicial forum and final court of appeal. It holds the authority to adjudicate disputes between the **Union and states**, among **states**, and issues concerning the enforcement of **fundamental rights**. Its decisions are binding across all courts within the Indian territory. ## **HISTORICAL BACKGROUND / EVOLUTION** The evolution of the Supreme Court can be traced back to the British colonial era. The **Regulating Act of 1773** established the **Supreme Court of Judicature** at Fort William in **Calcutta**. Post-independence, the **Federal Court of India**, set up under the **Government of India Act 1935**, served as the apex court until the adoption of the Constitution in 1950, which led to the establishment of the present Supreme Court. ## **JURISDICTION OF THE SUPREME COURT** The Supreme Court’s jurisdiction is multifaceted: - ***Original Jurisdiction***: Under **Article 131**, the Court has exclusive authority to adjudicate disputes between the **Government of India** and one or more **states**, or between **states**. - ***Appellate Jurisdiction***: As per **Articles 132 to 136**, it hears appeals against judgments from lower courts in **civil**, **criminal**, and **constitutional matters**. - ***Advisory Jurisdiction***: **Article 143** empowers the **President** to seek the Court’s opinion on questions of law or fact of public importance. ## **COMPOSITION AND APPOINTMENT OF JUDGES** The Supreme Court comprises the **Chief Justice of India (CJI)** and a sanctioned strength of **33 other judges**. Judges are appointed by the **President**, following the procedure established in the **Constitution**, emphasizing judicial independence. ## **LANDMARK JUDGMENTS AND DOCTRINES** The Supreme Court has delivered several landmark judgments that have shaped Indian jurisprudence: - ***Kesavananda Bharati v. State of Kerala (1973)***: This case established the **‘Basic Structure Doctrine’**, asserting that **Parliament** cannot alter the fundamental framework of the Constitution. The Court held that while **Parliament** has wide powers to amend the Constitution, it cannot destroy its basic structure. - ***Minerva Mills Ltd. v. Union of India (1980)***: The Court reinforced the **Basic Structure Doctrine**, emphasizing that **social welfare laws** should not infringe upon **fundamental rights**. It declared certain amendments made by the **42nd Amendment Act** as null and void. - ***S. R. Bommai v. Union of India (1994)***: This judgment clarified the scope of the **President’s power** under **Article 356**, emphasizing that the imposition of **President’s Rule** is subject to **judicial review**. ## **LEGAL MAXIMS AND PRINCIPLES APPLIED** The Supreme Court frequently employs various legal maxims to elucidate legal principles: - ***Stare Decisis***: This principle mandates that courts are bound by their previous decisions, ensuring **consistency** and **predictability** in law. **Article 141 of the Constitution** embodies this principle, stating that the law declared by the Supreme Court shall be binding on all courts within India. - ***Actus Curiae Neminem Gravabit***: Meaning ‘an act of the court shall prejudice no one,’ this maxim ensures that judicial errors do not harm litigants. The Supreme Court has applied this principle to rectify mistakes made by the court to prevent injustice. ## **PROCEDURES AND FUNCTIONING** The Supreme Court operates under a well-defined procedural framework: - ***Filing of Petitions***: Litigants can approach the Court through various petitions, including **writ petitions** under **Article 32** for the enforcement of **fundamental rights**. - ***Hearing and Adjudication***: Cases are heard by benches comprising a minimum of **two judges**. Constitutional matters of significant importance are adjudicated by **larger benches**. - ***Judgment Delivery***: After hearing arguments, the Court delivers its **judgment**, which includes the legal reasoning and the decision. ## **DOCTRINES ESTABLISHED BY THE SUPREME COURT** The Court has propounded several doctrines to interpret constitutional provisions: - ***Doctrine of Basic Structure***: Asserts that certain fundamental features of the **Constitution** cannot be altered by amendments. This doctrine was established in the **Kesavananda Bharati case**, where the Court held that while **Parliament** has the power to amend the Constitution, it cannot alter its **basic structure**. - ***Doctrine of Harmonious Construction***: Aims to resolve conflicts between different constitutional provisions by interpreting them in a manner that harmonizes and gives effect to all. In the case of **CIT v. Hindustan Bulk Carriers (2003)**, the Supreme Court laid down principles to avoid conflicts between provisions and ensure harmonious interpretation. - ***Doctrine of Eclipse***: States that any law inconsistent with **fundamental rights** is not null but becomes unenforceable; it is eclipsed by the **fundamental right** and can become operative if the constitutional prohibition is removed. This doctrine was applied in the case of **Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955)**, where the Court held that a law inconsistent with **fundamental rights** becomes enforceable again if the inconsistency is removed. **Categories:** Articles, Constitutional Law --- ### [Judiciary: High Courts and Subordinate Courts](https://lawfoyer.in/judiciary-high-courts-and-subordinate-courts/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** India's judiciary operates within a hierarchical framework, ensuring justice through a structured system of courts. This system comprises the Supreme Court at the apex, followed by High Courts at the state level, and Subordinate Courts at the district and lower levels. Understanding the roles, jurisdictions, and functions of High Courts and Subordinate Courts is essential for comprehending India's legal landscape. **Content:** India’s judiciary operates within a hierarchical framework, ensuring justice through a structured system of courts. This system comprises the **Supreme Court** at the apex, followed by **High Courts** at the state level, and **Subordinate Courts** at the district and lower levels. Understanding the roles, jurisdictions, and functions of High Courts and Subordinate Courts is essential for comprehending India’s legal landscape. ## **MEANING, DEFINITION & EXPLANATION** - **High Courts**: Established under **Part VI, Chapter V** of the **Indian Constitution**, High Courts are the principal civil courts of original jurisdiction in each state and union territory. They possess appellate authority over **Subordinate Courts** and have the power to issue **writs** under **Article 226** of the Constitution. High Courts ensure the uniform application of law within their territorial jurisdiction. - **Subordinate Courts**: Operating under the supervision of **High Courts**, Subordinate Courts include **District Courts** and other lower courts. They handle the majority of civil and criminal cases, serving as the first point of contact for litigants. These courts ensure that justice is accessible at the grassroots level. ## **HISTORICAL BACKGROUND / EVOLUTION** The Indian judicial system has its roots in the **British colonial era**. The establishment of the **Mayor’s Courts** in Madras, Bombay, and Calcutta in **1726** marked the beginning of formalized courts in India. The **Indian High Courts Act of 1861** led to the creation of High Courts in these cities, replacing the **Supreme Courts** and **Sadar Adalats**. Post-independence, the **Constitution of India** established a unified judicial system, with the **Supreme Court** at the top, followed by High Courts and Subordinate Courts. ## **STRUCTURE AND HIERARCHY** The Indian judiciary follows a hierarchical structure: 1. **Supreme Court of India**: The apex court with ultimate appellate authority. 2. **High Courts**: Each state or group of states has a High Court. For instance, the **Allahabad High Court** serves Uttar Pradesh, while the **Punjab and Haryana High Court** serves both Punjab and Haryana. 3. **Subordinate Courts**: These include **District Courts**, **Sessions Courts**, and other lower courts functioning under the High Courts. ## **JURISDICTION AND FUNCTIONS** - **High Courts**: - ***Original Jurisdiction***: In certain matters, such as **company law cases**, High Courts have original jurisdiction. For example, the **Calcutta High Court** has original jurisdiction over cases arising within its territorial limits. - ***Appellate Jurisdiction***: They hear appeals against judgments from Subordinate Courts. For instance, in the case of ***Keshav Singh’s Case***, the **Allahabad High Court** dealt with issues concerning legislative privileges and judicial review. - ***Writ Jurisdiction***: Under **Article 226**, High Courts can issue writs for the enforcement of fundamental rights and other legal rights. In ***Bandhua Mukti Morcha v. Union of India***, the **Supreme Court** emphasized the power of High Courts under **Article 226** to address violations of fundamental rights. - **Subordinate Courts**: - ***District Courts***: Handle civil and criminal cases at the district level. For example, the **District Court** in Lucknow deals with cases arising within its jurisdiction in Uttar Pradesh. - ***Sessions Courts***: Primarily deal with serious criminal offenses. In ***State of Maharashtra v. Sukhdev Singh***, the Sessions Court’s role in conducting fair trials was highlighted. - ***Magistrate Courts***: Handle minor civil and criminal matters. For instance, **Magistrate Courts** in Delhi deal with petty offenses and preliminary hearings. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - **Appointment of Judges**: - ***High Courts***: Judges are appointed by the **President of India** in consultation with the **Chief Justice of India** and the **Governor** of the respective state, as per **Article 217** of the Constitution. For example, **Justice Sanjiv Khanna** was appointed as the **Chief Justice of India** following this procedure. - ***Subordinate Courts***: Judges are appointed by the **Governor** in consultation with the **High Court**, following the procedures laid down by the respective state public service commissions. In Uttar Pradesh, the **Public Service Commission** conducts examinations for the appointment of civil judges. - **Jurisdictional Limits**: - ***Pecuniary Jurisdiction***: Courts have monetary limits defining the maximum value of cases they can adjudicate. For instance, **Munsif Courts** may handle cases involving amounts up to ₹1 lakh, while **District Courts** can handle higher-value cases. - ***Territorial Jurisdiction***: Defines the geographical area within which a court can exercise its authority. For example, the **Madurai Bench** of the **Madras High Court** has jurisdiction over southern districts of Tamil Nadu. ## **CASE LAWS / PRECEDENTS** - **L. Chandra Kumar v. Union of India (1997)**: The **Supreme Court** held that the power of **judicial review** vested in **High Courts** under **Articles 226** and **227** is an integral and essential feature of the Constitution, constituting part of its **basic structure**. - **Naresh Shridhar Mirajkar v. State of Maharashtra (1966)**: This case emphasized the inherent powers of High Courts to act **ex debito justitiae** to do real and substantial justice. ## **DOCTRINES / THEORIES** - **Doctrine of Judicial Review**: Empowers **High Courts** and the **Supreme Court** to examine the constitutionality of legislative acts and executive orders. In ***Kesavananda Bharati v. State of Kerala***, the **Supreme Court** asserted its authority to review and strike down constitutional amendments that alter the **basic structure** of the Constitution. - **Doctrine of Precedent**: Ensures that lower courts follow the legal principles established by higher courts in previous judgments, maintaining consistency and predictability in the law. For instance, the decision in ***Maneka Gandhi v. Union of India*** set a precedent on the interpretation of the **right to life** and **personal liberty**. **Categories:** Articles, Constitutional Law --- ### [Emergency Provisions: Articles 352-360](https://lawfoyer.in/emergency-provisions-articles-352-360/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Indian Constitution's emergency provisions (Articles 352-360) empower the central government to address extraordinary situations threatening the nation's security, integrity, or financial stability. These provisions enable a shift from federal to unitary governance during crises, ensuring swift and decisive action. **Content:** The Indian Constitution’s **emergency provisions** (**Articles 352-360**) empower the central government to address extraordinary situations threatening the nation’s security, integrity, or financial stability. These provisions enable a shift from federal to unitary governance during crises, ensuring swift and decisive action. ## **1. MEANING, DEFINITION & EXPLANATION** **Emergency provisions** allow the central government to assume extensive powers during crises, overriding the federal structure to protect national interests. **Part XVIII** of the Constitution encompasses these provisions, detailing the circumstances and procedures for declaring emergencies. ## **2. HISTORICAL BACKGROUND / EVOLUTION** The framers of the Indian Constitution incorporated **emergency provisions** inspired by the **Government of India Act 1935** and **Germany’s Weimar Constitution**. These measures aimed to equip the government to handle exceptional situations effectively. Notably, the term **“internal disturbance”** in **Article 352** was replaced with **“armed rebellion”** by the **44th Amendment Act of 1978** to prevent misuse. ## **3. TYPES OF EMERGENCIES** The Constitution outlines three types of emergencies: - **National Emergency (Article 352):** Declared when India’s security is threatened by **war**, **external aggression**, or **armed rebellion**. - **State Emergency (Article 356):** Imposed when a state’s **constitutional machinery** fails, leading to **President’s Rule**. - **Financial Emergency (Article 360):** Proclaimed when India’s **financial stability** or **credit** is endangered. ## **4. NATIONAL EMERGENCY (ARTICLE 352)** **Grounds for Proclamation:** A **National Emergency** can be declared on three grounds: - **War:** Formal armed conflict between India and another nation. - **External Aggression:** Unprovoked attack by a foreign entity without a formal declaration of war. - **Armed Rebellion:** Organized, violent uprising against the government within India. **Procedure:** - The **President** can declare a National Emergency upon receiving a **written recommendation** from the **Union Cabinet**. - The proclamation must be **approved by both Houses of Parliament** within one month by a **special majority**. - Once approved, the emergency remains in force for **six months** and can be extended indefinitely with **parliamentary approval** every six months. **Effects:** - **Fundamental Rights:** **Article 358** suspends the freedoms under **Article 19** during a National Emergency. However, **Articles 20** and **21** remain enforceable. - **Centre-State Relations:** The federal structure becomes **unitary**, allowing **Parliament** to legislate on subjects in the **State List**. - **Executive Authority:** The central government gains overriding executive powers over states. **Case Law:** - **ADM Jabalpur v. Shivkant Shukla (1976):** The **Supreme Court** controversially held that during a National Emergency, the right to **constitutional remedies** is suspended, and no person could move the court for enforcement of fundamental rights. This judgment was later overruled, restoring the primacy of fundamental rights even during emergencies. ## **5. STATE EMERGENCY (ARTICLE 356)** **Grounds for Proclamation:** Also known as **President’s Rule**, it can be imposed when: - The **President**, based on the **Governor’s report** or otherwise, is satisfied that the state’s governance cannot be carried out per **constitutional provisions**. **Procedure:** - The **President** issues a proclamation, which must be **approved by both Houses of Parliament** within two months. - Initially valid for **six months**, it can be extended up to **three years** with parliamentary approval every six months. Extensions beyond one year require the following conditions: - A **National Emergency** is in operation in the whole or part of the state. - The **Election Commission** certifies that general elections cannot be conducted in the state. **Effects:** - **Executive Authority:** The President assumes the state’s **executive functions**, typically delegating them to the **Governor**. - **Legislative Assembly:** The **state legislature** may be dissolved or suspended. - **Parliamentary Powers:** **Parliament** can legislate on matters in the **State List** for the concerned state. **Case Law:** - **S.R. Bommai v. Union of India (1994):** The **Supreme Court** held that the President’s proclamation under **Article 356** is subject to **judicial review**. The Court can strike down the proclamation if found **mala fide** or based on irrelevant grounds. This judgment curtailed the arbitrary imposition of **President’s Rule**. ## **6. FINANCIAL EMERGENCY (ARTICLE 360)** **Grounds for Proclamation:** Declared when the **President** is satisfied that India’s **financial stability** or **credit**, or that of any part of its territory, is threatened. **Procedure:** - The **President** issues a proclamation, which must be **approved by both Houses of Parliament** within two months. - Once approved, it remains in force until revoked; there is no maximum time limit. **Effects:** - **Financial Directives:** The **President** can direct states to observe **financial propriety** and can reduce **salaries and allowances** of government employees, including judges. - **Money Bills:** **State Money Bills** require the President’s approval. #### **Notable Point:** As of **December 2024**, a **Financial Emergency** has never been proclaimed in India. **7. SAFEGUARDS AGAINST ABUSE** The **44th Amendment Act of 1978** introduced several safeguards: - Replaced **“internal disturbance”** with **“armed rebellion”** in **Article 352** to prevent misuse. - Required the **President** to act based on the **written advice** of the **Union Cabinet** for proclaiming a National Emergency. - Mandated **parliamentary approval** for emergency proclamations and their periodic renewal. - Ensured that **Articles 20** and **21** cannot be suspended during an emergency. **Categories:** Articles, Constitutional Law --- ### [Amendment Procedure: Article 368](https://lawfoyer.in/amendment-procedure-article-368/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** Article 368 of the Indian Constitution outlines the procedure for amending the Constitution, enabling adaptability to changing societal needs while preserving its foundational principles **Content:** Article 368 of the Indian Constitution outlines the procedure for amending the Constitution, enabling adaptability to changing societal needs while preserving its foundational principles. ## **MEANING AND EXPLANATION OF ARTICLE 368** **Article 368** grants **Parliament** the authority to amend the Constitution by adding, varying, or repealing any provision, following a specific procedure distinct from ordinary legislative processes. This ensures that amendments undergo thorough deliberation, reflecting the collective will of the people and their representatives ## **HISTORICAL BACKGROUND AND EVOLUTION** The framers of the Constitution recognized the need for a balance between rigidity and flexibility. Initially, the Constitution allowed amendments through a simple majority. However, experiences over time highlighted the necessity for a more structured process to safeguard essential features. This led to the incorporation of **Article 368**, establishing a comprehensive amendment procedure. ## **TYPES OF AMENDMENTS UNDER ARTICLE 368** **Article 368** provides for two types of amendments: - ***Amendments by Simple Majority:*** Certain provisions can be amended by a simple majority in **Parliament**. These are not considered amendments under **Article 368.** - ***Amendments by Special Majority:*** Most constitutional amendments require a **special majority**, i.e., a majority of the total membership of each House and a two-thirds majority of members present and voting. Some amendments also require ratification by at least half of the **state legislatures** ## **PROCEDURE FOR AMENDMENT** The amendment process involves several steps: 1. ***Initiation:*** An amendment can be proposed by introducing a Bill in either House of **Parliament**. **State legislatures** cannot initiate amendments 2. ***Passage in Parliament:*** The Bill must be passed in each House by the required **special majority**. There is no provision for a joint sitting in case of disagreement between the Houses 3. ***State Ratification:*** For amendments affecting federal provisions, ratification by at least half of the **state legislatures** is necessary. This ensures federal balance and reflects the consent of the states 4. ***Presidential Assent:*** After parliamentary approval and, if required, state ratification, the Bill is presented to the **President** for assent. The President is obligated to give assent, after which the amendment becomes part of the Constitution ## **DOCTRINE OF BASIC STRUCTURE** The **Supreme Court**, in the landmark case of **Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461**, introduced the **Basic Structure Doctrine**, asserting that while **Parliament** has wide powers to amend the Constitution, it cannot alter its **basic structure**. This doctrine ensures that fundamental aspects like the **supremacy of the Constitution**, **republican and democratic form of government**, **secular character**, **separation of powers**, and **federalism** remain inviolable ## **KEY CASE LAWS AND THEIR SIGNIFICANCE** 1. **Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458:** The **Supreme Court** upheld the validity of the **First Amendment**, stating that Parliament’s power to amend the Constitution under **Article 368** includes the ability to amend **Fundamental Rights**. 2. **Sajjan Singh v. State of Rajasthan, 1965 AIR 845:** The Court reaffirmed that constitutional amendments made under **Article 368** are not “law” under **Article 13** and thus cannot be challenged for violating **Fundamental Rights**. 3. **Golak Nath v. State of Punjab, AIR 1967 SC 1643:** The **Supreme Court** held that Parliament could not amend **Fundamental Rights**, viewing such amendments as “law” under **Article 13(2)**. This decision was later overturned by the **24th Amendment**. 4. **Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461:** This landmark judgment established the **Basic Structure Doctrine**, limiting Parliament’s power to amend the Constitution by protecting its essential features. 5. **Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789:** The Court reaffirmed the **Basic Structure Doctrine**, striking down clauses that sought to exclude **judicial review** of constitutional amendments, thereby preserving the balance between **Fundamental Rights** and **Directive Principles**. ## **PRINCIPLES AND DOCTRINES RELATED TO ARTICLE 368** - **Doctrine of Basic Structure:** Asserts that certain fundamental features of the Constitution cannot be altered by amendments. - **Doctrine of Implied Limitations:** Suggests that there are inherent limitations on Parliament’s power to amend the Constitution, even if not explicitly stated. ## **LEGAL MAXIMS RELEVANT TO CONSTITUTIONAL AMENDMENTS** - **“Salus populi suprema lex esto”:** The welfare of the people shall be the supreme law. This maxim underscores the purpose behind allowing constitutional amendments—to serve the public good by adapting to changing needs. - **“Lex iniusta non est lex”:** An unjust law is no law at all. This principle emphasizes that amendments should not result in unjust laws that violate the Constitution’s core principles. **Categories:** Articles, Constitutional Law --- ### [Schedules of the Indian Constitution](https://lawfoyer.in/schedules-of-the-indian-constitution/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The First Schedule lists all states and union territories, along with their territorial jurisdictions. It is referenced in Articles 1 and 4 of the Constitution. This Schedule has been amended multiple times to reflect changes in state boundaries and the creation of new states. **Content:** **THE INDIAN CONSTITUTION: AN OVERVIEW OF THE 12 SCHEDULES** The Indian Constitution comprises **12 Schedules**, each detailing specific aspects of governance and administration. These Schedules provide clarity and structure to the constitutional framework, ensuring organized governance. ### **1. FIRST SCHEDULE: STATES AND UNION TERRITORIES** The **First Schedule** lists all **states and union territories**, along with their territorial jurisdictions. It is referenced in **Articles 1** and **4** of the Constitution. This Schedule has been amended multiple times to reflect changes in state boundaries and the creation of new states. ### **2. SECOND SCHEDULE: EMOLUMENTS OF HIGH OFFICIALS** This Schedule outlines the **salaries, allowances, and privileges** of constitutional dignitaries, including: - **The President** - **The Governors of States** - **The Speaker and Deputy Speaker of the Lok Sabha** - **The Chairman and Deputy Chairman of the Rajya Sabha** - **The Judges of the Supreme Court and High Courts** - **The Comptroller and Auditor General of India** It is associated with **Articles 59, 65, 75, 97, 125, 148, 158, 164, 186, and 221**. ### **3. THIRD SCHEDULE: FORMS OF OATHS AND AFFIRMATIONS** The **Third Schedule** prescribes the **oaths or affirmations** for: - **Union and State Ministers** - **Members of Parliament** - **Members of State Legislatures** - **Judges of the Supreme Court and High Courts** - **The Comptroller and Auditor General** These oaths affirm allegiance to the Constitution and commitment to uphold its principles, as detailed in **Articles 75, 84, 99, 124, 146, 173, 188, and 219**. ### **4. FOURTH SCHEDULE: ALLOCATION OF SEATS IN THE RAJYA SABHA** This Schedule specifies the **number of seats allocated** to each state and union territory in the **Rajya Sabha (Council of States)**, ensuring proportional representation. It is linked to **Articles 4** and **80**. ### **5. FIFTH SCHEDULE: ADMINISTRATION OF SCHEDULED AREAS AND TRIBES** The **Fifth Schedule** contains provisions for the **administration and control** of **Scheduled Areas and Scheduled Tribes**, aiming to protect indigenous communities’ rights and interests. It is referenced in **Article 244**. ### **6. SIXTH SCHEDULE: PROVISIONS FOR TRIBAL AREAS** This Schedule provides for the **administration of tribal areas** in **Assam, Meghalaya, Tripura, and Mizoram**, granting them autonomy through **District and Regional Councils**. It is associated with **Articles 244** and **275**. ### **7. SEVENTH SCHEDULE: DIVISION OF POWERS** The **Seventh Schedule** delineates the **distribution of powers** between the Union and State governments through three lists: - **Union List**: Subjects under the exclusive jurisdiction of **Parliament**. - **State List**: Subjects under the exclusive jurisdiction of **State Legislatures**. - **Concurrent List**: Subjects where both Parliament and State Legislatures can legislate. This division is crucial for federal governance and is detailed in **Article 246**. ### **8. EIGHTH SCHEDULE: OFFICIAL LANGUAGES** The **Eighth Schedule** lists the recognized **official languages** of India. Originally, it included **14 languages**; subsequent amendments have expanded this number to **22**. It is linked to **Articles 344** and **351**. ### **9. NINTH SCHEDULE: VALIDATION OF CERTAIN ACTS AND REGULATIONS** Introduced by the **First Amendment in 1951**, the **Ninth Schedule** was created to protect **land reform** and other laws from judicial review, even if they contravened fundamental rights. However, in ***I.R. Coelho v. State of Tamil Nadu***, **(2007) 2 SCC 1**, the Supreme Court held that **laws placed in the Ninth Schedule after April 24, 1973**, are subject to judicial review if they violate the **basic structure** of the Constitution. This Schedule is associated with **Article 31B**. ### **10. TENTH SCHEDULE: ANTI-DEFECTION PROVISIONS** Popularly known as the **Anti-Defection Law**, this Schedule was added by the **52nd Amendment in 1985**. It provides for the **disqualification of Members of Parliament and State Legislatures** on grounds of **defection** to maintain political stability. It is linked to **Articles 102** and **191**. ### **11. ELEVENTH SCHEDULE: POWERS OF PANCHAYATS** Inserted by the **73rd Amendment in 1992**, the **Eleventh Schedule** details the **powers, authority, and responsibilities** of **Panchayats (rural local governments)**, covering **29 functional items**. It is associated with **Article 243G**. ### **12. TWELFTH SCHEDULE: POWERS OF MUNICIPALITIES** Added by the **74th Amendment in 1992**, the **Twelfth Schedule** specifies the **powers, authority, and responsibilities** of **Municipalities (urban local governments)**, encompassing **18 functional items**. It is linked to **Article 243W**. ### **CASE LAWS AND JUDICIAL INTERPRETATIONS** 1. ***Kesavananda Bharati v. State of Kerala***, **(1973) 4 SCC 225**: This landmark case introduced the **Basic Structure Doctrine**, asserting that certain fundamental features of the Constitution cannot be altered by amendments. This doctrine has implications for the interpretation and application of various Schedules, especially the **Ninth Schedule**. 2. ***I.R. Coelho v. State of Tamil Nadu***, **(2007) 2 SCC 1**: The Supreme Court ruled that **laws placed in the Ninth Schedule after April 24, 1973**, are open to judicial review if they violate the **basic structure** of the Constitution. This judgment ensures that the protection offered by the Ninth Schedule is not absolute. 3. ***Kameshwar Singh v. State of Bihar***, **AIR 1952 SC 252**: This case was one of the earliest challenges to the validity of the **Ninth Schedule**. **Categories:** Articles, Constitutional Law --- ### [Official Language Provisions: Articles 343-351](https://lawfoyer.in/official-language-provisions-articles-343-351/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Indian Constitution's Articles 343 to 351 outline the framework for the Union's official language, emphasizing Hindi in Devanagari script while accommodating linguistic diversity. **Content:** The Indian Constitution’s **Articles 343 to 351** outline the framework for the Union’s official language, emphasizing **Hindi in Devanagari script** while accommodating linguistic diversity. ## **MEANING, DEFINITION & EXPLANATION** *Part XVII* of the Indian Constitution addresses the official language of the Union. **Article 343(1)** designates **Hindi in Devanagari script** as the official language. However, **Article 343(2)** permits the continued use of **English** for official purposes for 15 years from the Constitution’s commencement. This transitional period aimed to facilitate a smooth shift to **Hindi**. **Article 343(3)** empowers **Parliament** to legislate the continued use of **English** beyond this period, which it did through the **Official Languages Act, 1963**, allowing **English** to remain in official use alongside **Hindi**. ## **HISTORICAL BACKGROUND / EVOLUTION** The Constituent Assembly debated extensively on the official language issue, balancing national unity with linguistic diversity. The **Munshi-Ayyangar formula** emerged as a compromise, leading to the adoption of **Hindi** as the official language and permitting **English’s** continued use for a transitional period. This compromise acknowledged regional linguistic sentiments and aimed to prevent national discord. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - ***Article 344***: Mandates the **President** to constitute a Commission at the expiration of five and ten years from the Constitution’s commencement to recommend measures for the progressive use of **Hindi** and restrictions on **English**. A **Parliamentary Committee** examines these recommendations. - ***Article 345***: Allows **State Legislatures** to adopt any language in use in the state or **Hindi** as the official language for state purposes, ensuring flexibility in regional language adoption. - ***Article 346***: Specifies that the language for communication between states and between a state and the Union shall be the Union’s official language, with provisions for **Hindi** use if agreed upon by the concerned states. - ***Article 347***: Empowers the **President** to recognize a language spoken by a substantial population of a state as an official language upon demand, facilitating linguistic inclusivity. - ***Article 348***: Stipulates that proceedings in the **Supreme Court** and **High Courts**, as well as authoritative texts of laws, shall be in **English** unless **Parliament** provides otherwise, ensuring clarity in legal matters. - ***Article 349***: Restricts **Parliament** from considering bills or amendments related to language provisions without the **President’s** recommendation, ensuring executive oversight. - ***Article 350***: Grants individuals the right to submit grievances to any authority in any language used in the Union or state, promoting linguistic freedom. - ***Article 350A***: Obliges states and local authorities to provide adequate facilities for instruction in the **mother tongue** at the primary stage, supporting educational rights. - ***Article 350B***: Provides for a **Special Officer for linguistic minorities** to investigate and report on safeguards for their rights, ensuring protection of linguistic minorities. - ***Article 351***: Directs the Union to promote the spread of **Hindi**, develop it to serve as a medium of expression for India’s composite culture, and enrich it by assimilating forms and expressions from other languages, fostering linguistic development. ## **GUIDELINES / RULES / REGULATIONS / NOTIFICATIONS / CIRCULARS** The **Official Languages Act, 1963**, and its subsequent amendments govern the use of **Hindi** and **English** for official purposes. The Act provides for the continued use of **English** alongside **Hindi** for official purposes of the Union and for use in **Parliament**, ensuring bilingual functionality in government operations. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - ***M.N. Ravichandran v. Union of India (1987)***: The petitioner sought enforcement of **Hindi** as the sole official language. The **Madras High Court** held that while **Article 343(1)** designates **Hindi** as the official language, **Article 343(3)** empowers **Parliament** to continue the use of **English**. The court emphasized that the constitutional provisions allow for the use of both languages, reflecting the bilingual policy adopted by the Union. - ***P. Madhusudan Naidu v. Central Public Information Officer (2016)***: The appellant contended that official communications should be in **Hindi**. The **Central Information Commission** reiterated that both **Hindi** and **English** are permitted for official purposes, and individuals have the right to receive information in either language, upholding the bilingual nature of official communications. ## **DOCTRINES / THEORIES** - **Doctrine of Harmonious Construction**: Applied to interpret the language provisions, ensuring that the promotion of **Hindi** does not impede the use of **English** and vice versa, maintaining a balance between different linguistic groups. ## **MAXIMS / PRINCIPLES** - **Lex Non Cogit Ad Impossibilia**: The law does not compel the impossible. This principle underlies the gradual approach in implementing **Hindi** as the official language, acknowledging practical challenges in immediate enforcement. ## **AMENDMENTS / ADDITIONS / REPEALING** The **Official Languages Act, 1963**, was amended in **1967** to ensure the indefinite continuation of **English** for official purposes alongside **Hindi**, responding to resistance against the complete replacement of **English**. ## **STATISTICAL ANALYSIS / DATA ANALYSIS** As per the **2011 Census**, **43.63%** of Indians declared **Hindi** as their mother tongue, reflecting its widespread use. However, regional languages also hold significant importance, underscoring the necessity of a bilingual approach. **Categories:** Articles, Constitutional Law --- ### [Special Provisions for Certain States: Articles 370 and 371](https://lawfoyer.in/special-provisions-for-certain-states-articles-370-and-371/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** Articles 370 and 371 of the Indian Constitution provided special provisions for certain states, acknowledging their unique circumstances and needs. Article 370 granted special autonomy to Jammu and Kashmir, while Article 371 encompasses provisions tailored for various other states to address their distinct requirements. **Content:** Articles 370 and 371 of the Indian Constitution provided special provisions for certain states, acknowledging their unique circumstances and needs. **Article 370** granted special autonomy to **Jammu and Kashmir**, while **Article 371** encompasses provisions tailored for various other states to address their distinct requirements. ### **HISTORICAL BACKGROUND OF ARTICLE 370** *Article 370* originated from the **Instrument of Accession** signed by **Maharaja Hari Singh** of Jammu and Kashmir in 1947, allowing the state to accede to India under specific terms. This article permitted Jammu and Kashmir to have its own **constitution** and limited the Indian Parliament’s legislative powers over the state to matters of **defense, external affairs, and communications**. The state’s **Constituent Assembly** was empowered to decide on the extension of other constitutional provisions. *Article 370* was intended as a **temporary provision**, pending the state’s Constituent Assembly’s decision on the state’s relationship with India. ### **ABROGATION OF ARTICLE 370** On **August 5, 2019**, the **Government of India** abrogated *Article 370*, revoking Jammu and Kashmir’s special status. This was achieved through **Presidential Orders C.O. 272 and C.O. 273**, along with the passage of the **Jammu and Kashmir Reorganisation Act, 2019**, which bifurcated the state into two **Union Territories**: Jammu and Kashmir, and Ladakh. ### **SUPREME COURT VERDICT ON ARTICLE 370 ABROGATION** In **December 2023**, the **Supreme Court of India** upheld the abrogation of *Article 370*, stating that the provision was indeed temporary and that the **President** had the authority to revoke it. The Court emphasized that the move was part of a long-term exercise to integrate Jammu and Kashmir into the **Union of India**. ### **ARTICLE 371: SPECIAL PROVISIONS FOR OTHER STATES** Articles **371 to 371J** in **Part XXI** of the Constitution contain special provisions for various states to meet the aspirations of the people, protect cultural and economic interests, and address **law and order conditions**. These provisions recognize the **unique needs of different regions**, particularly those with significant tribal populations or distinct cultural identities. #### **KEY PROVISIONS UNDER ARTICLE 371** - ***Article 371A (Nagaland):*** Parliamentary acts related to **Naga religious and social practices**, **customary law**, **administration of civil and criminal justice**, and **ownership and transfer of land and resources** do not apply to Nagaland unless approved by the state **Legislative Assembly**. - ***Article 371B (Assam):*** Provides for the creation of a **committee** of the Assam Legislative Assembly consisting of members from the state’s **tribal areas** to ensure the protection of their interests. - ***Article 371C (Manipur):*** Similar to Assam, it provides for a **committee** of the Legislative Assembly consisting of members from the **Hill Areas** to safeguard their interests. - ***Article 371D (Andhra Pradesh and Telangana):*** Ensures **equitable opportunities and facilities** in public employment and education across different regions of the states. - ***Article 371E:*** Provides for the establishment of a **central university** in Andhra Pradesh. - ***Article 371F (Sikkim):*** Protects the rights and interests of various sections of the **Sikkimese population**, ensuring legislative representation and safeguarding existing **laws and customs**. - ***Article 371G (Mizoram):*** Similar to Nagaland, it restricts the application of **parliamentary acts** related to Mizo **religious and social practices**, **customary law**, and **ownership and transfer of land** unless approved by the state Legislative Assembly. - ***Article 371H (Arunachal Pradesh):*** The **Governor** has special responsibility for **law and order** in the state, and acts of Parliament related to **religious or social practices** of the tribes, **customary law**, and **ownership and transfer of land** apply only if the Legislative Assembly so decides. - ***Article 371I (Goa):*** Provides for a **Legislative Assembly** of not less than **30 members**. - ***Article 371J (Karnataka):*** Grants special status to the **Hyderabad-Karnataka region**, providing for **equitable allocation of funds for development**, **reservation in state government jobs**, and **educational institutions**. ### **LEGAL DOCTRINES AND PRINCIPLES** The special provisions under **Articles 370 and 371** reflect the constitutional doctrine of **asymmetric federalism**, where different states have varying degrees of autonomy based on their unique circumstances. This approach acknowledges the **diversity within the nation** and aims to provide tailored governance structures to meet specific regional needs. ### **CASE LAWS AND JUDICIAL INTERPRETATIONS** - ***Prem Nath Kaul v. State of Jammu and Kashmir (1959):*** The **Supreme Court** held that the **concurrence** given by the state government under *Article 370(1)* was provisional and required ratification by the state’s **Constituent Assembly**. Once the Constituent Assembly was dissolved, no further extension of powers was possible without its recommendation. - ***Sampat Prakash v. State of Jammu and Kashmir (1969):*** The **Supreme Court** upheld the continuation of *Article 370*, stating that it would remain operative until the **President**, upon the recommendation of the **Constituent Assembly of Jammu and Kashmir**, declares otherwise. ### **AMENDMENTS AND REPEAL** The abrogation of **Article 370** in **2019** marked a significant constitutional change, leading to the reorganization of Jammu and Kashmir into **Union Territories**. This move was accompanied by debates on its **constitutional validity** and its implications for **federalism**. **Categories:** Articles, Constitutional Law --- ### [Panchayati Raj Institutions: Articles 243-243O](https://lawfoyer.in/panchayati-raj-institutions-articles-243-243o/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** Panchayati Raj Institutions (PRIs) in India, established under Articles 243 to 243O of the Constitution, form the backbone of rural self-governance. These provisions, introduced by the 73rd Constitutional Amendment Act of 1992, aim to decentralize power and promote democratic participation at the grassroots level. **Content:** Panchayati Raj Institutions (PRIs) in India, established under **Articles 243 to 243O** of the Constitution, form the backbone of rural self-governance. These provisions, introduced by the **73rd Constitutional Amendment Act of 1992**, aim to decentralize power and promote democratic participation at the grassroots level. ## **MEANING, DEFINITION & EXPLANATION** The term ‘**Panchayati Raj**‘ refers to a system of governance in which **Gram Panchayats** are the basic units of administration. It has a **three-tier structure**: village, intermediate (block), and district levels. **Article 243** defines key terms: - **District**: A district in a State. - **Gram Sabha**: *A body consisting of persons registered in the electoral rolls relating to a village within the area of a Panchayat at the village level.* - **Intermediate Level**: *A level between the village and district levels specified by the Governor of a State.* - **Panchayat**: *An institution of self-government constituted under Article 243B for rural areas.* - **Panchayat Area**: *The territorial area of a Panchayat.* - **Population**: *The population as ascertained at the last preceding census of which the relevant figures have been published.* - **Village**: *A village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified.* ### **HISTORICAL BACKGROUND / EVOLUTION** The Panchayati Raj system has deep roots in Indian history, with traditional village councils playing a significant role in local governance. Post-independence, the need for a structured system led to the establishment of various committees: - **Balwant Rai Mehta Committee (1957)**: *Recommended a three-tier system—Gram Panchayat, Panchayat Samiti, and Zila Parishad—to promote democratic decentralization.* - **Ashok Mehta Committee (1977)**: *Suggested a two-tier system and emphasized the need for regular elections and financial autonomy.* - **G.V.K. Rao Committee (1985)**: *Highlighted the importance of Panchayati Raj Institutions (PRIs) in rural development and recommended assigning specific planning and implementation responsibilities to them.* - **L.M. Singhvi Committee (1986)**: *Advocated for constitutional recognition of PRIs to ensure their stability and effectiveness.* These recommendations culminated in the **73rd Amendment**, granting constitutional status to PRIs and introducing **Part IX** (**Articles 243 to 243O**) and the **Eleventh Schedule**, detailing 29 subjects under PRIs’ purview. ### **THREE-TIER SYSTEM OF PANCHAYATI RAJ** **Article 243B** mandates the establishment of Panchayats at the village, intermediate, and district levels in every state, bringing uniformity to the structure across India. States with populations below 20 lakhs may choose not to constitute Panchayats at the intermediate level. ### **COMPOSITION OF PANCHAYATS** **Article 243C** allows state legislatures to determine Panchayats’ composition, ensuring: - **Direct Elections**: *All seats in a Panchayat are filled by direct elections from territorial constituencies.* - **Uniform Representation**: *The ratio between the population of each constituency and the number of seats allotted should be consistent throughout the Panchayat area.* - **Chairperson Election**: *At the village level, the Chairperson (Sarpanch) may be elected directly or indirectly, as provided by state law. At intermediate and district levels, Chairpersons are elected indirectly from among the elected members.* ### **RESERVATION OF SEATS** **Article 243D** provides for reservation to ensure inclusivity: - **Scheduled Castes and Scheduled Tribes**: *Seats are reserved in proportion to their population in the Panchayat area.* - **Women**: *Not less than one-third of the total seats, including those reserved for SCs and STs, are reserved for women.* - **Backward Classes**: *State legislatures may provide reservations for backward classes.* ### **DURATION OF PANCHAYATS** **Article 243E** stipulates a five-year term for every Panchayat. Elections must be conducted before the term expires. In case of early dissolution, elections should be held within six months. ### **POWERS, AUTHORITY, AND RESPONSIBILITIES OF PANCHAYATS** **Article 243G** empowers state legislatures to endow Panchayats with necessary powers and authority to function as institutions of self-government. This includes: - **Preparation of Plans**: *For economic development and social justice.* - **Implementation of Schemes**: *Related to matters listed in the Eleventh Schedule, such as agriculture, health, education, and social welfare.* ### **FINANCIAL PROVISIONS** **Article 243H** authorizes state legislatures to empower Panchayats to: - **Levy and Collect Taxes**: *Duties, tolls, and fees.* - **Receive Grants-in-Aid**: *From the state government.* Additionally, **Article 243I** mandates the constitution of a **State Finance Commission** every five years to review Panchayats’ financial positions and recommend measures to enhance their resources. ### **STATE ELECTION COMMISSION** **Article 243K** provides for a **State Election Commission** responsible for superintendence, direction, and control of Panchayat elections, ensuring free and fair electoral processes. ### **JUDICIAL NON-INTERFERENCE** **Article 243O** bars courts from interfering in Panchayat electoral matters, emphasizing that disputes should be resolved through election petitions as prescribed by state laws. This provision ensures the uninterrupted functioning of the electoral process. **Categories:** Articles, Constitutional Law --- ### [Municipalities: Articles 243P-243ZG](https://lawfoyer.in/municipalities-articles-243p-243zg/) **Published:** December 23, 2024 **Author:** LawFoyer **Excerpt:** The Constitution (Seventy-Fourth Amendment) Act, 1992, introduced Part IX-A, encompassing Articles 243P to 243ZG, to provide a constitutional framework for urban local governance in India. This amendment aimed to strengthen municipalities as institutions of self-government, ensuring democratic decentralization and efficient urban administration. **Content:** The Constitution (Seventy-Fourth Amendment) Act, 1992, introduced **Part IX-A**, encompassing **Articles 243P to 243ZG**, to provide a constitutional framework for urban local governance in India. This amendment aimed to strengthen **municipalities** as institutions of self-government, ensuring **democratic decentralization** and efficient urban administration. ## **DEFINITIONS (ARTICLE 243P)** *Article 243P defines key terms related to municipalities:* - **Committee**: A **committee** constituted under **Article 243S**. - **District**: A **district** in a state. - **Metropolitan Area**: An area with a population of ten lakhs (one million) or more, comprising one or more districts and consisting of two or more **municipalities** or **panchayats** or other contiguous areas, specified by the **Governor** by public notification. - **Municipal Area**: The territorial area of a **municipality** as notified by the **Governor**. - **Municipality**: An institution of self-government constituted under **Article 243Q**. - **Panchayat**: A **panchayat** constituted under **Article 243B**. - **Population**: The population as ascertained at the last preceding **census** of which the relevant figures have been published. ## **CONSTITUTION OF MUNICIPALITIES (ARTICLE 243Q)** *Article 243Q mandates the constitution of municipalities in urban areas:* - **Nagar Panchayat**: For **transitional areas** from rural to urban. - **Municipal Council**: For smaller urban areas. - **Municipal Corporation**: For larger urban areas. The **Governor**, considering factors like population, density, revenue, and economic importance, specifies these areas. ## **COMPOSITION OF MUNICIPALITIES (ARTICLE 243R)** *Article 243R outlines the composition:* - **Elected Members**: Directly elected from territorial constituencies in the municipal area. - **Nominated Members**: Persons with special knowledge or experience in municipal administration, without **voting rights**. The **Legislature of a State** may, by law, provide for the manner of election of the **Chairperson of a Municipality**. ## **WARDS COMMITTEES (ARTICLE 243S)** *Article 243S provides for:* - **Constitution**: **Wards Committees** in municipalities with a population of three lakhs (300,000) or more. - **Composition**: One or more **wards**, as determined by state legislation. This ensures **decentralized decision-making** within large municipalities. ## **RESERVATION OF SEATS (ARTICLE 243T)** *Article 243T ensures representation for marginalized groups:* - **Scheduled Castes (SCs) and Scheduled Tribes (STs)**: Seats reserved in proportion to their population in the municipal area. - **Women**: Not less than **one-third** of total seats reserved for women, including those from **SCs** and **STs**. - **Backward Classes**: **State legislatures** may provide reservations for backward classes. ## **DURATION OF MUNICIPALITIES (ARTICLE 243U)** *Article 243U stipulates:* - **Term**: **Five years** from the date of the first meeting. - **Elections**: To be completed before the expiry of the term or within **six months** of dissolution. This ensures regular **elections** and continuity in governance. ## **DISQUALIFICATIONS FOR MEMBERSHIP (ARTICLE 243V)** *Article 243V specifies disqualifications:* - **Criteria**: As per **state legislature laws**, similar to disqualifications for **state legislative assemblies**. - **Age**: Minimum age of **21 years** for membership. This maintains the integrity and eligibility of municipal members. ## **POWERS, AUTHORITY, AND RESPONSIBILITIES (ARTICLE 243W)** *Article 243W empowers state legislatures to endow municipalities with necessary powers to function as self-governments, including:* - **Preparation of Plans**: For **economic development** and **social justice**. - **Implementation of Schemes**: Related to matters in the **Twelfth Schedule**, such as **urban planning**, **water supply**, and **public health**. ## **FINANCIAL POWERS (ARTICLE 243X)** *Article 243X grants municipalities authority to:* - **Levy Taxes**: Duties, tolls, and fees as authorized by **state law**. - **Receive Grants**: From the **state government**. - **Loans**: Raise funds through **borrowing**, subject to state conditions. This financial autonomy enables municipalities to manage local affairs effectively. ## **FINANCE COMMISSION (ARTICLE 243Y)** *Article 243Y mandates:* - **State Finance Commission**: Constitution every five years to review the financial position of municipalities. - **Recommendations**: Distribution of taxes between the **state** and **municipalities**, **grants-in-aid**, and measures to improve financial health. This ensures **fiscal federalism** and resource allocation. ## **AUDIT OF ACCOUNTS (ARTICLE 243Z)** *Article 243Z requires:* - **Maintenance**: Of **municipal accounts**. - **Audit**: Regular auditing as per **state laws**. This promotes **transparency** and accountability in municipal finances. ## **ELECTIONS TO MUNICIPALITIES (ARTICLE 243ZA)** *Article 243ZA provides:* - The **State Election Commission** is responsible for superintendence, direction, and control of municipal elections. - Elections to municipalities must be conducted in a free and fair manner. **Categories:** Articles, Constitutional Law --- ### [Scheduled and Tribal Areas: Articles 244-244A](https://lawfoyer.in/scheduled-and-tribal-areas-articles-244-244a/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** Articles 244 and 244A of the Indian Constitution provide a framework for administering Scheduled and Tribal Areas, ensuring the protection of indigenous communities' rights and cultures. **Content:** **Articles 244 and 244A** of the Indian Constitution provide a framework for administering Scheduled and Tribal Areas, ensuring the protection of indigenous communities’ rights and cultures. ### **MEANING, DEFINITION & EXPLANATION** **Article 244** addresses the administration of Scheduled and Tribal Areas: - ***Article 244(1)***: **Applies the Fifth Schedule** to the administration and control of Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram. - ***Article 244(2)***: **Applies the Sixth Schedule** to the administration of Tribal Areas in Assam, Meghalaya, Tripura, and Mizoram. ***Article 244A***, introduced by the **Twenty-second Amendment Act of 1969**, allows for the formation of an autonomous state within Assam’s tribal areas, providing greater autonomy than the Sixth Schedule. ### **HISTORICAL BACKGROUND / EVOLUTION** The distinct administrative provisions for Scheduled and Tribal Areas stem from the need to protect indigenous communities from exploitation and to preserve their unique cultures. - **The Fifth and Sixth Schedules** were incorporated to provide self-governance mechanisms and safeguard tribal interests. - ***Article 244A*** was later introduced to address demands for greater autonomy within Assam’s tribal regions. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** #### **FIFTH SCHEDULE (ARTICLE 244(1))** - ***Scheduled Areas***: Regions with a significant tribal population, economic backwardness, and distinct cultural practices. - ***Administration***: Governors have special responsibilities, including: - Submitting **annual reports** to the President on Scheduled Areas’ administration. - Making regulations to: - **Prohibit or restrict land transfers** among Scheduled Tribes. - **Regulate land allotment** to Scheduled Tribes. - **Control money-lending activities** to prevent exploitation. - ***Tribes Advisory Council (TAC)***: Constituted in each state with Scheduled Areas to advise on tribal welfare and advancement. #### **SIXTH SCHEDULE (ARTICLE 244(2))** - ***Tribal Areas***: Applies to Assam, Meghalaya, Tripura, and Mizoram. - ***Autonomous District and Regional Councils***: Empowered to: - **Legislate** on specified subjects. - **Administer justice** through traditional courts. - Manage **land, forests (excluding reserved forests), and water resources**. - Regulate **social customs and tribal laws**. #### **ARTICLE 244A** - ***Autonomous State Formation***: Parliament can create an autonomous state within Assam’s tribal areas, with: - A **legislature**. - A **Council of Ministers**. - ***Enhanced Powers***: Provides more autonomy than the Sixth Schedule, including **control over law and order**. ### **CASE LAWS / PRECEDENTS** - ***Samatha v. State of Andhra Pradesh (1997)***: The Supreme Court held that government land, tribal land, and forest land in Scheduled Areas cannot be leased to non-tribals or private industries, emphasizing the protection of tribal land rights. - **Brief Facts**: **Samatha**, a social organization, challenged the state government’s decision to lease tribal lands to private mining companies. - **Issue Raised**: Whether leasing tribal lands to non-tribals violated the **Fifth Schedule**. - **Held**: Such leases are unconstitutional; **tribal lands must be preserved** for tribal communities. - ***Union of India v. Rakesh Kumar (2010)***: The Supreme Court ruled that state governments must adhere to the **Fifth Schedule’s provisions**, including obtaining the President’s assent for laws affecting Scheduled Areas. - **Brief Facts**: The validity of certain state laws affecting Scheduled Areas was challenged. - **Issue Raised**: Whether the state laws complied with the **Fifth Schedule’s requirements**. - **Held**: **State laws impacting Scheduled Areas require the President’s assent** to be valid. ### **DOCTRINES / THEORIES** - ***Doctrine of Protective Discrimination***: The Constitution provides special provisions for Scheduled and Tribal Areas to protect marginalized communities from exploitation and to promote their welfare. - ***Theory of Autonomy***: Recognizes the need for **self-governance** in tribal regions to preserve indigenous cultures and practices. ### **GUIDELINES / RULES / REGULATIONS** - ***Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)***: Extends the provisions of **Part IX of the Constitution** to Scheduled Areas, empowering Gram Sabhas to manage resources and adjudicate disputes. - ***Forest Rights Act, 2006***: Recognizes the rights of forest-dwelling Scheduled Tribes over forest land and resources. ### **AMENDMENTS / ADDITIONS / REPEALING** - ***Twenty-second Amendment Act, 1969***: Introduced **Article 244A**, allowing for the creation of an autonomous state within Assam’s tribal areas. ### **STATISTICAL ANALYSIS / DATA ANALYSIS** - ***Scheduled Areas Coverage***: Approximately **11.3% of India’s land area** is designated as Scheduled Areas, inhabited by various Scheduled Tribes comprising **8.6% of the country’s population**. ### **CRITICISM / APPRECIATION** - ***Criticism***: Implementation of protective measures has been **inconsistent**, leading to continued exploitation and marginalization of tribal communities. - ***Appreciation***: The constitutional provisions acknowledge the **unique status** of tribal communities and aim to **preserve their cultural heritage** and provide autonomy. **Categories:** Articles, Constitutional Law --- ### [Anti-Defection Law: Tenth Schedule](https://lawfoyer.in/anti-defection-law-tenth-schedule/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Anti-Defection Law, encapsulated in the Tenth Schedule of the Indian Constitution, aims to curb political defections by legislators, ensuring stability in the government and upholding the sanctity of the electoral mandate. **Content:** The **Anti-Defection Law**, encapsulated in the **Tenth Schedule** of the **Indian Constitution**, aims to curb political defections by legislators, ensuring stability in the government and upholding the sanctity of the electoral mandate. ## **MEANING, DEFINITION & EXPLANATION** *Defection* refers to the act of abandoning one’s political party to join another, often for personal gain or due to ideological shifts. The **Anti-Defection Law**, introduced through the **52nd Amendment Act of 1985**, seeks to deter such practices by disqualifying defecting legislators from their parliamentary or assembly seats. This law applies to both **Parliament** and **state legislatures**, aiming to maintain the integrity of the political process. ## **HISTORICAL BACKGROUND / EVOLUTION** The phenomenon of political defections became prominent in the late 1960s, notably with the case of **Gaya Lal**, an **MLA from Haryana**, who changed parties thrice within a fortnight, giving rise to the term “**Aaya Ram Gaya Ram**.” Such rampant defections led to political instability, prompting the need for a legal framework to address the issue. Consequently, the **Anti-Defection Law** was enacted in **1985**, adding the **Tenth Schedule** to the Constitution. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** The **Tenth Schedule** outlines the grounds for disqualification: - **Voluntary Giving Up of Membership**: A legislator who voluntarily resigns from their party is liable for disqualification. The **Supreme Court**, in **Ravi S. Naik v. Union of India**, interpreted that “*voluntarily giving up*” isn’t limited to formal resignation but can be inferred from conduct. - **Voting Against Party Directions**: Voting or abstaining from voting contrary to the party’s directive (**whip**) without prior permission can lead to disqualification. However, if the party condones the act within 15 days, disqualification can be avoided. - **Independent and Nominated Members**: An **independent member** joining a political party after the election, or a **nominated member** joining a party six months after taking their seat, attracts disqualification. The decision on disqualification is made by the **Speaker** or **Chairman** of the respective House, and their decision is subject to **judicial review**. ## **AMENDMENTS / ADDITIONS / REPEALING** The **Anti-Defection Law** has undergone significant amendments: - **91st Amendment Act, 2003**: This amendment removed the provision allowing disqualification exemptions in case of splits, which previously permitted one-third of the members to split without disqualification. Now, only **mergers involving at least two-thirds** of the members are exempt from disqualification. Additionally, it restricted the size of the **Council of Ministers** to **15%** of the legislative members, aiming to prevent jumbo cabinets formed to entice legislators. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - **Kihoto Hollohan v. Zachillhu (1992)**: This landmark judgment upheld the constitutionality of the **Anti-Defection Law** but allowed for **judicial review** of the Speaker’s decisions, ensuring they are not absolute and can be challenged on grounds of **malafides** or **perversity**. - **Rajendra Singh Rana v. Swami Prasad Maurya (2007)**: The **Supreme Court** set aside the **Uttar Pradesh Assembly Speaker’s decision**, emphasizing that the Speaker’s powers under the **Tenth Schedule** should be exercised judiciously and are subject to **judicial scrutiny**. ## **DOCTRINES / THEORIES** - **Doctrine of Necessity**: This doctrine has been invoked to justify actions taken to maintain governmental stability, even if they involve bending certain rules. In the context of anti-defection, it underscores the need to prevent frequent defections that could destabilize the government. ## **MAXIMS / PRINCIPLES** - **“Expressio Unius Est Exclusio Alterius”**: This legal maxim, meaning “*the express mention of one thing excludes others*,” applies here to interpret that the specific grounds for disqualification mentioned in the **Tenth Schedule** exclude other grounds. ## **CRITICISM / APPRECIATION** While the **Anti-Defection Law** has been instrumental in curbing opportunistic party-switching, it has faced criticism for: - **Curtailing Freedom of Speech**: Legislators are compelled to adhere strictly to party directives, potentially stifling dissent and genuine debate. - **Role of the Speaker**: The impartiality of the Speaker in adjudicating disqualification petitions has been questioned, given their political affiliations. - **Judicial Delays**: Though the law allows for **judicial review**, court proceedings can be protracted, delaying the resolution of defection cases. ## **FUTURE IMPLICATIONS** To enhance the effectiveness of the **Anti-Defection Law**, several reforms can be considered: - **Independent Adjudicatory Mechanism**: Establishing a neutral body, possibly the **Election Commission**, to decide on disqualification petitions, reducing potential biases. - **Limiting the Scope of Whip**: Restricting the issuance of whips to critical matters like **confidence motions**, allowing legislators greater freedom on other issues. - **Time-bound Adjudication**: Mandating a specific timeframe for the **Speaker** or adjudicatory body to decide on disqualification petitions to prevent undue delays. ## **COMPARISON WITH OTHER COUNTRIES** Different countries have adopted varied approaches to address political defections: - **Bangladesh**: The Constitution mandates that **MPs** vacate their seats if they resign from or vote against their party. - **South Africa**: Initially, **MPs** lost their seats upon changing parties, but a **2002 amendment** allowed for “floor-crossing” during designated periods. - **United Kingdom**: There are no legal restrictions on **MPs** changing parties; however, such actions are often heavily criticized. **Categories:** Articles, Constitutional Law --- ### [Freedom of Trade and Commerce: Articles 301-307](https://lawfoyer.in/freedom-of-trade-and-commerce-articles-301-307/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Indian Constitution, through Articles 301 to 307, ensures the freedom of trade, commerce, and intercourse across the nation. These provisions aim to create a unified economic space, facilitating the seamless movement of goods and services throughout India. **Content:** The Indian Constitution, through **Articles 301 to 307**, ensures the freedom of trade, commerce, and intercourse across the nation. These provisions aim to create a unified economic space, facilitating the seamless movement of goods and services throughout India. ### **MEANING, DEFINITION & EXPLANATION** - ***Trade***: Refers to the buying and selling of goods and services with the intent of earning profit. It encompasses all activities related to the exchange of commodities. - ***Commerce***: Involves the transmission or movement of goods, services, and people by various means such as air, water, or land. Unlike trade, **commerce** emphasizes the transportation aspect rather than profit-making. - ***Intercourse***: Denotes the movement and interaction of people, goods, and information across regions. It includes both commercial and non-commercial interactions, ensuring the free flow of communication and exchange. ### **HISTORICAL BACKGROUND / EVOLUTION** The framers of the Indian Constitution drew inspiration from **Section 92 of the Australian Constitution**, which emphasized free trade among states. Recognizing the importance of economic unity for a diverse nation like India, they incorporated **Articles 301 to 307** to eliminate internal trade barriers and promote a cohesive economic environment. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - ***Article 301***: Guarantees that **trade, commerce, and intercourse throughout India shall be free**, ensuring unrestricted movement across state boundaries. - ***Article 302***: Empowers **Parliament** to impose restrictions on this freedom in the interest of the public, allowing for regulations that serve the greater good. - ***Article 303***: Prohibits both **Parliament** and **state legislatures** from enacting laws that give preference to one state over another or discriminate between states, ensuring fairness in legislative actions. - ***Article 304***: - Allows **state legislatures** to impose taxes on goods imported from other states, provided they do not discriminate against such goods and that similar goods produced within the state are subjected to the same taxes. - Additionally, states can impose reasonable restrictions on trade in the public interest with the **President’s prior approval**. - ***Article 305***: Protects **existing laws and state monopolies** from the provisions of **Articles 301 to 304**, ensuring continuity of pre-existing regulations. - ***Article 307***: Authorizes **Parliament** to appoint an authority to oversee and ensure the provisions related to trade and commerce are effectively implemented. ### **DEFENCES / EXCEPTIONS / EXCEPTIONS TO DEFENCES** While **Article 301** provides for free trade, certain exceptions exist: - ***Regulatory Measures***: Laws that facilitate trade by ensuring safety, security, and order, such as traffic regulations, are permissible. - ***Compensatory Taxes***: Taxes levied to cover the cost of facilities provided for trade, like tolls for road maintenance, are allowed as they do not hinder trade but rather support it. - ***Public Interest Restrictions***: Both **Parliament** and **state legislatures** can impose restrictions deemed necessary in the public interest, such as measures to address public health concerns or scarcity of goods. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - ***Atiabari Tea Co. Ltd. v. State of Assam (1961)***: The Assam Taxation Act imposed a tax on the carriage of goods, including tea, through the state. The Supreme Court held that such taxes directly impede the free flow of trade, violating **Article 301**. - **Key Holding**: This case established that any law directly restricting trade movement is unconstitutional. - ***Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan (1962)***: The state imposed a tax on motor vehicles transporting goods. The Supreme Court ruled that regulatory measures or **compensatory taxes** that facilitate trade, such as road maintenance fees, do not violate **Article 301**. - **Key Clarification**: This judgment clarified the distinction between permissible regulatory measures and impermissible trade barriers. - ***State of Bombay v. R.M.D. Chamarbaugwala (1957)***: The issue was whether gambling activities could be considered trade or commerce. The Supreme Court held that gambling is **not trade or commerce** and thus does not enjoy the protection of **Article 301**. - **Key Outcome**: This case delineated the scope of activities covered under trade and commerce. ### **DOCTRINES / THEORIES** - ***Doctrine of Res Extra Commercium***: This doctrine refers to activities that are outside the realm of commerce. The Supreme Court, in the **R.M.D. Chamarbaugwala case**, applied this doctrine to gambling, stating that activities inherently immoral or against public policy do not qualify as trade or commerce and thus aren’t protected under **Article 301**. ### **MAXIMS / PRINCIPLES** - ***Principle of Economic Unity***: The constitutional provisions aim to maintain India’s economic unity by ensuring free trade across states, preventing economic fragmentation, and promoting national integration. - ***Non-Discrimination Principle***: **Articles 303 and 304** emphasize that no preference or discrimination should be made between states, ensuring equal treatment in trade matters across the nation. ### **AMENDMENTS / ADDITIONS / REPEALING** ***Article 306***, which provided special provisions for trade and commerce in certain states, was repealed by the **Constitution (Seventh Amendment) Act, 1956**. - **Objective**: This amendment aimed to streamline and unify trade practices across the entire nation. **Categories:** Articles, Constitutional Law --- ### [Right to Property: From Fundamental Right to Legal Right](https://lawfoyer.in/right-to-property-from-fundamental-right-to-legal-right/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Right to Property in India has undergone significant transformation, shifting from a fundamental right to a constitutional legal right. This evolution reflects the dynamic interplay between individual property rights and the state's authority to regulate property for public welfare. **Content:** The Right to Property in India has undergone significant transformation, shifting from a fundamental right to a constitutional legal right. This evolution reflects the dynamic interplay between individual property rights and the state’s authority to regulate property for public welfare. ## **MEANING, DEFINITION & EXPLANATION** The **Right to Property** refers to the legal entitlement of individuals to acquire, own, and manage property. Initially enshrined as a fundamental right under **Articles 19(1)(f)** and **31** of the Indian Constitution, it guaranteed citizens the freedom to acquire, hold, and dispose of property, and protected against deprivation of property without lawful authority. However, the **44th Amendment Act of 1978** reclassified it as a constitutional right under **Article 300A**, stating that no person shall be deprived of their property except by authority of law. ## **HISTORICAL BACKGROUND / EVOLUTION** The journey of the Right to Property in India is marked by several constitutional amendments and landmark judgments: - **Constitution (First Amendment) Act, 1951**: Introduced **Articles 31A** and **31B** to protect agrarian reform laws from judicial scrutiny, aiming to address socio-economic disparities. - **Constitution (Fourth Amendment) Act, 1955**: Modified the provisions related to compensation for property acquisition, limiting judicial intervention in determining compensation adequacy. - **Constitution (Seventeenth Amendment) Act, 1964**: Expanded the scope of **Article 31A** to include more categories of land reforms, further restricting property rights. - **Kesavananda Bharati v. State of Kerala (1973)**: The Supreme Court introduced the **Basic Structure Doctrine**, asserting that while Parliament can amend the Constitution, it cannot alter its basic structure, including fundamental rights. - **Constitution (Forty-Fourth Amendment) Act, 1978**: Removed the **Right to Property** from the list of fundamental rights, introducing **Article 300A**, making it a constitutional right. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - **Article 19(1)(f)**: Initially guaranteed citizens the right to acquire, hold, and dispose of property. - **Article 31**: Provided that no person shall be deprived of their property except by authority of law and mandated compensation for property acquired for public purposes. - **Article 31A**: Introduced to protect laws related to agrarian reforms from being challenged on the grounds of violating fundamental rights. - **Article 31B**: Established the **Ninth Schedule**, listing laws immune from judicial review concerning fundamental rights violations. - **Article 300A**: States that no person shall be deprived of their property save by authority of law, reclassifying the **Right to Property** as a constitutional right. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - **Kameshwar Singh v. State of Bihar (1952)**: Challenged the **Bihar Land Reforms Act**, questioning the adequacy of compensation for land acquisition. The Supreme Court upheld the Act, emphasizing the state’s authority to implement agrarian reforms. - **Golaknath v. State of Punjab (1967)**: The Supreme Court ruled that Parliament could not amend fundamental rights, including the **Right to Property**. This decision led to subsequent amendments to restore parliamentary authority. - **Kesavananda Bharati v. State of Kerala (1973)**: Established the **Basic Structure Doctrine**, allowing constitutional amendments without altering the Constitution’s fundamental framework. - **Minerva Mills Ltd. v. Union of India (1980)**: The Supreme Court reaffirmed that the Constitution’s basic structure, including fundamental rights, cannot be altered by amendments. - **Jilubhai Nanbhai Khachar v. State of Gujarat (1995)**: The Supreme Court held that the **Right to Property** is not part of the Constitution’s basic structure, affirming its status as a constitutional right. ## **DOCTRINES / THEORIES** - **Eminent Domain**: The state’s power to acquire private property for public use, with compensation. This principle underpinned various land reform initiatives in India. - **Basic Structure Doctrine**: Asserts that certain fundamental features of the Constitution cannot be altered by amendments, ensuring the preservation of its core principles. ## **MAXIMS / PRINCIPLES** - **Salus Populi Suprema Lex**: The welfare of the people is the supreme law. This principle justifies state intervention in property rights for public welfare. - **Necessitas Publica Major Est Quam**: Public necessity is greater than private necessity. It underscores the precedence of public interest over individual property rights. ## **AMENDMENTS / ADDITIONS / REPEALING** - **First Amendment Act, 1951**: Added **Articles 31A** and **31B** to protect land reform laws. - **Fourth Amendment Act, 1955**: Modified compensation provisions for property acquisition. - **Seventeenth Amendment Act, 1964**: Expanded the scope of **Article 31A**. - **Twenty-Fifth Amendment Act, 1971**: Introduced **Article 31C**, prioritizing certain **Directive Principles** over fundamental rights. - **Forty-Fourth Amendment Act, 1978**: Removed the **Right to Property** from fundamental rights, introducing **Article 300A**. ## **COMPARISON WITH OTHER COUNTRIES** - **United States**: The **Fifth Amendment** ensures that private property cannot be taken for public use without just compensation, maintaining stricter safeguards for property rights compared to India. **Categories:** Articles, Constitutional Law --- ### [Public Interest Litigation (PIL) in India](https://lawfoyer.in/public-interest-litigation-pil-in-india/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** Public Interest Litigation (PIL) in India allows individuals or groups to seek judicial intervention on matters affecting the public at large, especially for the enforcement of fundamental rights and addressing issues of public concern. **Content:** Public Interest Litigation (PIL) in India allows individuals or groups to seek judicial intervention on matters affecting the public at large, especially for the enforcement of **fundamental rights** and addressing issues of public concern. ## **MEANING AND DEFINITION** **Public Interest Litigation** refers to legal actions initiated in courts to protect or enforce rights that affect the public or a significant segment of it. Unlike traditional litigation, which involves disputes between private parties, **PIL** is aimed at addressing broader public issues, ensuring justice for marginalized and disadvantaged groups. The **Supreme Court of India**, in ***Janata Dal v. H.S. Chaudhary***, **AIR 1993 SC 892**, defined **PIL** as “a legal action initiated in a court of law for the enforcement of public interest where the public or a particular class of the public have some interest that affects their legal rights or liabilities.” ## **HISTORICAL BACKGROUND AND EVOLUTION** The concept of **PIL** in India emerged in the late 1970s and gained prominence in the 1980s, inspired by developments in the **United States** during the 1960s. Pioneering judges like **Justice V.R. Krishna Iyer** and **Justice P.N. Bhagwati** played instrumental roles in its development. A landmark case was ***Hussainara Khatoon v. State of Bihar***, **AIR 1979 SC 1360**, where the **Supreme Court** addressed the plight of undertrial prisoners in Bihar, leading to the release of thousands of prisoners and highlighting the need for legal aid and speedy trials. This case marked a significant shift towards a more activist judiciary, willing to entertain petitions on behalf of those unable to approach the courts themselves. ## **LEGAL PROVISIONS AND PROCEDURE** **PILs** can be filed under: - **Article 32** of the **Constitution of India**, which allows individuals to approach the **Supreme Court** for the enforcement of **fundamental rights**. - **Article 226**, which empowers **High Courts** to issue directions, orders, or writs for the enforcement of **fundamental rights** and other legal rights. - **Section 133** of the **Criminal Procedure Code**, which pertains to public nuisances. The traditional rule of ***locus standi***, which required the petitioner to have a direct interest in the case, was relaxed for **PILs**. This relaxation allows public-spirited individuals or organizations to file petitions on behalf of those who are disadvantaged or unable to approach the courts themselves. The **Supreme Court**, in ***S.P. Gupta v. Union of India***, **AIR 1982 SC 149**, recognized this relaxation, stating that “any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty.” ## **PRINCIPLES AND DOCTRINES** Several legal principles underpin the concept of **PIL** in India: - **Principle of Judicial Activism**: The judiciary takes an active role in ensuring justice, especially when other branches of government fail to protect the rights of citizens. - **Doctrine of *Parens Patriae***: The state, including the judiciary, has a responsibility to protect the interests of those who cannot protect themselves. - **Principle of Social Justice**: Emphasizes the need to address inequalities and ensure that marginalized sections of society have access to justice. ## **PROCEDURE FOR FILING A PIL** Filing a **PIL** involves the following steps: 1. **Identification of the Issue**: The matter should affect the public at large or a significant portion of society. 2. **Research and Documentation**: Gather substantial evidence to support the claim. 3. **Drafting the Petition**: Clearly outline the facts, issues, and relief sought. 4. **Filing the Petition**: Submit the petition in the appropriate court, either the **High Court** or the **Supreme Court**, depending on the jurisdiction. 5. **Court Proceedings**: The court may accept letters or postcards as **PILs**, especially when filed on behalf of disadvantaged groups. ## **LANDMARK CASE LAWS** Several landmark judgments have shaped the trajectory of **PILs** in India: - ***Vishaka v. State of Rajasthan***, **AIR 1997 SC 3011**: This case addressed **sexual harassment at the workplace**. **Bhanwari Devi**, a social worker in Rajasthan, was gang-raped for attempting to prevent a child marriage. The **Supreme Court**, acknowledging the absence of domestic laws on the subject, laid down guidelines to prevent **sexual harassment** at workplaces, known as the **Vishaka Guidelines**. - ***M.C. Mehta v. Union of India***, **AIR 1987 SC 1086**: Following the **Oleum gas leak** from a factory in Delhi, the **Supreme Court** introduced the principle of “**absolute liability**” for industries engaged in hazardous activities, holding them strictly liable for any harm resulting from their operations. - ***Bandhua Mukti Morcha v. Union of India***, **AIR 1984 SC 802**: A petition was filed to address the inhumane conditions of **bonded laborers** in Haryana. The **Supreme Court** recognized **bonded labor** as a violation of **fundamental rights** and issued directives for their release and rehabilitation. ## **GUIDELINES AND REGULATIONS** To prevent the misuse of **PILs**, the judiciary has established certain guidelines: - **Bonafide Intent**: The petitioner must act in genuine public interest without any personal gain or private motive. - **Prohibition of Frivolous Petitions**: Courts discourage **PILs** filed for publicity or to harass individuals. In ***State of Uttaranchal v. Balwant Singh Chaufal***, **AIR 2010 SC 2550**, the **Supreme Court** emphasized the need to curb frivolous **PILs**, stating that “the courts should be careful in entertaining **PILs** and ensure that the petition is filed in public interest and not for personal or political gain.” - **Verification of Facts**: Accurate presentation of facts is crucial; misleading the court can lead to penalties. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Eclipse](https://lawfoyer.in/doctrine-of-eclipse/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Eclipse, rooted in Article 13(1) of the Indian Constitution, addresses the status of pre-constitutional laws that conflict with fundamental rights. Such laws are not nullified but rendered dormant, becoming enforceable upon the removal of the inconsistency. **Content:** The **Doctrine of Eclipse**, rooted in **Article 13(1)** of the **Indian Constitution**, addresses the status of pre-constitutional laws that conflict with fundamental rights. Such laws are not nullified but rendered dormant, becoming enforceable upon the removal of the inconsistency. ### **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Eclipse** posits that any pre-constitutional law conflicting with fundamental rights is overshadowed, or “eclipsed,” rendering it inoperative. However, it remains valid for past transactions and non-citizens. Upon amendment of the conflicting fundamental right, the law revives and becomes enforceable. This principle ensures that laws are not entirely invalidated but are suspended until constitutional inconsistencies are resolved. ### **HISTORICAL BACKGROUND / EVOLUTION** The doctrine’s foundation lies in **Article 13** of the **Indian Constitution**, which addresses laws inconsistent with fundamental rights. - **Article 13(1):** Renders pre-constitutional laws void to the extent of inconsistency. - **Article 13(2):** Prohibits the state from making post-constitutional laws that infringe upon fundamental rights. The **Supreme Court**, in **Bhikaji Narain Dhakras v. State of Madhya Pradesh (AIR 1955 SC 781)**, elucidated this doctrine, stating that laws eclipsed by fundamental rights are not dead but dormant and can be revived if the inconsistency is removed. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - **Article 13(1):** Declares that all pre-constitutional laws inconsistent with fundamental rights are void to the extent of such inconsistency. - **Article 13(2):** Prohibits the state from making laws that infringe upon fundamental rights, rendering any such law **void ab initio**. These provisions ensure that laws conflicting with fundamental rights are either rendered **dormant** (pre-constitutional) or **void from inception** (post-constitutional). ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. **Bhikaji Narain Dhakras v. State of Madhya Pradesh (AIR 1955 SC 781):** - **Facts:** The **C.P. and Berar Motor Vehicles (Amendment) Act, 1947**, authorized the state government to monopolize motor transport services, excluding private operators. Post-constitution, this was challenged for violating **Article 19(1)(g)**. - **Issue:** Whether the pre-constitutional law, now inconsistent with fundamental rights, was entirely void. - **Held:** The **Supreme Court** held that the law was not null but dormant due to the inconsistency. The **1951 amendment to Article 19(6)** removed this inconsistency, reviving the law. 2. **Deep Chand v. State of Uttar Pradesh (1959):** - **Facts:** A post-constitutional law was challenged for violating fundamental rights. - **Issue:** Applicability of the Doctrine of Eclipse to post-constitutional laws. - **Held:** The **Supreme Court** ruled that post-constitutional laws violating fundamental rights are **void ab initio** and cannot be revived by subsequent constitutional amendments. 3. **State of Gujarat v. Ambica Mills (1974):** - **Facts:** A post-constitutional law was contested for inconsistency with fundamental rights. - **Issue:** Whether such a law is entirely void or can have limited applicability. - **Held:** The **Supreme Court** opined that a post-constitutional law inconsistent with fundamental rights is not null in all cases and may apply to individuals not entitled to those rights, such as non-citizens. ### **DOCTRINES / THEORIES** - **Doctrine of Severability:** This principle allows for the separation of unconstitutional provisions from a statute, enabling the remainder to remain operative. It complements the **Doctrine of Eclipse** by ensuring only the conflicting parts of a law are affected. ### **MAXIMS / PRINCIPLES** - **“Lex non cogit ad impossibilia”:** The law does not compel the impossible. This maxim underpins the **Doctrine of Eclipse**, acknowledging that laws valid at their inception should not be entirely invalidated due to subsequent constitutional developments. ### **COMPARISON WITH OTHER DOCTRINES** - **Doctrine of Eclipse vs. Doctrine of Severability:** - **Doctrine of Eclipse:** Renders a conflicting law dormant until the inconsistency is removed. - **Doctrine of Severability:** Excises the unconstitutional portion, allowing the rest to function. - **Application:** The former applies primarily to pre-constitutional laws, whereas the latter can apply to both pre and post-constitutional laws. ### **APPLICATION TO NON-CITIZENS** The **Doctrine of Eclipse** primarily protects citizens’ fundamental rights. However, laws eclipsed due to inconsistency with citizens’ rights may still apply to non-citizens, as they are not entitled to certain fundamental rights under Articles like **Article 19**. This distinction was highlighted in the **State of Gujarat v. Ambica Mills** case. ### **FUTURE IMPLICATIONS** The **Doctrine of Eclipse** ensures that pre-constitutional laws are not entirely nullified due to inconsistencies with fundamental rights. This allows for the possibility of their revival if constitutional amendments remove the inconsistencies, maintaining legal continuity and stability. ### **CRITICISM / APPRECIATION** - **Criticism:** - Some scholars argue that the doctrine creates ambiguity regarding the status of laws and their applicability, potentially leading to legal uncertainty. - **Appreciation:** - The doctrine is praised for balancing the preservation of existing laws with the protection of fundamental rights, ensuring that laws are not hastily invalidated but are given the opportunity for revival upon constitutional amendments. ### **CONCLUSION** The **Doctrine of Eclipse** plays a pivotal role in **Indian constitutional law** by addressing the status of pre-constitutional laws conflicting with fundamental rights. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Severability](https://lawfoyer.in/doctrine-of-severability/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Severability ensures that if a portion of a statute is unconstitutional, only the offending part is invalidated, preserving the remainder. This principle upholds legislative intent while safeguarding Fundamental Rights. **Content:** The **Doctrine of Severability** ensures that if a portion of a statute is unconstitutional, only the offending part is invalidated, preserving the remainder. This principle upholds legislative intent while safeguarding **Fundamental Rights**. ### **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Severability**, also known as the **Doctrine of Separability**, is integral to constitutional law. It posits that if certain provisions of a statute contravene the Constitution, particularly the **Fundamental Rights**, those specific provisions can be declared void, leaving the rest of the statute enforceable. This doctrine is enshrined in **Article 13 of the Indian Constitution**, which states that any law inconsistent with **Fundamental Rights** is void to the extent of the inconsistency. ### **HISTORICAL BACKGROUND / EVOLUTION** The origins of the **Doctrine of Severability** trace back to English jurisprudence, notably the case of ***Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd.* (1894) A.C. 535**. Here, the court invalidated the offending portion of a contract but upheld the remainder. This principle influenced Indian legal thought and was incorporated into the **Indian Constitution** to ensure that laws violating **Fundamental Rights** could be appropriately addressed without discarding entire statutes. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** For the **Doctrine of Severability** to apply, certain conditions must be met: - ***Separability***: The valid and invalid provisions must be distinct and separable. If the valid parts can function independently of the invalid ones, the doctrine can be applied. - ***Legislative Intent***: Courts assess whether the legislature would have enacted the valid provisions without the invalid ones. If so, the valid portions can stand. - ***Functional Independence***: The remaining statute should be capable of enforcing the legislative intent without the invalidated sections. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 13 of the Indian Constitution** embodies the **Doctrine of Severability**. It mandates that any law contravening **Fundamental Rights** is void to the extent of the contravention. This provision empowers courts to excise unconstitutional parts of a statute while retaining the rest. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark judgments have shaped the application of the **Doctrine of Severability** in India: 1. ***State of Bombay v. F.N. Balsara (1951)***: The **Supreme Court** invalidated certain provisions of the **Bombay Prohibition Act, 1949**, that infringed upon **Fundamental Rights**. However, it upheld the rest of the Act, demonstrating the application of severability. 2. ***R.M.D. Chamarbaugwalla v. Union of India (1957)***: This case clarified that if the valid and invalid parts of a statute are inseparable, the whole statute becomes void. However, if they are separable, only the offending provisions are struck down. 3. ***Minerva Mills Ltd. v. Union of India (1980)***: The **Supreme Court** struck down sections of the **42nd Amendment Act, 1976**, for violating the Constitution’s **basic structure**, while upholding the rest of the amendment. 4. ***Kihoto Hollohan v. Zachillhu (1992)***: In this case, **Paragraph 7 of the Tenth Schedule** was declared unconstitutional for violating **Article 368(2)**. The rest of the **Tenth Schedule** remained valid, illustrating the doctrine’s application. ### **DOCTRINES / THEORIES** The **Doctrine of Severability** operates alongside other constitutional doctrines: - ***Doctrine of Eclipse***: This doctrine holds that unconstitutional laws are not nullified but become inoperative as long as they conflict with **Fundamental Rights**. If the conflict is resolved, the law can become operative again. - ***Doctrine of Basic Structure***: Established in ***Kesavananda Bharati v. State of Kerala (1973)***, this doctrine asserts that certain fundamental features of the Constitution cannot be altered by amendments. ### **MAXIMS / PRINCIPLES** The maxim ***“utile per inutile non vitiatur”*** applies here, meaning “the useful is not vitiated by the useless.” This principle underpins the **Doctrine of Severability**, allowing courts to remove invalid provisions without discarding the entire statute. ### **COMPARISON WITH OTHER COUNTRIES** The **Doctrine of Severability** is prevalent in various legal systems: - **United States**: The **U.S. Supreme Court** applies this doctrine to invalidate unconstitutional provisions while preserving the rest of the statute. - **United Kingdom**: Originating from common law, **UK courts** have historically applied this doctrine to contracts and statutes, ensuring that invalid clauses do not nullify entire agreements. ### **CRITICISM / APPRECIATION** While the **Doctrine of Severability** preserves legislative intent and upholds the rule of law, it faces criticism: - ***Judicial Overreach***: Critics argue that by severing provisions, courts may unintentionally alter legislative intent. - ***Complexity in Application***: Determining the separability of provisions can be complex, leading to inconsistent judgments. ### **FUTURE IMPLICATIONS** As legislation becomes more intricate, the **Doctrine of Severability** will continue to play a crucial role in constitutional adjudication. It ensures that laws align with constitutional mandates without unnecessary invalidation, maintaining legal stability and protecting **Fundamental Rights**. ### **FLOWCHART: APPLICATION OF THE DOCTRINE OF SEVERABILITY** ```mermaid graph TD A[Statute with Potentially Unconstitutional Provisions] B{Assess Separability} C[Invalid Provisions Severed] D[Entire Statute Invalidated] A --> B --> C B --> D ``` **Categories:** Articles, Constitutional Law --- ### [Doctrine of Pith and Substance](https://lawfoyer.in/doctrine-of-pith-and-substance/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Pith and Substance is a pivotal principle in Indian constitutional law. It determines the true nature of legislation when jurisdictional overlaps occur between the Union and State legislatures. This doctrine ensures that laws are evaluated based on their core intent, maintaining the constitutional balance of legislative powers. **Content:** The **Doctrine of Pith and Substance** is a pivotal principle in Indian constitutional law. It determines the true nature of legislation when jurisdictional overlaps occur between the **Union** and **State legislatures**. This doctrine ensures that laws are evaluated based on their core intent, maintaining the constitutional balance of legislative powers. ### **MEANING AND DEFINITION** *“Pith”* refers to the true essence or nature of something, while *“substance”* denotes its most significant part. In legal terms, the **Doctrine of Pith and Substance** involves identifying the main purpose of a law to ascertain its constitutional validity, especially when it appears to encroach upon the jurisdiction allocated to another legislative body. This approach ensures that **incidental overlaps** do not render a law invalid if its primary objective falls within the enacting legislature’s competence. ### **HISTORICAL BACKGROUND AND EVOLUTION** The doctrine originated in **Canadian jurisprudence** and was later incorporated into **Indian constitutional law**. It was first applied in India during the pre-independence era under the **Government of India Act, 1935**. A notable case is ***Prafulla Kumar Mukherjee v. Bank of Commerce***, where the **Privy Council** upheld a **state law on money lending**, stating that **incidental encroachment** on central subjects does not invalidate the law if its primary subject is within the state’s jurisdiction. ### **CONSTITUTIONAL PROVISIONS** **Article 246 of the Indian Constitution** delineates the distribution of legislative powers between the **Parliament** and **State Legislatures** through three lists in the **Seventh Schedule**: - **UNION LIST (LIST I):** Subjects on which only **Parliament** can legislate. - **STATE LIST (LIST II):** Subjects exclusive to **State Legislatures**. - **CONCURRENT LIST (LIST III):** Subjects where both **Parliament** and **State Legislatures** can legislate. The **Doctrine of Pith and Substance** is applied to determine the true nature of legislation when disputes arise regarding legislative competence, ensuring that laws serve their intended purpose without being invalidated due to **incidental overlaps**. ### **APPLICATION IN INDIAN JUDICIARY** The **Indian judiciary** has frequently applied this doctrine to resolve conflicts between **Union** and **State legislation**. Key cases include: 1. ***State of Bombay v. F.N. Balsara* (1951):** The **Supreme Court** upheld the **Bombay Prohibition Act**, stating that its primary objective was within the state’s power, even though it incidentally affected **import and export across customs frontiers**, a central subject. 2. ***Prafulla Kumar Mukherjee v. Bank of Commerce* (1947):** The **Privy Council** held that a **state law on money lending** was valid despite incidentally affecting **promissory notes**, a central subject, emphasizing the law’s true nature and purpose. 3. ***State of Karnataka v. Ranganatha Reddy* (1977):** The **Supreme Court** applied the doctrine to uphold a **state law nationalizing certain road transport services**, determining that the law’s primary objective was within the state’s legislative competence. ### **PRINCIPLES AND MAXIMS** The doctrine embodies the principle that the **constitutionality of legislation** should be determined by its **true nature and character**, not by its incidental effects on subjects beyond the legislature’s competence. This approach prevents the invalidation of laws due to **minor overlaps** and maintains legislative efficacy. ### **PROCEDURE FOR DETERMINATION** When assessing the validity of legislation under this doctrine, courts typically follow these steps: 1. **Identify the Subject Matter:** Determine the primary subject of the legislation. 2. **Examine Legislative Competence:** Assess whether the identified subject falls within the jurisdiction of the enacting legislature as per the **Seventh Schedule**. 3. **Evaluate Incidental Encroachment:** Consider whether the legislation **incidentally encroaches** upon another legislature’s domain and if such encroachment is permissible. ### **COMPARISON WITH OTHER DOCTRINES** While the **Doctrine of Pith and Substance** focuses on the true nature of legislation, the **Doctrine of Colourable Legislation** examines whether a legislature has transgressed its constitutional limits under the guise of enacting a law within its competence. Both doctrines aim to maintain the **constitutional distribution of powers** but address different aspects of legislative overreach. ### **SIGNIFICANCE IN INDIAN FEDERALISM** The doctrine provides flexibility in the **distribution of powers**, allowing legislatures to enact laws addressing complex issues without being unduly restricted by rigid jurisdictional boundaries. This flexibility is crucial in a **federal structure** like India’s, where overlapping interests between the **Union** and **States** are common. ### **CRITICISM AND LIMITATIONS** Critics argue that the doctrine may lead to excessive **judicial discretion**, potentially undermining the clear division of powers envisaged in the Constitution. Additionally, frequent reliance on the doctrine might blur the lines of **legislative competence**, causing jurisdictional ambiguities. ### **CONCLUSION** The **Doctrine of Pith and Substance** plays a vital role in interpreting the distribution of legislative powers in India. By focusing on the **true essence of legislation**, it ensures that laws serve their intended purpose without being invalidated due to **incidental overlaps**, thus maintaining the delicate balance of power in India’s **federal structure**. ### **REFERENCES** 1. ***Prafulla Kumar Mukherjee v. Bank of Commerce***, \[1947\] 74 IA 23. 2. ***State of Bombay v. F.N. Balsara***, AIR 1951 SC 318. 3. ***State of Karnataka v. Ranganatha Reddy***, AIR 1978 SC 215. 4. Drishti Judiciary, **“Doctrine of Pith and Substance.”** 5. iPleaders, **“Doctrine of Pith and Substance.”** 6. BYJU’S, **“Doctrine of Pith and Substance.”** **Categories:** Articles, Constitutional Law --- ### [Doctrine of Colourable Legislation](https://lawfoyer.in/doctrine-of-colourable-legislation/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Colourable Legislation is a constitutional law principle ensuring that legislative bodies do not transgress their jurisdictional boundaries by enacting laws indirectly that they cannot pass directly. This doctrine upholds the federal structure by maintaining the separation of powers between the Union and State legislatures in India. **Content:** The **Doctrine of Colourable Legislation** is a constitutional law principle ensuring that legislative bodies do not transgress their jurisdictional boundaries by enacting laws indirectly that they cannot pass directly. This doctrine upholds the federal structure by maintaining the separation of powers between the Union and State legislatures in India. ## **MEANING, DEFINITION & EXPLANATION** Derived from the Latin maxim **“Quando aliquid prohibetur ex directo, prohibetur et per obliquum,”** meaning **“What cannot be done directly, cannot be done indirectly,”** the **Doctrine of Colourable Legislation** addresses situations where a legislature enacts laws that, in form, appear within its jurisdiction but, in substance, encroach upon matters beyond its constitutional competence. In essence, if a legislature lacks the authority to legislate on a particular subject directly, it cannot achieve the same result indirectly under the guise of a different legislative power. ## **HISTORICAL BACKGROUND / EVOLUTION** The doctrine traces its origins to **British constitutional principles** and was subsequently adopted in countries like **Canada and Australia**. In India, the concept was introduced during British rule to delineate the legislative powers between the Centre and the provinces. Post-independence, the doctrine became integral to the **Indian constitutional framework**, ensuring that both **Parliament** and **State Legislatures** operate within their designated spheres as outlined in the **Seventh Schedule of the Constitution**. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 246 of the Indian Constitution** demarcates the legislative competencies of Parliament and State Legislatures through three lists: - **Union List (List I):** Subjects on which only **Parliament** can legislate. - **State List (List II):** Subjects exclusive to **State Legislatures**. - **Concurrent List (List III):** Subjects on which both Parliament and State Legislatures can legislate. The doctrine comes into play when a law’s constitutionality is challenged on the grounds that it oversteps the legislative body’s authority. Courts then examine the **“pith and substance”** of the legislation to determine its true nature and whether it falls within the legislature’s jurisdiction. ## **MAXIMS / PRINCIPLES** - **Pith and Substance Doctrine:** This principle assesses the true character of legislation to ascertain under which list (Union, State, or Concurrent) a given piece of legislation falls. If the main subject of the legislation is within the legislature’s competence, incidental encroachments on another’s jurisdiction may be permissible. - **Doctrine of Colourable Legislation:** It ensures that a legislature does not transgress its constitutional limits by enacting legislation that, while apparently within its power, in reality, pertains to a subject beyond its jurisdiction. ## **CASE LAWS / PRECEDENTS** 1. **K.C. Gajapati Narayan Deo v. State of Orissa (1953):** - **Facts:** The **Orissa Agricultural Income Tax (Amendment) Act, 1950**, was challenged, alleging it aimed to unjustly reduce compensation to intermediaries by increasing the tax burden. - **Issue:** Whether the Act was a colourable piece of legislation infringing upon constitutional provisions. - **Observation:** The **Supreme Court** held that the Act was within the legislative competence of the State, as taxation on agricultural income falls under the **State List**. The Court emphasized that the motive behind the legislation is irrelevant if the legislature is competent to enact it. 2. **State of Bihar v. Kameshwar Singh (1952):** - **Facts:** The **Bihar Land Reforms Act, 1950**, aimed at abolishing zamindari systems, was contested on the grounds that it provided inadequate compensation, allegedly violating constitutional rights. - **Issue:** Whether the Act was a colourable legislation violating constitutional provisions. - **Observation:** The **Supreme Court** invalidated certain provisions of the Act, deeming them discriminatory and a fraud on the Constitution. The Court noted that while the objective of land reforms was legitimate, the method adopted was unconstitutional. 3. **M.R. Balaji v. State of Mysore (1962):** - **Facts:** The **Mysore Government’s order** reserving 68% of seats in educational institutions for backward classes was challenged for exceeding the constitutional limit. - **Issue:** Whether the excessive reservation was a colourable exercise of power under the guise of affirmative action. - **Observation:** The **Supreme Court** held that while reservations are permissible, they should be reasonable. An excessive quota was deemed unconstitutional, as it violated the **principle of equality**. 4. **Animal Welfare Board of India v. Union of India (2014):** - **Facts:** The validity of laws permitting traditional bull-taming sports like **Jallikattu** was questioned, alleging they circumvented **animal cruelty laws**. - **Issue:** Whether permitting such sports amounted to colourable legislation violating animal rights. - **Observation:** The **Supreme Court** ruled that exemptions provided for such sports were unconstitutional, as they violated the **Prevention of Cruelty to Animals Act, 1960**. The Court emphasized that cultural practices cannot override animal rights. ## **LIMITATIONS OF THE DOCTRINE** - **Legislative Competence:** The doctrine applies only to questions of legislative competence, not to the motives or intentions behind the legislation. If a legislature is competent to enact a law, the doctrine does not question the purpose of the law. - **Incidental Encroachment:** Minor encroachments on another legislature’s domain may be permissible if the law’s primary subject is within the enacting legislature’s competence. The doctrine does not apply. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Territorial Nexus](https://lawfoyer.in/doctrine-of-territorial-nexus/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Territorial Nexus is a constitutional principle that allows Indian states to legislate on matters beyond their territorial boundaries, provided a substantial connection exists between the state and the subject matter. This doctrine ensures legislative competence and maintains federal balance within India's legal framework. **Content:** The **Doctrine of Territorial Nexus** is a constitutional principle that allows Indian states to legislate on matters beyond their territorial boundaries, provided a substantial connection exists between the state and the subject matter. This doctrine ensures legislative competence and maintains federal balance within India’s legal framework. **MEANING, DEFINITION & EXPLANATION** **Article 245 of the Indian Constitution** outlines the extent of laws made by Parliament and State Legislatures: - **Article 245(1):** **Parliament may make laws for the whole or any part of India, and the Legislature of a State may make laws for the whole or any part of the State.** - **Article 245(2):** **No law made by Parliament shall be deemed invalid on the ground that it has extraterritorial operation.** While Parliament possesses the authority to enact laws with **extraterritorial effect**, State Legislatures are generally confined to their territorial jurisdictions. However, the **Doctrine of Territorial Nexus** permits states to legislate beyond their borders if a substantial and real connection exists between the state and the subject matter. This ensures that state laws are not invalidated solely due to their extraterritorial reach, provided the **nexus** is genuine and pertinent. **HISTORICAL BACKGROUND / EVOLUTION** The doctrine’s roots can be traced to pre-independence judicial decisions, notably: - **Wallace Bros. & Co. Ltd. v. Commissioner of Income Tax (1948):** A UK-based company operating in India was taxed on income earned within British India. The court upheld the tax, emphasizing a substantial connection between the income and the territory, thereby establishing the principle that a **real territorial nexus** justifies extraterritorial legislation. Post-independence, the doctrine was incorporated into the Constitution, reflecting the framers’ intent to balance legislative powers between the Union and the States while accommodating necessary extraterritorial legislation. **ESSENTIALS / ELEMENTS / PRE-REQUISITES** For a state law to have valid extraterritorial operation under this doctrine, two key conditions must be satisfied: 1. ***Real and Substantial Connection:*** The link between the state and the subject matter must be genuine, not superficial or illusory. 2. ***Relevance of Liability:*** The obligations or liabilities imposed by the law should directly relate to this connection, ensuring the law’s applicability is justified. **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** The **Seventh Schedule of the Constitution** delineates subjects under three lists: - **Union List (List I):** **Subjects on which only Parliament can legislate.** - **State List (List II):** **Subjects exclusive to State Legislatures.** - **Concurrent List (List III):** **Subjects where both Parliament and State Legislatures can legislate.** While states are primarily restricted to the **State List**, the **Doctrine of Territorial Nexus** allows them to legislate on matters outside their territory if a substantial nexus exists, ensuring the legislation’s validity despite its extraterritorial reach. **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark judgments have elucidated this doctrine: 1. ***State of Bombay v. R.M.D. Chamarbaugwala (1957):*** The Bombay Legislature imposed a tax on prize competitions, including those conducted outside the state but involving participants from Bombay. The **Supreme Court** upheld the tax, citing a sufficient territorial nexus between the state and the activities taxed. 2. ***Tata Iron & Steel Co. Ltd. v. State of Bihar (1958):*** Bihar imposed a tax on goods manufactured by Tata Iron & Steel in the state but sold elsewhere. The **Supreme Court** validated the tax, emphasizing the substantial connection between the manufacturing activities within Bihar and the imposed tax. 3. ***State of Bihar v. Charusila Dasi (1959):*** A trust located outside Bihar owned property within the state. Bihar sought to impose estate duty on the property. The **Supreme Court** upheld the state’s right, highlighting the real connection between the property within Bihar and the state’s legislative competence. **DOCTRINES / THEORIES** The **Doctrine of Territorial Nexus** operates alongside other constitutional doctrines to maintain legislative balance: - ***Doctrine of Pith and Substance:*** Determines the true nature of legislation to ascertain legislative competence, especially when overlaps occur between different legislative lists. - ***Doctrine of Colourable Legislation:*** Prevents legislatures from enacting laws that, while appearing to be within their jurisdiction, in reality, encroach upon the domain of another legislature.**MAXIMS / PRINCIPLES** The doctrine embodies the principle of **“mobilia sequuntur personam,”** meaning movable property follows the person. This implies that for taxation or legal purposes, the location of the property owner can establish a sufficient nexus for legislative action. **COMPARISON WITH OTHER COUNTRIES** In federal systems like the **United States**, the principle of territorial nexus is recognized, allowing states to exercise jurisdiction beyond their borders if a substantial connection exists. The **“minimum contacts” standard** in U.S. jurisdictional law mirrors this concept, requiring sufficient connection between the state and the subject for the state’s laws to apply. **CRITICISM / APPRECIATION** While the doctrine ensures flexibility in legislative competence, critics argue it may lead to **jurisdictional overreach** by states, potentially causing conflicts with other states or the Union. However, its role in accommodating the dynamic nature of governance and inter-state relations is widely acknowledged. **FUTURE IMPLICATIONS** As India’s economic and social activities increasingly transcend state boundaries, the **Doctrine of Territorial Nexus** will continue to play a pivotal role in determining legislative competence, ensuring laws remain relevant and effective in a progressively interconnected landscape. **FLOWCHART: APPLICATION OF THE DOCTRINE OF TERRITORIAL NEXUS** ```mermaid graph TD A[State Legislature Enacts Law] --> B{Does the Law Have Extraterritorial Operation?} B -- Yes --> C{Is There a Real and Substantial Connection Between the State and the Subject Matter?} C -- Yes --> D[Law is Valid] C -- No --> E[Law is Invalid] B -- No --> D[Law is Valid] ``` **TABLE: COMPARISON OF LEGISLATIVE POWERS** **Aspect****Parliament (Union)****State Legislatures****Territorial Jurisdiction**Whole of IndiaWhole or part of the state**Extraterritorial Operation**Allowed (under Article 245)Allowed only with substantial territorial nexus**Legislative Subjects**Union List, Concurrent ListState List, Concurrent List **Categories:** Articles, Constitutional Law --- ### [Doctrine of Repugnancy](https://lawfoyer.in/doctrine-of-repugnancy/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Repugnancy addresses conflicts between central and state laws in India, ensuring legal consistency when both governments legislate on the same subject. **Content:** The **Doctrine of Repugnancy** addresses conflicts between central and state laws in India, ensuring legal consistency when both governments legislate on the same subject. ## **MEANING AND DEFINITION** *Repugnancy* refers to a contradiction between two laws that, when applied to the same facts, yield different outcomes. In India’s federal structure, both **Parliament** and **state legislatures** can legislate on subjects in the **Concurrent List (List III)** of the Constitution. Conflicts may arise when both enact laws on the same subject, leading to inconsistencies. **Article 254** of the Indian Constitution embodies the **Doctrine of Repugnancy**, resolving such conflicts by granting **supremacy to central laws** over conflicting state laws. ## **HISTORICAL BACKGROUND** The **Doctrine of Repugnancy** in India draws inspiration from the **Government of India Act, 1935**, particularly **Section 107**, which addressed conflicts between **federal and provincial laws**. This provision was incorporated into the Indian Constitution as **Article 254**, aiming to maintain a harmonious legal system by resolving inconsistencies between **central and state legislation**. ## **LEGAL PROVISIONS: ARTICLE 254** **Article 254** outlines the framework for resolving conflicts between central and state laws: - **Article 254(1):** If a state law conflicts with a central law on a subject in the **Concurrent List**, the central law prevails, and the state law becomes void to the extent of the inconsistency. - **Article 254(2):** A state law conflicting with a central law can prevail in that state if it has received the **President’s assent**. However, **Parliament retains the power** to override such state laws by enacting subsequent legislation. ## **ESSENTIALS FOR REPUGNANCY** For the **Doctrine of Repugnancy** to apply, certain conditions must be met: 1. **Same Subject Matter:** Both central and state laws must pertain to the same subject in the **Concurrent List**. 2. **Direct Conflict:** The provisions of the two laws must be directly contradictory, making it impossible to obey one without disobeying the other. 3. **Parliamentary Competence:** The central law must be within **Parliament’s legislative competence**. ## **JUDICIAL INTERPRETATIONS AND CASE LAWS** The judiciary has played a pivotal role in interpreting the **Doctrine of Repugnancy**. Notable cases include: - **M. Karunanidhi v. Union of India (1979):** The **Supreme Court** held that for **repugnancy** to arise, there must be a direct inconsistency between central and state laws, making simultaneous obedience impossible. In this case, the court found no repugnancy between the **Tamil Nadu Public Men (Criminal Misconduct) Act, 1973**, and the **Prevention of Corruption Act, 1947**, as both could coexist without conflict. - **Deep Chand v. State of Uttar Pradesh (1959):** The court ruled that **repugnancy** arises when two laws are so inconsistent that they cannot stand together; in such cases, the **central law prevails**. Here, a state amendment to the **Motor Vehicles Act** was found repugnant to the central law and thus void. - **State of Kerala v. Mar Appraem Kuri Co. Ltd. (2012):** The **Supreme Court** observed that mere possibility of conflict does not lead to **repugnancy**; there must be an actual and irreconcilable inconsistency. The case involved the **Kerala Chitties Act, 1975**, and the **Central Chit Funds Act, 1982**, where the court held that both laws could operate concurrently without conflict. ## **EXCEPTIONS AND PRESIDENT’S ASSENT** **Article 254(2)** provides an exception wherein a **state law conflicting with central legislation** can prevail if it has received the **President’s assent**. This assent signifies acknowledgment of the inconsistency and approval of the state’s legislative intent. However, **Parliament** can subsequently enact laws to override such state legislation. ## **DOCTRINE OF PITH AND SUBSTANCE** The **Doctrine of Pith and Substance** is employed to determine the true nature of legislation when there is a question of legislative competence. If the substance of a law falls within the jurisdiction of the enacting body, incidental encroachments on another body’s jurisdiction do not render it invalid. This doctrine helps in resolving conflicts where the legislative domains of the **Centre and the States overlap**. ## **COMPARISON WITH OTHER COUNTRIES** In federal systems like **Australia** and **Canada**, similar doctrines exist to resolve conflicts between **federal and state/provincial laws**. - In **Australia**, **Section 109** of the Constitution provides that **federal laws prevail** over inconsistent state laws. - Similarly, in **Canada**, the doctrine of **federal paramountcy** ensures that **federal laws supersede conflicting provincial laws**. ## **IMPLICATIONS FOR INDIAN FEDERALISM** The **Doctrine of Repugnancy** underscores the **supremacy of Parliament** in matters of **concurrent jurisdiction**, ensuring uniformity in the legal framework across India. However, it also provides flexibility for state-specific legislation through the mechanism of **Presidential assent**, reflecting the **quasi-federal nature** of the Indian Constitution. ## **CONCLUSION** The **Doctrine of Repugnancy** is a crucial aspect of Indian constitutional law, balancing the legislative powers of the **Centre and the States**. It ensures that in cases of conflict, **central laws maintain uniformity across the nation**, while also allowing for **state-specific variations** through **Presidential assent**. Understanding this doctrine is essential for comprehending the legislative dynamics within India’s **federal structure**. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Prospective Overruling](https://lawfoyer.in/doctrine-of-prospective-overruling/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Prospective Overruling allows courts to overturn existing legal precedents without affecting past decisions, applying the new interpretation only to future cases. This approach ensures legal continuity and fairness, preventing disruption of settled matters. **Content:** The **Doctrine of Prospective Overruling** allows courts to overturn existing legal precedents without affecting past decisions, applying the new interpretation only to future cases. This approach ensures legal continuity and fairness, preventing disruption of settled matters. ## **MEANING AND DEFINITION** ***Prospective overruling*** refers to a judicial practice where a court overturns an existing precedent but limits the effect of this change to future cases. Unlike traditional overruling, which applies both retrospectively and prospectively, ***prospective overruling*** ensures that past decisions based on the old precedent remain unaffected. This doctrine acknowledges the dynamic nature of law, allowing it to evolve without causing undue hardship to those who relied on previous legal standards. ## **HISTORICAL BACKGROUND AND EVOLUTION** ***Origin in the United States*** The doctrine originated in American jurisprudence in the early 20th century as a departure from the Blackstonian view that judges merely declare existing law. It was first recognized in the case of ***Great Northern Railway Co. v. Sunburst Oil & Refining Co.***, 287 U.S. 358 (1932), where Justice Cardozo upheld a state’s decision to apply a new rule prospectively, emphasizing judicial flexibility in the interests of justice. ***Adoption in India*** In India, the Supreme Court introduced the doctrine in ***I.C. Golaknath v. State of Punjab***, AIR 1967 SC 1643. The Court faced the challenge of balancing constitutional amendments with fundamental rights. To prevent chaos from invalidating past amendments, Chief Justice K. Subba Rao applied ***prospective overruling***, stating that while Parliament lacked the power to amend fundamental rights henceforth, previous amendments would remain valid. ## **KEY PRINCIPLES OF THE DOCTRINE** - ***Applicability***: The doctrine applies primarily to constitutional matters, ensuring that changes in legal interpretations do not unsettle established rights and obligations. - ***Authority***: Only the Supreme Court of India can apply this doctrine, as it holds the constitutional authority to declare law binding on all courts within the country. - ***Discretion***: The Court exercises discretion in determining the extent of retroactive application, molding it to serve the interests of justice in each case. - ***Purpose***: The primary aim is to prevent the reopening of settled issues and to provide a transition period for affected parties to adjust to the new legal landscape. ## **APPLICATION IN INDIAN JURISPRUDENCE** ***I.C. Golaknath v. State of Punjab* (1967)** - ***Facts***: The petitioners owned over 500 acres of land in Punjab. The Punjab Security of Land Tenures Act, 1953, restricted landholdings, allowing individuals to retain only 30 acres. The petitioners challenged the Act, arguing it violated their fundamental rights. - ***Issue***: Could Parliament amend the Constitution to abridge fundamental rights under Part III? - ***Held***: The Supreme Court ruled that Parliament could not amend fundamental rights. However, to avoid unsettling past actions, the Court applied the ***doctrine of prospective overruling***, stating that the decision would apply only to future amendments. ## ***Kesavananda Bharati v. State of Kerala* (1973)** - ***Facts***: Swami Kesavananda Bharati challenged the Kerala government’s attempts to impose restrictions on the management of religious property, invoking the validity of certain constitutional amendments. - ***Issue***: What is the extent of Parliament’s power to amend the Constitution, and does it include the power to alter the basic structure? - ***Held***: The Supreme Court held that while Parliament has wide powers to amend the Constitution, it cannot alter its ***basic structure***. The ***doctrine of prospective overruling*** was applied to ensure that previous amendments were not invalidated, maintaining legal continuity. ## ***Sarwan Kumar v. Madan Lal Aggarwal* (2003)** - ***Facts***: The case involved a dispute over tenancy rights and the applicability of certain legal provisions that had been amended over time. - ***Issue***: Whether the amended provisions should apply retrospectively, affecting vested rights. - ***Held***: The Supreme Court applied the ***doctrine of prospective overruling***, stating that the law declared would apply to future cases only, preserving the validity of past transactions conducted under the old law. ## **COMPARISON WITH OTHER JURISDICTIONS** ***United States*** In the U.S., the doctrine has been employed to balance the need for legal development with the principle of ***stare decisis***. Courts have used ***prospective overruling*** to change legal interpretations without disrupting past decisions, thereby maintaining stability and fairness. ***United Kingdom*** The UK legal system traditionally follows the declaratory theory, where judicial decisions are seen as stating what the law has always been. However, there has been a gradual acceptance of ***prospective overruling*** in certain cases to prevent injustice, though it remains less prevalent compared to the U.S. and India. ## **ADVANTAGES OF THE DOCTRINE** - ***Legal Stability***: Maintains consistency in the legal system by upholding past decisions while allowing for legal evolution. - ***Fairness***: Prevents hardship to individuals who have relied on established legal precedents in their actions and decisions. - ***Judicial Flexibility***: Enables courts to adapt the law to changing societal needs without causing retrospective injustice. ## **CRITICISM OF THE DOCTRINE** - ***Judicial Overreach***: Critics argue that it allows courts to assume a quasi-legislative role, making laws rather than interpreting them. - ***Uncertainty***: The discretionary nature of the doctrine can lead to unpredictability in its application, potentially undermining legal certainty. ## **CONCLUSION** The **Doctrine of Prospective Overruling** serves as a vital judicial tool in Indian law, balancing the need for legal development with the principles of fairness and stability. By applying new interpretations prospectively, courts can ensure the evolution of law without unsettling past decisions or causing hardship to individuals who have relied on established precedents. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Laches](https://lawfoyer.in/doctrine-of-laches/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Laches is a legal principle that bars claims due to unreasonable delays in pursuing them, emphasizing that "equity aids the vigilant, not those who slumber on their rights." **Content:** The **Doctrine of Laches** is a legal principle that bars claims due to unreasonable delays in pursuing them, emphasizing that **“equity aids the vigilant, not those who slumber on their rights.”** **MEANING AND DEFINITION** **Laches**, derived from the French term meaning “remissness” or “slackness,” refers to a lack of diligence in asserting a legal right. This doctrine prevents individuals from seeking equitable relief if they have unreasonably delayed in asserting their claim, causing disadvantage to the opposing party. The Latin maxim **“Vigilantibus non dormientibus jura subveniunt”** encapsulates this principle, meaning **“the law assists those who are vigilant, not those who sleep over their rights.”** **HISTORICAL BACKGROUND** The **Doctrine of Laches** originated in the English **Court of Chancery**, where equity principles were developed to mitigate the rigidity of common law. Over time, this doctrine was integrated into various legal systems, including **India’s**, to ensure fairness by discouraging undue delays in legal proceedings. **ESSENTIALS OF THE DOCTRINE** For the **Doctrine of Laches** to apply, certain elements must be present: - ***Knowledge of the Claim***: The claimant must have been aware of their rights and the need to enforce them. - ***Unreasonable Delay***: There must be a significant and unjustifiable delay in asserting the claim. - ***Prejudice to the Opposing Party***: The delay should have adversely affected the defendant, such as through loss of evidence or changed circumstances. **LEGAL PROVISIONS AND APPLICATION IN INDIA** While the **Limitation Act, 1963**, prescribes specific time limits for filing suits, the **Doctrine of Laches** operates in the realm of **equity**, particularly when no statutory limitation period is specified. **Indian courts** have applied this doctrine to ensure that plaintiffs do not exploit legal processes by initiating claims after unreasonable delays. **COMPARISON WITH THE LIMITATION ACT** Although both the **Doctrine of Laches** and the **Limitation Act** deal with delays, they differ fundamentally: - ***Limitation Act***: Specifies fixed time frames for various legal actions, focusing solely on the passage of time. - ***Doctrine of Laches***: Centers on the reasonableness of the delay and its impact on the defendant, even in the absence of a statutory limitation period. **KEY CASE LAWS IN INDIA** 1. ***Tilokchand Motichand v. H.B. Munshi (1969)***: The Supreme Court held that even in the absence of a prescribed limitation period, unreasonable delay could bar relief under **Article 32 of the Constitution**. 2. ***State of Maharashtra v. Digambar (1995)***: The respondent sought compensation for land acquisition after two decades. The Supreme Court applied the **Doctrine of Laches**, emphasizing that such delays could render claims unsustainable. 3. ***Shiv Dass v. Union of India (2007)***: The appellant’s delayed claim for disability pension was denied, with the Court reiterating that belated approaches could be dismissed on grounds of **laches**. **APPLICATION IN WRIT JURISDICTIONS** **Indian courts** have consistently emphasized that petitioners must approach the judiciary promptly when seeking writ remedies. **Delays** can lead to the dismissal of petitions, especially if the delay remains unexplained or results in prejudice to the respondent. **INTERNATIONAL PERSPECTIVE** Globally, the **Doctrine of Laches** serves as an equitable defense, preventing claims where plaintiffs have delayed unreasonably. For instance, in the **United States**, this doctrine is frequently invoked in civil disputes to ensure fairness. **CONCLUSION** The **Doctrine of Laches** plays a pivotal role in the **Indian legal system**, ensuring that justice remains timely and equitable. By discouraging undue delays, it upholds the principle that **legal remedies are for the vigilant**, thereby maintaining the integrity of judicial processes. **REFERENCES** 1. **ClearIAS**. “Indian Judicial Doctrines – Principles of Constitutional Law.” 2. **Legal Service India**. “An Analysis On The Doctrine Of Laches.” 3. **BYJU’S**. “Doctrine of Laches – Meaning, Importance, Case Examples for UPSC.” 4. **Prepp**. “Doctrine of Laches – Indian Polity Notes.” 5. **Legal Dictionary**. “Doctrine of Laches – Definition, Examples, Cases, Processes.” **Categories:** Articles, Constitutional Law --- ### [Doctrine of Waiver](https://lawfoyer.in/doctrine-of-waiver/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Waiver allows individuals to voluntarily relinquish a known legal right or privilege. In India, this doctrine does not extend to fundamental rights enshrined in the Constitution. Indian courts have consistently held that fundamental rights cannot be waived, emphasizing their paramount importance in safeguarding individual liberties. **Content:** The Doctrine of Waiver allows individuals to voluntarily relinquish a known legal right or privilege. In India, this doctrine does not extend to **fundamental rights** enshrined in the Constitution. Indian courts have consistently held that **fundamental rights** cannot be waived, emphasizing their paramount importance in safeguarding individual liberties. ### **MEANING AND DEFINITION** A **waiver** involves the intentional and voluntary abandonment of a known right. According to **Black’s Law Dictionary**, it is **“the voluntary relinquishment or abandonment—express or implied—of a legal right or advantage.”** In the Indian legal context, while individuals may waive certain **statutory** or **contractual rights**, they cannot waive **fundamental rights** guaranteed by the Constitution. ### **HISTORICAL BACKGROUND** The concept of **waiver** has roots in **common law**, where individuals could choose to forgo certain legal rights. In India, the application of this doctrine has been carefully scrutinized, especially concerning **constitutional rights**. The judiciary has played a pivotal role in delineating the boundaries of this doctrine to ensure that **fundamental rights** remain inviolable. ### **ESSENTIALS OF A VALID WAIVER** For a **waiver** to be considered valid, the following elements must be present: - **Knowledge**: The individual must have full awareness of the right they are relinquishing and understand the consequences of such an action. - **Intention**: There must be a clear intention to waive the right, which can be expressed explicitly through words or implicitly through conduct. - **Voluntariness**: The decision to waive the right must be made freely, without any coercion or undue influence. ### **APPLICATION IN INDIAN LAW** In India, while the **Doctrine of Waiver** applies to certain legal rights, it does not extend to **fundamental rights**. The **Supreme Court** has consistently held that individuals cannot waive their **fundamental rights**, as these rights are integral to the Constitution’s framework and public policy. ### **KEY CASE LAWS** 1. ***Behram Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123***: In this case, the **Supreme Court** held that **fundamental rights** are based on principles embodied in the Constitution’s **preamble** and cannot be waived. The court emphasized that these rights are a matter of **public policy** and are non-negotiable. 2. ***Olga Tellis & Ors v. Bombay Municipal Corporation, AIR 1986 SC 180***: Pavement dwellers gave an undertaking that they would not claim any **fundamental right** to put up huts on pavements. When the huts were demolished, they pleaded protection under **Article 21**. The **Supreme Court** ruled that **fundamental rights** cannot be waived and that there can be no **estoppel** against the Constitution. 3. ***Basheshar Nath v. Commissioner of Income Tax, 1959 AIR 149***: The petitioner contended that the agreement he entered into with the tax authorities violated his **fundamental rights**. The **Supreme Court** held that **fundamental rights** cannot be waived by any individual, as they are guaranteed by the Constitution for the benefit of all citizens. ### **LIMITATIONS AND EXCEPTIONS** While individuals can waive certain legal rights, the following limitations apply: - **Fundamental Rights**: Cannot be waived, as they are essential to individual freedom and public policy. - **Public Interest**: Rights conferred for public benefit cannot be waived if such waiver would be detrimental to **public interest**. ### **COMPARISON WITH OTHER JURISDICTIONS** In contrast to India, some countries allow individuals to waive certain constitutional rights. For instance: - In the **United States**, individuals can waive specific rights, such as the **right to a jury trial**, under certain conditions. However, even in such jurisdictions, the waiver must be made **knowingly, voluntarily, and intelligently**. ### **CONCLUSION** The **Doctrine of Waiver** in India underscores the sanctity of **fundamental rights**, ensuring they remain inviolable and beyond the reach of individual waiver. This principle reinforces the Constitution’s commitment to safeguarding individual liberties and upholding **public policy**. ### **REFERENCES** 1. **Drishti Judiciary**. “Doctrine of Waiver in Indian Constitution.” 2. **iPleaders**. “Doctrine of Waiver.” 3. **Leverage Edu**. “Doctrine Of Waiver in India: Meaning, Judgements.” 4. **EduRev**. “Doctrine of Waiver.” 5. **SCC Online**. “Explained: Waiver | An intentional relinquishment of a right; an agreement not to assert a right: Supreme Court.” **Categories:** Articles, Constitutional Law --- ### [Doctrine of Legitimate Expectation](https://lawfoyer.in/doctrine-of-legitimate-expectation/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Legitimate Expectation ensures fairness in administrative actions, allowing individuals to anticipate consistent treatment from public authorities based on past conduct or explicit promises. This principle, integral to Indian administrative law, enables judicial review of administrative decisions to prevent arbitrariness. **Content:** The **Doctrine of Legitimate Expectation** ensures fairness in administrative actions, allowing individuals to anticipate consistent treatment from public authorities based on past conduct or explicit promises. This principle, integral to Indian administrative law, enables judicial review of administrative decisions to prevent arbitrariness. **MEANING AND DEFINITION** *Legitimate expectation* arises when a public authority’s consistent practice or explicit promise leads an individual to reasonably anticipate a specific treatment or benefit. Although not a legal right, it serves as a ground for challenging administrative actions that deviate from established norms without justification. The Supreme Court of India, in ***Ram Pravesh Singh v. State of Bihar***, described it as arising from “regular and consistent past practice” or an “express promise” by an authority. **HISTORICAL BACKGROUND** The doctrine’s roots trace back to English law, notably the case of ***Council of Civil Service Unions v. Minister for the Civil Service*** (\[1985\] AC 374), where it was held that a decision by a public authority should not deprive a person of a benefit they had been permitted to enjoy without providing a valid reason or an opportunity to be heard. In India, it gained prominence through ***State of Kerala v. K.G. Madhavan Pillai*** ((1988) 4 SCC 669), where the Supreme Court recognized that the withdrawal of a previously granted sanction without adhering to principles of natural justice violated legitimate expectations. **ESSENTIALS OF LEGITIMATE EXPECTATION** For an expectation to be deemed legitimate, certain criteria must be met: - ***Established Practice or Promise***: There must be a consistent past practice or an explicit promise by the authority. - ***Reasonableness***: The expectation should be reasonable and not based on mere hope or desire. - ***Reliance***: The individual should have relied on the practice or promise to their detriment. - ***Authority’s Conduct***: The authority’s actions should have led the individual to believe that the expected benefit would continue. **TYPES OF LEGITIMATE EXPECTATIONS** 1. ***Procedural Legitimate Expectation***: Expectation of a fair procedure before a decision affecting rights or interests is made. 2. ***Substantive Legitimate Expectation***: Expectation of a specific benefit or advantage based on an authority’s promise or established practice. **LEGAL PROVISIONS AND PRINCIPLES** While the doctrine isn’t codified in Indian statutes, it aligns with constitutional principles of fairness and non-arbitrariness under **Article 14**. It ensures that public authorities act transparently and justly, upholding individuals’ expectations arising from consistent practices or explicit promises. **CASE LAWS AND PRECEDENTS** - ***State of Kerala v. K.G. Madhavan Pillai***: The Supreme Court held that the withdrawal of a previously granted sanction without adhering to principles of natural justice violated legitimate expectations. - ***Navjyoti Coop. Group Housing Society v. Union of India***: The Court ruled that changing the criteria for land allotment without notice violated the legitimate expectations of the housing societies, which were entitled to a fair hearing. - ***Food Corporation of India v. Kamdhenu Cattle Feed Industries***: The Supreme Court emphasized that a bona fide decision by a public authority, even if it alters previous practices, would satisfy the requirements of legitimate expectation if it is made fairly and reasonably. **EXCEPTIONS TO THE DOCTRINE** Legitimate expectation does not apply in certain situations: - ***Contrary to Law***: If the expectation conflicts with statutory provisions. - ***Public Interest***: When overriding public interest justifies a departure from the expected practice. - ***Change in Policy***: Authorities may change policies, provided the change is not arbitrary and affected parties are given due consideration. **COMPARISON WITH PROMISSORY ESTOPPEL** While both doctrines prevent authorities from reneging on promises, **legitimate expectation** pertains to procedural fairness in administrative actions, whereas **promissory estoppel** relates to enforcing promises in contractual contexts. The Supreme Court, in ***State of Jharkhand v. Brahmputra Metallics Ltd.***, clarified that legitimate expectation is grounded in **Article 14’s** guarantee against arbitrary state actions. **CONCLUSION** The **Doctrine of Legitimate Expectation** serves as a vital tool in Indian administrative law, ensuring that public authorities act fairly and transparently, honoring established practices and promises, thereby upholding individuals’ expectations and reinforcing the rule of law. **REFERENCES** 1. ***State of Kerala v. K.G. Madhavan Pillai***, (1988) 4 SCC 669. 2. ***Navjyoti Coop. Group Housing Society v. Union of India***, (1992) 4 SCC 477. 3. ***Food Corporation of India v. Kamdhenu Cattle Feed Industries***, (1993) 1 SCC 71. 4. ***State of Jharkhand v. Brahmputra Metallics Ltd.***, (2020) 18 SCC 476. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Pleasure: Article 310](https://lawfoyer.in/doctrine-of-pleasure-article-310/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Pleasure, enshrined in Article 310 of the Indian Constitution, stipulates that civil servants hold office at the discretion of the President or the Governor. This principle, rooted in English common law, allows for the termination of government employees without prior notice or reason, ensuring administrative flexibility. **Content:** The **Doctrine of Pleasure**, enshrined in **Article 310 of the Indian Constitution**, stipulates that civil servants hold office at the discretion of the **President** or the **Governor**. This principle, rooted in **English common law**, allows for the termination of government employees without prior notice or reason, ensuring administrative flexibility. However, the **Indian Constitution** introduces safeguards, notably through **Article 311**, to protect against arbitrary dismissal, thereby balancing governmental authority with employee rights. ### **MEANING AND DEFINITION** The **Doctrine of Pleasure** implies that government officials serve at the pleasure of the appointing authority—the **President** at the Union level and the **Governor** at the State level. This means their tenure is not fixed and can be terminated without prior notice or justification. The doctrine is based on public policy considerations, ensuring that the government can remove officials whose continuation in office is deemed detrimental to public interest. ### **HISTORICAL BACKGROUND** Originating from **English common law**, the **Doctrine of Pleasure** was introduced in India during **British rule**. It was first incorporated into Indian law through the **Charter Act of 1833** and later acknowledged in **Section 240 of the Government of India Act, 1935**. Post-independence, the framers of the **Indian Constitution** adopted this doctrine with modifications to suit the democratic framework of the country. ### **CONSTITUTIONAL PROVISIONS** - ***Article 310(1):*** Establishes that members of the **defense services**, **civil services of the Union**, **all-India services**, and holders of **civil posts** under the Union or a State serve at the pleasure of the **President** or the **Governor**, respectively. - ***Article 311:*** Provides safeguards against arbitrary dismissal, removal, or reduction in rank of civil servants. It mandates that such actions cannot be taken without an inquiry that offers the accused a reasonable opportunity to defend themselves. ### **EXCEPTIONS TO THE DOCTRINE** Certain constitutional positions are exempt from the **Doctrine of Pleasure** to ensure their independence: - ***Judges of the Supreme Court and High Courts:*** Their removal is governed by **Articles 124 and 217**, requiring a rigorous impeachment process. - ***Comptroller and Auditor General of India (CAG):*** Protected under **Article 148**, ensuring independence in auditing government finances. - ***Chief Election Commissioner:*** Secured under **Article 324**, maintaining autonomy in overseeing elections. ### **JUDICIAL INTERPRETATIONS AND LANDMARK JUDGMENTS** The **Indian judiciary** has played a pivotal role in interpreting the **Doctrine of Pleasure**, balancing it with the need for fairness and justice. - ***State of Bihar v. Abdul Majid (AIR 1954 SC 245):*** The **Supreme Court** held that the English common law **Doctrine of Pleasure** has not been fully adopted in India. A government servant, wrongfully dismissed, can claim arrears of salary, emphasizing that the doctrine is subject to constitutional provisions. - ***Union of India v. Tulsiram Patel (AIR 1985 SC 1416):*** This case clarified the interplay between **Articles 309**, **310**, and **311**. The Court acknowledged the necessity of the **Doctrine of Pleasure** for administrative efficiency but emphasized the safeguards provided by **Article 311** to prevent arbitrary dismissals. - ***State of U.P. v. Babu Ram Upadhya (AIR 1961 SC 751):*** The **Supreme Court** stated that the **Doctrine of Pleasure** under **Article 310** is not absolute and is subject to the provisions of the **Constitution**, including **Article 311**, which provides safeguards to civil servants. ### **COMPARISON WITH OTHER COUNTRIES** In the **United Kingdom**, the **Doctrine of Pleasure** allows the **Crown** to dismiss civil servants at will, a principle rooted in **common law**. However, in practice, this power is exercised with restraint, and statutory protections have evolved to safeguard civil servants’ rights. In contrast, **India’s adoption** of the doctrine includes explicit **constitutional safeguards**, reflecting a more structured approach to balancing executive authority and employee rights. ### **LIMITATIONS AND SAFEGUARDS** While **Article 310** embodies the **Doctrine of Pleasure**, its application is curtailed by: - ***Article 311(1):*** Prevents dismissal or removal by an authority subordinate to the one that appointed the civil servant. - ***Article 311(2):*** Ensures that no civil servant is dismissed, removed, or reduced in rank without an inquiry providing a reasonable opportunity for defense. ### **EXCEPTIONS TO ARTICLE 311** There are specific circumstances where the protections under **Article 311(2)** may not apply: - ***Conviction on a Criminal Charge:*** If a civil servant is convicted of a criminal offense, they can be dismissed without an inquiry. - ***Impracticability of Inquiry:*** If holding an inquiry is not feasible, the authority must record reasons in writing for dispensing with the inquiry. - ***Security of the State:*** If the **President** or **Governor** is satisfied that an inquiry is not expedient in the interest of state security, it can be waived. ### **DOCTRINE OF PLEASURE IN PRACTICE** The **Doctrine of Pleasure** ensures that the government can maintain an efficient and effective administrative machinery by removing officials whose continuation is against public interest. However, the **constitutional safeguards**, particularly under **Article 311**, ensure that this power is not exercised arbitrarily, thus protecting the rights of civil servants. ### **CONCLUSION** The **Doctrine of Pleasure**, as articulated in **Article 310 of the Indian Constitution**, reflects a balance between the necessity for administrative discretion and the protection of civil servants’ rights. While it grants the government the authority to terminate services in the interest of public policy, the accompanying safeguards ensure that such power is exercised judiciously, upholding the principles of **natural justice** and **fairness**. ### **REFERENCES** 1. ***State of Bihar v. Abdul Majid, AIR 1954 SC 245.*** 2. ***Union of India v. Tulsiram Patel, AIR 1985 SC 1416.*** 3. ***State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751.*** **Categories:** Articles, Constitutional Law --- ### [Doctrine of Public Trust](https://lawfoyer.in/doctrine-of-public-trust/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Public Trust mandates that certain natural resources are preserved for public use, and the government, as a trustee, must protect and maintain these resources for the public's benefit. **Content:** The **Doctrine of Public Trust** mandates that certain natural resources are preserved for public use, and the government, as a trustee, must protect and maintain these resources for the public’s benefit. ## **MEANING, DEFINITION & EXPLANATION** The **Public Trust Doctrine** asserts that certain natural resources, like air, water, forests, and wildlife, are preserved for public use, and the government holds these resources in trust for the people. This principle ensures that the public retains the right to access and use these resources for activities such as navigation, fishing, and recreation. The doctrine imposes a duty on the state to protect these resources from private exploitation or commercial use that could harm public interests. ## **HISTORICAL BACKGROUND / EVOLUTION** Originating from **Roman law**, the Public Trust Doctrine was based on the principle that certain resources were common to all and could not be privately owned. This concept was later integrated into **English common law**, emphasizing the sovereign’s role in protecting public rights over these resources. In the United States, the doctrine was notably applied in cases like ***Illinois Central Railroad v. Illinois***, **146 U.S. 387 (1892)**, where the **U.S. Supreme Court** held that the state held title to the lands under navigable waters in trust for the public. In India, the doctrine gained prominence through judicial decisions, particularly in environmental jurisprudence. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - ***Trustee***: The state or government acts as the trustee of natural resources. - ***Beneficiaries***: The general public, including future generations, are the beneficiaries entitled to use and enjoy these resources. - ***Trust Property***: Natural resources such as air, water, forests, and wildlife constitute the trust property. - ***Obligations of the Trustee***: The state must protect, preserve, and manage these resources sustainably, preventing their exploitation or degradation. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In India, while the **Public Trust Doctrine** is not explicitly mentioned in the Constitution, it has been inferred through various provisions: - ***Article 21***: Guarantees the **right to life**, which the judiciary has interpreted to include the **right to a healthy environment**. - ***Article 48A***: Directs the state to endeavor to protect and improve the environment and safeguard forests and wildlife. - ***Article 51A(g)***: Imposes a **fundamental duty** on citizens to protect and improve the natural environment. These provisions, read together, form the constitutional basis for the application of the **Public Trust Doctrine** in India. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. ***M.C. Mehta v. Kamal Nath***, **(1997) 1 SCC 388**: - ***Facts***: The Himachal Pradesh government leased ecologically fragile land to a private company, Span Motels, associated with Kamal Nath. The company altered the course of the Beas River to protect its motel from flooding, causing environmental degradation. - ***Issue***: Whether the state’s action of leasing the land and the subsequent environmental alterations violated the **Public Trust Doctrine**. - ***Held***: The **Supreme Court** held that the state, as a trustee of natural resources, had breached the **Public Trust Doctrine** by leasing the land for commercial purposes. The court emphasized that resources like rivers and forests are meant for public use and cannot be converted into private ownership. 2. ***M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu***, **(1999) 6 SCC 464**: - ***Facts***: The Lucknow Municipal Corporation permitted M.I. Builders to construct an underground shopping complex beneath a historic public park, Jhandewala Park, reducing public space. - ***Issue***: Whether the construction violated the **Public Trust Doctrine** by depriving the public of open space. - ***Held***: The **Supreme Court** ordered the demolition of the shopping complex, stating that the corporation had violated the **Public Trust Doctrine** by allowing the construction, which deprived the public of a valuable open space. 3. ***Fomento Resorts and Hotels Ltd. v. Minguel Martins***, **(2009) 3 SCC 571**: - ***Facts***: Fomento Resorts sought to restrict access to a beach area adjacent to its property, claiming ownership rights. - ***Issue***: Whether the company could restrict public access to the beach, considering the **Public Trust Doctrine**. - ***Held***: The **Supreme Court** reaffirmed that the state holds natural resources in trust for the public. It ruled that the company could not restrict public access to the beach, emphasizing that the seashore is a public resource. ## **DOCTRINES / THEORIES** - ***Sustainable Development***: This principle advocates for meeting the needs of the present without compromising the ability of future generations to meet their own needs. It aligns with the **Public Trust Doctrine** by emphasizing the sustainable use of natural resources. - ***Intergenerational Equity***: This concept focuses on fairness between current and future generations, ensuring that the exploitation of natural resources does not deprive future generations of their rightful inheritance. ## **MAXIMS / PRINCIPLES** - ***“Sic utere tuo ut alienum non laedas”***: This Latin maxim means **“Use your property in such a manner as not to injure that of others.”** It underscores the responsibility to use natural resources without causing harm to others, reflecting the essence of the **Public Trust Doctrine**. ## **AMENDMENTS / ADDITIONS / REPEALING** While there have been no specific constitutional amendments directly incorporating the **Public Trust Doctrine**, judicial interpretations have effectively integrated it into Indian environmental jurisprudence. The courts have expanded the scope of **Article 21** to include environmental protection, thereby reinforcing the doctrine’s applicability. ## **STATISTICAL ANALYSIS / DATA ANALYSIS** Studies have shown that the application of the **Public Trust Doctrine** has led to increased environmental awareness and stricter regulation of resource exploitation in India. It has also encouraged public participation in environmental protection and helped in curbing private encroachments on public resources. **Categories:** Articles, Constitutional Law --- ### [Doctrine of State Action](https://lawfoyer.in/doctrine-of-state-action/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of State Action ensures that fundamental rights are protected against infringements by the State and its instrumentalities, as defined under Article 12 of the Indian Constitution. **Content:** The **Doctrine of State Action** ensures that **fundamental rights** are protected against infringements by the **State** and its instrumentalities, as defined under **Article 12** of the Indian Constitution. ### **MEANING, DEFINITION & EXPLANATION** The **Doctrine of State Action** pertains to actions taken by the government or its agencies that impact individual rights. In the Indian context, this doctrine ensures that **fundamental rights** enshrined in **Part III of the Constitution** are safeguarded against violations by the **“State,”** as defined in **Article 12**. **Article 12** includes the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. This broad definition ensures that any entity performing public functions or receiving substantial government funding is considered the **State** for the purposes of enforcing **fundamental rights**. ### **HISTORICAL BACKGROUND / EVOLUTION** The evolution of the **Doctrine of State Action** in India has been significantly influenced by judicial interpretations, particularly concerning **Article 12**. The **Supreme Court of India** has expanded the definition of **“State”** to include various bodies and institutions. In the landmark case of ***Ajay Hasia v. Khalid Mujib Sehravardi***, (1981) 1 SCC 722, the Court laid down criteria to determine whether an entity is an instrumentality or agency of the **State**. These criteria include factors such as: - The extent of financial assistance provided by the government, - Control over the management and policies of the entity, and - Whether the entity enjoys a monopoly status conferred by the **State**. This expansive interpretation ensures that bodies performing public functions are held accountable for upholding **fundamental rights**. ### **COMPARISON WITH OTHER COUNTRIES** In the **United States**, the **State Action Doctrine** limits the application of constitutional rights to governmental actions, excluding private conduct unless it involves significant state involvement. This contrasts with the **Indian approach**, where the definition of **“State”** under **Article 12** is broader, encompassing entities beyond traditional government bodies, thereby extending the reach of **fundamental rights**. This broader interpretation ensures that even private entities performing public functions or receiving substantial government aid are subject to constitutional scrutiny in India. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** For an action to be considered a **“State action”** under Indian law, the following elements are essential: - ***Government Control***: The entity must be under significant government control or influence. - ***Public Function***: The entity should perform functions of public importance or closely related to governmental functions. - ***Financial Assistance***: Substantial financial aid or funding from the government to the entity. - ***State Conferred Monopoly***: The entity enjoys a monopoly status granted by the **State**. These criteria were elaborated in the ***Ajay Hasia*** case, providing a framework to determine whether an entity falls within the ambit of **“State”** under **Article 12**. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 12** of the Indian Constitution defines the term **“State”** for the purposes of **Part III**, which deals with **fundamental rights**. This definition is crucial in determining against whom these rights can be enforced. Entities considered as **“State”** are subject to constitutional scrutiny to ensure they do not infringe upon **fundamental rights**. The judiciary has played a pivotal role in interpreting this definition to include various bodies and institutions, thereby broadening the scope of entities accountable under the Constitution. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. ***Ajay Hasia v. Khalid Mujib Sehravardi***, (1981) 1 SCC 722: In this case, the **Supreme Court** provided a six-factor test to determine whether an entity is an instrumentality or agency of the **State**. The factors include: - Financial assistance from the **State**, - Control of the management and policies by the **State**, - Monopoly status, and - Public importance of functions. The Court held that a society registered under the **Societies Registration Act**, substantially financed and controlled by the government, falls within the definition of **“State”** under **Article 12**. 2. ***Ramana Dayaram Shetty v. International Airport Authority of India***, (1979) 3 SCC 489: The **Supreme Court** held that the International Airport Authority, though a separate legal entity, was an instrumentality of the **State** due to deep and pervasive **State control**. The Court emphasized that the concept of **“State”** under **Article 12** is not confined to entities created by the Constitution or statute but extends to agencies and instrumentalities of the **State**. 3. ***Pradeep Kumar Biswas v. Indian Institute of Chemical Biology***, (2002) 5 SCC 111: The **Supreme Court** reiterated the tests laid down in ***Ajay Hasia*** and held that the **Council of Scientific and Industrial Research (CSIR)** is an instrumentality of the **State** under **Article 12**, considering factors like government funding, control, and public function. ### **DOCTRINES / THEORIES** - ***Instrumentality Theory***: This theory posits that any entity that is an instrumentality or agency of the government falls within the definition of **“State”** under **Article 12**. The **Supreme Court**, in ***Ajay Hasia***, provided criteria to determine whether an entity is an instrumentality of the **State**, ensuring that such bodies are subject to constitutional obligations. - ***Public Function Test***: If a body performs functions of public importance closely related to governmental functions, it is considered a **“State”** under **Article 12**. This ensures that entities discharging public functions cannot evade constitutional accountability. ### **MAXIMS / PRINCIPLES** - **“Ubi jus ibi remedium”**: Where there is a right, there is a remedy. This principle underscores the importance of the **Doctrine of State Action**, ensuring that violations of **fundamental rights** by the **State** or its instrumentalities have legal remedies. - **“Equality before law”**: Enshrined in **Article 14**, this principle mandates that the **State** shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It ensures that all actions of the **State** are free from arbitrariness and discrimination. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Stare Decisis](https://lawfoyer.in/doctrine-of-stare-decisis/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Stare Decisis, rooted in the Latin maxim "stare decisis et non quieta movere," mandates courts to adhere to established precedents to ensure legal consistency and predictability. In India, this principle is enshrined in Article 141 of the Constitution, which states that the law declared by the Supreme Court is binding on all courts within the territory of India. **Content:** The **Doctrine of Stare Decisis**, rooted in the Latin maxim **“stare decisis et non quieta movere,”** mandates courts to adhere to established precedents to ensure legal consistency and predictability. In India, this principle is enshrined in **Article 141 of the Constitution**, which states that the law declared by the **Supreme Court** is binding on all courts within the territory of India. **MEANING, DEFINITION & EXPLANATION** **Stare Decisis** translates to **“to stand by decisions and not to disturb settled matters.”** This doctrine obliges courts to follow legal precedents set by higher judiciary to maintain consistency in the law. It ensures that similar cases are adjudicated similarly, fostering stability and predictability in the legal system. The **Supreme Court of India**, through **Article 141**, declares that its decisions are binding on all subordinate courts, reinforcing the hierarchical nature of judicial decisions. **HISTORICAL BACKGROUND / EVOLUTION** The concept of **Stare Decisis** was introduced in India during British colonial rule. The establishment of a hierarchical judiciary and the practice of recording judicial decisions led to the adoption of this doctrine. The **Government of India Act, 1935**, under **Section 212**, emphasized the binding nature of **Federal Court** decisions on subordinate courts. Post-independence, the **Indian Constitution**, through **Article 141**, continued this tradition, making **Supreme Court decisions** binding on all courts within India. **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - **Existence of a Hierarchical Judicial System**: A structured court system where lower courts are bound by the decisions of higher courts. - **Publication of Judicial Decisions**: Availability of past judgments to serve as references for future cases. - **Consistency in Legal Reasoning**: Adherence to established legal principles unless there is a compelling reason to deviate. **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - **Article 141 of the Indian Constitution**: States that the law declared by the **Supreme Court** shall be binding on all courts within the territory of India. - **Article 137 of the Indian Constitution**: Grants the **Supreme Court** the power to review its judgments, ensuring flexibility within the doctrine. **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - **Karnal Improvement Trust v. Parkash Wanti (1995)**: Emphasized the importance of adhering to precedents to maintain consistency in the law. - **Shanker Raju v. Union of India (2011)**: Reiterated that judgments holding the field for a long time should not be unsettled, highlighting the significance of **Stare Decisis**. **DOCTRINES / THEORIES** - **Ratio Decidendi**: The legal principle or rationale upon which a case is decided. This forms the binding part of a precedent. - **Obiter Dicta**: Observations made by a judge that are not essential to the decision. These do not have a binding effect but may be persuasive. **MAXIMS / PRINCIPLES** - **Stare Decisis et Non Quieta Movere**: **“To stand by decisions and not to disturb settled matters.”** This maxim underpins the doctrine, emphasizing the importance of legal certainty. **AMENDMENTS / ADDITIONS / REPEALING** While the doctrine promotes consistency, it is not inflexible. Courts may depart from precedents if there is a significant change in circumstances or if the previous decision is deemed incorrect. This ensures that the law evolves with societal changes. **CRITICISM / APPRECIATION** - **Criticism**: Some argue that strict adherence to precedents may hinder legal development and adaptation to new societal norms. - **Appreciation**: The doctrine provides stability, predictability, and fairness in the legal system, ensuring that similar cases yield similar outcomes. **COMPARISON WITH OTHER COUNTRIES** In the **United States**, the doctrine of **Stare Decisis** is fundamental, with courts generally adhering to precedents. However, the **U.S. Supreme Court** has overturned its previous rulings in certain landmark cases, demonstrating flexibility. In contrast, **civil law countries** like France do not follow the doctrine strictly, as their legal systems are based more on codified statutes than judicial precedents. **FUTURE IMPLICATIONS** The doctrine of **Stare Decisis** will continue to play a crucial role in maintaining legal consistency. However, as societies evolve, courts may increasingly face challenges in balancing adherence to precedents with the need for legal reforms to address contemporary issues. **FLOWCHART: APPLICATION OF STARE DECISIS IN THE INDIAN JUDICIAL SYSTEM** ```mermaid graph TD A[Supreme Court Decision] --> B[Binding on All Courts] B --> C[High Court Decisions] C --> D[Binding on Lower Courts within Jurisdiction] D --> E[Lower Court Decisions] ``` --- **TABLE: DIFFERENCES BETWEEN RATIO DECIDENDI AND OBITER DICTA** **Aspect****Ratio Decidendi****Obiter Dicta****Definition**The legal principle essential for the decision.Observations not essential to the decision.**Binding Nature**Binding on lower courts.Not binding but may be persuasive.**Role in Precedent**Forms the precedent to be followed in future cases.Does not form a precedent but can influence future judgments.**Identification**Determined by analyzing the judgment’s core reasoning.Identified as supplementary remarks or illustrations provided by the judge.--- **CONCLUSION** The **Doctrine of Stare Decisis** is integral to the Indian legal system, ensuring consistency and predictability in judicial decisions. While it promotes adherence to established precedents, the doctrine ensures flexibility by allowing deviations when necessary, enabling the law to evolve with changing societal needs. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Res Sub Judice](https://lawfoyer.in/doctrine-of-res-sub-judice/) **Published:** December 24, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Res Sub Judice, enshrined in Section 10 of the Code of Civil Procedure (CPC), 1908, prevents multiple courts from simultaneously adjudicating identical matters between the same parties. This doctrine ensures judicial efficiency and consistency by staying subsequent suits until the previously instituted suit is resolved. **Content:** The **Doctrine of Res Sub Judice**, enshrined in **Section 10 of the Code of Civil Procedure (CPC), 1908**, prevents multiple courts from simultaneously adjudicating identical matters between the same parties. This doctrine ensures judicial efficiency and consistency by staying subsequent suits until the previously instituted suit is resolved. ## **MEANING AND DEFINITION** *“Res Sub Judice”* is a Latin term where “Res” means ‘matter’ and “Sub Judice” means ‘under judgment.’ Thus, it refers to a matter pending judicial inquiry. **Section 10 of the CPC** embodies this doctrine, stating that no court shall proceed with the trial of any suit in which the matter in issue is directly and substantially the same as in a previously instituted suit between the same parties, pending in the same or any other court in India having jurisdiction to grant the relief claimed. ## **HISTORICAL BACKGROUND** The doctrine traces its roots to **Roman law**, specifically the concept of *“lis pendens,”* meaning a pending suit. It was incorporated into Indian jurisprudence through the **CPC** to prevent conflicting judgments and multiplicity of litigation. ## **ESSENTIALS OF RES SUB JUDICE** For **Section 10** to apply, the following conditions must be met: 1. ***Two Suits:*** There must be a previously instituted suit and a subsequently instituted suit. 2. ***Same Matter in Issue:*** The matter in issue in both suits must be directly and substantially the same. 3. ***Same Parties:*** Both suits must involve the same parties or their representatives litigating under the same title. 4. ***Pending Suit:*** The prior suit must be pending in a competent court within India. 5. ***Competent Jurisdiction:*** The court where the previous suit is pending must have jurisdiction to grant the relief claimed in the subsequent suit. These conditions are **cumulative**; all must be satisfied for the doctrine to apply. ## **LEGAL PROVISIONS** #### Section 10 of the CPC states: *“No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.”* ## **OBJECTIVES OF THE DOCTRINE** - ***Preventing Multiplicity of Proceedings:*** Ensures that multiple courts do not adjudicate the same matter simultaneously, avoiding wastage of judicial resources. - ***Avoiding Conflicting Judgments:*** Prevents different courts from delivering contradictory verdicts on the same issue. - ***Protecting Litigants from Harassment:*** Shields parties from facing multiple litigations for the same cause, ensuring fairness. ## **SCOPE AND APPLICATION** The doctrine applies to **civil suits** and is pertinent during the trial stage, not affecting the institution of suits. It does not preclude courts from passing interim orders such as **injunctions** or the **appointment of receivers**. Additionally, it applies to **appeals** and **revisions**. ## **EXCEPTIONS TO THE DOCTRINE** **Section 10** does not apply in the following scenarios: - ***Different Subject Matters:*** If the issues in the two suits are not directly and substantially the same. - ***Different Parties:*** If the parties in both suits are not the same or do not claim under the same title. - ***Pending in Foreign Court:*** The explanation to **Section 10** clarifies that the pendency of a suit in a foreign court does not preclude courts in India from trying a suit founded on the same cause of action. ## **KEY CASE LAWS** 1. **National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, AIR 2005 SC 242** - ***Facts:*** A civil suit and a writ petition involving similar issues were pending simultaneously. - ***Issue:*** Whether **Section 10** applies to stay proceedings in such a scenario. - ***Held:*** The Supreme Court held that **Section 10** does not apply to writ proceedings and is confined to civil suits. 2. **Vithalbhai (P) Ltd. v. Union Bank of India, (2005) 4 SCC 315** - ***Facts:*** Two suits involving the same subject matter were filed in different courts. - ***Issue:*** Applicability of **Section 10** to stay the subsequent suit. - ***Held:*** The Supreme Court clarified that the purpose of **Section 10** is to avoid multiple proceedings and conflicting decisions. However, it should be used judiciously and only when the issue in a subsequent suit is directly and substantially in issue in a previously instituted suit between the same parties. 3. **Niranjan Shankar Golikari vs. Century Spinning and Manufacturing Co. Ltd. (1967)** - ***Facts:*** Two suits with overlapping issues were pending in different courts. - ***Issue:*** Whether the trial of the subsequent suit should be stayed under **Section 10**. - ***Held:*** The Supreme Court emphasized the need for consistency in judicial rulings and reiterated that when the matter in issue is substantially the same, the trial must be stayed to avoid conflicting decisions. ## **COMPARISON WITH RES JUDICATA** While both doctrines aim to prevent multiple litigations, they operate differently: **Aspect****Res Sub Judice****Res Judicata*****Meaning***Bars trial of a subsequent suit when a prior suit on the same matter is pending.Bars re-litigation of issues already decided in a prior suit.***Stage of Application***Applies during the pendency of a prior suit.Applies after a suit is conclusively decided.***Legal Provision*****Section 10, CPC****Section 11, CPC*****Objective***Prevents multiple trials on the same issue simultaneously.Prevents re-adjudication of the same issue after a final judgment. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Double Jeopardy](https://lawfoyer.in/doctrine-of-double-jeopardy/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Double Jeopardy, enshrined in Article 20(2) of the Indian Constitution, ensures that no individual is prosecuted and punished more than once for the same offense. This principle upholds the rule of law and safeguards individual rights within the Indian legal framework. **Content:** The **Doctrine of Double Jeopardy**, enshrined in **Article 20(2)** of the **Indian Constitution**, ensures that no individual is prosecuted and punished more than once for the same offense. This principle upholds the rule of law and safeguards individual rights within the Indian legal framework. ## **MEANING AND DEFINITION** **Double Jeopardy** refers to the legal principle that prohibits an individual from being tried or punished twice for the same offense. **Article 20(2)** of the **Indian Constitution** states: “**No person shall be prosecuted and punished for the same offence more than once.**” This provision embodies the maxim ***nemo debet bis vexari pro eadem causa***, meaning no person should be vexed twice for the same cause. ## **HISTORICAL BACKGROUND** The concept of **Double Jeopardy** has roots in ancient **Roman law** and was later adopted into **English common law**. In India, the principle was introduced during **British colonial rule** and was incorporated into the **Indian Penal Code (IPC)** in 1860 and the **Criminal Procedure Code (CrPC)** in 1898. These codifications laid the foundation for the legal principle that would later be enshrined in the **Indian Constitution**. ## **LEGAL PROVISIONS IN INDIA** - **Constitution of India**: **Article 20(2)** provides protection against double jeopardy, ensuring that no person is prosecuted and punished for the same offense more than once. This protection is limited to cases where there has been both prosecution and punishment. - **Code of Criminal Procedure (CrPC), 1973**: **Section 300** of the **CrPC** expands on this principle, stating that a person who has been acquitted or convicted of an offense shall not be tried again for the same offense. This section covers both ***autrefois convict*** (previously convicted) and ***autrefois acquit*** (previously acquitted), providing broader protection against double jeopardy. ## **ESSENTIALS OF DOUBLE JEOPARDY** For the application of the **Double Jeopardy** doctrine, the following essentials must be satisfied: 1. ***Previous Proceedings***: There must have been a prior prosecution that resulted in either conviction or acquittal. 2. ***Same Offense***: The subsequent proceeding must be for the same offense for which the individual was previously prosecuted. 3. ***Competent Jurisdiction***: The initial prosecution must have been conducted by a court of competent jurisdiction. ## **EXCEPTIONS TO THE DOCTRINE** The protection against double jeopardy does not apply in certain situations: - ***Separate Sovereigns***: An individual can be tried for the same offense by different sovereign jurisdictions (e.g., by both state and central authorities) without violating the double jeopardy principle. - ***Civil and Criminal Proceedings***: The doctrine applies exclusively to criminal proceedings. An individual acquitted or convicted in a criminal case can still face civil proceedings for the same act. ## **CASE LAWS AND JUDICIAL INTERPRETATIONS** - **Maqbool Hussain v. State of Bombay (1953)**: In this case, the appellant was subjected to confiscation of gold by **customs authorities** and later prosecuted under the **Sea Customs Act**. The **Supreme Court** held that the customs authorities’ proceedings did not amount to a prosecution by a judicial tribunal; therefore, the subsequent trial did not violate **Article 20(2)**. - **S.A. Venkataraman v. Union of India (1954)**: The appellant faced **departmental proceedings** for corruption charges and was later prosecuted in a criminal court for the same charges. The **Supreme Court** ruled that **Article 20(2)** applies only to judicial proceedings and not to departmental or administrative proceedings. - **Kedar Nath v. State of West Bengal (1953)**: The appellant was acquitted of certain charges but later faced prosecution for a different offense based on the same facts. The **Supreme Court** clarified that **Article 20(2)** does not bar a subsequent trial if the offenses are distinct, even if based on the same facts. ## **INTERNATIONAL PERSPECTIVE** The principle of **Double Jeopardy** is recognized internationally: - **International Covenant on Civil and Political Rights (ICCPR)**: **Article 14(7)** states that no one shall be liable to be tried or punished again for an offense for which they have already been finally convicted or acquitted. - **European Convention on Human Rights (ECHR)**: **Protocol No. 7, Article 4**, provides similar protection against double jeopardy within the member states. ## **COMPARISON WITH OTHER JURISDICTIONS** - **United States**: The **Fifth Amendment** to the **U.S. Constitution** provides broader protection against double jeopardy, prohibiting multiple prosecutions for the same offense, regardless of whether the individual was acquitted or convicted in the initial trial. - **United Kingdom**: The **UK** traditionally followed the double jeopardy rule; however, exceptions have been introduced, allowing retrial for serious offenses if new and compelling evidence emerges. ## **CRITICISM AND APPRECIATION** - ***Criticism***: The narrow scope of **Article 20(2)** has been criticized for not providing protection against multiple prosecutions leading to acquittal, thereby allowing the possibility of harassment through repeated trials. - ***Appreciation***: The doctrine upholds the finality of judgments, prevents abuse of legal processes, and protects individuals from the emotional and financial strain of facing multiple prosecutions for the same offense. ## **CONCLUSION** The **Doctrine of Double Jeopardy** serves as a crucial safeguard in the **Indian legal system**, protecting individuals from being prosecuted and punished multiple times for the same offense. While **Article 20(2)** offers limited protection, the provisions of the **CrPC** provide a more comprehensive shield against double jeopardy, ensuring fairness and justice within the legal framework. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Audi Alteram Partem](https://lawfoyer.in/doctrine-of-audi-alteram-partem/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** Doctrine of Audi Alteram Partem, a Latin phrase meaning "hear the other side," is a fundamental principle of natural justice. It mandates that no person should be judged without a fair hearing, ensuring both parties in a dispute have an opportunity to present their case. **Content:** ***Meaning and Definition*** **Audi Alteram Partem**, a Latin phrase meaning “hear the other side,” is a fundamental principle of natural justice. It mandates that no person should be judged without a fair hearing, ensuring both parties in a dispute have an opportunity to present their case. This doctrine upholds fairness and prevents arbitrary decisions in legal and administrative proceedings. ## ***Historical Evolution*** The roots of **Audi Alteram Partem** trace back to ancient civilizations, including Roman law, where fairness in legal proceedings was paramount. Over time, this principle became integral to common law traditions, emphasizing that justice requires hearing both sides before making a decision. In India, the doctrine is embedded in **Articles 14** and **21** of the Constitution, which guarantee equality before the law and protection of life and personal liberty, respectively. The Supreme Court, in ***Maneka Gandhi v. Union of India***, AIR 1978 SC 597, expanded the interpretation of **Article 21**, emphasizing that the right to life and personal liberty includes the right to a fair procedure. ## ***Essentials of Audi Alteram Partem*** 1. ***Notice***: The affected individual must receive clear and precise information about the case against them, detailing the time, place, and nature of the hearing. Adequate notice enables the person to prepare an effective defense. In ***Keshav Mills Co. Ltd. v. Union of India***, AIR 1973 SC 389, the Supreme Court emphasized that the notice given to the parties should be clear and unambiguous. 2. ***Hearing***: The individual should have a reasonable opportunity to be heard, present evidence, and cross-examine witnesses. This ensures that decisions are made based on a comprehensive understanding of the facts. In ***Cooper v. Wandsworth Board of Works*** (1863) 143 ER 414, the court held that even though the Board had the power to demolish buildings erected without permission, no one could be deprived of their property without a chance to be heard. 3. ***Evidence Presentation***: The right to present and challenge evidence is crucial, allowing individuals to support their case and refute opposing claims. In ***State of Orissa v. Dr. (Miss) Binapani Dei***, AIR 1967 SC 1269, the Supreme Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice after informing the person concerned of the case of the State, the evidence in support thereof, and after giving an opportunity to the person concerned of being heard and meeting or explaining the evidence. ## ***Legal Provisions in India*** While the Indian Constitution does not explicitly mention **Audi Alteram Partem**, its essence is reflected in: - **Article 14**: Guarantees equality before the law, implying that all individuals should have an equal opportunity to be heard. The Supreme Court, in ***Delhi Transport Corporation v. DTC Mazdoor Congress***, 1991 Supp (1) SCC 600, observed that the rule of **audi alteram partem** enforces the equality clause in **Article 14**. - **Article 21**: Protects life and personal liberty, which courts have interpreted to include the right to a fair hearing. In ***Maneka Gandhi v. Union of India***, AIR 1978 SC 597, the Supreme Court held that the procedure established by law must be fair, just, and reasonable, thereby incorporating the principles of natural justice. ## ***Key Indian Case Laws*** 1. ***Maneka Gandhi v. Union of India***, AIR 1978 SC 597: The government’s impounding of Maneka Gandhi’s passport without providing her an opportunity to be heard was challenged. The Supreme Court held that the action violated the principles of natural justice, particularly **Audi Alteram Partem**, as she was not given a chance to present her case. This case expanded the interpretation of **Article 21**, emphasizing that the right to life and personal liberty includes the right to a fair procedure. 2. ***A.K. Kraipak v. Union of India***, (1969) 2 SCC 262: A member of the selection board for the Indian Forest Service was also a candidate, leading to a conflict of interest. The Supreme Court held that the selection process violated the principles of natural justice, including **Audi Alteram Partem**, as there was a conflict of interest and the process was not fair and impartial. 3. ***D.K. Yadav v. J.M.A. Industries Ltd.***, (1993) 3 SCC 259: An employee was dismissed without being given an opportunity to be heard. The Supreme Court held that such termination was invalid as it violated the principles of natural justice, including **Audi Alteram Partem**. The Court emphasized that even in disciplinary proceedings, an employee must be given a chance to present their case before any adverse action is taken. 4. ***State of Orissa v. Dr. (Miss) Binapani Dei***, AIR 1967 SC 1269: Dr. Binapani Dei was compulsorily retired from service based on an incorrect determination of her age without giving her a chance to be heard. The Supreme Court held that such an action was invalid as it did not comply with the principles of natural justice. The Court ruled that she should have been given an opportunity to present her case before any decision affecting her employment was made. ## *Exceptions to the Doctrine* While fundamental, **Audi Alteram Partem** has exceptions: - **Emergency Situations**: Immediate action may be necessary, rendering prior hearings impractical. In ***Union of India v. W.N. Chadha***, AIR 1993 SC 1082, the Supreme Court observed that the rule of **audi alteram partem** is a rule of justice and its application is excluded where the rule will itself lead to injustice. - **Confidentiality**: Matters involving state secrets or public safety may bypass this doctrine to prevent greater harm. In such cases, the application of the rule may be excluded if it leads to injustice. - **Legislative Functions**: Policy decisions by legislatures are typically exempt, as they represent collective societal interests. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Nemo Judex in Causa Sua](https://lawfoyer.in/doctrine-of-nemo-judex-in-causa-sua/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The doctrine of "Nemo Judex in Causa Sua," a fundamental principle of natural justice, asserts that no individual should act as a judge in their own cause. This rule ensures impartiality in judicial and administrative proceedings, preventing bias and upholding fairness. **Content:** The doctrine of **“Nemo Judex in Causa Sua,”** a fundamental principle of natural justice, asserts that no individual should act as a judge in their own cause. This rule ensures **impartiality** in judicial and administrative proceedings, preventing **bias** and upholding **fairness**. ### **MEANING, DEFINITION & EXPLANATION** **“Nemo Judex in Causa Sua”** is a **Latin maxim** meaning **“no one should be a judge in their own case.”** This principle mandates that **decision-makers must remain unbiased**, ensuring justice is not only done but also seen to be done. It addresses various forms of **bias**, including **personal**, **pecuniary**, and **subject-matter bias**, which can compromise the integrity of decisions. ### **HISTORICAL BACKGROUND / EVOLUTION** Originating from **Roman law**, the principle was crystallized by **Sir Edward Coke** in the 17th century. In ***Dr. Bonham’s Case* (1610)**, Coke emphasized that **common law would control acts of Parliament against common right and reason**, laying the foundation for this doctrine. Over time, it became integral to **English common law** and was subsequently adopted into **Indian jurisprudence**, reinforcing the importance of **impartial adjudication**. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - ***Impartiality***: Decision-makers must have no personal interest in the outcome. - ***Absence of Bias***: There should be no **reasonable suspicion of bias**. - ***Fair Procedure***: The process must ensure that justice is administered without prejudice. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In India, while the **Constitution** does not explicitly mention this doctrine, **Articles 14 and 21** have been interpreted to encompass principles of **natural justice**, including **“Nemo Judex in Causa Sua.”** The **judiciary** has reinforced this through various judgments, ensuring that any decision-making process adheres to the **rule against bias**. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. ***A.K. Kraipak v. Union of India,* AIR 1970 SC 150**: In this case, the acting Chief Conservator of Forests was a member of the selection committee for appointments, including his own. The **Supreme Court** held that his participation violated the principle of **“Nemo Judex in Causa Sua,”** rendering the selection invalid. 2. ***J. Mohapatra & Co. v. State of Orissa,* (1984) 4 SCC 103**: The Court observed that the **rule against bias** is subject to the **doctrine of necessity**, which allows a biased individual to decide if no alternative exists. However, this exception applies only in **genuine cases of necessity**. 3. ***Union of India v. B.N. Jha,* AIR 1957 SC 425**: The **Supreme Court** emphasized that any **interest, pecuniary or otherwise, in the subject matter** disqualifies a person from acting as a judge in that case, reinforcing the importance of **impartiality**. ### **EXCEPTIONS / DOCTRINE OF NECESSITY** The **doctrine of necessity** serves as an exception to **“Nemo Judex in Causa Sua.”** In situations where no alternative decision-maker is available, a person with potential bias may have to adjudicate to prevent a failure of justice. This exception is applied **sparingly** and under **strict conditions** to ensure it doesn’t undermine the principle of **impartiality**. ### **COMPARISON WITH OTHER COUNTRIES** The principle is **universally recognized**. - In the **UK**, it forms a core part of **common law**. - In the **US**, it’s embedded within the **due process clause of the Constitution**. - Similarly, the **Indian legal system** upholds this doctrine through **judicial interpretations**, ensuring alignment with **global standards of justice**. ### **RELATION WITH OTHER CONCEPTS** **“Nemo Judex in Causa Sua”** is closely linked with **“Audi Alteram Partem”** (hear the other side), both forming the **bedrock of natural justice**. While the former ensures **impartiality**, the latter guarantees the **right to a fair hearing**, together promoting **fairness in legal proceedings**. ### **GUIDELINES / RULES / REGULATIONS** Judicial and administrative bodies in **India** are guided by this principle to maintain **impartiality**. Any potential **conflict of interest** must be disclosed, and the individual should **recuse themselves** to uphold the **integrity** of the process. ### **CRITICISM / APPRECIATION** While the doctrine ensures **fairness**, critics argue that its **rigid application** can lead to **delays**, especially when the **doctrine of necessity** is invoked. However, its role in maintaining **public confidence** in the justice system outweighs potential drawbacks. ### **FUTURE IMPLICATIONS** As legal systems evolve, the principle of **“Nemo Judex in Causa Sua”** will continue to be pivotal in ensuring **impartiality**. With increasing complexities in legal and administrative frameworks, its application may expand to address **new challenges** in maintaining unbiased decision-making processes. ### **REFERENCES** 1. ***A.K. Kraipak v. Union of India,* AIR 1970 SC 150.** 2. ***J. Mohapatra & Co. v. State of Orissa,* (1984) 4 SCC 103.** 3. ***Union of India v. B.N. Jha,* AIR 1957 SC 425.** 4. **“All you need to know about the Principles of Natural Justice,” iPleaders.** 5. **“All about the doctrine of necessity,” iPleaders.** 6. **“Principles of Natural Justice,” Testbook.** 7. **“Principles Of Natural Justice,” Lawyersclubindia.** 8. **“Nemo iudex in causa sua.”** **Categories:** Articles, Constitutional Law --- ### [Doctrine of Natural Justice](https://lawfoyer.in/doctrine-of-natural-justice/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Natural Justice embodies fundamental principles ensuring fairness, equity, and impartiality in legal and administrative proceedings. In the Indian legal system, these principles are integral to upholding the rule of law and protecting individual rights **Content:** The **Doctrine of Natural Justice** embodies fundamental principles ensuring fairness, equity, and impartiality in legal and administrative proceedings. In the Indian legal system, these principles are integral to upholding the **rule of law** and protecting individual rights. ## **MEANING, DEFINITION & EXPLANATION** *Natural Justice* refers to the basic procedural principles that ensure fairness in decision-making processes. Derived from the Latin terms **‘jus naturale’** and **‘lex naturale’**, it emphasizes moral righteousness and legal equity. In essence, it mandates that decisions should be made without bias, and individuals affected by decisions should have the opportunity to present their case. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of *Natural Justice* has ancient roots, evident in **Greek** and **Roman philosophies** emphasizing fairness. In India, the principles of **Natural Justice** have been integral since ancient times, aligning with the concept of **‘Dharma’**, which emphasizes righteousness and duty. The British colonial legal system further formalized these principles, embedding them into Indian jurisprudence. Over time, **Indian courts** have expanded and reinforced these principles, ensuring they adapt to contemporary legal challenges. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The Doctrine of Natural Justice primarily comprises two key principles: 1. ***Nemo Judex in Causa Sua (Rule Against Bias):*** This principle asserts that no person should judge a case in which they have a personal interest, ensuring decisions are made impartially. 2. ***Audi Alteram Partem (Right to be Heard):*** This principle ensures that every individual has the right to a fair hearing before a decision affecting them is made. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** While the **Indian Constitution** does not explicitly mention **Natural Justice**, its principles are inherent in various articles: - **Article 14:** Guarantees the **right to equality before the law**, implying decisions should be free from bias. - **Article 21:** Ensures the **right to life and personal liberty**, which courts have interpreted to include the right to a fair procedure. **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark judgments have shaped the understanding and application of **Natural Justice** in India: 1. ***A.K. Kraipak v. Union of India (1969):*** In this case, the selection committee for the Indian Forest Service included a member who was also a candidate. The **Supreme Court** held that this violated the **rule against bias**, emphasizing that even administrative decisions must adhere to **Natural Justice** principles. 2. ***Maneka Gandhi v. Union of India (1978):*** The government’s impounding of **Maneka Gandhi’s passport** without giving her a chance to be heard was challenged. The **Supreme Court** held that the procedure established by law must be **‘right, just, and fair,’** reinforcing the importance of **Natural Justice** under **Article 21**. 3. ***Mohinder Singh Gill v. Chief Election Commissioner (1977):*** The **Supreme Court** held that the concept of **Natural Justice** should be present in every action, whether judicial, quasi-judicial, administrative, or quasi-administrative, that involves **civil consequences** to the parties. ## **EXCEPTIONS TO THE DOCTRINE OF NATURAL JUSTICE** While the principles of **Natural Justice** are fundamental, certain exceptions exist: - **Statutory Exclusion:** If a statute explicitly excludes the application of **Natural Justice**, the courts may uphold such exclusions. - **Emergency Situations:** In cases requiring immediate action, adhering to **Natural Justice** may be impractical. - **Confidentiality:** Matters involving **state secrets** or **public interest** may warrant deviation from these principles. ## **DOCTRINES / THEORIES** The Doctrine of Natural Justice is closely related to: - **Doctrine of Fairness:** Emphasizes that procedures should be **fair and just**. - **Doctrine of Legitimate Expectation:** Protects individuals’ expectations of fair treatment in administrative decisions. ## **MAXIMS / PRINCIPLES** The foundational maxims of **Natural Justice** are: - **Nemo Judex in Causa Sua:** No one should be a judge in their own cause. - **Audi Alteram Partem:** Hear the other side. ## **AMENDMENTS / ADDITIONS / REPEALING** The principles of **Natural Justice** have evolved through **judicial interpretations** rather than formal amendments. Courts have progressively expanded their scope to ensure fairness in various contexts. ## **CRITICISM / APPRECIATION** While the Doctrine of **Natural Justice** is lauded for promoting fairness, it faces criticism for potential delays in decision-making processes. Balancing the strict application of these principles with the need for efficient administration remains a challenge. ## **FLOWCHART: PRINCIPLES OF NATURAL JUSTICE** ```mermaid graph TDA[Principles of Natural Justice]B[Nemo Judex in Causa Sua]C[Audi Alteram Partem]A --> BA --> C ``` ## **TABLE: COMPARISON OF KEY CASES ON NATURAL JUSTICE** **Case Name****Brief Facts****Issue Raised****Held****A.K. Kraipak v. Union of India**Selection committee member was also a candidate.Whether the selection process violated **Natural Justice**.Held that it violated the **rule against bias**.**Maneka Gandhi v. Union of India**Passport impounded without a hearing.Whether the action violated **Article 21**.Held that **‘procedure established by law’** must be fair, just, and reasonable.**Mohinder Singh Gill v. CEC**Election commissioner’s order without hearing the affected party.Applicability of **Natural Justice** in administrative actions.Held that **Natural Justice** applies to all actions affecting rights.## **CONCLUSION** The **Doctrine of Natural Justice** serves as a cornerstone of the **Indian legal system**, ensuring that **fairness** and **equity** prevail in all judicial and administrative proceedings. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Proportionality](https://lawfoyer.in/doctrine-of-proportionality/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Proportionality ensures that administrative actions and legislative measures are balanced, fair, and not excessive, aligning with constitutional rights. **Content:** The **Doctrine of Proportionality** ensures that administrative actions and legislative measures are balanced, fair, and not excessive, aligning with constitutional rights. ### **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Proportionality** mandates that any action by the state or its agencies should not be more restrictive than necessary to achieve the desired objective. This principle ensures that measures infringing on individual rights are **justified**, **necessary**, and balanced against the public interest. In essence, the severity of a measure must correspond appropriately to the importance of its objective. ### **HISTORICAL BACKGROUND / EVOLUTION** Originating in **18th-century Prussia**, the doctrine was later integrated into **German administrative law**. Post-World War II, it became a cornerstone of the **German Constitution** and was adopted by the **European Convention on Human Rights (1959)**. The doctrine’s roots can also be traced to classical Greek principles of **corrective and distributive justice**, as well as the **Roman legal system** and the **Magna Carta of 1215**, which emphasized proportionate punishments. ### **COMPARISON WITH OTHER COUNTRIES** In **Europe**, especially Germany, the doctrine is a fundamental aspect of **constitutional law**, ensuring that state actions are proportionate. The **European Court of Human Rights** employs this principle to assess the fairness of state interference with individual rights. In contrast, the **UK** initially applied the **Wednesbury unreasonableness test** but has gradually incorporated proportionality, especially under the **Human Rights Act 1998**. The **US**, through its **Eighth Amendment**, reflects the principle by prohibiting excessive fines and cruel punishments. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The doctrine comprises several key elements: - ***Legitimate Aim***: The action must pursue a lawful objective. - ***Suitability***: The means adopted should effectively achieve the intended goal. - ***Necessity***: There should be no less restrictive alternative available to achieve the same objective. - ***Balancing (Proportionality stricto sensu)***: The benefits of the action must outweigh the harm caused to individual rights. These elements ensure that any infringement on rights is **justified** and **minimal**. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In **India**, the doctrine is intertwined with constitutional provisions: - **Article 14**: Guarantees **equality before the law**, preventing arbitrary actions. - **Article 19**: Enumerates **fundamental freedoms**, subject to reasonable restrictions. - **Article 21**: Protects the **right to life and personal liberty**, allowing deprivation only through a procedure established by law. The judiciary employs the **proportionality test** to assess whether restrictions on these rights are justified, ensuring that state actions are not **arbitrary** or **excessive**. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark judgments have shaped the application of the doctrine in India: 1. ***Om Kumar v. Union of India (2000)***: The Supreme Court acknowledged that Indian courts have applied the doctrine since **1950** when assessing legislative actions affecting **fundamental freedoms** under **Article 19(1)**. The Court emphasized that **administrative actions** impacting fundamental rights should be tested on the anvil of proportionality. 2. ***Maneka Gandhi v. Union of India (1978)***: The Court expanded the interpretation of **Article 21**, linking it with **Articles 14 and 19**. It emphasized that any law interfering with personal liberty must pass the test of **reasonableness** and **fairness**, implicitly incorporating the principle of proportionality. 3. ***Bachan Singh v. State of Punjab (1980)***: In the context of the **death penalty**, the Supreme Court applied the doctrine, stating that the punishment must not be **excessive** and should be commensurate with the **gravity of the offense**. 4. ***Ranjit Thakur v. Union of India (1987)***: The Court held that the **doctrine of proportionality** ensures that even decisions within the exclusive domain of authorities, like court-martials, should not be **outrageous** or **disproportionate**. ### **INTERPRETATIONS / EXPLANATIONS** The doctrine serves as a tool for **judicial review**, enabling courts to assess whether administrative or legislative actions are justified. It ensures a balance between **individual rights** and **public interest**, preventing arbitrary or excessive measures by the state. By applying this doctrine, courts can invalidate actions that are **disproportionate**, ensuring adherence to **constitutional principles**. ### **DOCTRINES / THEORIES** The **Doctrine of Proportionality** is closely related to: - ***Wednesbury Unreasonableness***: A principle from **UK law** assessing whether a decision is so unreasonable that no reasonable authority would ever consider it. While **Wednesbury** focuses on the decision-making process, proportionality examines the **outcome’s balance and fairness**. - ***Strict Scrutiny Test***: Used primarily in the **US**, this test evaluates whether a legislative measure is necessary to achieve a **compelling state interest**, similar to the **necessity** and **balancing** aspects of proportionality. ### **MAXIMS / PRINCIPLES** The doctrine aligns with the legal maxim **“Justitia nemini neganda est,”** meaning **“Justice is to be denied to no one.”** It ensures that state actions are **just**, **fair**, and not excessive, upholding the principles of **natural justice** and **fairness**. ### **AMENDMENTS / ADDITIONS / REPEALING** While the doctrine itself hasn’t been **codified**, it is effectively implemented through **judicial precedents** and is implicitly part of **constitutional jurisprudence** in India. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Reasonableness](https://lawfoyer.in/doctrine-of-reasonableness/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Reasonableness ensures that laws and administrative actions are fair, just, and not arbitrary, upholding the principles of equality and justice enshrined in the Indian Constitution. **Content:** The **Doctrine of Reasonableness** ensures that laws and administrative actions are fair, just, and not arbitrary, upholding the principles of **equality** and **justice** enshrined in the **Indian Constitution**. ## **MEANING AND EXPLANATION** The **Doctrine of Reasonableness** mandates that any law or administrative action must be rational and not arbitrary. It ensures that decisions are made based on logical reasoning, aligning with principles of fairness and justice. This doctrine is integral to **Article 14** of the **Indian Constitution**, which guarantees **equality before the law** and **equal protection of the laws**. The **Supreme Court of India** has emphasized that **Article 14** strikes at arbitrariness in state action and ensures fairness and equality of treatment. ## **HISTORICAL BACKGROUND** The concept of **reasonableness** in legal systems worldwide has been pivotal in ensuring justice and fairness. In India, the doctrine gained prominence through judicial interpretations, particularly concerning **Article 14** of the **Constitution**. The **Supreme Court**, in various judgments, has underscored the importance of **reasonableness** as an essential element of **equality** or **non-arbitrariness**. ## **LEGAL PROVISIONS AND CONSTITUTIONAL BASIS** **Article 14** of the **Indian Constitution** embodies the principle of **equality before the law** and **equal protection of the laws**. This article prohibits **arbitrary discrimination** by the state and forms the constitutional basis for the **Doctrine of Reasonableness**. The **Supreme Court** has interpreted **Article 14** to strike at arbitrariness in state action and ensure fairness and equality of treatment. ## **PRINCIPLES AND MAXIMS RELATED TO REASONABLENESS** - ***Audi Alteram Partem***: This principle means **“hear the other side”** and ensures that no person is condemned unheard, promoting fairness in administrative actions. - ***Nemo Judex in Causa Sua***: Meaning **“no one should be a judge in their own cause”**, this principle prevents bias in decision-making. ## **TESTS FOR DETERMINING REASONABLENESS** To assess the reasonableness of a law or action, the following tests are applied: 1. ***Intelligible Differentia***: The classification must be based on an **intelligible differentia** that distinguishes those grouped together from others. 2. ***Rational Nexus***: There must be a **rational relation** between the classification and the objective sought to be achieved by the law. ## **JUDICIAL PRONOUNCEMENTS** - ***Maneka Gandhi v. Union of India, AIR 1978 SC 597***: - *Facts*: **Maneka Gandhi’s passport** was impounded by the government without providing reasons. - *Issue*: Whether the **impounding of the passport** violated **Articles 14**, **19**, and **21** of the **Constitution**. - *Held*: The Court emphasized that the procedure established by law must be **fair, just, and reasonable**, and not **arbitrary** or **oppressive**. It linked **Articles 14**, **19**, and **21** and held that these articles must be read together to ensure **fairness** in the procedure. - ***State of Madras v. V.G. Row, AIR 1952 SC 196***: - *Facts*: The **State of Madras** declared the **People’s Education Society** an unlawful association under the **Criminal Law Amendment Act**. - *Issue*: Whether the declaration violated the **fundamental rights** guaranteed under the **Constitution**. - *Held*: The Court held that the restrictions imposed were **not reasonable** and violated the **fundamental rights** of the petitioner. The **test of reasonableness** was applied to the impugned statute. ## **APPLICATION IN ADMINISTRATIVE LAW** The **Doctrine of Reasonableness** plays a crucial role in **administrative law** by ensuring that administrative actions are free from **arbitrariness** and **bias**. In the case of ***A.V. Bellarmin v. V. Santhakumaran Nair***, the **Supreme Court** held that a **reasonable suspicion of bias** affecting a decision is sufficient to invoke the **doctrine of bias**. ## **INTERNATIONAL PERSPECTIVE** The principle of **reasonableness** is recognized in various legal systems worldwide, including the **United States**, **United Kingdom**, **Australia**, and **Canada**. It serves as a standard for **judicial review** to ensure that laws and administrative actions are **fair** and **just**. ## **CONCLUSION** The **Doctrine of Reasonableness** is a fundamental aspect of **Indian constitutional law**, ensuring that laws and administrative actions adhere to principles of **fairness, justice, and equality**. Through various **judicial pronouncements**, the **Indian judiciary** has reinforced the importance of this doctrine in upholding the **constitutional mandate** against arbitrariness. ## **REFERENCES** 1. ***Om Kumar and Ors. v. Union of India, AIR 2000 SC 3689***. 2. ***Maneka Gandhi v. Union of India, AIR 1978 SC 597***. 3. ***State of Madras v. V.G. Row, AIR 1952 SC 196***. 4. ***A.V. Bellarmin v. V. Santhakumaran Nair, (2013) 1 MLJ 362 (SC)***. 5. **“Doctrine of Reasonable Classification,” iPleaders**. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Legitimate Expectation](https://lawfoyer.in/doctrine-of-legitimate-expectation-2/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Legitimate Expectation ensures fairness in administrative actions, allowing individuals to anticipate consistent treatment from public authorities based on past conduct or explicit promises. This principle, integral to Indian administrative law, upholds non-arbitrariness and transparency in governance. **Content:** The **Doctrine of Legitimate Expectation** ensures fairness in administrative actions, allowing individuals to anticipate consistent treatment from public authorities based on past conduct or explicit promises. This principle, integral to Indian administrative law, upholds **non-arbitrariness** and **transparency** in governance. ### **MEANING AND DEFINITION** **Legitimate expectation** arises when a public authority’s **consistent practice** or **explicit promise** leads an individual to reasonably anticipate a specific treatment or benefit. Although not a legal right, it serves as a ground for **judicial review** to prevent arbitrary administrative decisions. The **Supreme Court of India**, in ***Ram Pravesh Singh & Ors. v. State of Bihar & Ors.***, described it as arising from “an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.” ### **HISTORICAL BACKGROUND** The doctrine’s roots trace back to English law, notably the ***Council of Civil Service Unions v. Minister for the Civil Service*** (\[1985\] AC 374), where it was established that a legitimate expectation could arise from a **promise** or **regular practice**. In India, the concept was first discussed in ***State of Kerala v. K.G. Madhavan Pillai*** ((1988) 4 SCC 669), where the **Supreme Court** recognized that the withdrawal of a previously granted sanction without proper reasoning violated the **principles of natural justice**, thereby acknowledging the respondents’ legitimate expectation. ### **ESSENTIALS OF LEGITIMATE EXPECTATION** For an expectation to be deemed legitimate, certain criteria must be met: - ***Clear and Unambiguous Promise***: There must be an explicit **promise** or a **consistent practice** by the public authority. - ***Reasonableness***: The expectation should be **reasonable** and not based on mere hope or desire. - ***Reliance***: The individual should have **relied** on the promise or practice to their detriment. - ***Authority’s Competence***: The public authority must have the **legal competence** to fulfill the promise. ### **TYPES OF LEGITIMATE EXPECTATIONS** 1. ***Procedural Legitimate Expectation***: This arises when an individual expects a certain **procedure** to be followed before a decision is made, such as the **right to a hearing**. 2. ***Substantive Legitimate Expectation***: This involves an expectation of a specific **benefit** or **advantage**, like the continuation of a policy or the granting of a license. ### **LEGAL PROVISIONS AND PRINCIPLES** While the doctrine is not explicitly mentioned in Indian statutes, it aligns with the **principles of natural justice** and **Article 14 of the Indian Constitution**, which guarantees **equality before the law** and protection against arbitrary state actions. ### **KEY CASE LAWS** 1. ***Navjyoti Co-Op. Group Housing Society v. Union of India*** ((1992) 4 SCC 477): The **Supreme Court** held that the change in the criteria for land allotment without giving affected parties an opportunity to be heard violated the **doctrine of legitimate expectation**. 2. ***Food Corporation of India v. Kamdhenu Cattle Feed Industries*** ((1993) 1 SCC 71): The Court emphasized that the duty to act fairly by public authorities gives rise to **legitimate expectations**, and failure to consider such expectations can lead to **arbitrariness**. 3. ***M.P. Oil Extraction v. State of M.P.*** ((1997) 7 SCC 592): The **Supreme Court** recognized that the renewal of leases based on past consistent practice gave rise to **legitimate expectation**, and any deviation without valid reason would be **arbitrary**. 4. ***State of Jharkhand v. Brahmputra Metallics Ltd.*** ((2020) 18 SCC 476): The Court held that the state’s delay in issuing a notification, contrary to its industrial policy, violated the **legitimate expectation** of the beneficiaries, emphasizing that state actions must be **fair** and **transparent**. ### **EXCEPTIONS TO THE DOCTRINE** The doctrine does not apply in situations where: - ***Contrary to Law***: If fulfilling the expectation would result in an **illegal act**. - ***Overriding Public Interest***: When a **greater public interest** justifies the deviation from the expected course. - ***Change in Policy***: Legitimate expectation cannot hinder the government from **changing policies** for public good, provided the change is not **arbitrary** or **unreasonable**. ### **COMPARISON WITH PROMISSORY ESTOPPEL** While both doctrines prevent public authorities from acting contrary to their promises or established practices, **legitimate expectation** is a **public law principle** focusing on fairness in administrative actions, whereas **promissory estoppel** is a **private law principle** preventing a party from going back on a promise that another party has relied upon to their detriment. ### **APPLICATION IN INDIAN ADMINISTRATIVE LAW** The doctrine serves as a check against **arbitrary administrative actions**, ensuring that public authorities act **fairly** and **reasonably**, upholding the principles of **natural justice**. It provides individuals with a basis to challenge decisions that violate their **legitimate expectations**, thereby promoting **transparency** and **accountability** in governance. ### **CONCLUSION** The **Doctrine of Legitimate Expectation** plays a crucial role in Indian administrative law by bridging the gap between individual expectations and administrative discretion. It ensures that public authorities adhere to principles of **fairness** and **non-arbitrariness**, thereby strengthening the **rule of law** and protecting individual rights against **unjust administrative actions**. ### **REFERENCES** 1. ***Ram Pravesh Singh & Ors. v. State of Bihar & Ors.***, (2006) 8 SCC 381. 2. ***State of Kerala v. K.G. Madhavan Pillai***, (1988) 4 SCC 669. 3. ***Navjyoti Co-Op. Group Housing Society v. Union of India***, (1992) 4 SCC 477. 4. ***Food Corporation of India v. Kamdhenu Cattle Feed Industries***, (1993) 1 SCC 71. 5. ***M.P. Oil Extraction v. State of M.P.***, (1997) 7 SCC 592. 6. ***State of Jharkhand v. Brahmputra Metallics Ltd.***, (2020) 18 SCC 476. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Public Accountability](https://lawfoyer.in/doctrine-of-public-accountability/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Public Accountability mandates that public officials and institutions are answerable to the public for their actions and decisions. It ensures that those in power exercise their authority responsibly, transparently, and in the public interest. **Content:** ## **1. MEANING, DEFINITION & EXPLANATION** The **Doctrine of Public Accountability** mandates that public officials and institutions are answerable to the public for their actions and decisions. It ensures that those in power exercise their authority responsibly, transparently, and in the public interest. This doctrine is fundamental to maintaining trust between the government and its citizens, promoting transparency, and preventing misuse of power. ## **2. HISTORICAL BACKGROUND / EVOLUTION** The concept of **public accountability** has evolved over time, influenced by both domestic and international legal principles. In India, the evolution of this doctrine can be traced through various judicial pronouncements and legislative measures aimed at curbing **administrative arbitrariness** and ensuring that public officials are held accountable for their actions. ## **3. COMPARISON WITH OTHER COUNTRIES** In many democratic nations, the principle of **public accountability** is enshrined in their legal systems. For instance: - **In the United States:** The **Freedom of Information Act (FOIA)** allows citizens to request access to federal agency records, promoting transparency. - **In the United Kingdom:** The **Parliamentary Commissioner for Administration** (commonly known as the Ombudsman) investigates complaints against government departments and public organizations. These mechanisms ensure that public officials are answerable to the public, fostering trust and integrity in governance. ## **4. CAUSES / EFFECT RELATION WITH OTHER CONCEPTS** The **Doctrine of Public Accountability** is closely related to several other legal concepts: - **Judicial Review:** Allows courts to examine the legality of administrative actions, ensuring they do not exceed their powers or violate legal principles. - **Transparency:** Ensures that government actions are conducted openly, allowing citizens to be informed and to participate in the democratic process. - **Rule of Law:** Establishes that all individuals, including public officials, are subject to the law, preventing arbitrary use of power. ## **5. TYPES / KINDS** **Public accountability** can be categorized into: - **Political Accountability:** Ensures that elected officials are answerable to the electorate for their actions and decisions. - **Administrative Accountability:** Pertains to the responsibility of public servants to adhere to laws, regulations, and ethical standards in their duties. - **Legal Accountability:** Involves holding public officials accountable through legal means, such as **judicial review** and legal proceedings. ## **6. FORMS / MODES** **Public accountability** is manifested through: - **Legislative Oversight:** Parliamentary committees scrutinize government actions and expenditures. - **Judicial Oversight:** Courts review administrative actions to ensure they comply with the law. - **Public Participation:** Engaging citizens in decision-making processes, such as public consultations and hearings. ## **7. ESSENTIALS / ELEMENTS / PRE-REQUISITES** For effective **public accountability**, the following elements are essential: - **Transparency:** Availability of information regarding government actions and decisions. - **Responsiveness:** Government’s willingness to address public concerns and feedback. - **Enforcement Mechanisms:** Legal and institutional frameworks to hold public officials accountable. ## **8. DEFENCES / EXCEPTIONS** While public officials are generally accountable, certain defenses or exceptions may apply: - **Sovereign Immunity:** Protection from lawsuits for actions performed in the exercise of sovereign functions. - **Discretionary Immunity:** Protection when officials exercise discretion in good faith and within their legal authority. ## **9. LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** Several legal provisions uphold **public accountability** in India: - **Right to Information Act, 2005:** Empowers citizens to access information from public authorities, promoting transparency. - **Public Servants (Inquiries) Act, 1850:** Provides a mechanism for the removal of public servants on grounds of misconduct. - **Judicial Review:** Allows courts to examine the legality of administrative actions. ## **10. GUIDELINES / RULES / REGULATIONS / NOTIFICATIONS / CIRCULARS** Various guidelines and rules have been established to ensure **public accountability**: - **Central Vigilance Commission (CVC) Guidelines:** Provide directives for preventing corruption and ensuring transparency in public administration. - **Public Procurement Guidelines:** Ensure transparency and fairness in government procurement processes. ## **11. CUSTOMS / USAGE / TRADITIONS-BASED LAW** In addition to statutory provisions, customary practices and traditions also play a role in ensuring **public accountability**. For example, the tradition of **public hearings and consultations** in certain administrative processes allows citizens to participate and hold officials accountable. ## **12. CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark cases have shaped the **doctrine of public accountability** in India: - **A.G. Hong Kong v. Reid (1993):** The court held that a public official who misappropriates public funds holds the misappropriated property in constructive trust for the public. - **Skipper Construction Co. v. Delhi Development Authority (1996):** The court emphasized that public officials must be held accountable for their actions, and courts can pass necessary orders irrespective of the existence of a fiduciary relationship. - **Nilabati Behera v. State of Orissa (1993):** The **Supreme Court** held that compensation for violation of human rights and abuse of power is a recognized claim under public law. ## **13. INTERPRETATIONS / EXPLANATIONS** The judiciary has interpreted the **doctrine of public accountability** to include: - **Compensation for Misuse of Power:** Courts can award compensation to victims of administrative excesses. - **Judicial Review:** Ensures that administrative actions are subject to legal scrutiny to prevent misuse of power. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Separation of Powers](https://lawfoyer.in/doctrine-of-separation-of-powers/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Separation of Powers divides governmental authority among the legislative, executive, and judicial branches. This framework prevents power concentration and ensures checks and balances within a democratic system. **Content:** ## **INTRODUCTION** The **Doctrine of Separation of Powers** divides governmental authority among the **legislative**, **executive**, and **judicial** branches. This framework prevents power concentration and ensures **checks and balances** within a democratic system. ## **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Separation of Powers** entails distributing governmental functions among three distinct branches: - **Legislature**: *Responsible for enacting laws*. - **Executive**: *Tasked with implementing and enforcing laws*. - **Judiciary**: *Interprets laws and adjudicates disputes*. This separation ensures that no single entity wields absolute power, thereby safeguarding individual liberties and promoting a balanced governance structure. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept traces back to **ancient Greece**, where **Aristotle** identified three governmental functions: deliberative, magisterial, and judicial. In the 17th century, **John Locke** advocated for separating **legislative** and **executive** powers to prevent tyranny. Later, **Montesquieu’s seminal work, “The Spirit of the Laws” (1748)**, emphasized dividing powers among **legislative**, **executive**, and **judicial** branches to preserve political liberty. ## **COMPARISON WITH OTHER COUNTRIES** - **United States**: The **U.S. Constitution** explicitly delineates powers among the three branches, embodying a rigid separation with a system of **checks and balances**. - **United Kingdom**: Lacks a written constitution; the separation is more flexible, with overlaps, especially between the **executive** and **legislature**. - **India**: While the **Indian Constitution** doesn’t explicitly mention the doctrine, it implies a **functional separation** with provisions ensuring **checks and balances** among the branches. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In **India**, several constitutional provisions reflect the separation of powers: - **Article 50**: *Directs the state to separate the judiciary from the executive in public services.* - **Articles 121 and 211**: *Prohibit legislative discussion on the conduct of judges, ensuring judicial independence.* - **Articles 122 and 212**: *Restrict judicial intervention in parliamentary proceedings, preserving legislative autonomy.* ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. **Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549**: The **Supreme Court** observed that while the **Indian Constitution** doesn’t explicitly adhere to the doctrine, it delineates functions among branches, preventing one from encroaching upon another’s domain. 2. **Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299**: The Court emphasized that the **separation of powers** is a **fundamental feature** of the Constitution, integral to its **basic structure**. 3. **Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461**: This **landmark judgment** reinforced that the separation of powers forms part of the Constitution’s **basic structure**, which cannot be altered by parliamentary amendments. ## **DOCTRINES / THEORIES** - **Checks and Balances**: This principle ensures that each branch can monitor and limit the functions of the others, preventing any single branch from becoming supreme. - **Judicial Review**: Empowers the judiciary to assess the constitutionality of legislative and executive actions, acting as a check on potential overreach. ## **MAXIMS / PRINCIPLES** - **“Delegatus non potest delegare”**: *A delegate cannot further delegate; this principle restricts the transfer of delegated powers, maintaining clear functional boundaries.* ## **AMENDMENTS / ADDITIONS / REPEALING** The **42nd Amendment (1976)** attempted to curtail **judicial review** powers, disrupting the balance among branches. However, the **Supreme Court**, in **Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789**, invalidated these changes, reaffirming the doctrine’s significance in maintaining **constitutional equilibrium**. ## **CRITICISM / APPRECIATION** - **Criticism**: Rigid separation can lead to inefficiencies and governmental paralysis, especially in emergencies requiring coordinated action. - **Appreciation**: The doctrine prevents authoritarianism, promotes accountability, and protects individual freedoms by ensuring no single branch monopolizes power. ## **FLOWCHART: SEPARATION OF POWERS IN INDIA** ```plaintext +------------------+ | | | Constitution | | | +---------+--------+ | v +---------+--------+ | | | Legislature | | | +---------+--------+ | v +---------+--------+ | | | Executive | | | +---------+--------+ | v +---------+--------+ | | | Judiciary | | | +------------------+ ``` ## **TABLE: COMPARISON OF SEPARATION OF POWERS** CountryNature of SeparationKey Features**United States****Rigid**Explicit constitutional provisions; strong checks and balances.**United Kingdom****Flexible**Unwritten constitution; overlaps between executive and legislature.**India****Functional**Implied separation; specific provisions ensuring independence and checks.## **CONCLUSION** The **Doctrine of Separation of Powers** is vital in **India’s constitutional framework**, ensuring a balanced distribution of authority among the **legislative**, **executive**, and **judicial** branches. Through **judicial interpretations** and **constitutional provisions**, this doctrine upholds **democratic principles**, prevents **power concentration**, and safeguards **individual liberties**. ## **REFERENCES** 1. **Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549**. 2. **Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299**. 3. **Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461**. 4. **Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.** **Categories:** Articles, Constitutional Law --- ### [Doctrine of Checks and Balances](https://lawfoyer.in/doctrine-of-checks-and-balances/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Checks and Balances ensures that the legislative, executive, and judicial branches of government maintain distinct powers while mutually regulating each other to prevent any single branch from becoming supreme. This system is integral to the Indian Constitution, promoting accountability and preventing the abuse of power **Content:** The **Doctrine of Checks and Balances** ensures that the legislative, executive, and judicial branches of government maintain distinct powers while mutually regulating each other to prevent any single branch from becoming supreme. This system is integral to the **Indian Constitution**, promoting accountability and preventing the abuse of power. ### **MEANING AND EXPLANATION** The **Doctrine of Checks and Balances** is a constitutional mechanism that ensures no single branch of government—legislative, executive, or judiciary—can dominate or exercise unchecked power. Each branch has specific powers to check the others, maintaining a balance that prevents authoritarianism and promotes democratic governance. In **India**, this doctrine is intertwined with the principle of **separation of powers**, ensuring that while each branch operates independently, they also have the means to restrain each other, fostering a system of mutual accountability. ### **HISTORICAL BACKGROUND** The concept of **checks and balances** traces back to ancient political philosophy but was systematically articulated by **French philosopher Montesquieu** in his 18th-century work, *“The Spirit of Laws.”* **Montesquieu** argued that liberty is most effectively safeguarded when governmental powers are divided among separate branches that can check each other’s actions. This philosophy influenced many democratic constitutions worldwide, including **India’s**, embedding the necessity for a balanced distribution of power to prevent tyranny. ### **CONSTITUTIONAL PROVISIONS IN INDIA** The **Indian Constitution** does not explicitly mention the doctrine of **separation of powers**; however, it delineates the functions and powers of the three branches, establishing a framework for **checks and balances**: - **Legislature**: *Empowered to make laws, control finances, and oversee the executive through instruments like **Question Hour** and **parliamentary committees***. - **Executive**: *Responsible for implementing laws and administering the country, but accountable to the legislature.* - **Judiciary**: *Interprets laws, adjudicates disputes, and has the power of **judicial review** to ensure that legislative and executive actions conform to the Constitution.* ### **JUDICIAL REVIEW AS A CHECK** **Judicial review** is a critical component of the **checks and balances** system in **India**. It allows the **judiciary** to assess the constitutionality of legislative enactments and executive orders. If any law or action is found to violate the **Constitution**, the **judiciary** has the authority to declare it void. This mechanism ensures that all state actions adhere to constitutional mandates, protecting citizens’ rights and maintaining the **rule of law**. ### **KEY CASE LAWS ILLUSTRATING CHECKS AND BALANCES** 1. **Kesavananda Bharati v. State of Kerala (1973)**: This landmark case established the **Basic Structure Doctrine**, asserting that while **Parliament** has wide powers to amend the Constitution, it cannot alter its **basic structure**. The **Supreme Court** held that **judicial review** is part of this basic structure, thereby reinforcing the **judiciary’s role** in checking legislative actions. 2. **Indira Nehru Gandhi v. Raj Narain (1975)**: The **Supreme Court** invalidated **Clause 4 of Article 329A**, introduced by the **39th Amendment**, which sought to place the election of the Prime Minister beyond **judicial scrutiny**. The Court held that adjudication of election disputes is a **judicial function** and cannot be excluded from judicial review, emphasizing the **separation of powers** and the system of **checks and balances**. 3. **Minerva Mills Ltd. v. Union of India (1980)**: The **Supreme Court** struck down clauses of the **42nd Amendment** that sought to curtail **judicial review**, reaffirming that the power of **judicial review** is integral to the Constitution’s **basic structure**. This case underscored the **judiciary’s role** in maintaining **checks and balances** by ensuring that constitutional amendments do not transgress fundamental constitutional principles. ### **SEPARATION OF POWERS AND CHECKS AND BALANCES** While the doctrine of **separation of powers** advocates for distinct functions for each branch of government, the system of **checks and balances** allows for some degree of overlap to enable each branch to restrain the others. In **India**, this interplay is evident in various constitutional provisions and practices: - **Legislative Oversight**: *Parliament exercises control over the executive through mechanisms like **Question Hour**, **motions of no confidence**, and **parliamentary committees**, ensuring executive accountability.* - **Executive’s Legislative Role**: *The **President**, part of the executive, has legislative functions such as summoning **Parliament sessions** and giving assent to bills. Additionally, the executive can issue **ordinances** under **Article 123** when **Parliament** is not in session.* - **Judicial Appointments**: *The **executive** plays a role in appointing judges, but the **judiciary** has established the **collegium system** to ensure judicial independence, reflecting a balance between **executive influence** and **judicial autonomy**.* ### **INTERNATIONAL PERSPECTIVE** The doctrine of **checks and balances** is a fundamental principle in many democratic constitutions worldwide: - **United States**: The **U.S. Constitution** explicitly provides for **separation of powers** among the **legislative**, **executive**, and **judicial branches**, with a robust system of **checks and balances**. For instance, the **President** can veto legislation, **Congress** can override vetoes and impeach the **President**, and the **Supreme Court** can declare laws unconstitutional. - **United Kingdom**: While the **UK** does not have a codified constitution, it practices a system where the **executive** is part of the **legislature**, but **judicial independence** is maintained. Reforms like the establishment of the **Supreme Court** in 2009 have strengthened the separation between the **judiciary** and other branches. ### **CHALLENGES AND CRITICISMS** Despite its foundational role, the system of **checks and balances** in **India** faces challenges: - **Judicial Overreach**: *Instances where the **judiciary** is perceived to encroach upon the domains of the legislature or executive, raising concerns about **judicial activism** undermining democratic processes.* - **Executive Dominance**: *Strong majority governments may attempt to influence or bypass institutional checks, potentially leading to an imbalance of power.* - **Legislative Inaction**: *At times, the **legislature** may fail to effectively oversee the executive, weakening the intended **checks and balances**.* ### **CONCLUSION** The **Doctrine of Checks and Balances** serves as the cornerstone of **constitutional governance** in **India**, fostering accountability and preventing the concentration of power. Despite challenges such as **judicial overreach**, **executive dominance**, and **legislative inaction**, the doctrine remains vital in upholding the principles of democracy, the **rule of law**, and the **protection of fundamental rights**. As **India’s constitutional framework** evolves, the interplay among the **legislative**, **executive**, and **judiciary** must continue to embody the ideals of **checks and balances**, ensuring the preservation of the **Constitution** and democratic values. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Judicial Activism](https://lawfoyer.in/doctrine-of-judicial-activism/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** Judicial activism refers to the proactive role played by the judiciary in interpreting and applying laws to address societal issues, often stepping beyond traditional judicial boundaries to enforce rights and ensure justice. In India, this approach has enabled courts to uphold constitutional mandates and protect individual liberties, especially when other branches of government have been inactive or ineffective **Content:** **MEANING, DEFINITION & EXPLANATION** **Judicial activism** refers to the proactive role played by the judiciary in interpreting and applying laws to address societal issues, often stepping beyond traditional judicial boundaries to enforce rights and ensure justice. In India, this approach has enabled courts to uphold **constitutional mandates** and protect **individual liberties**, especially when other branches of government have been inactive or ineffective. **Judicial activism** often involves the judiciary making decisions that lead to **social, economic, or political change**, thereby playing a crucial role in the dynamic interpretation of the **Constitution**. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **judicial activism** in India gained prominence post-**Emergency (1975-1977)**, a period marked by significant governmental overreach. Judges like **Justice V.R. Krishna Iyer** and **Justice P.N. Bhagwati** pioneered this movement, introducing **Public Interest Litigation (PIL)** to make justice more accessible. The case of ***Hussainara Khatoon v. State of Bihar* (1979 AIR 1369)** exemplifies this shift, where the **Supreme Court** addressed the plight of undertrial prisoners, emphasizing the **right to a speedy trial** as part of **Article 21** of the **Constitution**. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Judicial activism** in India operates within the **constitutional framework**, primarily through: - ***Article 13***: Empowers courts to declare laws void if they contravene **fundamental rights**. - ***Article 32***: Grants individuals the right to approach the **Supreme Court** for enforcement of **fundamental rights**. - ***Article 226***: Empowers **High Courts** to issue writs for enforcement of **fundamental rights** and other legal rights. These provisions enable the judiciary to **review legislative and executive actions**, ensuring they align with **constitutional principles**. ## **GUIDELINES / RULES / REGULATIONS / NOTIFICATIONS / CIRCULARS** The judiciary has, over time, established **guidelines** to facilitate judicial activism: - **Public Interest Litigation (PIL)**: Allows individuals or groups to file petitions on behalf of those unable to do so, broadening access to justice. The **Supreme Court**, in ***S.P. Gupta v. Union of India* (AIR 1982 SC 149)**, liberalized the **locus standi** principle, enabling social action groups to file **PILs**. - **Vishaka Guidelines**: In ***Vishaka v. State of Rajasthan* (AIR 1997 SC 3011)**, the **Supreme Court** laid down **guidelines** to prevent **sexual harassment at the workplace**, filling a legislative void until appropriate laws were enacted. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark cases illustrate **judicial activism** in India: - ***Kesavananda Bharati v. State of Kerala* (AIR 1973 SC 1461)**: Established the **Basic Structure Doctrine**, asserting that certain fundamental features of the **Constitution** cannot be altered by amendments. - ***Maneka Gandhi v. Union of India* (AIR 1978 SC 597)**: Expanded the interpretation of **Article 21**, asserting that the **right to life and personal liberty** includes the right to travel abroad, and any procedure depriving a person of this right must be **fair, just, and reasonable**. - ***M.C. Mehta v. Union of India* (1987 SCR (1) 819)**: The **Supreme Court** introduced the concept of **absolute liability** for industries engaged in hazardous activities, holding them accountable for any harm resulting from their operations. ## **DOCTRINES / THEORIES** **Judicial activism** in India is underpinned by several **doctrines**: - **Basic Structure Doctrine**: Asserts that certain fundamental features of the **Constitution** are inviolable and cannot be amended by the **Parliament**. This doctrine was established in the ***Kesavananda Bharati*** case. - **Doctrine of Separation of Powers**: While the **Indian Constitution** does not explicitly delineate the separation of powers, the judiciary has interpreted and enforced this principle to maintain **checks and balances** among the three branches of government. In ***Indira Nehru Gandhi v. Raj Narain* (1975 Supp SCC 1)**, the **Supreme Court** emphasized the importance of this doctrine in maintaining the **Constitution’s basic structure**. ## **MAXIMS / PRINCIPLES** **Judicial activism** often invokes certain **legal maxims** and **principles**: - **“Salus populi suprema lex”**: The welfare of the people is the supreme law. - **“Ubi jus ibi remedium”**: Where there is a right, there is a remedy. These principles guide the judiciary in ensuring that **justice prevails**, especially in cases where existing laws may be inadequate. ## **AMENDMENTS / ADDITIONS / REPEALING** **Judicial activism** has influenced **legislative changes** in India: - **Right to Information Act, 2005**: Judicial pronouncements emphasizing **transparency and accountability** contributed to the enactment of this law. - **Protection of Women from Domestic Violence Act, 2005**: Judicial recognition of **women’s rights** and the need for protective legislation spurred the creation of this act. ## **CRITICISM / APPRECIATION** While **judicial activism** has been lauded for **upholding rights** and ensuring **justice**, it has also faced criticism: - **Appreciation**: It has democratized access to **justice**, addressed **governmental inaction**, and safeguarded **fundamental rights**. - **Criticism**: Critics argue that it leads to **judicial overreach**, encroaching upon the domains of the **legislature** and **executive**, potentially disrupting the balance of power. ## **COMPARISON WITH OTHER COUNTRIES** **Judicial activism** manifests differently across countries: - **United States**: The **U.S. Supreme Court** has a history of **judicial activism**, notably in cases like ***Brown v. Board of Education* (347 U.S. 483)**, which ended racial segregation in public schools. - **United Kingdom**: The **UK** follows the doctrine of **parliamentary sovereignty**, limiting **judicial activism**. However, courts have engaged in **judicial review** to ensure that executive actions comply with… (content continues as per your original text). **Categories:** Articles, Constitutional Law --- ### [Doctrine of Judicial Restraint](https://lawfoyer.in/doctrine-of-judicial-restraint/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Judicial Restraint emphasizes that judges should limit their own power by refraining from making policy decisions, thereby respecting the roles of the legislative and executive branches. **Content:** The **Doctrine of Judicial Restraint** emphasizes that judges should limit their own power by refraining from making policy decisions, thereby respecting the roles of the legislative and executive branches. ## **MEANING, DEFINITION & EXPLANATION** **Judicial Restraint** is a legal philosophy advocating that judges should interpret laws based strictly on the text of the **Constitution** and statutes, avoiding personal or political considerations. This approach ensures that elected legislative bodies, reflecting the will of the people, are the primary policymakers. Judges adhering to this doctrine avoid creating new laws through their rulings, maintaining the balance of power among government branches. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **Judicial Restraint** has roots in American legal theory and has significantly influenced **Indian jurisprudence**. In India, the judiciary initially adopted a conservative approach, emphasizing restraint to uphold the **separation of powers**. Over time, especially during the 1970s and 1980s, the **Indian judiciary** experienced phases of activism, prompting debates on the appropriate extent of judicial intervention. This evolution reflects the judiciary’s efforts to balance its role in protecting **constitutional rights** while respecting the functions of the legislative and executive branches. ## **COMPARISON WITH JUDICIAL ACTIVISM** While **Judicial Restraint** advocates for minimal judicial interference, **Judicial Activism** encourages judges to interpret laws broadly to address societal issues. The key differences between these doctrines are: **Aspect****Judicial Restraint****Judicial Activism****Interpretation**Strict adherence to the text of the law.Broad interpretation to address societal needs.**Policy Involvement**Avoids involvement in policy decisions.May influence policy through judicial decisions.**Precedent Adherence**Strong emphasis on following established precedents.Willingness to overturn precedents to achieve justice.**Role Perception**Views judiciary as an interpreter, not a creator of laws.Sees judiciary as a proactive agent in ensuring justice and addressing inequalities.## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The doctrine of **Judicial Restraint** is characterized by: - **Adherence to Precedent (Stare Decisis):** Judges follow previous judicial decisions to ensure consistency and predictability in the law. - **Deference to Legislative Intent:** Courts respect the decisions and intent of the **legislature**, acknowledging their role as representatives of the people. - **Avoidance of Policy-Making:** Judges refrain from making decisions that could be seen as creating or altering public policy. - **Limited Judicial Intervention:** Courts intervene only when a clear **constitutional violation** exists, avoiding encroachment on the functions of other government branches. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In the Indian context, the **Constitution** does not explicitly mandate **Judicial Restraint** but implies it through the **separation of powers** among the **legislature**, **executive**, and **judiciary**. Articles such as **Article 50** advocate for the separation of the judiciary from the executive, reinforcing the need for each branch to operate within its domain. Additionally, the principle of **‘stare decisis’** underpins the importance of precedent in judicial decisions, promoting stability and continuity in the legal system. ## **GUIDELINES / RULES / REGULATIONS** The judiciary has, over time, established guidelines to practice **Judicial Restraint**: - **Self-imposed Discipline:** Judges exercise caution and avoid overstepping their constitutional boundaries. - **Respect for Democratic Processes:** Courts acknowledge that elected bodies are better suited for policy-making. - **Avoidance of Political Questions:** Matters that are inherently political are left to the discretion of the **executive** and **legislature**. ## **CASE LAWS / PRECEDENTS** Several landmark cases in India illustrate the application of **Judicial Restraint**: 1. **State of Rajasthan v. Union of India, AIR 1977 SC 1361** - **Facts:** The central government issued directives to dissolve assemblies in states where the ruling party differed from the center. The states challenged this directive. - **Issue:** Whether the directive to dissolve state assemblies was justiciable. - **Held:** The **Supreme Court** exercised restraint, stating that the issue involved political questions not suitable for judicial review, thereby upholding the **separation of powers**. 2. **S.R. Bommai v. Union of India, AIR 1994 SC 1918** - **Facts:** The President’s Rule was imposed in several states, leading to the dismissal of state governments. - **Issue:** The validity of the imposition of President’s Rule under **Article 356** of the Constitution. - **Held:** While the Court asserted its power to review the proclamation, it emphasized that such power should be exercised with caution, showing restraint in matters with significant political overtones. 3. **Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683** - **Facts:** The High Court issued directions regarding the service conditions of employees of the Aravali Golf Club. - **Issue:** Whether the High Court exceeded its jurisdiction by interfering in administrative matters. - **Held:** The **Supreme Court** criticized the High Court for overstepping its jurisdiction, reiterating the importance of **Judicial Restraint** and reminding that courts should not interfere in administrative or policy matters. ## **DOCTRINES / THEORIES** - **Doctrine of Separation of Powers:** This doctrine underlines that the **legislative**, **executive**, and **judiciary** should function independently without encroaching upon each other’s domains. **Judicial Restraint** upholds this principle. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Political Question](https://lawfoyer.in/doctrine-of-political-question/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Political Question refers to the principle where courts refrain from adjudicating issues that are constitutionally delegated to the executive or legislative branches, emphasizing the separation of powers. **Content:** The **Doctrine of Political Question** refers to the principle where courts refrain from adjudicating issues that are constitutionally delegated to the executive or legislative branches, emphasizing the **separation of powers**. ### **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Political Question** posits that certain matters are inherently political and, therefore, beyond the purview of **judicial review**. This doctrine ensures that courts do not encroach upon functions explicitly assigned to the **executive** or **legislature**, maintaining the **balance of power** among government branches. In essence, it delineates the boundary between **justiciable issues** suitable for judicial determination and **political questions** reserved for other governmental organs. ### **HISTORICAL BACKGROUND / EVOLUTION** Originating in the United States, the doctrine was notably articulated in ***Baker v. Carr***, **369 U.S. 186 (1962)**, where the U.S. Supreme Court outlined criteria to identify political questions. The Court stated that a political question exists when there is: - **“A textually demonstrable constitutional commitment of the issue to a coordinate political department.”** - **“A lack of judicially discoverable and manageable standards for resolving it.”** - **“The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.”** - **“The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.”** - **“An unusual need for unquestioning adherence to a political decision already made.”** - **“The potentiality of embarrassment from multifarious pronouncements by various departments on one question.”** In India, the doctrine’s applicability has been debated, given the **Constitution’s distinct separation of powers**. The **Supreme Court** has addressed this doctrine in various cases, adapting its principles to the Indian constitutional framework. ### **COMPARISON WITH OTHER COUNTRIES** In the **United States**, the doctrine is well-established, with courts often invoking it to avoid adjudicating issues like **foreign policy** and **impeachment procedures**. In contrast, the **United Kingdom** does not formally recognize the doctrine but practices **judicial restraint** in matters deemed inappropriate for judicial review, such as **national security** and **foreign affairs**. In **India**, while the doctrine is not explicitly recognized, courts have occasionally exercised restraint in **politically sensitive matters**, emphasizing the importance of maintaining the **separation of powers**. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** For a matter to be considered a political question in the Indian context, the following elements are typically present: - **Textual Commitment**: The **Constitution** explicitly assigns the issue to another branch of government. - **Lack of Judicial Standards**: Absence of clear **legal standards** for the judiciary to resolve the issue. - **Policy Determination**: Resolution requires **policy decisions** beyond judicial expertise. - **Respect for Other Branches**: Judicial intervention would show a lack of respect for other governmental branches. - **Potential for Embarrassment**: Multiple pronouncements by different branches could lead to confusion. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** While the **Indian Constitution** does not explicitly mention the **Doctrine of Political Question**, certain articles imply the **separation of powers**: - **Article 53**: Vests **executive power** in the President. - **Article 122**: Courts cannot inquire into **proceedings of Parliament**. - **Article 212**: Courts cannot inquire into **proceedings of state legislatures**. These provisions suggest areas where judicial intervention is limited, aligning with the principles underlying the doctrine. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several Indian cases have touched upon the doctrine: 1. **State of Rajasthan v. Union of India, (1977) 3 SCC 592**: The Supreme Court dealt with the **justiciability** of the **President’s Rule** under **Article 356**. The Court observed that while the proclamation of **President’s Rule** is subject to **judicial review**, the scope is limited, especially when the satisfaction of the President involves **political considerations**. 2. **S.R. Bommai v. Union of India, (1994) 3 SCC 1**: This landmark judgment further clarified the scope of judicial review concerning the imposition of **President’s Rule**. The Court held that the proclamation under **Article 356** is subject to judicial review to assess whether it was based on **relevant material** and whether the power was exercised **mala fide**. However, the Court also acknowledged that certain political matters might not be suitable for **judicial determination**. 3. **R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324**: The Court addressed the validity of the **Constitution (36th Amendment) Act**, which granted statehood to Sikkim. It was contended that the terms of admission of a new territory into the Union were **political questions**. The Court conceded that such matters involve political issues of considerable complexity, many of which may not be judicially manageable. ### **INTERPRETATIONS / EXPLANATIONS** The **Indian judiciary** has interpreted the doctrine with caution. In ***A.K. Roy v. Union of India, (1982) 1 SCC 271***, the Court observed that the constitutional mechanism does not contemplate any function designated as political, with orders made in exercise thereof not liable to be tested for validity before lawfully constituted courts. This indicates the Court’s reluctance to apply the doctrine rigidly, ensuring that even **politically sensitive matters** are open to judicial scrutiny when they involve **constitutional violations**. ### **DOCTRINES / THEORIES** The **Doctrine of Political Question** is closely related to: - **Separation of Powers**: Ensures that the **legislative**, **executive**, and **judicial branches** function independently without encroaching upon each other’s domains. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Executive Privilege](https://lawfoyer.in/doctrine-of-executive-privilege/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Executive Privilege refers to the right of the executive branch to withhold information from other government branches, particularly the legislature and judiciary, to protect national interest and ensure effective governance. This privilege balances transparency with the necessity of confidentiality in state affairs. **Content:** ## **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Executive Privilege** refers to the right of the executive branch to withhold information from other government branches, particularly the legislature and judiciary, to protect national interest and ensure effective governance. This privilege balances transparency with the necessity of confidentiality in state affairs. ## **HISTORICAL BACKGROUND / EVOLUTION** Originating in England as **“Crown Privilege,”** the concept evolved into **“Executive Privilege”** in the United States, notably during **President Nixon’s era**. In India, this doctrine is encapsulated in **Section 123 of the Indian Evidence Act, 1872**, which restricts the disclosure of unpublished official records relating to state affairs, except with governmental permission. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - **Section 123, Indian Evidence Act, 1872**: **Prohibits giving evidence derived from unpublished official records relating to state affairs without the government’s permission.** - **Section 162, Indian Evidence Act, 1872**: **Empowers the court to inspect documents to determine the validity of objections against their disclosure.** - **Article 74(2), Constitution of India**: **States that the advice given by ministers to the President shall not be inquired into by any court, ensuring confidentiality in executive decisions.** ## **CASE LAWS / PRECEDENTS** 1. ***S.P. Gupta v. President of India and Ors. (1982)***: This landmark case, also known as the **“Judges’ Transfer Case,”** dealt with the extent of executive privilege concerning judicial appointments and transfers. The Supreme Court held that the government’s claim of privilege must be balanced against the need for transparency, especially when public interest is at stake. 2. ***State of Uttar Pradesh v. Raj Narain (1975)***: In this case, the Supreme Court addressed the issue of whether the government could claim privilege over the disclosure of the **Blue Book**, which contained details about the **Prime Minister’s security arrangements**. The Court held that while certain documents could be withheld in the interest of state security, the claim of privilege is not absolute and must be scrutinized by the judiciary. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - **Unpublished Official Records**: The information must pertain to state affairs and remain unpublished. - **Potential Harm**: **Disclosure should likely harm public interest or national security.** - **Formal Claim**: The head of the department concerned must **formally claim the privilege, justifying the need for confidentiality**. ## **DEFENCES / EXCEPTIONS / EXCEPTIONS TO DEFENCES** - **Judicial Review**: **Courts can review the validity of the executive’s claim to ensure it isn’t misused to conceal wrongdoing.** - **Public Interest**: If public interest in disclosure outweighs the need for confidentiality, **courts may order the release of information**. ## **GUIDELINES / RULES / REGULATIONS / NOTIFICATIONS / CIRCULARS** - **Governmental Circulars**: Various **circulars outline procedures** for claiming executive privilege, emphasizing the need for a careful assessment of potential harm from disclosure. ## **DOCTRINES / THEORIES** - **Doctrine of Separation of Powers**: This doctrine underpins **executive privilege**, ensuring that each government branch functions independently without undue interference. ## **MAXIMS / PRINCIPLES** - **Salus Populi Suprema Lex**: This Latin maxim means **“the welfare of the people is the supreme law,”** justifying the withholding of information when disclosure could harm public welfare. ## **AMENDMENTS / ADDITIONS / REPEALING** - While the Indian Evidence Act has undergone amendments, the provisions concerning executive privilege, particularly **Section 123**, have remained largely unchanged, reflecting the enduring importance of balancing state secrecy with transparency. ## **CRITICISM / APPRECIATION** - **Criticism**: Critics argue that **executive privilege can be misused** to conceal governmental malpractices and evade accountability. - **Appreciation**: Proponents contend that it is **essential for protecting national security** and ensuring the effective functioning of the executive branch. ## **COMPARISON WITH OTHER COUNTRIES** - **United States**: **Executive privilege** is well-established, allowing the **President** to withhold information; however, it is subject to judicial review, as seen in the **U.S. v. Nixon (1974)** case. - **United Kingdom**: Known as **“Crown Privilege,”** it allows the government to withhold documents; however, **courts can challenge unjustified claims**. ## **FUTURE IMPLICATIONS** With increasing demands for **transparency and accountability**, the scope and application of executive privilege in India may undergo **judicial scrutiny and potential legislative reforms** to balance state secrecy with democratic openness. ## **FLOWCHART: PROCEDURE FOR CLAIMING EXECUTIVE PRIVILEGE IN INDIA** ```mermaid graph TDA[Need for Confidentiality Identified] --> B[Head of Department Reviews Information]B --> C{Does Information Relate to State Affairs?}C -- Yes --> D[Formal Claim of Privilege Made]D --> E[Submission to Court]E --> F{Court Reviews Validity of Claim}F -- Valid Claim --> G[Information Withheld]F -- Invalid Claim --> H[Information Disclosed]C -- No --> H[Information Disclosed] ``` ## **TABLE: COMPARISON OF EXECUTIVE PRIVILEGE ACROSS COUNTRIES** **Aspect****India****United States****United Kingdom****Legal Basis****Section 123, Indian Evidence Act, 1872****Judicial Precedents****Common Law****Scope****Unpublished official records relating to state affairs****Presidential communications****Government documents****Judicial Review****Permitted****Permitted****Permitted****Notable Case****S.P. Gupta v. President of India (1982)****U.S. v. Nixon (1974)****Conway v. Rimmer (1968)**## **REFERENCES** 1. **Indian Evidence Act, 1872, Section 123.** 2. **Constitution of India, Article 74(2).** 3. **S.P. Gupta v. President of India and Ors., AIR 1982 SC 149.** **Categories:** Articles, Constitutional Law --- ### [Doctrine of Parliamentary Sovereignty](https://lawfoyer.in/doctrine-of-parliamentary-sovereignty/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Parliamentary Sovereignty asserts that Parliament holds supreme legislative authority, capable of enacting, amending, or repealing any law. In India, this doctrine is nuanced by constitutional supremacy and judicial review, ensuring a balance between legislative power and constitutional integrity. **Content:** The **Doctrine of Parliamentary Sovereignty** asserts that **Parliament** holds supreme legislative authority, capable of enacting, amending, or repealing any law. In India, this doctrine is nuanced by **constitutional supremacy** and **judicial review**, ensuring a balance between legislative power and constitutional integrity. ## **MEANING, DEFINITION & EXPLANATION** **Parliamentary Sovereignty** signifies the ultimate legislative power vested in **Parliament**, enabling it to legislate on any subject within its jurisdiction. In the Indian context, this power is not absolute; it operates within the confines of the **Constitution**, which is the supreme law of the land. The **Constitution** delineates the distribution of powers among the legislature, executive, and judiciary, ensuring that parliamentary actions remain within constitutional boundaries. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **Parliamentary Sovereignty** originates from the **British legal system**, where Parliament holds unrestricted legislative authority. In India, the framers of the **Constitution** adopted a modified version, embedding checks and balances to prevent absolute power concentration. This adaptation was influenced by **colonial experiences** and the desire to establish a **democratic framework** that upholds individual rights and judicial oversight. ## **COMPARISON WITH OTHER COUNTRIES** In the **United Kingdom**, **Parliamentary Sovereignty** is absolute, with no written constitution to limit legislative power. Conversely, countries like the **United States** practice **constitutional supremacy**, where a written constitution restricts legislative authority, and **judicial review** ensures laws align with constitutional provisions. **India’s system** incorporates elements of both, granting **Parliament** significant powers while subjecting it to **constitutional limitations** and **judicial scrutiny**. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** Several constitutional provisions outline the scope and limitations of **Parliamentary Sovereignty** in India: - **Article 245**: Empowers **Parliament** to legislate for the entire country, subject to constitutional provisions. - **Article 246**: Defines the subject matter of laws made by **Parliament** and **State Legislatures** through **Union**, **State**, and **Concurrent Lists**. - **Article 368**: Grants **Parliament** the power to amend the **Constitution**, with certain limitations to preserve its **basic structure**. ## **JUDICIAL REVIEW AND LIMITATIONS** The **Indian judiciary**, particularly the **Supreme Court**, plays a crucial role in reviewing **parliamentary legislation** to ensure compliance with **constitutional mandates**. This system of checks and balances prevents the enactment of laws that violate **fundamental rights** or alter the **Constitution’s basic structure**. ## **CASE LAWS / PRECEDENTS** 1. **Kesavananda Bharati v. State of Kerala (1973)**: This landmark case established the **Basic Structure Doctrine**, asserting that while **Parliament** can amend the **Constitution**, it cannot alter its fundamental framework. The petitioner, **Kesavananda Bharati**, challenged the **Kerala government’s land reform laws**, leading to a verdict that certain constitutional amendments infringing on the **basic structure** are invalid. 2. **Golaknath v. State of Punjab (1967)**: The **Supreme Court** held that **Parliament** could not amend **Fundamental Rights**, emphasizing the inviolability of these rights. The petitioners, the **Golaknath family**, contested **land ceiling laws**, resulting in a decision that constitutional amendments affecting **Fundamental Rights** were invalid. 3. **Minerva Mills Ltd. v. Union of India (1980)**: The Court reaffirmed the **Basic Structure Doctrine**, striking down clauses that granted **Parliament** unlimited amending power, thus preserving **judicial review** and the **Constitution’s supremacy**. **Minerva Mills** challenged certain amendments that sought to curtail **judicial review**, leading to a verdict reinforcing constitutional limitations on **parliamentary authority**. ## **DOCTRINES / THEORIES** - **Basic Structure Doctrine**: Asserts that certain fundamental features of the **Constitution** cannot be altered by **parliamentary amendments**, ensuring the preservation of its core principles. ## **MAXIMS / PRINCIPLES** - **Constitutional Supremacy**: The principle that the **Constitution** is the ultimate authority, and all laws and actions must conform to it. - **Rule of Law**: The doctrine that law governs the nation, ensuring that no individual or institution is above the law. ## **AMENDMENTS / ADDITIONS / REPEALING** **Parliament** holds the authority to amend the **Constitution** under **Article 368**, but such amendments must not violate the **Constitution’s basic structure**. This ensures that while the **Constitution** can evolve, its foundational principles remain intact. ## **CRITICISM / APPRECIATION** The doctrine of **Parliamentary Sovereignty** in India is lauded for empowering **democratic governance** through elected representatives. However, it faces criticism when perceived to encroach upon **judicial independence** or **fundamental rights**. The balance between **legislative authority** and **constitutional limitations** remains a subject of ongoing legal and academic discourse. ## **CONCLUSION** In India, **Parliamentary Sovereignty** operates within a framework that balances **legislative authority** with **constitutional supremacy** and **judicial review**. This ensures that while **Parliament** possesses significant legislative powers, it functions within the constraints of the **Constitution**, preserving **democratic principles** and protecting **individual rights**. ## **REFERENCES** 1. **Kesavananda Bharati v. State of Kerala**, AIR 1973 SC 1461. 2. **Golaknath v. State of Punjab**, AIR 1967 SC 1643. 3. **Minerva Mills Ltd. v. Union of India**, AIR 1980 SC 1789. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Constitutional Supremacy](https://lawfoyer.in/doctrine-of-constitutional-supremacy/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** Doctrine of Constitutional Supremacy asserts that the Constitution is the ultimate authority in a legal system, and all laws, policies, and actions must conform to its provisions. In India, this doctrine ensures that the Constitution prevails over parliamentary enactments and executive decisions, maintaining the rule of law and protecting citizens' rights. **Content:** Doctrine of Constitutional Supremacy asserts that the **Constitution** is the ultimate authority in a legal system, and all laws, policies, and actions must conform to its provisions. In India, this doctrine ensures that the **Constitution** prevails over parliamentary enactments and executive decisions, maintaining the **rule of law** and protecting citizens’ rights. ### **MEANING, DEFINITION & EXPLANATION** **Constitutional Supremacy** means that the **Constitution** is the highest legal authority, and any law or action inconsistent with it is invalid. **Article 13** of the Indian Constitution embodies this principle by declaring that laws contravening **Fundamental Rights** are void. This framework ensures that all branches of government operate within constitutional limits, safeguarding **democratic governance**. ### **HISTORICAL BACKGROUND / EVOLUTION** The framers of the Indian Constitution drew inspiration from various sources, notably the **U.S. model of judicial review** and the **British principle of parliamentary sovereignty**. They adopted a balanced approach, granting the judiciary the power to review legislative and executive actions while allowing **Parliament** to amend the Constitution, subject to certain constraints. This balance was established to prevent the abuse of power and to protect individual rights. ### **COMPARISON WITH OTHER COUNTRIES** - In the **United Kingdom**, **parliamentary sovereignty** implies that Parliament can make or repeal any law, with no authority, including the courts, able to override its legislation. - Conversely, the **United States** practices **judicial supremacy**, where the **Constitution** is supreme, and the judiciary has the authority to invalidate laws conflicting with it. - **India’s model** incorporates elements of both systems, ensuring that neither **Parliament** nor the judiciary holds absolute power. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** Several **constitutional provisions** uphold the doctrine of constitutional supremacy in India: - **Article 13**: Declares laws inconsistent with **Fundamental Rights** as void. - **Article 32**: Provides the right to constitutional remedies, allowing individuals to approach the **Supreme Court** for enforcement of **Fundamental Rights**. - **Article 226**: Empowers **High Courts** to issue certain writs for enforcement of rights. - **Article 368**: Outlines the procedure for amending the **Constitution**, ensuring that amendments do not alter its **basic structure**. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark judgments have reinforced **constitutional supremacy** in India: - **Kesavananda Bharati v. State of Kerala (1973)**: The **Supreme Court** held that while **Parliament** has wide powers to amend the **Constitution**, it cannot alter its **‘basic structure’**. This case involved challenges to land reform laws and the extent of Parliament’s amending power. The Court introduced the **Basic Structure Doctrine**, ensuring that certain fundamental features of the **Constitution** remain inviolable. - **Minerva Mills Ltd. v. Union of India (1980)**: The Court struck down clauses of the **42nd Amendment** that limited judicial review, reaffirming that **judicial review** is integral to the **Constitution’s basic structure**. This case emphasized the balance between **Fundamental Rights** and **Directive Principles**, reinforcing the importance of judicial oversight. - **I.C. Golaknath v. State of Punjab (1967)**: The **Supreme Court** ruled that **Parliament** could not curtail any **Fundamental Rights**, emphasizing the supremacy of the **Constitution** over parliamentary amendments. This case involved the validity of land ceiling laws and questioned Parliament’s power to amend **Fundamental Rights**. The decision led to significant constitutional amendments and debates on the extent of parliamentary authority. ### **DOCTRINES / THEORIES** The **Basic Structure Doctrine** is pivotal in maintaining **constitutional supremacy**. It posits that certain fundamental features of the **Constitution** cannot be altered or destroyed through amendments by **Parliament**. This doctrine ensures the preservation of the **Constitution’s** core principles, such as the **rule of law**, **separation of powers**, and **judicial review**. ### **MAXIMS / PRINCIPLES** The principle of **“Ultra Vires”** applies here, meaning ‘beyond the powers.’ Any law or action exceeding the authority granted by the **Constitution** is deemed void. This principle ensures that all governmental actions remain within constitutional boundaries, preventing misuse of power. ### **AMENDMENTS / ADDITIONS / REPEALING** The **42nd Amendment (1976)** attempted to curtail **judicial review** and enhance **parliamentary sovereignty**. However, the **Supreme Court** in the **Minerva Mills case** invalidated these changes, reaffirming the **Constitution’s supremacy** and the essential role of **judicial review** in maintaining constitutional balance. ### **CRITICISM / APPRECIATION** While the doctrine of **constitutional supremacy** safeguards **democratic principles**, some critics argue that excessive **judicial intervention** may impede legislative functions. However, this system of **checks and balances** is designed to prevent any single branch from becoming too powerful, ensuring the protection of individual rights and the **rule of law**. ### **FLOWCHART: DOCTRINE OF CONSTITUTIONAL SUPREMACY IN INDIA** ```mermaid graph TDA[Constitution of India] --> B[Supreme Law of the Land]B --> C[Legislative Actions]B --> D[Executive Actions]B --> E[Judicial Actions]C --> F{Conform to Constitution?}D --> FE --> FF --> |Yes| G[Valid]F --> |No| H[Invalid] ``` This flowchart illustrates that all actions by the legislative, executive, and judiciary must conform to the **Constitution**. If they do, they are valid; if not, they are invalid, reinforcing the doctrine of **constitutional supremacy**. ### **TABLE: COMPARISON OF CONSTITUTIONAL SUPREMACY AND PARLIAMENTARY SOVEREIGNTY** **Feature****Constitutional Supremacy****Parliamentary Sovereignty****Definition****Constitution** is the supreme law; all actions must conform to it.**Parliament** has ultimate legal authority; its laws cannot be overridden.**Judicial Review**Courts can invalidate laws conflicting with the **Constitution**.Courts cannot overrule parliamentary legislation. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Harmonious Construction](https://lawfoyer.in/doctrine-of-harmonious-construction/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Harmonious Construction is a fundamental principle in Indian statutory interpretation. It mandates that when provisions within a statute or between statutes appear conflicting, they should be interpreted to give effect to all, ensuring coherence and avoiding redundancy. **Content:** The **Doctrine of Harmonious Construction** is a fundamental principle in Indian statutory interpretation. It mandates that when provisions within a statute or between statutes appear conflicting, they should be interpreted to give effect to all, ensuring coherence and avoiding redundancy. ## **MEANING, DEFINITION & EXPLANATION** *Harmonious construction* involves interpreting conflicting statutory provisions to ensure each is effective without nullifying the other. This approach maintains **legislative intent** and coherence within the legal framework. The **Supreme Court of India** has emphasized that courts should avoid conflicts between provisions and interpret them to harmonize and give effect to all. ## **HISTORICAL BACKGROUND / EVOLUTION** The doctrine’s roots trace back to early judicial interpretations addressing conflicts between constitutional provisions. A notable application was in ***Sri Shankari Prasad Singh Deo v. Union of India***, **AIR 1951 SC 458**, where the **Supreme Court** reconciled conflicts between **Fundamental Rights** and **Directive Principles**, emphasizing their complementary roles. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** Key principles governing harmonious construction include: - **Avoiding Conflict**: Courts should strive to interpret provisions to prevent conflicts. - **Giving Effect to All Provisions**: Interpretations should ensure all provisions are operative. - **Avoiding Redundancy**: No provision should be rendered redundant or ineffective. - **Preserving Legislative Intent**: Interpretations should reflect the legislature’s purpose. These principles were outlined in ***Commissioner of Income Tax v. Hindustan Bulk Carriers***, **(2003) 3 SCC 57**. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** While the doctrine itself isn’t codified, it operates within the framework of **statutory interpretation**. Courts apply this doctrine to resolve apparent conflicts, ensuring that interpretations align with **legislative intent** and **constitutional mandates**. ## **GUIDELINES / RULES / REGULATIONS / NOTIFICATIONS / CIRCULARS** The judiciary has developed guidelines for applying harmonious construction: - **Read Provisions Together**: Interpret conflicting provisions collectively to find a harmonious meaning. - **Prioritize Specific Over General**: When conflicts arise, specific provisions may take precedence over general ones. - **Avoid Nullification**: Interpretations should not nullify any provision unless absolutely necessary. These guidelines ensure that statutory provisions are interpreted to maintain coherence and **legislative intent**. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark cases illustrate the application of this doctrine: 1. ***C.P. and Berar Act Case (1939)***: The court resolved inconsistencies between entries in **List I** and **List II** of the Constitution, emphasizing harmonious interpretation to avoid conflicts between **central** and **state powers**. 2. ***M.S.M. Sharma v. Krishna Sinha***, **AIR 1959 SC 395**: The **Supreme Court** applied harmonious construction to resolve conflicts between **Article 19(1)(a)** (*freedom of speech*) and **Article 194(3)** (*parliamentary privileges*), ensuring both provisions were given effect without overriding each other. 3. ***State of Mysore v. R. Nanjappa***, **AIR 1960 SC 294**: The court reconciled conflicts between **Articles 25(2)(b)** and **26(b)** of the Constitution, holding that the right to manage **religious affairs** is subject to laws providing for **social welfare and reform**. ## **INTERPRETATIONS / EXPLANATIONS** The doctrine emphasizes that statutes should be read as a whole, with each provision interpreted in context. This holistic approach ensures that the **legal framework** operates seamlessly, reflecting the legislature’s comprehensive intent. ## **DOCTRINES / THEORIES** Harmonious construction aligns with the principle of ***Generalia specialibus non derogant***, meaning **general provisions do not override specific ones**. This principle ensures that specific legislative intents are preserved over more general provisions. ## **MAXIMS / PRINCIPLES** The legal maxim ***Ut res magis valeat quam pereat*** (*it is better for a thing to have effect than to be made void*) underpins the doctrine, advocating for interpretations that give effect to all provisions rather than rendering any ineffective. ## **AMENDMENTS / ADDITIONS / REPEALING** While the doctrine itself hasn’t undergone amendments, its application has evolved through **judicial interpretations**, adapting to complex legal scenarios to uphold legislative coherence. ## **CRITICISM / APPRECIATION** The doctrine is lauded for promoting **legal coherence** and respecting **legislative intent**. However, critics argue that it can lead to **judicial overreach**, with courts potentially reinterpreting clear legislative provisions under the guise of harmonization. ## **FLOWCHART: APPLICATION OF THE DOCTRINE OF HARMONIOUS CONSTRUCTION** ```mermaid graph TDA[Identify Conflicting Provisions] --> B[Analyze Legislative Intent]B --> C[Interpret Provisions Collectively]C --> D{Conflict Resolved?}D --> |Yes| E[Apply Harmonious Interpretation]D --> |No| F[Determine Precedence (e.g., Specific over General)]F --> G[Apply Resolved Interpretation] ``` This flowchart outlines the judicial approach to applying the doctrine, ensuring that all provisions are given effect in a coherent manner. ## **TABLE: COMPARISON OF HARMONIOUS CONSTRUCTION WITH OTHER INTERPRETATION DOCTRINES** **Doctrine****Principle****Application****Harmonious Construction**Interpret conflicting provisions to give effect to all.Resolving internal conflicts within a statute or between statutes.**Literal Rule**Interpret statutes based on the plain meaning of the words.Applied when the statutory language is clear and unambiguous. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Implied Powers](https://lawfoyer.in/doctrine-of-implied-powers/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Implied Powers allows authorities to exercise powers not explicitly stated in law but necessary to fulfill their duties effectively. In India, this doctrine ensures governmental functions are carried out efficiently, even when specific powers are not expressly granted. **Content:** The **Doctrine of Implied Powers** allows authorities to exercise powers not explicitly stated in law but **necessary** to fulfill their duties effectively. In India, this doctrine ensures governmental functions are carried out efficiently, even when specific powers are not expressly granted. ### **MEANING AND DEFINITION** The **Doctrine of Implied Powers** refers to the authority possessed by governmental bodies that, while not explicitly stated, is deemed **necessary** to implement their legally assigned duties. This principle ensures that the execution of **express powers** is practical and effective. For instance, if a statute grants an authority a specific duty, it implicitly includes the powers essential to perform that duty. This doctrine is encapsulated in the maxim **“Quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest,”** meaning **“When the law gives anything to anyone, it also gives all those things without which the thing itself would be unavailable.”** ### **HISTORICAL BACKGROUND** The concept of implied powers has roots in **common law traditions**, where courts recognized that legislative grants of authority include not only the powers expressly conferred but also those necessary to achieve the **legislative intent**. In India, this doctrine has been applied to interpret **constitutional** and **statutory provisions** to ensure that governmental functions are not hindered by the absence of explicit authorizations. ### **ESSENTIALS OF THE DOCTRINE** - ***Necessity***: The implied power must be **essential** for the execution of an express power. Without it, the express power cannot be effectively exercised. - ***Reasonableness***: The implied power should be **reasonable** and not extend beyond what is necessary to fulfill the express power. - ***Consistency with Legislative Intent***: The exercise of the implied power must align with the **overall purpose and intent of the legislation**. ### **LEGAL PROVISIONS AND APPLICATION IN INDIA** In **Indian constitutional law**, the doctrine is often invoked to interpret the powers of various authorities, ensuring they can perform their functions effectively. For example, **Article 73** of the Constitution extends the **executive power** of the Union to matters on which Parliament has the right to legislate, implicitly granting the executive the **necessary authority** to act on these matters. ### **CASE LAWS ILLUSTRATING THE DOCTRINE** 1. ***D.S. Gerewal v. State of Punjab (1959)***: The Supreme Court upheld the constitutionality of the **All India Service Act, 1951**, stating that **Article 312** does not restrict the power to delegate authority. This case exemplifies the application of the doctrine, where the delegation of powers was deemed necessary for **administrative efficiency**. 2. ***Gopal Chandra Misra v. State of Uttar Pradesh (1978)***: In this case, the Supreme Court recognized an **implicit power** for State High Court judges under **Article 217**, allowing them to cancel a resignation even after acceptance. This implied power was considered **essential** to maintain judicial **independence** and **integrity**. 3. ***Union of India v. Paras Laminates (P) Ltd. (1990)***: The Court observed that when a statute confers a jurisdiction, it also confers by implication the power of doing all such acts or employing such means as are essentially necessary to its execution. This case reinforced the principle that **implied powers** are integral to the effective exercise of **conferred jurisdiction**. ### **DOCTRINE OF IMPLIED PROHIBITION** The **Doctrine of Implied Prohibition** complements the doctrine of implied powers by suggesting that if a statute grants a power for a specific purpose, it implicitly prohibits actions that would **counteract** that purpose. This ensures that authorities do not exercise their powers in a manner that defeats the **legislative intent**. ### **COMPARISON WITH OTHER DOCTRINES** The **Doctrine of Implied Powers** is often compared with the **Doctrine of Incidental or Ancillary Powers**, which suggests that the power to legislate on a particular issue includes the authority to legislate on **incidental matters** necessary to achieve the main objective. While both doctrines deal with powers not explicitly stated, the former focuses on the **execution of duties** by authorities, and the latter pertains to **legislative competencies**. ### **INTERNATIONAL PERSPECTIVE** Internationally, the doctrine has been applied in various jurisdictions to ensure that governmental bodies can function effectively. For instance, in the **United States**, the **Necessary and Proper Clause** grants Congress the authority to make all laws which shall be **necessary and proper** for carrying into execution its powers, embodying the principle of **implied powers**. ### **CONCLUSION** The **Doctrine of Implied Powers** plays a crucial role in **Indian constitutional law** by ensuring that authorities can effectively perform their duties, even in the absence of explicit statutory provisions. Through judicial interpretation, this doctrine maintains the functionality and adaptability of legal and governmental systems, aligning with the evolving needs of society. ### **REFERENCES** 1. ***D.S. Gerewal v. State of Punjab***, AIR 1959 SC 512. 2. ***Gopal Chandra Misra v. State of Uttar Pradesh***, AIR 1978 SC 694. 3. ***Union of India v. Paras Laminates (P) Ltd.***, 1990 (4) SCC 453. 4. **“Doctrine of Implied Powers: Concept, Case Example, Prohibition,”** Leverage Edu. 5. **“Judicial Doctrines, List of Doctrines of Indian Constitution,”** Study IQ. 6. **“Indian Judicial Doctrines – Principles of Constitutional Law,”** ClearIAS. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Ancillary Powers](https://lawfoyer.in/doctrine-of-ancillary-powers/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Ancillary Powers allows legislative bodies to enact laws on matters reasonably connected to their primary legislative subjects, ensuring effective governance within their constitutional authority. **Content:** The **Doctrine of Ancillary Powers** allows legislative bodies to enact laws on matters **reasonably connected** to their **primary legislative subjects**, ensuring effective governance within their **constitutional authority**. ### **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Ancillary Powers**, also known as the **Doctrine of Incidental Powers**, permits a legislative body to legislate on matters **not explicitly mentioned** in its constitutional domain if these matters are essential for exercising its **primary legislative functions**. This doctrine ensures that legislative powers are interpreted broadly, allowing for the inclusion of **incidental or ancillary matters** reasonably connected to the **main subject**. ### **HISTORICAL BACKGROUND / EVOLUTION** Originating from **common law principles**, the doctrine has been integral in constitutional law to provide flexibility in legislative functions. In **India**, it has been applied to interpret the **distribution of powers between the Union and State legislatures**, ensuring that legislative competence includes **necessary ancillary matters** for effective governance. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - ***Primary Legislative Competence***: The legislature must have the authority over the **main subject matter**. - ***Reasonable Connection***: The ancillary matter should be **reasonably connected** to the **primary subject**. - ***Necessity for Implementation***: The ancillary power should be **essential for the effective implementation** of the primary legislative function. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In the **Indian context**, the doctrine is applied through **judicial interpretation** to ensure that legislative entries are given a **broad scope**, allowing legislatures to enact laws on **ancillary matters** necessary for implementing their **primary legislative functions**. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. ***State of Rajasthan v. G. Chawla, AIR 1959 SC 544***: The **Supreme Court** held that the power to legislate on a topic includes the power to legislate on **ancillary matters reasonably connected** to that topic. 2. ***Prafulla Kumar Mukherjee v. Bank of Commerce, AIR 1947 PC 60***: The **Privy Council** applied the doctrine, stating that if a legislature has the power to legislate on a subject, it also has the power to legislate on **ancillary matters** that can be **reasonably included** in that subject. ### **DOCTRINES / THEORIES** The **Doctrine of Ancillary Powers** complements the **Doctrine of Pith and Substance**, which focuses on the **true nature and character of legislation** to determine its validity when there is an **overlap between different legislative lists**. ### **MAXIMS / PRINCIPLES** The principle **“Quando lex aliquid concedit, concedere videtur et illud sine quo res ipsa esse non potest”** applies here, meaning **“When the law gives anything, it gives also all those things without which the thing itself would be unavailable.”** ### **COMPARISON WITH OTHER COUNTRIES** In **Canada**, the doctrine is known as the **“Ancillary Powers Doctrine”** and is used to determine under which head of power a given piece of legislation falls, especially when there is an **overlap between federal and provincial powers**. ### **CRITICISM / APPRECIATION** - **Criticism**: Critics argue that the doctrine may lead to an **overreach of legislative powers**, potentially encroaching upon the jurisdiction of **other legislative bodies**. - **Appreciation**: The doctrine provides **flexibility** and ensures **effective governance** by including incidental matters necessary for **legislative implementation**. ### **FUTURE IMPLICATIONS** The doctrine will continue to play a **crucial role** in interpreting legislative powers, especially with the **evolving nature of governance** and the emergence of **new subjects** requiring legislative intervention. ### **FLOWCHART: APPLICATION OF THE DOCTRINE OF ANCILLARY POWERS** ```mermaid graph TDA[Legislative Authority] --> B[Primary Subject Matter]B --> C[Ancillary Matter]C --> D{Reasonable Connection?}D -->|Yes| E[Legislation Valid]D -->|No| F[Legislation Invalid] ``` ### **TABLE: COMPARISON BETWEEN DOCTRINE OF PITH AND SUBSTANCE AND DOCTRINE OF ANCILLARY POWERS** **Aspect****Doctrine of Pith and Substance****Doctrine of Ancillary Powers****Focus**Determines the **true nature** of legislation to ascertain its validity.Allows legislation on matters **reasonably connected** to the **primary subject**.**Application**Used when there is an **overlap between different legislative lists**.Applied to include **ancillary matters** essential for implementing primary legislative functions.**Judicial Interpretation**Courts examine the **main purpose** of the legislation.Courts assess the **necessity and reasonable connection** of ancillary matters to the **primary subject**.**Scope**Ensures legislation remains within the **constitutional competence** of the legislature.Provides **flexibility** to legislate on **incidental matters** not explicitly mentioned in the constitutional lists. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Occupied Field](https://lawfoyer.in/doctrine-of-occupied-field/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Occupied Field addresses legislative conflicts in India's federal structure, ensuring clarity when both Parliament and State Legislatures legislate on the same subject. **Content:** The **Doctrine of Occupied Field** addresses legislative conflicts in India’s federal structure, ensuring clarity when both **Parliament** and **State Legislatures** legislate on the same subject. ### **MEANING AND DEFINITION** The **Doctrine of Occupied Field** posits that when **Parliament** enacts legislation on a subject within its competence, especially those in the **Concurrent List**, **State Legislatures** cannot legislate inconsistently on the same subject. This doctrine ensures legislative harmony and prevents conflicts between central and state laws. ### **CONSTITUTIONAL PROVISIONS** - ***Article 246***: Distributes legislative powers between **Parliament** and **State Legislatures** across three lists: **Union**, **State**, and **Concurrent**. **Parliament** has exclusive power to legislate on subjects in the **Union List**, while both **Parliament** and **State Legislatures** can legislate on subjects in the **Concurrent List**. - ***Article 254***: Addresses inconsistencies between central and state laws on **Concurrent List** subjects. If a **state law** conflicts with a **central law**, the **central law prevails**, rendering the conflicting **state law** void to the extent of the inconsistency. However, if the **state law** receives **Presidential assent**, it can prevail in that state, even if inconsistent with the **central law**. ### **APPLICATION OF THE DOCTRINE** The doctrine applies when: - **Parliament** legislates comprehensively on a subject in the **Concurrent List**. - A **state law** on the same subject conflicts with the **central law**. In such cases, the **central law** occupies the field, and the **state law** becomes inoperative to the extent of the conflict. ### **JUDICIAL INTERPRETATIONS** - ***State of Kerala v. Mar Appraem Kuri Co. Ltd. (2012) 7 SCC 106***: The **Supreme Court** held that the **Chit Funds Act, 1982**, a central legislation, occupied the field concerning chit funds. Consequently, any **state legislation** inconsistent with the central act would be void unless it received **Presidential assent**. - ***M. Karunanidhi v. Union of India (1979) 3 SCC 431***: The Court clarified that for the doctrine to apply, there must be a direct inconsistency between the **central** and **state laws**, making it impossible to obey both. If both laws can operate without conflict, the doctrine does not apply. ### **EXCEPTIONS AND LIMITATIONS** - ***Presidential Assent***: Under ***Article 254(2)***, if a **state law** conflicting with a **central law** receives **Presidential assent**, it prevails in that state. However, **Parliament** can override this by enacting a law that reasserts its authority. - ***Doctrine of Pith and Substance***: If the true nature of the legislation (its “pith and substance”) falls within the competence of the enacting legislature, incidental encroachments on another legislature’s field do not render it invalid. This ensures that minor overlaps do not lead to legislative invalidity. ### **COMPARISON WITH OTHER DOCTRINES** - ***Doctrine of Repugnancy***: While both doctrines deal with conflicts between **central** and **state laws**, the **Doctrine of Repugnancy** specifically addresses situations where both laws are validly enacted but are inconsistent, leading to the **central law prevailing**. In contrast, the **Doctrine of Occupied Field** focuses on the exclusivity of legislative competence once a legislature has occupied a field. ### **ILLUSTRATIVE CASE LAWS** - ***Southern Pharmaceuticals & Chemicals v. State of Kerala (1981) 4 SCC 391***: The **Supreme Court** held that the **Kerala Abkari Act**, regulating medicinal preparations containing alcohol, was not invalidated by the central **Medicinal and Toilet Preparations (Excise Duties) Act, 1955**, as both could operate concurrently without conflict. - ***Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority (2011) 3 SCC 139***: The Court observed that when both **central** and **state laws** can coexist without conflict, the question of one law being repugnant to the other does not arise. ### **CONCLUSION** The **Doctrine of Occupied Field** plays a crucial role in maintaining the balance of legislative powers in India’s federal structure. It ensures that once a legislature has legislated comprehensively on a subject, the other legislature cannot encroach upon that field, thereby preventing conflicts and ensuring legal clarity. ### **REFERENCES** 1. **Constitution of India**, ***Article 246***. 2. **Constitution of India**, ***Article 254***. 3. ***State of Kerala v. Mar Appraem Kuri Co. Ltd., (2012) 7 SCC 106***. 4. ***M. Karunanidhi v. Union of India, (1979) 3 SCC 431***. 5. ***Southern Pharmaceuticals & Chemicals v. State of Kerala, (1981) 4 SCC 391***. 6. ***Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority, (2011) 3 SCC 139***. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Incidental or Ancillary Powers](https://lawfoyer.in/doctrine-of-incidental-or-ancillary-powers/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Incidental or Ancillary Powers allows legislative bodies to enact laws on matters reasonably connected to their primary legislative subjects, ensuring effective governance within India's constitutional framework. **Content:** The **Doctrine of Incidental or Ancillary Powers** allows legislative bodies to enact laws on matters reasonably connected to their primary legislative subjects, ensuring effective governance within India’s constitutional framework. ### **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Incidental or Ancillary Powers** posits that when a legislative body holds authority over a specific subject, it inherently possesses the power to legislate on **ancillary** or **incidental matters** essential for the effective execution of that subject. This doctrine ensures that legislative powers are not unduly restricted, allowing for comprehensive law-making that addresses all facets of a given issue. It complements the **Doctrine of Pith and Substance**, which focuses on identifying the true nature of legislation to determine its validity. While the **Doctrine of Pith and Substance** addresses the core subject matter, the **Doctrine of Incidental or Ancillary Powers** pertains to the peripheral aspects necessary to support the main legislative intent. ### **HISTORICAL BACKGROUND / EVOLUTION** The evolution of this doctrine can be traced back to **“R. v. Waterfield (1963)”**, a decision of the English Court of Appeal. In the Indian context, the doctrine has been instrumental in interpreting the extent of legislative powers, especially concerning the distribution of powers between the Union and State legislatures as outlined in the **Seventh Schedule** of the Constitution. The judiciary has employed this doctrine to ensure that legislative bodies can effectively legislate on matters within their competence, including those **incidental** or **ancillary** to the main subjects. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 246** of the Indian Constitution delineates the distribution of legislative powers between the **Parliament** and **State Legislatures**. The **Seventh Schedule** categorizes subjects into three lists: **Union List**, **State List**, and **Concurrent List**. While these lists specify subjects of legislation, the **Doctrine of Incidental or Ancillary Powers** allows legislatures to enact laws on matters not expressly mentioned, provided they are necessary to achieve the objectives of the enumerated subjects. This ensures that legislative bodies can address all aspects related to their primary subjects without overstepping constitutional boundaries. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. **State of Rajasthan v. G. Chawla (1959):** The Supreme Court upheld the state’s power to legislate on **ancillary matters** essential for implementing its primary legislative functions. The court recognized that the power to legislate on a topic includes the power to legislate on **ancillary matters reasonably connected** to that topic. 2. **State of Bihar v. Kameshwar Singh (1952):** The Supreme Court examined the validity of the **Bihar Land Reforms Act** and reinforced the doctrine by ruling that **incidental legislation** would not be invalidated if it is essential for the primary legislation. The court emphasized that the legislature’s competence extends to all matters reasonably **ancillary** to the subjects enumerated in the legislative lists. 3. **M/S R.M.D.C. (Mysore) v. State of Mysore (1962):** This case dealt with the conflict between **state** and **union legislative powers** regarding **prize competitions**. The Supreme Court held that the state’s power to tax under **Entry 62 of List II** was distinct from the union’s power to regulate under **Entry 34**, illustrating the application of the doctrine in delineating legislative competencies. ### **GUIDELINES / RULES / REGULATIONS / NOTIFICATIONS / CIRCULARS** While the Constitution does not explicitly provide guidelines for the application of this doctrine, judicial interpretations have established certain principles: - **Reasonable Connection:** Legislation on ancillary matters must have a **reasonable and direct connection** to the primary subject of legislation. - **Avoidance of Overreach:** The ancillary power should not be stretched to cover subjects explicitly allocated to another legislative body. - **Necessity for Implementation:** The ancillary legislation should be necessary for the **effective implementation** of the main legislative intent. ### **DOCTRINES / THEORIES** The **Doctrine of Incidental or Ancillary Powers** is closely related to: - **Doctrine of Pith and Substance:** Focuses on the **true nature of legislation** to determine its validity, especially when there is an overlap between subjects in different legislative lists. - **Doctrine of Colourable Legislation:** Prevents legislatures from enacting laws that, while appearing to be within their jurisdiction, in reality, encroach upon the powers of another legislature. ### **MAXIMS / PRINCIPLES** The doctrine aligns with the legal maxim **“Quando lex aliquid concedit, concedere videtur et illud sine quo res ipsa esse non potest,”** meaning “When the law gives anything, it gives also all those things without which the thing itself would be unavailable.” This underscores that granting a particular power includes granting the necessary **ancillary powers** to ensure its effective execution. ### **COMPARISON WITH OTHER COUNTRIES** In **federal systems** like Canada and Australia, similar doctrines exist to manage the distribution of legislative powers. For instance, the **“pith and substance” doctrine** in Canada serves to determine the **true nature of legislation** when jurisdictional overlaps occur. These doctrines ensure that legislative bodies can function effectively without undue interference, maintaining the balance of power within federal structures. ### **CRITICISM / APPRECIATION** The doctrine has been appreciated for providing **flexibility in legislative functions**, allowing for comprehensive law-making that addresses all necessary aspects of governance. However, critics argue that it may lead to **legislative overreach**, with bodies potentially encroaching upon subjects beyond their constitutional competence under the guise of **ancillary legislation**. Therefore, **judicial oversight** remains crucial to maintain the balance of power and prevent misuse of this doctrine. ### **FUTURE IMPLICATIONS** As governance becomes increasingly complex, the **Doctrine of Incidental or Ancillary Powers** will continue to play a vital role in enabling legislatures to address multifaceted issues effectively. Its application ensures that legislative bodies are not constrained by **rigid interpretations** of their powers, allowing for adaptive and responsive law-making that meets the **evolving needs** of society. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Judicial Precedent](https://lawfoyer.in/doctrine-of-judicial-precedent/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Judicial Precedent, or stare decisis, is fundamental in the Indian legal system, ensuring consistency and predictability by obligating courts to follow established legal principles from previous decisions. **Content:** The Doctrine of Judicial Precedent, or ***stare decisis***, is fundamental in the Indian legal system, ensuring consistency and predictability by obligating courts to follow established legal principles from previous decisions. **MEANING AND DEFINITION** **Judicial precedent** refers to the practice where courts follow legal principles established in prior judgments when deciding cases with similar facts. This doctrine ensures that similar cases receive similar treatment, promoting fairness and stability in the legal system. The Latin term ***stare decisis*** translates to “to stand by things decided,” encapsulating this principle. **HISTORICAL EVOLUTION** The doctrine of precedent has roots in English common law and was integrated into **Indian jurisprudence** during British colonial rule. Pre-Independence, **Section 212 of the Government of India Act, 1919**, mandated that decisions of the **Privy Council** and the **Federal Court** were binding on all courts in British India. Post-Independence, **Article 141 of the Indian Constitution** stipulates that the law declared by the **Supreme Court** is binding on all courts within the territory of India. **TYPES OF PRECEDENTS** 1. ***Binding Precedent***: Decisions from higher courts that lower courts within the same jurisdiction must follow. For instance, **Supreme Court rulings** are binding on all subordinate courts in India. 2. ***Persuasive Precedent***: Decisions that are not obligatory but may influence a court’s judgment. These can include rulings from lower courts, courts in other jurisdictions, or foreign courts. **LEGAL PROVISIONS AND APPLICATION** **Article 141 of the Indian Constitution** enshrines the doctrine of precedent, stating that the **law declared by the Supreme Court** is binding on all courts within India. This provision ensures uniformity and consistency in the application of law across the country. **PRINCIPLES OF PRECEDENT** - ***Ratio Decidendi***: The legal principle or rationale essential to a court’s decision, which is binding in future cases with similar facts. - ***Obiter Dicta***: Observations or remarks made by a judge that are not crucial to the decision. While not binding, they can be persuasive in future cases. **HIERARCHY OF COURTS AND BINDING NATURE** The Indian judiciary follows a hierarchical structure: - **SUPREME COURT**: Its decisions are binding on all courts in India. - **HIGH COURTS**: Their decisions are binding on subordinate courts within their respective jurisdictions but hold only persuasive value for other High Courts and the Supreme Court. - **LOWER COURTS**: Their decisions are binding only on the parties involved and do not set precedent. **CASE LAWS ILLUSTRATING THE DOCTRINE** 1. ***Maneka Gandhi v. Union of India (1978)***: The **Supreme Court** expanded the interpretation of the right to personal liberty under **Article 21**, establishing that any procedure depriving a person of liberty must be fair, just, and reasonable. This decision serves as a **binding precedent** ensuring the protection of individual rights. 2. ***Kesavananda Bharati v. State of Kerala (1973)***: The **Supreme Court** introduced the **Basic Structure Doctrine**, ruling that while **Parliament** can amend the Constitution, it cannot alter its basic structure. This landmark judgment guides constitutional amendments and is a cornerstone of **Indian constitutional law**. **ADVANTAGES OF THE DOCTRINE** - ***Consistency and Predictability***: Ensures that similar cases are decided similarly, providing legal certainty. - ***Efficiency***: Reduces the need for re-litigation of settled principles, saving judicial time and resources. - ***Development of Law***: Allows the law to evolve through judicial interpretation, adapting to changing societal needs. **CRITICISMS OF THE DOCTRINE** - ***Rigidity***: Strict adherence can lead to unjust outcomes in cases with unique circumstances. - ***Complexity***: The vast number of precedents can make it challenging to identify the relevant ruling. - ***Dependence on Litigation***: Legal development relies on cases being brought to court, which may leave certain areas underdeveloped. **EXCEPTIONS TO THE DOCTRINE** - ***Per Incuriam***: A decision made in ignorance of a relevant statute or precedent is not binding. - ***Distinguishing***: A court may avoid following a precedent if it can demonstrate that the facts of the current case are materially different. **INTERNATIONAL PERSPECTIVE** The doctrine of precedent is a hallmark of **common law systems** worldwide, including the **United Kingdom** and the **United States**. In these jurisdictions, the principles of ***stare decisis*** ensure legal consistency and stability, much like in India. **CONCLUSION** The **Doctrine of Judicial Precedent** plays a pivotal role in the **Indian legal system**, ensuring uniformity, stability, and fairness in judicial decisions. While it has its limitations, the doctrine facilitates the orderly development of law and upholds the principle that like cases should be treated alike. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Constitutional Silence](https://lawfoyer.in/doctrine-of-constitutional-silence/) **Published:** December 25, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Constitutional Silence refers to the intentional or unintentional gaps within a constitution where specific issues are not addressed explicitly. In India, this doctrine allows the judiciary to interpret and fill these gaps, ensuring the constitution remains dynamic and responsive to contemporary challenges. **Content:** The **Doctrine of Constitutional Silence** refers to the intentional or unintentional gaps within a constitution where specific issues are not addressed explicitly. In India, this doctrine allows the judiciary to interpret and fill these gaps, ensuring the constitution remains dynamic and responsive to contemporary challenges. ### **MEANING, DEFINITION & EXPLANATION** *Constitutional silence* occurs when the **constitution** does not explicitly address certain issues or scenarios. This absence can be deliberate, allowing future generations to interpret provisions as per evolving societal norms, or inadvertent, due to unforeseen circumstances at the time of drafting. The **judiciary** often steps in to interpret these silences, ensuring **justice** and **constitutional morality** are upheld. ### **HISTORICAL BACKGROUND / EVOLUTION** The framers of the **Indian Constitution** were aware of the impossibility of addressing every potential future scenario. They intentionally left certain areas open-ended, granting flexibility for interpretation. Over time, the **Indian judiciary** has played a pivotal role in interpreting these silences, especially concerning **fundamental rights** and the **basic structure** of the constitution. ### **COMPARISON WITH OTHER COUNTRIES** Many countries experience **constitutional silences**, but their approaches to addressing them vary. For instance, the **U.S. Supreme Court** often relies on **judicial review** to interpret constitutional ambiguities. In contrast, the **Indian judiciary** actively interprets and fills these gaps, ensuring the constitution’s relevance in changing times. ### **RELATION WITH OTHER CONCEPTS** Constitutional silence is closely related to doctrines like the **Living Tree Doctrine**, which views the constitution as a living document that must evolve with societal changes. This perspective allows the **judiciary** to interpret the constitution dynamically, ensuring it remains relevant and inclusive. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - **Judicial Interpretation**: An active judiciary capable of interpreting constitutional silences. - **Constitutional Morality**: Adherence to the core principles and values enshrined in the **constitution**. - **Flexibility**: The ability of the **constitution** to adapt to changing societal needs. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** While the **constitution** may be silent on certain issues, various **legal provisions** empower the judiciary to interpret and address these gaps. For instance, **Article 142** allows the **Supreme Court** to pass any decree necessary for doing complete justice in any cause or matter pending before it. ### **CASE LAWS / PRECEDENTS** 1. **Kesavananda Bharati v. State of Kerala (1973)**: This landmark case led to the formulation of the **Basic Structure Doctrine**. The **Supreme Court** held that while **Parliament** has the power to amend the constitution, it cannot alter its **basic structure**. This interpretation filled the **constitutional silence** regarding the extent of **Parliament’s amending powers**. 2. **Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)**: The **Supreme Court** recognized the **right to privacy** as a **fundamental right**, despite its absence from the **constitution’s** text. This decision addressed the **constitutional silence** on **privacy rights**, expanding the scope of **Article 21** (*Right to Life and Personal Liberty*). 3. **Nandini Satpathy v. P.L. Dani (1978)**: In this case, the **Supreme Court** interpreted **Article 20(3)** (*right against self-incrimination*) to include the right to remain silent during police interrogation, filling the **constitutional silence** on the extent of this right. ### **INTERPRETATIONS / EXPLANATIONS** The **judiciary** interprets **constitutional silences** by considering the constitution’s **spirit**, underlying **principles**, and societal needs. This approach ensures that the **constitution** remains a **living document**, capable of addressing contemporary issues effectively. ### **DOCTRINES / THEORIES** - **Living Tree Doctrine**: This doctrine treats the constitution as a **living document** that must evolve over time to remain relevant. The **Indian judiciary** has applied this doctrine indirectly, allowing for a **liberal interpretation** of the constitution to address new challenges. ### **MAXIMS / PRINCIPLES** - **Nemo tenetur se ipsum accusare**: This legal maxim means that no one is bound to accuse themselves. It underpins the **right against self-incrimination**, which the **Supreme Court** has interpreted to include the right to remain silent during interrogations. ### **AMENDMENTS / ADDITIONS / REPEALING** **Constitutional silences** can lead to **amendments** when the need arises to address specific issues explicitly. For example, the **42nd Amendment** attempted to reduce the judiciary’s power by limiting **judicial review**, but the **Supreme Court** reaffirmed its role in interpreting **constitutional silences** to protect the constitution’s **basic structure**. ### **CRITICISM / APPRECIATION** While the **judiciary’s** role in interpreting **constitutional silences** ensures the constitution’s dynamism, it has faced criticism for **judicial overreach**. Critics argue that excessive interpretation may lead to the **judiciary encroaching upon the legislature’s domain**. However, supporters contend that such interpretations are essential to uphold **constitutional morality** and **justice**. ### **FLOWCHART: ADDRESSING CONSTITUTIONAL SILENCES** ```mermaid graph TD A[Constitutional Silence Identified] --> B[Judicial Interpretation] B --> C{Adheres to Basic Structure?} C -->|Yes| D[Judicial Precedent Established] C -->|No| E[Amendment by Legislature] ``` ### **TABLE: COMPARISON OF JUDICIAL INTERPRETATION AND LEGISLATIVE AMENDMENT** **Aspect****Judicial Interpretation****Legislative Amendment****Process**Courts interpret existing constitutional provisions to fill gaps.Legislature passes amendments to address specific issues.**Flexibility**Allows for immediate and case-specific solutions.Requires a more prolonged process involving debates and approvals.**Scope**Limited to interpretation without altering the constitution’s text.Can change the constitution’s text and add new provisions.**Examples****Right to Privacy** recognized under **Article 21**.**42nd Amendment Act, 1976**, reducing **judiciary’s powers**. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Constitutional Morality](https://lawfoyer.in/doctrine-of-constitutional-morality/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** Constitutional morality refers to the adherence to the core principles enshrined in a Constitution, guiding the interpretation and application of laws. In the Indian context, it embodies the values of democracy, justice, equality, liberty, and fraternity. **Content:** ## **MEANING, DEFINITION & EXPLANATION** **Constitutional morality** refers to the adherence to the **core principles enshrined in a Constitution**, guiding the interpretation and application of laws. In the Indian context, it embodies the **values of democracy, justice, equality, liberty, and fraternity**. This doctrine ensures that the actions of the **State and its organs** align with these foundational principles, promoting an **inclusive and democratic political process** that satisfies both individual and collective interests. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **constitutional morality** was first introduced by the **British classicist George Grote** in the 19th century, who described it as a “*paramount reverence for the forms of the Constitution*” of the land. In India, **Dr. B.R. Ambedkar** invoked this phrase during the **Constituent Assembly Debates** to express his vision for the nascent republic. He emphasized that **constitutional morality** is essential for the working of a democratic Constitution, ensuring that both the **government and the governed operate within the constitutional framework**. ## **COMPARISON WITH OTHER COUNTRIES** While the term **“constitutional morality”** is prominently discussed in India, other democracies emphasize similar principles under different terminologies. For instance: - In the **United States**, the concept of **“constitutional ethos”** reflects the foundational values that guide constitutional interpretation. - Similarly, the **United Kingdom**, lacking a written Constitution, relies on **“constitutional conventions”** to uphold democratic principles. These parallels highlight the **universal importance of adhering to constitutional principles** to maintain democratic integrity. ## **RELATIONSHIP WITH OTHER CONCEPTS** **Constitutional morality** often intersects with **public morality**, especially in legal adjudications. While **public morality** reflects societal norms and values, **constitutional morality upholds the principles enshrined in the Constitution**, even if they conflict with prevailing social mores. This distinction ensures that **fundamental rights** are protected against **majoritarian impulses**, reinforcing the **Constitution’s role as a counter-majoritarian document**. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The key elements of **constitutional morality** include: - ***Adherence to Constitutional Values***: Upholding the core values enshrined in the Constitution, such as **justice, liberty, equality, fraternity, secularism**, and the **dignity of the individual**. - ***Rule of Law***: Ensuring that all actions are conducted within the **legal framework**, preventing arbitrary use of power. - ***Institutional Integrity***: Maintaining the **sanctity and independence of constitutional institutions**. - ***Commitment to Democratic Processes***: Respecting **democratic procedures and norms**, including **free and fair elections**, and the **protection of minority rights**. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** The **Indian Constitution** implicitly incorporates the doctrine of **constitutional morality** through various provisions: - **Article 19**: Guarantees **freedom of speech and expression**, subject to **reasonable restrictions** based on decency or morality. - **Article 25**: Ensures **freedom of conscience** and free profession, practice, and propagation of religion, subject to **public order, morality, and health**. - **Article 26**: Provides **freedom to manage religious affairs**, again subject to **public order, morality, and health**. These provisions highlight the **balance between individual freedoms and societal interests**, mediated through the lens of **constitutional morality**. ## **CASE LAWS / PRECEDENTS** Several landmark judgments have invoked the doctrine of **constitutional morality**: 1. ***Navtej Singh Johar v. Union of India (2018)***: The **Supreme Court** decriminalized **consensual homosexual acts among adults**, emphasizing that **constitutional morality must prevail over societal morality**. The Court held that **Section 377 of the Indian Penal Code**, which criminalized such acts, violated **fundamental rights**. 2. ***Government of NCT of Delhi v. Union of India (2018)***: The Court underscored that **constitutional morality** is synonymous with the **spirit of the Constitution**, requiring **complete adherence to its principles**. The judgment clarified the **distribution of powers** between the **Lieutenant Governor** and the **elected government of Delhi**, reinforcing **democratic governance**. 3. ***S. Khushboo v. Kanniammal (2010)***: The **Supreme Court** ruled against **excessive interference in personal autonomy and freedom of expression**, cautioning against using the pretext of upholding **social morality**, given the **subjective nature of these moral concepts**. 4. ***Shafin Jahan v. Asokan K.M. (2018)***: The **Supreme Court** established that the **right to choose one’s spouse** is inherent to **Article 21 of the Constitution**. While recognizing the significance of **social values and morals**, the court emphasized that these must not take precedence over **constitutionally protected freedoms**. 5. ***Shakti Vahini v. Union of India (2018)***: The **Supreme Court** extended legal protection not only to **married couples** but also to **unmarried couples**, safeguarding them from **potential threats of violence**. The bench concluded that ensuring the safety of couples facing such threats is of **paramount importance**. 6. ***Poonam Rani v. State of Uttar Pradesh (2021)***: The **Allahabad High Court** reaffirmed that the **Constitutional Court** bears the responsibility of overseeing and upholding both **constitutional morality** and the **rights of citizens**, particularly when these rights are endangered solely due to their **sexual orientation**. 7. ***Sultana Mirza v. State of Uttar Pradesh (2020)***: The **Allahabad High Court** established that the **Constitutional Court** bears the responsibility of overseeing and upholding both **constitutional morality** and the **rights of citizens**, particularly when these rights are endangered solely due to their **sexual orientation**. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Transformative Constitutionalism](https://lawfoyer.in/doctrine-of-transformative-constitutionalism/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** Transformative constitutionalism refers to the use of constitutional law as a tool to effect profound social change, aiming to transform a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. **Content:** ## **MEANING, DEFINITION & EXPLANATION** *Transformative constitutionalism* refers to the use of constitutional law as a tool to effect profound social change, aiming to transform a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. In the Indian context, this doctrine emphasizes the Constitution’s role in dismantling historical inequalities and injustices, fostering a society based on **liberty**, **equality**, and **fraternity**. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of *transformative constitutionalism* gained prominence in **South Africa**, introduced by legal scholar **Karl Klare** in 1998. In India, the **Constitution**, adopted in **1950**, was envisioned as a transformative document to transition from colonial rule to a democratic republic, addressing deep-seated social hierarchies and discrimination. The judiciary has played a pivotal role in interpreting the Constitution to promote social transformation, evident in landmark judgments that uphold **fundamental rights** and **social justice**. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** The Indian Constitution incorporates several provisions that reflect *transformative constitutionalism*: - **Preamble**: Declares India as a sovereign, socialist, secular, democratic republic, ensuring **justice**, **liberty**, **equality**, and **fraternity**. - **Fundamental Rights (Part III)**: Guarantees civil liberties, including the **right to equality (Article 14)**, **prohibition of discrimination (Article 15)**, and **protection of life and personal liberty (Article 21)**. - **Directive Principles of State Policy (Part IV)**: Guides the state in formulating policies aimed at **social and economic welfare**, such as securing a social order for the promotion of welfare (**Article 38**) and providing **equal pay for equal work (Article 39)**. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** The Indian judiciary has reinforced *transformative constitutionalism* through several landmark judgments: 1. **Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461**: Established the **Basic Structure Doctrine**, asserting that Parliament cannot alter the Constitution’s fundamental framework, thus preserving its transformative essence. 2. **National Legal Services Authority v. Union of India, (2014) 5 SCC 438**: Recognized *transgender individuals* as the ‘third gender,’ affirming their **fundamental rights** and the right to self-identification, promoting inclusivity and equality. 3. **Navtej Singh Johar v. Union of India, (2018) 10 SCC 1**: Decriminalized consensual same-sex relations by reading down **Section 377 of the IPC**, advancing individual autonomy and dignity. 4. **Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1**: Allowed the entry of women of all ages into the **Sabarimala temple**, challenging age-old discriminatory practices and promoting gender equality. 5. **Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1**: Affirmed the **right to privacy** as a fundamental right under **Article 21**, emphasizing individual autonomy in personal choices. ## **DOCTRINES / THEORIES** Several doctrines underpin *transformative constitutionalism* in India: - **Basic Structure Doctrine**: Asserts that certain fundamental features of the Constitution cannot be altered by amendments, ensuring its core principles remain intact. - **Doctrine of Progressive Realization of Rights**: Recognizes that the enforcement of certain rights may evolve over time, allowing for gradual implementation in line with societal progress. - **Doctrine of Non-Retrogression**: Prohibits the reversal of rights once recognized, ensuring continuous advancement in human rights protection. ## **MAXIMS / PRINCIPLES** Key legal maxims and principles associated with *transformative constitutionalism* include: - **“Salus populi suprema lex esto”**: The welfare of the people shall be the supreme law, guiding the interpretation and application of constitutional provisions. - **Constitutional Morality**: Adherence to the core values and principles enshrined in the Constitution, guiding institutions and individuals in upholding democratic ideals. ## **ROLE OF JUDICIARY IN TRANSFORMATIVE CONSTITUTIONALISM** The judiciary serves as a catalyst for social change by: - **Interpreting Constitutional Provisions**: Broadly construing **fundamental rights** to address contemporary issues and societal needs. - **Judicial Activism**: Proactively addressing social injustices through **Public Interest Litigations (PILs)** and progressive judgments. - **Ensuring Accountability**: Holding the executive and legislature accountable to constitutional mandates, ensuring laws and policies align with transformative goals. ## **INTERNATIONAL INSTRUMENTS** India’s commitment to *transformative constitutionalism* aligns with international human rights instruments: - **Universal Declaration of Human Rights (UDHR)**: Emphasizes **equality**, **dignity**, and **rights** for all individuals, principles mirrored in the Indian Constitution. - **International Covenant on Civil and Political Rights (ICCPR)**: India, as a signatory, upholds **civil and political rights**, influencing constitutional interpretations. - **Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)**: Guides legal reforms promoting **gender equality** in India. ## **CRITICISM / APPRECIATION** While *transformative constitutionalism* has been lauded for promoting social justice, it faces criticism: - **Judicial Overreach**: Concerns arise when courts are perceived to encroach upon **legislative functions**, potentially disrupting the separation of powers. - **Implementation Challenges**: Enforcing transformative judgments requires effective mechanisms, often hindered by **bureaucratic inertia** and societal resistance. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Living Constitution](https://lawfoyer.in/doctrine-of-living-constitution/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Living Constitution posits that a constitution is a dynamic, evolving document that adapts to contemporary societal needs and values. In India, this doctrine has significantly influenced constitutional interpretation, ensuring the Constitution's relevance in changing times. **Content:** The **Doctrine of Living Constitution** posits that a constitution is a dynamic, evolving document that adapts to contemporary societal needs and values. In India, this doctrine has significantly influenced constitutional interpretation, ensuring the Constitution’s relevance in changing times. ## **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Living Constitution** asserts that a constitution should be interpreted as a living document, capable of evolving with societal changes. This approach contrasts with **originalism**, which seeks to interpret the constitution based on the framers’ original intent. In the Indian context, the living constitution approach allows the judiciary to interpret constitutional provisions in light of contemporary societal needs, ensuring the Constitution’s relevance over time. This dynamic interpretation has enabled the Constitution to address modern challenges and protect **individual rights** effectively. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of a **living constitution** in India has evolved through judicial interpretations. Initially, the **Supreme Court** adopted a literal approach, as seen in ***A.K. Gopalan v. State of Madras***, **AIR 1950 SC 27**, where the Court held that **Article 21** did not require Indian courts to apply a **due process of law** standard. However, in ***Maneka Gandhi v. Union of India***, **AIR 1978 SC 597**, the Court overruled ***A.K. Gopalan***, interpreting **Article 21** to include a procedure that is “just, fair, and reasonable,” thus embracing a more dynamic interpretation. This shift marked the beginning of the **living constitution approach** in India, allowing the Constitution to adapt to changing societal values and norms. ## **COMPARISON WITH OTHER COUNTRIES** In **Canada**, the living constitution is described under the **living tree doctrine**, which allows for a broad and progressive interpretation of the constitution. Similarly, the **United Kingdom’s** unwritten constitution evolves through **statutes** and **judicial decisions**, reflecting contemporary societal values. In contrast, the **United States** has a significant debate between **originalism** and **living constitutionalism**, with proponents of each approach advocating for different methods of constitutional interpretation. India’s approach aligns more with the **Canadian** and **UK models**, emphasizing the Constitution’s adaptability to changing times. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 368** of the **Indian Constitution** provides the procedure for its amendment, allowing adaptability to changing needs. However, the **Supreme Court**, through the **Basic Structure Doctrine** established in ***Kesavananda Bharati v. State of Kerala***, **AIR 1973 SC 1461**, held that while **Parliament** can amend the Constitution, it cannot alter its **basic structure**. This ensures that fundamental principles remain intact, even as the Constitution evolves. The Court’s interpretation of the Constitution as a **living document** allows for flexibility in its application, ensuring its relevance in contemporary society. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - **Kesavananda Bharati v. State of Kerala**, **AIR 1973 SC 1461**: This landmark case established the **Basic Structure Doctrine**, asserting that while **Parliament** has wide powers to amend the Constitution, it cannot alter its fundamental framework. The case involved challenges to the **Kerala Land Reforms Act, 1963**, and raised issues about the extent of **Parliament’s amending power**. The Court held that certain fundamental features of the Constitution, such as the **supremacy of the Constitution**, cannot be altered by amendments. - **Minerva Mills Ltd. v. Union of India**, **AIR 1980 SC 1789**: The **Supreme Court** reaffirmed the **Basic Structure Doctrine**, striking down clauses of the **42nd Amendment** that sought to exclude **judicial review** of constitutional amendments. The case questioned the validity of amendments that curtailed **judicial review** and expanded **Parliament’s amending power**. The Court held that the limited amending power of **Parliament** is itself a basic feature of the Constitution, and any amendment that removes this limitation is unconstitutional. - **K.S. Puttaswamy v. Union of India**, **AIR 2017 SC 4161**: The Court recognized the **right to privacy** as a fundamental right under the Constitution, demonstrating the **living constitution approach** by interpreting existing provisions to address contemporary issues. The case arose from challenges to the **Aadhaar scheme**, raising issues about the **right to privacy**. The Court held that the **right to privacy** is intrinsic to the **right to life and personal liberty** under **Article 21**, showcasing the Constitution’s adaptability to modern challenges. ## **DOCTRINES / THEORIES** - **Basic Structure Doctrine**: Asserts that certain fundamental features of the Constitution cannot be altered by amendments, ensuring its core principles remain intact. This doctrine was established in the ***Kesavananda Bharati*** case and has been reaffirmed in subsequent judgments. - **Living Tree Doctrine**: Originating from **Canadian jurisprudence**, it views the Constitution as a **living tree** capable of growth and expansion within its natural limits. In India, this metaphor has been adopted to emphasize the Constitution’s dynamic nature. ## **MAXIMS / PRINCIPLES** - **Ut res magis valeat quam pereat**: This legal maxim means that the law should be interpreted in a way that it is effective rather than void. It supports the **living constitution approach** by advocating for interpretations that ensure the law’s applicability in contemporary contexts. ## **AMENDMENTS / ADDITIONS / REPEALING** The **Indian Constitution** has undergone numerous amendments to address emerging needs. However, the **Basic Structure Doctrine** ensures that such amendments do not alter its fundamental principles. For instance, the **42nd Amendment** attempted to curtail **judicial review**, but the **Supreme Court** in ***Minerva Mills Ltd. v. Union of India*** struck down these provisions, reinforcing the Constitution’s core values. ## **CRITICISM / APPRECIATION** The **living constitution approach** has been praised for allowing the Constitution to adapt to changing societal values, ensuring its relevance. However, critics argue that it grants excessive power to the judiciary, potentially leading to **judicial overreach**. Despite this, the approach has enabled progressive interpretations, such as recognizing the **right to privacy** and decriminalizing **consensual homosexual acts**, reflecting societal evolution. ## **FUTURE IMPLICATIONS** The **Doctrine of Living Constitution** is expected to play a significant role in addressing future challenges. By allowing the judiciary to interpret the Constitution dynamically, this approach ensures that the Constitution remains relevant and effective in safeguarding **individual rights**, promoting **social justice**, and addressing emerging societal needs. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Original Intent](https://lawfoyer.in/doctrine-of-original-intent/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Original Intent is a principle of constitutional and statutory interpretation that emphasizes understanding and applying the intentions of the framers or legislators at the time a law was enacted. **Content:** ### **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Original Intent** is a principle of constitutional and statutory interpretation that emphasizes understanding and applying the intentions of the framers or legislators at the time a law was enacted. This approach seeks to maintain the original meaning of legal texts, ensuring that contemporary interpretations remain faithful to the foundational purposes and objectives envisioned by their creators. In essence, it posits that the **Constitution** or any statute should be interpreted based on the intent of its drafters, rather than through the lens of modern values or societal changes. ### **HISTORICAL BACKGROUND / EVOLUTION** The origins of the **Doctrine of Original Intent** can be traced back to legal traditions that prioritize the framers’ perspectives in interpreting foundational legal documents. In the United States, this approach has been a cornerstone of constitutional interpretation, with debates centering on whether the **Constitution** should be viewed as a static document reflecting its original context or as a living document adaptable to contemporary society. In India, while the **Constitution** is often interpreted as a living document, there have been instances where the judiciary has referred to the framers’ intent to elucidate constitutional provisions. ### **COMPARISON WITH OTHER COUNTRIES** In the United States, **originalism**, including the **Doctrine of Original Intent**, has been a prominent method of constitutional interpretation, with jurists like **Justice Antonin Scalia** advocating for this approach. In contrast, Indian constitutional interpretation has predominantly embraced a more dynamic approach, considering the evolving needs of society. However, the Indian judiciary does, at times, refer to the **Constituent Assembly Debates** to glean the framers’ intent, especially when faced with ambiguous constitutional provisions. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - ***Historical Context***: Understanding the socio-political environment during the drafting of the **Constitution** or statute. - ***Framers’ Debates and Discussions***: Analyzing records such as the **Constituent Assembly Debates** to ascertain the objectives behind specific provisions. - ***Textual Analysis***: Examining the language used in the legal text to infer intent. - ***Purpose and Objectives***: Identifying the problems the provision aimed to address and the goals it sought to achieve. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In India, while there is no explicit legal provision mandating the use of the **Doctrine of Original Intent**, the judiciary often refers to historical documents, including the **Constituent Assembly Debates**, as interpretative tools. The **Supreme Court** has, in various instances, relied on these debates to shed light on ambiguous constitutional provisions, thereby indirectly applying the doctrine. ### **CASE LAWS / PRECEDENTS** 1. ***Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225***: This landmark case introduced the **Basic Structure Doctrine**, emphasizing that while the **Constitution** can be amended, its fundamental structure cannot be altered. The Court referred to the **Constituent Assembly Debates** to understand the framers’ vision of the Constitution’s core principles. 2. ***Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1***: In this case, the **Supreme Court** examined the intent behind constitutional provisions related to electoral disputes, referring to historical contexts to interpret the scope and limitations of parliamentary privileges. 3. ***Shreya Singhal v. Union of India (2015) 5 SCC 1***: While deliberating on the constitutionality of **Section 66A of the Information Technology Act**, the Court considered the intent behind **Article 19(1)(a)** of the **Constitution**, emphasizing the importance of free speech as envisioned by the framers. ### **INTERPRETATIONS / EXPLANATIONS** The **Doctrine of Original Intent** serves as a tool to interpret legal texts by delving into the historical context and purposes that influenced their creation. By focusing on the framers’ intentions, this doctrine aims to preserve the original meaning and prevent subjective or contemporary biases from altering the foundational principles of the law. However, critics argue that strict adherence to **original intent** may hinder the law’s ability to adapt to societal changes, advocating for a more dynamic interpretative approach. ### **DOCTRINES / THEORIES** - ***Originalism***: A broader theory that includes the **Doctrine of Original Intent**, advocating for interpretation based on the original meaning or intent at the time of enactment. - ***Living Constitution Theory***: Contrasts with originalism by proposing that the **Constitution** should be interpreted in light of contemporary societal values and norms. ### **MAXIMS / PRINCIPLES** - ***“Animus hominis est anima scripti”***: Translates to “The intention of the party is the soul of the instrument,” emphasizing the importance of intent in legal interpretation. - ***“Mens legislatoris est lex”***: Means “The mind of the legislator is the law,” underscoring the significance of legislative intent in understanding statutes. ### **CRITICISM / APPRECIATION** The **Doctrine of Original Intent** is lauded for promoting judicial restraint and preserving the foundational principles of legal texts. By adhering to the framers’ intentions, it seeks to prevent arbitrary or subjective interpretations that could destabilize the legal system. However, critics argue that this doctrine may render the law inflexible, unable to adapt to evolving societal values and challenges. They advocate for interpretative approaches that consider contemporary contexts to ensure the law remains relevant and effective. ### **FUTURE IMPLICATIONS** The application of the **Doctrine of Original Intent** in India may influence future judicial interpretations, especially concerning constitutional amendments and fundamental rights. As societal values evolve, the judiciary may face challenges in balancing the framers’ original intentions with contemporary needs. The ongoing debate between **originalism** and dynamic interpretation will likely shape the future trajectory of constitutional law in India. ### **REFERENCES** 1. ***Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225***. 2. ***Shreya Singhal v. Union of India (2015) 5 SCC 1***. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Popular Sovereignty](https://lawfoyer.in/doctrine-of-popular-sovereignty/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Popular Sovereignty asserts that the ultimate authority in a state resides with its people. In India, this principle is foundational, influencing the Constitution's formation and its democratic governance. **Content:** The **Doctrine of Popular Sovereignty** asserts that the ultimate authority in a state resides with its people. In India, this principle is foundational, influencing the **Constitution’s** formation and its democratic governance. ### **MEANING AND DEFINITION** *Popular Sovereignty* means that the government’s power originates from the consent of the governed. In India, this is evident as the **Constitution** begins with “We, the people,” emphasizing that authority is derived from its citizens. This principle ensures that the state functions with legitimacy, reflecting the people’s collective will. ### **HISTORICAL EVOLUTION** India’s anti-colonial struggle deeply embedded the idea of *popular sovereignty*. The freedom movement united diverse groups under the belief that legitimate governance stems from the people’s will. This sentiment was institutionalized during the drafting of the **Constitution**, aiming to reflect the aspirations of a newly independent nation. ### **CONSTITUTIONAL PROVISIONS** - **PREAMBLE**: Declares India as a “Sovereign Democratic Republic,” highlighting that sovereignty rests with its people. - **ARTICLE 326**: Establishes adult suffrage, granting citizens the right to vote and directly participate in governance. - **ARTICLE 368**: Empowers **Parliament** to amend the **Constitution**, but such amendments must not alter its basic structure, ensuring that the people’s sovereignty remains intact. ### **BASIC STRUCTURE DOCTRINE** The **Supreme Court**, in the landmark case of ***Kesavananda Bharati v. State of Kerala***, **AIR 1973 SC 1461**, introduced the *Basic Structure Doctrine*. The petitioner, **Kesavananda Bharati**, challenged the government’s authority to alter fundamental rights through constitutional amendments. The **Court** held that while **Parliament** can amend the **Constitution**, it cannot alter its basic structure, which includes the principle of *popular sovereignty*. This ensures that any amendment does not undermine the foundational principles upon which the **Constitution** stands. ### **JUDICIAL INTERPRETATIONS** In ***S.R. Bommai v. Union of India***, **AIR 1994 SC 1918**, the **Supreme Court** emphasized that the **Constitution’s** authority is derived from the people. The case involved the dismissal of state governments under **Article 356**. The **Court** held that such actions must align with constitutional principles, reinforcing that the people’s will is paramount. ### **INTERNATIONAL PERSPECTIVES** Globally, the principle of *popular sovereignty* is a cornerstone of democratic constitutions. For instance, the **U.S. Constitution’s preamble** begins with “We the People,” similar to India’s, signifying that governmental authority emanates from its citizens. This parallel underscores the universal importance of the doctrine in establishing democratic governance. ### **CHALLENGES AND CRITICISMS** Despite its foundational status, the application of *popular sovereignty* in India faces challenges. Instances of political instability, misuse of constitutional provisions like **Article 356**, and debates over the extent of **judicial review** highlight tensions in fully realizing this doctrine. Critics argue that while the **Constitution** enshrines *popular sovereignty*, practical politics sometimes undermine the people’s true will. ### **CONCLUSION** The **Doctrine of Popular Sovereignty** remains central to India’s constitutional framework. It ensures that governance reflects the people’s will, upholds democratic principles, and maintains the legitimacy of state authority. Ongoing judicial interpretations and constitutional debates continue to shape its application, reinforcing its significance in Indian democracy. ### **REFERENCES** 1. ***Kesavananda Bharati v. State of Kerala***, **AIR 1973 SC 1461**. 2. ***S.R. Bommai v. Union of India***, **AIR 1994 SC 1918**. 3. Sen, Sarbani. **The Constitution of India: Popular Sovereignty and Democratic Transformations**. Oxford University Press, 2011. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Rule of Law](https://lawfoyer.in/doctrine-of-rule-of-law/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Rule of Law is a cornerstone of democratic governance, ensuring that all actions are conducted within a legal framework, thereby preventing arbitrary use of power. **Content:** The **Doctrine of Rule of Law** is a cornerstone of democratic governance, ensuring that all actions are conducted within a legal framework, thereby preventing arbitrary use of power. ## **MEANING, DEFINITION & EXPLANATION** The term ‘**Rule of Law**‘ originates from the French phrase *‘la principe de legalite,’* meaning the principle of legality, which emphasizes governance based on laws rather than individual discretion. **A.V. Dicey**, a British jurist, articulated this doctrine with three core principles: 1. ***Supremacy of Law***: **Law is supreme**, and no individual is above it. This principle opposes **arbitrary power** and ensures that punishment is only for breaches of law established through **due process**. 2. ***Equality Before Law***: Every individual, regardless of status, is subject to the same laws administered by **ordinary courts**. This ensures **non-discrimination** and equal protection under the law. 3. ***Predominance of Legal Spirit***: **Rights are protected through judicial decisions**, emphasizing the role of **courts** in upholding individual liberties. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **Rule of Law** can be traced back to ancient civilizations. In India, its roots are found in the **Upanishads**, which state that **law is the king of kings**, emphasizing its supremacy over all individuals, including monarchs. In modern times, the doctrine was popularized by **A.V. Dicey** in his 1885 work *“Introduction to the Study of the Law of the Constitution,”* where he outlined its foundational principles. ## **COMPARISON WITH OTHER COUNTRIES** While the **Rule of Law** is a universal principle, its application varies across countries: - ***United Kingdom***: **Dicey’s model** emphasizes **parliamentary sovereignty**, where no person is punishable except for a breach of law established in the **ordinary legal manner** before the **ordinary courts**. - ***United States***: The **U.S. Constitution** embodies the Rule of Law through a **written constitution** and a strong emphasis on **judicial review**, ensuring that no law or executive act is above the **Constitution**. - ***India***: The **Indian Constitution** incorporates the Rule of Law, ensuring that all laws are consistent with **constitutional provisions**, and emphasizes **judicial review** to uphold **fundamental rights**. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The effective implementation of the **Rule of Law** requires: - ***Clear and Publicized Laws***: Laws must be **accessible**, **clear**, and **stable** to guide behavior. - ***Equality Before the Law***: All individuals and institutions are **accountable under the law**. - ***Independent Judiciary***: Courts must be **impartial** and **independent** to enforce laws fairly. - ***Access to Justice***: Legal processes should be **accessible to all**, ensuring that rights are protected. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In India, the **Constitution** embodies the **Rule of Law** through various provisions: - ***Article 14***: Ensures **equality before the law** and **equal protection of laws** within the territory of India. - ***Article 21***: Guarantees the **right to life and personal liberty**, stating that no person shall be deprived of these except according to the **procedure established by law**. - ***Article 32 and 226***: Empower individuals to approach the **Supreme Court** and **High Courts**, respectively, for the enforcement of **fundamental rights**, ensuring **judicial review**. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark judgments have reinforced the **Rule of Law** in India: 1. ***Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461***: This case established the **Doctrine of Basic Structure**, asserting that the **Rule of Law** is a fundamental feature of the Constitution that cannot be altered by **parliamentary amendments**. - ***Facts***: The petitioner challenged the constitutional validity of the Kerala government’s land reform laws, claiming they violated his **fundamental rights**. - ***Issue***: Whether **Parliament’s power to amend the Constitution** was unlimited. - ***Held***: The **Supreme Court** held that while Parliament can amend the Constitution, it cannot alter its **basic structure**, which includes the **Rule of Law**. 2. ***Maneka Gandhi v. Union of India, AIR 1978 SC 597***: The Court expanded the interpretation of **Article 21**, emphasizing that any law affecting **life and personal liberty** must be **just, fair, and reasonable**, thereby reinforcing the **Rule of Law**. - ***Facts***: **Maneka Gandhi’s passport** was impounded by the government without providing reasons. - ***Issue***: Whether the **procedure established by law** under **Article 21** must be **fair and reasonable**. - ***Held***: The **Supreme Court** held that the procedure affecting life and liberty must be **fair, just, and reasonable**, ensuring protection against **arbitrary actions**. 3. ***ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207***: Also known as the **Habeas Corpus case**, the majority held that during the Emergency, the right to seek **judicial remedy** for enforcement of **fundamental rights** remains suspended. However, **Justice H.R. Khanna’s dissent** emphasized the inviolability of the **Rule of Law**, even during emergencies. - ***Facts***: During the Emergency, several individuals were detained without trial, and the right to approach courts was suspended. - ***Issue***: Whether the right to judicial remedy for enforcement of fundamental rights is suspended during an Emergency. - ***Held***: The majority held that during an Emergency, the right to approach courts is suspended. **Justice Khanna’s dissent**, however, emphasized that even in emergencies, the **Rule of Law** prevails, and courts should have the authority to review detentions. ## **DOCTRINES / THEORIES** The **Rule of Law** intersects with several legal doctrines: - ***Doctrine of Basic Structure***: Asserts that certain fundamental features of the Constitution, including the **Rule of Law**, cannot be altered by amendments. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Due Process of Law](https://lawfoyer.in/doctrine-of-due-process-of-law/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Due Process of Law ensures that no individual is deprived of life, liberty, or property without appropriate legal procedures. In India, this doctrine has evolved through judicial interpretations, significantly impacting the protection of fundamental rights. **Content:** The **Doctrine of Due Process of Law** ensures that no individual is deprived of life, liberty, or property without appropriate legal procedures. In India, this doctrine has evolved through judicial interpretations, significantly impacting the protection of fundamental rights. ## **MEANING AND DEFINITION** The **Doctrine of Due Process of Law** mandates that laws must be **fair, just, and reasonable**, ensuring protection against **arbitrary deprivation of life, liberty, or property**. It encompasses two key aspects: - ***Procedural Due Process***: Ensures that the **procedures enforcing laws** are fair and impartial. - ***Substantive Due Process***: Examines whether the **laws themselves are fair, just, and not arbitrary**. ## **HISTORICAL BACKGROUND AND EVOLUTION IN INDIA** Initially, the Indian Constitution adopted the phrase **“procedure established by law”** in **Article 21**, influenced by the **Japanese Constitution**, to limit judicial overreach. This approach was evident in **A.K. Gopalan v. State of Madras (1950)**, where the Supreme Court upheld the **Preventive Detention Act**, emphasizing strict adherence to enacted laws without assessing their fairness. However, this perspective shifted with **Maneka Gandhi v. Union of India (1978)**. In this case, **Maneka Gandhi’s passport** was impounded without providing her a fair hearing, which she challenged as a violation of her rights under **Articles 14, 19, and 21**. The Supreme Court ruled that the **“procedure established by law”** must be **fair, just, and reasonable**, effectively incorporating the essence of due process into Indian jurisprudence. ## **COMPARISON WITH OTHER COUNTRIES** - ***United States***: The U.S. Constitution explicitly mentions **“due process of law”** in the **Fifth and Fourteenth Amendments**, providing a broader scope for judicial review to ensure laws are **just and reasonable**. - ***India***: Initially adopted **“procedure established by law”**, limiting judicial review to procedural aspects. However, through judicial interpretation, especially post-**Maneka Gandhi’s case**, the Indian judiciary has embraced principles akin to due process, ensuring laws are **fair, just, and reasonable**. ## **KEY CASE LAWS AND JUDICIAL INTERPRETATIONS** 1. ***A.K. Gopalan v. State of Madras (1950)***: The petitioner, detained under the **Preventive Detention Act**, challenged the act’s constitutionality, arguing it violated his **fundamental rights**. The Supreme Court upheld the act, interpreting **Article 21** narrowly and emphasizing strict adherence to enacted laws without assessing their fairness. 2. ***Maneka Gandhi v. Union of India (1978)***: **Maneka Gandhi’s passport** was impounded without a fair hearing, which she challenged as a violation of her rights under **Articles 14, 19, and 21**. The Supreme Court ruled that any procedure depriving an individual of life or liberty must be **fair, just, and reasonable**, effectively incorporating due process principles into **Article 21**. 3. ***K.S. Puttaswamy v. Union of India (2017)***: This landmark judgment recognized the **right to privacy** as an intrinsic part of the **right to life and personal liberty** under **Article 21**, reinforcing the due process doctrine by ensuring laws infringing on privacy must meet the tests of **necessity** and **proportionality**. ## **LEGAL PROVISIONS AND CONSTITUTIONAL ARTICLES** - ***Article 21***: States that no person shall be deprived of **life or personal liberty** except according to the **procedure established by law**. Post-**Maneka Gandhi’s case**, this has been interpreted to mean procedures that are **fair, just, and reasonable**. - ***Article 14***: Guarantees **equality before the law** and **equal protection of the laws**, ensuring laws are not arbitrary. - ***Article 19***: Provides citizens with specific **freedoms**, subject to **reasonable restrictions**, ensuring a balance between **individual rights** and **societal interests**. ## **PRINCIPLES AND DOCTRINES RELATED TO DUE PROCESS** - ***Rule of Law***: The principle that all individuals and institutions are subject to and accountable to **law that is fairly applied and enforced**. - ***Natural Justice***: Legal philosophy used in some jurisdictions in the determination of **just or fair processes** in legal proceedings. - ***Audi Alteram Partem***: A principle that **no person should be judged without a fair hearing** in which each party is given the opportunity to respond to the evidence against them. ## **IMPACT ON FUNDAMENTAL RIGHTS AND JUDICIAL REVIEW** The incorporation of **due process principles** into Indian jurisprudence has significantly enhanced the protection of **fundamental rights**. It has empowered the judiciary to review not just the **procedural validity of laws** but also their **substantive fairness**, ensuring that legislation does not arbitrarily infringe upon individual liberties. ## **CONCLUSION** The **Doctrine of Due Process of Law**, though not explicitly mentioned in the Indian Constitution, has been effectively integrated through judicial interpretations. This evolution ensures that laws in India must be **fair, just, and reasonable**, providing robust protection to individual rights against **arbitrary state actions**. ## **REFERENCES** 1. ***A.K. Gopalan v. State of Madras (1950)***: AIR 1950 SC 27. 2. ***Maneka Gandhi v. Union of India (1978)***: AIR 1978 SC 597. 3. ***K.S. Puttaswamy v. Union of India (2017)***: (2017) 10 SCC 1. 4. ***Constitution of India***: Articles 14, 19, and 21. 5. ***Legal Service India***: Doctrine of Due Process of Law. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Procedure Established by Law](https://lawfoyer.in/doctrine-of-procedure-established-by-law/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The "Doctrine of Procedure Established by Law" is enshrined in Article 21 of the Indian Constitution, which states: "No person shall be deprived of his life or personal liberty except according to procedure established by law." This doctrine mandates that any deprivation of life or personal liberty must follow a procedure that is duly enacted by the legislature. **Content:** ## **MEANING, DEFINITION & EXPLANATION** The **“Doctrine of Procedure Established by Law”** is enshrined in **Article 21** of the Indian Constitution, which states: **“No person shall be deprived of his life or personal liberty except according to procedure established by law.”** This doctrine mandates that any deprivation of life or personal liberty must follow a procedure that is duly enacted by the legislature. It emphasizes adherence to the prescribed legal process, ensuring that any action affecting an individual’s **fundamental rights** is conducted under the authority of law. ## **HISTORICAL BACKGROUND / EVOLUTION** Initially, the Indian Constitution adopted the **“procedure established by law”** doctrine, differing from the American **“due process of law.”** The framers chose this to limit **judicial overreach** and ensure **parliamentary supremacy** in defining legal procedures. However, over time, judicial interpretations expanded the scope of **Article 21** to incorporate elements of **fairness** and **reasonableness**, aligning it more closely with the **due process concept**. ## **COMPARISON WITH OTHER COUNTRIES** In the **United States**, the Constitution incorporates the **“due process of law”** clause, which not only requires legal procedures to be followed but also mandates that these procedures be **fair, just, and reasonable.** This contrasts with the original Indian doctrine, which focused solely on adherence to enacted law, without assessing its fairness. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The doctrine comprises several key elements: - **Legislative Enactment**: There must be a law enacted by the legislature. - **Procedural Compliance**: The procedure prescribed by this law must be strictly followed. - **Legality**: The law must be within the legislative competence and must not violate any **constitutional provisions**. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 21** serves as the cornerstone of this doctrine. Additionally, procedural laws like the **Code of Criminal Procedure (CrPC)** and the **Civil Procedure Code (CPC)** outline the specific procedures to be followed in legal matters, ensuring that any deprivation of life or personal liberty adheres to established legal processes. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. **A.K. Gopalan v. State of Madras (1950)**: In this case, **A.K. Gopalan**, a communist leader, was detained under the **Preventive Detention Act, 1950**. He challenged his detention, arguing that it violated his fundamental rights under **Articles 14, 19, and 21**. The **Supreme Court** held that as long as there was a law prescribing a procedure, any deprivation of life or personal liberty was valid, even if the law was unjust or unreasonable. This case highlighted a narrow interpretation of **Article 21**, focusing solely on the existence of a procedure established by law without assessing its fairness. 2. **Maneka Gandhi v. Union of India (1978)**: **Maneka Gandhi’s** passport was impounded by the government without providing her an opportunity to be heard, citing public interest. She challenged this action, contending it violated her rights under **Articles 14, 19, and 21**. The **Supreme Court** expanded the interpretation of **Article 21**, ruling that the procedure established by law must be **“right, just, and fair”** and not **“arbitrary, fanciful, or oppressive.”** This judgment effectively incorporated the principles of **natural justice** into the procedure established by law, ensuring that laws affecting life and personal liberty must also be **reasonable and just**. 3. **Kharak Singh v. State of Uttar Pradesh (1964)**: **Kharak Singh** was subjected to **police surveillance**, including domiciliary visits at night, under the **U.P. Police Regulations**. He challenged these actions as violations of his fundamental rights. The **Supreme Court** held that while the term **“life”** in **Article 21** means more than mere animal existence, the regulations authorizing such surveillance were **unconstitutional** as they violated the **“personal liberty”** guaranteed by **Article 21**. This case emphasized that any procedure affecting personal liberty must be **fair and not arbitrary**. 4. **ADM Jabalpur v. Shivkant Shukla (1976)**: During the **Emergency**, several individuals were detained without trial. The detainees challenged their detention, arguing that it violated their fundamental rights. The **Supreme Court** controversially held that during the **Emergency**, the right to seek remedy for enforcement of **Article 21** remained suspended. This judgment was widely criticized for its narrow interpretation of **Article 21** and was later overruled, reaffirming the importance of **judicial oversight** in protecting personal liberty. 5. **Selvi v. State of Karnataka (2010)**: The case involved the **involuntary administration** of narco-analysis, polygraph, and brain-mapping tests during criminal investigations. The **Supreme Court** held that such involuntary administration violated the **“personal liberty”** and **“right against self-incrimination”** under **Articles 20(3) and 21**. The Court emphasized that any procedure affecting personal liberty must be **just, fair, and reasonable**, reinforcing the expanded interpretation of **Article 21**. ## **INTERPRETATIONS / EXPLANATIONS** The evolution of **Article 21’s interpretation** signifies a shift from a **literal** to a **purposive approach**, ensuring that laws not only follow due procedure but are also **just, fair, and reasonable.** This transformation aligns the Indian legal system more closely with the principles of **substantive due process**, ensuring comprehensive protection of individual rights. ## **DOCTRINES / THEORIES** The transformation from **“procedure established by law”** to incorporating elements of **“due process of law”** reflects the judiciary’s proactive role in safeguarding **fundamental rights.** This shift ensures that the mere existence of a law is insufficient; the law must also be **fair, just, and reasonable.** ## **MAXIMS / PRINCIPLES** - **Audi Alteram Partem**: This principle of **natural justice**, meaning **“hear the other side,”** has been integrated into the interpretation of **Article 21**, ensuring that individuals are given a fair opportunity to be heard before any deprivation of life or personal liberty. - **Nemo Judex in Causa Sua**: Meaning **“no one should be a judge in their own cause,”** this principle ensures **impartiality** in legal proceedings, reinforcing the **fairness** aspect of the procedure established by law. ## **CRITICISM / APPRECIATION** The initial **narrow interpretation** of **Article 21** was criticized for allowing unjust laws to infringe upon personal liberties. However, the judiciary’s subsequent **expansive interpretation** has been lauded for strengthening the protection of **fundamental rights**, ensuring that laws are not only **procedurally valid** but also **substantively fair**. --- **Categories:** Articles, Constitutional Law --- ### [Doctrine of Equal Protection of Laws](https://lawfoyer.in/doctrine-of-equal-protection-of-laws/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Equal Protection of Laws, enshrined in Article 14 of the Indian Constitution, ensures that every individual within India's territory receives equal treatment under the law. This principle prohibits discrimination and mandates that similar cases be treated alike, forming a cornerstone of India's commitment to justice and fairness. **Content:** The **Doctrine of Equal Protection of Laws**, enshrined in **Article 14** of the **Indian Constitution**, ensures that every individual within India’s territory receives equal treatment under the law. This principle prohibits discrimination and mandates that similar cases be treated alike, forming a cornerstone of India’s commitment to justice and fairness. ## **MEANING, DEFINITION & EXPLANATION** **Article 14** states: **“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”** This provision embodies two key concepts: - **Equality Before Law**: *This negative concept, borrowed from English common law, implies the absence of any special privileges in favor of individuals and the equal subjection of all classes to the ordinary law.* It signifies that no person, regardless of rank or status, is above the law. - **Equal Protection of Laws**: *A positive concept derived from the American Constitution, it requires the state to provide equal treatment to individuals in similar circumstances.* This means that laws should be applied equally and without discrimination, ensuring like cases are treated alike. ## **HISTORICAL BACKGROUND / EVOLUTION** The principle of equality has deep roots in legal history. The **Magna Carta of 1215** proclaimed the treatment of all individuals with fairness, laying the foundation for the concept of equality before the law. This idea evolved over centuries, influencing various legal systems, including India’s, culminating in its incorporation into the **Indian Constitution** as a fundamental right. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** For the **Doctrine of Equal Protection** to apply effectively, certain essentials must be met: 1. **Universal Application**: *The doctrine applies to all persons within the territory of India, including citizens, non-citizens, and legal entities.* 2. **Prohibition of Arbitrary Discrimination**: *The state must not engage in arbitrary discrimination. Any classification must be reasonable and not arbitrary.* 3. **Reasonable Classification**: *While the doctrine prohibits class legislation, it allows for reasonable classification. Such classification must meet two conditions:* - **Intelligible Differentia**: *The classification must be based on an intelligible differentia that distinguishes those grouped together from others.* - **Rational Nexus**: *There must be a rational relation between the classification and the objective sought to be achieved by the law.* ## **DEFENCES / EXCEPTIONS / EXCEPTIONS TO DEFENCES** While **Article 14** guarantees equality, certain exceptions exist: - **Special Privileges**: *The Constitution permits special provisions for certain classes of people, such as women, children, and socially and educationally backward classes, to promote substantive equality.* - **Protective Discrimination**: *Affirmative action measures, like reservations in education and employment for Scheduled Castes and Scheduled Tribes, are permissible to uplift disadvantaged groups.* - **Reasonable Classification**: *Laws can differentiate between groups if the classification is reasonable and serves a legitimate objective.* ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** The application of the **Doctrine of Equal Protection** involves: - **Judicial Review**: *Courts have the authority to review laws and state actions to ensure they comply with Article 14.* - **Burden of Proof**: *When a law is challenged as discriminatory, the burden of proof lies on the state to justify the classification as reasonable.* - **Test of Reasonableness**: *Courts apply the test of reasonableness to determine whether a classification is permissible under Article 14.* ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark judgments have shaped the interpretation of **Article 14**: - **State of West Bengal v. Anwar Ali Sarkar (1952)**: *The Supreme Court struck down a law that allowed certain cases to be tried by special courts without any reasonable classification, emphasizing that arbitrary selection violates Article 14.* - **E.P. Royappa v. State of Tamil Nadu (1974)**: *The Court held that equality is antithetical to arbitrariness, introducing the concept that arbitrariness violates Article 14.* - **Maneka Gandhi v. Union of India (1978)**: *This case expanded the interpretation of Article 14, stating that any law must be just, fair, and reasonable, and not arbitrary, to meet the requirements of Article 14.* - **Navtej Singh Johar v. Union of India (2018)**: *The Supreme Court decriminalized consensual homosexual acts, holding that Section 377 of the Indian Penal Code violated the right to equality under Article 14, as it was arbitrary and discriminatory.* ## **DOCTRINES / THEORIES** The interpretation of **Article 14** has led to the development of several doctrines: - **Doctrine of Reasonable Classification**: *This doctrine allows the state to classify individuals or groups for differential treatment, provided the classification is reasonable and not arbitrary.* - **Doctrine of Arbitrariness**: *Established in the E.P. Royappa case, this doctrine posits that arbitrariness is the antithesis of equality, and any arbitrary action by the state violates Article 14.* ## **MAXIMS / PRINCIPLES** The principle of **“Equality is the rule; unequal treatment is the exception”** underpins **Article 14**. This means that all persons are to be treated equally, and any deviation must be justified by reasonable classification. ## **AMENDMENTS / ADDITIONS / REPEALING** While **Article 14** itself has not been amended, its interpretation has evolved through judicial pronouncements, expanding its scope to address contemporary issues of equality and non-discrimination. ## **STATISTICAL ANALYSIS / DATA ANALYSIS** Statistical data often plays a crucial role in cases involving **Article 14**, especially in matters of affirmative action and reservations, to justify the need for differential treatment to achieve substantive equality. ## **CRITICISM / APPRECIATION** **Article 14** has been lauded for promoting equality. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Equality Before Law](https://lawfoyer.in/doctrine-of-equality-before-law/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Equality Before Law, enshrined in Article 14 of the Indian Constitution, ensures that every individual is treated equally under the law, prohibiting discrimination and arbitrary actions by the state. This principle is fundamental for Indian law students to understand, as it forms the cornerstone of India's commitment to justice and fairness. **Content:** The **Doctrine of Equality Before Law**, enshrined in **Article 14 of the Indian Constitution**, ensures that every individual is treated equally under the law, prohibiting discrimination and arbitrary actions by the state. This principle is fundamental for Indian law students to understand, as it forms the cornerstone of India’s commitment to justice and fairness. ### **MEANING, DEFINITION & EXPLANATION** **Article 14 states**: *“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”* This embodies two concepts: - **Equality Before Law**: A *negative concept* derived from **English law**, implying the absence of any special privileges in favor of individuals and the equal subjection of all classes to the ordinary law. It ensures that no person, regardless of status, is above the law. - **Equal Protection of Laws**: A *positive concept* borrowed from the **American Constitution**, requiring the state to provide equal treatment to individuals in similar circumstances. It permits **reasonable classification** but forbids **class legislation**. ### **HISTORICAL BACKGROUND / EVOLUTION** The principle of equality has deep roots in legal history. The **Magna Carta of 1215** laid the foundation by proclaiming that no individual would be denied justice. In India, the framers of the **Constitution** incorporated this doctrine to eliminate inequalities and promote **social justice**, drawing inspiration from various international legal systems. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** For a classification to be considered **reasonable** under **Article 14**, it must satisfy two conditions: 1. **Intelligible Differentia**: The classification must distinguish persons or things that are grouped together from others left out of the group. 2. **Rational Nexus**: There must be a rational relation between the basis of classification and the objective sought to be achieved by the law. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 14** applies to both **citizens** and **non-citizens** and covers all persons within the territory of India. It mandates that laws and state actions must not be **arbitrary** and should be based on **reasonable classification**. The judiciary has the power to review and strike down laws that violate this principle. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. **State of West Bengal v. Anwar Ali Sarkar (1952)**: The **Supreme Court** held that a law providing special courts for certain offenses was unconstitutional as it violated **Article 14** by creating arbitrary classification. 2. **E.P. Royappa v. State of Tamil Nadu (1974)**: The Court introduced the concept that **equality is antithetical to arbitrariness**, stating that any arbitrary action by the state violates **Article 14**. 3. **Maneka Gandhi v. Union of India (1978)**: This **landmark judgment** expanded the interpretation of **Article 14**, asserting that any law must be *“right, just, and fair”* and not arbitrary, fanciful, or oppressive. 4. **Navtej Singh Johar v. Union of India (2018)**: The **Supreme Court** decriminalized consensual homosexual acts, holding that **Section 377 of the IPC** violated **Article 14** by being arbitrary and discriminatory. ### **DOCTRINES / THEORIES** - **Doctrine of Reasonable Classification**: While **Article 14** prohibits class legislation, it allows for **reasonable classification**, provided it is not arbitrary and has a rational nexus with the objective of the law. - **Doctrine of Arbitrariness**: Any state action that is arbitrary can be challenged as violative of **Article 14**, as equality and arbitrariness are sworn enemies. ### **MAXIMS / PRINCIPLES** - **“Equality is the rule; unequal treatment the exception”**: This principle underscores that any deviation from **equality** must be justified and reasonable. ### **COMPARISON WITH OTHER COUNTRIES** In the **United States**, the **Equal Protection Clause of the 14th Amendment** serves a similar purpose to India’s **Article 14**, aiming to prevent discriminatory laws. However, the interpretation and application differ based on judicial precedents and societal contexts. ### **EXCEPTIONS TO THE DOCTRINE** Certain provisions in the **Constitution** allow for exceptions to the rule of equality: - **Article 361**: Provides **immunity** to the **President and Governors** from legal proceedings during their term of office. - **Article 105**: Grants certain **privileges** to **Members of Parliament**, including freedom of speech within the house. ### **FUTURE IMPLICATIONS** The dynamic interpretation of **Article 14** continues to influence Indian jurisprudence, ensuring that laws evolve to meet the changing needs of society while upholding the fundamental principle of equality. ### **CRITICISM / APPRECIATION** While **Article 14** has been instrumental in promoting **equality**, critics argue that the allowance for **reasonable classification** can sometimes lead to **judicial overreach** or inconsistency in judgments. Nonetheless, it remains a cornerstone of India’s commitment to justice. ### **REFERENCES** 1. **State of West Bengal v. Anwar Ali Sarkar**, AIR 1952 SC 75. 2. **E.P. Royappa v. State of Tamil Nadu**, AIR 1974 SC 555. 3. **Maneka Gandhi v. Union of India**, AIR 1978 SC 597. 4. **Navtej Singh Johar v. Union of India**, AIR 2018 SC 4321. 5. **Article 14 of the Indian Constitution with Important Case Laws** – LawBhoomi. 6. **14 Landmark Judgments on Article 14** – iPleaders. 7. **Equality before Law and Equal Protection of Law** – Drishti Judiciary. 8. **Article 14 of the Constitution of India and Important Case Laws** – LawBhoomi. 9. **Right to Equality**. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Reasonable Classification](https://lawfoyer.in/doctrine-of-reasonable-classification/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Reasonable Classification, rooted in Article 14 of the Indian Constitution, permits the State to create distinctions among individuals or groups, provided such classifications are reasonable, non-arbitrary, and serve a legitimate objectiv **Content:** The **Doctrine of Reasonable Classification**, rooted in **Article 14 of the Indian Constitution**, permits the State to create distinctions among individuals or groups, provided such classifications are **reasonable, non-arbitrary, and serve a legitimate objective**. ### **MEANING, DEFINITION & EXPLANATION** **Article 14** ensures **equality before the law** and **equal protection of the laws** within India’s territory. However, it does not prohibit **reasonable classification**, which allows the State to treat different groups distinctly to achieve specific legislative objectives. For a classification to be deemed reasonable, it must satisfy two conditions: 1. ***Intelligible Differentia***: The classification must be based on an **intelligible differentia** that distinguishes those grouped together from others left out of the group. 2. ***Rational Nexus***: This differentia must have a **rational relation** to the objective sought to be achieved by the legislation. This principle ensures that laws can address varying needs and circumstances without being **arbitrary** or **discriminatory**. ### **HISTORICAL BACKGROUND / EVOLUTION** The concept of **reasonable classification** has evolved through various **judicial pronouncements**. Initially, **Article 14** was interpreted strictly, prohibiting any form of classification. However, over time, the judiciary recognized the necessity of classification to address diverse societal needs, leading to the acceptance of **reasonable classification** as a means to achieve **substantive equality**. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** For a classification to be constitutionally valid under **Article 14**, it must fulfill the following criteria: - ***Intelligible Differentia***: There must be a **clear and discernible basis** for distinguishing between groups or individuals. - ***Rational Nexus***: The basis of classification should be **logically connected** to the law’s intended objective. - ***Non-Arbitrariness***: The classification should not be **arbitrary** or based on unreasonable criteria. - ***Legitimate Objective***: The law should aim to achieve a **legitimate governmental or societal purpose**. These elements ensure that the classification serves a **meaningful purpose** and upholds the principles of **equality** and **justice**. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 14** of the Indian Constitution is the cornerstone of the **doctrine of reasonable classification**. It states: *“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”* This provision allows for **reasonable classification**, provided it meets the established criteria of **intelligible differentia** and **rational nexus**. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several landmark judgments have shaped the understanding and application of the doctrine: 1. **State of West Bengal v. Anwar Ali Sarkar (1952)**: The Supreme Court struck down a law that allowed certain cases to be tried by special courts without a clear basis for classification, deeming it violative of **Article 14**. 2. **Ram Krishna Dalmia v. Justice S.R. Tendolkar (1958)**: This case laid down comprehensive tests for **reasonable classification**, emphasizing that the classification must not be **arbitrary** and should have a **substantial relation** to the law’s objective. 3. **E.P. Royappa v. State of Tamil Nadu (1974)**: The Court expanded the interpretation of **Article 14**, stating that **equality** is antithetical to **arbitrariness**, and any arbitrary action would violate **Article 14**. 4. **Maneka Gandhi v. Union of India (1978)**: The Court held that any law affecting personal liberty must not be **arbitrary** and should pass the test of **reasonableness** under **Article 14**. 5. **D.S. Nakara & Others v. Union of India (1983)**: The Supreme Court ruled that a classification that excluded certain pensioners from benefits was **unconstitutional**, as it was not based on any **reasonable criteria**. ### **DOCTRINES / THEORIES** - **Doctrine of Arbitrariness**: Established in the **E.P. Royappa case**, this doctrine posits that any **arbitrary action** by the State violates **Article 14**, as **equality and arbitrariness** are sworn enemies. - **Doctrine of Classification**: This doctrine allows the State to classify individuals or groups for legislative purposes, provided the classification is **reasonable** and not **arbitrary**. ### **MAXIMS / PRINCIPLES** - **“Like should be treated alike”**: This principle underpins the concept of **equality**, suggesting that individuals in similar situations should be treated similarly. - **“Equality before the law”**: This maxim signifies that no individual is above the law and everyone is subject to the **same laws** of the land. ### **AMENDMENTS / ADDITIONS / REPEALING** While **Article 14** has remained **unamended**, its interpretation has evolved through **judicial pronouncements**, expanding its scope to include the doctrines of **arbitrariness** and **reasonable classification**. ### **CRITICISM / APPRECIATION** - ***Criticism***: The doctrine has been criticized for potential misuse, where **arbitrary classifications** might be justified under the guise of **reasonableness**. Additionally, the **subjective nature** of determining what constitutes ‘reasonable’ can lead to **inconsistent applications**. - ***Appreciation***: The doctrine allows for **flexibility in law-making**, enabling the State to address the **diverse needs** of society. It ensures that **equality** is **substantive**, not merely formal, by accommodating different societal contexts. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Non-Arbitrariness](https://lawfoyer.in/doctrine-of-non-arbitrariness/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Non-Arbitrariness is a fundamental principle in Indian constitutional law, ensuring that state actions are fair, reasonable, and free from arbitrary decisions. Rooted in Article 14 of the Indian Constitution, which guarantees the right to equality before the law and equal protection of the laws, this doctrine serves as a safeguard against discriminatory practices by the state. **Content:** The **Doctrine of Non-Arbitrariness** is a fundamental principle in Indian constitutional law, ensuring that state actions are fair, reasonable, and free from arbitrary decisions. Rooted in **Article 14 of the Indian Constitution**, which guarantees the right to equality before the law and equal protection of the laws, this doctrine serves as a safeguard against discriminatory practices by the state. ## **MEANING AND EXPLANATION** **Article 14** embodies two key concepts: **“equality before the law”** and **“equal protection of the laws.”** The former implies the absence of any special privileges in favor of individuals, while the latter requires that all individuals in similar circumstances be treated equally. The **Doctrine of Non-Arbitrariness** ensures that any state action, whether legislative or executive, does not violate these principles by being unreasonable or capricious. In the landmark case of ***E.P. Royappa v. State of Tamil Nadu***, the Supreme Court emphasized that arbitrariness and equality are sworn enemies, stating that “where an act is arbitrary, it is implicit that it is unequal both according to political logic and constitutional law and is therefore violative of **Article 14.**“ ## **HISTORICAL BACKGROUND AND EVOLUTION** Initially, **Article 14** was interpreted narrowly, focusing primarily on the **“reasonable classification” test.** This test permitted classification by the state, provided it was based on **intelligible differentia** and had a **rational nexus** with the objective sought to be achieved. However, over time, the judiciary recognized that mere classification could not justify all forms of state action. The emphasis shifted towards examining the reasonableness and fairness of such actions, leading to the development of the **Doctrine of Non-Arbitrariness.** This evolution was marked by several landmark judgments that expanded the scope of **Article 14** to include protection against arbitrary state actions. ## **LEGAL PROVISIONS AND JUDICIAL INTERPRETATIONS** - **Article 14 of the Indian Constitution**: This article guarantees that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” It forms the constitutional basis for challenging arbitrary actions by the state. - **Reasonable Classification Test**: For a classification to be deemed reasonable under **Article 14**, it must: - Be based on an **intelligible differentia** that distinguishes those grouped together from others. - Have a **rational relation** to the objective sought to be achieved by the statute in question. This test was elaborated in the case of ***Ramkrishna Dalmia v. Justice S.R. Tendolkar***, where the Supreme Court provided guidelines for determining the constitutionality of a statute concerning **Article 14.** - **Shift to Non-Arbitrariness**: In ***Maneka Gandhi v. Union of India***, the Supreme Court held that any procedure established by law must be **“right, just and fair”** and not arbitrary, fanciful, or oppressive. This case marked a significant shift from the traditional reasonable classification test to a broader interpretation that includes **non-arbitrariness** as a core component of **Article 14.** ## **KEY CASE LAWS AND THEIR SIGNIFICANCE** 1. ***E.P. Royappa v. State of Tamil Nadu***: - **Facts**: The petitioner, E.P. Royappa, challenged his transfer from the position of Chief Secretary to a less significant post, alleging it was arbitrary and violated **Article 14.** - **Issue**: Whether the transfer was arbitrary and violated the right to equality under **Article 14.** - **Held**: The Supreme Court held that arbitrariness is antithetical to equality. It stated that **“equality is a dynamic concept with many aspects and dimensions,”** and any arbitrary action by the state is inherently unequal, thus violating **Article 14.** 2. ***Maneka Gandhi v. Union of India***: - **Facts**: Maneka Gandhi’s passport was impounded by the government without providing reasons, which she challenged as arbitrary and violative of her rights. - **Issue**: Whether the impounding of the passport without a fair procedure violated **Article 14.** - **Held**: The Supreme Court expanded the interpretation of **Article 21** to include the right to a fair procedure and held that any law or procedure must be **fair, just, and non-arbitrary.** This case reinforced the **Doctrine of Non-Arbitrariness** as integral to **Article 14.** 3. ***S.G. Jaisinghani v. Union of India***: - **Facts**: The petitioner challenged the seniority rules in the Income Tax Department, alleging they were arbitrary and violated **Article 14.** - **Issue**: Whether the seniority rules were arbitrary and violated the right to equality under **Article 14.** - **Held**: The Supreme Court emphasized that **the absence of arbitrary power is the first essential of the rule of law** upon which our constitutional system is based. It held that any discretionary power must be exercised within a system of controls to prevent arbitrariness. ## **PRINCIPLES AND DOCTRINES RELATED TO NON-ARBITRARINESS** - **Doctrine of Legitimate Expectation**: This doctrine protects the expectations of individuals that have been legitimately created by the state through its representations or consistent past practices. In ***Union of India v. Hindustan Development Corporation***, the Supreme Court held that the doctrine of **legitimate expectation** gets assimilated in the **rule of law** and operates in our legal system to prevent arbitrariness from the state. - **Principle of Reasonableness**: Reasonableness is a fundamental aspect of the **Doctrine of Non-Arbitrariness.** State actions must be **reasonable** and not arbitrary to satisfy the requirements of **Article 14.** **Categories:** Articles, Constitutional Law --- ### [Doctrine of Legitimate Expectation](https://lawfoyer.in/doctrine-of-legitimate-expectation-3/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Legitimate Expectation ensures fairness in administrative actions, allowing individuals to anticipate consistent treatment based on established practices or explicit promises by public authorities. In India, this doctrine serves as a crucial check against arbitrary decisions, reinforcing the principles of natural justice and non-arbitrariness enshrined in Article 14 of the Constitution. **Content:** The **Doctrine of Legitimate Expectation** ensures fairness in administrative actions, allowing individuals to anticipate consistent treatment based on established practices or explicit promises by public authorities. In India, this doctrine serves as a crucial check against arbitrary decisions, reinforcing the principles of **natural justice** and **non-arbitrariness** enshrined in **Article 14 of the Constitution**. ## **MEANING AND EXPLANATION** *Legitimate expectation* arises when a public authority’s consistent conduct or explicit assurances lead an individual to reasonably anticipate a specific treatment or benefit. Although not a legal right, this expectation warrants consideration, and its neglect can render administrative actions arbitrary. The **Supreme Court of India**, in ***M.P. Oil Extraction and Anr. v. State of Madhya Pradesh and Ors.***, emphasized that this doctrine operates within public law and, in suitable cases, constitutes a substantive and enforceable right. ## **HISTORICAL BACKGROUND AND EVOLUTION** The doctrine’s roots trace back to **English law**, notably in ***Council of Civil Service Unions v. Minister for the Civil Service*** (\[1985\] AC 374), where it was established that a decision by a public authority should not deprive an individual of a benefit without providing an opportunity to contest the grounds for its withdrawal. In India, the **Supreme Court** first acknowledged this doctrine in ***State of Kerala v. K.G. Madhavan Pillai*** ((1988) 4 SCC 669), where the government’s abrupt reversal of a sanction to open a new school was deemed a violation of legitimate expectation. ## **ESSENTIALS OF LEGITIMATE EXPECTATION** For an expectation to be deemed legitimate, certain criteria must be met: - ***Established Practice or Promise***: There must be a consistent practice or an explicit promise by the public authority. In ***Navjyoti Coop. Group Housing Society v. Union of India*** ((1992) 4 SCC 477), the **Supreme Court** held that a change in the criteria for land allotment without due notice violated the legitimate expectation of the housing societies. - ***Reasonableness***: The expectation should be reasonable and not based on unfounded assumptions. - ***Reliance***: The individual should have relied on the promise or established practice. - ***Non-contravention of Law***: The expectation must not conflict with statutory provisions or public policy. ## **TYPES OF LEGITIMATE EXPECTATIONS** 1. ***Procedural Legitimate Expectation***: This pertains to the anticipation of a fair procedure before a decision is made. For instance, if an individual expects a hearing before an adverse administrative decision, denying this could breach procedural legitimate expectation. 2. ***Substantive Legitimate Expectation***: This involves the expectation of a specific benefit or advantage. However, **Indian courts** have been cautious in recognizing substantive legitimate expectations, often requiring a clear demonstration of arbitrariness or abuse of power. ## **LEGAL PROVISIONS AND JUDICIAL INTERPRETATIONS** While the doctrine is not explicitly codified in Indian statutes, it aligns with the constitutional mandate against arbitrariness under **Article 14**. The **Supreme Court**, in ***Punjab Communications Ltd. v. Union of India and Ors.*** ((1999) 4 SCC 727), clarified that the doctrine does not grant an absolute right but ensures that the decision-making process is fair, non-arbitrary, and follows the principles of **natural justice**. ## **EXCEPTIONS TO THE DOCTRINE** The doctrine is not absolute and has certain limitations: - ***Change in Policy***: Public authorities can alter policies in public interest, even if it overrides individual expectations. In ***Union of India v. Hindustan Development Corporation*** ((1993) 3 SCC 499), the **Supreme Court** held that the government could change its policy if the change is in the public interest and not arbitrary. - ***Contrary to Law***: An expectation conflicting with statutory provisions cannot be upheld. - ***Public Interest***: If upholding the expectation is detrimental to public interest, it may not be enforced. ## **DOCTRINE OF LEGITIMATE EXPECTATION VS. PROMISSORY ESTOPPEL** While both doctrines aim to prevent unfairness, they differ: - ***Scope***: Promissory estoppel applies primarily in private law, preventing a party from going back on a promise when the other party has relied on it to their detriment. Legitimate expectation operates in public law, focusing on fairness in administrative actions. - ***Legal Right***: Promissory estoppel can create enforceable rights, whereas legitimate expectation ensures fair procedure rather than conferring substantive rights. ## **CASE LAWS ILLUSTRATING THE DOCTRINE** - ***State of Kerala v. K.G. Madhavan Pillai*** ((1988) 4 SCC 669): The government’s withdrawal of sanction to open a new school without proper reason was held to violate the legitimate expectation of the respondent. - ***Navjyoti Coop. Group Housing Society v. Union of India*** ((1992) 4 SCC 477): Changing the criteria for land allotment without notifying affected parties breached their legitimate expectation. - ***Punjab Communications Ltd. v. Union of India and Ors.*** ((1999) 4 SCC 727): The **Court** emphasized that while legitimate expectation ensures fairness, it does not prevent authorities from changing policies if done fairly and in public interest. ## **GUIDELINES FOR APPLICATION** When invoking the doctrine, courts consider: - ***Clarity of the Promise or Practice***: The assurance must be clear and unambiguous. - ***Reasonableness of the Expectation***: The individual’s anticipation should be reasonable. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Proportionality](https://lawfoyer.in/doctrine-of-proportionality-2/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Proportionality ensures that administrative actions or legislative measures are appropriate, necessary, and not excessive concerning their intended objectives. In India, this doctrine plays a pivotal role in maintaining a balance between individual rights and state actions, ensuring that any restriction on fundamental rights is justified and minimal. **Content:** The **Doctrine of Proportionality** ensures that administrative actions or legislative measures are **appropriate, necessary, and not excessive** concerning their intended objectives. In India, this doctrine plays a pivotal role in maintaining a balance between **individual rights and state actions**, ensuring that any restriction on **fundamental rights** is justified and minimal. ## **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Proportionality** mandates that any action by the state or its agencies should not be more restrictive than required to achieve the desired objective. This principle ensures that measures infringing upon **individual rights** are **justified, necessary, and the least intrusive means available**. In essence, the severity of the action must correspond appropriately to the importance of the objective pursued. ## **HISTORICAL BACKGROUND / EVOLUTION** Originating in 18th-century Prussia, the doctrine was later incorporated into **German administrative law** and subsequently adopted by various **European legal systems**. In India, the **Supreme Court** began applying this principle in the 1950s, particularly when assessing the constitutionality of **legislative actions** affecting fundamental freedoms under **Article 19(1)** of the Constitution. The landmark case of ***Om Kumar v. Union of India (2000)*** explicitly recognized the doctrine’s application in Indian administrative law. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The doctrine encompasses several key elements: - **Legitimate Aim**: The action must pursue a lawful and significant objective. - **Suitability**: The means adopted should be capable of achieving the intended aim. - **Necessity**: There should be no less restrictive alternative available to achieve the same objective. - **Balancing**: The benefits of the action must outweigh the harm caused to individual rights. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In the Indian context, the doctrine is often invoked concerning **Articles 14, 19, and 21** of the Constitution: - **Article 14**: Ensures **equality before the law** and protection against arbitrary state actions. - **Article 19**: Guarantees **specific freedoms**, subject to reasonable restrictions. - **Article 21**: Protects the **right to life and personal liberty**, permitting deprivation only through a **procedure established by law**. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. ***Om Kumar v. Union of India (2000)***: This case marked a significant step in recognizing the doctrine in Indian administrative law. The Supreme Court held that the doctrine could be applied to test the validity of **administrative actions** affecting **fundamental freedoms**. 2. ***Maneka Gandhi v. Union of India (1978)***: The Supreme Court broadened the interpretation of **Article 21**, linking it with **Articles 14 and 19**. The Court emphasized that any law interfering with personal liberty must pass the test of **reasonableness and fairness**, implicitly including the principle of proportionality. 3. ***Bachan Singh v. State of Punjab (1980)***: In the context of the **death penalty**, the Supreme Court applied the doctrine, stating that the punishment must not be excessive and should be **commensurate with the gravity of the offense**. 4. ***Anuradha Bhasin v. Union of India (2020)***: The Supreme Court examined the legality of **internet shutdowns** in Jammu and Kashmir, emphasizing that restrictions on **fundamental rights** must be **proportionate** to the intended objective. ## **COMPARISON WITH WEDNESBURY UNREASONABLENESS** The **Wednesbury principle**, originating from English law, permits judicial intervention only when a decision is so unreasonable that no reasonable authority would ever consider it. In contrast, the **Doctrine of Proportionality** allows courts to assess whether: - The action’s **objective is legitimate**. - The means chosen are **suitable and necessary**. - There exists a **balance between the adverse effects** on rights and the intended benefits. This distinction grants Indian courts a **broader scope** to evaluate administrative actions, especially when **fundamental rights** are at stake. ## **APPLICATION IN FUNDAMENTAL RIGHTS ADJUDICATION** The doctrine is instrumental in cases where **state actions** impinge upon **fundamental rights**. Courts employ this principle to ensure that any restriction is **justified, necessary, and proportionate** to the aim pursued. This approach prevents **arbitrary or excessive limitations** on individual freedoms. ## **INTERNATIONAL PERSPECTIVE** Globally, the doctrine is a cornerstone in constitutional adjudication: - **Germany**: Deeply embedded in **administrative law**, ensuring state actions are proportionate. - **European Union**: Applied by the **European Court of Human Rights** to assess the validity of state measures affecting human rights. - **United Kingdom**: While traditionally adhering to the **Wednesbury principle**, UK courts have increasingly recognized proportionality, especially under the **Human Rights Act 1998**. ## **CRITICISM / APPRECIATION** *Criticism*: - **Subjectivity**: Determining what is ‘proportionate’ can be **subjective**, leading to inconsistent judgments. - **Judicial Overreach**: Excessive reliance on the doctrine may result in the **judiciary encroaching upon executive or legislative functions**. *Appreciation*: - **Rights Protection**: Ensures that **individual rights** are not unduly compromised by state actions. - **Balanced Governance**: Promotes a harmonious **balance between state objectives and individual freedoms**. ## **FUTURE IMPLICATIONS** The evolving application of the **Doctrine of Proportionality** in India signifies a commitment to upholding **constitutional freedoms**. As jurisprudence develops, this doctrine is poised to play an increasingly central role in ensuring that state actions remain **just, fair, and proportionate**, thereby strengthening the framework of **Indian constitutional law**. --- **Categories:** Articles, Constitutional Law --- ### [Doctrine of Wednesbury Unreasonableness](https://lawfoyer.in/doctrine-of-wednesbury-unreasonableness/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Wednesbury Unreasonableness is a pivotal principle in administrative law, guiding judicial review of administrative decisions. It ensures that authorities exercise their discretion within reasonable bounds, preventing arbitrary or irrational decisions. **Content:** The **Doctrine of Wednesbury Unreasonableness** is a pivotal principle in administrative law, guiding judicial review of administrative decisions. It ensures that authorities exercise their discretion within reasonable bounds, preventing arbitrary or irrational decisions. ### **MEANING, DEFINITION & EXPLANATION** *Wednesbury Unreasonableness* refers to a legal standard used by courts to assess whether a public authority’s decision is so irrational that no reasonable person acting reasonably could have made it. This principle emerged from the UK case ***Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation***, where the court held that it could intervene only if a decision was “so unreasonable that no reasonable authority could ever have come to it.” ### **HISTORICAL BACKGROUND / EVOLUTION** The doctrine originated from the 1948 UK Court of Appeal decision in ***Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation***. In this case, a cinema challenged a local authority’s condition restricting children’s attendance on Sundays. The court established that judicial intervention is warranted only when a decision is irrational beyond reasonable justification. This principle has since been integral to administrative law, influencing judicial review standards in various jurisdictions, including India. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The Wednesbury test involves assessing whether: - The authority considered **irrelevant factors**. - The authority failed to consider **relevant factors**. - The decision is **so unreasonable** that no reasonable authority would have made it. These criteria help determine if a decision falls within the bounds of **reasonableness**. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** In India, the doctrine aligns with **Article 14 of the Constitution**, ensuring equality before the law and protection against arbitrary state actions. Courts apply this principle to scrutinize administrative decisions, ensuring they are free from arbitrariness and adhere to principles of **natural justice**. ### **CASE LAWS / PRECEDENTS** - ***Om Kumar v. Union of India*** (2000): The Supreme Court acknowledged the applicability of the **proportionality doctrine** in administrative decisions affecting fundamental freedoms, indicating a shift towards a more nuanced review standard. - ***Union of India v. G. Ganayutham*** (1997): The Court reiterated that **Wednesbury Unreasonableness** applies to administrative decisions, emphasizing that courts should not interfere unless a decision is perverse or irrational. ### **DOCTRINES / THEORIES** The **Doctrine of Proportionality** has gained prominence, especially in cases involving fundamental rights. It requires that administrative measures must not be excessive and should be appropriate to achieve the intended objective. This doctrine offers a more structured approach compared to **Wednesbury Unreasonableness**, allowing for a deeper inquiry into the balance between means and ends. ### **COMPARISON WITH OTHER COUNTRIES** While the **Wednesbury principle** originated in the UK, its application varies globally. Many jurisdictions have adopted the **Doctrine of Proportionality**, especially in human rights cases, providing a more rigorous standard of review. In India, both doctrines are employed, with proportionality gaining traction in matters concerning **fundamental rights**. ### **CRITICISM / APPRECIATION** Critics argue that **Wednesbury Unreasonableness** sets a high threshold for judicial intervention, potentially allowing unjust decisions to stand. The emergence of the **proportionality doctrine** addresses this concern by enabling a more detailed examination of administrative actions. Nonetheless, **Wednesbury** remains a fundamental principle, ensuring judicial restraint and respect for administrative discretion. ### **FUTURE IMPLICATIONS** The trend towards adopting the **Doctrine of Proportionality** suggests a move towards more intensive judicial review, especially in cases involving **fundamental rights**. This evolution reflects a commitment to ensuring that administrative decisions are not only reasonable but also just and equitable. ### **CONCLUSION** Understanding the **Doctrine of Wednesbury Unreasonableness** is essential for law students, as it forms the foundation of judicial review in administrative law. Its interplay with the **Doctrine of Proportionality** highlights the dynamic nature of legal standards in ensuring fair and reasonable administrative actions. ### **REFERENCES** 1. ***Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation***, \[1948\] 1 KB 223. 2. ***Om Kumar v. Union of India***, AIR 2000 SC 3689. 3. ***Union of India v. G. Ganayutham***, (1997) 7 SCC 463. 4. ***Delhi Science Forum v. Union of India***, AIR 1996 SC 1356. 5. ***Coimbatore District Central Coop. Bank v. Employees Assn.***, (2007) 4 SCC 669. 6. ***Tata Cellular v. Union of India***, (1994) 6 SCC 651. 7. ***Oil and Natural Gas Corporation Ltd. v. Western Geco International Ltd.***, (2014) 9 SCC 263. 8. ***State of Rajasthan v. Mohd. Ayub Naz***, (2006) 1 SCC 589. 9. ***New Horizons Ltd. v. Union of India***, (1995) 1 SCC 478. 10. ***Delhi Science Forum v. Union of India***, (1996) 2 SCC 405. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Margin of Appreciation](https://lawfoyer.in/doctrine-of-margin-of-appreciation/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Margin of Appreciation is a pivotal principle in international human rights law, particularly within the European Court of Human Rights (ECtHR). It grants national authorities a degree of discretion in fulfilling their obligations under human rights conventions, balancing universal human rights standards with national sovereignty and cultural diversity **Content:** The **Doctrine of Margin of Appreciation** is a pivotal principle in international human rights law, particularly within the **European Court of Human Rights (ECtHR)**. It grants national authorities a degree of discretion in fulfilling their obligations under human rights conventions, balancing universal human rights standards with national sovereignty and cultural diversity. ## **MEANING, DEFINITION & EXPLANATION** The **Margin of Appreciation** refers to the leeway national governments possess in interpreting and applying human rights provisions. This doctrine acknowledges that national authorities are often better positioned to assess and respond to local needs, cultural nuances, and societal values. It allows for a balance between **international human rights obligations** and **domestic discretion**, ensuring that states can implement rights in a manner consistent with their unique contexts. ## **HISTORICAL BACKGROUND / EVOLUTION** The doctrine emerged from the jurisprudence of the **ECtHR** in the 1950s. It was first articulated in the case of ***Handyside v. United Kingdom (1976) 1 EHRR 737***, where the Court recognized that national authorities are in a better position to assess the necessity of certain restrictions within their jurisdiction. Over time, the doctrine has been refined and applied in various cases, becoming a cornerstone of the Court’s approach to balancing state sovereignty with the protection of human rights. ## **COMPARISON WITH OTHER COUNTRIES** While the **Margin of Appreciation** is predominantly associated with the **ECtHR**, similar concepts exist elsewhere. In the **United Kingdom**, for instance, courts may exercise judicial deference, acknowledging the discretionary area of judgment afforded to public authorities. In **India**, the judiciary employs the **Doctrine of Proportionality**, which serves a comparable function by ensuring that administrative actions do not infringe upon **fundamental rights** more than necessary. ## **RELATIONSHIP WITH OTHER CONCEPTS** The **Doctrine of Margin of Appreciation** is closely related to the principles of **subsidiarity** and **proportionality**. Subsidiarity emphasizes that decisions should be made at the most immediate level consistent with their resolution, while proportionality ensures that measures taken are appropriate and not excessive concerning the pursued objective. Together, these doctrines strive to balance **individual rights** with **collective interests**, allowing for national discretion within the framework of international human rights obligations. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** The application of the **Margin of Appreciation** involves several key elements: - **Legitimate Aim**: The state’s action must pursue a legitimate objective, such as **national security**, **public safety**, or the **protection of morals**. - **Necessity**: The measure should be necessary in a democratic society, addressing a pressing social need. - **Proportionality**: There must be a reasonable relationship between the means employed and the intended aim. - **European Consensus**: The existence or absence of a consensus among European states on the issue can influence the breadth of the margin allowed. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** Although the **European Convention on Human Rights** does not explicitly mention the **Margin of Appreciation**, it has been developed through the Court’s jurisprudence. The doctrine is applied on a case-by-case basis, considering factors such as the **right in question**, the **context of the interference**, and the presence of a **European consensus**. The Court assesses whether national authorities have remained within their discretion or have overstepped, leading to a potential violation of the Convention. ## **CASE LAWS / PRECEDENTS** 1. **Handyside v. United Kingdom** *(1976) 1 EHRR 737*: This case involved the confiscation of a book deemed obscene by UK authorities. The **ECtHR** upheld the state’s actions, emphasizing that national authorities have a **margin of appreciation** in matters concerning public morals. 2. **Sunday Times v. United Kingdom** *(1979) 2 EHRR 245*: The Court recognized the **margin of appreciation** concerning restrictions on **freedom of expression**, balancing it against the need to maintain the authority of the judiciary. 3. **Otto-Preminger-Institut v. Austria** *(1994) 19 EHRR 34*: In this case, the seizure of a film considered offensive to religious beliefs was contested. The Court allowed a wide **margin of appreciation**, acknowledging the state’s role in protecting religious sensibilities. ## **INTERPRETATIONS / EXPLANATIONS** The **Margin of Appreciation** is not a carte blanche for states to limit rights arbitrarily. The **ECtHR** maintains supervisory jurisdiction to ensure that restrictions are not disproportionate or unnecessary. The doctrine serves to respect national differences while upholding the fundamental principles of the Convention. ## **DOCTRINES / THEORIES** The **Doctrine of Margin of Appreciation** aligns with the principle of **judicial deference**, where international courts recognize the primary role of national authorities in certain domains. It also intersects with the **Living Instrument doctrine**, which interprets the Convention as a dynamic document that adapts to evolving societal standards. ## **MAXIMS / PRINCIPLES** The application of the **Margin of Appreciation** reflects the maxim **“In dubio pro libertate”** (*When in doubt, for freedom*), as it seeks to balance state intervention with individual freedoms. However, it also embodies **“In dubio pro auctoritate”** (*When in doubt, for authority*) when deference to national authorities is deemed appropriate. ## **CRITICISM / APPRECIATION** The doctrine has faced criticism for potentially allowing states to justify **human rights infringements** under the guise of national discretion. Critics argue that it can lead to inconsistent application and undermine the **universality of human rights**. Conversely, proponents appreciate its role in accommodating **cultural diversity** and **national sovereignty** within the human rights framework. ## **APPLICATION IN INDIAN CONTEXT** While the **Margin of Appreciation** is specific to the **ECtHR**, Indian courts have employed similar principles through the **Doctrine of Proportionality**. This doctrine ensures that any restriction on **fundamental rights** by the state is proportionate to the need it addresses. For instance, in ***Modern Dental College and Research Centre v. State of Madhya Pradesh (2016) 7 SCC 353***, the **Supreme Court** applied the proportionality test to assess the validity of regulations on private educational institutions. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Subsidiarity](https://lawfoyer.in/doctrine-of-subsidiarity/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Subsidiarity is a principle in governance that advocates for decisions to be made at the most immediate or local level capable of addressing matters effectively. It posits that higher authorities should intervene only when issues cannot be resolved by lower tiers. **Content:** ## **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Subsidiarity** is a principle in governance that advocates for decisions to be made at the most immediate or local level capable of addressing matters effectively. It posits that higher authorities should intervene only when issues cannot be resolved by lower tiers. This approach ensures that governance remains close to the people, promoting **efficiency, accountability, and responsiveness**. In the Indian context, this doctrine underscores the importance of empowering local self-governments, such as **Panchayats and Municipalities**, to handle local affairs, thereby enhancing **democratic participation and administrative efficiency**. ## **HISTORICAL BACKGROUND / EVOLUTION** The concept of **subsidiarity** has roots in **Catholic social teaching**, particularly articulated in **Pope Pius XI’s 1931 encyclical “Quadragesimo Anno”**, which emphasized that higher-order societies should not interfere with the functions of lower-order societies unless necessary. In India, the principle found resonance with the decentralization efforts post-independence, culminating in the **73rd and 74th Constitutional Amendments** in 1992. These amendments institutionalized **Panchayati Raj Institutions (PRIs)** and **Urban Local Bodies (ULBs)**, respectively, embedding the essence of subsidiarity by devolving powers and responsibilities to local governments. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** The **73rd and 74th Amendments** introduced **Part IX and IX-A** to the Indian Constitution, detailing the structure, powers, and functions of PRIs and ULBs. Key provisions include: - **Article 243G**: Empowers **Panchayats** to function as institutions of self-government and authorizes them to prepare and implement plans for **economic development** and **social justice** concerning matters listed in the **Eleventh Schedule**. - **Article 243W**: Grants similar powers to **Municipalities** concerning matters in the **Twelfth Schedule**. - **Eleventh Schedule**: Enumerates 29 subjects, including **agriculture, education, and health**, under the purview of **Panchayats**. - **Twelfth Schedule**: Lists 18 subjects, such as **urban planning and public health**, for **Municipalities**. These provisions aim to operationalize the **subsidiarity principle** by assigning specific functions to local bodies, ensuring that matters best handled locally are entrusted to them. ## **GUIDELINES / RULES / REGULATIONS / NOTIFICATIONS / CIRCULARS** To operationalize the **subsidiarity principle**, both the central and state governments have issued various guidelines and regulations: - **State Panchayati Raj Acts**: Each state has enacted legislation detailing the powers, functions, and responsibilities of **Panchayats**, aligning with the constitutional mandate. - **Municipal Acts**: Similar statutes exist for **Urban Local Bodies**, specifying their roles and duties. - **Finance Commission Recommendations**: Both central and state **Finance Commissions** provide guidelines on the financial devolution to local bodies, ensuring they have adequate resources to perform their functions effectively. These instruments collectively facilitate the practical application of the **subsidiarity principle** in India’s federal structure. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** Several judicial pronouncements have reinforced the **doctrine of subsidiarity** in India: - **Union of India v. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1**: The **Supreme Court** emphasized the importance of decentralization and the role of specialized tribunals, underscoring that matters should be addressed at the most appropriate level of governance. - **State of U.P. v. Pradhan Sangh Kshettra Samiti, (1995) Supp (2) SCC 305**: The Court highlighted the significance of empowering local bodies, stating that true democracy can only be achieved through **decentralization** and **local self-governance**. These judgments affirm the constitutional mandate of **subsidiarity**, promoting **local governance** and participatory democracy. ## **INTERPRETATIONS / EXPLANATIONS** The **subsidiarity principle** in India is interpreted as a means to: - **Enhance Democratic Participation**: By bringing governance closer to the people, it encourages active citizen involvement in decision-making processes. - **Improve Administrative Efficiency**: Local bodies are better positioned to understand and address local issues promptly and effectively. - **Ensure Accountability**: Proximity to the electorate makes local authorities more accountable for their actions and decisions. These interpretations align with the objectives of the **73rd and 74th Amendments**, aiming to strengthen grassroots democracy in India. ## **DOCTRINES / THEORIES** The **Doctrine of Subsidiarity** complements other constitutional doctrines, such as: - **Doctrine of Separation of Powers**: While this doctrine separates the functions of the executive, legislature, and judiciary, **subsidiarity** focuses on the distribution of powers within the executive branch, advocating for decentralization to local authorities. - **Doctrine of Federalism**: **Subsidiarity** reinforces federal principles by promoting autonomy and decision-making at sub-national levels, ensuring a balance between **centralization** and **decentralization**. These doctrines collectively contribute to a balanced and efficient governance framework in India. ## **MAXIMS / PRINCIPLES** The principle of **subsidiarity** aligns with the Latin maxim **“Proximus sum egomet mihi,”** meaning “I am closest to myself,” emphasizing that matters should be handled by the smallest, lowest, or least centralized competent authority. ## **AMENDMENTS / ADDITIONS / REPEALING** The **73rd and 74th Constitutional Amendments** were pivotal in embedding the **subsidiarity principle** in India’s governance structure. These amendments added **Parts IX and IX-A** to the Constitution, along with the **Eleventh and Twelfth Schedules**, detailing the powers and responsibilities of local bodies. These changes marked a significant shift towards **decentralized governance**, empowering local institutions to function as self-governing entities. ## **CRITICISM / APPRECIATION** While the **subsidiarity principle** has been lauded for promoting **local governance**, certain criticisms have emerged: - **Capacity Constraints**: Local bodies often face challenges due to **limited administrative and financial capacities**, hindering effective service delivery. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Federal Supremacy](https://lawfoyer.in/doctrine-of-federal-supremacy/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Federal Supremacy ensures that in conflicts between Union and State laws, the Union law prevails, maintaining constitutional balance. **Content:** The **Doctrine of Federal Supremacy** ensures that in conflicts between Union and State laws, the Union law prevails, maintaining constitutional balance. ### **MEANING AND EXPLANATION** In India’s quasi-federal structure, both Union and State governments derive authority from the Constitution. The **Doctrine of Federal Supremacy** addresses conflicts between Union and State laws, ensuring national coherence. **Article 246** of the Constitution delineates legislative powers through three lists in the **Seventh Schedule**: - **Union List**: Subjects exclusively for Parliament, such as **defense** and **foreign affairs**. - **State List**: Subjects for State Legislatures, like **police** and **public health**. - **Concurrent List**: Subjects where both can legislate, including **criminal law** and **marriage**. In Concurrent List conflicts, **Article 254** stipulates that **Union law prevails unless the State law**, having received **Presidential assent**, overrides the Union law within that state. However, **Parliament** can supersede such State laws by enacting new legislation. ### **HISTORICAL BACKGROUND** The **Government of India Act, 1935**, introduced a federal structure with separate legislative lists, influencing the current constitutional framework. Post-independence, the framers adopted this model, embedding the supremacy of Union laws to maintain national unity. ### **COMPARISON WITH OTHER COUNTRIES** In the **United States**, the **Supremacy Clause (Article VI)** establishes **federal law** as the supreme law, overriding state laws. Similarly, in **Canada**, **federal laws prevail** in conflicts with provincial laws. India’s model aligns with these systems but incorporates unique features to address its specific socio-political context. ### **LEGAL PROVISIONS AND PROCEDURES** - **Article 246**: Allocates legislative subjects between Union and States. - **Article 254**: Addresses inconsistencies between Union and State laws on Concurrent List subjects, granting precedence to Union laws. - **Seventh Schedule**: Details the Union, State, and Concurrent Lists, specifying subjects under each jurisdiction. ### **CASE LAWS AND PRECEDENTS** - **State of West Bengal v. Union of India, AIR 1963 SC 1241**: The Supreme Court held that the legislative and executive powers of States are subject to the Union’s supreme powers, emphasizing the Constitution’s centralized nature. - **Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019**: The Court clarified that in cases of **repugnancy** between Union and State laws on Concurrent List subjects, Union law prevails unless the State law has received **Presidential assent**. - **S.R. Bommai v. Union of India, AIR 1994 SC 1918**: This case reinforced the principles of **federalism** and the conditions under which State governments can be dismissed, underscoring the balance between Union and State powers. ### **DOCTRINES AND PRINCIPLES** - **Doctrine of Pith and Substance**: Determines the true nature of legislation to ascertain under which list it falls, used when a law’s subject matter is disputed. - **Doctrine of Colorable Legislation**: Prevents legislatures from enacting laws that, while appearing to be within their jurisdiction, in reality, encroach upon the domain of another legislature. ### **MAXIMS** - **Lex superior derogat legi inferiori**: A higher law overrides a lower one; in this context, **Union laws supersede State laws** in case of conflict. ### **AMENDMENTS AND ADDITIONS** The **42nd Amendment Act of 1976** transferred five subjects from the State List to the Concurrent List, enhancing Union authority in certain areas. These subjects include **education**, **forests**, and **administration of justice**. ### **CRITICISM AND APPRECIATION** While the **Doctrine of Federal Supremacy** ensures national unity and legal uniformity, critics argue it may undermine **State autonomy**. However, proponents assert that it is essential for maintaining the integrity and sovereignty of the nation, preventing legal chaos and ensuring cohesive governance. ### **FLOWCHART: RESOLUTION OF CONFLICT BETWEEN UNION AND STATE LAWS** ```mermaid graph TDA[Conflict Between Union and State Law] --> B{Subject Matter}B -->|Union List| C[Union Law Prevails]B -->|State List| D[State Law Prevails]B -->|Concurrent List| E{Consistency Check}E -->|Consistent| F[Both Laws Operate]E -->|Inconsistent| G[Union Law Prevails]G -->|State Law with Presidential Assent| H[State Law Prevails in that State]H --> I[Parliament May Override by New Law] ``` ### **TABLE: COMPARISON OF LEGISLATIVE POWERS** **Aspect****Union Government****State Government****Exclusive Powers****Defense**, **Foreign Affairs**, **Atomic Energy****Police**, **Public Health**, **Agriculture****Concurrent Powers****Criminal Law**, **Marriage**, **Bankruptcy****Criminal Law**, **Marriage**, **Bankruptcy****Residuary Powers**Vested in **Parliament**None**Conflict Resolution****Union law prevails**; State law may prevail with **Presidential assent** in specific cases**State law prevails** in State List matters; subject to Union supremacy in conflicts### **CONCLUSION** The **Doctrine of Federal Supremacy** is pivotal in India’s constitutional framework, ensuring a harmonious balance between Union and State legislations. It upholds the supremacy of Union laws in conflicts, maintaining national integrity while respecting the federal structure. Understanding this doctrine is essential for comprehending the legislative dynamics and the interplay of powers within the Indian legal system. ### **REFERENCES** 1. **State of West Bengal v. Union of India, AIR 1963 SC 1241**. 2. **Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019**. 3. **S.R. Bommai v. Union of India, AIR 1994 SC 1918**. 4. Constitution of India, **Articles 246 and 254**. 5. The Constitution (**Forty-Second Amendment**) Act, 1976. 6. “Principle of Federal Supremacy in India,” Leverage Edu. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Implied Limitations](https://lawfoyer.in/doctrine-of-implied-limitations/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Implied Limitations asserts that certain fundamental aspects of a constitution cannot be altered or destroyed through amendments, even if the constitution does not explicitly prohibit such changes. In India, this doctrine has been pivotal in preserving the core principles of the Constitution, ensuring that amendments do not undermine its foundational structure. **Content:** The **Doctrine of Implied Limitations** asserts that certain fundamental aspects of a constitution cannot be altered or destroyed through amendments, even if the constitution does not explicitly prohibit such changes. In India, this doctrine has been pivotal in preserving the core principles of the Constitution, ensuring that amendments do not undermine its foundational structure. ## **MEANING, DEFINITION & EXPLANATION** The **Doctrine of Implied Limitations** posits that while a constitution may grant the legislature the power to amend its provisions, this power is inherently limited. Certain essential features—such as the **rule of law**, **separation of powers**, and **fundamental rights**—are so integral to the constitution’s identity that they cannot be abrogated or altered. This ensures the preservation of the constitution’s core philosophy and prevents the erosion of its foundational principles. ## **HISTORICAL BACKGROUND / EVOLUTION** The evolution of this doctrine in India is closely linked to the **Basic Structure Doctrine**. The concept of **implied limitations** gained prominence through judicial interpretations, particularly in landmark cases that examined the extent of Parliament’s amending powers. The journey of this doctrine from the theory of implied limitations to its current form has been instrumental in maintaining the thicker concept of the **rule of law**, without which the constitution would be but a dead letter law. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 368** of the Indian Constitution grants Parliament the power to amend the Constitution. However, the scope of this power has been interpreted by the judiciary to exclude amendments that would alter the Constitution’s **basic structure**. This interpretation serves as an **implied limitation** on Parliament’s amending authority, ensuring that the Constitution’s fundamental principles remain inviolable. ## **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** 1. **Kesavananda Bharati v. State of Kerala (1973)**: This landmark case established the **Basic Structure Doctrine**, asserting that while Parliament has wide powers to amend the Constitution, it cannot alter its basic structure. The Court held that certain fundamental features, such as the **supremacy of the Constitution**, **republican and democratic form of government**, **secularism**, **separation of powers**, and **federalism**, are beyond the amending power of Parliament. 2. **Indira Nehru Gandhi v. Raj Narain (1975)**: The Supreme Court applied the **Basic Structure Doctrine** to invalidate Clause 4 of the **39th Amendment**, which sought to place the election of the Prime Minister beyond judicial scrutiny. The Court held that such an amendment violated the principle of **free and fair elections**, a fundamental feature of the Constitution. 3. **Minerva Mills Ltd. v. Union of India (1980)**: The Court struck down clauses of the **42nd Amendment** that sought to exclude **judicial review** of constitutional amendments, reaffirming that **judicial review** is a basic feature of the Constitution. 4. **I.R. Coelho v. State of Tamil Nadu (2007)**: The Supreme Court held that laws placed under the **Ninth Schedule** after April 24, 1973, are subject to **judicial review** if they violate the **basic structure** of the Constitution, emphasizing that even constitutional amendments are subject to **implied limitations**. ## **DOCTRINES / THEORIES** - **Basic Structure Doctrine**: Asserts that certain fundamental features of the Constitution cannot be altered by amendments. This doctrine is a manifestation of the **Doctrine of Implied Limitations**, ensuring the preservation of the Constitution’s core principles. ## **MAXIMS / PRINCIPLES** - **“Salus populi suprema lex”**: The welfare of the people is the supreme law. This principle underscores the rationale behind **implied limitations**, ensuring that amendments do not harm the **fundamental rights** and **freedoms** of the populace. ## **CRITICISM / APPRECIATION** While the **Doctrine of Implied Limitations** has been lauded for protecting the Constitution’s core values, it has also faced criticism. Some scholars argue that it represents **judicial overreach**, allowing unelected judges to override the will of the legislature. Others contend that it is essential for maintaining **constitutional sanctity** and preventing **authoritarianism**. ## **CONCLUSION** The **Doctrine of Implied Limitations** serves as a crucial safeguard in Indian constitutional law, ensuring that the Constitution’s fundamental principles remain intact. Through judicial interpretations and landmark judgments, this doctrine has reinforced the inviolability of the Constitution’s **basic structure**, balancing the need for constitutional adaptability with the preservation of its core values. ## **REFERENCES** 1. **Kesavananda Bharati v. State of Kerala**, (1973) 4 SCC 225. 2. **Indira Nehru Gandhi v. Raj Narain**, 1975 Supp SCC 1. 3. **Minerva Mills Ltd. v. Union of India**, (1980) 3 SCC 625. 4. **I.R. Coelho v. State of Tamil Nadu**, (2007) 2 SCC 1. 5. “Vicissitudes and Limitations of the Doctrine of Basic Structure,” **Indian Law Institute**. 6. “Kesavananda Bharati v. State of Kerala,” **Wikipedia**. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Basic Features](https://lawfoyer.in/doctrine-of-basic-features/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Basic Structure is a judicial principle in Indian constitutional law that ensures certain fundamental features of the Constitution remain unaltered, even by parliamentary amendments. This doctrine maintains the Constitution's core principles, safeguarding its integrity against potential legislative overreach **Content:** The Doctrine of Basic Structure is a judicial principle in Indian constitutional law that ensures certain fundamental features of the Constitution remain unaltered, even by parliamentary amendments. This doctrine maintains the Constitution’s core principles, safeguarding its integrity against potential legislative overreach. ### **MEANING, DEFINITION & EXPLANATION** The Doctrine of Basic Structure posits that while Parliament holds the authority to amend the Constitution under **Article 368**, it cannot alter or destroy its **essential features**. This ensures the Constitution’s foundational principles remain intact, preserving its original spirit. The Supreme Court introduced this doctrine in the landmark case of ***Kesavananda Bharati v. State of Kerala***, **AIR 1973 SC 1461**, establishing that amendments should not distort the Constitution’s basic structure. ### **HISTORICAL BACKGROUND / EVOLUTION** The evolution of this doctrine is marked by several pivotal cases: - ***Shankari Prasad v. Union of India (1951):*** The Supreme Court upheld Parliament’s power to amend any part of the Constitution, including **Fundamental Rights**, under **Article 368**. - ***Sajjan Singh v. State of Rajasthan (1965):*** The Court reaffirmed its stance from *Shankari Prasad*, allowing amendments to **Fundamental Rights**. - ***Golaknath v. State of Punjab (1967):*** Reversing its earlier position, the Court ruled that Parliament could not amend **Fundamental Rights**, granting them a “transcendental position.” - ***Kesavananda Bharati v. State of Kerala (1973):*** This landmark judgment introduced the **Basic Structure Doctrine**, asserting that while Parliament can amend the Constitution, it cannot alter its **fundamental framework**. - ***Indira Nehru Gandhi v. Raj Narain (1975):*** The Court applied the doctrine to strike down clauses of the **39th Amendment**, which sought to place the Prime Minister’s election beyond judicial scrutiny. - ***Minerva Mills Ltd. v. Union of India (1980):*** The Court reaffirmed the doctrine, invalidating sections of the **42nd Amendment** that granted unlimited amending power to Parliament, emphasizing that such power cannot destroy the Constitution’s basic structure. ### **ESSENTIALS / ELEMENTS / PRE-REQUISITES** While the Supreme Court has not exhaustively defined the **basic structure**, it has identified several key elements: - **Supremacy of the Constitution:** The Constitution stands as the ultimate legal authority. - **Republican and Democratic Form of Government:** India’s governance is based on **democratic principles**. - **Secular Character of the Constitution:** The state maintains neutrality in religious matters. - **Separation of Powers:** Distinct functions and powers are allocated to the **Executive, Legislature, and Judiciary**. - **Federal Character of the Constitution:** A clear division of powers exists between the central and state governments. - **Unity and Integrity of the Nation:** The nation’s **indivisibility** is paramount. - **Sovereignty of India:** India’s **independence and self-governance** are fundamental. ### **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** **Article 368** of the Indian Constitution grants Parliament the power to amend the Constitution. However, the **Basic Structure Doctrine** imposes implicit limitations on this power, ensuring that amendments do not alter the Constitution’s **fundamental framework**. This judicially crafted doctrine serves as a safeguard against potential misuse of the amending power, maintaining the Constitution’s core principles. ### **CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS** - ***Kesavananda Bharati v. State of Kerala (1973):*** The petitioner, Kesavananda Bharati, challenged the Kerala government’s attempts to acquire the Mutt’s property under the **Kerala Land Reforms Act**. The Supreme Court held that while Parliament has wide powers to amend the Constitution, it cannot alter its **basic structure**. - ***Indira Nehru Gandhi v. Raj Narain (1975):*** Following the **1971 general elections**, Raj Narain challenged Indira Gandhi’s election, alleging electoral malpractices. During the proceedings, the **39th Amendment** was enacted, placing the Prime Minister’s election beyond judicial review. The Supreme Court struck down this provision, applying the **Basic Structure Doctrine** to uphold the principle of **free and fair elections**. - ***Minerva Mills Ltd. v. Union of India (1980):*** Minerva Mills challenged the constitutionality of certain sections of the **42nd Amendment**, which sought to give precedence to the **Directive Principles** over **Fundamental Rights**. The Supreme Court held that the amendment violated the **Basic Structure** by distorting the balance between **Fundamental Rights** and **Directive Principles**, thus reaffirming the doctrine. ### **DOCTRINES / THEORIES** The **Basic Structure Doctrine** is a judicial innovation that emerged to protect the core principles of the Constitution from arbitrary amendments. This doctrine, developed by the Indian judiciary, establishes certain principles as immutable, forming the bedrock of the Constitution. ### **MAXIMS / PRINCIPLES** The doctrine embodies the principle of **constitutional supremacy**, ensuring that the Constitution’s **core values** are preserved against potential legislative encroachments. It upholds the idea that while the Constitution is a living document, its **foundational principles** must remain inviolable. ### **AMENDMENTS / ADDITIONS / REPEALING** The **42nd Amendment** attempted to curtail judicial review and expand Parliament’s amending power, challenging the **Basic Structure Doctrine**. However, the Supreme Court, in the ***Minerva Mills case***, struck down these provisions, reinforcing the doctrine’s authority. ### **CRITICISM / APPRECIATION** The **Basic Structure Doctrine** has been both lauded and criticized: - **Appreciation:** It acts as a safeguard against potential misuse of parliamentary power, ensuring that amendments do not alter the Constitution’s **fundamental essence**. This doctrine upholds the **supremacy of the Constitution** and maintains the balance between **flexibility** and **rigidity**, allowing controlled changes. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Essential Features](https://lawfoyer.in/doctrine-of-essential-features/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The Doctrine of Essential Features, commonly known as the Basic Structure Doctrine, is a pivotal principle in Indian constitutional law. It asserts that certain fundamental aspects of the Constitution are so integral that even Parliament cannot amend them. This doctrine ensures the preservation of the Constitution's core ideals, safeguarding the democratic framework and preventing potential legislative overreach. **Content:** The **Doctrine of Essential Features**, commonly known as the **Basic Structure Doctrine**, is a pivotal principle in Indian constitutional law. It asserts that certain fundamental aspects of the Constitution are so integral that even Parliament cannot amend them. This doctrine ensures the preservation of the Constitution’s core ideals, safeguarding the democratic framework and preventing potential legislative overreach. ### **MEANING, DEFINITION & EXPLANATION** The **Basic Structure Doctrine** posits that while Parliament holds the authority to amend the Constitution under **Article 368**, this power is not absolute. Amendments that alter or destroy the Constitution’s **‘basic structure’** are deemed unconstitutional. The **Supreme Court of India** introduced this doctrine in the landmark case of **Kesavananda Bharati v. State of Kerala**, **AIR 1973 SC 1461**. In this case, the Court ruled that Parliament could amend any part of the Constitution as long as such amendments did not alter its fundamental framework. Justice **H.R. Khanna** emphasized that the Constitution’s basic structure rests on the dignity and freedom of its citizens, which cannot be destroyed by any legislation. ### **HISTORICAL BACKGROUND / EVOLUTION** The evolution of the **Basic Structure Doctrine** can be traced through several landmark judgments: - **Shankari Prasad v. Union of India (1951)**: The **Supreme Court** upheld the **First Amendment**, stating that Parliament’s amending power under **Article 368** included the authority to amend **Fundamental Rights**. - **Sajjan Singh v. State of Rajasthan (1965)**: The Court reaffirmed its stance from **Shankari Prasad**, allowing amendments to **Fundamental Rights**. However, Justice **J.R. Mudholkar**, in his dissent, hinted at the concept of inherent limitations on Parliament’s amending power, suggesting that the Constitution’s basic features might be beyond amendment. - **Golaknath v. State of Punjab (1967)**: Reversing its earlier decisions, the **Supreme Court** held that Parliament could not amend **Fundamental Rights**, granting them a “transcendental position.” This decision led to significant debates and the eventual formulation of the **Basic Structure Doctrine**. - **Kesavananda Bharati v. State of Kerala (1973)**: This landmark judgment introduced the **Basic Structure Doctrine**, asserting that while Parliament has wide powers to amend the Constitution, it cannot alter its basic structure. The Court identified several fundamental features, including the **supremacy of the Constitution**, **republican and democratic forms of government**, **secularism**, **separation of powers**, and **federalism**. - **Indira Nehru Gandhi v. Raj Narain (1975)**: The **Supreme Court** applied the **Basic Structure Doctrine** to strike down clauses of the **39th Amendment**, which sought to place the elections of the **Prime Minister** and **Speaker** beyond judicial scrutiny. The Court emphasized that such amendments violated the principles of **free and fair elections**, a core component of the Constitution’s basic structure. - **Minerva Mills Ltd. v. Union of India (1980)**: The Court reaffirmed the **Basic Structure Doctrine**, striking down clauses of the **42nd Amendment** that sought to curtail **judicial review** and granted unlimited amending power to Parliament. The judgment underscored that a limited amending power is itself a basic feature of the Constitution. ### **ESSENTIALS / ELEMENTS OF THE BASIC STRUCTURE** While the **Supreme Court** has not provided an exhaustive list of the Constitution’s basic features, several elements have been recognized through various judgments: - **Supremacy of the Constitution**: The Constitution is the supreme law of the land, and all laws and amendments must conform to its provisions. - **Rule of Law**: Every individual and institution is subject to the law, ensuring equality before the law. - **Separation of Powers**: The division of governance among the **legislative**, **executive**, and **judicial branches** prevents the concentration of power and ensures checks and balances. - **Federalism**: The distribution of power between the central government and the states maintains the federal character of the nation. - **Secularism**: The state maintains neutrality in religious matters, ensuring freedom of religion for all citizens. - **Democracy**: The democratic form of government ensures representation and participation of the people in governance. - **Judicial Review**: The judiciary’s power to review and invalidate laws and amendments that contravene the Constitution safeguards constitutional supremacy. - **Free and Fair Elections**: The integrity of the electoral process is essential for the functioning of a democratic polity. ### **CASE LAWS / PRECEDENTS** Several landmark judgments have shaped the **Basic Structure Doctrine**: - **Kesavananda Bharati v. State of Kerala (1973)**: As discussed, this case established the doctrine, limiting Parliament’s amending power concerning the Constitution’s basic structure. - **Indira Nehru Gandhi v. Raj Narain (1975)**: The Court invalidated the **39th Amendment**, emphasizing that **free and fair elections** are part of the basic structure. - **Minerva Mills Ltd. v. Union of India (1980)**: The judgment struck down parts of the **42nd Amendment**, reinforcing that a **limited amending power** is a basic feature of the Constitution. - **Waman Rao v. Union of India (1981)**: The **Supreme Court** reaffirmed the **Basic Structure Doctrine**, stating that amendments made after the **Kesavananda Bharati case** would be subject to **judicial review**. - **I.R. Coelho v. State of Tamil Nadu (2007)**: The Court held that laws placed under the **Ninth Schedule** after **Categories:** Articles, Constitutional Law --- ### [Doctrine of Non-Derogable Rights](https://lawfoyer.in/doctrine-of-non-derogable-rights/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** Non-derogable rights are fundamental human rights that cannot be suspended or limited, even during emergencies. These rights are essential to human dignity and are protected universally. In India, the Constitution and international treaties uphold these rights, ensuring their inviolability under all circumstances. **Content:** Non-derogable rights are **fundamental human rights** that cannot be suspended or limited, even during emergencies. These rights are **essential to human dignity** and are protected universally. In India, the **Constitution** and **international treaties** uphold these rights, ensuring their inviolability under all circumstances. ## **MEANING AND DEFINITION** *Non-derogable rights* are those rights that cannot be suspended or restricted, even in times of public emergency. They are considered **essential to the protection of human dignity** and are recognized in various **international human rights instruments**. ## **INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)** The **ICCPR**, to which India is a signatory, outlines specific non-derogable rights in **Article 4(2):** - **Right to Life (Article 6):** Every human being has the **inherent right to life**, protected by law. No one shall be arbitrarily deprived of life. - **Freedom from Torture (Article 7):** No one shall be subjected to **torture or to cruel, inhuman, or degrading treatment or punishment**. - **Freedom from Slavery (Article 8):** Prohibition of **slavery, slave trade, and servitude** in all forms. - **Right to Recognition before the Law (Article 16):** Everyone has the right to be recognized as a **person before the law**. - **Freedom of Thought, Conscience, and Religion (Article 18):** Everyone has the right to **freedom of thought, conscience, and religion**. ## **NON-DEROGABLE RIGHTS IN THE INDIAN CONSTITUTION** The **Constitution of India** embodies principles akin to non-derogable rights: - **Right to Life and Personal Liberty (Article 21):** No person shall be deprived of **life or personal liberty** except according to the procedure established by law. - **Prohibition of Traffic in Human Beings and Forced Labour (Article 23):** **Trafficking in human beings**, begar, and other similar forms of forced labor are prohibited. - **Freedom of Conscience and Free Profession, Practice, and Propagation of Religion (Article 25):** All persons are equally entitled to **freedom of conscience** and the right to freely profess, practice, and propagate religion. ## **JUDICIAL INTERPRETATION IN INDIA** The **Indian judiciary** has reinforced the sanctity of these rights through various judgments: - **Maneka Gandhi v. Union of India, AIR 1978 SC 597:** The **Supreme Court** expanded the interpretation of **Article 21**, emphasizing that the **procedure established by law** must be just, fair, and reasonable, thereby strengthening the protection of life and personal liberty. - **Sunil Batra v. Delhi Administration, AIR 1978 SC 1675:** The Court held that **prisoners retain their fundamental rights**, including the right to life and dignity, and that any form of **torture or inhuman treatment** is unconstitutional. ## **INTERNATIONAL PERSPECTIVES** Globally, *non-derogable rights* are upheld to maintain human dignity: - **Universal Declaration of Human Rights (UDHR):** **Articles 3, 4, and 5** correspond to the **rights to life, freedom from slavery, and freedom from torture**, respectively. - **European Convention on Human Rights (ECHR):** **Article 15(2)** specifies rights that cannot be derogated from, even in times of emergency. ## **CONCLUSION** *Non-derogable rights* form the **bedrock of human rights jurisprudence**, ensuring that certain **fundamental freedoms** remain protected under all circumstances. In India, both **constitutional provisions** and **judicial interpretations** have reinforced the inviolability of these rights, aligning with **international human rights standards**. **Categories:** Articles, Constitutional Law --- ### [Doctrine of Horizontal and Vertical Application of Rights](https://lawfoyer.in/doctrine-of-horizontal-and-vertical-application-of-rights/) **Published:** December 26, 2024 **Author:** LawFoyer **Excerpt:** The doctrines of horizontal and vertical application of rights delineate the scope and enforcement of fundamental rights within a legal system. In India, these doctrines determine whether individuals can invoke constitutional rights solely against the state (vertical application) or also against other private individuals and entities (horizontal application). **Content:** The doctrines of horizontal and vertical application of rights delineate the scope and enforcement of fundamental rights within a legal system. In India, these doctrines determine whether individuals can invoke constitutional rights solely against the state (**vertical application**) or also against other private individuals and entities (**horizontal application**). ## **MEANING, DEFINITION & EXPLANATION** - ***Vertical Application of Rights***: This traditional approach allows individuals to enforce fundamental rights against the state or its instrumentalities. The Indian Constitution primarily envisages this model, where citizens seek protection from state actions that infringe upon their rights. For instance, **Article 12** defines “the State,” encompassing government bodies against which fundamental rights can be claimed. - ***Horizontal Application of Rights***: This concept extends the enforcement of fundamental rights to disputes between private individuals or entities. It posits that certain rights should be upheld not only in the public sphere but also in private interactions. In the Indian context, while the Constitution predominantly supports vertical application, certain provisions imply horizontal applicability. ## **LEGAL PROVISIONS INDICATING HORIZONTAL APPLICATION** - **Article 15(2)**: **Prohibits discrimination** by the state and private individuals concerning access to shops, public restaurants, hotels, and places of public entertainment. This article explicitly extends fundamental rights into the private domain, preventing discriminatory practices by private entities. - **Article 17**: **Abolishes “untouchability”** and forbids its practice in any form. This provision applies horizontally, ensuring that private individuals do not engage in discriminatory practices based on untouchability. - **Articles 23 and 24**: **Prohibit human trafficking, forced labor, and child labor**, respectively. These articles are enforceable against both the state and private individuals, highlighting their horizontal applicability. ## **JUDICIAL INTERPRETATIONS AND CASE LAWS** - **Vishaka v. State of Rajasthan, AIR 1997 SC 3011**: - ***Facts***: A social worker was brutally gang-raped in a village in Rajasthan. The absence of legal recourse for workplace sexual harassment led to the filing of this petition. - ***Issue***: Whether the absence of legislation on sexual harassment violates fundamental rights, and if the court can frame guidelines to address this issue. - ***Held***: The Supreme Court acknowledged the violation of **Articles 14, 15, 19, and 21** due to sexual harassment at the workplace. It issued the Vishaka Guidelines, mandating employers to prevent and address sexual harassment, thus applying constitutional principles horizontally. - **PUDR v. Union of India, (1982) 3 SCC 235**: - ***Facts***: A public interest litigation was filed highlighting the exploitation of construction workers engaged in the Asian Games projects in Delhi, alleging non-payment of minimum wages. - ***Issue***: Whether non-payment of minimum wages amounts to forced labor under **Article 23**. - ***Held***: The Supreme Court ruled that payment below the minimum wage constitutes forced labor, violating **Article 23**. This decision emphasized that private contractors must adhere to constitutional mandates, showcasing horizontal application. ## **COMPARISON WITH OTHER COUNTRIES** - **United States**: The U.S. Constitution primarily follows the **state action doctrine**, limiting the application of constitutional rights to state actions. However, through judicial interpretations, certain rights have been extended to apply in private disputes, especially concerning civil rights and anti-discrimination laws. - **South Africa**: The South African Constitution explicitly provides for both vertical and horizontal application of rights. **Section 8(2)** states that provisions of the Bill of Rights bind natural and juristic persons if applicable, considering the nature of the right and duty imposed. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES FOR HORIZONTAL APPLICATION** 1. **Constitutional Provision**: The Constitution must explicitly or implicitly allow for rights to be enforced against private individuals. 2. **Judicial Interpretation**: Courts play a pivotal role in interpreting the extent to which rights apply horizontally, as seen in cases like **Vishaka**. 3. **Legislative Framework**: Laws enacted by the legislature can facilitate the horizontal application of rights, such as **anti-discrimination statutes**. ## **DOCTRINES / THEORIES RELATED TO HORIZONTAL APPLICATION** - **State Action Doctrine**: Predominantly used in the U.S., this doctrine limits the enforcement of constitutional rights to actions by the state, not private individuals. - **Public Function Theory**: If a private entity performs functions traditionally reserved for the state, constitutional rights may apply to its actions. - **Entanglement Theory**: When the state is significantly involved with a private entity, constitutional obligations may extend to that entity. ## **FUTURE IMPLICATIONS** The evolving interpretation of horizontal application in India suggests a broader enforcement of fundamental rights, ensuring protection against violations by private entities. This shift necessitates increased awareness among private individuals and organizations regarding their obligations under constitutional mandates. ## **CRITICISM / APPRECIATION** - **Criticism**: Opponents argue that extending fundamental rights horizontally may lead to **judicial overreach**, disrupting the balance between individual freedoms and state authority. - **Appreciation**: Proponents contend that in an era where private entities wield significant power, **horizontal application** is essential to safeguard individual rights comprehensively. ## **CONCLUSION** Understanding the doctrines of horizontal and vertical application of rights is crucial for comprehending the enforcement of fundamental rights in India. While the Constitution primarily envisages vertical application, **judicial interpretations** have progressively recognized horizontal applicability in specific contexts, ensuring a more comprehensive protection of individual rights. **Categories:** Articles, Constitutional Law --- ### [Call for Blogs - Centre for Law and Urban Development | NLUD](https://lawfoyer.in/call-for-blogs-centre-for-law-and-urban-development-nlud/) **Published:** December 27, 2024 **Author:** LawFoyer **Excerpt:** Call for Blogs - Centre for Law and Urban Development | NLUD **Content:** ## **About Centre for Law and Urban Development** The Centre for Law and Urban Development, National Law University Delhi, invites submissions for its blog series on a rolling basis. We welcome contributions from scholars, practitioners, policymakers, and students on various themes related to the intersection between law and urban development. The submissions should offer insightful analysis, critical perspectives, and innovative solutions on recent developments in the field. ## Rule Book & Official Notification **To access Rule Book & Official Notification**: [Click here](https://lawfoyer.in/wp-content/uploads/2024/12/CALL-FOR-BLOGS.pdf) ## **Themes** - The Constitutional Right to Shelter – Legal Mechanisms for Ensuring Affordable Housing in Urban Areas - Consumer Protection under RERA – A Comparison with International Best Practices for Real Estate Regulation - RERA Safeguards for Regulating Insolvency and Bankruptcy in the Real Estate Regime - Digital Infrastructure and the Smart Cities Model – Integrating Technology and Innovation for Efficient Living and Connectivity - Competition Law in Urban Development – Ensuring Fair Markets and Preventing Monopolistic Practices - Navigating Tax Laws and Urban Development – The Interplay of Property Taxation, Incentives, and Compliance Challenges - Regulating Public-Private Partnerships (PPPs) in Urban Infrastructure – Legal Challenges and Solutions - Analyzing the Legal Regime for Resolution of Land Acquisition - Integrating Sustainable Practices in Urban Planning – Creating Environmentally Resistant Cities - Promoting Socially Inclusive Urban Development – Ensuring Equity and Accessibility Under the Present Legal Framework Please note that the above themes are only indicative and not exhaustive, and there is no strict requirement that the submission needs to fall under the above heads. The submissions need to compulsorily be analytical, and not descriptive in nature. ## **Nature** **of** **the** **Submissions** Word limit: Articles can be anywhere between 800 to 1500 words. In case a relaxation in word count is required, please write to us so that we can consider your request. Use of images: Images, graphs and tables may be used wherever necessary to illustrate a point. Authors are encouraged to include relevant case studies, empirical data, or policy analysis to support their arguments. Abstract: An abstract no longer than 50 words briefly describing the content of the blog needs to be sent along with the submission. Please note that the abstract should be sent separately and not as a part of the main blog. Author details: Please include a brief author bio of around 100 words along with a high resolution photo with the submission. A link to the LinkedIn Profile of the author (if existing) also needs to be attached. Co-authorship: Co-authorship of up to two authors is allowed. ## **Formatting** **and** **Referencing** **Guidelines** - The text needs to be formatted according to these guidelines: Font – Times New Roman, Font Size – 12, Line Spacing – 1.5, Paragraph Spacing – 6 above and 6 below. - Title must be Bold and Underlined. The text of the title must be in Sentence Case, not all caps or small caps. Heading 2 must be Bold and Heading 3 must be underlined. - Margins must be one inch from all sides. No borders are permitted. - Any supporting materials or legal materials used by the author need to be referenced through the use of hyperlinks, which need to be included in the body of the text. ## **Submission** **Guidelines** - The file needs to be only in the .doc / .docx format and must be named as “Title\_CLUD Blog”. The title must not exceed 10 words and must briefly describe the content of the blog. - Meta data of the file must not disclose any identification of the author, including name and institutional affiliation. - All submissions need to be mailed to [clud@nludelhi.ac.in ](mailto:clud@nludelhi.ac.in)with the subject line: “Submission for Centre for Law and Urban Development Blog Series.” ## **Plagiarism** **and** **Author** **Agreement** - Submissions need to be the original work of the author. The submissions will be screened by plagiarism and AI detection software, and if found to be unoriginal, will be rejected for publication. - The author is responsible for ensuring the accuracy of facts, opinions or views in the submission. - CLUD reserves the sole right to make decisions on the publication of any content submitted. Relaxation of any rules regarding submissions is subject to the discretion of the Centre. On publication, all literary rights to the submission are transferred to the Centre for Law and Urban Development, NLU Delhi. The call for submissions is ongoing, and contributions will be accepted on a rolling basis. Authors will be notified of the status of their submissions within two weeks from the date of submission. Adhering to all the formatting and submission guidelines is **mandatory**. We look forward to receiving your insightful contributions and fostering meaningful dialogue on the critical issues at the juncture of law and urban development. **Categories:** Call for Blogs --- ### [The Insurance Act, 1938: Key Provisions](https://lawfoyer.in/the-insurance-act-1938-key-provisions/) **Published:** December 20, 2024 **Author:** LawFoyer **Excerpt:** The Insurance Act, 1938, is a comprehensive legislation enacted to regulate the insurance sector in India. It provides a legal framework for the operation of insurance businesses, ensuring their orderly growth and protecting policyholders' interests. The Act encompasses various aspects, including registration, management, investments, and policyholder protections.... **Content:** ## **MEANING, DEFINITION & EXPLANATION** The **Insurance Act, 1938**, is a comprehensive legislation enacted to regulate the insurance sector in India. It provides a legal framework for the operation of insurance businesses, ensuring their orderly growth and protecting **policyholders’ interests**. The Act encompasses various aspects, including **registration, management, investments**, and **policyholder protections**. ## **HISTORICAL BACKGROUND / EVOLUTION** Before 1938, the Indian insurance industry lacked comprehensive regulation, leading to **malpractices** and **financial instability**. The **Insurance Act, 1938**, was introduced to address these issues, consolidating and amending existing laws to establish a robust regulatory framework. Over the years, the Act has undergone several amendments to adapt to the evolving insurance landscape, including significant changes in **1950, 1968, 2002, 2015**, and **2021**. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - ***Registration of Insurers***: **Section 3** mandates that no insurer can commence or continue insurance business without obtaining a **certificate of registration** from the **Insurance Regulatory and Development Authority of India (IRDAI)**. - ***Minimum Capital Requirements***: The Act prescribes minimum paid-up capital for insurers to ensure **financial stability**. For life and general insurance businesses, the requirement is ₹100 crore, while for health insurance, it’s ₹50 crore. - ***Deposits***: Insurers are required to deposit a specified sum with the **Reserve Bank of India** as security for policyholders. This ensures that insurers maintain a **financial buffer** to meet their obligations. - ***Solvency Margin***: Insurers must maintain a minimum **solvency margin**, which is the excess of assets over liabilities, to ensure they can meet their long-term obligations. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - ***Investments***: **Sections 27 and 27A** stipulate that insurers must invest their funds in **approved securities** to safeguard **policyholders’ interests**. This ensures that insurers’ investments are secure and capable of generating returns to meet future liabilities. - ***Prohibition of Rebates***: **Section 41** prohibits offering any **rebate of commission** or **premium** as an inducement to take out insurance. Violations can lead to **penalties**, ensuring **fair practices** in the industry. - ***Licensing of Agents***: **Section 42** requires that insurance agents obtain a **license to operate**, ensuring that only qualified individuals engage in soliciting insurance business. This provision aims to maintain **professionalism** and **ethical standards** among agents. - ***Policyholder Protection***: **Section 45** states that a life insurance policy cannot be contested after three years on any ground, providing **certainty and security** to policyholders. ## **CASE LAWS / PRECEDENTS** - **LIC of India vs. Consumer Education & Research Centre (1995)**: The **Supreme Court** held that the terms of insurance contracts must be **fair, just, and reasonable**, emphasizing the need for protecting **consumers’ interests** in insurance agreements. - **Smt. Shashi Gupta vs. LIC of India (1995)**: The court ruled that an insurance company cannot repudiate a claim on the grounds of **misstatement** after two years from the date of the policy, reinforcing the provisions of **Section 45**. ## **AMENDMENTS / ADDITIONS / REPEALING** - **Insurance Laws (Amendment) Act, 2015**: This amendment introduced significant changes, including increasing the **foreign direct investment (FDI)** limit in the insurance sector from **26% to 49%**, aiming to attract more **foreign capital** and **expertise** into the industry. - **Insurance (Amendment) Act, 2021**: The **FDI limit** was further increased to **74%**, reflecting the government’s intent to liberalize the sector and promote its growth. ## **GUIDELINES / RULES / REGULATIONS / NOTIFICATIONS / CIRCULARS** - ***IRDAI Regulations***: The **IRDAI** issues various regulations to operationalize the provisions of the **Insurance Act, 1938**. These include guidelines on **investment, solvency, corporate governance**, and **product approvals**, ensuring that the insurance industry operates in a **transparent** and **efficient** manner. ## **DOCTRINES / THEORIES** - ***Doctrine of Uberrima Fides (Utmost Good Faith)***: This principle underpins insurance contracts, requiring both parties to act in utmost good faith by disclosing all **material facts**. Non-disclosure or misrepresentation can lead to the **voiding of the contract**. - ***Doctrine of Indemnity***: Applicable primarily to general insurance, this doctrine ensures that the insured is compensated for the **actual loss suffered**, preventing **unjust enrichment**. ## **MAXIMS / PRINCIPLES** - ***Contra Proferentem Rule***: In cases of ambiguity in insurance contracts, this legal principle dictates that the interpretation should favor the insured, as the insurer is the one who drafted the contract. **Categories:** Articles --- ### [Introduction to Insurance Law in India](https://lawfoyer.in/introduction-to-insurance-law-in-india/) **Published:** December 20, 2024 **Author:** LawFoyer **Excerpt:** Insurance law in India governs the contractual relationship between insurers and insured parties, ensuring financial protection against unforeseen events. It operates on principles like utmost good faith and indemnity, with regulations established by the Insurance Regulatory and Development Authority of India (IRDAI). Key legislation includes the Insurance Act, 1938, and the IRDA Act, 1999.... **Content:** ## **INTRODUCTION TO INSURANCE LAW IN INDIA** Insurance law in India governs the contractual relationship between insurers and insured parties, ensuring financial protection against unforeseen events. It operates on principles like **utmost good faith** and **indemnity**, with regulations established by the **Insurance Regulatory and Development Authority of India (IRDAI)**. Key legislation includes the **Insurance Act, 1938**, and the **IRDA Act, 1999**. ## **MEANING, DEFINITION & EXPLANATION** **Insurance** is a contract where one party (**insurer**) agrees to compensate another (**insured**) for specific potential losses in exchange for a premium. This agreement provides financial security against uncertain events, distributing individual risks across a broader community. **HISTORICAL BACKGROUND / EVOLUTION** The Indian insurance sector began in 1818 with the establishment of the **Oriental Life Insurance Company** in Calcutta. The **Insurance Act of 1938** introduced comprehensive regulations. In 1956, life insurance was nationalized, forming the **Life Insurance Corporation of India (LIC)**. General insurance followed in 1972 with the creation of the **General Insurance Corporation (GIC)**. The sector reopened to private and foreign investment in 1999 with the formation of **IRDAI**. ## **TYPES OF INSURANCE** - **LIFE INSURANCE**: Provides a sum to beneficiaries upon the insured’s death or after a set period. - **GENERAL INSURANCE**: Covers non-life assets, including: - *Fire Insurance*: Protects against fire-related losses. - *Marine Insurance*: Covers losses related to maritime activities. - *Health Insurance*: Addresses medical expenses. - *Motor Insurance*: Pertains to vehicle-related damages and liabilities. ## **ESSENTIALS / ELEMENTS / PRE-REQUISITES** - **Insurable Interest**: The insured must have a financial stake in the insured subject. - **Utmost Good Faith (Uberrimae Fidei)**: Both parties must fully disclose all relevant information. - **Indemnity**: Ensures the insured is restored to their financial position prior to the loss. - **Subrogation**: After compensation, the insurer gains the insured’s legal rights to recover from third parties responsible for the loss. - **Proximate Cause (Causa Proxima)**: Determines the primary cause of loss to establish liability. ## **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** - **Insurance Act, 1938**: Provides the foundational legal framework for insurance operations in India. - **IRDA Act, 1999**: Established **IRDAI** to regulate and promote the insurance industry. - **Marine Insurance Act, 1963**: Governs marine insurance contracts. - **Motor Vehicles Act, 1988**: Mandates motor vehicle insurance for third-party liabilities. ## **CASE LAWS / PRECEDENTS** - **LIC of India v. G.M. Channabasemma, AIR 1991 SC 392**: The Supreme Court emphasized the principle of **utmost good faith**, stating that non-disclosure of material facts by the insured can render the policy voidable at the insurer’s discretion. - **General Assurance Society Ltd. v. Chandumull Jain, AIR 1966 SC 1644**: The Court held that **insurance contracts** are subject to special principles, including the duty of disclosure and the doctrine of indemnity. ## **DOCTRINES / THEORIES** - **Doctrine of Contribution**: If multiple insurers cover the same risk, they share the loss proportionally. - **Doctrine of Loss Minimization**: The insured must take reasonable steps to minimize the loss or damage to the insured property. ## **MAXIMS / PRINCIPLES** - **Uberrimae Fidei (Utmost Good Faith)**: Both parties must act with complete honesty and disclose all material facts. - **Causa Proxima (Nearest Cause)**: The proximate cause of the loss is considered to determine liability. ## **AMENDMENTS / ADDITIONS / REPEALING** - **Insurance Laws (Amendment) Act, 2015**: Increased the **foreign direct investment (FDI)** cap in the insurance sector from 26% to 49%. - **Insurance (Amendment) Act, 2021**: Further raised the **FDI limit to 74%**, aiming to attract more foreign investment and enhance sectoral growth. ## **STATISTICAL ANALYSIS / DATA ANALYSIS** As of 2024, India’s **insurance penetration** stands at approximately **4.2% of GDP**, indicating significant growth potential compared to the global average of **7.4%**. The life insurance segment dominates, accounting for about **75% of the total market premium**. ## **FUTURE IMPLICATIONS** The increasing **FDI limits** and regulatory reforms are expected to enhance competition, improve service quality, and lead to the introduction of innovative insurance products in the Indian market. ## **CRITICISM / APPRECIATION** While liberalization has attracted investment and improved efficiency, challenges remain in ensuring insurance reaches rural and underserved populations. Additionally, maintaining stringent regulatory oversight is crucial to protect policyholder interests amidst growing competition. ## **REFERENCES** 1. **Insurance Act, 1938**. 2. **Insurance Regulatory and Development Authority Act, 1999**. 3. **Marine Insurance Act, 1963**. 4. **Motor Vehicles Act, 1988**. 5. **LIC of India v. G.M. Channabasemma, AIR 1991 SC 392**. 6. **General Assurance Society Ltd. v. Chandumull Jain, AIR 1966 SC 1644**. 7. **Insurance Laws (Amendment) Act, 2015**. 8. **Insurance (Amendment) Act, 2021**. 9. “Guide to Understanding Insurance Law in India,” **Taxmann**. 10. “Introduction Of Insurance Law And Its Principles In India,” **ComplyBook**. 11. “Insurance-Law Notes (brief Notes),” **Studocu**. 12. “Guide to Understanding Insurance Law in India,” **LexisNexis Blogs**. 13. “Insurance Law – LLB Notes – Lecture Notes,” **Studocu**. 14. “Insurance Laws of India,” **Tax Guru**. 15. “A General Introduction to Insurance and Reinsurance Law in India,” **Lexology**. 16. “Overview of Insurance Laws in India,” **Tax Guru**. **Categories:** Articles --- ### [Introduction to Competition Law of India: History, Evolution, Basic Concepts, Terminologies and Principles](https://lawfoyer.in/introduction-to-competition-law-of-india-history-evolution-basic-concepts-terminologies-and-principles/) **Published:** December 12, 2024 **Author:** LawFoyer **Content:** ## HISTORICAL BACKGROUND The origins of competition law in India can be traced back to the colonial era, when the British government implemented several laws to regulate trade practices and monopolies. These early efforts laid the groundwork for future competition regulation in the country: - **The Companies Act of 1913** introduced **basic regulations for company formation and operations in India**. It established **rules for corporate governance, financial reporting, and shareholder rights**. While not specifically focused on competition, this Act set the stage for more comprehensive business regulation. - **The Trade Disputes Act of 1929** provided a framework for **settling industrial disputes between employers and workers**. This Act **indirectly impacted competition by regulating labor practices and working conditions across industries**. - **The Defense of India Act of 1939** granted the government **broad powers to control prices and production during wartime**. Though temporary, this Act demonstrated **the government’s ability to intervene in markets when deemed necessary for national interest**. After India gained independence in 1947, the country adopted a **socialist economic model** characterized by **heavy state control and central planning**. The government’s primary focus during this period was on **developing domestic industries rather than promoting competition**. This approach, known as the **“License Raj,”** involved **extensive government licenses, regulations, and red tape for businesses**. However, concerns about the **concentration of economic power in the hands of a few large business houses** began to emerge. This led to some initial steps towards competition regulation: - In 1964, the government established the **Monopolies Inquiry Commission** to examine the **extent of concentration of economic power and monopolistic practices in the Indian economy**. The Commission, chaired by **K.C. Dasgupta**, conducted a comprehensive study of **industrial concentration and its effects on the economy**. - Based on the Commission’s recommendations, the government enacted the **Monopolies and Restrictive Trade Practices Act (MRTP Act) in 1969**, marking **India’s first comprehensive competition legislation**. The **MRTP Act** had several key objectives: 1. **Preventing concentration of economic power to the common detriment** 2. **Controlling monopolies and their growth** 3. **Prohibiting monopolistic trade practices** 4. **Prohibiting restrictive trade practices** To implement these objectives, the **MRTP Act** established the **Monopolies and Restrictive Trade Practices Commission (MRTPC)** as the regulatory authority. The **MRTPC** was empowered to **investigate anti-competitive practices and issue orders to correct them**. However, the **MRTP Act** had several limitations that became apparent over time: 1. **It focused more on controlling big businesses rather than promoting competition.** The Act aimed to **limit the size of companies rather than encourage competitive behavior**. 2. **Its procedures were cumbersome and time-consuming.** Investigations and hearings under the **MRTP Act** often **dragged on for years**, reducing its effectiveness. 3. **It lacked teeth in terms of penalties and enforcement.** The **MRTPC** had **limited powers to impose meaningful penalties on violators**. 4. **The Act did not adequately address new forms of anti-competitive practices** that emerged in a **more globalized economy**. ## **SHIFT FROM MRTP ACT TO COMPETITION ACT** By the 1990s, it became increasingly clear that the **MRTP Act** was inadequate to deal with the new economic realities following **India’s economic liberalization**. The need for a **modern competition law** led to the enactment of the **Competition Act in 2002**. Several factors contributed to this shift: 1. **Economic reforms of 1991** opened up the **Indian economy to foreign investment and competition**. This new economic landscape required a **more sophisticated approach to competition regulation**. 2. **Globalization** required **Indian companies to be competitive internationally**. The **MRTP Act’s focus on limiting company size** was seen as **hindering Indian firms’ global competitiveness**. 3. **The MRTP Act’s emphasis on curbing monopolies was outdated.** The new focus was on **promoting fair competition rather than merely controlling large businesses**. 4. **India needed to align its competition law with international best practices** to attract **foreign investment** and participate effectively in the **global economy**. The process of drafting the new competition law involved **extensive consultations and deliberations**: - In October 1999, the government appointed a **high-level committee** under the chairmanship of **Shri S.V.S. Raghavan** to recommend a **modern competition law for India**. The committee conducted a **comprehensive review of competition laws worldwide** and consulted with **various stakeholders**. - The **Raghavan Committee** submitted its report in May 2000, proposing a **new law focused on promoting competition rather than controlling monopolies**. The report recommended establishing a new regulatory body, the **Competition Commission of India**. - Based on these recommendations, the **Competition Bill** was introduced in Parliament in August 2001. The bill underwent **extensive debate and scrutiny by various parliamentary committees**. - After incorporating several amendments, the **Competition Act** was finally passed by Parliament in December 2002 and received **presidential assent in January 2003**. **Key differences between the MRTP Act and Competition Act include:** 1. **Shift in focus from curbing monopolies to promoting competition:** The **Competition Act** aims to **create a competitive environment rather than simply limiting the size of businesses**. 2. **Wider definition of anti-competitive practices:** The new Act covers a **broader range of anti-competitive behaviors**, including **cartels and abuse of dominance**. 3. **Introduction of merger control regulations:** The **Competition Act** requires **pre-notification of mergers and acquisitions above certain thresholds**, allowing for review of their **potential impact on competition**. 4. **Establishment of the Competition Commission of India (CCI) as a more empowered regulatory body:** The **CCI** has **broader investigative powers** and can impose **significant penalties for violations**. 5. **Inclusion of competition advocacy as a key function:** The **CCI** is mandated to **promote competition awareness and advise the government on competition-related matters**. ## **OBJECTIVES AND NEED FOR COMPETITION LAW** The **Competition Act, 2002** was enacted with the following key objectives: 1. **To prevent practices having adverse effect on competition:** This includes **prohibiting anti-competitive agreements and abuse of dominant position**. 2. **To promote and sustain competition in markets:** The Act aims to **create an environment where businesses compete fairly and efficiently**. 3. **To protect the interests of consumers:** By **fostering competition**, the Act seeks to **ensure better prices, quality, and choices for consumers**. 4. **To ensure freedom of trade carried on by other participants in markets in India:** This objective aims to **maintain a level playing field for all market participants**. **The need for a robust competition law in India stems from several factors:** - **Economic Growth:** Competition drives **innovation, efficiency, and economic growth**. As India aims to become a **$5 trillion economy**, ensuring **fair competition is crucial for sustained growth and development**. - **Consumer Welfare:** Competition leads to **lower prices, better quality, and more choices for consumers**. **Competition law protects consumer interests by preventing exploitative practices** and promoting market efficiency. - **Market Efficiency:** **Competition law prevents abuse of dominance and anti-competitive agreements** that can **distort markets** and lead to **inefficient allocation of resources**. - **Foreign Investment:** A strong competition regime boosts **investor confidence** and attracts more **foreign investment** by ensuring a **fair and predictable business environment**. - **Globalization:** As **Indian companies expand globally**, they need to be **competitive in international markets**. Competition law creates a **level playing field** and prepares Indian firms for global competition. - **Technological Advancements:** With **rapid technological changes**, especially in **digital markets**, competition law needs to address **new forms of anti-competitive behavior** and ensure **innovation is not stifled**. **The Competition Act addresses these needs through provisions on:** 1. **Prohibition of anti-competitive agreements:** **Section 3** of the Act prohibits **agreements that cause or are likely to cause an appreciable adverse effect on competition in India**. 2. **Regulation of combinations (mergers and acquisitions):** **Sections 5 and 6** of the Act provide for **mandatory notification and review of combinations above certain thresholds**. 3. **Prevention of abuse of dominant position:** **Section 4** prohibits enterprises from **abusing their dominant position in the relevant market**. 4. **Competition advocacy:** **Section 49** mandates the **CCI to promote competition awareness** and advise the government on **competition matters**. ## **BASIC CONCEPTS, DEFINITIONS AND TERMINOLOGIES IN COMPETITION LAW** Competition law aims to **promote and maintain market competition** by regulating **anti-competitive conduct** by companies. The primary objectives of competition law in India include: - **Promoting and sustaining fair competition in markets** - **Protecting the interests of consumers** - **Ensuring freedom of trade for market participants** - **Preventing practices having an adverse effect on competition** - **Promoting economic efficiency and development** The **Competition Act, 2002** is the primary legislation governing competition law in India. It replaced the earlier **Monopolies and Restrictive Trade Practices Act, 1969**. The Act establishes the **Competition Commission of India (CCI)** as the statutory body responsible for enforcing competition law in the country. Certain very important terms, concepts, terminologies of Competition law are as follows: **1. RELEVANT MARKET** The concept of **“relevant market”** is crucial in competition law analysis. **Section 2(r)** of the Competition Act defines relevant market as the market that may be determined by the **CCI** with reference to the **relevant product market** or the **relevant geographic market** or both. - **Relevant product market** refers to all products or services that are regarded as **interchangeable or substitutable by consumers** based on characteristics, prices, and intended use. - **Relevant geographic market** comprises the area where conditions of competition for the supply/demand of goods/services are distinctly **homogenous**. In **Belaire Owner’s Association v. DLF Limited**, the **CCI** defined the relevant market as the **“market for services of developer/builder in respect of high-end residential accommodation in Gurgaon.”** **2. ENTERPRISE** **Section 2(h)** defines an **“enterprise”** broadly to include persons or departments engaged in any activity relating to **production, storage, supply, distribution, acquisition, or control** of articles or goods, or provision of services. It excludes **sovereign functions of the government**. **3. AGREEMENT** As per **Section 2(b)**, an **“agreement”** includes any arrangement, understanding, or action in concert, whether formal, informal, written, or oral. Mere understanding between parties can constitute an **agreement**. **4. CARTEL** **Section 2(c)** defines a **“cartel”** as an association of producers, sellers, distributors, traders, or service providers who, by agreement amongst themselves, **limit, control, or attempt to control the production, distribution, sale, or price of, or trade in goods or provision of services**. **5. CONSUMER** The definition of **“consumer”** under **Section 2(f)** is wider than in consumer protection laws. It includes any person who buys goods or avails services for **consideration**, whether for **resale, commercial purpose, or personal use**. ## **TYPES OF ANTI-COMPETITIVE PRACTICES** The **Competition Act** prohibits three main types of anti-competitive practices: 1. **Anti-competitive agreements** (**Section 3**) 2. **Abuse of dominant position** (**Section 4**) 3. **Combinations** (mergers, amalgamations, and acquisitions) that cause or are likely to cause an **appreciable adverse effect on competition (AAEC)** (**Sections 5 and 6**) ## **ANTI-COMPETITIVE AGREEMENTS** **Section 3** prohibits agreements that cause or are likely to cause **AAEC** within India. Such agreements are **void** under the Act. - **Horizontal Agreements**: Agreements between entities at the **same level** of the production chain, e.g., between competitors. **Section 3(3)** presumes certain horizontal agreements like **price fixing, output restriction, market allocation, and bid rigging** to have **AAEC**. - **Vertical Agreements**: Agreements between entities at **different levels** of the production chain, e.g., between manufacturer and distributor. **Section 3(4)** prohibits vertical agreements like **tie-in arrangements, exclusive supply/distribution agreements, refusal to deal, and resale price maintenance** if they cause **AAEC**. In **Fx Enterprise Solutions India Pvt. Ltd. v. Hyundai Motor India Limited**, the **CCI** held that Hyundai’s practice of imposing a maximum permissible discount through its **discount control mechanism** amounted to **resale price maintenance** in violation of **Section 3(4)(e)**. ## **ABUSE OF DOMINANT POSITION** **Section 4** prohibits the **abuse of dominant position** by an enterprise. - **“Dominant position”** is defined in **Section 2(r)** as a position of strength enjoyed by an enterprise in the relevant market in India, which enables it to: - Operate **independently** of competitive forces prevailing in the relevant market; or - Affect its competitors, consumers, or the relevant market in its favour Factors for determining dominant position are listed in **Section 19(4)** and include **market share, size and resources of the enterprise, economic power, entry barriers**, etc. Practices constituting **abuse of dominance** under **Section 4(2)** include: - **Imposing unfair or discriminatory conditions/prices** - **Limiting production, market, or technical development** - **Denying market access** - **Using dominance in one market to enter/protect another market** In **MCX Stock Exchange v. National Stock Exchange**, the **CCI** held **NSE’s zero pricing strategy** in the currency derivatives segment to be an unfair pricing **abuse of dominance** aimed at eliminating competitors. ## **REGULATION OF COMBINATIONS** **Sections 5 and 6** deal with the regulation of **combinations** (mergers, amalgamations, and acquisitions) above specified **asset/turnover thresholds**. Such combinations require **mandatory pre-notification** to the **CCI**. The **CCI** assesses whether a proposed combination is likely to cause **AAEC** in the relevant market in India. Factors for this assessment are listed in **Section 20(4)**. Key concepts in merger control include: - **Asset and turnover thresholds** (**Section 5**) - **Notice requirement** (**Section 6(2**) - **Standstill obligation** (**Section 6(2A**) - **Gun-jumping** (**Section 43A**) In **Sun Pharmaceutical Industries Ltd./Ranbaxy Laboratories Ltd.**, the **CCI** approved the merger subject to the divestiture of certain products to address competition concerns. ## **COMPETITION ADVOCACY** **Section 49** empowers the **CCI** to promote **competition advocacy**, create awareness, and impart training about competition issues. This is a key function to spread a culture of competition compliance. ## **LENIENCY PROGRAMME** **Section 46** and the **Lesser Penalty Regulations** provide for **reduced penalties** for cartel members who make vital disclosures about cartel activities. This aims to incentivize cartel participants to break ranks and provide evidence. In the **Brushless DC Fans case**, the **CCI** granted **100% penalty reduction** to the first leniency applicant who provided crucial evidence of **bid-rigging**. ## **PENALTIES AND SANCTIONS** The **CCI** can impose hefty monetary penalties for anti-competitive conduct: - **Up to 10% of average turnover** for the last 3 preceding financial years (**Section 27**) - **Up to 3 times the profit or 10% of turnover** for each year of cartel continuance, whichever is higher (**Section 27**) The **CCI** can also issue **cease and desist orders**, require **modification of agreements**, and pass any other order it deems fit. ## **APPELLATE PROCESS** Appeals against **CCI orders** lie to the **National Company Law Appellate Tribunal (NCLAT)** (**Section 53B**). A further statutory appeal lies to the **Supreme Court** (**Section 53T**). In **Excel Crop Care Ltd. v. CCI**, the **Supreme Court** upheld the **CCI** and **NCLAT’s findings** of a **price-fixing cartel** in the aluminum phosphide tablets market. ## **KEY PRINCIPLES AND DOCTRINES** 1. **Rule of Reason**: Vertical agreements are analyzed under the **rule of reason** approach, balancing **pro-competitive benefits** against **anti-competitive effects**. 2. **Per Se Rule**: Certain horizontal agreements are presumed to be anti-competitive **per se** without the need for further inquiry into effects. 3. **Effects Doctrine**: The **CCI’s jurisdiction** extends to conduct outside India if it has an **appreciable adverse effect on competition** in India. 4. **Single Economic Entity Doctrine**: Agreements between entities of the **same group** are not scrutinized under **Section 3**. 5. **Meeting Competition Defense**: Discriminatory conduct may be justified if done to **meet competition**. **Categories:** Articles --- ### [Suits by or against Government, Suits by Indigent persons, Interpleader Suit, Summary Procedure, Suits relating to public nuisance, ‘Suits by or against minors’ under CPC](https://lawfoyer.in/suits-by-or-against-government-suits-by-indigent-persons-interpleader-suit-summary-procedure-suits-relating-to-public-nuisance-suits-by-or-against-minors-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Part 1 – Suits by or Against Government** Order XXVII of CPC deals with suits by or against Government. ‘Government’ includes Central or State Government. As per Rule 1, prior notice of at least two months must be given to Government before filing suit against Government. This enables authorities to scrutinize claim before litigation. ***In State of UP v. Nawab Hussain (1977) 2 SCC 816***, Supreme Court held notice is mandatory and suit filed without notice is not maintainable. However, notice period can be waived if Government waives the requirement. As per Rule 5A, when Government undertaking is converted into company, company shall be substituted as party provided cause of action arose after incorporation. Central Government may direct such company to be represented by any officer in such suit. Order XXVII Rule 5B provides that the court in which a suit is pending against the Government may appoint counsel for Government at government expense if no appearance is made on their behalf. This prevents cases being decided against government ex-parte. ## **Part 2 – Suits by Indigent Persons** Order XXXIII deals with suits by indigent persons, meaning persons unable to pay court fees due to poverty. As per Rule 1, where plaintiff has not meant to pay prescribed fees, court has discretion to allow him to sue as indigent person upon inquiry into financial condition. In Bapu Vadde v. Laxminarayan (1985) 2 SCC 480, the SC held courts have wide discretion to permit pauper suits so that doors of justice are not closed to poor. The permission can be granted at any stage. As per Rule 8, where permission to sue as indigent is granted, the court may assign advocate to represent indigent person at government expense under legal services. Government may later recover the costs incurred for legal aid from property acquired by indigent person. ## **Part 3 – Interpleader Suit** Order XXXV deals with interpleader suit. Where two or more parties claim adversely to one another for the same money or property from another person who does not claim any interest, he may institute interpleader suit. In United Bank of India v. Priya Devi (2004) 7 SCC 667, the SC held that the essential condition for an interpleader suit is that the plaintiff should not have any claim or interest in the subject matter. His only interest is to protect himself against the burden of litigation. As per Order XXXV Rule 2, the court will decide the respective rights of claimants in a single suit to avoid multiplicity of proceedings regarding same subject matter. This prevents inconsistent adjudication of competing claims. ## **Part 4 – Summary Procedure (Order XXXVII)** Order XXXVII provides a summary procedure for quick disposal of certain suits. As per Rule 2, summary procedure is applicable where suit is for recovery of money based on a commercial transaction like dishonoured cheque, bill of exchange or promissory note. In Mechelec Engineers v. Basic Equipment Corporation (1976) 4 SCC 687, the SC held the object is to prevent unreasonable obstruction and provide speedy remedy by an expeditious hearing without trial for liquidated money claims arising from commercial transactions. To defend the summary procedure, defendant has to apply for unconditional leave under Rule 3 within 10 days of service of summons. The court may grant leave to appear and defend suit if triable issues are disclosed and there are reasonable grounds to contest the claim. ## **Part 5 – Public Nuisance Suits (Section 91)** Section 91 provides that in case of public nuisance or apprehended danger, the Advocate General or two or more persons with leave of court, may institute suit for declaration and injunction or order for removal of nuisance. In Ratlam Municipality v. Vardhichand (1980) 4 SCC 162, the Supreme Court held under Section 91, any member of the public can move for redressal of public nuisance caused by obstruction or encroachment in public streets or places. It provides remedy where public nuisance affects community at large. ## **Part 6 – Suits by or Against Minors** As per Order XXXII Rule 1, minor means a person who has not attained majority as per Majority Act i.e., 18 years. As per Rule 1, minors shall sue through their lawful guardian and defend through guardian ad litem. In M.C. Chacko v. State Bank of Travancore (1970) 1 SCC 658, the SC held interest of minors requires protection against attacks of adversary. The court must appoint guardian ad litem to defend minors even if no application is made. Under Rule 12, no decree shall be passed against minor until court certifies it will be for minor’s benefit. As per Rule 7, court has duty to strike out or amend all proceedings to bring on record the legal representative of deceased defendant if they are minors. **Categories:** Articles, Civil Procedure Law --- ### [Arrest before judgment, Attachment before judgment, Temporary Injunctions, Interlocutory orders, Receiver, Security of costs. Appeal, Execution of Decrees under CPC](https://lawfoyer.in/arrest-before-judgment-attachment-before-judgment-temporary-injunctions-interlocutory-orders-receiver-security-of-costs-appeal-execution-of-decrees-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Part 1 – Arrest before Judgment (Order XXXVIII)** Order XXXVIII deals with arrest and attachment before judgment in cases where the defendant, with intent to obstruct or delay execution of decree that may be passed against him, is likely to abscond or remove property outside the jurisdiction of the court. Section 1 empowers the court to order arrest and detention of defendant in civil prison where plaintiff satisfies the court that defendant is about to leave jurisdiction to obstruct execution, or has disposed of or removed property. In ITC Ltd. v. Paperbase Ltd. (2002) 2 Cal LT 219, the court held that power of arrest before judgment is an extraordinary power conferred on court and has to be exercised cautiously and sparingly only when sufficient materials exist. Section 3 states that where defendant fails to show sufficient cause, court shall order warrant for arrest with or without security for appearance. In Kailash Chand v. Nanhku (2005) 4 SCC 480, the Supreme Court held that the power of arrest before judgment is discretionary and if exercised judicially, interference is not called for. Mere apprehension that decree may turn infructuous is not ground. As per Section 5, no person shall be detained in prison for more than 3 days unless the court previously fixes a longer time. Court has power to release defendant on security under Section 6. ## **Part 2 – Attachment before Judgment (Order XXXVIII)** Order XXXVIII Rule 5 empowers the court to attach property of defendant before judgment if it appears that defendant is about to dispose of the whole or part of property with intent to obstruct execution of any decree that may be passed against him. In Mechelec Engineers v. Basic Equipment (1977) 4 SCC 687, the Supreme Court held that power of attachment before judgment can be exercised only if there is sufficient material to reach the conclusion that defendant intends to remove property to obstruct decree execution. As per Rule 6, court shall pass conditional order of attachment simultaneously with issue of warrant, unless sufficient security is furnished. Attachment shall be notified at defendant’s residence and proclaimed publicly. An attachment before judgment does not affect rights of persons not parties to the suit under Rule 7. Rule 8 provides that in case of perishable property, court may sell property and deposit sale proceeds in court. ## **Part 3 – Temporary Injunctions (Order XXXIX)** Order XXXIX Rule 1 empowers the court to grant temporary injunction to restrain any party from committing breach of contract or injury until legal rights are ascertained. ***In Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719***, the SC held that temporary injunction is granted to maintain status quo. Court must be satisfied of three conditions – a prima facie case, balance of convenience and irreparable loss. Rule 2(1) enables courts to direct parties to maintain status quo regarding property in dispute until rights decided. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira Lal (1962) Supp. 3 SCR 450, the SC held courts have power to pass interim orders for preserving subject matter of dispute pending final decision. Rule 2(2) empowers court to appoint Receiver and direct property attached before judgment to be kept in pound and deposition of rents and profits in court. ## **Part 4 – Interlocutory Orders (Order XXXIX)** Order XXXIX Rule 3 enables court to pass ex-parte interim orders in urgent cases where delay will entail irreparable loss to party. Such orders made ex-parte shall not last beyond 14 days. ***In Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3 SCC 161***, the SC held that interim orders can be passed ex-parte only for 14 days for temporary adjustment of matters in urgent cases where immediate remedy is warranted. As per Rule 4, where court is satisfied that a prima facie case for relief is made out, it may grant interim order on terms of party furnishing security for any loss that may occur despite final decision going against the applicant. This provides safeguard against abuse of ex-parte orders. ## **Part 5 – Receiver (Order XL Rule 1)** Courts have power to appoint Receiver where it appears property in dispute requires protection. In Indian Bank v. Official Liquidator (1998) 5 SCC 70, the SC held Receiver can be appointed even if property is not subject matter of suit but connected proceedings if protection needed. ## **Part 6 – Security for Costs (Order XXV Rule 1)** At any stage of suit, defendant may apply for order that plaintiff furnish security for costs. If court is satisfied suit is vexatious or brought to cause delay, it may order plaintiff to provide security for costs. In Razia Begum v. Delhi Development Authority (2014) 6 SCC 430, the SC held security for costs can be ordered where plaintiff does not have prima facie case and litigation appears speculative or initiated only to injure or harass defendant. ## **Part 7 – Appeals (Order XLI to XLIII)** Order XLI deals with appeals against original decrees. As per Rule 1, appeal lies against decree of District Court before High Court. Second appeal under Section 100 lies on substantial question of law. Order XLII deals with appeals against appellate decrees. Appeal against decree of Single Judge lies before Division Bench of High Court under Rule 1. In Shanti Kumar R. Chanji v. Home Insurance Co. of New York (1974) 2 SCC 430, the SC held that an appeal raises a rehearing on law as well as fact and jurisdiction of appellate court is co-extensive with trial court. Order XLIII deals with appeals against orders not decrees. As per Rule 1, appeal against interlocutory orders lies only if order expressly appealable under law. ## **Part 8 – Execution of Decrees (Order XXI)** Order XXI deals with execution of decrees. Decree holder has to apply for execution within limitation under Rule 11. As per Rule 22, court can transmit decree for execution to another court. The court which passed decree has control over execution under Rule 23. Rule 30 provides that a decree for payment of money can be executed by attachment and sale of judgment debtor’s property. Section 51 provides modes of executing decrees like delivery of property, attachment of property, arrest etc. Rule 98 recognises doctrine of partial adjustment. ***In Milkhiram v. Chamanlal (1965) 1 SCR 227***, the SC held execution proceedings are aimed at realisation of decree and should not be prolonged indefinitely. Court has power to ensure decree holder does not abuse process. **Categories:** Articles, Civil Procedure Law --- ### [Commissions under CPC](https://lawfoyer.in/commissions-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Introduction** Commissions are instruments through which court deputes its own powers and functions to an outside authority to assess, examine or inquire into a matter to collect evidence or report on facts. Order XXVI of CPC deals with commissions. Commission does not amount to transfer or abdication of judicial power, rather court retains authority and superintendence over commission with power to assess commissioner’s report. ## **Types of Commissions** **Following types of commissions are issued as per Order XXVI:** **1. Commission to examine witness (O.26 R.1) –** Where witness resides outside local limits of court’s jurisdiction, court may issue commission to record evidence. **2. Commission to make local investigation (O.26 R.9) –** Court may issue commission to make local inspection or investigation to examine books, weights, measures etc. or conduct scientific investigation. **3. Commission to examine accounts (O.26 R.11) –** Where accounts are in issue, court may direct a reference to certified accountant as commissioner. **4. Commission to make partition (O.26 R.13) –** Where preliminary decree for partition has been passed, court may appoint commissioner to make the partition allotting shares. **5. Commission to perform ministerial act (O.26 R.16) –** Courts may appoint commissioners where ministerial act like seizure, attachment, inventory of property etc. is required. **6. Commission to deliver property (O.21 R.21) –** The court executing a decree may direct warrant to enforcement officer or appoint commissioner to deliver possession of property. ## **Powers of Commissioners** Powers of commissioner are co-extensive with the court except power to pronounce judgment (Mohanlal vs Beni Madhav, (1886) ILR 9 All 626). The court cannot invest commission with authority beyond court’s own powers. The commissioner exercises quasi-judicial functions, subject to court’s control (Rambilash Singh vs Mahant Mahadeva, (1997) 4 SCC 452). Commissioners act as extended arms of court to discharge functions judicially. ## **Case Laws** - **State Bank of India vs Allied Chemical Laboratories, (2006) 9 SCC 741** The SC held commissioner’s acts done within jurisdiction, but with material irregularity, are not ipso facto void or illegal. Court has jurisdiction to enquire into regularity of proceedings. Report can be rejected on grounds of misconduct, ouster of jurisdiction or illegality. - **Sarguja Transport Service vs STA Tribunal, (1987) 1 SCC 44** The SC held tribunal could appoint employee as commissioner to inspect buses to ascertain fitness. Persons having expertise can be appointed as commissioners. Technical aspects can be delegated to qualified persons possessing special skills. **Categories:** Articles, Civil Procedure Law --- ### [Interim Orders under CPC](https://lawfoyer.in/interim-orders-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Introduction** Interim orders refer to temporary, provisional or interim arrangements made by the court during the pendency of legal proceedings to protect rights and interests of parties. Interim orders are intended to preserve status quo, maintain equilibrium and mitigate hardships until conclusion of the proceedings. The Code of Civil Procedure contains several provisions empowering courts to pass interim orders at the discretion of the court. Interim orders enable interim relief in cases of urgency until final orders. Interim orders do not determine substantive or legal rights of parties, but are temporary adjustments regulating rights of parties in the interim. ## **Types of Interim Orders** **Some important types of interim orders under CPC are:** **1. Temporary Injunctions (O.39 R.1) –** Court can issue temporary injunction restraining defendant from committing acts complained of until further orders. This maintains status quo regarding subject matter to prevent irreparable loss. **2. Interlocutory Mandatory Injunctions (O.39 R.2) –** Mandatory injunctions issue directing defendant to carry out specified acts pending suit to undo harm or prevent irreparable damage. **3. Detention, Preservation and Inspection of Subject matter (O.39 R.2) –** Court can pass orders for custody, detention, preservation or inspection of any property which is subject matter of suit to maintain status quo. **4. Appointment of Receiver (O.40 R.1) –** Court may appoint Receiver of any property at issue subject to conditions during proceedings to protect assets. **5. Attachment before Judgment (O.38) –** Where defendant intends to obstruct execution of decree, court may order attachment of property before judgment. **6. Temporary Ex parte Orders (O.39 R.3) –** Urgent ad-interim ex-parte orders can be passed without notice to prevent damage pending admission by court. **7. Security for Keeping Property (O.39 R.4) –** Defendant can be directed to furnish security for fulfilling judgment before removing attached property. **8. Directions on Disputed Possession (O.39 R.6) –** Where suit property’s possession is disputed, court may pass interim order regarding custody and enjoyment till rights decided. **9. Commission for Preservation (O.39 R.7) –** Local commission may be issued to assess and report measures required to protect or preserve property pendente lite. **10. Stay of Execution of Decree (O.41 R.5) –** Court which passed decree may on sufficient grounds order stay of execution on terms on application by judgment debtor. ## **Principles for grant of interim orders** - Irreparable hardship and injury will be caused if order not granted. - Balance of convenience lies in favour of order. - Prima facie case exists in favour of applicant. - Order necessary to preserve status quo or prevent damage. ## **Case Laws** - **Dorab Cawasji Warden vs Coomi Sorab Warden, AIR 1990 SC 867** The Supreme Court observed that grant of an interim relief preserving status quo is a device to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object is to protect party against injury by violation of rights pending trial. - **Gujarat Bottling Co. Ltd. vs Coca Cola, (1995) 5 SCC 545** The Supreme Court held that interim injunctions can be granted only if the plaintiff makes out a prima facie case, balance of convenience is in his favour and refusal would cause irreparable injury. There must be a substantial question to be tried on merits. **Categories:** Articles, Civil Procedure Law --- ### [Discovery, Inspection, Production of Documents, First Hearing, Framing of Issues, Disposal at First Hearing, Trial, Summoning Witnesses, Production of Documents, Adjournment, Hearing under CPC](https://lawfoyer.in/discovery-inspection-production-of-documents-first-hearing-framing-of-issues-disposal-at-first-hearing-trial-summoning-witnesses-production-of-documents-adjournment-hearing-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Discovery of Documents** After filing written statement, defendant must file a list of all documents in his power, possession, control or custody which are relevant to the dispute under Order XI Rule 12. Thereafter, plaintiff is also required to file a list of additional documents not filed along with plaint, which are necessary to determine matter in issue. These documents must be filed with an affidavit verifying the list. ## **Inspection of Documents** After discovery, parties can give inspection of documents disclosed as well as seek inspection. Either party may give notice to other for inspection of documents related to suit and necessary for its fair disposal under Order XI Rule 15. If inspection is refused, court may order inspection of such documents. However, confidential or privileged documents may be exempt from production. ## **Production of Documents** Under Order XI Rule 14, the parties must produce documents in their possession or power which they have admitted or relied upon for pleadings, or which relate to any matter in issue. Where denial of documents is not specific or categorical, notice to produce may be ordered. Court can call for production of any documents to elucidate matters necessary for trial. ## **Appearance of Parties** On receipt of summons, a party may enter appearance by filing vakalatnama or memorandum of appearance under Order V Rule 1. This obviates the need to serve further processes except judgment in such suit. Personal appearance shows party is submitting to the court’s jurisdiction. If defendant fails to appear on date fixed in summons, court proceeds ex parte. ## **Non-Appearance and Ex Parte Proceedings** Where any party does not appear when the suit is called up for hearing, court has the power to proceed ex parte under Order IX Rule 6. Defendant can also be proceeded ex parte where summons duly served is not obeyed under Order IX Rule 7. Where defendant appears and is subsequently absent, an ex parte order can be passed after show cause notice. Ex parte order is interim, not final. It can be set aside on sufficient cause shown. ## **First Hearing** The first hearing refers to the preliminary hearing soon after summons when court ascertains whether parties are ready to proceed with framing of issues. This may happen immediately on defendant’s appearance or be fixed later by court. Steps in first hearing include: - Recording admission/denial of documents by both sides - Framing issues on basis of pleadings - Deciding any preliminary objections or issues - Fixing trial schedule ## **Framing of Issues** Framing issues is a crucial step in first hearing. The court must formulate specific issues arising between parties on material propositions of fact and law based on the pleadings under Order XIV Rule 1. The court may frame issues suo motu if parties fail to identify issues correctly. Issues provide blueprint for trial, demarcating the area to be adjudicated. ## **Disposal at First Hearing** Order XV deals with disposal of suit at the first hearing itself. Where the parties admit facts or documents showing matter need not proceed to trial, court can pronounce judgment at first hearing itself. This avoids unnecessary adjournment for trial where facts are undisputed or admitted. Quick disposal at first hearing saves court’s time and parties’ expense. ## **Trial** Trial refers to the judicial proceedings where evidence is recorded, and facts are ascertained to determine issues framed in the suit. Under Order XVIII Rule 1, party having burden of issues will adduce evidence first. Unless otherwise ordered, plaintiff adduces evidence first. Trial involves examination in chief, cross-examination and re-examination of witnesses. Arguments follow evidence concludes. ## **Summoning Witnesses** To summon witnesses, party must file a list of witnesses proposed to be called with summary of testimony under Order XVI Rule 1. The court can examine witnesses to elucidate issues or in interests of justice. Where witness resides beyond jurisdiction, court may issue commission for examination. Summons requisition attendance of persons as witnesses or to produce documents. ## **Production of Documents** Under Order XI Rule 14 and Order XVI Rule 1A, parties can summon the other side to produce any documents required from opposite party to lead evidence or ascertain truth. Third parties may also be summoned to produce any documents relevant to suit. Where original is summoned, certified copies may be provided. Privileged documents can be exempted from production. ## **Adjournment** Court has power to adjourn trial from time to time under Order XVII Rule 1. It is not bound to adjourn on mere demand by parties. Sufficient cause has to be shown for adjournment. Courts discourage frequent adjournments to prolong trial. Unreasonable adjournments may entail costs or dismissal of suit for want of prosecution under Order XVII Rule 3. ## **Hearing** Hearing refers to the recording of evidence adduced by parties in support of their contentions. Plaintiff and defendant lead evidence respectively. Witnesses are examined in chief, cross and re-examination. Arguments follow after evidence concludes. Hearing must adhere to trial schedule fixed by court. Once hearing concludes, court will fix the case for final disposal after submission of arguments. **Categories:** Articles, Civil Procedure Law --- ### [Plaint, Written Statement, Set Off, Counter Claim, Admission, Return and Rejection of Plaint under CPC](https://lawfoyer.in/plaint-written-statement-set-off-counter-claim-admission-return-and-rejection-of-plaint-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Plaint** Plaint is the originating process which initiates a civil suit. It contains: - Heading and description of parties - Statement of material facts showing right to relief - Right to sue - Jurisdiction valuation - Relief claimed. - Date and signature of plaintiff As per Order VII Rule 1, plaint sets out essential facts constituting the cause of action and requisite details to enable court to determine questions involved. Plaint must demonstrate that material facts exist to entitle plaintiff to decree claimed. ## **Written Statement** The written statement is the reply to plaint filed by the defendant. Under Order VIII Rule 1, written statement must contain: - Nature of allegations admitted or denied, with reasons. - Statement of additional facts forming defence - Admissions and denials of documents - Signature and verification by defendant It provides defendant’s stand regarding plaintiff’s claim by indicating defence taken. Defendant deals specifically with each allegation made in plaint and states if they are admitted or denied, while clarifying factual position. ## **Set Off** Set off refers to defendant’s independent claim against plaintiff which can be set-off against plaintiff’s claim in suit. Order VIII Rule 6 deals with set off. The claim must be an independent cause of action accruing to defendant against plaintiff seeking liquidated or ascertained amount. The claim should be legally recoverable and within pecuniary jurisdiction of the court. Only amounts which can be set off under law can be claimed as set off. ## **Counter Claim** A counter claim is a cross-suit filed by defendant against the plaintiff in the same proceedings. As per Order VIII Rule 6A, defendant can set up counter claim against plaintiff instead of filing a separate suit. It must arise between the same parties and out of the same cause of action as the original suit claim. It must fall within the jurisdiction of the court. Counter claims beyond jurisdiction will be directed to be filed separately. ## **Admission of Plaint** When plaint is presented to court, it shall endorse the date and examine whether requisite valuation and court fees have been paid. Where plaint meets procedural requirements, court admits it and examines whether summons needs to be ordered on defendant. The date of admission of plaint is a crucial date for purposes of limitation and determining commencement of lis. ## **Return of Plaint** As per Order VII Rule 10, where plaint does not disclose cause of action or is barred by law, the court will return it to plaintiff for filing in proper court. Return happens due to lack of territorial jurisdiction. Plaintiff is given opportunity to file fresh suit in proper court subject to law of limitation. The court cannot reject plaint in such cases, and only option is to return it for presentation to proper court. ## **Rejection of Plaint** Where the suit appears, ex-facie barred under law or prohibited expressly by legislation, the court may reject the plaint under Order VII Rule 11. For example, the plaint can be rejected where the suit is barred by res judicata or limitation; where relief claimed is impermissible in law; or barred by law. Rejection results in termination of lis between parties. **Categories:** Articles, Civil Procedure Law --- ### [Pleadings, General Rules, Amendment under CPC](https://lawfoyer.in/pleadings-general-rules-amendment-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Pleadings** Pleadings refer to formal written statements filed by parties which frame the issues needing trial and adjudication. Plaint and written statement are the main pleadings. Order VI deals with pleadings generally. Order VII deals with plaint. Order VIII deals with written statement. Replication by plaintiff to written statement is allowed only with court’s leave. Pleadings help crystallize disputed questions between parties requiring determination. ## **Object of Pleadings** - To ascertain real issues between parties requiring trial - To ascertain essential facts in detail to base relief - To ensure parties understand case of their opponent - To assist court in appreciation of facts and legal points - To act as permanent record of case for parties ## **General Rules of Pleading** - Pleadings must state material facts, not law or evidence (O.6 R.2) - They must be brief and concise (O.6 R.2) - Must be divided into paragraphs, numbered consecutively (O.6 R.3) - Dates, sums, numbers to be expressed in figures (O.6 R.4) - Each allegation be specific, not vague or general (O.6 R.6) - Party may depart from previous pleading with permission (O.6 R.7) - Denials must be specific, vague denial won’t be sufficient (O.8 R.5) ## **Amendment of Pleadings** Amendment of pleadings refers to changes made in the original pleadings of parties. As per Order VI Rule 17, the court has powers at any stage to allow amendment of pleadings on such terms as are just. This enables clarification of issues, correction of errors and filling gaps to avoid multiplicity of proceedings. Courts allow amendments to determine real questions in controversy rather than deciding on technical grounds. However, amendment relating to a new cause of action cannot be permitted after expiry of limitation to circumvent the law. Where amendment changes nature of suit or case entirely, it will not be allowed. Amendment cannot be allowed if it defeats law of limitation. Further, no amendment is permitted once final judgment is pronounced. Subject to these conditions, amendments are liberally allowed in interests of justice. **Categories:** Articles, Civil Procedure Law --- ### [Institution of Suit, Cause of Action, Joinder, Non-Joinder and Misjoinder of Parties, Summons under CPC](https://lawfoyer.in/institution-of-suit-cause-of-action-joinder-non-joinder-and-misjoinder-of-parties-summons-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Institution of Suit** A civil suit refers to proceedings initiated by a party in a civil court for enforcement of a right or seeking relief based on a cause of action available under law. As per Section 26 of CPC, every suit shall be instituted by presenting a plaint in duplicate to the court or other officer appointed in this behalf. The plaint can be presented in person, by agent or by pleader. Where plaint is presented through an agent or pleader, the power of attorney or vakalatnama shall be filed along with plaint. ## **Cause of Action** Cause of action refers to the factual grounds forming basis of a suit. It comprises of a bundle of essential facts which the plaintiff must prove to obtain the relief claimed. Cause of action means every fact which would be necessary for the plaintiff to prove if traversed in order to establish a right to judgment. As per Order VII Rule 1, the plaint shall contain a statement of material facts showing the cause of action. Cause of action is the foundation of the civil action. ## **Joinder of Parties** Joinder of parties refers to combining two or more persons as parties to the same suit. As per Order I Rule 1, all persons whose presence is necessary for effective adjudication may be joined as plaintiffs or defendants provided there is a common question of law or fact. The general rule is that the presence of necessary parties is required for a complete and final determination of the dispute. Where jointly liable parties are not imp leaded, the suit may abate. ## **Non-Joinder of Parties** Non-joinder of parties refers to failure to join persons whose presence is necessary to completely adjudicate the dispute. As per Order I Rule 9, no suit shall be defeated by reason of misjoinder or non-joinder of parties. The court has powers to deal with such situation by addition or deletion of parties. Where a necessary party who ought to have been joined is not impleaded, the court has discretion to allow addition of such party. However, suit shall not abate only due to non-joinder if the plaintiff shows reasonable diligence. ## **Misjoinder of Parties** Misjoinder means joining together of parties who have no common interest or connection in the litigation. Where parties are improperly joined leading to misjoinder, the court has power under Order I Rule 10 to delete such party if the misjoinder was due to a bonafide mistake. Where parties are wrongly joined to confer jurisdiction or obtain venue where the real dispute does not arise, the court will disallow such misjoinder and strike out the name of wrong party. ## **Summons** When the suit is duly instituted by filing plaint, the court will issue summons to the defendant under Order V Rule 1. The summons is accompanied by a copy of the plaint. It requires the defendant to appear before court on specified date to answer the claim. It is issued under seal of court and signed by judge or officer empowered in this behalf. Summons may be sent for service directly or through court clerk or plaintiff’s advocate. Affidavit of service has to be filed as proof. **Categories:** Articles, Civil Procedure Law --- ### [Place of Suing under CPC](https://lawfoyer.in/place-of-suing-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Introduction** The place where a suit can be properly instituted is called the place of suing. The appropriate place where the court of competent jurisdiction can entertain the dispute is crucial for initiation and maintainability of the suit. Sections 15 to 21 of the Code of Civil Procedure, 1908 deal with venue and place of suing. Selecting the correct forum is imperative to avoid procedural wrangling which delays substantive adjudication. ## **Cardinal Principle for Place of Suing** Section 15 lays down the cardinal principle that every suit shall be instituted in the Court of lowest grade competent to try it. Thus, the court of the lowest grade functionally competent in terms of pecuniary and territorial jurisdiction, subject to any special statute, is the place where the suit must be filed. The legislative mandate is that the suit should be initiated at the lowest appropriate court which is fully equipped to dispose it efficaciously. ## **Place of Suing Immovable Property** Section 16(a) stipulates that suits for recovery of immovable property with or without rent or mesne profits shall be instituted in the court within local limits of whose jurisdiction the property is situated. Where the property is situated within jurisdiction of multiple courts, the plaintiff has option to choose the court where to file the suit. This enables convenient access to court based on plaintiff’s location. Where a claim of rent or mesne profit arises along with recovery of immovable property, the plaintiff has the choice to file either at property location or his own residence provided the claim for rent and mesne profits does not exceed the value of the property claim. This facility is provided since evidence will be mainly produced at plaintiff’s residence. ## **Place of Suing Movable Property** As per Section 16(b), suits for recovery of movable property, or for compensation for wrong to movable property can be filed where the wrong was done. This ensures proximity of the court to the cause of action for easy access to evidence. Where defendants reside in multiple places, suit can be filed where any of the defendants reside within the court’s jurisdiction. However, suits for penalties under tax and revenue laws have to be filed where the defendant resides. ## **Place of Suing Contract** Section 16(c) stipulates that suits on contract can be filed either where the contract was made, or the contract was meant to be performed, or the defendant resides/carries on business. This provides options to the plaintiff considering the defendant’s residence or the place having proximity to the transaction. Where the contract specifies the jurisdiction, suit has to be filed in such court subject to contract being lawful. ## **Place of Suing Wrongs** As per Section 18 suits for compensation for a wrong may be filed where the wrong was done, or where the defendant resides, or where the defendant works for gain. This covers tortious acts, allowing suit where the injury occurred or where the wrongdoer can be traced. Where multiple defendants reside at different places, they can be sued together where any of the defendants reside. ## **Place of Suing Resident Defendants** According to Section 17, a suit against a defendant residing within jurisdiction of a court can be filed in such court. Where there are multiple defendants residing at different places in India, they can be jointly sued where any of the defendants reside. However, the leave of the court must be obtained in case of joinder of defendants residing at different places. The court will examine if there is a common question of law or fact which necessitates joint trial. ## **Place of Suing Companies/Corporations** Suits against companies or corporations can be instituted either where the registered office is situated or where the company conducts business at the cause of action place. This enables the plaintiff to file suit where the transaction occurred for the sake of convenience. ## **Place of Suing Public Nuisance** As per Section 16A, any suit for restraining public nuisance shall be instituted where the wrong is done. Since evidence is available at that place, trying nuisance cases where it occurred serves interests of justice. **Categories:** Articles, Civil Procedure Law --- ### [Jurisdiction under CPC](https://lawfoyer.in/jurisdiction-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** **Introduction** Jurisdiction refers to the authority vested in a court under law to adjudicate disputes and dispense justice. The Code of Civil Procedure, 1908 (CPC) contains detailed provisions concerning jurisdiction of civil courts in India. The twin criterions for exercise of jurisdiction are territorial jurisdiction and pecuniary jurisdiction. **Territorial Jurisdiction** Territorial jurisdiction means the geographic limit within which a court has power to try a suit. Sections 15 to 21 of CPC deal with territorial jurisdiction. Section 15 provides that every suit shall be instituted in the court of lowest grade competent to try it. Section 16 to 18 enumerate the places where a suit may be instituted. Section 19 bars suit in a wrong court knowingly. Section 20 enables transfer to cure defect of jurisdiction. As per Section 16, suit for immovable property can be filed where the property is situated. Where the property is situated within jurisdiction of multiple courts, the plaintiff has the option to choose any one. Suit for compensation for wrongs to a person or movable property can be filed where the wrong was done. Suit for immovable property combined with claim for rent or mesne profits can be filed where the property is situated provided the claim for rent, mesne profits does not exceed the proprietary claim. Section 17 allows suit against a defendant residing within jurisdiction of the court. Where there are multiple defendants residing at different places, the suit can be instituted where any of the defendants reside provided leave of court is taken. Suits against a company or corporation can be filed where the registered office is situated or where the company conducts business. Suits upon a contract which stipulates specific court jurisdiction can be filed at such place. As per Section 18, suit for compensation for a wrong can be filed where the wrong was done or where defendant resides or work for gain. Suit against defendants residing at different places under a common liability can be filed where any of the defendant resides. Where a suit is filed laying venue in the wrong court, the plaintiff will be liable to pay costs under Section 19. However, the plaint shall not be rejected solely on ground of wrong venue if other requirements are satisfied. The court has power under Section 21 to transfer a suit to appropriate court if it lacks territorial jurisdiction. **Pecuniary Jurisdiction** Pecuniary jurisdiction refers to the monetary limit up to which a court can try suits valued for jurisdictional purposes under CPC. Section 15 mandates the suit has to be instituted in the lowest grade court having requisite pecuniary jurisdiction. Valuation has to be done in good faith based on cause of action. Insufficient valuation can result in plaint rejection or dismissal of suit. For pecuniary jurisdiction, suits are classified under CPC as per valuation: - Small Cause suits: Up to Rs.10,000 - District Judge: Exceeding Rs.10,000 up to Rs.1 lakh - Subordinate Judge: Exceeding Rs.1 lakh up to Rs.10 lakhs - District Court: Exceeding Rs.10 lakhs The state governments periodically enhance the pecuniary limits of courts. Suit valuation is crucial for determining the appropriate forum having competence to adjudicate the dispute under law. **Factors Determining Jurisdiction** The following factors must be considered before filing a suit to ascertain the court which has proper territorial and pecuniary jurisdiction: - Nature and valuation of subject matter. - Place where the cause of action fully or partly arises. - Place where the property is situated. - Place where the defendant resides or works at the time of commencement of action. - Sanctioned pecuniary jurisdiction of the court. - Contractual stipulation as to court venue. - Local limits of the court’s geographic coverage. The plaint must demonstrate prima facie that the court has jurisdiction to entertain the proceedings. If deficiency of jurisdiction is apparent, the plaint is liable to rejection under Order 7 Rule 11. Caveatable jurisdiction is determined based on plaintiff’s averments in the plaint unless patently false or frivolous. Jurisdictional facts stated in plaint are presumed to be true for deciding place of suing. **Plaint Rejection Due to Lack of Jurisdiction** The plaint can be rejected by the court under Order 7 Rule 11 where it does not disclose cause of action, is barred by limitation or under res judicata, does not disclose right to sue, insufficiently stamped, or shows the suit should be instituted in another court. If the court lacks territorial or pecuniary jurisdiction, the plaint cannot proceed and has to be returned. Jurisdictional issues raised by parties must be decided as preliminary issues before trial. If lack of jurisdiction is established as a preliminary issue, the plaint is liable to be dismissed or returned to be filed before the proper court having jurisdiction. However, absence of jurisdiction can be cured by transfer under Section 24. Minor errors as to place of suing may be corrected under Section 21. **Prorogation of Jurisdiction** Even where territorial or pecuniary jurisdiction is absent, it is open for the defendant to waive the objection. If the defendant does not dispute jurisdiction, the same is taken to be established by prorogation or acquiescence. However, acquiescence does not confer jurisdiction on a court which is barred by law from entertaining the suit. Prorogation enables the court to proceed despite lack of jurisdiction if the defendant does not object at the first instance. **Categories:** Articles, Civil Procedure Law --- ### [Concept of limitation in Civil Suits](https://lawfoyer.in/concept-of-limitation-in-civil-suits/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Introduction** The law of limitation sets maximum time periods within which legal proceedings can be initiated in courts of law. The key objectives behind limitation laws are: - To ensure timely adjudication of claims without unreasonable delay. - To prevent witnesses being called upon to give evidence after lengthy periods. - To prevent disturbance of settled rights and titles. - To discourage laxity and promote diligence. The Code of Civil Procedure, 1908 lays down limitation periods for different classes of civil suits. It stipulates the time limits within which the plaintiff must institute a civil suit before the right to sue becomes time barred. Limitation law balances the interests of the plaintiff to have a reasonable time to pursue claims, and the defendant’s right to not be prosecuted on stale claims. ## **Law of Limitation** The law of limitation is enshrined under Entry 13 of the Concurrent List in the Seventh Schedule of the Constitution. The Limitation Act, 1963 is a central legislation prescribing limitation periods for suits, appeals and applications across statutes. It consolidates the law relating to limitation of suits, appeals and certain applications. Section 3 provides that subject to provisions of any special law, every suit shall be instituted within the prescribed period under the schedule to the Act. Section 4 of the Limitation Act states that any suit for which no period of limitation is prescribed elsewhere shall be governed by the residuary Article 113 which provides for three years limitation. The starting point of limitation is when the right to sue accrues. As per Section 2(j) of CPC, the right to sue accrues when the wrong is done, breach of contract occurs, default happens, or the claim matures. Time begins running when plaintiff acquires knowledge of the right to sue. The CPC incorporates limitation provisions under Order II Rule 2 and Schedule I in conformity with the Limitation Act. The First Schedule under CPC prescribes limitation periods for suits relating to accounts, contracts, declaratory decrees, mortgages, immovable property, movable property, trusts, compensation, etc. Periods range from one year to twelve years. ## **Computation of Periods of Limitation** As per Section 4 of Limitation Act, any period of limitation is to be calculated excluding the day when the cause of action arises. If the last day falls on a holiday, limitation will be extended to next working day. Section 12 provides that in computing limitation, time requisite to obtain copies of decrees, instruments or orders may be excluded. Period from making an application for appointment of guardian to the date of appointment may be excluded under Section 12(2). Section 14 excludes any time during which plaintiff is prosecuting another civil proceeding with diligence and good faith. Where proceedings are prosecuted in wrong court, Section 14(2) excludes time in certain suits. Period of defendant’s absence from India may be excluded under Section 17 if right to sue arose when defendant was out of India. Limitation remains suspended when summons is served on defendant during last few days of limitation under Section 18. ## **Extension/Condonation of Limitation** The CPC empowers the court under Section 5 to admit suits instituted after expiry of limitation if the plaintiff satisfies that he had sufficient cause for not filing the suit within time. The delay in filing suit must have been due to reasons beyond plaintiff’s control, and he acted with reasonable diligence under the circumstances. Plaintiff must make out a strong case of compelling circumstances which impeded the institution of suit within limitation. Physical inability, mental illness, involuntary detention, emergency travel, fraudulent concealment, breakdown of services/communication etc. have been held as sufficient causes. Section 151 of CPC also preserves inherent powers of the court to make orders necessary for ends of justice, which includes condoning delay. However, discretion under Sections 5 and 151 must be exercised judiciously. The plaintiff must demonstrate that injustice would be caused if delay is not condoned. Long delays cannot be condoned merely on technical grounds when no genuine effort is made to explain inaction consistently over long periods. ## **Doctrine of Equitable Principles** Under doctrine of equitable principles, even though legal limitation has expired, the court may grant relief to the plaintiff to avoid injustice and hardship. The doctrine is based on principles of equity, good conscience and fairness. It considers extenuating circumstances which impeded filing of the suit within time, but exigencies of justice require the court to adjudicate the matter despite the bar of limitation. However, the doctrine of equitable principles can be applied only in exceptional and deserving cases. The plaintiff must make out a compelling case that grave miscarriage of justice would be caused unless delay is condoned. The negligence, inaction or default of the plaintiff himself cannot be a ground for invoking the doctrine of equitable principles. The court must exercise great caution in extending limitation on equitable grounds to prevent stale claims being brought before the court. ## **Effect of Limitation** Order VII Rule 1 of CPC requires the plaint to disclose that the suit is within limitation. Under Order VII Rule 11(d), the plaint can be rejected when the suit appears from the statement in the plaint to be barred by any law. If the defendant satisfies the court that the suit is barred by limitation, the court shall dismiss the suit under Order XII Rule 3. The limitation defence can be taken as a preliminary issue under Order XIV. The defendant may also take out a chamber summons for summary judgment on ground of limitation under Order 37. If the plaintiff’s claim is found barred by limitation, the court will pass a decree dismissing the suit. A time-barred claim cannot be enforced by a court of law even if the claim is genuine on merits. However, limitation does not destroy the underlying right which remains alive though unenforceable in court. ## **Extension of Limitation** Parliament is authorised to make temporary provisions extending limitation under Article 31A of Limitation Act. Such extension applies to suits, appeals or applications where limitation expires during the period specified in the order. Extension of limitation by notification applies uniformly across the country. State governments can also extend limitation by notification under Section 3. Several states have extended limitation to alleviate hardships during the Covid-19 pandemic. The exercise of power to extend limitation is not arbitrary but guided by policy. Extension enables access to justice in situations where adherence to original limitation would cause hardship and detriment to rights. It balances individual rights along with exigencies of public welfare in exceptional circumstances. Extension allows pending claims to be prosecuted after temporary suspension of limitation. However, it cannot revive dead or time-barred claims which already extinguished by efflux of time before such extension. ## **Continuing/Successive Wrongs** In certain instances, like continuing wrong or recurring breach, a fresh cause of action arises on each default which triggers fresh limitation. In cases of successive or recurring wrongs like nuisance, trespass, there is a fresh infringing action which constitutes a new injury. Each act or breach causing damage amounts to a distinct cause of action for purposes of limitation. For example, in case of monthly tenancy, failure to vacate gives rise to a separate cause of action at the end of each month. The suit can be filed within limitation computed from the date of breach in each month. But once limitation expires qua any particular act, no suit can be entertained for that default even if later acts are within limitation. ## **Amendments Relating Back to Date of Filing** As per Order VI Rule 17, the court has discretion to allow amendment of pleadings at any stage of proceedings to avoid multiplicity of litigation. Where the original pleading was filed within limitation, any amendment sought subsequently will normally relate back to the original filing date. The amendment will not be time-barred despite limitation having expired after suit filing if the court allows the amendment relating it back to the initial filing date. However, relation back principle does not apply if a new cause of action is permitted to be added or substituted through amendment outside limitation. The court will disallow such amendment to prevent re-agitation of dead claims by circumventing the law of limitation. Subject to this, bonafide amendments are allowed to relate back to avoid limitation technicalities coming in the way of adjudication on merits. **Categories:** Articles, Civil Procedure Law --- ### [Important Concepts: Res Sub-Judice, Resjudicata, Restitution, Caveat, Inherent powers of courts, Reference, Review and Revision of CPC](https://lawfoyer.in/important-concepts-res-sub-judice-resjudicata-restitution-caveat-inherent-powers-of-courts-reference-review-and-revision-of-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Res Sub-Judice** Res sub-judice refers to a matter or case which is under consideration by a court of law. Section 10 of the Code of Civil Procedure deals with the concept of res sub-judice. It provides that no court shall proceed with the trial of any suit or issue in which the matter directly and substantially in issue is already pending in another court competent to grant the relief claimed. The objective is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel proceedings in respect of the same subject matter. If the matter in the subsequent suit is directly and substantially similar to the one in a previously instituted suit which is pending in another competent court, the subsequent suit is liable to be stayed. The test is whether the matter in controversy in the two proceedings is substantially the same and can be determined on the same evidence. If the decision in the earlier suit would operate as res judicata in the later suit, the matter would be treated as res sub-judice. However, slight difference in parties or prayed reliefs may not make the matter different if the core controversy is identical. If Privy Council proceedings are pending involving the same subject matter, it amounts to res sub-judice for courts in India. ## **Res Judicata** Res judicata means a matter finally decided by a competent court and barred from future litigation. Section 11 of CPC provides that once a matter is directly and substantially in issue and has been heard and finally decided by a competent court, the parties cannot re-agitate the same issue further in subsequent proceedings. It applies to issues heard and decided on merits, and not to collateral or subsidiary points. The essential conditions for applicability of res judicata are: - The matter must have been directly and substantially in issue in the former suit. - The former suit must have been between the same parties or parties litigating under the same title. - The parties must have litigated under the same title in the former suit. - The court which decided the former suit must have been competent to try the subsequent suit in which the issue is raised. - The matter directly and substantially in issue must have been heard and finally decided by the court in the former suit. If these conditions are satisfied, the court shall not entertain re-litigation on the same issue. The objective is to prevent multiplicity of proceedings and contradictory judgments. Res judicata ensures finality and prevents abuse of process. It applies to issues of fact, law or to mixed questions of law and fact heard and decided in the former suit. ## **Restitution** Restitution refers to the restoration of parties to their original position they were in before the litigation. Sections 144 and 151 confer wide powers on the court to order restitution. Where a decree is varied, reversed, set aside or modified in appeal, review or other proceeding, the court which passed the decree has power to make restitution and adjustments consequential to the variation, reversal or modification. For example, if in execution of decree for payment of money, any amount is recovered and paid to the decree holder, and thereafter the decree is reversed or modified, the appellate court may order restitution of the amount to the judgment debtor. This restores parties to their original position as if the incorrect decree never happened. The power of restitution applies to both movable and immovable property. It extends to third parties who may be dispossessed or deprived of property by the execution of the incorrect decree. ## **Caveat** Caveat refers to a request made to the court to not pass any ex-parte order without giving notice or hearing the caveator. Section 148A provides that a caveat may be lodged by any person claiming a right to appear before the court on the hearing of any application. If a caveat is filed, the court shall serve notice on the caveator before passing any order on the application. The caveator must disclose the nature of the claim, interest or objection to the proceedings. The purpose of caveat is to protect a person’s interest against any ex-parte interim order being passed by the court without hearing him. It operates as a caution to the court to not proceed with the matter in the absence of the caveator. Caveats may be made absolute for a certain period. A caveator added as defendant to the suit is entitled to file a written statement. ## **Inherent Powers of Courts** Section 151 preserves the inherent powers of the court to make orders necessary for the ends of justice or to prevent abuse of process of the court. This recognizes inherent powers vested in courts to enable them to effectively and completely adjudicate the disputes before them. Section 151 does not confer any new or additional powers, but merely safeguards powers innate to courts. The powers under Section 151 can be invoked in the absence of specific statutory provisions if the exigencies of justice demand so. The court can pass orders or take steps to secure justice, including process and procedure beyond what is prescribed in the CPC. However, such powers cannot be exercised in disregard of express statutory provisions. Section 151 powers must be exercised judiciously and sparingly in compelling circumstances which demand action to further the interests of justice. ## **Reference** Reference refers to the power of civil courts under Section 113 of CPC to refer questions of law or fact arising in the suit to the High Court for its opinion. Where substantial questions of law or fact of general importance are involved, the district court may refer the same for opinion of the High Court. Reference enables subordinate courts to take the aid and opinion of the High Court on knotty issues to effectively adjudicate the dispute. The High Court may direct the lower court to try the suit and return findings of fact, after which the High Court will deliver its opinion on the question of law referred. Alternatively, the High Court may itself try the issue and return findings of fact and deliver opinion on the question of law. The lower court is bound by the findings and opinion of the High Court on reference. ## **Review** Review refers to the court’s inherent power to reconsider its judgment and orders. Section 114 and Order XLVII provide for review of judgments and orders based on discovery of new evidence, error or omission, or other sufficient cause. The court can rectify errors to avoid miscarriage of justice. The grounds for review are: - Discovery of new evidence which was not available or could not be produced during trial despite diligence. - Mistake or error apparent on the face of the record. - Any other sufficient reason which calls for review. A review does not allow re-agitation of the same issues but is confined only to the extent required for rectification of error. The party seeking review must demonstrate apparent error which stares on the face of judgment. The court exercises judicial discretion while allowing review. ## **Revision** Revision refers to the power of the High Court under Section 115 to call for records of any lower court proceedings pending or disposed and confirm, modify or reverse any decree or order. Revision is a supervisory jurisdiction exercised by High Court over subordinate courts to keep the wheels of law and justice properly moving. The High Court may exercise revision where lower court has: - Exercised jurisdiction not vested in it by law. - Failed to exercise jurisdiction vested in it by law. - Acted illegally or materially irregularly in exercise of jurisdiction. Revision is necessary to keep subordinate courts within bounds of authority, ensure even flow of justice and prevent miscarriage of justice. It is a quasi-appellate power to be exercised sparingly in exceptional cases where glaring injustice has been caused by irregularity in lower court proceedings. **Categories:** Articles, Civil Procedure Law --- ### [Suits of Civil Nature under CPC](https://lawfoyer.in/suits-of-civil-nature-under-cpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Introduction** A suit refers to a civil proceeding initiated by presenting a plaint before a civil court for enforcement of a right or claims arising out of a civil dispute. The Code of Civil Procedure, 1908 is the basic statute governing civil litigation in India. It establishes the modalities for institution, prosecution and disposal of suits of a civil nature. ## **Jurisdiction of Civil Courts** Section 9 of the CPC provides that courts shall have jurisdiction to try all suits of civil nature, except suits excluded from its cognizance. The civil courts established under the state government derive jurisdiction from the CPC to adjudicate civil disputes. Section 15 enumerates the classes of suits of a civil nature cognizable by the civil courts. These include suits relating to immovable property such as recovery of possession, partition, mortgage, charge, settlement, ejectment, determination of rights; suits relating to movable property such as claims for price of goods sold, hire-purchase agreements, pledges, hypothecation, bailment; suits on contract including breach, specific performance, insurance, indemnity, guarantee; suits on tort including defamation, nuisance; suits on trusts and trusteeship concerning affairs of trust properties; suits for declaratory decrees and injunctions; suits for dissolution of partnerships, societies, marriages; suits relating to religious or charitable endowments, religious office; suits for possession and compensation by victims of wrongful confinement; and suits in connection with any of the above matters. The enumeration under Section 15 is inclusive and not exhaustive. The civil courts have wide jurisdiction over all suits of civil nature not expressly excluded under the CPC. Section 9 read with the First Schedule specifies categories of suits excluded from cognizance of the civil courts. Common exclusions include suits before Revenue Courts relating to agricultural land, taxation disputes. Other exclusions cover matters under specialized statutes and tribunals. Subject to exclusions, the civil courts exercise plenary jurisdiction over civil disputes. ## **Institution of Suits – Plaint** A suit is instituted by presenting a plaint in duplicate before the court. Order IV deals with the formatting requirements of a plaint. Order VII deals with the contents of a plaint. The plaint shall state clearly and concisely the material facts, grounds of cause of action, details of parties, valuation for jurisdictional purposes, reliefs or remedies claimed, and jurisdiction. The plaintiff shall plead and provide details regarding every material fact intended to be relied upon at the trial. Any documents relied upon by plaintiff must be included with plaint. The plaint must demonstrate that the civil court has territorial and pecuniary jurisdiction to entertain the suit. The valuation shall be reasonable and made in good faith. Insufficient valuation can lead to rejection of plaint. The plaint shall disclose a cause of action indicating the right or grievance which the plaintiff seeks to enforce. Cause of action refers to the media upon which plaintiff asks for relief. The plaint must disclose title, interest, claim of plaintiff over the subject matter. The relief claimed may include recovery of possession, injunction, specific performance, damages or compensation. ## **Issuance of Summons** On presentation, the plaint shall be numbered, registered and fixed for preliminary hearing before issuance of summons to the defendant. The court examines the plaint for any defects under Order VII Rule 11. The plaint can be rejected if barred by law, insufficiently stamped, no cause of action, improperly valued, or filed before wrong court. If the plaint discloses a cause of action, the court will issue summons to the defendant. The summons requires the defendant to appear before the court on a specified date to answer the claim. It provides intimation to the defendant regarding the initiation of civil action against him. Under Order V Rule 9, the court may order substituted service of summons if defendant avoids service or his whereabouts are not known. The court could proceed ex-parte if summons duly served is not obeyed by the defendant. ## **Written Statement** On appearance, the defendant is required to file a written statement under Order VIII Rule 1 within 30 days dealing with the plaintiff’s claims. The written statement shall state what allegations are admitted or denied, on what grounds, and any additional facts regarding the dispute. It provides an opportunity to the defendant to present his defence contesting the suit. The defendant may also make a counterclaim against the plaintiff or file a set off to adjust any amount claimable from the plaintiff. The defendant may also take out a chamber summons for unconditional leave to defend the suit under Order 37 Rule 2. This provides time to the defendant to file a written statement. The defendant may also file an application requesting the court to reject the plaint under Order VII Rule 11 if it does not disclose a cause of action, barred by law, insufficiently stamped, misjoined parties, wrong valuation etc.\\ ## **Framing of Issues** On completion of pleadings, the court will frame issues under Order XIV Rule 1. Issues are points formulated based on material propositions of fact and law alleged by parties. The court examines the points of controversy between the parties and crystallizes such points into issues. The court shall frame separate issues on each substantial question of fact or law raised by the parties. Issues help identify points in dispute which need to be tried and decided by the court. The court must frame issues on all contentious questions which must be adjudicated for effective disposal of the suit. The issues provide a blueprint for the trial, demarcating the area of inquiry. Only issues framed and not others can be adjudicated upon by the court. ## **Trial** After framing issues, the court proceeds with the trial of suit. The burden of proving the issues lies on the party which asserts the affirmative issues, normally the plaintiff. The plaintiff is required to adduce evidence first to prove his case under Order XVIII Rule 1. The plaintiff shall submit an examination-in-chief of his witnesses and tender documents in his possession. Thereafter, the witnesses may be cross-examined by the defendant. After the plaintiff’s evidence concludes, the defendant must lead rebuttal evidence under Order XVIII Rule 2. The defendant may examine himself and other witnesses, supported by relevant documents, to contradict the evidence of plaintiff and prove his defence. The plaintiff is provided an opportunity for cross-examination of defendant’s witnesses. The court has power to control the trial by imposing time limits, regulating the number of witnesses or mode of evidence being adduced. The court may conduct local inspection or engage court commissioners or experts to assess evidence as required. The court must administer oath before taking examination or evidence of parties. After consideration of evidence led by both sides, the court may examine the parties or their agents under Order X Rule 1 to extract clarifications on relevant aspects. The examination helps elucidate material facts not brought out clearly from evidence. After trial procedures conclude, the court fixes the suit for final arguments. ## **Final Arguments** In the final arguments stage, counsel for both parties elaborate on their factual and legal submissions seeking adjudication of issues in their favor. The plaintiff’s counsel highlights evidence adduced to substantiate factual claims and explains how legal propositions relied upon support the relief claimed. The defendant’s counsel rebuts plaintiff’s submissions by countering factual assertions and distinguishing their legal predicates. The counsel provides an overview of their factual and legal narratives, interpretation of evidence and applicable legal principles to enable the court to appreciate their submissions in the context of issues framed. The court may clarify doubts, pose queries or seek clarification on aspects it finds unclear or require elaboration. The court may reserve judgment and pronounce the final order later. ## **Judgment and Decree** The court shall pass judgment under Order XX Rule 1 resolving the issues framed, either affirming or negating such issues. The judgment analyses factual and legal matters, discusses evidence, weighs the rival contentions and records findings on each of the issues adjudicating upon the dispute. The judgment is followed by a decree which encapsulates the operative conclusions of the judgment. The decree declares specific reliefs allowed and specifies the amounts, properties or acts ordered. The decree conclusively determines the rights of parties. However, where certain issues are left undetermined, the court may pass a preliminary decree adjudicating upon settled issues reserving any subsequent decision for later consideration. The court may direct further enquiries or taking of accounts for passing a final decree fully determining the suit. ## **Appeals and Revision** A decree or order passed by the civil court is appealable under Sections 96 – 99. First appeal against decree lies before the District Court. Second appeal lies before the High Court on substantial question of law. Interlocutory orders are appealable if it decides preliminary issues concerning jurisdiction, valuation, rejection of plaint, addition of parties or cause of action. Revision application under Section 115 is maintainable against orders which fail to exercise jurisdiction or acting beyond jurisdiction. The hierarchy of appeals enables appropriate higher forums to remedy errors in judgments passed by subordinate courts. This provides continuity in corrective process. Section 100A also allows the High Court to withdraw any appeal and transfer it to itself if it involves substantial questions of law requiring settlement. ## **Execution of Decrees** A decree may be executed under Order XXI either by the court which passed it or the court to which it is sent for execution. Decrees for payment of money, delivery of property, injunctions, declaratory decrees, or requiring performance of any specific act are executable. The decree may be executed by attachment and sale of judgment debtor’s property, appointment of receiver, arrest and detention of judgment debtor or other means. Where the decree is not fully satisfied by the judgment debtor, the decree holder may initiate fresh execution proceedings. **Categories:** Articles, Civil Procedure Law --- ### [Decree, Judgment, Order, Foreign Court, Foreign Judgment, Mesne Profits, Affidavit, Suit, Plaint, Written Statement under CPC](https://lawfoyer.in/decree-judgment-order-foreign-court-foreign-judgment-mesne-profits-affidavit-suit-plaint-written-statement-under-crpc/) **Published:** November 28, 2024 **Author:** LawFoyer **Content:** ## **Decree** A decree is a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties. A decree may be preliminary or final. A preliminary decree declares the rights and liabilities of the parties leaving the further considerations to be determined in future proceedings. A final decree is one which fully and finally disposes of the suit. As per Section 2(2) of the Code of Civil Procedure, a decree includes rejection of a plaint and determination of any question within section 144 of CPC but shall not include, (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. A decree may be partly preliminary and partly final. A decree shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim. It should specifically state the relief granted or other determination of the suit. The decree should also state the amount of costs incurred and by whom it shall be paid. A decree signed by the Judge and bearing the seal of the Court is executable as a formal judgment without any further proceedings. ## **Judgment** The judgment means the statement given by the Judge on the grounds of decree or order. As per Order XX Rule 6, the judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. A judgment combines the decree with the reasons underlying the decree. It embraces decretal order and grounds of the decree. The judgment spells out the verdict of the Court after due consideration of the rights and contentions of the parties. A judgment pronounces conclusively upon the matter in controversy between the parties. ## **Order** An order is the formal expression of any decision of a Civil Court which is not a decree. As per Section 2(14) of CPC, an order is the formal expression of any decision in a civil suit which is not a decree. An order is a step towards the final adjudication and determination of the rights of the parties. It does not finally determine the rights of the parties. An order is generally passed on different procedural aspects/applications during the pendency of the suit. For example, an order may be passed on an application for attachment before judgment or appointment of receiver or injunction etc. An order is appealable if specifically permitted under Section 104 read with Order XLIII of CPC. ## **Foreign Court** As per Section 2(5) of CPC, a Foreign Court is a Court situated outside India and not established or continued by the authority of the Central Government. It does not include the Supreme Court or any High Court exercising jurisdiction in any State. It essentially refers to judicial forums of foreign countries. For a foreign judgment rendered by a Foreign Court to be enforceable in India, the foreign court must have had jurisdiction according to Indian laws. The judgment should have been rendered on merits after following due process. The judgment should also not have been obtained by fraud or based on breach of Indian law. The judgement debtor should have voluntarily submitted to the jurisdiction of the foreign court. ## **Foreign Judgment** According to Section 2(6) of CPC, a foreign judgment means the judgment of a foreign Court. A foreign judgment is considered conclusive unless it is established that – 1. The judgment was pronounced by a court which did not have jurisdiction. 2. The judgment was not given on merits of the case. 3. The proceedings in which the judgment was obtained were opposed to natural justice. 4. The judgment was obtained by fraud. 5. The judgment sustains a claim founded on a breach of any law in force in India. A certified copy of a Foreign Judgment may be filed in an Indian Court for execution. The Court shall presume the judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on record. However, if the judgment does not fall within the exceptions listed above, it is considered conclusive and cannot be impeached for any error of fact or law. ## **Mesne Profits** Mesne profits refer to the profits which a person in wrongful possession of property received or might have received from such property while in possession. As per Section 2(12) of CPC, mesne profits of property mean those profits which the person in wrongful possession of such property received or might have received with ordinary diligence and care while in possession. For example, A illegally takes possession of B’s house and earns rent for several months before the house is restored back to B. The rent amount earned by A constitutes the mesne profits which rightfully belongs to B. The purpose of mesne profits is to compensate the rightful owner for the loss of income while their property was in wrongful possession. It acts as damages for the unlawful occupation. ## **Affidavit** An affidavit means any statement of fact confirmed by an oath or affirmation. As per Section 2(1) of CPC, an affidavit means a statement in writing signed by the deponent and affirmed by oath before a person having authority to administer an oath. An affidavit contains a written sworn statement of facts voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Affidavits are used as evidence in civil proceedings. They are confirmatory statements made under oath before judicial forums. They present facts, data and information in a manner suitable for presentation before the Court. Affidavits must contain only facts which the deponent believes to be true and correct. Any false statements may attract penalties for perjury. ## **Suit** As per Section 2(l) of CPC, a suit refers to any civil proceeding initiated by a plaint or petition filed before a court of law. It refers to a litigation or judicial action initiated by one party against another for enforcement of a legal right. The plaintiff who files the suit is called the suitor. The suit commences from the presentation of the plaint. The suit encompasses the entire proceedings from filing until execution of decree or final judgment. It continues until the litigation is live before the court. A suit terminates only on the passing of a decree or dismissal of the plaint. Multiple issues or claims may be incorporated within the same suit. The court exercises jurisdiction by virtue of the institution of the suit. ## **Plaint** A plaint refers to the formal written statement filed by the plaintiff which initiates a civil suit. As per Order VII Rule 1 of CPC, the plaint shall state the facts, grounds of cause of action, valuation, jurisdiction, details of parties, and the relief claimed by the plaintiff. It provides information which is necessary to enable the court to determine whether it has jurisdiction to entertain the suit. The plaint sets out the cause of action detailing the plaintiff’s claims which are sought to be enforced by the suit. ## **Written Statement** A written statement refers to the reply statement filed by the defendant responding to the plaint and its material allegations. As per Order VIII Rule 1 of CPC, the defendant should file a written statement dealing with each claim in the plaint with his set-off and counterclaim, if any. The written statement enables the defendant to present his version of the facts and contention in the proceedings. The written statement shall state which allegations in the plaint are admitted, which are denied, and the facts based on which allegations are denied. It should also state any special knowledge the defendant has regarding the facts of the case. The written statement provides the defendant an opportunity to contest the proceedings and resist the relief claimed in the suit. It outlines the defence taken by the defendant. In summary, these key terms relate to the adjudicatory machinery, processes and procedures involved in the conduct of civil suits as per the Code of Civil Procedure. The definitions and scope provided under the CPC establish the framework for the initiation, processing, trial, adjudication and execution of civil disputes in India. **Categories:** Articles, Civil Procedure Law --- ### [](https://lawfoyer.in/global-credit-capital-limited-anr-vs-sach-marketing-pvt-ltd-anr/) **Published:** November 24, 2024 **Author:** LawFoyer **Excerpt:** This case pertains to the interpretation of Sections 5(6), 5(8), and 5(21) of the Insolvency and Bankruptcy Code, 2016 (IBC). It specifically examines whether amounts described as security deposits under service agreements constitute financial debt, operational debt, or neither. **Content:** **Categories:** Uncategorised --- ### [MAHAKALI SUJATHA vs. THE BRANCH MANAGER, FUTURE GENERALI INDIA LIFE INSURANCE COMPANY LIMITED & ANOTHER](https://lawfoyer.in/mahakali-sujatha-vs-the-branch-manager-future-generali-india-life-insurance-company-limited-another/) **Published:** November 22, 2024 **Author:** LawFoyer **Excerpt:** This case addresses the dispute over the repudiation of life insurance claims under policies issued to the deceased by Future Generali India Life Insurance Company. The insurer denied the claims based on alleged material suppression of existing insurance policies by the insured. **Content:** ### A) Abstract / Headnote This case addresses the dispute over the repudiation of life insurance claims under policies issued to the deceased by Future Generali India Life Insurance Company. The insurer denied the claims based on alleged material suppression of existing insurance policies by the insured. The complainant, the insured’s daughter and nominee, contended that the insurer failed to substantiate its allegations with documentary proof. Key legal principles such as **Section 45 of the Insurance Act, 1938 (pre-amendment)**, **burden of proof under the Indian Evidence Act, 1872**, and the **contra proferentem rule** guided the Supreme Court’s reasoning. The court scrutinized the insurer’s evidence and observed that the burden of proof for alleging fraudulent suppression rests squarely with the insurer, which it failed to meet. The Court ultimately set aside the repudiation, reinforcing the principle of **uberrimae fidei** and clarifying the obligations of both insurer and insured in life insurance contracts. ### Keywords: Insurance repudiation, **Section 45 of Insurance Act**, burden of proof, **contra proferentem rule**, consumer rights. #### B) Case Details i) **Judgment Cause Title:** *Mahakali Sujatha v. The Branch Manager, Future Generali India Life Insurance Company Limited & Another* ii) **Case Number:** Civil Appeal No. 3821 of 2024 iii) **Judgment Date:** 10 April 2024 iv) **Court:** Supreme Court of India v) **Quorum:** Justice B.V. Nagarathna and Justice Augustine George Masih vi) **Author:** Justice B.V. Nagarathna vii) **Citation:** \[2024\] 4 S.C.R. 724; 2024 INSC 296 viii) **Legal Provisions Involved:** - **Insurance Act, 1938, Section 45 (Pre-amendment)** - **Evidence Act, 1872, Sections 101-103, 106** - **Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002** ix) **Judgments Overruled by the Case (if any):** No explicit overruling but distinguished from **Reliance Life Insurance Co Ltd v. Rekhaben Nareshbhai Rathod**. x) **Case Related to Law Subjects:** Insurance Law, Consumer Law, Contract Law, Law of Evidence. ### C) Introduction and Background of Judgment The case revolves around the repudiation of life insurance claims on grounds of alleged non-disclosure of pre-existing insurance policies. The appellant, Mahakali Sujatha, is the nominee of the deceased insured, who held two policies from Future Generali. The policies promised accidental death benefits. Following the insured’s death in an accident, the claims were rejected, citing fraudulent suppression of material facts. The District Forum and State Commission ruled in favor of the complainant, but the National Consumer Disputes Redressal Commission (NCDRC) reversed the decisions. The appellant approached the Supreme Court challenging the NCDRC’s findings. ### D) Facts of the Case 1. The deceased insured took two life insurance policies worth ₹4,50,000 and ₹4,80,000 in 2009 and 2010, respectively. The appellant was the nominee. 2. The insured died in a train accident on 28 February 2011. The appellant filed claims for the policy benefits, which were repudiated by the insurer on 31 December 2011. 3. The insurer alleged the insured suppressed material information about 15 prior insurance policies from other insurers, totaling ₹71,27,702. 4. The appellant contested the insurer’s claims, arguing no documentary evidence substantiated the suppression allegations. 5. While the District Forum and State Commission ruled against the insurer for lack of evidence, the NCDRC accepted the insurer’s version based on an affidavit listing the alleged policies. ### E) Legal Issues Raised 1. Whether the insurer was justified in repudiating the claims on grounds of material suppression of pre-existing insurance policies. 2. Whether the burden of proof was adequately discharged by the insurer under Section 45 of the Insurance Act, 1938. 3. Whether the contra proferentem rule applied to the ambiguous terms in the proposal form. ### F) Petitioner/Appellant’s Arguments 1. The appellant contended the insurer failed to provide credible evidence proving the insured held prior policies. 2. Section 45 of the Insurance Act required the insurer to establish fraudulent suppression and materiality of facts, which was not done. 3. The insurer relied on unsubstantiated tabulated data without corroborative documentary or oral evidence. 4. Ambiguities in the proposal form’s queries regarding pre-existing policies should be interpreted in favor of the insured, invoking the contra proferentem rule. ### G) Respondent’s Arguments 1. The insurer argued that the insured deliberately withheld information about 15 prior insurance policies. 2. The non-disclosure violated the principle of utmost good faith (uberrimae fidei), rendering the policies void. 3. The insurer relied on details listed in an affidavit and contended that these were not refuted by the appellant. 4. The respondent invoked the Supreme Court’s ruling in *Reliance Life Insurance Co Ltd v. Rekhaben Nareshbhai Rathod*, which upheld repudiation in similar circumstances. ### H) Judgment #### a. Ratio Decidendi 1. Section 45 of the Insurance Act requires the insurer to prove fraudulent suppression and materiality of non-disclosed facts. 2. The insurer’s evidence (an affidavit listing alleged prior policies) lacked corroboration through documentary or oral evidence. 3. The contra proferentem rule mandated interpreting ambiguities in the proposal form in favor of the insured. #### b. Obiter Dicta 1. The principle of **uberrimae fidei** imposes reciprocal duties of disclosure on both parties to an insurance contract. 2. The NCDRC erred by presuming the insurer’s allegations to be valid without sufficient proof. #### c. Guidelines (If Any) 1. Insurers must substantiate allegations of material suppression with clear, corroborative evidence. 2. Courts must carefully examine ambiguities in proposal forms and interpret them in favor of the insured. ### I) Conclusion & Comments The Supreme Court’s judgment reinforces consumer protection principles, emphasizing insurers’ burden of proof in repudiation cases. It underscores the reciprocal duties of good faith in insurance contracts and clarifies the applicability of Section 45 of the Insurance Act. The decision sets a significant precedent, balancing insurer rights with consumer interests. ### J) References #### a. Important Cases Referred 1. *Reliance Life Insurance Co Ltd v. Rekhaben Nareshbhai Rathod* (2019) 6 SCC 175 2. *Mithoolal Nayak v. Life Insurance Corporation of India* AIR 1962 SC 814 3. *Manmohan Nanda v. United India Insurance Co. Ltd.* (2022) 4 SCC 582 4. *Sahara India Life Insurance Co. Ltd. v. Rayani Ramanjaneyulu* (2014) SCC OnLine NCDRC 525 #### b. Important Statutes Referred 1. Insurance Act, 1938, Section 45 2. Evidence Act, 1872, Sections 101-106 3. Insurance Regulatory and Development Authority Regulations, 2002 **Categories:** Case Analysis --- ### [16th LawFoyer Quiz on Bhartiya Nyaya Sanhita (BNS) & Indian Penal Code (IPC): Register by 16th November](https://lawfoyer.in/16th-national-quiz-on-bhartiya-nyaya-sanhita-bns-indian-penal-code-ipc-by-lawfoyer-register-by-16th-november/) **Published:** October 6, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/10/Final-Poster-149-724x1024.jpg) --- [Download Updated Answer Key](https://lawfoyer.in/wp-content/uploads/2024/11/Answer-Key-on-Bhartiya-Nyaya-Sanhita-BNS-and-Indian-Penal-Code-IPC-1.pdf) --- [Check Results](https://lawfoyer.in/result-of-16th-lawfoyer-quiz-on-bhartiya-nyaya-sanhita-bns-indian-penal-code-ipc/) [Download E-Certificate](https://lawfoyer.in/certificate-of-16th-lawfoyer-quiz-on-bhartiya-nyaya-sanhita-bns-indian-penal-code-ipc/) --- ## Dates - **Date of Quiz:- 17/11/2024** **(5 Pm)** - **Last Date to Apply:-** **16/11/2024, 11:00 pm** - **Result Declaration:-** **21/11/2024** ## Prizes - **1st Prize- Rs 3000 + Winner Trophy** **+ Hardcopy Certificate of (Excellence & Participation)** - **2nd Prize- Rs 1500 + 1st Runner Up Trophy** **+ Hardcopy Certificate of (Excellence & Participation)** - **3rd Prize- Rs 1000 + 2nd Runner Up Trophy** **+ Hardcopy Certificate of (Excellence & Participation)** - **4th-10th Prize- Rs 200 +** **Certificate of (Excellence & Participation)** - **FREE Practice E-Book with 1000 + MCQs for Practice** - **Free 2 AI Plagiarism Report by Turnitin.** - **Participation Certificate for All the Registered Participants** - **Top 10 Rank will get 50% Discount on Publication at LawFoyer International Journal (ISSN: 2583-7753)**. 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(This includes time for filling the basic details like Name, email, etc.) - **Every question carries 04 marks & there will be no negative marking.** - The Result will be declared on **21st November 2024** ([www.lawfoyer.in](https://lawfoyer.in/)). # Registration Form **Categories:** Events, Quiz --- ### [GENERAL DEFENCES OF TORTS](https://lawfoyer.in/general-defences-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** ### GENERAL DEFENCES #### VOLENTI NON FIT INJURIA **Meaning and Definition** Volenti non fit injuria is a Latin maxim meaning “to a willing person no injury is done”. It is an important defence in tort law. This doctrine states that if a person voluntarily agrees to suffer harm or take a risk they cannot later complain about or sue for damages resulting from that harm or risk. The essence of this defence is that the plaintiff voluntarily assumed the risk and consented to it. For this defence to apply two key elements must be present: 1. The plaintiff had full knowledge of the risk involved 2. The plaintiff voluntarily accepted that risk Simply knowing that a risk exists is not enough. The plaintiff must have agreed to accept or run the risk. Mere knowledge does not imply assent. **Essentials of the Defence** For the defence of volenti non fit injuria to succeed the defendant must prove: 1. The plaintiff was fully aware of the risk and nature of the harm 2. The plaintiff voluntarily agreed to incur that risk 3. The agreement to incur the risk was freely given 4. The harm suffered falls within the scope of the risk agreed to 5. The plaintiff’s consent was not obtained by fraud or under compulsion The onus is on the defendant to establish all these elements. If any element is missing the defence will fail. **Types of Consent** Consent by the plaintiff can be express or implied: - Express consent – Given explicitly through words or writing - Implied consent – Inferred from the plaintiff’s conduct and circumstances For example inviting someone to your house implies consent for them to enter. Participating in a contact sport implies consent to suffer injuries common in that sport. **Exceptions and Limitations** The defence of volenti non fit injuria does not apply in certain situations: 1. **Rescue cases** – A person who voluntarily tries to rescue someone from danger created by the defendant’s negligence can still sue if injured 2. **Employer-employee relationships** – An employee under economic compulsion to accept a risky job is not considered to have voluntarily assumed the risk 3. **Negligence of the defendant** – The defence does not apply if the harm was caused by the defendant’s negligence rather than an inherent risk the plaintiff accepted 4. **Contractual duty** – The defence cannot be used to avoid a contractual duty of care 5. **Statutory duty** – It cannot be used as a defence for breach of statutory duty in most cases **IMPORTANT CASE LAWS** 1. **Smith v Baker & Sons (1891)** **Facts:** The plaintiff was employed by the defendants to drill holes in rocks. A crane was used to move stones over the plaintiff’s head. The plaintiff was aware of this danger but continued working. A stone fell and injured him. **Held:** The House of Lords held that mere knowledge of the risk was not enough. The plaintiff had not voluntarily agreed to waive his right to sue if injured. The defence of volenti non fit injuria failed. 2. **ICI Ltd v Shatwell (1965)** **Facts:** Two brothers working as shot firers in a quarry deliberately disobeyed safety regulations and tested detonators without taking proper precautions. One brother was injured in the resulting explosion. **Held:** The House of Lords allowed the defence of volenti non fit injuria. The injured brother had full knowledge of the risk and voluntarily agreed to run it by deliberately ignoring safety rules. 3. **Titchener v British Railways Board (1983)** **Facts:** The plaintiff was injured while traveling on the outside of a train carriage despite clear warnings not to do so. **Held:** The Court of Appeal held that volenti applied. The plaintiff had voluntarily accepted the obvious risk by choosing to travel dangerously despite warnings. 4. **Morris v Murray (1991)** **Facts:** The plaintiff agreed to go on a short flight with the defendant pilot who was visibly drunk. The plane crashed and the plaintiff was injured. **Held:** The Court of Appeal allowed the volenti defence. By choosing to fly with a drunk pilot the plaintiff had voluntarily accepted an obvious and serious risk. 5. **Kirkham v Chief Constable of Manchester (1990)** **Facts:** A suicidal prisoner hanged himself using his torn-up shirt. His widow sued the police for negligence. **Held:** The Court of Appeal rejected the volenti defence. A mentally ill person could not give true consent to self-harm. The police still owed a duty of care. **Comparison with Contributory Negligence** Volenti non fit injuria and contributory negligence are related but distinct concepts: **Volenti non fit injuria:** - Complete defence if established - Based on voluntary assumption of risk - Plaintiff consents to run the risk - No negligence by plaintiff required **Contributory negligence:** - Partial defence – reduces damages - Based on plaintiff’s lack of care - No consent to risk required - Plaintiff must have been negligent If volenti applies there is no liability. With contributory negligence liability is apportioned based on comparative fault. ## PLAINTIFF THE WRONGDOER – DEFENCE OF TORT **Meaning and Explanation** The defence of “plaintiff the wrongdoer” in tort law is based on the principle that a person should not be able to profit from their own wrongful conduct. This defence argues that if the plaintiff was engaged in illegal or wrongful activity at the time of the alleged tort they may be barred from recovering damages. The rationale is that the law should not assist someone who comes to court with “unclean hands”. However this defence has limited applicability in tort law. The mere fact that the plaintiff was engaged in some illegal or wrongful conduct does not automatically bar their claim. There must be a sufficient connection between the plaintiff’s wrongdoing and the harm suffered. **Legal Maxim** The legal maxim underlying this defence is “***ex turpi causa non oritur actio***” which means “from a dishonorable cause an action does not arise”. This maxim originates from contract law but has been applied in some tort cases as well. **Application in Tort Law** In tort law the application of this defence is more restricted compared to contract law. The general principle is that the mere fact that the plaintiff was a wrongdoer does not disentitle them from recovering damages for harm caused by the defendant’s tortious act. For the defence to succeed the defendant must show that: 1. The plaintiff’s wrongful conduct was the direct cause of the harm suffered 2. There is a sufficient connection between the illegality and the tort claim 3. Allowing the claim would be contrary to public policy The courts are reluctant to completely bar tort claims on this ground as it may leave genuine victims without remedy. The wrongful conduct of the plaintiff is more commonly considered in assessing contributory negligence rather than as a complete defence. **IMPORTANT CASES** **Bird v Holbrook (1828)** **Facts:** The plaintiff trespassed into the defendant’s garden and was injured by a spring gun set up by the defendant without any warning notice. **Held:** The plaintiff was entitled to damages despite being a trespasser. The defendant’s act of setting up the spring gun without notice was considered excessive. **Revill v Newbery (1996)** **Facts:** The plaintiff a burglar was shot and injured by the defendant homeowner while attempting to break in. **Held:** The homeowner was liable as the force used was excessive. The plaintiff’s illegal conduct did not bar the claim entirely but reduced damages for contributory negligence. **Exceptions and Limitations** There are some situations where the plaintiff’s wrongful conduct may bar recovery: 1. Where allowing the claim would permit the plaintiff to profit from their own crime 2. Where the tort claim is so closely connected to the plaintiff’s illegal enterprise that allowing it would appear to condone the illegality 3. Where the plaintiff suffers injury while voluntarily participating in a serious criminal joint enterprise with the defendant **Comparison with Contributory Negligence** The defence of plaintiff the wrongdoer should be distinguished from contributory negligence: 1. Plaintiff the wrongdoer is a complete defence while contributory negligence only reduces damages 2. Plaintiff the wrongdoer involves intentional wrongdoing while contributory negligence involves carelessness 3. Plaintiff the wrongdoer focuses on the illegality of conduct while contributory negligence considers the reasonableness of conduct ## INEVITABLE ACCIDENT AS DEFENCE OF TORT **Meaning and Definition** Inevitable accident refers to an unexpected injury that could not have been foreseen or avoided despite reasonable care by the defendant. It serves as a complete defence to liability in tort law. According to Pollock an inevitable accident “does not mean absolutely inevitable but it means not avoidable by any such precautions as a reasonable man doing such an act then and there could be expected to take.” The key elements are: - The injury was unexpected - It could not have been foreseen - It could not have been avoided even with reasonable care - The defendant neither intended to cause injury nor was negligent **Essentials of Inevitable Accident** For the defence of inevitable accident to succeed the defendant must prove: 1. The accident was not foreseeable by a reasonable person in the defendant’s position 2. The accident was not preventable even if reasonable precautions were taken 3. The defendant was not negligent in any way that contributed to the accident 4. The accident occurred despite the defendant exercising reasonable care and skill 5. There was no practical way for the defendant to avoid or prevent the accident **Exceptions to Inevitable Accident Defence** The defence of inevitable accident does not apply in the following situations: 1. If the event was foreseeable and consequences could have been avoided by reasonable precautions 2. If there was any negligence on part of the defendant that contributed to the accident 3. If the defendant failed to take due care and precautions that a reasonable person would have taken 4. If the accident occurred due to a defect in the defendant’s property or equipment which could have been discovered by proper inspection 5. In cases of absolute liability or strict liability where foreseeability and fault are irrelevant **Comparison with Act of God** While inevitable accident and act of God are similar defences there are some key differences: **Inevitable Accident:** - Can involve human agency - Not limited to natural forces - Broader in scope **Act of God:** - Involves only natural forces - No human intervention - More limited in scope Both defences require the event to be unforeseeable and unavoidable. However act of God is limited to extraordinary natural occurrences while inevitable accident can include human actions. **Negligence v/s Inevitable Accident** For the defence of inevitable accident to succeed it is crucial that there was no negligence on part of the defendant. Some key points regarding negligence and inevitable accident: - Even a slight degree of negligence will negate this defence - The standard of care expected is that of a reasonable prudent person - Failure to take reasonable precautions amounts to negligence - If the accident could have been prevented by exercising due care it is not inevitable - Foreseeable risks must be guarded against to avoid negligence **Defences Distinguished from Inevitable Accident** 1. **Act of God:** Limited to extraordinary natural events while inevitable accident can include human agency 2. **Volenti non fit injuria:** Requires consent of plaintiff while inevitable accident involves no consent 3. **Contributory negligence:** Involves fault of plaintiff while in inevitable accident neither party is at fault 4. **Necessity:** Deliberate choice to cause harm while inevitable accident is unintentional 5. **Mistake:** Involves error of judgment while inevitable accident involves no error just unforeseen event **Legal Principles** Some key legal principles related to inevitable accident are: - It is a complete defence if successfully established - The burden of proof lies on the defendant to show it was an inevitable accident - A very high degree of care is expected of the defendant - Mere difficulty in avoiding the accident is not enough it must have been practically impossible to prevent - Foreseeability of the general risk is not enough it must have been unforeseeable in the specific circumstances **IMPORTANT CASE LAWS** **Stanley v. Powell \[1891\]** **Facts:** The plaintiff and defendant were members of a shooting party. The defendant fired at a pheasant but the shot glanced off an oak tree and injured the plaintiff. **Held:** The injury was accidental and the defendant was not liable as it was an inevitable accident that could not have been foreseen or prevented. **Holmes v. Mather \[1875\]** **Facts:** The defendant’s horses were startled by a dog barking. Despite the driver’s best efforts to control them they knocked down the plaintiff. **Held:** The defendant was not liable as it was an inevitable accident beyond the driver’s control despite exercising due care. **Brown v. Kendall \[1850\]** **Facts:** While trying to separate two fighting dogs the defendant accidentally hit the plaintiff in the eye who was standing nearby. **Held:** It was a case of pure accident for which no action could lie as it was unforeseeable and unavoidable. ## ACT OF GOD **Meaning and Definition** Act of God serves as a valid defence in tort law. It refers to extraordinary natural events that could not have been reasonably foreseen or guarded against. The defence applies when damage results from natural forces without human intervention. Courts have defined Act of God as an extraordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against. **Essential Elements** For the Act of God defence to apply two key elements must be present: 1. There must be working of natural forces 2. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against 3. The event must arise from natural causes directly and exclusively without human intervention. It must be something which no amount of foresight pains and care reasonably to be expected could have prevented. **Distinction from Other Defences** Act of God differs from inevitable accident in that it involves natural forces rather than human actions. Unlike private defence it does not involve intentional harm to an innocent party. The key is that the event was unforeseeable and its consequences unavoidable despite reasonable precautions. **Examples of Act of God Events** Courts have recognized the following as potential Acts of God: 1. Exceptionally heavy rainfall 2. Storms and tempests 3. Tidal waves 4. Earthquakes 5. Volcanic eruptions However normal rainfall or weather patterns that could be anticipated do not qualify as Acts of God. The occurrence must be truly extraordinary. **IMPORTANT CASES** **Nichols v. Marsland (1876)** **Facts:** The defendant created artificial lakes by damming streams. An extraordinary heavy rainfall caused the embankments to give way washing away the plaintiff’s bridges. **Held:** The defendants were not liable as the loss occurred due to an Act of God. The rainfall was stated to be the heaviest in human memory and could not have been reasonably anticipated. **Kallulal v. Hemchand (1958)** **Facts:** A wall collapsed during 2.66 inches of rainfall killing two children. **Held:** The Madhya Pradesh High Court ruled this was not an Act of God. That level of rainfall during monsoon season was foreseeable and should have been guarded against. **Ramalinga Nadar v. Narayan Reddiar (1971)** **Facts:** Goods were stolen from the defendant’s lorry by an unruly mob. **Held:** The Kerala High Court ruled criminal activities of a mob cannot be considered an Act of God. Only events traced to natural forces with no human intervention qualify. **Key Legal Principles** 1. The Act of God must be the sole cause of the damage without any contributing human negligence 2. Normal weather patterns or natural events that are foreseeable do not qualify 3. The defendant bears the burden of proving it was an Act of God 4. Human activities that merely trigger a natural event do not negate the defence **Limitations on Act of God Defence** The defence has been limited in several ways by courts: 1. It does not apply if human negligence contributed to the damage 2. Foreseeable natural events even if severe may not qualify 3. Man-made hazards exacerbated by natural forces are not Acts of God 4. Gradual natural processes like erosion are not sudden Acts of God ## PRIVATE DEFENCE **Meaning and Definition** Private defence refers to the legal right to use reasonable force to protect oneself or one’s property from unlawful harm. It serves as a valid defence against tort liability in certain circumstances. The law permits individuals to take necessary action to safeguard their person or possessions when faced with imminent threat even if it results in harm to the aggressor. **Essentials of Private Defence** To successfully claim private defence several key elements must be established: 1. **Imminent Threat:** There must be an immediate danger to one’s person or property. Mere apprehension of future harm is insufficient. 2. **Reasonable Force:** The force used in defence must be proportionate to the threat faced. Excessive force negates the defence. 3. **Necessity:** Private defence can only be invoked when absolutely necessary to prevent harm. Alternative non-violent options if available should be exhausted first. 4. **Good Faith:** The defender must have an honest belief that defensive action was required even if that belief later proves mistaken. 5. **Against Wrongdoer:** Force can only be used against the actual aggressor not innocent third parties. **Scope and Limitations** While private defence provides legal protection it is not an absolute right and has defined boundaries: 1. **Defence of Person:** Individuals can use reasonable force to protect themselves or others from physical assault or unlawful detention. 2. **Defence of Property:** Reasonable measures can be taken to prevent trespass theft or damage to one’s property. 3. **No Retaliation:** Force cannot be used as revenge after the threat has ended. It must be contemporaneous with the attack. 4. **No Excessive Force:** The response must be proportional. Deadly force is only justified to prevent death or grievous harm. 5. **Duty to Retreat:** In some jurisdictions there may be a duty to retreat if safe to do so before using force. 6. **Against State Action:** Generally private defence cannot be claimed against lawful actions of state authorities. **Legal Provisions** The right of private defence finds recognition in various statutes: 1. **Bharatiya Nyay Sanhita:** Sections 34 to 44 talk about the right of private defence of body and property. 2. **Indian Penal Code 1860:** Sections 96 to 106 detail the right of private defence of body and property. 3. **Criminal Procedure Code 1973:** Section 46 allows use of force to resist wrongful arrest. 4. **Arms Act 1959:** Section 22 permits possession and use of arms in private defence. **IMPORTANT CASE LAWS** Several landmark judgments have shaped the jurisprudence on private defence: 1. **Darshan Singh v. State of Punjab (2010):** Supreme Court held that right of private defence extends to defending any stranger not just one’s relations. 2. **Vidhya Singh v. State of Madhya Pradesh (1971):** Laid down that private defence can be claimed even against acts done under a mistaken impression of right. 3. **Munney Khan v. State of Madhya Pradesh (1970):** Clarified that threat perception must be judged from defender’s viewpoint not with the wisdom of hindsight. 4. **James Martin v. State of Kerala (2004):** Emphasized that private defence is a right and duty promoting rule of law not lawlessness. 5. **Bhagwan Swarup v. State of UP (2008):** Ruled that force used in defence must not exceed what is strictly necessary to repel attack. **Types of Private Defence** Private defence can be broadly classified into two categories: **Defence of Person:** This includes: 1. Self-defence against physical assault 2. Defence of family members or strangers 3. Prevention of kidnapping or wrongful confinement **Defence of Property:** This covers: 1. Protection against trespass 2. Safeguarding movable and immovable property 3. Prevention of theft mischief or destruction **Doctrines Related to Private Defence** Certain key legal doctrines govern the application of private defence: 1. **Doctrine of Necessity:** Private defence is rooted in the principle that extraordinary situations may require extraordinary responses. 2. **Doctrine of Reasonableness:** The force used must be reasonable judged from the position of a person of ordinary prudence. 3. **Doctrine of Imminence:** There must be immediate apprehension of danger not merely future or past threats. 4. **Doctrine of Proportionality:** The harm inflicted in defence should not be disproportionate to the harm sought to be averted. **Exceptions to Private Defence** Private defence cannot be claimed in certain situations: 1. **Against Lawful Acts:** No defence lies against acts done by public servants in good faith under color of office. 2. **Sufficient Time to Recourse:** If there is opportunity to seek help from public authorities private defence may not apply. 3. **Excessive Force:** Use of force more than what is necessary vitiates the defence. 4. **Self-induced Confrontation:** An attack cannot be deliberately provoked to claim private defence is impermissible. 5. **Initial Aggressor:** Generally an aggressor cannot claim private defence unless they withdraw from conflict. **Comparison with Criminal Law** While private defence in tort law shares similarities with criminal law some key differences exist: 1. **Burden of Proof:** In criminal cases the prosecution must disprove private defence. In torts defendant bears the onus. 2. **Standard of Proof:** Criminal law requires proof beyond reasonable doubt. Civil cases follow preponderance of probabilities. 3. **Consequences:** Criminal law provides immunity from punishment. Tort law only exempts from civil liability. 4. **Scope:** Criminal law allows defence of strangers. Tort law traditionally focused on self-defence and defence of close relations. ## MISTAKE AS DEFENCE OF TORT **Meaning and Explanation** Mistake refers to an incorrect belief or understanding about a fact or legal position. In tort law mistake generally does not serve as a valid defence to liability. This means a defendant who commits a tort based on a mistaken belief is usually still held responsible for the resulting harm. The underlying principle is that a person should bear the consequences of their actions even if done under an honest misapprehension. **General Rule: No Defence** The general rule is that mistake whether of fact or law does not provide a defence to tortious liability. This applies to most intentional torts as well as negligence claims. Some key aspects of this rule are: 1. A defendant who mistakenly believes they have a right to interfere with another’s property or person is still liable for trespass or battery. 2. Mistakenly believing one owns property does not negate liability for trespass to land or goods. 3. An honest but incorrect belief about the lawfulness of one’s conduct is not a defence. 4. Good faith or absence of improper motive does not excuse tortious acts done under mistake. 5. The defendant’s state of mind or intent is generally irrelevant – the focus is on the resulting harm. **Rationale Behind the Rule** There are several policy reasons why mistake is not accepted as a general defence in tort law: 1. It incentivizes people to be careful and verify facts before acting to avoid harming others. 2. It places the burden on the mistaken party rather than the innocent victim. 3. It provides certainty and clarity in the law by focusing on objective conduct rather than subjective beliefs. 4. It aligns with the compensatory aims of tort law to make victims whole for harm suffered. 5. Allowing mistake as a broad defence could enable defendants to easily evade liability. **Exceptions to the Rule** While mistake is not a general defence some specific torts allow mistake to negate liability in certain circumstances: 1. **Defamation:** An honest and reasonable mistake of fact may provide a defence to defamation in some jurisdictions. This recognizes the importance of free speech and good faith reporting. 2. **Malicious Prosecution:** A prosecutor who makes an honest mistake about the facts or law in initiating proceedings is not liable. Malice and lack of reasonable cause must be proven. 3. **Deceit:** An honest belief in the truth of a statement even if mistaken negates liability for fraudulent misrepresentation. The defendant must lack fraudulent intent. 4. **Negligence:** In some cases an honest and reasonable mistake may negate breach of duty. However unreasonable mistakes do not provide a defence. **Mistake of Fact v/s Mistake of Law** Courts sometimes distinguish between mistakes of fact and mistakes of law in determining liability: 1. **Mistake of Fact:** An erroneous belief about a factual circumstance. For example mistakenly thinking a car belongs to you. Generally not a defence in tort law. 2. **Mistake of Law:** An incorrect understanding about legal rights or obligations. For example believing you have a legal right to enter someone’s property. Almost never accepted as a defence. 3. **Mistake of Fact is a better defence than Mistake of Law:** Mistake of law is treated more strictly as everyone is presumed to know the law. Mistake of fact may occasionally provide a defence if it negates the required mental element for certain torts. **IMPORTANT CASES** Several key cases have established and applied the rule that mistake is not a defence in tort law: 1. **Consolidated Co v Curtis \[1892\] 1 Q.B. 495:** An auctioneer who sold goods believing they belonged to his customer was still liable for conversion when it turned out the customer did not own them. His honest mistake was no defence. 2. **Fowler v Lanning \[1959\] 1 QB 426:** The defendant shot the plaintiff mistaking him for a burglar. He was held liable for battery despite the mistake of fact. The court stated mistake is not a defence to intentional torts. 3. **R v Bilbie \[1800\] EWHC KB J6:** Established the principle that ignorance of the law is no excuse whether in criminal or civil matters. This extends to mistake of law in tort cases. **Comparison with Contract Law** The approach to mistake in tort law contrasts with contract law where certain types of mistakes can void a contract: 1. In contract law mutual mistake about a fundamental fact can make an agreement void. 2. Unilateral mistake may sometimes allow rescission of a contract. 3. Mistake of law can occasionally provide relief from contractual obligations. 4. Tort law takes a stricter approach as it deals with non-consensual interactions and aims to compensate victims. ## NECESSITY AS A DEFENCE OF TORT **Meaning and Definition** Necessity is an important defence available in tort law. It allows a person to escape liability for committing an otherwise tortious act if it was done out of necessity to prevent a greater harm. The rationale behind this defence is that sometimes breaking the law may be justified to avoid a more serious evil or danger. According to Salmond necessity is that which makes the conduct of an unlawful act unavoidable in order to escape from a greater peril. The maxim “necessitas non habet legem” meaning “necessity knows no law” aptly captures the essence of this defence. Comparison with Other Defences Necessity should be distinguished from other related defences: - **Private defence:** In necessity harm is inflicted on an innocent party whereas in private defence harm is caused to the wrongdoer. - Inevitable accident: In necessity harm is intended and deliberately inflicted whereas in inevitable accident harm is unintentional despite best efforts to avoid it. - Act of God: Necessity involves human agency whereas Act of God refers to natural forces beyond human control. Essential Elements For the defence of necessity to succeed the following elements must be established: 1. There must be an imminent threat or danger 2. The threat must be to life property or other recognized interest 3. The action taken must be reasonably necessary to avoid the danger 4. The harm caused must not be disproportionate to the harm avoided 5. There must be no reasonable alternative course of action available Types of Necessity Necessity can be of two types: 1. Public necessity: Where action is taken to protect wider public interests. 2. Private necessity: Where action is taken to protect private interests. Generally public necessity provides complete immunity whereas private necessity only provides a qualified defence. Legal Principles Some key legal principles governing necessity as a defence are: - The defence is available only when the danger is imminent and there is no other reasonable alternative. - The action taken must be reasonably necessary and proportionate to avoid the danger. - The defendant must not have been responsible for creating the situation of necessity. - Even if necessity is established compensation may still be payable in some cases. IMPORTANT CASES Some landmark cases that have shaped the law on necessity are: Mouse’s Case (1609) - Facts: Goods were thrown overboard from a barge to prevent it from sinking in a storm. - Held: The action was justified by necessity to save lives. No liability for trespass to goods. **Cope v Sharpe (1912)** - Facts: Defendant entered plaintiff’s land to prevent spread of fire to adjoining property. - Held: Entry was justified by necessity to prevent greater harm. No liability for trespass. **RE F (Mental Patient: Sterilisation) (1990)** - Facts: Court allowed sterilization of a mentally disabled woman. - Held: Sterilization was necessary to protect her best interests as she was incapable of consenting. Leigh v Gladstone (1909) - Facts: Forcible feeding of a hunger-striking prisoner was challenged. - Held: The action was justified by necessity to save the prisoner’s life. No liability for battery. Southwark LBC v Williams (1971) - Facts: Homeless families occupied empty council houses. - Held: Necessity could not justify trespass to land in this case as danger was not imminent. Exceptions and Limitations The defence of necessity is subject to certain exceptions and limitations: - It cannot be invoked for homicide except in very rare circumstances. - Economic necessity is generally not accepted as a valid defence. - The defence fails if the defendant was responsible for creating the situation of necessity. - Even if necessity is established compensation may still be payable in some cases. - The defence does not apply if there were reasonable alternatives available. Legal Provisions There are no specific statutory provisions on necessity as a defence in tort law. It has evolved through common law. However some statutes recognize necessity in specific contexts: - Section 81 of Indian Penal Code recognizes necessity as a defence in criminal law. - Section 52 of Indian Forest Act allows entry into reserved forests in emergencies. - Section 38 of Police Act provides immunity for acts done in good faith. Doctrines and Theories Some key doctrines and theories related to necessity are: - Doctrine of lesser evil: Breaking the law is justified to prevent a greater harm. - Theory of social utility: Necessary actions serve a greater social purpose. - Utilitarian theory: Actions that produce the greatest good for the greatest number are justified. Maxims and Principles Some relevant legal maxims are: - *Necessitas non habet legem* – Necessity knows no law - *Quod necessitas cogit defendit* – What necessity forces it justifies - *Necessitas publica major est quam privata* – Public necessity is greater than private necessity. ## STATUTORY AUTHORITY **Meaning and Definition** Statutory authority refers to the legal defence that protects a person or entity from liability for actions taken under powers granted by legislation. It provides immunity against tort claims when harm results from lawfully exercising statutory powers. This defence recognizes that Parliament may authorize conduct that would otherwise be tortious. **Legal Basis and Rationale** The rationale behind statutory authority as a defence stems from the principle that what is authorized by law cannot be wrongful. Parliament through legislation may permit certain activities for public benefit even if they cause harm to individuals. The defence balances public good against private rights. It prevents courts from indirectly negating powers granted by the legislature. **Essential Elements** For statutory authority to succeed as a defence the following key elements must be established: - The defendant’s actions were explicitly or implicitly authorized by statute - The defendant acted within the scope of powers granted - Any resulting harm was an inevitable consequence of exercising those powers - Reasonable care was taken in exercising the statutory powers - The statute does not provide for compensation for the specific harm caused **Scope and Limitations** While statutory authority provides a strong defence it is not absolute. Courts interpret its scope narrowly to protect individual rights. The defence only covers actions reasonably necessary to fulfill statutory objectives. It does not extend to negligent exercise of powers or ultra vires acts. Liability may still arise if the defendant had discretion in how to exercise the power. **Types of Statutory Authority** Statutory authority as a defence can be categorized into two main types: 1. Absolute Authority: This provides complete immunity even if the authorized act inevitably causes harm or nuisance. For instance railway companies often have absolute authority to construct and operate rail lines despite noise or vibrations affecting nearby properties. 2. Conditional Authority: This only permits acts that can be carried out without causing harm or nuisance. The authority is conditional on avoiding unnecessary damage. For example a local council may have conditional authority to construct a hospital as long as it does not create a public nuisance. **Key Legal Principles** Several important legal principles govern the application of statutory authority as a defence: - Strict compliance with statutory conditions is required - The defence only covers damage that is an inevitable result of the authorized act - Negligence in exercising statutory powers is not protected - The defence does not apply if reasonable alternative methods could have avoided the harm - Statutes are presumed not to authorize nuisances unless clearly stated **Defences to Statutory Authority** While statutory authority is itself a defence certain arguments can potentially defeat this defence: - The defendant acted negligently in exercising the statutory power - The harm caused went beyond what was authorized or contemplated by the statute - Alternative methods were available that could have avoided or minimized the harm - The statute provides for compensation for the type of harm caused - The defendant’s actions were ultra vires or outside the scope of authority granted. **IMPORTANT CASES** **Vaughan v. Taff Vale Railway Co. (1860)** - Facts: Sparks from the defendant’s train engine set fire to the plaintiff’s woods. - Held: The railway company was not liable as it was authorized by statute to operate trains and had taken proper precautions. **Hammersmith and City Railway v. Brand (1869)** - Facts: Vibrations from an authorized railway line damaged nearby houses. - Held: No liability as the damage was an inevitable consequence of exercising statutory powers. **Allen v. Gulf Oil Refining Ltd (1981)** - Facts: Oil refinery authorized by statute caused nuisance to neighbors. - Held: Statutory authority provided a complete defence against nuisance claims. **Categories:** Articles, Law of Torts --- ### [REMOTENESS OF DAMAGES UNDER LAW OF TORTS](https://lawfoyer.in/remoteness-of-damages-under-law-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** **Meaning & Definition** Remoteness of damage refers to the legal principle that limits a defendant’s liability for consequences of their wrongful act. It addresses how far liability extends for the chain of consequences flowing from a tort. The law does not hold a defendant liable for all consequences no matter how remote or unforeseeable. A line must be drawn somewhere to limit liability on practical grounds. As **Lord Wright** stated “*The Law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection because it were infinite for the law to judge the causes of causes or consequences of consequences.*“ The principle of remoteness determines which consequences are too remote to be compensated and which are sufficiently proximate for the defendant to be liable. It limits liability to consequences that have a close causal connection to the wrongful act. **Historical Background** The remoteness principle developed as courts recognized the need to place reasonable limits on tort liability. Two main tests emerged historically: 1. **The test of reasonable foresight:** Liability limited to consequences a reasonable person could foresee. 2. **The test of directness:** Liability for all direct consequences whether foreseeable or not. These competing approaches were reconciled in the landmark **Wagon Mound case** in 1961 which established reasonable foreseeability as the primary test. **Test of Reasonable Foresight** Under this test a defendant is liable only for consequences that could have been reasonably foreseen by a reasonable person in their position. Unforeseeable consequences are considered too remote. This test was articulated in cases like **Rigby v. Hewit** and **Greenland v. Chaplin**. It limits liability to foreseeable harm rather than all possible consequences no matter how unlikely. The reasonable foresight test aims to strike a balance between compensating victims and not imposing excessive liability on defendants for highly improbable consequences. **Test of Directness** The directness test holds defendants liable for all direct consequences of their wrongful act whether foreseeable or not. It focuses on the chain of causation rather than foreseeability. This test was applied in ***Re Polemis and Furness Withy & Co Ltd***. The court held that once an act is negligent the defendant is liable for all direct consequences even if the exact result was not foreseeable. The directness test imposes broader liability than the foreseeability test. It was ultimately rejected as the primary test for remoteness. **The Wagon Mound Case** The seminal case of ***Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound)*** in 1961 marked a turning point. It rejected the directness test and firmly established reasonable foreseeability as the proper test for remoteness. **Facts:** The defendant’s ship leaked oil into Sydney Harbour. The oil drifted to the plaintiff’s wharf. Sparks from welding ignited the oil damaging the wharf. The defendant could not foresee the oil catching fire. **Issue:** Whether the defendant was liable for the fire damage which was not reasonably foreseeable. **Held:** The Privy Council held the defendant was not liable as the fire damage was not reasonably foreseeable. It rejected the directness test from Re Polemis. The court ruled that a defendant is liable only for damage of a type that was reasonably foreseeable even if the extent of damage was greater than expected. Unforeseeable types of damage are too remote. **Key Principles from Wagon Mound:** 1. Reasonable foreseeability is the proper test for remoteness of damage. 2. A defendant is liable only for damage of a type that was reasonably foreseeable. 3. The defendant need not foresee the exact manner or extent of damage. 4. Unforeseeable types of damage are too remote to be compensated. 5. The directness test from Re Polemis was rejected as unsound. The Wagon Mound case established a narrower scope of liability based on foreseeability rather than mere directness of consequences. It aimed to achieve a fairer balance between compensating victims and limiting excessive liability. **Application in Subsequent Cases** The reasonable foreseeability test from Wagon Mound has been consistently applied in subsequent cases: **Hughes v Lord Advocate (1963):** A child was injured when a paraffin lamp exploded in an unguarded manhole. Held: The defendants were liable as some injury from the lamp was foreseeable even if the exact manner was not. **Doughty v Turner Manufacturing Co (1964):** An asbestos lid fell into molten metal causing an unexpected chemical reaction and explosion. Held: The explosion was unforeseeable so the defendants were not liable for that damage. **S.C.M. (United Kingdom) Ltd v W.J. Whittall & Sons (1971):** A damaged cable cut power to a factory. Held: Loss of production was foreseeable so defendants were liable. These cases show courts applying the foreseeability test to determine whether particular consequences were too remote. **Essentials of Remoteness** The key elements in applying the remoteness principle are: 1. There must be a wrongful act by the defendant. 2. The wrongful act must cause some damage to the plaintiff. 3. The court must determine if the particular damage claimed was reasonably foreseeable. 4. Damage of an unforeseeable type will be considered too remote. 5. The defendant need not foresee the precise details or extent of damage. 6. Once damage of a type is foreseeable the defendant is liable for the full extent. 7. The test is objective based on what a reasonable person would foresee. 8. Foreseeability is judged at the time of the wrongful act not with hindsight. **Types of Damage** Courts distinguish between different types of damage in assessing remoteness: 1. **Physical Injury:** Generally more foreseeable and recoverable. 2. **Property Damage:** Often foreseeable especially to nearby property. 3. **Economic Loss:** May be too remote unless closely tied to physical damage. 4. **Psychiatric Harm:** Recoverable if a recognized psychiatric illness results. The type of damage claimed affects whether it will be considered reasonably foreseeable or too remote. **Exceptions and Limitations** Some exceptions and limitations to the remoteness principle include: - **Egg-shell skull rule:** The defendant must take the victim as they find them. - **Novus actus interveniens:** An unforeseeable intervening act may break the chain of causation. - **Intentional torts:** A wider range of consequences may be recoverable for intentional wrongs. - **Statutory liability:** Legislation may impose liability without the usual remoteness limits. These rules can affect the application of remoteness in particular cases. **Procedure for Assessing Remoteness** Courts follow this general procedure in applying the remoteness principle: 1. Identify the wrongful act of the defendant. 2. Determine what damage resulted from that act. 3. Assess whether that type of damage was reasonably foreseeable. 4. If foreseeable the defendant is liable for the full extent of damage. 5. If unforeseeable the damage is too remote and not recoverable. 6. Consider any relevant exceptions or limitations. The onus is on the defendant to prove the damage was too remote if that is raised as a defense. **Categories:** Articles, Law of Torts --- ### [NUISANCE UNDER LAW OF TORTS](https://lawfoyer.in/nuisance-under-law-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** **Meaning Definition and Explanation of Nuisance** Nuisance in tort law means unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it. It involves acts interfering with comfort health or safety. The interference may be through noise vibrations heat smoke smell fumes water gas electricity excavation or disease-producing germs. Nuisance differs from trespass in that trespass involves direct physical interference with possession of land while nuisance involves consequential interference with use or enjoyment. **Types of Nuisance** There are two main types of nuisance: 1. **Public Nuisance:** This is interference with the right of the public in general and is punishable as a criminal offence. Examples include obstructing a public way. No individual can bring a civil action unless they suffer some special or particular damage different from what is inflicted on the public as a whole. 2. **Private Nuisance:** This is a civil wrong involving interference with an individual’s use or enjoyment of land. It requires proving: - Unreasonable interference - Interference with use or enjoyment of land - Damage **Essentials of Private Nuisance** 1. **Unreasonable Interference:** The interference must be unreasonable not just any minor disturbance. What is unreasonable varies based on locality. As stated in ***Sturges v. Bridgman (1879)*** “*what would be a nuisance in Belgrade Square would not necessarily be so in Bremondsey.*“ 2. **Interference with Use or Enjoyment of Land:** This can involve: 1. *Injury to the property itself* 2. *Injury to comfort or health of occupants* 3. **Damage:** Unlike trespass actual damage must be proved in nuisance though it is often presumed by law. **Unreasonable Interference** Not every interference constitutes nuisance. The interference must be unreasonable. As stated in ***Radhey Shyam v. Gur Prasad (1978)*** substantial addition to noise in a noisy locality seriously interfering with physical comfort amounts to nuisance. Factors considered include: - *Nature of locality* - *Sensitivity of plaintiff* - *Public good (not a defence)* - *Reasonable care taken (generally not a defence)* In ***Ushaben v. Bhagya Laxmi Chitra Mandir (1978)*** it was held that hurt to religious feelings by exhibiting a film was not actionable nuisance as plaintiffs were free not to watch it. **Interference with Use or Enjoyment of Land** This can occur in two ways: 1. **Injury to Property:** Unauthorized interference causing damage to property through tangible or intangible objects. This was applied in the case of ***Helen’s Smelting Co. v. Tipping (1865)*** where fumes damaged trees and shrubs. 2. **Injury to Comfort/Health:** Substantial interference with comfort and convenience in using premises. Minor inconvenience is not enough. The standard is based on notions of reasonable people as stated in Bland v. Yates (1914). **Nuisance to Incorporeal Property** This includes: 1. **Interference with Right of Support:** There is a natural right of support for land but not buildings unless acquired by grant or prescription. In Stroyan v. Knowles (1861) damage to a factory due to withdrawal of support to land was actionable. 2. **Interference with Right to Light and Air:** In England these are not natural rights but can be acquired by grant or prescription. In India they can be acquired as easements under Section 15 Indian Easements Act and Section 25 Limitation Act. **Damage in Nuisance** Unlike trespass actual damage must be proved in nuisance though it is often presumed by law. In ***Fay v. Prentice (1854)*** projecting cornice raised presumption of rainwater damage to garden. **Nuisance on Highways** Obstructing a highway or creating dangers on or near it constitutes nuisance. Examples include: - Forming queues blocking access ***(Barber v. Penley 1893)*** - Leaving vehicles without proper lights ***(Ware v. Garston Haulage Co. Ltd. 1944)*** - Broken windows near highway ***(Leanse v. Egerton 1943)*** - Excavations projections or dangerous substances on road **Defences to Nuisance** **Effectual Defences:** 1. **Prescriptive Right:** Right to commit nuisance may be acquired by 20 years peaceful open enjoyment as stated in *Sturges v. Bridgman (1879)*. 2. **Statutory Authority:** Acts authorized by statute are not liable for inevitable nuisance as held in *Hammersmith Railway Co. v. Brand (1869)*. **Ineffectual Defences:** 1. **Acts of Others:** Defendant cannot claim his act alone did not cause nuisance. 2. **Public Good:** Benefit to public is no defence as held in *Shelfer v. City of London Electric Lighting Co. (1895)*. 3. **Reasonable Care:** Taking reasonable precautions is generally no defence as per *Rapier v. London Tramways Co. (1893)*. 4. **Plaintiff Coming to Nuisance:** No defence that plaintiff moved to place of existing nuisance as per *Bliss v. Hall (1838)*. **Legal Provisions** The Indian Easements Act 1882 contains relevant provisions: - **Section 15** – Prescriptive rights for light and air - **Section 25** – Period for acquiring easement rights - **Section 33** – Right to sue for disturbance of easement - **The Limitation Act 1963 Section 25** also deals with prescriptive rights for light and air. **Key Case Laws** 1. **Helen’s Smelting Co. v. Tipping (1865) –** Fumes damaging trees constituted nuisance despite industrial locality. 2. **Sturges v. Bridgman (1879) –** Prescriptive right to commit nuisance runs from when act becomes actionable nuisance. 3. **Hollywood Silver Fox Farm Ltd. v. Emmett (1936) –** Malicious acts on own land causing damage to neighbor’s business is nuisance. 4. **Radhey Shyam v. Gur Prasad (1978) –** Substantial noise increase in noisy locality interfering with comfort is nuisance. 5. **Ushaben v. Bhagya Laxmi Chitra Mandir (1978) –** Hurt religious feelings from film not nuisance as plaintiffs could avoid watching. **Legal Maxims and Principles** 1. **De minimis non curat lex** – Law does not concern itself with trifles. 2. **Sic utere tuo ut alienum non laedas** – Use your property so as not to injure others’ property. 3. **Volenti non fit injuria** – No injury is done to a willing person *(not applicable to nuisance cases)*. **Doctrines** 1. **Coming to the nuisance doctrine** – Not accepted as defence that plaintiff moved to existing nuisance. 2. **Balancing of interests doctrine** – Courts balance rights of both parties in determining reasonableness. **Categories:** Articles, Law of Torts --- ### [DEFAMATION UNDER LAW OF TORTS](https://lawfoyer.in/defamation-under-law-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** ## MEANING & DEFINITION Defamation refers to injuring a person’s reputation through false statements. It involves publishing defamatory content about someone that tends to lower them in the estimation of right-thinking members of society. The law of defamation aims to protect reputation while balancing freedom of expression. Defamation can occur through spoken words (slander) or written/published content (libel). **Types of Defamation** Defamation is classified into two main types: **Libel:** This refers to defamation in a permanent form like writing printing pictures or statues. A defamatory statement in a newspaper article or book would constitute libel. **Slander:** This involves defamation in a transient form like spoken words or gestures. Verbally calling someone a thief in public would amount to slander. The key distinction is that libel is actionable per se while slander generally requires proof of special damages except in certain cases. However Indian law does not make this distinction for civil liability. ## ESSENTIALS For a statement to constitute defamation the following elements must be present: 1. The statement must be defamatory 2. It must refer to the plaintiff 3. It must be published Let’s examine each of these in detail: **The Statement Must Be Defamatory** A defamatory statement is one which tends to lower a person in the estimation of right-thinking members of society or causes them to be shunned or avoided. It must injure reputation and not merely hurt feelings. Whether a statement is defamatory depends on how reasonable members of society are likely to interpret it. **Some key points regarding defamatory statements:** - The standard applied is that of fair-minded citizens with average intelligence not any special class. - If the likely effect is injury to reputation it is defamatory even if not intended as such. - Mere vulgar abuse or insults are generally not considered defamatory unless they cause ridicule or humiliation. - Even statements of praise may be defamatory depending on the context and innuendo. **The Innuendo** Sometimes a statement may be prima facie innocent but have a latent defamatory meaning known as innuendo. The plaintiff must prove this secondary meaning to establish defamation. For example stating an unmarried woman has given birth could be defamatory due to the innuendo. **The Statement Must Refer to the Plaintiff** The plaintiff must prove the defamatory statement referred to them specifically. It is immaterial if the defendant did not intend to defame that particular person. If reasonable people could infer the statement was about the plaintiff that is sufficient. **Key points on reference to plaintiff:** - **Referring to a group/class:** No individual member can sue unless it can reasonably be considered to refer to them specifically. - **Defamation of deceased persons:** This is generally not actionable in tort law though it may be under criminal law. - **Defamation of companies:** A company can sue for defamation that harms its business reputation. **The Statement Must Be Published** Publication means communicating the defamatory matter to someone other than the person defamed. Mere communication to the plaintiff is not enough as defamation relates to injury to reputation in others’ estimation. **Key points on publication:** - Even dictating to one’s typist amounts to publication. - Sending a defamatory letter only to the plaintiff is not publication. - If a third party wrongfully reads a private letter it is not publication by the writer. - Publication to spouse: Communication between spouses is generally not considered publication. ## DEFENCES TO DEFAMATION The main defences available in a defamation action are: 1. Justification or Truth 2. Fair Comment 3. Privilege (Absolute and Qualified) **Justification or Truth** Truth is a complete defence to civil defamation. The defendant must prove the statement was substantially true. Even if published maliciously truth remains a valid defence. The rationale is that law will not allow damages for injury to a reputation one does not deserve. **Key points on the defence of truth:** - Under criminal law truth alone is not sufficient – it must also be for public good. - If the statement is substantially true minor inaccuracies will not defeat the defence. - The defendant bears the burden of proving truth. **Fair Comment** Fair comment on matters of public interest is a defence to defamation. The essentials are: - It must be a comment/opinion not assertion of fact - The comment must be fair - It must be on a matter of public interest **Key points on fair comment:** - The facts commented on must be true or privileged. - It is the honesty of the commentator’s opinion that matters not the court’s view on fairness. - Malice destroys this defence. - Public interest includes government administration public institutions courts etc. **Privilege** The law recognizes certain occasions as privileged where freedom of speech outweighs reputation rights. Privilege is of two types: **Absolute Privilege:** Provides complete immunity from defamation liability even if false or malicious. Applies to: - Parliamentary proceedings - Judicial proceedings - State communications **Qualified Privilege:** Provides conditional immunity defeated by proof of malice. Applies when there is: - A duty to make the statement - An interest in receiving it - Fair and accurate reporting of public proceedings ## LEGAL PROVISIONS AND PROCEDURE The law of defamation in India is governed by both civil and criminal laws: **Civil Law:** Defamation is a tort actionable under common law principles. The plaintiff can file a civil suit claiming damages. **Criminal Law:** Section 499 of the Indian Penal Code 1860 defines criminal defamation. Section 500 prescribes punishment of up to 2 years imprisonment and fine. **Key legal provisions:** - **Section 499 IPC:** Defines criminal defamation and provides exceptions - **Section 500 IPC:** Prescribes punishment for defamation - **Section 199 CrPC:** Procedure for prosecution of defamation The plaintiff in a civil defamation suit must prove: 1. The statement was defamatory 2. It referred to the plaintiff 3. It was published The defendant can then raise defences like truth fair comment or privilege. ## CASE LAWS AND PRECEDENTS Some landmark cases on defamation law in India: 1. **Subramanian Swamy v. Union of India (2016):** The Supreme Court upheld the constitutional validity of criminal defamation under Sections 499 and 500 IPC. 2. **Rajagopal v. State of Tamil Nadu (1994):** Established guidelines balancing freedom of press and right to privacy in defamation cases. 3. **Khushwant Singh v. Maneka Gandhi (2002):** Held that truth is a complete defence even if the publication was not for public good. 4. **P. Choudhary v. Manjulata (1997):** Awarded damages for defamatory news item published negligently without verification. 5. **Radheshyam Tiwari v. Eknath (1985):** Rejected defences of justification fair comment and qualified privilege for malicious publication. **Categories:** Articles, Law of Torts --- ### [TRESPASS UNDER LAW OF TORTS](https://lawfoyer.in/trespass-under-law-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** ## MEANING DEFINITION AND EXPLANATION **Trespass** refers to unlawful interference with a person’s body or property without justification. It is an intentional tort that protects individuals’ rights to personal integrity and exclusive possession of property. **Trespass** can be committed against a person (assault battery and false imprisonment) or against property (trespass to land and chattels). ## TYPES OF TRESPASS Trespass to Person includes: 1. **Assault:** An act that creates reasonable apprehension of imminent harmful or offensive contact. No actual contact is necessary. 2. **Battery:** Intentional and harmful or offensive touching of another person without consent. 3. **False Imprisonment:** Total restraint of a person’s freedom of movement without lawful justification even for a short duration. **Trespass to Property includes:** 1. **Trespass to Land:** Unjustified entry upon land in possession of another. 2. **Trespass to Chattels:** Intentional interference with another’s personal property. ## ESSENTIALS AND ELEMENTS **For Trespass to Person:** - Intentional act by defendant - Causing apprehension of contact (assault) or actual contact (battery) - Without consent of plaintiff - Resulting in harm or offense **For Trespass to Property:** - Direct interference with plaintiff’s possession - Intentional act by defendant - Without lawful justification - Regardless of actual damage ## LEGAL PROVISIONS AND PROCEDURE Trespass is primarily governed by common law principles developed through judicial precedents. Some key aspects: - Trespass is actionable per se without proof of actual damage - Plaintiff must prove intentional act by defendant and lack of consent - Defendant can raise defenses like consent necessity or self-defense - Remedies include damages and injunction Indian Penal Code sections relevant to trespass: - **Section 441:** Criminal trespass - **Section 442:** House trespass - **Section 447:** Punishment for criminal trespass ## CASE LAWS AND PRECEDENTS **Assault** **Stephens v. Myers (1830):** Advancing with clenched fist saying *“I would rather pull you out of chair”* constituted assault though stopped by another person. **Battery** **Cole v. Turner (1704):** Even touching of another in anger is a battery. **False Imprisonment** **Bird v. Jones (1845):** Total restraint of movement necessary. Partial obstruction insufficient. **Trespass to Land** **Entick v. Carrington (1765):** “Every invasion of private property be it ever so minute is a trespass.” **Trespass to Chattels** **Fouldes v. Willoughby (1841):** Mere touching or moving chattel without asserting right over it is not trespass. ## DEFENSES AND EXCEPTIONS 1. **Consent:** Express or implied consent negates trespass. 2. **Necessity:** Entry to property allowed to prevent greater harm. 3. **Self-Defense:** Reasonable force to protect oneself is justified. 4. **Statutory Authority:** Acts authorized by law are not trespass. 5. **Inevitable Accident:** Unintentional and unavoidable acts may be excused. 6. **Mistake:** Honest mistake may sometimes be a defense. 7. **Provocation:** May mitigate damages but not a complete defense. ## DOCTRINES AND THEORIES 1. **Doctrine of Transferred Intent:** Intent to commit one type of trespass transfers to another. 2. **Doctrine of Continuing Trespass:** Failure to remove object placed on land constitutes ongoing trespass. 3. **Doctrine of Trespass Ab Initio:** Lawful entry becomes trespass if subsequent conduct is unlawful. ## MAXIMS AND PRINCIPLES 1. *Volenti non fit injuria:* No injury is done to a willing person. 2. *De minimis non curat lex:* The law does not concern itself with trifles. 3. *Ex turpi causa non oritur actio:* No action arises from an immoral cause. 4. *Ubi jus ibi remedium:* Where there is a right there is a remedy. ## GUIDELINES & REGULATIONS 1. Entry to property requires consent of possessor or legal authority. 2. Force used in self-defense must be proportional to threat. 3. Police need warrant or probable cause for lawful entry into private property. 4. Trespassers must leave when asked by lawful possessor. 5. Reasonable force may be used to eject trespassers. 6. Prior warning or notice enhances claim of trespass. 7. Repeated trespass may warrant injunctive relief. ## FORMS AND MODES 1. **Continuing Trespass:** Failure to remove object placed on land. 2. **Trespass by Relation:** Retroactive trespass due to relation back of title. 3. **Conditional Trespass:** Entry exceeding scope of limited permission. 4. **Trespass by Necessity:** Justified intrusion to prevent greater harm. 5. **Trespass to Try Title:** Action to determine rightful possession of land. **Categories:** Articles, Law of Torts --- ### [ABUSE OF LEGAL PROCEDURE UNDER LAW OF TORTS](https://lawfoyer.in/abuse-of-legal-procedure-under-law-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** ## MEANING DEFINITION AND EXPLANATION **Abuse of legal procedure** refers to misusing judicial processes for improper purposes. It involves initiating legal actions maliciously without reasonable grounds. This tort aims to prevent misuse of the legal system to harass others. The main forms are malicious prosecution and malicious civil proceedings. ## MALICIOUS PROSECUTION Malicious prosecution occurs when someone institutes unsuccessful criminal proceedings against another person maliciously and without reasonable cause. It is defined as ***“a judicial proceeding instituted by one person against another from wrongful or improper motive and without probable cause to sustain it.”*** **Essential Elements** To succeed in an action for malicious prosecution the plaintiff must prove: 1. The defendant prosecuted the plaintiff 2. The prosecution was instituted without reasonable and probable cause 3. The defendant acted maliciously not just to carry out the law 4. The proceedings terminated in the plaintiff’s favor 5. The plaintiff suffered damage as a result **Prosecution by the Defendant** The plaintiff must prove the defendant actually prosecuted them. Merely giving information to police is not enough. The defendant must have been actively instrumental in initiating and pursuing the prosecution. In ***Gaya Prasad v. Bhagat Singh*** the Privy Council explained that the conduct of the complainant before and after the complaint must be examined to determine if they were the real prosecutor. If they knowingly make false charges and mislead police with false evidence they would be considered the prosecutor. **When Prosecution Commences** Prosecution is deemed to commence when a person is summoned to answer a complaint. Mere lodging of an FIR or police investigation does not amount to prosecution. **Proceedings Before Quasi-Judicial Authorities** Proceedings before some quasi-judicial bodies like professional regulatory boards may amount to prosecution. However departmental inquiries by disciplinary authorities are generally not considered prosecution. **Absence of Reasonable and Probable Cause** The plaintiff must prove the defendant prosecuted them without reasonable and probable cause. This means the defendant lacked an honest belief in the plaintiff’s guilt based on reasonable grounds. Mere suspicion is not enough. **Malice** The plaintiff must also prove the defendant acted maliciously with some improper motive other than bringing an offender to justice. Malice means the proceedings were initiated from an indirect and improper motive not to further justice. However malice alone is not sufficient if there was reasonable cause for prosecution. **Termination in Plaintiff’s Favor** The criminal proceedings must have terminated in the plaintiff’s favor. This does not require a judicial determination of innocence just absence of a finding of guilt. Acquittal discharge or discontinuation of prosecution suffices. **Damage** The plaintiff must prove they suffered damage as a result of the malicious prosecution. This can include damage to reputation liberty or property. Expenses incurred in defending oneself can be claimed as special damages. ## MALICIOUS CIVIL ACTIONS Generally no action lies for malicious civil proceedings. However in exceptional cases where costs do not adequately compensate the defendant an action may lie. Examples include malicious bankruptcy or winding up petitions which damage business reputation. **Essential elements are similar to malicious prosecution:** - Proceedings terminated in plaintiff’s favor - Absence of reasonable cause - Malice - Special damage beyond ordinary costs **Maintenance and Champerty** Maintenance refers to improperly encouraging litigation by providing financial assistance. Champerty is maintenance where the maintainer gets a share of the proceeds. These were historically prohibited as torts but are now largely obsolete. Common interest is a defense to maintenance. This includes assisting litigation by family members employers or those with a shared commercial interest. ## DAMAGES FOR MALICIOUS PROSECUTION In awarding damages courts consider: - Nature of charges against plaintiff - Inconvenience and distress suffered - Monetary losses incurred - Status and position of plaintiff Both general and special damages can be awarded. Fees paid to defend oneself can be claimed as special damages. General damages may be awarded for mental agony and loss of reputation. The plaintiff bears the burden of proving absence of reasonable cause. However where the defendant claimed to witness the offense and the plaintiff was acquitted on merits absence of reasonable cause is presumed. ## LEGAL PROVISIONS AND CASE LAWS **Section 211 of the Indian Penal Code** criminalizes false charges with intent to injure. The Code of Criminal Procedure allows compensation to the accused in cases of frivolous or vexatious accusations. **Key case laws:** - **West Bengal State Electricity Board v. Dilip Kumar Ray (2007)** – Explained essential elements of malicious prosecution which are as follows: - The defendant prosecuted the plaintiff - The prosecution was instituted without reasonable and probable cause - The defendant acted maliciously not just to carry out the law - The proceedings terminated in the plaintiff’s favor - The plaintiff suffered damage as a result - **Girja Prasad Sharma v. Umashankar Pathak (1973)** – Discussed liability of investigating officers - **B. Aggarwal v. P. Krishna Kapoor (1995)** – Outlined essentials for malicious civil proceedings - **Neville v. London Express Newspapers Ltd. (1919)** – Established common interest defense for maintenance - **Ram Coomar Coondoo v. Chunder Canto Mookherjee (1876)** – Discussed champerty agreements in India ## PRINCIPLES AND MAXIMS - “Actio non datur non damnificato” – An action is not given to one who is not injured - “Ubi jus ibi remedium” – Where there is a right there is a remedy - “De minimis non curat lex” – The law does not concern itself with trifles **Categories:** Articles, Law of Torts --- ### [REMEDIES FOR TORTS](https://lawfoyer.in/remedies-for-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** ## MEANING & DEFINITION **Remedies in tort law** refer to the legal measures available to victims to obtain relief for wrongs committed against them. The primary aim of tort remedies is to compensate the injured party and restore them to their original position as far as possible. Tort remedies seek to make the plaintiff whole again after suffering harm due to the defendant’s wrongful conduct. The main remedies in tort law include damages injunctions and specific restitution of property. ## TYPES OF REMEDIES **(1) Damages** Damages represent the most common remedy in tort cases. They involve monetary compensation awarded to the plaintiff for losses suffered. Courts may award different types of damages depending on the nature of the tort and harm caused: **Nominal Damages** These are awarded when the plaintiff’s legal right has been violated but no actual loss has occurred. Nominal damages recognize the infringement of a right even in the absence of tangible harm. For instance in Constantine v Imperial London Hotels Ltd the plaintiff was awarded nominal damages of five guineas when the defendant wrongfully refused him accommodation. **Contemptuous Damages** These are very small damages awarded when the court believes the plaintiff’s claim lacks merit. The amount is kept minimal to show the court’s low opinion of the case while technically finding for the plaintiff. **Compensatory Damages** This is the most common type aimed at compensating the plaintiff for actual losses suffered. It may cover medical expenses lost income pain and suffering and other quantifiable losses. The goal is to restore the plaintiff to their pre-tort position financially. **Aggravated Damages** These may be awarded when the defendant’s conduct was particularly outrageous or malicious causing heightened distress to the plaintiff. They compensate for the added insult or humiliation. **Exemplary/Punitive Damages** These go beyond mere compensation and aim to punish the defendant and deter similar conduct. They may be awarded for oppressive arbitrary or unconstitutional actions by government servants or when the defendant calculated that potential profits would exceed compensation payable. **Prospective Damages** These compensate for probable future losses resulting from the tort that have not yet materialized. For instance future medical expenses or loss of earning capacity due to an injury. **Injunctions** An injunction is a court order directing a party to perform or refrain from performing a specific act. Injunctions can be: - **Temporary/Interlocutory –** Granted before final judgment to preserve the status quo. - **Permanent/Perpetual –** Issued after full trial prohibiting an act indefinitely. - **Prohibitory –** Forbidding the defendant from doing something. - **Mandatory –** Requiring the defendant to take positive action. Injunctions are often used to stop ongoing torts like trespass or nuisance. For instance ordering the demolition of a wall obstructing the plaintiff’s right to light. **Specific Restitution of Property** This remedy requires the defendant to return specific property wrongfully taken from the plaintiff. It applies to both movable and immovable property. For example ordering the return of a stolen vehicle or restoration of wrongfully occupied land. ## PRINCIPLES FOR AWARDING DAMAGES **Measure of Damages for Personal Injury** Courts consider the following factors when assessing damages for personal injury: 1. **Pain and suffering –** Both physical and mental including loss of amenities of life. 2. **Actual pecuniary loss –** Medical expenses and other out-of-pocket costs. 3. **Loss of earnings –** Both past and future loss of income due to the injury. 4. **Cost of future care –** Ongoing medical treatment nursing care etc. 5. **Loss of earning capacity –** Reduction in ability to earn in the future. The courts aim to provide *“full and adequate”* compensation to restore the plaintiff’s position as far as money can. However the compensation must be fair and reasonable. **Prospective Damages** Courts may award damages for future losses that are reasonably likely to occur. This includes future medical expenses loss of future earnings and other anticipated losses flowing from the injury. The assessment involves estimating the plaintiff’s life expectancy and future needs. **Interest on Damages** Courts may award interest on the damages amount from the date of filing the lawsuit till payment. This compensates for the time value of money. Interest rates of 6-12% per annum are common. **Effect of Insurance Benefits** Generally amounts received by the plaintiff from insurance policies are not deducted from tort damages. This is based on the principle that the defendant should not benefit from the plaintiff’s prudence in obtaining insurance. **Damages for Shortened Life Expectancy** When a tort reduces the victim’s life expectancy courts may award damages for loss of expectation of life. This compensates for the lost years of life. In ***Gobald Motor Service Ltd v Veluswami*** the Supreme Court awarded Rs. 5000 for loss of expectation of life. **Damages Under Fatal Accidents Act** The Fatal Accidents Act 1855 allows dependents to claim compensation when a person’s death is caused by a wrongful act. Key principles include: 1. Only specified dependents like spouse children and parents can claim. 2. Damages aim to compensate for loss of financial support and services. 3. Insurance benefits and pensions are generally not deducted from damages. 4. Remarriage prospects of widow claimants may be considered. 5. Loss of consortium (spousal companionship) can be claimed. **Calculation Methods** 1. ***Multiplier Method*** – Annual dependency loss is multiplied by an appropriate number of years (multiplier) to arrive at the lump sum compensation. 2. ***Interest Method*** – Such lump sum is awarded that would yield interest equivalent to the annual loss. *The multiplier method is more commonly used by Indian courts.* Factors like age of deceased dependency period and interest rates are considered in selecting the multiplier. ## EXTRA-JUDICIAL REMEDIES Besides court-ordered remedies victims may resort to certain self-help measures in limited circumstances: 1. ***Re-entry on land*** – Recovering possession of property by reasonable force. 2. ***Recaption of chattels*** – Retaking wrongfully taken goods. 3. ***Abatement of nuisance*** – Removing or terminating a nuisance affecting one’s property. 4. ***Distress damage feasant*** – Seizing trespassing cattle or goods until compensation is paid. However these remedies carry the risk of escalating the conflict and should be used cautiously. Court remedies are generally preferable in most cases. ## CASE LAWS 1. ***Bhim Singh v State of J&K (1985):*** Supreme Court awarded exemplary damages of Rs. 50000 for wrongful detention of an MLA to prevent him from attending Assembly session. 2. ***Union of India v Sugrabai (1969):*** Compensation for death was calculated by capitalizing loss for 20 years. Rs. 30000 awarded. 3. ***Klaus Mittelbachert v East India Hotels Ltd (1997):*** 50 lakhs awarded to a German pilot for injuries suffered in hotel swimming pool due to insufficient depth. Exemplary damages imposed on 5-star hotel. 4. ***Berry v Humm & Co (1915):*** Husband entitled to claim damages for extra expenses incurred in engaging housekeeper after wife’s death. 5. ***Laxminarayan v Sumitra Bai (1995):*** Substantial damages awarded to girl for mental agony social stigma and diminished marriage prospects after breach of promise to marry. ## LEGAL MAXIMS AND DOCTRINES 1. *Restitutio in integrum –* Principle of restoring the injured party to original position. 2. *De minimis non curat lex –* The law does not concern itself with trifles. Basis for nominal damages. 3. *Injuria sine damno –* Wrong without damage. Supports award of nominal damages. 4. *Volenti non fit injuria –* No injury is done to a willing person. May reduce damages if plaintiff consented to risk. 5. *Mitigation of damages –* Plaintiff has a duty to take reasonable steps to minimize losses. **Categories:** Articles, Law of Torts --- ### [VICARIOUS LIABILITY UNDER LAW OF TORTS](https://lawfoyer.in/vicarious-liability-under-law-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** ## MEANING & DEFINITION **Vicarious liability** refers to the legal doctrine where one person is held responsible for the wrongful actions of another person. This concept is an exception to the general rule that individuals are liable only for their own wrongful acts. In vicarious liability, the law imposes responsibility on a person who did not directly commit the wrongful act but has a special relationship with the wrongdoer. The Latin maxim **“*respondeat superior*“** meaning **“let the master answer”** forms the basis of vicarious liability. Vicarious liability most commonly arises in three types of relationships: - Principal and agent - Partners in a partnership - Employer and employee (master and servant) The underlying rationale for vicarious liability is that the person held vicariously liable is often in a better position to compensate the victim and can more easily bear the financial burden of liability. It also incentivizes those in positions of authority to exercise proper care in selecting supervising and controlling those working under them. ## TYPES OF RELATIONSHIPS **Principal and Agent Relationship** In a principal-agent relationship the principal can be held vicariously liable for torts committed by the agent within the scope of the agency. The liability arises based on the legal principle “*Qui facit per alium facit per se*” which means “*he who acts through another acts himself*.” For any act authorized by the principal and carried out by the agent both can be held jointly and severally liable. The authority given to the agent may be express or implied. **Key points regarding principal-agent vicarious liability:** - The principal is liable even if the agent acted solely for personal benefit without the principal’s knowledge if it was within ostensible authority - Both principal and agent are considered joint tortfeasors - The plaintiff can choose to sue either the principal or agent or both A landmark case illustrating principal-agent liability is ***Lloyd v. Grace Smith & Co. \[1912\] AC 716***. In this case a solicitor’s clerk fraudulently induced a client to transfer property to himself. The House of Lords held the solicitor’s firm vicariously liable as the clerk was acting within his apparent authority even though it was for personal gain. **Partners in a Partnership** Partners in a firm are vicariously liable for torts committed by any partner in the ordinary course of partnership business. Key aspects include: - Liability of each partner is joint and several - All partners are considered joint tortfeasors - The wrongful act must be connected to the partnership business The case of ***Hamlyn v. Houston & Co. \[1903\] 1 KB 81*** illustrates partnership liability. One partner bribed the plaintiff’s clerk to divulge trade secrets. The court held both partners liable for the tort of inducing breach of contract even though only one partner committed the act. **Employer-Employee & Master-Servant** This is the most common form of vicarious liability. An employer can be held liable for torts committed by employees in the course of their employment. Key principles include: - The employer’s liability is based on the doctrine of “*respondeat superior*“ - Both employer and employee are joint tortfeasors with joint and several liability - The employer is liable even if the employee acted against express instructions ## ESSENTIALS Two key elements must be established for an employer to be vicariously liable: 1. *The tort was committed by a “servant” (employee)* 2. *The tort was committed in the “course of employment”* **Who is a Servant?** A servant is a person employed to do work under the direction and control of the employer regarding the manner of performing the work. This is distinct from an independent contractor who is not subject to such control. The “control test” is used to distinguish employees from independent contractors. ***Tirlok Singh v. Kailash Bharti 1986 ACJ 757*** An owner was not vicariously liable when his brother took his motorcycle without permission and caused an accident as there was no agency relationship. ***Rajasthan State Road Transport Corpn. v. K.N. Kothari AIR 1997 SC 3444*** The Supreme Court held that transfer of effective control over a servant can make the transferee vicariously liable even if the servant remains on the original owner’s payroll. **Course of Employment** For vicarious liability to arise the tort must be committed in the course of employment. This means the wrongful act must be: - Authorized by the employer or - So connected with authorized acts that it can be regarded as a mode of doing the authorized act **State Bank of India v. Shyama Devi AIR 1978 SC 1263** The Supreme Court held that a bank employee’s fraud was not within the course of employment so the bank was not vicariously liable. **Century Insurance Co. v. Northern Ireland Road Transport Board (1942)** Driver lit cigarette while transferring petrol causing explosion. It was held within course of employment as negligent mode of doing authorized work. **Limpus v. London General Omnibus Co. (1862)** Bus driver obstructed rival bus against express instructions. It was held within course of employment as wrongful mode of doing authorized act. **Exceptions to Employer’s Liability** An employer is generally not liable for: - Acts of independent contractors - Acts of employees outside the course of employment - Purely personal acts of employees unconnected to employment **Exceptions To Non-Liability For Independent Contractors** While employers are generally not liable for acts of independent contractors there are some exceptions: - Employer authorizes or ratifies an illegal act - Cases of strict liability (e.g. Rylands v Fletcher rule) - Extra hazardous work - Breach of statutory duty - Dangers caused on highways - Withdrawal of support from neighboring land - Breach of non-delegable duty towards employees ## IMPORTANT CASE LAWS The doctrine of vicarious liability is not codified in Indian statutes but has evolved through judicial precedents. Some key precedents include: **Fraud by Employee** Employers can be held liable for fraudulent acts of employees if committed in course of employment even if not for employer’s benefit. **Lloyd v. Grace Smith & Co. (1912)** - Facts: Clerk fraudulently obtained property from client - Held: Employer liable as fraud committed within apparent authority **Theft by Employee** Employers may be liable for theft by employees in certain cases: - **Cheshire v. Bailey (1905)** – Employer not liable for theft of bailed goods by employee - **Morris v. C.W. Martin & Sons Ltd (1965)** – Employer liable for theft of bailed goods by employee entrusted with them **Mistake by Employee** Employers are liable for mistakes made by employees in course of employment even if expressly prohibited. **Poland v. Parr & Sons (1927)** – Employer liable for excessive force used by employee to protect property **Negligence of Employee** Employers are liable for negligent acts of employees in course of employment even if for employee’s own comfort or convenience. - **Williams v. Jones (1865)** – Employer not liable for carpenter lighting pipe negligently - **Century Insurance Co v Northern Ireland Road Transport Board (1942)** – Employer liable for driver lighting cigarette negligently while transferring petrol **Hospital Cases And Vicarious Liability** The position on hospital liability has evolved over time: - Initially in **Hillyer v. St. Bartholomew’s Hospital \[1909\] 2 KB 820** hospitals were not held liable for negligence of professional staff due to lack of control - This changed with cases like **Gold v. Essex County Council \[1942\] 2 KB 293** where hospitals were held liable for negligence of staff including radiographers and surgeons - In **Cassidy v. Ministry of Health \[1951\] 2 KB 343** hospitals were held liable for post-operative negligence of staff The modern position is that hospital authorities can be vicariously liable for negligence of medical professionals employed by them. **Lending a Servant** When an employee is temporarily lent to another employer the question of vicarious liability depends on who has the right to control the manner of doing the work. In **Mersey Docks & Harbour Board v. Coggins & Griffiths (Liverpool) Ltd. \[1947\] AC 1**, the House of Lords held that for a crane driver lent with the crane the permanent employer remained vicariously liable as they retained control over how the crane was to be operated. **Categories:** Articles, Law of Torts --- ### [RULE OF STRICT AND ABSOLUTE LIABILITY UNDER LAW OF TORTS](https://lawfoyer.in/rule-of-strict-and-absolute-liability-under-law-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** ## RULE OF **STRICT LIABILITY** **Meaning and Origin** The rule of strict liability emerged from the landmark English case of ***Rylands v Fletcher*** in 1868. It imposes liability without proof of fault or negligence for damages caused by dangerous substances that escape. **Key Elements of Strict Liability** 1. **Dangerous Thing:** The defendant must bring some dangerous thing onto their land. 2. **Escape:** The dangerous thing must escape from the defendant’s control. 3. **Non-natural Use of Land:** The defendant’s use of the land must be considered non-natural or unusual. **Exceptions to Strict Liability** Courts have recognized several exceptions where strict liability does not apply: - Plaintiff’s own fault - Act of God - Consent of the plaintiff - Act of a third party - Statutory authority ## APPLICATION IN INDIA Indian courts initially followed the English rule of strict liability. However some exceptions were made: **Agricultural Water Storage Exception** In ***Madras Railway Co. v. Zamindar*** the Privy Council held that storing water for agriculture was not subject to strict liability due to India’s unique conditions. Liability arose only if due care was not taken. **Motor Vehicle Accidents** The Motor Vehicles Act 1988 introduced limited no-fault liability for motor accident claims. Fixed compensation can be claimed without proving fault for death (Rs 50000) or permanent disability (Rs 25000). **Railways Liability** The Indian Railways Act 1890 was amended in 1961 to change railways’ liability from that of a bailee to that of an insurer for goods carried. ***Rylands v Fletcher (1868)*** **Facts:** Defendant’s reservoir flooded plaintiff’s coal mines through old shafts. **Held:** Defendant strictly liable for escape of collected dangerous substance even without negligence. ## RULE OF ABSOLUTE LIABILITY **Origin and Rationale** The rule of absolute liability was formulated by the Supreme Court of India in M.C. Mehta v Union of India (1987) in response to the Oleum gas leak case. The court felt strict liability had too many exceptions and was inadequate for modern industrial hazards. **Key Features** 1. Applies to enterprises engaged in hazardous or inherently dangerous activities. 2. Imposes liability without any exceptions unlike strict liability. 3. Enterprise must indemnify all those affected regardless of whether it was careful. 4. Compensation must be correlated to magnitude and capacity of enterprise. 5. Based on principle that profit-making enterprises have a social obligation to compensate victims. ## ABSOLUTE LIABILITY APPLICATION **M.C. Mehta v Union of India (1987)** - **Facts:** Oleum gas leaked from factory in Delhi causing deaths and injuries. - **Held:** Enterprises engaged in hazardous activities absolutely liable to compensate all victims without exceptions. **Indian Council for Enviro-Legal Action v Union of India (1996)** - **Facts:** Chemical industries caused severe pollution in village. - **Held:** Polluting industries absolutely liable to pay for environmental restoration and compensate villagers. **Union Carbide Corporation v Union of India (1990) – Bhopal Gas Tragedy Case** - **Facts:** Methyl isocyanate gas leak from pesticide plant in Bhopal caused thousands of deaths. - **Held:** UCC absolutely liable to pay $470 million compensation to all victims of gas tragedy. **Environmental Pollution Cases** In ***Indian Council for Enviro-Legal Action v Union of India (1996)*** the Supreme Court applied absolute liability to industries causing environmental pollution. Polluting industries were ordered to pay for remedial measures and compensate affected villagers. **Other Applications** Courts have applied absolute liability in cases involving: - Injuries from defective hotel swimming pools - Deaths from electrocution due to negligent power companies - Damage from hazardous industrial waste ## PUBLIC LIABILITY INSURANCE ACT 1991 **Key Features:** 1. Mandates public liability insurance for enterprises handling hazardous substances. 2. Provides immediate relief to accident victims on no-fault basis. 3. Owner must take insurance before starting to handle hazardous substances. 4. Covers death injury or property damage from accidents while handling hazardous substances. 5. Based on principle of no-fault liability. ## COMPARISON OF STRICT AND ABSOLUTE LIABILITY - **Basis of Liability:** Strict liability arises from negligence while absolute liability is imposed regardless of fault or care taken. - **Exceptions:** Strict liability allows exceptions like act of God while absolute liability has no exceptions. - **Compensation:** Strict liability provides reasonable damages while absolute liability requires exemplary damages proportional to enterprise size. - **Applicability:** Strict liability applies to dangerous substances escaping from land. Absolute liability covers hazardous industrial activities. - **Standard of Care:** Strict liability considers precautions taken. Absolute liability disregards standard of care. - **Burden of Proof:** Plaintiff must prove escape in strict liability. No burden on plaintiff in absolute liability. **Categories:** Articles, Law of Torts --- ### [NEGLIGENCE: PROFESSIONAL, MEDICAL AND CONTRIBUTORY UNDER LAW OF TORTS](https://lawfoyer.in/negligence-professional-medical-and-contributory-under-law-of-torts/) **Published:** October 29, 2024 **Author:** LawFoyer **Content:** **MEANING DEFINITION AND EXPLANATION** Negligence is a crucial concept in tort law that involves failure to exercise reasonable care resulting in harm to another party. It occurs when a person breaches their duty of care owed to others through careless actions or omissions. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The Supreme Court in ***Jacob Mathew v. State of Punjab*** observed that negligence is the breach of a duty caused by omitting to do something which a reasonable person guided by considerations that ordinarily regulate human affairs would do or doing something which a prudent and reasonable person would not do. Actionable negligence involves the act of neglecting to use ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff suffers injury to person or property. **Negligence has three primary constituents:** - A legal duty to exercise due care owed by the defendant to the plaintiff - Breach of that duty by the defendant and - Consequential damage suffered by the plaintiff. According to Charlesworth & Percy negligence has three meanings in current forensic speech: - a state of mind opposed to intention - careless conduct and - breach of duty to take care imposed by common or statute law. **Negligence as a Tort and as a Crime** The term ‘negligence’ is used to fasten liability under both civil and criminal law. - In civil law the amount of damages incurred determines the extent of liability in tort. - However in criminal law it is the degree of negligence that determines liability rather than the quantum of damages. - To establish criminal negligence a higher degree of negligence must be proven compared to civil negligence. The essential ingredient of *mens rea* cannot be excluded when considering criminal negligence charges. As observed in **R. v. Lawrence** recklessness constituting mens rea in criminal law presupposes that there is something in the circumstances that would alert an ordinary prudent individual to the possibility of causing serious harm. The moral culpability of recklessness resides in the proximity of the reckless state of mind to the intention to cause harm. For criminal rashness or negligence it must be shown that the rashness was of such a degree as to amount to taking a hazard knowing that injury was most likely imminent. As stated in **Andrews v. Director of Public Prosecutions** a very high degree of negligence is required to establish criminal liability compared to civil liability. The negligence in criminal cases must be culpable or gross and not merely based on an error of judgment. ## ESSENTIALS OF NEGLIGENCE In an action for negligence, the plaintiff must prove three essential elements: 1. The defendant owed a duty of care to the plaintiff 2. The defendant breached that duty 3. The plaintiff suffered damage as a consequence of that breach 4. Duty of Care to the Plaintiff **(1) LEGAL DUTY** The plaintiff must establish that the defendant owed him a specific legal duty to take care which has been breached. This duty arises out of various relations which may not be possible to enumerate exhaustively. Courts recognize new duties when they consider it just. Lord Atkin propounded the **“neighbor principle”** in the landmark case of Donoghue v. Stevenson: “*You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor*.” He defined neighbors as “*persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.*“ This case established that a manufacturer owes a duty to take care that products do not contain noxious matter and will reach the ultimate consumer without reasonable possibility of intermediate examination. It did away with the “privity of contract fallacy” by allowing the consumer to sue the manufacturer in tort despite no contractual relationship. **Duty Depends on Reasonable Foreseeability of Injury** Whether the defendant owes a duty to the plaintiff depends on reasonable foreseeability of injury to the plaintiff. If at the time of the act or omission the defendant could reasonably foresee injury to the plaintiff he owes a duty to prevent that injury. The duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed. *To determine culpability we must consider what a reasonable person would have foreseen and how they would have behaved under the circumstances.* One useful test is to enquire how obvious the risk must have been to an ordinary prudent person. The standard of foresight of the reasonable person is in one sense an impersonal test independent of the idiosyncrasies of the particular person in question. **Some key cases illustrating this principle include:** - In **Glasgow Corp. v. Taylor** a child died after eating poisonous berries in a public garden. The corporation was held liable for not fencing the shrub or displaying warnings about the deadly berries which looked tempting to children. - In **Haley v. London Electricity Board** a blind man was injured after tripping on an insufficiently marked obstacle on the pavement. The court held the electricity board liable as blind pedestrians were reasonably foreseeable in London and extra precautions were required. - In **Paris v. Stepney Borough Council** an employer was held liable for not providing goggles to a one-eyed employee as the loss of his remaining eye was a foreseeable risk. Reasonable foreseeability does not mean remote possibility. The duty is to guard against probabilities rather than bare possibilities. In **Bolton v. Stone** the defendant cricket club was not liable when a ball hit outside the ground injured a passer-by as the chance of injury was very small. **(2) BREACH OF DUTY** Breach of duty means non-observance of due care required in a particular situation. The standard of care is that of a reasonable or ordinarily prudent person. If the defendant has acted like a reasonably prudent person there is no negligence. The law requires taking two factors into consideration to determine the standard of care required: - *The importance of the object to be attained* - *The magnitude of the risk* **a) The Importance of the Object to be Attained** The law permits taking some measure of risk so that activities in public interest can continue. A balance has to be drawn between the importance and usefulness of an act and the risk created. For example a certain speed may not be negligent for a fire brigade vehicle but may be negligent for another vehicle. In **Latimer v. A.E.C. Ltd.** the respondents were not liable for not closing down a factory after a flood left oily patches on the floor as the risk was not so great as to justify shutting down and laying off thousands of workers. **b) The Magnitude of Risk** The degree of care required varies according to each situation. What may be careful in one situation may be negligent in another. The kind of risk involved determines the precautions expected. Greater care is required when transporting inflammable materials than ordinary goods. **Some examples:** - A driver must take greater care when it is drizzling - A person carrying a loaded gun is expected to take more precaution than one carrying a stick - Greater care is needed while transporting petrol than milk **(3) DAMAGE** The plaintiff must show that the defendant’s breach of duty caused damage to the plaintiff. The damage must not be too remote a consequence of the negligence. The plaintiff has to prove all items of damages claimed. The court has the duty to assess damages applying the proper measure and considering remoteness. ## PROOF OF NEGLIGENCE: RES IPSA LOQUITUR As a general rule the plaintiff has to prove the defendant was negligent. However in certain cases when the accident explains only one thing – that it could not have occurred unless the defendant was negligent – the law raises a presumption of negligence based on the maxim ‘res ipsa loquitur’ which means ‘the thing speaks for itself.’ **For this maxim to apply:** 1. The event causing the accident must have been under the exclusive control of the defendant 2. The accident must be such as does not ordinarily occur without negligence **Some examples where *res ipsa loquitur* has been applied:** - Collapse of a building structure - Brick falling from a building and injuring a passer-by - Bus overturning on the road - Death caused by live broken electrical wire in a street - Foreign object left inside patient’s body after surgery The maxim shifts the burden of proof to the defendant to disprove negligence. It is not a rule of law but a rule of evidence benefiting the plaintiff. The defendant can avoid liability by disproving negligence on their part. The maxim does not apply if different inferences are possible from the facts. When the accident is capable of two explanations such a presumption is not raised. **Nervous Shock** This branch of tort law provides relief when a person suffers physical injury not by direct impact but merely through nervous shock by what they have seen or heard. Early cases like ***Victorian Railway Commissioner v. Coultas*** did not recognize such claims but later decisions have accepted liability for nervous shock without physical impact. **Key principles:** - Shock must arise from reasonable fear of immediate personal injury to oneself or close relatives - Plaintiff need not be in the area of physical injury but must be placed where injury through shock is foreseeable - Peculiar susceptibility of the plaintiff is no defense **Some Landmark Cases:** - ***Dulieu v. White*** – Pregnant woman suffered shock seeing horse van driven into pub - ***Hambrook v. Stokes*** – Mother suffered shock fearing for safety of children - ***Bourhill v. Young*** – Fishwife too far from accident scene to claim for shock The law on nervous shock continues to evolve as courts grapple with issues of remoteness and foreseeability in such cases. Overall negligence remains a complex area of tort law requiring careful analysis of duty breach and damage in each case. ## PROFESSIONAL AND MEDICAL NEGLIGENCE **Meaning & Definition** Professional negligence refers to a breach of duty of care by individuals possessing special skills or expertise. This concept applies to professionals such as doctors lawyers architects and others who profess specialized knowledge. The law expects these professionals to exercise reasonable competence and care in their practice. Medical negligence is a specific form of professional negligence. It occurs when a healthcare provider fails to provide the standard of care expected causing harm to a patient. This branch of law aims to protect patients from substandard medical practices while acknowledging the inherent risks in healthcare. **Elements of Professional Negligence** To establish professional negligence several key elements must be proven: - **Duty of Care:** The professional owed a duty of care to the client or patient. - **Breach of Duty:** The professional failed to meet the expected standard of care. - **Causation:** The breach directly caused harm to the client or patient. - **Damages:** The client or patient suffered quantifiable harm or loss. These elements form the foundation for assessing liability in professional negligence cases. **Standard of Care in Medical Profession** The standard of care expected from medical professionals is not perfection but reasonable competence. As explained in ***Jacob Mathew v. State of Punjab (AIR 2005 SC 3180)*** a doctor must exercise skill with reasonable competence. The court applied the Bolam test which states that a doctor is not negligent if they acted in accordance with a practice accepted by a responsible body of medical professionals. **Types of Medical Negligence** Medical negligence can manifest in various forms: - Misdiagnosis or Delayed Diagnosis - Surgical Errors - Medication Errors - Birth Injuries - Anesthesia Errors - Failure to Obtain Informed Consent Each type requires careful examination of the specific circumstances and medical standards involved. **Doctrine of Res Ipsa Loquitur** The doctrine of res ipsa loquitur (the thing speaks for itself) is often applied in medical negligence cases. It allows courts to infer negligence from the very nature of the accident or injury in the absence of direct evidence. This doctrine was applied in ***Aparna Dutta v. Apollo Hospital Enterprises Ltd. Madras (AIR 2000 Mad. 340)*** where a foreign object was left in the patient’s body after surgery. **Consent and Medical Treatment** Informed consent is a crucial aspect of medical treatment. Doctors have a duty to disclose material risks and obtain consent before proceeding with treatment. Failure to do so can constitute negligence. However in emergencies where obtaining consent is not feasible doctors may proceed with necessary treatment to save life or prevent serious harm. **Vicarious Liability in Medical Negligence** Hospitals and healthcare institutions can be held vicariously liable for the negligence of their employees. This principle was applied in ***R.P. Sharma v. State of Rajasthan (AIR 2002 Raj. 104)*** where the state-run hospital was held liable for the death caused by negligent transfusion of incorrect blood type. **Defences in Medical Negligence Cases** Several defences are available in medical negligence cases: - **Contributory Negligence:** When the patient’s own actions contributed to the harm. - **Volenti Non Fit Injuria:** The patient voluntarily assumed the risk. - **Error of Judgment:** A mere error of judgment is not negligence if it was a reasonable choice among accepted medical practices. These defences can mitigate or eliminate liability depending on the circumstances. **Compensation in Medical Negligence Cases** Courts consider various factors when awarding compensation in medical negligence cases: - Medical Expenses - Loss of Earnings - Pain and Suffering - Loss of Amenities - Future Care Costs The quantum of damages aims to put the victim as close as possible to their position before the negligent act. **Professional Negligence in Other Fields** While medical negligence is a prominent area professional negligence extends to other fields: - **Legal Negligence:** Lawyers may be held liable for errors in handling cases or providing legal advice. - **Architectural Negligence:** Architects can be liable for design flaws leading to structural issues. - **Accounting Negligence:** Accountants may face liability for errors in financial statements or tax advice. Each profession has its specific standards and expectations. **Landmark Cases in Professional and Medical Negligence** Several landmark cases have shaped the law of professional and medical negligence in India: - **Indian Medical Association v. V.P. Shantha (1995 6 SCC 651):** Established that medical services fall under the Consumer Protection Act. - **Jacob Mathew v. State of Punjab (AIR 2005 SC 3180):** Clarified the standard of care expected from medical professionals. - **State of Haryana v. Santra (AIR 2000 SC 1888):** Held doctors liable for negligence in failed sterilization operations. These cases provide essential guidance for interpreting and applying negligence laws. ## CONTRIBUTORY NEGLIGENCE **Meaning and Definition** Contributory negligence occurs when the plaintiff’s own lack of care contributes to the damage caused by the defendant’s negligence. It refers to the plaintiff’s failure to take reasonable care for their own safety which is a contributing factor to the harm suffered. The Supreme Court in ***Municipal Corporation of Greater Bombay v. Laximan Iyer*** explained that contributory negligence arises where an accident is due to negligence of both parties and both are to be blamed. The crucial question is whether either party could have avoided the consequences of the other’s negligence by exercising reasonable care. **Elements of Contributory Negligence** To establish contributory negligence the following elements must be proved: - The plaintiff failed to take reasonable care for their own safety - This failure was a contributing factor to the harm suffered by the plaintiff - A reasonable person in the plaintiff’s position would have foreseen the risk of harm - The plaintiff’s conduct fell below the standard of care expected of a reasonable person Contributory negligence is assessed based on the plaintiff’s conduct not in relation to any duty owed to the defendant. Rather it considers whether the plaintiff took due care for their own safety in the circumstances. **Effect of Contributory Negligence** Historically contributory negligence was a complete defence that barred the plaintiff’s claim entirely even if they were only slightly at fault. This harsh rule was eventually modified by courts through doctrines like “last opportunity” rule. Currently in most jurisdictions including India contributory negligence results in apportionment of damages rather than a complete bar to recovery. The compensation is reduced to the extent the plaintiff was at fault. The **Law Reform (Contributory Negligence) Act 1945** in England provides for apportionment of damages in cases of contributory negligence. While there is no central legislation in India some states like Kerala have enacted similar laws. Indian courts have generally followed the principle of apportionment in cases of contributory negligence. **Defence of Contributory Negligence** **How Far is Contributory Negligence a Defence** Contributory negligence operates as a partial defence that reduces the quantum of damages recoverable by the plaintiff. The defendant can plead contributory negligence to argue that the plaintiff’s own carelessness contributed to the harm suffered. If proved the court will apportion the damages based on the relative fault of both parties. **Rules to Determine Contributory Negligence** - The plaintiff’s negligence is assessed based on whether they took reasonable care for their own safety not in terms of any duty owed to the defendant - The plaintiff’s negligence must have contributed to the resulting damage – if the same damage would have occurred despite the plaintiff’s care contributory negligence cannot be pleaded - The standard of care expected from the plaintiff is that of a reasonable person in similar circumstances - Children are held to a lower standard of care than adults in determining contributory negligence **Doctrine of Alternative Danger** This doctrine provides that where the defendant creates a dangerous situation the plaintiff is justified in taking some risk to avoid it. If the plaintiff suffers harm while reasonably trying to escape the danger created by the defendant contributory negligence cannot be pleaded. For example in **Jones v. Boyce** the plaintiff jumped from a coach being driven negligently by the defendant and was injured. It was held that the plaintiff had acted reasonably under the circumstances and could recover damages. **Presumption That Others Are Careful** In certain situations the plaintiff is entitled to assume that others will take due care. For instance a passenger can presume that a transport provider has taken proper safety precautions. In such cases the plaintiff’s failure to double check safety measures may not amount to contributory negligence. **Contributory Negligence of Children** Courts take into account the age and capacity of children in determining contributory negligence. A young child cannot be expected to observe the same standard of care as an adult. In ***R. Srinivasa v. K.M. Parasivamurthy*** it was held that a 6-year-old child hit by a lorry near the footpath could not be blamed for contributory negligence as a child of that age does not have the road sense of adults. However if a child is capable of appreciating the danger they may be held guilty of contributory negligence. The standard is whether the child exercised the degree of care expected from a child of similar age intelligence and experience. **Doctrine of Identification** This doctrine provides that the contributory negligence of the plaintiff’s servant or agent can be attributed to the plaintiff. However the negligence of an independent contractor engaged by the plaintiff cannot be pleaded as contributory negligence against the plaintiff. For instance the negligence of a taxi driver cannot be used as a defence against a passenger injured due to the negligence of another vehicle. The doctrine of identification was at one time applied to children in the custody of adults but this has been overruled. In ***Oliver v. Birmingham and Midland Omnibus Co.*** a child injured in a road accident was not identified with his negligent grandfather and was allowed to recover damages. ## COMPOSITE NEGLI**GENCE** **Meaning and Definition** Composite negligence refers to a situation where the negligence of two or more persons results in the same damage to the plaintiff. The persons responsible are known as composite tortfeasors. Unlike contributory negligence composite negligence involves negligence by multiple defendants towards the plaintiff who is not at fault. **Nature of Liability in Composite Negligence** The liability of composite tortfeasors is joint and several. This means: - The plaintiff can sue any or all of the tortfeasors - Each tortfeasor is liable for the entire damage - The plaintiff can recover the full compensation from any one tortfeasor - A tortfeasor who pays more than their share can claim contribution from the others Most High Courts in India have held that there can be no apportionment of damages between composite tortfeasors. The plaintiff can enforce the entire claim against any of the defendants. This is based on the principle of joint and several liability. For example in ***Hira Devi v. Bhaba Kanti Das*** where an accident occurred due to negligence of drivers of a bus and a car the court held that the claimants could recover the entire amount from the bus owner. The bus owner could then seek contribution from the car owner. **Apportionment Between Tortfeasors** While courts generally do not apportion damages between composite tortfeasors some decisions have apportioned liability for determining contribution rights between the tortfeasors. In ***Amthiben v. Superintending Geophysicist ONGC*** the court apportioned liability between two negligent drivers at 75:25 but clarified that this was only to determine their inter se liability. The decree against them remained joint and several. ## COMPARISON BETWEEN CONTRIBUTORY AND COMPOSITE NEGLIGENCE Key differences between contributory and composite negligence: 1. In contributory negligence the plaintiff is partly at fault whereas in composite negligence only the defendants are negligent. 2. Contributory negligence results in apportionment of damages and reduction of compensation. In composite negligence there is joint and several liability without apportionment. 3. Contributory negligence is a defence that reduces liability. Composite negligence determines how liability is shared between multiple defendants. 4. In contributory negligence the court assesses the relative fault of plaintiff and defendant. In composite negligence the focus is on defendants’ respective liabilities. Contributory negligence involves balancing the plaintiff’s and defendant’s fault. Composite negligence deals with allocating liability between negligent defendants. **Categories:** Articles, Law of Torts --- ### [INTRODUCTION TO LAW OF TORTS](https://lawfoyer.in/introduction-to-law-of-torts/) **Published:** October 28, 2024 **Author:** LawFoyer **Content:** ## MEANING OF TORT **Origin and Etymology** The word tort originates from the Latin term “tortum” which means twisted or crooked. It refers to conduct that is not straight or lawful but rather twisted crooked or unlawful. The term tort is equivalent to the English word “wrong.” **Concept of Tort** A tort is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. It involves a breach of a civil duty owed to someone else. Torts are differentiated from criminal wrongs that breach public duties owed to the whole community. The primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. The injured party may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages. **Nature of Tort Law** Tort law consists of various torts or wrongful acts whereby the wrongdoer violates some legal right vested in another person. It imposes a duty to respect the legal rights of others. A person making a breach of that duty is said to have committed a wrongful act. As crime is a wrongful act resulting from breach of a duty recognized by criminal law likewise tort is a breach of duty recognized under tort law. **Examples of Torts** Some common examples of torts include: - **Defamation** – Violation of duty not to injure reputation - **Trespass** – Violation of duty not to interfere with possession of land - **Negligence** – Violation of duty to take reasonable care - **Nuisance** – Violation of duty not to interfere with quiet enjoyment of property - **Deceit –** Violation of duty not to defraud another **Difficulty in Defining Tort** No scientific definition of tort has been possible that could mention certain specific elements the presence of which could constitute a tort. The main reason is that different wrongs included under tort have diverse origins and historical backgrounds. Most tortious wrongs originated from writs of trespass and writs of trespass on the case. These writs were responsible for the origin of tort law and many other legal principles. **Ever-Expanding Nature** Tort law is an ever-growing branch of law that has constantly developed. The area covered in its ambit is continuously increasing. New torts continue to emerge to address novel situations and harms in society. ## DEFINITIONS OF TORT Some important definitions that indicate the nature of tort law are: **Limitation Act Definition** “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust” – *Section 2(m) of the Limitation Act 1963* **Salmond’s Definition** “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.” – *Salmond* **Winfield’s Definition** “Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” – *Winfield* **Fraser’s Definition** “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.” **–** *Fraser* **Key Elements in Definitions** The basic elements of tort indicated by these definitions are: - Tort is a civil wrong (*Tort is a* *wrong of breach of duty towards a person and is different from a criminal wrong*). - Every civil wrong is not a tort. There are other civil wrongs like breach of contract and breach of trust but Tort is distinct from these civil wrongs. - Tort is actionable for “unliquidated damages” *(damages which are not pre-determined)*. **Negative Approach in Definitions** The various definitions follow a negative approach. They explain tort by either: - Distinguishing it from other wrongs or - Mentioning elements found in tort but not in other wrongs **Process of Identifying a Tort** When some wrongful act has been done it must be seen: - Whether it is civil or criminal wrong - If civil whether it exclusively belongs to any other category like breach of contract/trust - If not exclusively any other civil wrong then it is a tort. ## TORT AS A CIVIL WRONG **Civil vs Criminal Wrong** Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from a criminal wrong: - In civil wrong the injured party (plaintiff) institutes civil proceedings against the wrongdoer (defendant) - The main remedy is damages – compensation paid by defendant to plaintiff - In criminal wrong proceedings are brought by the State against the accused - The victim is not compensated justice is administered by punishing the wrongdoer **Possibility of Both Civil and Criminal Wrong** It is possible that the same act may result in both a crime and a tort simultaneously. In such case both civil and criminal remedies would be concurrently available: - Civil action requiring defendant to pay compensation - Criminal action awarding punishment to wrongdoer For example, in a Defamation case a person can initiate a civil suit for injunction and can also initiate criminal proceedings for the Crime of Defamation. ## TORT DISTINGUISHED FROM OTHER CIVIL WRONGS **Tort vs Breach of Contract** Key differences between tort and breach of contract include: 1. **Source of Duty** - Tort – Duty imposed by law - Contract – Duty undertaken by parties themselves 2. **Privity of Duty** - Tort – Duty is towards persons generally - Contract – Duty only towards other contracting party 3. **Nature of Damages** - Tort – Always unliquidated damages - Contract – Can be liquidated or unliquidated damages 4. **Possibility of Overlap** Sometimes the same fact may result in both breach of contract and tort. For example: - Railway passenger injured due to negligence of driver - Breach of contract of safe carriage - Tort of negligence - Horse left for safekeeping dies of starvation - Breach of bailment contract - Tort of negligence In such cases plaintiff cannot claim damages twice over. They have choice to sue for either breach of contract or commission of tort. **Tort vs Breach of Trust** Key differences: 1. **Nature of Damages** - Breach of trust – Liquidated damages (ascertainable loss) - Tort – Unliquidated damages 2. **Classification** - Breach of trust – Part of law of property - Tort – Separate branch of law 3. **Historical Origin** - Breach of trust – Redressed in Court of Chancery - Tort – Originated as part of Common Law **Tort vs Quasi-Contract** Key differences: 1. **Nature of Duty** - Quasi-contract – Duty towards particular person - Tort – Duty towards persons generally 2. **Nature of Remedy** - Quasi-contract – Only monetary compensation - Tort – Damages and other remedies available 3. **Nature of Compensation** - Quasi-contract – Generally liquidated sum - Tort – Always unliquidated damages ## ESSENTIALS OF TORT Three essential conditions must be satisfied to constitute a tort: 1. **Wrongful Act or Omission** There must be some act or omission on part of defendant. Either: - A positive wrongful act - An omission which is illegally made **Examples:** - Act of trespass - Publishing defamatory statement - Wrongful detention of person - Failure to fence dangerous area in public park The wrongful act/omission must be one recognized by law. Mere moral or social wrong is not sufficient. 2. **Legal Damage (Injuria)** There must be violation of a legal right vested in the plaintiff. Two aspects: - Violation of legal right (injuria) - Actual loss or harm (damnum) may or may not be present Two maxims explain this: **Injuria Sine Damno** - Violation of legal right without actual loss/damage - Actionable in tort law **Damnum Sine Injuria** - Actual loss/damage without violation of legal right - Not actionable in tort law The real test is whether a lawful right of plaintiff has been violated not whether plaintiff has suffered any loss. 3. **Action for Unliquidated Damages** There are two types of damages on the basis of “when they are determined”: 1. **Liquidated Damages**: These are pre-determined as these can be anticipated in advance before the commission or civil wrong itself. These maybe be agreed by parties before the wrong is committed. 2. **Unliquidated Damages**: These are determined after the commission of civil wrong and after suffeting legal injury as these cannot be pre-determined and cannot be anticipated in advance. For any Tort unliquidated damages can be claimed which are determined by Court. **IMPORTANT CASE LAWS** **Ashby v White (1703)** **Facts:** Plaintiff was wrongfully prevented from voting in parliamentary election. Candidate he wanted to vote for won anyway. **Held:** Defendant liable as plaintiff’s legal right to vote was violated even though no actual loss suffered. **Principle:** ***Injuria sine damno*** – violation of legal right is actionable even without proof of actual damage. **Gloucester Grammar School Case (1410)** **Facts:** Defendant set up rival school causing plaintiffs to reduce fees. Plaintiffs suffered financial loss. **Held:** Defendants not liable as they had not violated any legal right of plaintiffs. **Principle: *Damnum sine injuria*** – mere loss without violation of legal right is not actionable. **Bradford Corporation v Pickles (1895)** **Facts:** Defendant maliciously dug well on his land diverting water from plaintiff’s land. **Held:** Defendant not liable as he was exercising his lawful right over his own property. **Principle:** A lawful act does not become unlawful due to malicious motive. ## MISTAKE IN FACT AND MISTAKE IN LAW Mistake in fact and mistake in law are important legal concepts that can affect liability in both criminal and civil cases. A mistake of fact occurs when a person has an incorrect understanding of the factual circumstances surrounding their actions. In contrast a mistake of law happens when someone misunderstands or is ignorant of the applicable law. These distinctions are crucial as they can impact legal culpability and potential defenses. **Types of Mistakes in Law** There are two main categories of legal mistakes: 1. **Mistake of fact:** This involves an erroneous belief about the factual circumstances of a situation. 2. **Mistake of law:** This refers to ignorance or misunderstanding of the applicable legal rules or obligations. **Mistake of Fact** A mistake of fact arises when someone acts based on an incorrect understanding of the factual circumstances. This type of mistake can potentially negate the mental state required for certain offenses. For a mistake of fact to serve as a valid defense it must generally be both honest and reasonable. Key elements of mistake of fact: 1. The mistaken belief must relate to the facts not the law 2. The mistake must be genuine and held in good faith 3. The mistake must be reasonable under the circumstances 4. If the mistake negates the required mental state it may serve as a defense Examples of mistake of fact: 1. Taking someone else’s property believing it to be your own 2. Engaging in intimate relations with a minor believing they were of legal age 3. Shooting at a person thinking they were an intruder when it was actually the homeowner The case of **R v. Williams (1923)** illustrates the concept of mistake of fact. Williams honestly believed the woman he had sexual intercourse with was his wife. The court held that his genuine mistake of fact negated the mens rea for rape even though his belief was unreasonable. This case established that an honest mistake could serve as a defense even if unreasonable. In **People v. Hernandez (1964)** the California Supreme Court ruled that a reasonable and good faith belief that a sexual partner was over the age of consent could serve as a defense to statutory rape. This case recognized mistake of fact as a potential defense even for strict liability offenses. **Mistake of Law** A mistake of law occurs when someone misunderstands or is unaware of the applicable legal rules or obligations. Generally ignorance or mistake of law is not accepted as a defense. The principle “ignorantia juris non excusat” (ignorance of the law is no excuse) reflects this stance. However there are some limited exceptions. Key aspects of mistake of law: 1. Usually not accepted as a defense in criminal or civil cases 2. Based on the presumption that everyone knows the law 3. Can sometimes be a mitigating factor in sentencing 4. May be a defense in rare cases involving complex regulations 5. Exceptions where mistake of law may be considered: 6. Reliance on official statements of law later determined to be incorrect 7. Laws that are not published or reasonably accessible 8. Specific intent crimes where mistake negates the required mental state 9. Some regulatory offenses with complex legal requirements In **Cheek v. United States (1991)** the Supreme Court held that a genuine good faith belief that one was not violating tax laws could negate the willfulness required for criminal tax evasion. This case created a limited exception to the general rule that ignorance of the law is no excuse. The case of **Lambert v. California (1957)** involved a municipal ordinance requiring felons to register. The Supreme Court ruled that the defendant’s lack of knowledge of this duty combined with the passive nature of her conduct violated due process. This case recognized that in some circumstances ignorance of legal duties may be a valid defense. **Comparison / Difference Between Mistake of Fact and Mistake of Law** While both involve errors in understanding mistake of fact and mistake of law have key differences: **Mistake of Fact:** 1. Relates to misunderstanding factual circumstances 2. Can often serve as a defense if honest and reasonable 3. May negate mens rea for many offenses 4. Assessed based on the defendant’s actual beliefs **Mistake of Law:** 1. Involves misunderstanding legal rules or obligations 2. Generally not accepted as a defense 3. Based on the presumption that everyone knows the law 4. Has very limited exceptions in specific circumstances ## MENTAL ELEMENT IN TORTIOUS LIABILITY **Meaning and Relevance of Mental Element** Mental element refers to the state of mind of the defendant when committing a tortious act. Unlike criminal law where mens rea is generally essential mental element is not always relevant in tort law. The relevance of mental element varies across different torts. **Fault-Based Liability vs Strict Liability** Tortious liability can be broadly classified into fault-based liability and strict liability. In fault-based torts mental element like intention negligence or malice is relevant. However in strict liability torts mental element is irrelevant. **Fault-Based Torts** In many torts mental element is crucial for establishing liability. Some key fault-based torts include: 1. **Assault and Battery:** Intention to cause apprehension of harmful contact or actual harmful contact is required. 2. **False Imprisonment:** Intention to confine the plaintiff unlawfully must be proved. 3. **Malicious Prosecution:** Malice and absence of reasonable cause are essential elements. 4. **Defamation:** Intention to publish defamatory statement is necessary though malice is not required. 5. **Negligence:** Breach of duty of care owed to plaintiff must be proved though intention to cause harm is not required. In these torts plaintiff has to establish fault on part of the defendant to succeed in the claim. **Strict Liability Torts** Some torts impose liability without proof of fault. Key strict liability torts are: 1. **Rule in Rylands v Fletcher:** Defendant is liable for escape of dangerous things collected on land irrespective of fault. 2. **Vicarious Liability:** Employer liable for torts of employee committed during course of employment without proving employer’s fault. 3. **Liability for Animals:** Owner liable for harm caused by dangerous animals without proof of negligence. 4. **Product Liability:** Manufacturer liable for defective products without proving negligence. 5. **Nuisance:** Interference with plaintiff’s use and enjoyment of land is actionable without proving intention or negligence. In these torts defendant’s mental state is irrelevant and liability arises from the act itself. **Intentional Torts** Some torts require proof of intention as mental element. Intention implies desire to bring about consequences of the act. Key intentional torts are: - Trespass to person (assault battery false imprisonment) - Trespass to land and goods - Conversion - Deceit - Malicious prosecution In these torts plaintiff must prove defendant intended the consequences though motive is irrelevant. **Motive and Malice** Motive refers to ulterior reason for defendant’s conduct. As per general rule motive is irrelevant in tort law. A good motive does not excuse a wrongful act. Similarly a bad motive does not make a lawful act tortious. This principle was established in **Bradford Corporation v Pickles \[1895\].** Defendant’s motive of extracting higher price for his land was held irrelevant as his act of digging on his own land was lawful. Malice means improper motive or intention to cause harm. It is relevant only in limited torts like malicious prosecution and abuse of process. In most torts presence or absence of malice does not affect liability. **Exceptions Where Motive is Relevant** In some exceptional situations motive becomes relevant: - In qualified privilege defamation cases malice defeats the defence - In conspiracy improper motive is an essential element - In nuisance cases malicious conduct may make an otherwise lawful act tortious - Presence of malice may lead to aggravated damages **Negligence as Mental Element** Negligence is the most common basis of tortious liability. It refers to breach of duty of care owed to plaintiff. Key elements are: - Existence of duty of care - Breach of that duty - Damage caused by the breach Standard of care is that of a reasonable person. Intention to cause harm is not required. Carelessness or inadvertence resulting in breach of duty is sufficient. **Knowledge as Mental Element** In some torts knowledge of certain facts is relevant for liability. For instance: - In defamation knowledge of falsity of statement is relevant - In nuisance knowledge of interference is required - For liability of occupier knowledge of danger on premises is relevant Reasonable foreseeability of harm is also based on defendant’s knowledge. **Mental Incapacity** Insanity or mental incapacity does not provide general defence in tort law unlike criminal law. Mentally incapacitated persons are liable for their torts subject to some exceptions: - In intentional torts lack of capacity to form intention may be relevant - In negligence inability to meet standard of care due to incapacity may be considered Children below certain age are deemed incapable of negligence in some jurisdictions. **Statutory Liability** Some statutes impose civil liability without requiring proof of mental element. For instance motor vehicle and workmen’s compensation laws provide for no-fault liability. Mental state of defendant is irrelevant in such statutory liability cases. **IMPORTANT CASE LAWS** **Rylands v Fletcher (1868)** This landmark case established the **rule of strict liability** in tort law. The facts were: - Defendants constructed a reservoir on their land - Water escaped and flooded plaintiff’s coal mines - No negligence was proved against defendants The House of Lords held defendants liable without proof of fault. It laid down the principle that a person who brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril. This case is significant as **it created an exception to fault-based liability in tort law**. Mental element of the defendant was held irrelevant for imposing liability. **Donoghue v Stevenson (1932)** This case established the **modern concept of negligence**. The key facts were: - Plaintiff consumed ginger beer from an opaque bottle - She found a decomposed snail in the bottle and fell ill - She sued the manufacturer for negligence The House of Lords held the manufacturer owed a duty of care to the ultimate consumer. **Lord Atkin propounded the *‘neighbour principle’*** stating: *“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”* This case is significant as **it made negligence an independent tort** and established duty of care as the basis of liability rather than intention to cause harm. **Bradford Corporation v Pickles (1895)** This case dealt with relevance of motive in tort law. The facts were: - Defendant sank shafts on his land which diverted underground water - This reduced water supply to plaintiff corporation’s reservoirs - Defendant’s motive was to force corporation to purchase his land at high price The House of Lords held defendant was not liable as he had legal right to sink shafts on his land. His improper motive was held irrelevant. This case **established the principle that motive is generally irrelevant in tort law**. A lawful act does not become unlawful due to malicious intention. **Wilkinson v Downton (1897)** This case created the tort of intentional infliction of emotional distress. The facts were: - Defendant falsely told plaintiff her husband was badly injured in an accident - This caused plaintiff to suffer severe shock and illness The court held defendant liable for intentionally causing nervous shock. It was held that intention to cause physical harm can be imputed if consequences were likely and foreseeable. This case is significant as **it recognized mental harm as actionable damage** and expanded scope of intention in tort law. **Allen v Flood (1898)** This House of Lords decision dealt with intentional interference with trade. The key facts were: - Defendant union official threatened shipyard to dismiss plaintiffs - Plaintiffs were dismissed and sued for malicious interference The majority held defendant was not liable as he had not employed any unlawful means. His motive was held irrelevant. This case **reinforced the principle that motive alone cannot make a lawful act tortious**. It also clarified limits of economic torts. **M.C. Mehta v Union of India (1987)** This Indian Supreme Court case dealt with absolute liability for hazardous industries. The facts were: - Oleum gas leaked from defendant’s plant causing harm - Traditional exceptions to strict liability were pleaded The court rejected exceptions and held hazardous industries absolutely liable for harm caused. Mental element was made completely irrelevant. This case **created a new standard of absolute liability** **stricter than *Rylands v Fletcher* rule** for hazardous industries in India. **Wagon Mound (No. 1) (1961)** This Privy Council case dealt with remoteness of damage in negligence. The facts were: - Defendants negligently spilled oil in a harbor - Oil caught fire after many hours causing damage to plaintiff’s wharf The court held defendants liable only for foreseeable damage. Unforeseeable fire damage was held too remote. This case **replaced direct consequence test with reasonable foreseeability test for remoteness**. It made defendant’s knowledge and mental state relevant for extent of liability in negligence. **Categories:** Articles, Law of Torts --- ### [3rd Deo Mangal Memorial National Moot Court Competition by GNSU, Bihar [Total Prize Worth Rs.73k; 29 Nov to 15 Dec 2024; Hybrid Mode]: Submit by 22 Nov](https://lawfoyer.in/3rd-deo-mangal-memorial-national-moot-court-competition-by-gnsu-bihar-total-prize-worth-rs-73k-29-nov-to-15-dec-2024-hybrid-mode-submit-by-22-nov/) **Published:** October 20, 2024 **Author:** LawFoyer **Content:** Moot Court Society, Narayan School of Law, Gopal Narayan Singh University proudly announces its 3rd Deo Mangal Memorial National Moot Court Competition, 2024 from 29th November to 15th December 2024 in Hybrid Mode. ## About the Organizer Gopal Narayan Singh University (GNSU) is a private university located at Jamuhar village near the city of Sasaram in Rohtas district, Bihar, India. It is one of the first six private universities in Bihar. The university was notified in the Bihar Gazette following a decision of the Bihar cabinet on 5 June 2018 and has an official establishment date of 15 June 2018. ## About the Competition It is one of the finest mediums for future legal counsels to engage comprehensively in intricate deliberations to frame their arguments in context with the proposition and learn the art of advocacy to polish their skills. The competition strives to give a platform to the budding lawyers of our country to imbibe analytical skills in real-time situations. The aim is to engage with students and allow them to have a first-hand experience of the complexities of the law. ## General Details - **Date:** 29 November to 15 December, 2024 - **Mode:** Hybrid ## Eligibility Criteria - Law students enrolled in 3 years LLB program and 5 years integrated program from any college/institution/university recognized by BCI across the country. - A maximum of 2 teams from one college/institution/university shall be allowed to participate. ## General Rules - The team shall comprise either two members (being designated as Speakers and one of the speakers shall be designated as Researcher) or three members (two of them shall be designated as Speakers and one of them shall be designated as Researcher). - No team will be allowed to substitute any of its members after a team has filled & submitted the Registration form, except with the permission of the organizers. ## Registration Details **Registration Fee:** The registration fee for the competition is 2500 INR which includes Accommodation and Food for Quarter Finalist Team. ## Payment Details - **Beneficiary Name (Account Holder Name) –** Narayan School of Law - **Bank Name –** HDFC - **Branch –** Dehri, Rohtas - **Account Number –** 50200048481729 - **IFSC Code –** HDFC0002727 ## Prize - **Winning Team:** Cash Prize of Rs 25, 000/- + Trophy + Certificate - **Runner–Up Team:** Cash Prize of Rs – 20,000/- + Trophy + Certificate - **Best Memorial:** Cash Prize of Rs – 7,000/- + Trophy + Certificate - **Best Speaker Male:** Cash Prize of Rs – 7, 000/- + Trophy + Certificate - **Best Speaker Female:** Cash Prize of Rs – 7, 000/- + Trophy + Certificate - **Best Researcher:** Cash Prize of Rs – 7,000/- + Trophy + Certificate - ***Certificate of Participation shall be provided to all the participants.*** ***NOTE –** All participants of the event will be eligible for a 20% scholarship on all courses offered by Lawctopus Law School, including the subscription plan.* ### Important Dates Commencement of Registration: 07-10-2024 - **Last Date of Registration:** 22-11-2024 - **Last date of seeking clarification (if any):** 25-11-2024 - **Last date for submission of memorials (online):** 25-11-2024 - **Inaugural ceremony & Orientation:** 29-11-2024 - **Preliminary Rounds (Online):** 30-11-2024 - **Researcher’s Test (Online):** 30-11-2024 - **Quarter-final Round (On-Campus):** 14-12-2024 - **Semi-Final Round (On-Campus):** 14-12-2024 - **Final Round (On-Campus):** 15-12-2024 - **Valedictory ceremony & Prize Distribution (On-Campus):** 15-12-2024 ## Important Links - **Brochure:-** - **Moot Proposition:**– [https://drive.google.com/drive/folders/1-WsnVDZ3wCTN1KMpx2d4j3MNpf846eGn?usp=drive\_link](https://drive.google.com/drive/folders/1-WsnVDZ3wCTN1KMpx2d4j3MNpf846eGn?usp=drive_link) - **Rule Book:-** **In case of queries, please contact:** - **Mr. Prakash Singh:** +91 8789373563 - **Mr. Rohan Kumar:** +91 8102144178 - **Email:** mootcourtsocietynsl@gmail.com **Categories:** Events --- ### [Free Online Webinar on Understanding India's Income Tax System: A Comprehensive Overview For Law Professionals by LawFoyer: Register by Oct 19](https://lawfoyer.in/free-online-webinar-on-understanding-indias-income-tax-system-a-comprehensive-overview-for-law-professionals-by-lawfoyer-register-by-oct-19/) **Published:** October 8, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/10/Untitled-design-724x1024.jpg) [Register Now](https://lawfoyer.in/webinar-register-understanding-india-tax-system/) ## Gain In-Depth Knowledge from a Leading Expert LawFoyer presents an exclusive free online webinar – **“Understanding India’s Income Tax System: A Comprehensive Overview For Law Professionals”** led by our expert **(DR.) Jyoti Yadav**, Assistant Professor, Amity Law School Lucknow campus. ## Important Details - **Date:** Sunday, 20 October 2024, 7 pm onwards. - **Platform:** Google Meet/Zoom Meetings - **Completely Free Registration** ## Perks for Participants: - E-Certificate of Participation - **Free access to Certification Masterclass on Mediation Law of India (For More info [click here](https://academy.lawfoyer.in/courses/free-online-masterclass-on-mediation-law-of-india/))** - Get 10 % discount on our upcoming National Quiz competition. - Interactive Q&A sessions. - Priority access to Future LawFoyer Events. [Register Now](https://lawfoyer.in/webinar-register-understanding-india-tax-system/) ## **Why You Should Attend:** - **Tax System Evolution:** Examining the Indian Income Tax Act’s structure, its unique features, and how it has been interpreted and amended over time. - **Judicial Interpretations:** Analyzing landmark Supreme Court decisions that have shaped the understanding of income tax laws in India. - **Direct vs Indirect Taxes:** Discussing the distinction between direct and indirect taxes in India, with a focus on income tax as a key direct tax. - **Tax Slabs and Rates:** Exploring the current income tax slabs, rates, and exemptions for different categories of taxpayers. - **Deductions and Exemptions:** Examining various deductions under different sections of the Income Tax Act and their implications for taxpayers. - **Digital Transformation:** Analyzing the impact of digitalization on tax filing, assessment, and compliance procedures. - **International Taxation:** Understanding the principles of international taxation, double taxation avoidance agreements, and their relevance to Indian tax law. - **Tax Planning and Compliance:** Discussing legal strategies for tax planning and the importance of compliance for individuals and businesses. - **Recent Reforms:** Exploring recent and proposed reforms in the Indian income tax system, including the new tax regime introduced in 2020. - **Professional Implications:** Identifying the role of legal professionals in tax advisory, litigation, and compliance, and the skills required in this field. This webinar will provide a comprehensive overview of India’s Income Tax System, offering insights into its legal, practical, and professional aspects for law professionals. Don’t miss this chance to take your Taxation Law expertise to the next level. Register now on www.lawfoyer.in or contact at contact@lawfoyer.in or +91 8574723478. **Categories:** Events, Webinar --- ### [15th National Quiz on Indian Contract Act & Specific Relief Act by LawFoyer: Register by 28th September](https://lawfoyer.in/15th-national-quiz-on-indian-contract-act-specific-relief-act-by-lawfoyer-register-by-28th-september/) **Published:** August 29, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/08/15th-quiz-poster-png-Small.png) [ Download Updated Answer Key ](https://lawfoyer.in/wp-content/uploads/2024/10/Updated-Answer-Key.pdf) ## Clarifications in Answer Key (Released) Claimed Question Number Previous Answer Key Updated Answer Key Q 60 B C [ Check Results ](https://lawfoyer.in/results-of-15th-national-quiz-on-indian-contract-act-specific-relief-act/) [ Download E-Certificate of Certification ](https://lawfoyer.in/download-certificates-of-15th-national-quiz-on-indian-contract-act-specific-relief-act/) ## Dates - - **Date of Quiz:- 29/09/2024** **(5 Pm)** - - **Last Date to Apply:-** **28/09/2024, 11:00 pm** - - **Result Declaration:-** **05/10/2024** ## Prizes - - **1st Prize- Rs 3000 + Winner Trophy** **+ Hardcopy Certificate of (Excellence & Participation)** - - **2nd Prize- Rs 2000 + 1st Runner Up Trophy** **+ Hardcopy Certificate of (Excellence & Participation)** - - **3rd Prize- Rs 1000 + 2nd Runner Up Trophy** **+ Hardcopy Certificate of (Excellence & Participation)** - - **4th-10th Prize- Rs 150 + Hardcopy Certificate of (Excellence & Participation)** - - **FREE Practice E-Book with 1000 + MCQs for Practice** - - **Free 2 AI Plagiarism Report by Turnitin.** - - **Participation Certificate for All the Registered Participants** - - **Top 10 Rank will get 50% Discount on Publication at LawFoyer International Journal (ISSN: 2583-7753)**. [Click to know more](https://lijdlr.com/cfp-lawfoyer-international-journal-of-doctrinal-legal-research/) **Note:-** The Winners Trophy & Certificates will be dispatched to the designated recipients’ physical address without any additional charges. ![](https://lawfoyer.in/wp-content/uploads/2024/01/WhatsApp-Image-2024-01-22-at-01.00.07_ac7cf468-1024x576.jpg "WhatsApp-Image-2024-01-22-at-01.00.07_ac7cf468 | LawFoyer | LawFoyer | LawFoyer | LawFoyer | LawFoyer")## **Registration Fees** - - **Rs 149/- Only** ## ELIGIBILITY - - Law Students - - Legal Professionals - - Legal Practitioners - - Judiciary Aspirants - - AIBE Aspirants - - JLO Aspirants - - IBPS SO Aspirants - - Government Exam Aspirants - - Any person Interested in Contract Law ## **Important Guidelines** - - **Format of Quiz:** Quiz shall take place online, and a paper will include multiple-choice questions**.** - - The participant can take this exam on their laptop or mobile phone. - - The platform for the quiz will be google Forms, Microsoft Forms, etc. - - In the case of the same marks, time will be considered (a person who submits early will be given preference). - - The link will be shared 24 hours prior to the start of the quiz. ## **Rules & Regulations** - - **60 MCQ(s) \[30 question on Contract Law & 30 questions on Specific Relief Act\].** - - The time allotted will be **25** minutes. (This includes time for filling the basic details like Name, email, etc.) - - **Every question carries 04 marks & there will be no negative marking.** - The Result will be declared on **5th October 2024** ([www.lawfoyer.in](https://lawfoyer.in/)). **Categories:** Events, Quiz --- ### [National Moot Court Competition, XavAequitas'24 organized by Moot Court Society of Xavier Law School, St. Xavier’s University, Kolkata is scheduled for October 24-26, 2024.](https://lawfoyer.in/national-moot-court-competition-xavaequitas24-organized-by-moot-court-society-of-xavier-law-school-st-xaviers-university-kolkata-is-scheduled-for-october-24-26-2024/) **Published:** October 3, 2024 **Author:** LawFoyer **Content:** ## About SXUK St. Xavier’s University, Kolkata (SXUK), stands as a beacon of excellence in higher education, deeply rooted in the Jesuit tradition of fostering academic rigor, ethical integrity, and social commitment. Established with the vision of shaping future leaders who are not only intellectually equipped but also morally and socially responsible, SXUK aims to cultivate a holistic learning environment. The university is committed to providing a platform where students are encouraged to think critically, innovate, and contribute to society. Through its diverse academic programs, cutting-edge research, and emphasis on community engagement, SXUK seeks to nurture individuals who can address contemporary challenges with wisdom and compassion. The institution prides itself on its vibrant campus life, enriched by a blend of cultural diversity and a strong sense of community. With a focus on character formation, leadership development, and the pursuit of knowledge, St. Xavier’s University, Kolkata, aspires to be a transformative force in the field of education, guiding students to realize their full potential and become agents of positive change in a global society. ## About XLS Xavier Law School (XLS) was established in August, 2019 by the Honorable Lokpal of India, Mr. Pinaki Chandra Ghosh. It seeks to carry on the legacy of Jesuit education in the fields of legal education and research. It promises to provide all the facilities to the student which would help them to reach the pinnacle of success. Currently it offers two undergraduate courses, namely B.A.LL.B. (Hons.) and B.Com. LL.B. (Hons.). XLS comprises of highly qualified faculty members and modern infrastructure including a Moot Court Hall and a Law Library dedicated to the Law school. It seeks to set international standards in legal education and to promote holistic development of students. With this at the backdrop, Xavier Law School is determined to feature among the top law schools in the country. ## About MCS XLS The Moot Court Society, Xavier Law School is an integral part of the academic and professional development of law students, embodying the school’s commitment to nurturing future legal minds. MCS, XLS provides a dynamic platform for students to engage in simulated court proceedings, where they hone their advocacy skills, legal reasoning, and understanding of the law in practice. By organizing and participating in national and international moot court competitions, the society empowers students to confront complex legal issues and develop the confidence and competence required for their future careers. ## About 1st Xavier’s National Moot Court Competition **XavAequitas’24**, the first National Moot Court Competition organized by the Moot Court Society of Xavier Law School, is a prestigious event that embodies the institution’s dedication to cultivating legal acumen and advocacy skills among aspiring lawyers. This competition is a monumental step in Xavier Law School’s journey, aimed at establishing a tradition of excellence in legal discourse and practice. **XavAequitas’24** is designed to challenge participants with complex legal problems that require not only a deep understanding of the law but also the ability to think critically and argue persuasively. The competition will simulate real-world courtroom dynamics, providing students with the opportunity to engage in rigorous legal debates before panels of distinguished judges and legal professionals. ## **Important Details** - **Event Dates**: 24th-26th October 2024 - **Last Date for Registration**: 18th October 2024 - **Maximum Teams Per Institution**: Five (5) ## **Important Documents** We have attached the **Official Brochure**, **Moot Proposition**, **Registration Link**, and details of our **Official Website**: - Link to Official Brochure: [XavAequitas’24 Official Brochure.pdf](https://drive.google.com/open?id=1eeGL-uQDMJ4wAr-Bea_muuunUO-S0c09&usp=drive_copy) - Link to Moot Proposition: [XavAequitas’24 Moot Proposition.pdf](https://drive.google.com/open?id=1j4bPPrI2IQaTTvd6DvLI-b3SHd_nMx6L&usp=drive_copy) - Link to Registration Form: [XavAequitas’24 Registration form](https://forms.gle/JJpxiXXsjJ5hEWGD6) - Link to Official Website: [MCS XLS Official Website](https://mcsxls.wixsite.com/mcsxls) **Categories:** Articles --- ### [Call for Papers- 3rd National Seminar on Affordable Housing by NLU Delhi from 21st to 23rd February, 2025](https://lawfoyer.in/call-for-papers-3rd-national-seminar-on-affordable-housing-by-nlu-delhi-from-21st-to-23rd-february-2025/) **Published:** September 29, 2024 **Author:** LawFoyer **Content:** The Centre for Law and Urban Development at NLU- Delhi in collaboration with the Centre for Tax Laws NLU-Delhi, is pleased to announce the call for papers for the 3rd National Seminar on *Affordable Housing- Building Inclusive Society for the 21st Century India* to be held from **21st to 23rd February, 2025**. We request you to kindly publish the same in your website and related social media handles for outreach and marketing purposes. ## **About the Centre** ***The Centre for Law and Urban Development* (CLUD)** aims to bring together the student, industry and the academia working towards enhancing the understanding and teaching of property, housing, urban development and other related laws. The Centre also has a wide network which regularly connects, interacts and debates on simplifying and shaping the legal regime of property laws, real estate laws, environmental laws and other related areas of urban development for the upcoming generations. ***The Centre for Tax Laws* (CTL)** was established in 2018 under **National Law University, Delhi** to work in the area of tax laws. The centre aims to facilitate a high-level research environment where the student community appreciates the significance of tax laws and gets experiential learning from the established experts in this field. Additionally, the centre also wants to consistently provide policy interventions in the form of comments, and feedback to the government as reforming the taxation laws is high on its agenda. ## **The Seminar** Both these centers located at the prestigious **National Law University Delhi, in Dwarka**, in fostering their broader aims came together to cooperate and collaborate for a **National Seminar on Affordable Housing**. After the success of the first two editions, we are elated to announce the call for papers for the 3rd edition to be **held at NLU- Delhi Campus from 21st to 23rd February 2025.** The objective of this seminar is to address the legal and policy challenges in implementing affordable housing for all. In addition to the broad themes, there are **27 sub-themes** which the authors can write on. Further details regarding the topics, deadlines and other information can be found in the brochure. [Download Brochure](https://lawfoyer.in/wp-content/uploads/2024/09/3rd-National-Seminar-on-Affordable-Housing-Brochure-21st-23rd-Feb.pdf) ## **Official Website – ** **Categories:** Articles --- ### [Sarla Mudgal v. Union of India (1995) 3 SCC 635](https://lawfoyer.in/sarla-mudgal-v-union-of-india-1995-3-scc-635/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Nandini Achhra, Vivekananda institute of professional studies** **Edited By: Gyanu Patel, Amity University (Lucknow)** **A) ABSTRACT / HEADNOTE** While considering this, it has to be noted that the world generally follows the concept of monogamy, which in turn is a conventional rule recognized by all the legal systems over the world. A contravention of this general rule, that is, bigamy or polygamy, is also punishable under law. Thus, bigamy is a practice that is considered an offense in our country. However, in India, people from the Islamic religion are allowed to have up to four wives. The analysis explains the concept of bigamy and the reasons why it is an offense. However, this will be incomplete without mentioning the Sarla Mudgal case, which has been a leading case of bigamy in India. Thus, the present analysis explains the facts, issues, and judgment of the case and also explains the concept of bigamy under different laws in light of the above case. He has also reviewed in the article the laws against bigamy in India and the landmark judgments on the same. **Keywords :** *monogamy, Bigamy, polygamy , islamic, religion* **B) CASE DETAILS** i) Judgement Cause Title / Case NameSarla Mudgal v. Union of Indiaii) Case NumberNAiii) Judgement Date10th May, 1995iv) CourtSupreme Court of Indiav) Quorum / Constitution of BenchDivision Benchvi) Author / Name of JudgesJustice Kuldip Singh, and Justice R.M. Sahaivii) CitationAIR 1995 SC 1531viii) Legal Provisions InvolvedConstitution of India (1950), the Hindu Marriage Act, 1955 and Indian Penal Code, 1860**C) INTRODUCTION AND BACKGROUND OF JUDGEMENT** Our Constitution under Article 25 gives the freedom to practice and profess any religion which also includes the freedom to convert to any religion other than one assigned to him by birth. However, this provision is sometimes misused with diverse religions and personal laws. Bigamy is punishable for all religions under IPC, except those tribes or whose personal law permits polygamy, such as the Muslim law. Bigamy can only be committed by renouncing his religion and adopting Islam. Not uncommon are the instances of bigamy in the names of men. Under the Parsi Marriage and Divorce Act and Special Marriage Act: the second marriage of any party shall be void if such party shall have already subsisting spouse at the time of marriage. This means a second marriage is rendered null and void while a first marriage is still subsisting. Also, if a person converts to any other religion where polygamy is allowed and marries a person while his or her first marriage solemnized before the conversion is still subsisting, it shall not be valid because the first marriage solemnized before the conversion has not been dissolved yet. However, the Hindu Marriage Act, of 1955 has not specified the status of a person marrying after conversion. It declares a subsequent marriage between two Hindus is void if their partner is living, and they have not divorced at that time. This question came up at some length before the Supreme Court in the landmark case of Sarla Mudgal & Ors. V. Union of India and it settled the ambiguity surrounding the rights, duties, and obligations of people who change religion to defeat the law. The court held that a change of religion does not permit a person to defeat the provisions of law and to commit bigamy. **D) FACTS OF THE CASE** These were four petitions heard together under Article 32 in the Supreme Court of the Indian Constitution. First is Writ Petition no. 1079/89, with two petitioners; the first petitioner was Ms. Sarla Mudgal, who was the President of a registered society called Kalyani, a Non-Profit Organization working for the welfare of needy families and distressed women. The second petitioner was Meena Mathur, who had been married to Jitender Mathur since 1978. The couple had three children who were born out of wedlock. Petitioner 2 had come to know that her husband contracted a second marriage with one Sunita Narula alias Fathima after both of them converted themselves to Islam. She alleges that the conversion of her husband to Islam is only to marry Sunita, thereby avoiding Section 494, IPC. Let there be no doubt that the appellant pleads that after converting to Islam, he could marry four wives and prays that hence he shall not be punishable under Section 494 of the Indian Penal Code, 1860 as he can avail of the advantage that the concept of polygamy is legal under Mohammedan Law. The other was filed by Sunita Narula alias Fathima, a Muslim by religion; it was registered as Writ Petition 347 of 1990. Therein, the appellant asserted that she and the respondent adopted the Islamic religion and after the marriage, out of their union, a child was born but on account of the influence of respondent No.3-Meena Mathur- he had to make an offer in 1988 and undertook to convert back to Hinduism and maintain his first wife and three children. She also averred that the husband was not maintaining her and she had no other protection under Hindu law or Muslim law. Yet another petition was filed by Sunita Narula alias Fathima, registered as Writ Petition 347/1990, wherein it was contended that she and the respondent converted to Islam to marry and a child was born out of wedlock. However, under the influence of Meena Mathur, the respondent had also given an undertaking in the year 1988 that he would take a reconvert back to Hinduism and maintain his first wife and three children. She further contended that the husband was not even maintaining her, and she did not have any other protection in either Hindu law or Muslim law. Thirdly, a petition registered as Writ Petition 424/1992 was filed in the Apex Court. The petitioner Geeta Rani got married to Pradeep Kumar in 1988 according to the Hindu rituals. In December 1991, the Petitioner learned that her husband converted to Islam and married another woman, Deepa. The Petitioner asserts that the only purpose of converting to Islam was to facilitate the second marriage and to escape from the matrix of Section 494 of IPC. Sushmita Ghosh who was the petitioner in the Civil Writ Petition 509/1992, had married G.C. **E) LEGAL ISSUES RAISED (minimum 2 legal issues)** 1\. Whether a Hindu husband married under Hindu law, by embracing Islam can solemnize a second marriage? Whether such a marriage, without the first marriage being dissolved under law, be a valid marriage qua the first wife who continues to be Hindu? 2\. Whether the apostate husband, that is one who renounced Hinduism, is guilty of the offense under Section 494 of the IPC? **F) PETITIONER / APPELLANT’S ARGUMENTS** On behalf of the petitioners, it was contended that marriage was solemnized at the time when the husband converted to Islam, thereby signifying that the sole intent behind conversion was for the solemnization of marriage, and polygamy is allowed in this religion. Next, it was further argued that to convert to Islam only for marriage purposes, infringed their rights provided under personal laws. The first marriage still subsists, and the husbands solemnizing the second marriage without dissolving the previous is an infringement of personal rights. Further, it was constantly contended that another purpose was to circumvent the sections on bigamy and to evade the punishment under Section 494 of the Indian Penal Code, 1860. The other petitioners also argued that their husbands compelled them to embrace Islam only on the ground that they converted, thus violating their fundamental right to religion under Article 25 of the Constitution. **G) RESPONDENT’S ARGUMENTS** Resisting the contentions made by the petitioners, the respondents have submitted that the provisions of the Hindu Marriage Act, 1955 and, the Indian Penal Code, 1860 arguendo do not apply in their case. Viewed from a religious angle, Islam contemplates polygamy, and they can have four wives while the first marriage subsists. They furthered their argument that the Muslim personal law submits that if one from between the spouses does not return in kind or accept the similar religion of another, then the marriage comes to an end. Thus, the one who has converted the other has to also do it since he or she is duty-bound to do it or the marriage dissolves, therefore, the spouse who converted and married in Islam may not be punished. The petitioners In all the petitions pleaded a common plea that the moment they embrace Islam, they can have four wives even though they have a first wife who remains Hindu. Therefore, the Hindu Marriage Act, of 1955, and Ire do not apply them. **H) JUDGEMENT** **a. RATIO DECIDENDI** After these elaborate discussions, the court ultimately arrived at the following: The Hindu Marriage Act, 1955 is a socially dynamical legislation in the realm of statute – when a marriage is solemnized under that Act, certain rights and status are acquired by both the parties, and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would destroy the existing rights of the spouse who continues to be Hindu. A marriage performed under the Act cannot be dissolved except on the grounds given under Section 13 of the same Act. The second marriage of an apostate would therefore be an illegal marriage qua his wife who married him under the Act and continues to be Hindu. This reasoning is underpinned by the doctrine of traditional Hindu law with the doctrine of indissolubility, which states that the law did not intend the conversion to have the effect of dissolving a Hindu marriage. It also held that such a second marriage, solemnized by conversion to Islam, is violative of justice, equity, and good conscience. It also emphasized the harmonious working of the two systems of law, just to bring harmony between the two communities. The court further held that the apostate husband would be guilty under Section 494 of IPC. The expression ‘void’ used in the Hindu Marriage Act, 1955 and the Indian Penal Code has different intents. Conversion to Islam and contracting of a fresh marriage would not ipso facto dissolve the prior Hindu marriage under the Act, though it would be a ground for divorce. But from the ingredients of Section 494 explained elaborately in the earlier parts of the article, it can be inferred that the second marriage would be void, and the apostate husband would be guilty under Section 494 of IPC. Finally, the court also advocated for the imposition of a Uniform Civil Code (“UCC”) in the Indian legal system, that shall prohibit an Indian from infringing upon the personal law of another Indian. The court further directed that the Government of India, through the Secretary of the Ministry of Law and Justice, file an affidavit about the action taken by the Government of India towards UCC to be provided to the citizens of India. **b. OBITER DICTA-** But in the course of determining the issues in the case, his lordship Justice Kuldeep Singh found it fit to observe that marriage is the foundation of every civilized society under which when a relationship is formed and the law is involved, it binds the parties to carry out certain obligations. It is an institution in which the public at large is concerned about its maintenance. It can be said that marriage is the foundation of a family, without which there can be no society. It was also observed that since monogamy is a rule in Hindu law, Hindu husbands usually convert to Islam for polygamy which is allowed therein. While deciding whether conversion of one religion to another would dissolve the subsisting marriage, the learned judge had to rely upon a catena of judicial pronouncements. **I) CONCLUSION & COMMENTS** In the case of Gul Mohammed v. Emperor, 1947, the accused took a Hindu woman to be his wife fraudulently and contracted marriage with her after forcibly having her converted to his religion, in this case, Islam. It was held that this conversion of Hindu married women to another religion does not ipso facto dissolve her marriage. It was also observed that in India, a marriage is governed by the personal laws of different religions. A marriage solemnized under one religion cannot be dissolved by another personal law just because one of the spouses changed his or her mind and converted to another religion. It was further observed that when a marriage is solemnized under Hindu law, the parties acquire the status and obligations according to the law governing Hindu marriages and if either of them is allowed to dissolve the marriage by converting to another religion, it would affect and violate the rights of another spouse who is still a Hindu. Thus, there can be no dissolution of marriage automatically upon conversion. It was observed that a marriage solemnized under Hindu law can only be dissolved according to the grounds mentioned in the Hindu Marriage Act, of 1955. The court also placed reliance on the judgment of the case ofRobasa Khanum v. Khodabad Bomanji Irani (1946)wherein it has been held by the court that the conduct of the spouse who converted to Islam has to be judged based on the rule of justice, and equity and food conscience. Another aspect is that the second marriage while the first subsists offends principles of natural justice as well. The purpose of conversion should not be to allow Hindu husbands to convert to enjoy polygamy. Regarding the proposed implementation of a Uniform Civil Code, it has been noted that the Constitution itself provides for a uniform civil code under Article 44. There has, however, been no development or effort at achieving this end. It has also been observed that the implementation of UCC would bring in national integrity and prevent differences in matters related to personal laws. J) REFERENCES **Important Cases Referred** a. Khanum v. Khodabad Bomanji Irani (1946) b. Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat (2015) c. Khursheed Ahmad Khan v. State of U.P. (2015) d. Sri Anand C v. Smt. Chandramma (2022) **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases --- ### [ARTICLE 32: RIGHT TO CONSTITUTION REMEDIES](https://lawfoyer.in/article-32-right-to-constitution-remedies/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Dhanavel B, B.A.LL.B., Government Law College Dharmapuri** **INTRODUCTION** **“An article without which this Constitution would be a nullity – I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it”[\[1\]](#_ftn1) – B.R. Ambedkar.** Fundamental rights are the outcome of the struggles that our people suffered during the colonial period under British rule. Our people did not have a right to speak, the right to form an association, the right to equality, and so on. Even our people did not have a guardian to look over their limited rights provided by the British. All the suffering and pain of the colonial period shaped our constitution. Various fundamental rights are provided by the Indian constitution to the people of India. Though there are different fundamental rights available in the Constitution, the right to constitutional remedy is a significant provision. Because it is a guardian provision for all other fundamental rights, it provides a constitutional obligation to the Supreme Court of India to provide constitutional remedies for safeguarding the fundamental rights that are provided by the Indian constitution. ***Keywords* *(Minimum 5)*:** enforcement of fundamental rights, writ of habeas corpus, writ of mandamus, writ of prohibition, writ of quo warrant, writ of certiorari, appropriate proceedings, suspension of fundamental rights **LEGAL PROVISION** Article 32 of the Constitution of India – “*Remedies for enforcement of rights conferred by this Part.* *(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.* *(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.* *(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).* *(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[**\[2\]**](#_ftn2)”.* **INSTRUMENTS FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS** **Writ of Habeas Corpus** Indian constitution says, “No person shall be deprived of his life or personal liberty except according to the procedure established by law”[\[3\]](#_ftn3). Illegal detention of a person is a direct violation of personal liberty. So, any detention or confinement should be according to the procedure which is established by the law. Confinement not only covers physical confinement but also covers control and custody over the person. The apex court has the power to enquire into the matter of confinement whether it is legal or illegal. If it finds the detention is not according to the procedure, it can declare the detention illegal and immediately order to release of such person. The literal meaning of the Latin term Habeas Corpus is, “You should have the body”[\[4\]](#_ftn4). This writ empowers the Supreme Court to safeguard the person physically. The Supreme Court in the case of Sunil Batra vs Delhi Administration[\[5\]](#_ftn5) held that “any interested person can file a writ of Habeas Corpus on behalf of the denied person”. Unlawful detention is not an essential part of the writ petition before it is disposed of by the court. When the court found prima facie in the writ petition. It issues a *rule nisi* for show cause for detention by the person who detained a person. If the court finds illegality in the cause, it orders to release the person immediately. The Supreme Court has absolute power to issue a writ of Habeas corpus against any person who kept the aggrieved person in his custody to show cause for detention and further, it can order to release him if it finds illegality in the detention[\[6\]](#_ftn6). **Writ of Mandamus** The Supreme Court can compel any subordinate court, tribunal, public authority, government, and anybody to do any act or restrain from doing any act of a public nature which is legally entitled to do or legally not entitled to do. It’s a form of command. The term Mandamus means, “we command”[\[7\]](#_ftn7). Under this writ, the Supreme Court has the power to compel any administrative authority if he must act in a public nature. In the case of Oriental Bank of Commerce vs Sunder Lal Jain & Anr[\[8\]](#_ftn8), the Supreme Court held that “the petitioner of this writ should have the right to compel the authority to perform his duty towards him”. Furthermore, he may have legal interests or his rights are in imminent danger of being invaded[\[9\]](#_ftn9). Importantly, the right to compel should be provided to him by statute not by a contract. So, a writ of mandamus cannot be invoked to compel the performance of contractual liability. Before invoking the writ of mandamus, the concerned authority should refuse to perform his legal duty of a public nature towards the aggrieved person. Further, observing the case of Manjula Manjari Dei v. M.C. Pradhan, Director of Public Instruction[\[10\]](#_ftn10), a writ of mandamus cannot be invoked in matters of a discretionary nature. In the above case, a writ of mandamus was filled to compel the Director of Public Instruction to select the petitioner’s book for schools. The court refused the writ because selecting books for schools is at the discretion of the Director of Public Instruction. **Writ of Prohibition** Writ of Prohibition is a preventive remedy. This writ can be invoked by the person against any judicial and quasi-judicial bodies for restraining such bodies from what they are about to do. The main condition for a writ of prohibition is that an alleged judicial or quasi-judicial body is about to do an act without jurisdiction. This writ cannot be invoked against an executive body. If a judicial or quasi-judicial body acts partly within the jurisdiction and partly outside the jurisdiction, the Writ of Prohibition will lie in the part of the act that is acted by it without the jurisdiction. Once a judicial or quasi-judicial body pronounces its decision over the matter which is decided by it without jurisdiction, a writ of prohibition cannot be invoked against such judicial or quasi-judicial body. Further in the case of Prudential Capital Markets Ltd v. The State of Andhra Pradesh and others[\[11\]](#_ftn11), the court held once the order was executed, the writ of prohibition could not be invoked. **Writ of Quo Warranto** This writ empowers the citizens to question the person’s appointment in an office of a public nature. It protects the office of a public nature from the person’s employment by force or any illegal manner. Latin term Quo Warranto means, “by what warrant (or authority)”[\[12\]](#_ftn12). When the writ of Quo Warranto is invoked by the person, the court calls the person who is against the writ filed to show in what authority he holds the alleged office. If the court finds he holds such office of a public nature illegally, it orders the person to leave his office immediately. Public office means the office in which the general public interests exist. Writ of Quo Warranto will not invoke against any office of private nature. It only can be invoked against public offices. In the case of Jamalpur Arya Samaj v. D. Ram[\[13\]](#_ftn13), the petitioner filed a writ of quo warranto against the appointment of members of the working committee of a private religious association. The court refused the writ on the grounds of appointment in the office of a private nature. There is no limitation period for filing this writ petition in the Supreme Court because the cause of action arises every day on how long the alleged person holds the office. Further, the petitioner need not have a specific interest in the alleged office. The main point to decide in this writ is whether the person holding public office legally or illegally. **Writ of Certiorari** The Supreme Court can call the records of proceedings from the subordinate courts and tribunals. If it finds any illegality, it will quash it. The Writ of Certiorari is the correctional remedy. The Supreme Court held in the case of Gulab Singh and Ors v. Collector of Farrukhabad and Ors[\[14\]](#_ftn14) that “the writ of certiorari can issue against any legal authority who must act judiciary to determine questions affecting the rights of subjects”. Judicial, quasi-judicial, and administrative bodies who fulfil the above conditions come under the ambit of that writ. Majorly there are three grounds to issue the writ of certiorari, The *first one* is want or excess of jurisdiction, in this ground the said writ is issued for correcting errors of jurisdiction of judicial or quasi-judicial functioning bodies. Errors of the jurisdiction include the ultra vires acts of legal authority, exercising powers without fulfilling the conditions of the law, acquiring jurisdiction from unconstitutional statutes, exercising powers for an improper purpose, acting under bad faith, and so on. The *second one* is a violation of the principles of natural justice, the rule of audi alterm partem which means listen to the other side and the doctrine of bias comes under the principles of natural justice. The Supreme Court can issue the writ of certiorari against the decisions of judicial or quasi-judicial bodies if there are no opportunities given to the parties to defend their cases or if the decision is arrived at by legal authority by the influence of bias. In the case of Gullapalli Nageswara Rao and Others Vs Andhra Pradesh State Road Transport Corporation and Anr[\[15\]](#_ftn15), the court held that the objection against the policy of the particular department heard by the Secretary of the same department was biased. So, it violates the principles of natural justice. The *third one* is the error of law. The Supreme Court can correct the error of law apparent on the face of the record of legal authority. The function of a writ of certiorari quash the order of the legal authority and not to substitute a new order in its place. Because the Supreme Court acts as supervisory authority not as appellate authority under that writ. 1. **Exclusive Power of Supreme Court** – As per article 32(2), the Supreme Court can issue writs “including writs like habeas corpus, mandamus, prohibition, quo warrant and certiorari”. Five writs mentioned in article 32(2) are inclusive. So, article 32 does not restrict the Supreme Court only to issue writs mentioned in that article. The Supreme Court held that “the Courts should abandon the laissez-faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies to make fundamental rights meaningful for the large masses of people. And this is permissible in the language of clause (2) of Article 32”[\[16\]](#_ftn16). Further, the apex court extended the scope of *Locus Standi* to allow any public-spirited person to approach the court for the enforcement of the fundamental rights of the needy people. The term *Locus Standi* means, “the right or ability to bring a legal action to a court of law, or to appear in a court”[\[17\]](#_ftn17). The Supreme Court can give extraordinary remedies for the enforcement of fundamental rights under Article 32. The Supreme Court is empowered to provide compensation for the violation of fundamental rights. It not only has the power to issue writs but also it has the power to issue directions or orders for the enforcement of fundamental rights. So, the Supreme Court’s power to provide constitutional remedies for the enforcement of fundamental rights is not limited, it can go to any extent to protect the fundamental rights of citizens. 2. **Manner Of Approach The Supreme Court** Approaching the Supreme Court for constitutional remedies for the enforcement of fundamental rights should be done by appropriate proceedings as per Article 32(1). The Supreme Court follows a liberal interpretation of the term “appropriate proceedings”. In any manner, the aggrieved person can approach the Supreme Court for the enforcement of his fundamental rights. Prescribing the hardened proceedings will cause restrictions on poor, disabled people, and ignorant people. In the case of Bandhua Mukti Morcha vs Union of India & Others[\[18\]](#_ftn18), The Supreme Court ruled that “the letter of the aggrieved person sent to the court for the enforcement of his fundamental rights regarded as an appropriate proceeding”. Even The Supreme Court accepted postcards and telegrams addressed to any judges of the court regarding enforcement of the fundamental rights as appropriate proceeding[\[19\]](#_ftn19). Usually, the Supreme Court considers the appropriate proceedings based on the main purpose of proceedings which is enforcement of fundamental rights. Whenever fundamental rights are invaded by the acts of the administrative or legislature, the Supreme Court is empowered to provide appropriate remedies. 3. **Constitutional Obligation Of The Supreme Court In the matter of enforcement of fundamental rights, the Supreme Court and the High Courts have the power to provide remedies. There is no condition for the Aggrieved person to approach the High Court first and, afterwards approach the Supreme Court. The Supreme Court in the case of M. C. Mehta v. Union of India (Shriram-Oleum Gas)[\[20\]](#_ftn20), ruled that the petitioner need not approach the High Court very first before approaching the Supreme Court. Due to the pending cases in the Supreme Court, aggrieved persons should approach the high court first if there is an effective remedy available there. If there is no effective remedy available, the aggrieved person can approach the Supreme Court directly. The right to enforce fundamental rights under Article 32 is a fundamental right of an aggrieved person but the right to enforce fundamental rights under Article 226 is a constitutional right. Therefore, the Supreme Court has the constitutional obligation to provide constitutional remedies for the enforcement of the fundamental rights of citizens. Notably, The Supreme Court does not entertain petitions under Article 32, if the matter has already been decided on merit by the high court. Because the rule of *Res Judicata* bars the Supreme Court from reopening the matter again[\[21\]](#_ftn21). But if the petition was dismissed not on merit by the high court then there is no bar to entertain the petition under Article 32[\[22\]](#_ftn22). The Term *Res Judicata* denotes, “a matter finally decided on its merits by a court having competent jurisdiction and not subject to litigation again between the same parties”[\[23\]](#_ftn23). 4. **SUSPENSION OF ARTICLE 32** Article 32(4) provides the right to enforce fundamental rights only be suspended according to the provision of the constitution. Article 359 suspends the enforcement of fundamental rights by the courts during an emergency which is declared by the President under Article 352. In the case of ADM Jabalpur v. Shivkant Shukla[\[24\]](#_ftn24), the Supreme Court held the right to constitutional remedies provided by Article 32 for the enforcement of fundamental rights is suspended during the national emergency as per Article 359. But later, article 359 was amended by the 44th Constitutional Amendment Act 1978. This amendment act excluded Article 20 and Article 21 from the ambit of Article 359. Currently, all fundamental rights shall be suspended during a national emergency but the protection in respect of conviction for offences under Article 20 and protection of life and personal liberty under Article 21 shall not suspended. **CONCLUSION & COMMENTS** Providing the right to constitutional remedies as the fundamental right to citizens clearly expresses how the makers of our Constitution decide to secure all fundamental rights from encroachment. Supreme Court acts very well to protect fundamental rights. It issues writs to secure fundamental rights and even provide compensation to aggrieved persons under Article 32. Further, it extends the scope of locus standi to allow public-spirited persons to fight for the enforcement of the fundamental rights of others. All the previous decisions of the Supreme Court regarding the enforcement of fundamental rights clearly show the Supreme Court is always right to break any barrier for the enforcement of fundamental rights as the guardian of the fundamental rights of the citizens. **REFERENCES** 1. **Online Articles / Sources Referred** 1. Cambridge Dictionary, locus standi, English meaning – Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/locus-standi (last visited Aug 4, 2024). 2. Definition of habeas corpus, https://www.merriam-webster.com/dictionary/habeas%20corpus (last visited Aug 3, 2024). 3. Definition of res judicata, https://www.merriam-webster.com/dictionary/res%20judicata (last visited Aug 4, 2024). 4. LII, quo warranto, LII / Legal Information Institute, https://www.law.cornell.edu/wex/quo\_warranto (last visited Aug 3, 2024). 5. mandamus, HarperCollins Publishers Ltd, https://www.collinsdictionary.com/dictionary/english/mandamus (last visited Aug 3, 2024). 2. **Cases Referred** 3. ADM Jabalpur v. Shivkant Shukla, 1976 SCR 172. 4. Bandhua Mukti Morcha vs Union of India & Others, 1984 SCR (2) 67. 5. Daryao And others vs The State of Uttar Pradesh and others, 1962 SCR (1) 574. 6. Forward Construction Co. & ors. Etc. Etc vs Prabhat Mandal (Regd.) Andheri & ors, 1986 AIR 391. 7. Gulab Singh and Ors v. Collector of Farrukhabad and Ors, AIR 1953 ALL 585. 8. Gullapalli Nageswara Rao and Others Vs Andhra Pradesh State Road Transport Corporation and Anr, 1959 AIR 308. 9. Jamalpur Arya Samaj v. D. Ram, AIR 1954 PATNA 297. 10. C. Mehta v. Union of India (Shriram-Oleum Gas), (1987) 1 SCC 395. 11. Maganbhai Ishwarbhai Patel vs Union of India and Anr, 1969 SCR (3) 254. 12. Manjula Manjari Dei v. M.C. Pradhan, Director of Public Instruction, AIR 1952 ORI 344. 13. Mohan Lal Sharma vs State Of Uttar Pradesh, (1989) 2 SCC 600. 14. Ikram Hussain v. State of Uttar Pradesh & Others, 1964 SCR (5) 86. 15. Oriental Bank of Commerce vs Sunder Lal Jain & Anr, (2008) 2 SCC 280. 16. Prudential Capital Markets Ltd v. The State of Andhra Pradesh and others, 2000 (5) ALT 468. 17. Sunil Batra vs Delhi Administration, 1980 SCR (2) 557. 3. **Statutes Referred** 1. Constitution of India [\[1\]](#_ftnref1) Words of Dr. B.R. Ambedkar in Constituent Assembly Debates, Vol. VII, 953. [\[2\]](#_ftnref2) India Const. art. 32. [\[3\]](#_ftnref3) India Const. art. 21. [\[4\]](#_ftnref4) Definition of habeas corpus, https://www.merriam-webster.com/dictionary/habeas%20corpus (last visited Aug 3, 2024). [\[5\]](#_ftnref5) 1980 SCR (2) 557. [\[6\]](#_ftnref6) Mohd. Ikram Hussain v. State of Uttar Pradesh & Others, 1964 SCR (5) 86. [\[7\]](#_ftnref7) mandamus, HarperCollins Publishers Ltd, https://www.collinsdictionary.com/dictionary/english/mandamus (last visited Aug 3, 2024). [\[8\]](#_ftnref8) (2008) 2 SCC 280. [\[9\]](#_ftnref9) Maganbhai Ishwarbhai Patel vs Union of India and Anr, 1969 SCR (3) 254. [\[10\]](#_ftnref10) AIR 1952 ORI 344. [\[11\]](#_ftnref11) 2000 (5) ALT 468. [\[12\]](#_ftnref12) LII, quo warranto, LII / Legal Information Institute, https://www.law.cornell.edu/wex/quo\_warranto (last visited Aug 3, 2024). [\[13\]](#_ftnref13) AIR 1954 PATNA 297. [\[14\]](#_ftnref14) AIR 1953 ALL 585. [\[15\]](#_ftnref15) 1959 AIR 308. [\[16\]](#_ftnref16) Bandhua Mukti Morcha vs Union of India & Others, 1984 SCR (2) 67. [\[17\]](#_ftnref17) Cambridge Dictionary, locus standi, English meaning – Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/locus-standi (last visited Aug 4, 2024). [\[18\]](#_ftnref18) 1984 SCR (2) 67. [\[19\]](#_ftnref19) Mohan Lal Sharma vs State Of Uttar Pradesh, (1989) 2 SCC 600. [\[20\]](#_ftnref20) (1987) 1 SCC 395. [\[21\]](#_ftnref21) Forward Construction Co. & ors. Etc. Etc vs Prabhat Mandal (Regd.) Andheri & ors, 1986 AIR 391. [\[22\]](#_ftnref22) Daryao And others vs The State of Uttar Pradesh and others, 1962 SCR (1) 574. [\[23\]](#_ftnref23) Definition of res judicata, https://www.merriam-webster.com/dictionary/res%20judicata (last visited Aug 4, 2024). [\[24\]](#_ftnref24) 1976 SCR 172. **Categories:** Articles, Constitutional Law --- ### [Marital and Adoption Rights of LGBTQ+ Community and Applicability of Family law](https://lawfoyer.in/marital-and-adoption-rights-of-ltbtq-community-and-applicability-of-family-law/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Name of Author- Nikhil, Gitarattan International Business School** **Edited by – Sulesh Choudhary** **INTRODUCTION** The term ‘Gender’ is commonly thought to refer to masculinity or femininity; however, an individual can identify with a variety of other gender identities apart from these binary options. Gender identity encompasses how a person views themselves in terms of gender and this perception may not align with their sex. Male or female as assigned at birth. It can also mean feeling like a man or a woman or identifying as something in between, on the gender spectrum. In today’s world of the first-century privacy rights are valued just as highly as the right to life. Every person holds a fundamental ‘right to gender’. Gender identity embodies the core value of ‘equality’. Embraces the concept of fairness. Presently individuals, within the LGBTQ+ community are granted rights ranging from the ‘right to exist’ to the ‘right to foster’ yet in some regions of the globe they still encounter instances of ‘social inequality’. Marriage has long been seen as an institution in society when it involves relationships between men and women according to the laws of nature perceived by many people as holy Those views failed to demonstrate any inherent differences between homosexuals and heterosexual individuals The discrimination they face is primarily rooted in societal attitudes, towards gender identity and fluidity to shift in the 20th century with an increasing acceptance of homosexuality driven by the advocacy efforts of same-sex couples asserting their rights Research and investigations have. **LGBTQ+ Community’s Right to Marriage** After the landmark decision of the Supreme Court in ‘navtej singh johar v. Union of India, which decriminalized section 377 of the indian penal code, 1860 to the extent where two adults are engaged in consensual sexual activities, a ray of hope for equal rights and dignified treatment to the sexual minorities, i.E., the lgbtqia+ community was found. Post the decision in Navtej Johar, there have been considerable advances in indian society to discuss the issue of homosexuality and the recognition of lgbt rights. Numerous individuals have emerged from their closet, embracing and accepting their sexual identities and orientations. All this makes a logical inference that homosexuality is not uncommon in India. The rights of this community have been deliberately ignored, and there has been institutionalized victimization of people who fall under a sexual minority. Post the 2018 judgment which decriminalized homosexuality, there has been a growing demand for legal recognition of same-sex marriages. For this to be realized, multiple petitions have been filed since 2018 seeking to enact a new set of laws or amendments to the existing ones that would carve out a space for homosexual couples. This is essential to attain equality and prevent discrimination based on gender identities. The current Indian personal civil laws recognize marriages between a biological man and a biological woman and discourage same-sex marriages in India. **The Importance of Legal Recognition** It is to be noted that there happen to be no explicit legal restrictions on homosexual marriages since the decriminalization of section 377. However, there are additional aspects that need to be given due consideration. To begin with, consider the following situation, one Lesbian couple approached the Registrar with a request to issue a certificate of marriage under the Special Marriage Act. The Registrar was unclear whether he was authorized to issue the certificate to a same-sex couple. Due to the ambiguity, the Registrar had to turn the couple away. Later, smelling the confusion, one of the partners was persuaded not to marry. In this scenario, who is supposed to be blamed? It’s no shortcoming of the Registrar but the law, which lacks clarity. One could wonder why legal recognition of marriage has become so essential. To answer, the State’s role in marital relations has to be scrutinized. Although being a secular affair, marriage is linked with a particular set of rights and liabilities shared between the spouses. **Same-Sex Marriages under Family Law** In India, Hindus, Muslims and Christians are governed by various rules on marriage. The Hindu Marriage Act, which regulates “Hindus, Sikhs, Jains, and Buddhists”, stipulates that “marriage can be solemnized between any two Hindus”. Similarly, the Christian Marriage Act prescribes rules of marriage amongst Christians. Muslim marriages are not regulated by any statutory legislation and lack any formal definition of marriage, but the union is mostly perceived as a contract for procreation. But the overall notion of a marriage, in all personal laws, envisages a “heterosexual union”. **Same-sex marriages under the Special Marriage Act, 1954** An alternative that should not raise religious eyebrows is to seek an “amendment to the Special Marriage Act of 1954” to allow same-sex weddings. The Act is a secular law that allows interreligious and inter-faith marriages. Marriage does not occur through religious ceremonies; instead, is registered by a Marriage Officer. The SMA appears to apply to heterosexual couples in its current version. However, same-sex weddings are easily accommodated within its framework by making minor amendments. **LGBTQ+ Community’s Right to Adoption** After the landmark decision of the Supreme Court in ‘navtej singh johar v. Union of India, which decriminalized section 377 of the Indian penal code, 1860 to the extent where two adults are engaged in consensual sexual activities, a ray of hope for equal rights and dignified treatment to the sexual minorities, i.E., the lgbtqia+ community was found. Post the decision in Navtej Johar, there have been considerable advances in Indian society to discuss the issue of homosexuality and the recognition of lgbt rights. Numerous individuals have emerged from their closet, embracing and accepting their sexual identities and orientations. All this makes a logical inference that homosexuality is not uncommon in India. The rights of this community have been deliberately ignored, and there has been institutionalized victimization of people who fall under a sexual minority. Post the 2018 judgment which decriminalized homosexuality, there has been a growing demand for legal recognition of same-sex marriages. For this to be realized, multiple petitions have been filed since 2018 seeking to enact a new set of laws or amendments to the existing ones that would carve out a space for homosexual couples. This is essential to attain equality and prevent discrimination based on gender identities. The current Indian personal civil laws recognize marriages between a biological man and a biological woman and discourage same-sex marriages in India. **Existing Legislation on Adoptions** The Ministry of Women and Child Development regulates the Central Adoption Resource Authority (CARA), which manages and controls local and international adoptions. CARA is the central authority responsible for looking after adoptions at the inter-country level as per the Hague Convention on Inter-country Adoption regulations, which the Government of India ratified in 2003. **Hindu Adoptions and Maintenance Act, 1956** This Act entails the requirements and legal obligations of Hindu adults who wish to adopt a child. According to Sections 724 and 8(c)25 of the said Act, authorisation is not required if the spouse is not of sane mind, has abandoned the world, or abandoned their children. These provisions also provide for the adoption of a child by unmarried men and women of sound mind having attained the age of majority. “The words spouse and wife used in Sections 7 and 8 indicate that the Act does not recognise adoption by same-sex couples. In addition, the ability of Hindu males and females to adopt is clarified, leaving a grey area for applying such laws to third-gender couples. **Adoption Regulations, 2017** These regulations are significantly more restrictive than the HAMA in terms of restrictions. Unmarried men and women can adopt if they are financially sound, mentally and emotionally stable and have no life-threatening conditions. However, a single man is prohibited from adopting a girl child, while a woman is not prohibited from adopting a boy child. On the other hand, Section 11(iii)28 permits the adoption of a girl child by a single man provided that the child and the adoptive father are at least 21 years of age. **Juvenile Justice (Care and Protection of Children) Act, 2015** Prospective Adoptive Parents (“PAPs”) are eligible under Section 57 of the JJ Act. According to one of the requirements, “no child shall be put for adoption until the couple has had at least two years of a good marital relationship.” The same-sex couples could not establish a two-year stable marital relationship since they were not legally recognised until recently, making them ineligible to serve as PAPs. **Contemporary Issues and challenges concerning Adoption by same-sex couples** The Madras High Court in Arun Kumar Sreeja vs. Inspector General of Registration declared that a marriage between a man and a transgender woman, both of whom follow Hinduism, was considered valid. The court concluded that the term “bride” in the home does not have a specific definition and should be interpreted based on the current legal framework. Transgender individuals should not be denied the benefits and opportunities provided by social institutions in mainstream society, as the Indian constitution is an enabling document that promotes their inclusion in the mainstream. In the case of Laxmi Kant Pandey v. Union of India, the court acknowledged that “every child has the right to a family.” It can be interpreted that this right encompasses the right to adoption. Additionally, article 39(f) of the constitution mandates that the government implement policies to ensure that children have access to the necessary opportunities and resources for their healthy, free, and dignified development. Consequently, confining a child to an institution and denying them the opportunity to have a family is equivalent to depriving them of their freedom and dignity in life, which goes against our national policy principles. **Effect of lack of legislation: From the lens of the COVID-19 Pandemic** The COVID-19 pandemic has had a devastating impact on the lives of children, wherein many were left orphaned due to the deaths of their parents. According to the National Commission for the Protection of Child Rights (NCPCR), over 9300 children in India have lost their parents since the pandemic began in 2020. The apex court had emphasized that the actual number of orphaned or abandoned children would be greater than what has been reported in official and public records. The pandemic, which led to an increase in the number of children without parents, has prompted and fueled the growth of child trafficking. **CONCLUSION** The ongoing discussions about the legalization of same-sex relationships or marriages have been a contentious issue for many years. The LGBTQ+ folks have been standing up for their basic rights since they were born, like being treated the same, being free, keeping things private, living safely, and being true to who they are. Organisations must initiate global campaigns to persuade national governments to provide basic rights to everyone. Western ideas have greatly affected the way people in Eastern countries think and, to some degree, changed their overall view of homosexuals. Simplified: Western influence and European trends have changed the idea of same-sex marriages, giving people in this group new reasons to be inspired. **REFERENCES** - Adoptions Regulations,2017([http://cara.nic.in/PDF/Regulation\_english.pdf](http://cara.nic.in/PDF/Regulation_english.pdf)) - Aneesha Mathur, Over 9300 children lost parents or were abandoned in the pandemic, NCPCR informs Supreme Court() - Fleur Mulligan, “Gender Identity: Developing a Statistical Standard”, Vol. – II, United Nations Department of Economic and Social Affairs Statistics Division, 289, Pg. No. – 7 (2015). - Joshua Kellison, “Lesbian and Gay Parenting: A Parental Need Assessment and a Mixed Method Analysis of Discrimination Parenting and Coping Strategies”, Vol. II, Arizona State University, Pg. No. 127, December (2014). - The Constitution of India, 1950. - The Indian Penal Code, 1860. - The Hindu Adoptions and Maintenance Act, 1956. - The Juvenile Justice (Care and Protection of Children) Act, 2015 § 2(2). - The Juvenile Justice (Care and Protection of Children) Act, 2000. - Vanita, Ruh. “Same-Sex Weddings, Hindu Traditions and Modern India”, Feminist Rev., no. 93, 2009. **Categories:** Articles, Family Law --- ### [Vineet Narain v. Union of India (1998) 1 SCC 226](https://lawfoyer.in/vineet-narain-v-union-of-india-1998-1-scc-226-2/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Chahat Gugliya, Dr. K. N. K. Law College, Ratlam** **A) ABSTRACT** This case is a landmark judgment by the Supreme Court of India highlighting systemic corruption and the independence of investigative agencies. Public Interest Litigation (PIL) filed by journalist Vineet Narain, highlighting the inaction of the Central Bureau of Investigation (CBI) and other agencies in probing corruption allegations against high-ranking politicians and bureaucrats in the Jain Hawala scandal. The Supreme Court emphasized the need for the functional autonomy of the CBI and the Enforcement Directorate (ED) to conduct impartial investigations free from political and bureaucratic influence. The Court directed the appointment of the CBI Director through a transparent process involving a committee and fixed the tenure of the Director to ensure stability and independence. The judgment also recommended making the Central Vigilance Commission (CVC) a statutory body to oversee the CBI’s work in corruption cases thereby enhancing accountability and efficiency. By laying down guidelines for investigative procedures and asserting judicial oversight the Court aimed to ensure diligent and transparent handling of corruption cases **Keywords** : *corruption, accountability, central bureau of investigation independence, judicial oversight, transparency.* **B) CASE DETAILS** i) Judgement Cause Title / Case NameVineet Narain v. Union of India (1998) 1 SCC 226ii) Case Number(Criminal) No. 340-343 of 1993iii) Judgement DateDecember 18, 1997iv) CourtSupreme Court of Indiav) Quorum / Constitution of BenchDivision Benchvi) Author / Name of JudgesV Justice S.P Bharucha; Justice S.C Sen and Justice N. Santosh Hegdevii) Citation(1997) 4 SCC 306viii) Legal Provisions InvolvedArticle 32, 14 & 21 – Constitution of India; Section 6 & 19 – Prevention of Corruption Act (1947); Delhi Special Police Establishment Act; Criminal Procedure Code**C) INTRODUCTION AND BACKGROUND OF JUDGEMENT-** Journalist, Vineet Narain along with others, filed a Public Interest Litigation (PIL) seeking directives for the CBI to investigation. CBI, which is responsible for investigating such cases, was often compromised and hindered by political pressures. The case of Vineet Narain & Others vs Union of India & Another is a landmark case which revolves around issues related to Prevention of Corruption Act & role of Central Bureau of Investigation (CBI) in investigating corruption cases. The petitioners, led by journalist Vineet Narain, seek the court’s intervention to address serious issues relating to the CBI’s compromised efficiency while investigating corruption cases against influential public figures. The issues in this case are questions on law & governance. The right to fair investigation & speedy trials is enshrined in the Constitution. This case reinforced principles of accountability & transparency in the investigation process. It has contributed to judicial oversight & the rule of law in the country. **D) FACTS OF THE CASE** The case involved a writ petition filed by Vineet Narain, an activist along with other petitioners before the Supreme Court. The petitioners alleged that high-profile corruption cases were compromised due to political interference and lack of investigation by the CBI, they proclaimed that the CBI was not functioning properly and was influenced by political pressure. On March 25, 1991, Ashfak Hussain Lone, alleged to be an official of the terrorist organization Hizbul Mujahideen, was arrested in Delhi. Upon his interrogation, the Central Bureau of Investigation (CBI) conducted raids on the premises of Surrender Kumar Jain, his brothers, relations and businesses. During the raids, the CBI seized two diaries and two notebooks containing detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high-ranking politicians, in power and out of power, and of high-ranking bureaucrats. Despite the seizure of these incriminating materials, the CBI and revenue authorities failed to investigate the matter and take it to its logical conclusion by prosecuting the persons involved. The petitioners, Vineet Narain and others filed public interest writ petitions under Article 32 of the Constitution, alleging that the government agencies had failed to perform their duties and legal obligations by not investigating the contents of the “Jain diaries.” The petitioners alleged that the failure to investigate was done to protect the influential and powerful persons who were recipients of money from unlawful sources. The petitioners argued that the matter disclosed a nexus between crime and corruption at high places in public life, posing a serious threat to the integrity and security of the country. The case arose from the CBI’s failure to investigate the contents of the “Jain diaries,” which allegedly revealed financial links between politicians, bureaucrats, and criminals, despite the incriminating evidence seized during the raids. **E) LEGAL ISSUES RAISED** i. Whether the judiciary can intervene and provide a remedy when government investigative agencies like the CBI fail to investigate allegations against high-ranking politicians and bureaucrats? ii. Whether it is within the domain of judicial review and it could be an effective instrument for activating the investigative process which is under the control of executive? **F) PETITIONER / APPELLANT’S ARGUMENTS** i. The counsel for Petitioner submitted that the Central Bureau of Investigation (CBI) with investigating high-profile corruption cases was suffering from major issues related to political interference. They argued that this interference compromised the CBI’s ability to function with the necessary independence and impartiality. The petitioners claimed that the CBI’s operations were influenced by political authorities which often led to biased and compromised investigations. ii. The counsels highlighted the inefficiency in the CBI investigative procedure was a major concern. They pointed out various instances where investigations were unreasonably delayed leading to prolonged periods during which corruption cases remained unresolved. This delay was argued to be a strategy to avoid accountability and shield influential people from the legal consequences of their actions. iii. The petitioners counsel argued that there was a systemic failure in the prosecution of corruption cases. They provided evidence of several high-profile cases where the CBI failed to pursue prosecutions. This included examples of weak and incomplete legal action that resulted in insufficient consequences. Such failures they argued undermined the effectiveness of anti-corruption measures and eroded public confidence in the legal system. iv. The counsels for the petitioners called for the implementation of procedural reforms within the CBI. They argued that the lack of clear guidelines and time for conducting investigations contributed to inefficiency and lack of transparency. They emphasized the need for structured procedures to ensure that investigations were conducted promptly and effectively thereby enhancing the overall accountability of the CBI. v. The petitioners counsel also underscored the importance of protecting whistleblowers who come forward with information about corruption. They argued that without adequate protection whistleblowers faced significant risks of retaliation which could discourage others from reporting corruption. They urged the Court to recognize the necessity of safeguarding whistleblowers to encourage the reporting of misconduct and ensure the integrity of investigative processes. vi. Finally the counsels argued for the establishment of an independent supervisory mechanism to oversee the CBIs functioning. They suggested that a supervisory committee composed of impartial and experienced individuals could provide the necessary oversight to ensure that investigations were conducted without political interference and in adherence to established guidelines. This oversight was deemed crucial for maintaining the credibility and effectiveness of the CBI. **G) RESPONDENT’S ARGUMENTS** i. The counsels for Respondent submitted that the Central Bureau of Investigation (CBI) is an autonomous and professional agency equipped to handle high-profile corruption cases with the necessary expertise and resources. They argued that the CBI’s operations are conducted with established protocols and legal standards designed to ensure fairness and impartiality in its investigations. ii. The respondents contended that allegations of political interference are largely unfounded and do not reflect the operational realities of the CBI. They argued that the CBI’s decisions and actions are guided by law and are not subject to undue political influence. The respondents maintained that any allegations of interference should be substantiated with specific evidence rather than generalized assertions. iii. Regarding the issue of inefficiency in investigations the counsels for the respondents acknowledged that while the CBI may face challenges it operates under significant procedural and legal constraints. They argued that delays in investigations are often due to the complex nature of the cases and the necessity for thorough evidence collection. They maintained that the CBI works diligently to resolve cases within a reasonable timeframe and delays are not indicative of systemic failures but rather the inherent challenges of complex corruption cases. iv. On the matter of prosecution failures the respondents asserted that the CBI’s role is limited to investigation and the decision to prosecute rests with the appropriate legal authorities including the prosecution and judicial system. They argued that any shortcomings in the prosecution process are beyond the CBI’s control and are a function of the broader legal framework within which it operates. v. The respondents agreed on the importance of protecting whistleblowers but argued that the existing legal and institutional mechanisms adequately address this issue. They contended that there are sufficient safeguards and protections in place for whistleblowers and additional measures may not be necessary or practical given the current framework. vi. Regarding the call for procedural reforms the respondents acknowledged that procedural improvements can be beneficial but argued that the CBI is already subject to rigorous oversight and legal standards. They maintained that implementing further reforms should be considered carefully to avoid disrupting the existing system which is designed to balance efficiency with thoroughness. vii. Finally the counsels for the respondents objected to the need for an independent supervisory committee. They argued that the CBI is already subject to oversight by various bodies including the judiciary and government authorities which provide adequate checks and balances. They contended that the establishment of a new supervisory mechanism could lead to unnecessary bureaucratic complications and may not necessarily improve the effectiveness of investigations. **A) RELATED LEGAL PROVISIONS** I. Articles of the Constitution of India:  Article 14: “Right to Equality, emphasizing that every individual is equal before the law and entitled to equal protection of the laws within the territory of India.”  Article 21: “Right to Life and Personal Liberty, which underscores the importance of fair investigation and trial as essential to protect individual rights.”  Article 32: “Provides the right to approach the Supreme Court for enforcement of fundamental rights, forming the basis for the Public Interest Litigation in this case.” II. The Prevention of Corruption Act, 1988: “This act provides the framework for preventing corruption in public offices and outlines the legal penalties for offenses related to corruption.” III. The Criminal Procedure Code (CrPC), 1973: “Provisions from the CrPC were cited regarding the powers of the police and investigating agencies to conduct inquiries and investigations, ensuring due process in judicial proceedings.” IV. Indian Penal Code (IPC), 1860: “Contains provisions related to offenses, including those pertaining to bribery and corruption, that were pertinent in the context of the allegations investigated by the CBI.” **H) JUDGEMENT** **a. RATIO DECIDENDI** The ratio decidendi of Vineet Narain & Others vs. Union Of India & Another revolves around the Supreme Court’s affirmation of the necessity for independence and accountability of the Central Bureau of Investigation (CBI) in the prosecution of high-profile cases. The Court established that the CBI must operate free from political interference emphasizing that governmental directives, such as the Single Directive should not obstruct the investigation of corruption by public officials. The integrity of law enforcement is vital to uphold the rule of law and prevent prosecutorial inertia in cases involving influential individuals. The judgment also mandated the establishment of Special Courts to expedite the trial of criminal cases investigated by the CBI thereby reinforcing the importance of timely justice and accountability in public office. This ruling therefore enhances the framework for investigating corruption and serves as a critical interpretative guideline for the exercise of CBI’s powers in future investigations. **b. OBITER DICTA** The Supreme Court made several obiter dicta that provided important context and commentary on the subject matter. The Court expressed concern about the systemic issues plaguing the investigative framework, suggesting that public trust in legal institutions is base for democracy. It emphasized that corruption and nepotism in high offices negatively impacts governance and the need for rigorous accountability mechanisms. The justices highlighted the importance of a transparent and autonomous investigative body arguing that the CBI’s role is crucial in upholding the principles of justice and public interest. Additionally, the Court reflected on the need for reforms to ensure that investigative agencies operate effectively and without obstruction. The commentary aimed to guide future legislative and administrative actions, underscoring the judiciary’s role in fostering a corruption-free environment within public institutions. **I) CONCLUSION & COMMENTS** The judgment reinforced the principle that the rule of law must triumph over political influence ensuring that corruption is effectively addressed while preserving individual rights. It set a precedent for future cases, advocating for reforms in the accountability mechanisms of investigative bodies in India. the Vineet Narain case has had a lasting impact on Indian society by fostering a legal environment conducive to accountability, promoting anti-corruption initiatives, and empowering citizens to advocate for integrity in governance. These changes have contributed to a democratic framework and have implications for the overall health of public institutions in India. **J) REFERENCES** a. Important Cases Referred 1\. Kehar Singh v. State (NCT of Delhi), (1994) 2\. Maneka Gandhi v. Union of India, (1978) 3\. Minerva Mills Ltd. v. Union of India, (1980) 4\. State of Bihar v. Bihar Rajya Khadi Gramodyog Mandal, (1997) b. Important Statutes Referred 1\. Constitution of India, 1950 2\. Prevention of Corruption Act, 1988 3\. The Criminal Procedure Code, 1973 4\. Indian Penal Code, 1860 **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases --- ### [Historical School of Jurisprudence: An Analytical Study](https://lawfoyer.in/historical-school-of-jurisprudence-an-analytical-study/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Nirbhay Singh, Lovely Professional University** **1. Introduction** Legal philosophy the principles that seek to explain the nature, role, function, and justification of law are grouped into several schools of thought. Of all, the Historical School of Jurisprudence is one of the most distinguished frameworks that explain the history and culture of the law. The positivist school of thought came to light as a result of criticism of rationalist and natural law theories that were prominent in the 18th century and the initial half of the 19th century. The supporters of the Historical School have contended that law is not the creation from reason or theological fiat, but it is a living growth of the civilization and the community. This article aims to explain what the historical school of jurisprudence looks like, its origins, philosophers, and significance for contemporary legal science. The discussion will be divided into several sections: In this context, they described the background of the formation of the school, major figures supporting the Historical School, basic premises of historical jurisprudence, main criticisms of other legal theories, and the influence of Historical School over the contemporary legal theory. **2. Keywords** – *Natural Law Critique, Legal Positivism, Volkgeists, Legal History, Customary Law* **3. The Emergence of the Historical School** Historicism as a method of studying law appeared in the second half of the 18th and the first half of the 19th centuries, as a reaction to rationalism and the Enlightenment. The main concepts of the Enlightenment included individualism, reason, the social contract, and natural law, the last of which led to the proposition that law is natural and universal. However, the Historical School introduced the cultural specificity of these systems and stated that they are being formed in records of historical progress as the formation of legal traditions is based on and pertinent to the cultural and social practices of the specific nation. Stemming from these conditions the Historical School arose as a genuine sociopolitical movement emanating from the French Revolution and the Napoleonic Wars. Such events just underlined the importance of not applying legal ideas to nations disregarding their history and culture. The placing of the Napoleonic Code all through Europe caused much resentment and demonstrated that social norms and culture should be taken into consideration when promulgating laws. **4. Key Figures of the Historical School** The Historical School of Jurisprudence was shaped by several essential personalities due to their specific ways of thinking and contributions. **1. Friedrich Carl von Savigny (1779-1861):** Savigny is claimed to be the historical school of law founder. Savigny rejected the codification of the laws based on concepts in his work “On the Vocation of Our Age for Legislation and Jurisprudence” written in 1814 ‘. He opined for the legal development from the traditions of the “Volkgeists” or the spirit of the people. Savigny believes that the law is a part of a nation’s historical experience and any intervention with a foreign law would disturb the process of growth of the legal system. **2. Gustav Hugo (1764-1844):** Hugo was another of the representatives of the Historical School who actively contributed to the analysis of the history of the formation of Roman law. He stressed that historical precedent ought to be taken into account when analyzing legal development; legal institutions should be viewed historically. As such, even if at present, it is not easy to fully appreciate Hugo’s contributions to the study of law, it can be inferred that his scholarly achievements have paved the way for future generations of legal historians. **3. Georg Friedrich Puchta (1798-1846)**: Puchta continued the ideas of Savigny and partially advanced the ideas of the Historical School, more specifically, the doctrine of custom. Speaking of the nature of law, he stated that law grows out of practices and beliefs of the society, the development of which is historically conditioned. It has been still commented on and adapted by many generations of legal theorists mostly concerning the topic of the connection between law and custom and Puchta’s contribution is still pertinent to the contemporary debates in property law and legal anthropology. **5. Philosophical Foundations of the Historical School** The Historical School of Jurisprudence is grounded in several key philosophical principles, which distinguish it from other legal theories. **1. Law as a Product of Historical Development:** A main postulate of the Historical School is that the annals of legal systems’ experience cannot be encompassed by rationalistic postulates or divine revelations, but the law is a historical organism. In this view, the law grows and develops from the practices, conventions, and norms that a particular society deems fit. This greatly differs from the natural law theories where law is said to have its foundation on rational principles. **2. The Concept of Volkgeists:** Volkgeists which translates to “spirit of the people” is an important feature of the Historical School. It relates to the notion that a law is a reflection of a certain population’s consciousness as the result of its history. Thus, following the ideas of Savigny, the Volkgeists regulate all legal norms and the attempt to impose certain external legal standards contradicts the historical evolution of the community. **3. Customary Law:** The Historical School pays a lot of regard to customary law, being completely convinced that it is the key source of legal norms. Customary law, however, can be defined as the practice and the traditions of the people which over time acquire the force of law. This emphasis on custom sets the Historical School as a doctrine different from other legal theories that tend to rely on codes and written laws. **4. Historical Continuity:** Historical School pays particular attention to the historically conditioned evolution of legislation. Therefore, legal institutions are regarded as being a progressive growth process, with every generation adding to the existing legal systems. This focus on stasis differs in some ways from systems of other theories of law, which call for the radical overhaul of legal structures according to principle. **6. Critique of Other Legal Theories** The historical School of Jurisprudence arose due to the main styles in jurisprudential science such as natural law and positivism. **1. Critique of Natural Law:** The Historical School does not accept the view of the natural law theory that law originates from rational principles that mankind is capable of discovering. As much as has been pointed out by proponents of the Historical School, this view is myopic, and it does not take into consideration that every legal system is historical. They oppose the notion that law is a rational construct and is historical growth that is inextricably linked to the specifics of the society in which it is used. Anti-formalists argue that the application of principles inherent in the legal system of other countries would upset the proper development of the legal system, as well as provoke social tension. **2. Critique of Legal Positivism:** The Historical School also rejects legal positivism which postulates that law is the set of rules that exist and are implemented by the state. While the positivism theory states that legal systems need to have written statutes and legal codes, the Historical School says this view is not correct as it does not explain the role of custom and history in legal systems. Thus, the work of the Historical School, legal positivism disregards the organic nature of law and tends to venerate the role of the state in a manner that dislocates the law away from the community it is supposed to serve. **7. The Enduring Influence of the Historical School** The Historical School has also substantially shaped legal theory and practice and has influenced multiple legal systems and disciplines. **1. Influence on Legal Anthropology:** It is Imperialism which is the reflection of the methodology of the Historical School that focused on the connection between law and custom. Legal anthropologists consider the institutional contexts of law and secure the knowledge of the historical school on the conduct of legal customs. **2. Impact on Comparative Law:** Several other branches of legal scholarship, out of which the branch of comparative law that deals with comparing various legal systems also emanates from the Historical School due to its emphasis on the specificity of legal systems. Comparative lawyers use the ideas of the Historical school to analyze legal systems and their configuration in different historical and cultural contexts. **3. Contribution to the Development of Legal History:** The Historical School can be cited as the pioneer of legal history as most of its representatives stressed a historical approach to the study of law. Historicism and its concepts and techniques are adopted by legal historians to examine the origins and the evolution process of the legal systems with an orientation toward the influence of cultural history. **4. Influence on Modern Legal Thought:** The concept of the Historical School that focuses more on the organically evolved legal system has continued to influence modern thinking on laws, especially the constitution and legal reasoning. This approach of the Historical School is still in force in today’s practice: legal scholars and judges use it to interpret the content of legal texts based on their historical background, relying on the principles of continuity and tradition for legal systems. **8. Conclusion** The Historical School of Jurisprudence, championed by figures like Friedrich Carl von Savigny, Gustav Hugo, and Georg Friedrich Puchta, emphasizes the importance of historical development, custom, and tradition in shaping legal systems. It highlights the role of the Volkgeists, or national spirit, in the evolution of law and serves as a counterpoint to other legal theories such as natural law and positivism. This school of thought has significantly influenced fields like legal anthropology, comparative law, and legal history, offering valuable insights into the law’s historical and cultural context. Its relevance endures in contemporary legal scholarship and practice, underscoring the importance of understanding law as a product of human history and social practices. **References** J M Kelly, “The Historical School of Jurisprudence and the Role of Customary Law” (2007) 18 German Law Journal 123. T Nentwig, “Savigny’s Historical School: An Overview” (2011) 29 Legal History Review 145. G L Harcourt, “Georg Friedrich Puchta and the Historical School of Jurisprudence” (2014) 30 Journal of Legal Studies 202. S R Haigh, “Critiques of the Historical School: Natural Law and Positivism” (2012) 27 International Journal of Law 67. E Hagan, “The Legacy of Gustav Hugo: Historical Jurisprudence and Its Modern Impact” (2015) 22 Comparative Legal Studies 94. **Categories:** Articles, Jurisprudence --- ### [Hon'ble Shri Ranganath Mishra vs Union of India and Ors AIRONLINE 2003 SC 273](https://lawfoyer.in/honble-shri-ranganath-mishra-vs-union-of-india-and-ors-aironline-2003-sc-273/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Nirbhay Singh, Lovely Professional University** **A) ABSTRACT / HEADNOTE** This case judgment concerns and involves the part of the Constitution of India, Order 51 A that deals with the realization of rights and duties of its citizens and was given by the Hon’ble Supreme Court of India on 31-7-2003. The petitioner, the former Chief Justice of India, Shri Ranganath Mishra had also sent a letter to the Chief Justice of India stressing for creating awareness and education on the aspects of Fundamental Duties in large. In this letter, the Court treated it as a writ petition. From the interest that the petitioner showed, the issue at hand seemed to support the equality of people’s rights and responsibilities as citizens. Therefore, for the determination of this case, the court-appointed Shri K. Parasaran as an Amicus Curiae, the court referred this matter to a larger Bench since it is very important in hopefully reversing the majority decision of the Court in the Bijoe Emmanuel v. State of Kerala case. Thus, the court actively discussing the propositions of Justice J. S. Verma Committee stimulated the process of creation of a mechanism for enforcing the provisions of the fundamental duties. The verdict also ordered the Central Government to consider these recommendations of the bodies seriously and sympathetically, to bring into action and develop a responsible sign of national conscience in the people. **Keywords:** Fundamental Duties, Constitutional Law, Education Reform, Justice J.S. Verma Committee, Citizen Awareness **B) CASE DETAILS** i) Judgement Cause Title / Case NameHon’ble Shri Ranganath Mishra vs Union of India and Orsii) Case NumberWrit Petition (Civil) 239 of 1998iii) Judgement Date31/07/2003iv) CourtSupreme Court of Indiav) Quorum / Constitution of BenchDivision Benchvi) Author / Name of JudgesV.N. Khare CJ, K.G. Balakrishnan, S.B. Sinhavii) CitationAIR ONLINE 2003 SC 273viii) Legal Provisions InvolvedArticle 51A of the Constitution of India**C) INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case started with a letter to the Chief Justice of India Shri Ranganath Mishra via the Supreme Court where it was treated as a writ petition. In his letter, the petitioner explicitly pointed out that it was of paramount significance to maintain citizens’ awareness of their fundamental duties, stating that it was due to this perspective that the recognition of rights should be accompanied by the acknowledgment of obligations. This court realizing the importance of this issue engaged Shri K. Parasaran as an Amicus Curiae to assist the court with the issue. Given the questions being framed in the case, especially in the light of the decision in Bijoe Emmanuel v. State of Kerala, the court first referred the case to a constitutional bench. But this order was recalled soon, and the issue was transferred to a three-judge bench for a revised look into the issue. **D) FACTS OF THE CASE** **i) Procedural Background of the Case:** The case started when the petitioner, Shri Ranganath Mishra addressed the Hon’ble Chief Justice of India in writing; the same has been transferred by the apex court in the form of writ. The matter, which pertains to the discharge of some significant questions of constitutional importance concerning the concept of the fundamental duties of citizens, was at first entrusted to the Constitution Bench. However, by subsequent orders, the same was stationed before a bench consisting of three Judges. **ii) Factual Background of the Case:** The primary relief the petitioner sought in the current matter was an order requiring the state to address education on the subject of citizen’s fundamental duties. He pointed out the need for such education to fill the gap between the rights of the citizens and the corresponding responsibilities. On coming across a few elementary educational reform recommendations and efforts to enhance awareness regarding the fundamental duties, the attention of the court was directed to the report of the Justice J. S. Verma Committee. This report highlighted the need to incorporate the fundamental duties of citizens as part of the curriculum that a society passes through in their everyday lives. **E) LEGAL ISSUES RAISED** 1\. Whether the state must educate citizens about their fundamental duties: The first one was about the state’s responsibility to educate and produce conscious citizens of India as per Article 51A of the constitution of India. 2\. Whether the recommendations of the Justice J. S. Verma Committee are valid and necessary of being implemented: Another important problem concerned with survival correlates with the consideration of the possibilities and advisability of applying recommendations conveyed by the Justice J. S. Verma Committee to ensure fundamental duties implementation. **F) PETITIONER’S ARGUMENT** Counsel for the petitioner explained how there is such a major need in society for people to be taught their fundamental duties. Such an education is critical to promote the understanding that with every right one ought to take there are corresponding responsibilities. The petitioner noted that such awareness is currently lacking, which essentially means that citizens are immersed in their rights without regard for their reciprocal duties. Also, the petitioner emphasized the importance of the measures that should be taken for the governance of the recommendations made by the Justice J. S. Verma Committee. Education of citizens was a major area of its focus and the Committee’s report provided elaborate means of doing it. The petitioner also noted that the implementation of all these recommendations will greatly boost national integrity and social responsibility. This particular report provided actual specifications on how the core responsibilities will be incorporated into the school system to enrich society with moral principles of duty. These measures were described by the petitioner as desirable for nurturing a concerned and responsible population. **G) RESPONDENT’S ARGUMENTS** The counsel for the respondent pointed out that the subject state has implemented several measures toward creating awareness of fundamental duties. Such efforts are the constitutional educational and public awareness programs to educate the citizens on their constitutional duties. In response, the respondent highlighted that the state is indeed making efforts to raise awareness and these existing measures prove that the state is serious about being instrumental in increasing the understanding of the basic duties of the citizens. Furthermore, the respondent expressed the possibility of the non-implementation of all that was recommended by the Justice J. S. Verma Committee on the grounds of its infeasibility or impracticality. Although the respondent agreed that the recommendations are patriotic, their implementation subjectively needs to be analyzed. These recommendations cannot overrule practical issues like the availability of resources and or structures to implement these changes, hence there is the need to make these changes practical. The respondent supported the idea that the accomplishment of the recommendations would require proper planning and stepwise implementation in the existing educational and social frameworks. **H) JUDGEMENT** **a. RATIO DECIDENDI:** It was observed by the Supreme Court that they hope that the Central Government will take the implementation of the recommendations of the Justice J. S. Verma Committee as matters which require consideration very seriously. These recommendations were also a significant component to enhance the understanding and awareness of the citizens concerning the fundamental duties. **b. OBITER DICTA:** It was upon the premise of this doctrine that the court urged for the due implementation of rights with duties to transform the citizenry into responsible individuals. It underlined the general knowledge among citizens about their rights but lack of knowledge about their corresponding duties which is important for the smooth running of a society. **I) CONCLUSION & COMMENTS** The judgment in the Hon’ble Shri Ranganath Mishra vs Union of India and Ors details the importance of spreading awareness about the rights and duties to maintain a correct parity between the two. The need for proper educational reforms and being carried out by awareness programs was also highlighted by the Supreme Court when it asked the central government to study and possibly act on the Justice JS Verma Committee. This case lays down the foundations for the encouragement of a responsible attitude to rights together with their enjoyment. The priority of the court’s approach to the search for and definition of rights and duties is essential for preserving the integrity and stability of the nation and society as a whole. Thus, by directing the Central Government to begin moving towards the implementation of the proposed Committee, the court has provided the foundation for a more enlightened citizenry. It also bears the judiciary’s affirmative position in ensuring that the Constitution is not only recognized but also actively implemented. **J) REFERENCES** **Important Cases Referred:** • The pivotal judgment of the Supreme Court of India is Bijoe Emmanuel v. State of Kerala, \[1986\] 3 SCC 615: This concerned the regulation of freedom of religion where the apex court found that students of the Jehovah’s Witnesses faith cannot be forced to sing the national anthem if this is against their faith. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Mediation under Consumer Protection Act, 2019](https://lawfoyer.in/mediation-under-consumer-protection-act-2019/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Krishang Sharma, Student, University Five Year Law College, University of Rajasthan.** **Edited by: Madhumita Saha, Student, Lajpat Rai Law College, Sambalpur University, Odisha.** **INTRODUCTION** Mediation, as a method of alternate dispute resolution, has a long-standing history in the diplomatic arena. Hon’ble Chief Justice of India, N V Ramana, also asserted that our ancient epics like Mahabharata are one of the best examples of an early attempt at mediation as a conflict resolution tool, where Lord Krishna being the mediator attempted to mediate the dispute between the Pandavas and Kauravas. It also sets a great example of what happens if the mediation fails and how it may lead to disastrous consequences taking a lot of time. Today in the modern era, the increase in commercial disputes has diverted the people’s interest towards mediation. The increased interest of people towards mediation depicts the dissatisfaction among the people regarding the cost, time, and complicated procedures as adopted in traditional dispute resolution systems. *An ounce of mediation is worth a pound of arbitration and a ton of litigation*.[\[1\]](#_ftn1) -Joseph Grynbaum *Keywords*: MEDIATION, ADR, CPA, CONSUMER RIGHTS, NEGOTIATION. **What is mediation?** *“When a third party called a “mediator” uses special negotiation skills and communication techniques to help litigants bridge their differences and find a solution to their dispute. Mediation always leaves the decision-making power to the parties. A Mediator does not decide what is fair or right or apportion blame. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and eliminating obstacles to communication and settlement”.[**\[2\]**](#_ftn2)* *“As described by the Mediation and Conciliation Project Committee of the Supreme Court of India, ‘Mediation’ is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in settling. A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their disputes. Mediation is a tried and tested alternative method of dispute resolution”[**\[3\]**](#_ftn3)* **Key terms used in the concept of mediation** Disputed parties– Parties claiming different interests or rights and holding opposite views in dispute are referred to as disputed parties. Negotiation– The dictionary meaning of the term ‘Negotiate’ is to bargain for something to agree at some point. Negotiation is a process where two or more parties having conflicting interests in any dispute bargain among themselves to reach a settlement that they can both agree on. Negotiations are made by the parties through discussions between themselves or their representatives without the involvement of a third party. **Types of mediation** There are two types of mediation. Court- Referred Mediation When a legal matter has been filed before the court and when the court refers such matter for mediation under Sec. 89 of the Code of Civil Procedure, 1908 is known as Court-Referred mediation. Private mediation Private mediation is a process in which services of mediation are offered by qualified mediators on a private, fee-for-service basis to the Court, members of the public, members of the commercial sector, and the governmental sector to resolve disputes through mediation. Private mediation can be used in connection with disputes pending in Court and pre-litigation disputes. Example: ASSOCHAM International Council of Alternate Dispute Resolution (“AICADR”) **Procedure For Mediating a Session** Introduction and Opening Statement This is the very first stage of the mediation session. Here the mediator establishes trust among the parties of his neutrality and he makes the parties aware of the rights and the duties in the consumer protection law. He also tries to motivate the parties to an amicable settlement. Joint Session This session is meant to hear the issues in common with both parties. At this time the mediator gathers information about the issues and conflict and provides the platform for the parties to understand the perspective of each other. Further, this session is also used to understand facts, the issues, obstacles, and possibilities of settlement. A joint session ensures that each participant is being heard equally. Separate Sessions This session is specially designed to understand the issue at a deeper level and the hidden underlying intent of the parties. It helps the parties to express emotions and thoughts that they could not have disclosed in front of the other party. Being in a private session helps parties to realistically understand the case. Also, the mediator may influence each party separately to find a way out of litigation and make a settlement. Closing Session This session is a closing session of a mediation process where both the parties jointly discuss whether to settle the dispute with each other or continue to litigation. If they mutually decide to settle the matter, the terms and conditions are discussed. The mediator forms a document where all the terms and conditions of the settlement are written, this agreement is called the settlement agreement. The mediator may sign the agreement to show that he is the witness of the settlement agreement. After this, the original signed agreement is sent to the referral body for passing the appropriate order by the agreement. The parties are provided with a certified copy of the agreement. In case of disagreement for settlement, the case would be sent back to the referral body merely reporting “not settled”. The report will not contain any reason for which settlement did not happen and will not be fixing any responsibility on any one of the parties. **Exceptions for mediation** Consumer Protection (mediation) Rules state that the following matters cannot be resolved through mediation[\[4\]](#_ftn4)– - Matters related to medical negligence leading to death or previous damage - Any such offences or defaults for which application for compounding the same has been submitted by one or many parties. - Matters involving allegations of fraud, coercion, impersonation, forgery or fabrication of documents - Matters which involve criminal and non-compoundable offences - Matters involving the interest of the general public who are not the parties in front of the commission - Matters where it is felt by the commission that there is no scope of settlement and mediation will be of no use. **Mediation in comparison with other countries** The concept of mediation is not limited to a country but it is a tool used to resolve conflicts all over the world. Some are examples where mediation is used as a tool to resolve conflicts - In Bangladesh, mediation has been extremely successful in delivering justice to the poor sections of society. - *“In Japan, spouses mutually agree on the decision to divorce through a discussion process and then register the divorce with the local authorities”[**\[5\]**](#_ftn5)* - In America, mediation is the norm of dispute resolution and litigation is the exception - In England, the courts do not award costs if a litigant unreasonably rejects mediation as an alternative dispute resolution mechanism. No. of mediation centre in India 839No. of mediators trained by MCPC 6480No. of Cases referred to the centres since inception (up to June 2015)9,37,995Settled 3,36,455Connected case 38,764Now in the case of India, mediation has shown significant results in dispute settlement, which is evident from the statistics below: *\[Mediation and Conciliation Project Committee, Supreme Court of India, Mediation (2015)\]* **Legal Provisions** In CPA, 2019 Sec 74-78 deals with the concept of mediation in consumer disputes. - Section 74- Establishment of consumer mediation cell. *“The central government and state government should establish the mediation cells as the national commission, a regional bench, a state commission, and a district commission. Every mediation cell should contain a list of – empanelled mediators, cases handled by the cell, and a record of proceedings, and every mediation cell should submit a quarterly report”.[**\[6\]**](#_ftn6)* - Section 75- Empanelment of Mediators *“The consumer mediation cell has to maintain a panel of mediators on the recommendations of the selection committee and their tenure shall be of five years after which they may be entitled to re-empanelment for another term subject to conditions mentioned in regulations”*[\[7\]](#_ftn7). - Section 76- Nomination of mediators from the panel *“It directs that the nomination of a mediator must depend on his/her suitability to dispute an issue”[**\[8\]**](#_ftn8)* - Section 77- The duty of a mediator to disclose certain facts. *“The mediator must disclose any personal, professional, or financial interest in the outcome of the consumer dispute or anything that may raise a justifiable doubt as to his independence or impartiality”.[**\[9\]**](#_ftn9)* - Section 78- Replacement of mediator in certain cases. *“The commission may replace the mediator if the information received gives rise to justifiable doubt for the commission. This information could be from the mediator or third party.” [**\[10\]**](#_ftn10)* - Section 79- Procedure for Mediation *“This section specifies that the process of mediation has to take place in the mediation cell. The mediator knowing all the factors necessary may carry out mediation by the principles of natural justice. The mediation must be carried out in the manner and within the time specified in the regulations.”[**\[11\]**](#_ftn11)* - Section 80- Settlement through mediation *“If the parties come to a settlement, then the mediator must reduce it into a written agreement which has to be signed by all the parties to the dispute or their authorised representatives. The mediator then shall prepare a report regarding the settlement and forward the same with the agreement to the concerned commission. If there is no consensus within the prescribed period (three months), the mediator then has to report the same to the commission*.”[\[12\]](#_ftn12) 8. **Judicial Development of the Mediation.** 9. *“Afcons Infrastructure Limited And Another V. Cherian Varkey Construction Company (Private) Limited And Others”*[\[13\]](#_ftn13) The Supreme Court held that “Mediation” is a well-known term and it refers to a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement. It is also a synonym of the term ‘conciliation’. 1. *“Nutan Batra V. M/S Buniyaad Associates (Fao (Os) (Comm) 42/2018 & Cm No. 9553/2018)”[**\[14\]**](#_ftn14)* In this case, the Supreme Court held that the plaintiff is entitled to the refund of the court fees as the case satisfied the conditions laid down under section 16 of the Court Fee Act. **CONCLUSION & COMMENTS** There is a well-known phrase which is considered as a golden rule by many of the businesses matter small or large that is ‘consumer is the king’. I think this phrase is rightly justified as it is nothing but the choice of the consumer which sways the market in any given direction. Especially in today’s era of technology and e-commerce, consumers look at the reviews and ratings of the product or service and plan accordingly. But still, some consumers are not well equipped with all the technology in the modern era and tend to fall into fraud and tactics of the sellers. The government has taken many steps to counter this problem and mediation is one of such measures taken by the government to resolve the consumer issues in the best way possible which mediation is beneficial for both, the businesses and the consumers. Neither of them willingly wants to indulge in litigation as it is a very time-consuming and expensive process and hence it is a win-win situation for both parties. **REFERENCES** - **Online Articles / Sources Referred** 1. *Ministry of Consumer Affairs, Food and Public Distribution, Government of India, Consumer Handbook on Mediation (2020)* 2. *Mediation and Conciliation Project Committee, Supreme Court of India, MEDIATION (2015)* 3. *Kanak Kanti Karmakar, A Legal Analysis of the Suitability of Alternative Dispute Resolution as a Rural Dispute Mechanism in Bangladesh, 4 JUS CORPUS L.J. 155 (2023)* - **Cases Referred** *“Afcons Infrastructure Limited And Another V. Cherian Varkey Construction Company (Private) Limited And Others”* *“Nutan Batra V. M/S Buniyaad Associates (Fao (Os) (Comm) 42/2018 & Cm No. 9553/2018)”* - **Statutes Referred** *Section 74, Consumer Protection Act, 2019* *Section 75, Consumer Protection Act, 2019* *Section 76, Consumer Protection Act, 2019* *Section 77, Consumer Protection Act, 2019* *Section 78, Consumer Protection Act, 2019* *Section 79, Consumer Protection Act, 2019* *Section 80, Consumer Protection Act, 2019* [\[1\]](#_ftnref1) *\[Mediation and Conciliation Project Committee, Supreme Court of India, MEDIATION (2015)* [\[2\]](#_ftnref2) *Mediation Center. District Courts Kinnaur, H.P. (n.d.).* [\[3\]](#_ftnref3) *Mediation and Conciliation Project Committee, Supreme Court of India, MEDIATION (2015)* [\[4\]](#_ftnref4) *Rule 4 of the Consumer Protection (mediation) Rules,2020* [\[5\]](#_ftnref5) *Kanak Kanti Karmakar, A Legal Analysis of the Suitability of Alternative Dispute Resolution as a Rural Dispute Mechanism in Bangladesh, 4 JUS CORPUS L.J. 155 (2023)* [\[6\]](#_ftnref6) *Section 74, Consumer Protection Act, 2019* [\[7\]](#_ftnref7) *Section 75, Consumer Protection Act, 2019* [\[8\]](#_ftnref8) *Section 76, Consumer Protection Act, 2019* [\[9\]](#_ftnref9) *Section 77, Consumer Protection Act, 2019* [\[10\]](#_ftnref10) *Section 78, Consumer Protection Act, 2019* [\[11\]](#_ftnref11) *Section 79, Consumer Protection Act, 2019* [\[12\]](#_ftnref12) *Section 80, Consumer Protection Act, 2019* [\[13\]](#_ftnref13) *\[2010 (8) SCC 24.\]* [\[14\]](#_ftnref14) *2018 SCC OnLine Del 12916* **Categories:** ADR Law, Articles, Consumer Protection Act --- ### [Som Prakash v. Union of India](https://lawfoyer.in/som-prakash-v-union-of-india/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Harsh Verma, Galgotias University** **Editor: I Sharan** **ABSTRACT** In this case, the question arose as to Whether the acquisition of the Burmah Shell Oil Storage undertakings by the Distribution Company Ltd. Bharat Petroleum Corp. can be termed as ‘State’ as provided in Art. 12 of the COI. The petitioner in this case, Som Prakash Rekhi was a clerk in Burmah Sheel. Som Prakash has taken voluntary retirement & he entitled himself to a pension as mentioned in the company’s deed. Pension towards the petitioner was highly reduced after the deduction of provisional funds & other payments. And also, the benefits which were entitled to the petitioner were stopped. Being unfolded that the Bharat Petroleum Corp is a corporation, that has acquired the Burmah Shell, the main issue raised here was whether the writ petition against Bharat Petroleum can be raised under Art.32 of the COI. Bench Judges majority held that Bharat Petroleum Corp was a State as defined under Art. 12 of COI & a writ petition can be filed against Bharat Petroleum Corp.- written by Justice Krishna Iyer & Justice Chinnappa Reddy. There was a contrary direction issued by Justice Pathak wherein he held that Bharat Petroleum cannot be regarded as a state and that no writ petition can lie against him. ***Keywords* *(Minimum 5)*:** Acquisition of Undertakings, Burmah Shell, Pension, Provident Fund, Gratuity, Statutory Corporation, State under Article 12 **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Som Prakash Rekhi vs. Union of India & Anr.***ii)* *Case Number***Writ Petition No. 1212 of 1977***iii)* *Judgement Date***13 November 1980***iv)* *Court***Supreme Court of India***v)* *Quorum / Constitution of Bench***V.R. Krishnaiyer, O. Chinnappa Reddy, R.S. Pathak***vi)* *Author / Name of Judges***V.R. Krishnaiyer, O. Chinnappa Reddy, R.S. Pathak***vii)* *Citation***1981 AIR 212, 1981 SCR (2) 111, (1981) 1 SCC 449***viii)* *Legal Provisions Involved***Article 12 of the Constitution of India**INTRODUCTION AND BACKGROUND OF JUDGEMENT** Som Prakash Rekhi vs Union Of India & Anr is a case founded on the extended use of the term ‘State’ under Article 12 of the Indian Constitution, working out far-reaching effects so far as the enforcement of fundamental rights is concerned. In this case, the petitioner was one Som Prakash Rekhi, employed with Burmah Shell Oil Storage Ltd., and had gone in for voluntary retirement. It thus made him entitled to the pension and supplementary retirement benefits paid for under a trust deed of 1950. In 1976 the Central Government of India enacted the Burmah Shell Acquisition of Undertakings in India) Act, effecting nationalisation of Burmah Shell Oil Storage Ltd. and its vesting in Bharat Petroleum Corporation Limited, hereinafter referred to as BPCL. Consequently, vesting deductions in the petitioner’s pension and withdrawal of supplementary retirement benefits to him were ordered. Aggrieved, he approached the Supreme Court of India for relief and to quash the actions of BPCL, in simple words. The court had to determine whether BPCL is an instrumentality of the government and whether it comes within the meaning of ‘State’ under Article 12. Resolution of this issue was of great importance because if BPCL was to be held to be a ‘State,’ then the writ petition would clearly be maintainable under Article 32 and consequently, the petitioner would be able to enforce his fundamental rights vis-à-vis BPCL. This would thus be the case leading up to an answer as to how far the government, in and through its corporations, would be responsible under the Constitution. This judgment of the Supreme Court has gone into the question of control and ownership of BPC through government intervention and whether such control would be enough to bring BPC under the definition of a ‘State’. The consequences of this judgment were huge for all public sector undertakings and their responsibility towards the fundamental rights of the people in general and employees and retirees in particular who suffered because of the nationalization of banks and companies under the PSU umbrella and all actions the corporate entity took after it. **FACTS OF THE CASE** **1. Procedural Background of the Case** The writ petition under Article 32 of the Constitution of India has been filed by the petitioner herein praying, inter alia, what has been sought to be relief against Bharat Petroleum Corporation Limited, that it should be directed by issuing a writ or a writ like mandamus to consider his representation dated 22nd October 2015 and that action on the part of the respondents not taken by him. He contended though the Bharat Petroleum Corporation Limited was an Indian Company registered under the Indian Companies Act, 1956, it was a corporation under the Government and hence, being a state within the meaning of the definition of ‘State’ contained in Article 12 of the Constitution, and hence, therefore, its conduct was subject to judicial review. **2. Factual Background of the Case** Som Prakash Rekhi was a workman in the labour force of Burmah Shell Oil Storage and Distributing Company of India Ltd. He availed of a scheme of voluntary retirement and retired on 1 December 1972. He was entitled to a pension from Burmah Shell Oil Storage Ltd. under a trust deed executed in 1950. It means all the undertakings of Burmah Shell in India shall stand transferred to and vested in the Central Government or to the Government company; also, because of the takeover, the company government of India nationalizes Burmah Shell Oil Storage Ltd. It implies that the assets of the company become properties of the government. After the nationalisation, the quantum of pension payable to him was reduced by deductions made by BPCL and his supplementary retirement benefits to which he was entitled under the trust deed, were stopped by BPCL. Thereafter, he represented BPCL for redressal of his grievances but the dues were not settled, compelling him to knock at the doors for judicial redress. It is submitted that the act on the part of BPCL is arbitrary and their action violated the fundamental rights of the petitioner under Article 21 of the Constitution of India in particular. The question that prominently arose for determination in the said case was as to whether BPCL being a State controlled entity can be held as an organ of ‘State’ under Article 12 so that it can be made amenable to writ jurisdiction and its acts may be quashed on the grounds of infringement of any of the fundamental rights. **LEGAL ISSUES RAISE** 1. Whether the Bharat Petroleum Corporation, the statutory successor of Burmah Shell, can be considered as ‘State’ within the meaning of Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32[\[1\]](#_ftn1). 2. Whether the petitioner is entitled to the full pension as per the terms of the trust deed, or whether the deductions made for provident fund and gratuity payments are justified. **PETITIONER / APPELLANT’S ARGUMENTS** The counsels for the Petitioner submitted that: 1. **Bharat Petroleum Corporation Limited (BPCL) as ‘State’:** It was urged that BPCL is an instrumentality of the state since it was a company incorporated as a result of the nationalisation of Burmah Shell. Given the pervasive control and deep involvement of the government in its operation, BPCL could indeed be treated as a ‘State’ under Article 12 of the Constitution. In any case, therefore, BPCL would be amenable to the jurisdiction of the Supreme Court in Article 32 for the enforcement of fundamental rights. 2. **Infringement of Fundamental Rights:** The petitioner herein has contended that an arbitrary reduction in his pension and withdrawal of supplementary retirement benefits by BPCL infringe his fundamental rights under Article 21, which assures protection for life and personal liberty. The petitioners have convincingly brought out the violation of the right to livelihood and existence worthy of retired life in so far as the reduction and withdrawal of supplementary retirement benefits were dues to him. 3. The argument made during the hearing is that BPCL is completely owned by, and comes under the total control of, the Government of India; hence, BPCL is taken to be an extension of the State. The financial policies are controlled by the Board of Directors appointed by the Government, and business at BPCL is conducted by it. The extent of control by the State and ownership brings BPCL within the purview of the meaning of ‘State’ under Article 12. 4. **Trust Deed and Contractual Obligations:** What the petitioner strongly brought out was that by the 1950 trust deed he had contractual rights for some pension benefits, for continuation of which immediately after nationalization, BPCL was under obligation to do so. Failure to do so, as pointed above is a breach of contractual obligation on the part of BPCL hence interference by courts is called for. 5. **Precedents and Judicial Interpretation:** Public sector companies have been held to be ‘State’ in various judgments, wherein learned counsel appearing for the petitioner placed reliance. According to him, the ratio of the said judgments squarely applies to the BPCL, and it cannot escape the liability for violation of constitutional rights. 6. **Arbitrary and Unfair Dealings:** It was the Petitioner’s case that the deductions from his pension and removal of supplementary benefits were all unjustified and arbitrary and not transparent. That an action by a public body of that nature was unfair dealing deserving of redress from the courts. **RESPONDENT’S ARGUMENTS** The counsels for the Respondent submitted that: 1. **BPCL Not a ‘State’:** It was urged on behalf of the respondents that Bharat Petroleum Corporation Limited was not a ‘State’ within the meaning of Article 12 of the Constitution of India. What was argued in the case of BPCL was that whereas it may be an enterprise owned by the Government, it is an independent corporate unit with its separate, independent corporate unit of management and operational policies and cannot be reckoned as an instrumentality or agency of the Government in the strict concept considering Article 12. 2. **Writ Jurisdiction Inapplicable:** is inapplicable as BPCL was not put to the test on the yardstick of being classed as ‘State’ for a purpose under Article 12 and hence if a writ petition under Article 32 is maintainable is at issue. Correspondingly, the stand taken by the respondents was against BPCL constitutional remedies in the enforcement of the. 3. **Contractual Nature of Pension:** All of the petitioner’s claims that were pressed by the respondents were wholly traceable to that Trust Deed and, therefore, purely of a contractual nature. Such disputes should be adjudicated in appropriate Civil laws dealing with Contracts and Trusts; and not under Constitutional Law, much less under a writ petition. 4. **Compliance with Legal Provisions:** Therefore, the Respondents contended that the deduction of an amount from the Pension of the Petitioner and ceasing the supplementary benefits are by luck due to compliance with the legal provisions and policies prevalent then. According to them, none of these acts was arbitrary or unlawful but it was a total conformity with the nationalization and transfer undertakings. 5. Counsel appearing on behalf of the respondents has contended that though BPCL is one public sector undertaking owned by the Government, it was managed autonomously and decision-making was not controlled by the Government of India. It is the management of BPCL that decides pension and retirement benefits, totally outside the governance of the Government. 6. **No Violation of Fundamental Rights:** It was of course submitted on behalf of respondents that the acts of BPCL did not violate the petitioner’s fundamental rights under Article 21. The modifications made in his pension being purely administrative decisions taken within the spacious fours of existing laws and policies could not amount to a violation of the petitioner’s right to livelihood or personal liberty. 7. **Distinguishing Precedents:** It was contended by the respondents that they have banked upon the judicial precedents wherein despite being wholly owned by the Government, the corporate entities cannot be brought within the definition of ‘State’.They have put forth that the ratio in the said judgments applied squarely in the case of BPCL and that the challenger’s reliance upon the earlier cases was misconceived and not at all relevant to the present case. **RELATED LEGAL PROVISIONS** - **Article 12 of the Constitution of India:** Definition.: In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. - **Article 21 of the Constitution of India:** Protection of life and personal liberty.: No person shall be deprived of his life or personal liberty except according to procedure established by law. - **Article 32 of the Constitution of India:** **Remedies for enforcement of rights conferred by this Part:** (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. **JUDGEMENT** **RATIO DECIDENDI** - Conclusion Having construed the provisions, the Supreme Court held that Bharat Petroleum Corporation Limited is a ‘State’ for Article 12 of the Constitution of India. It has been argued before this Court that the amount of control, that the Government wields over the company concerning its ownership and management and how the company was being conducted, places the company in question in the amplitude of a State entity. It is, therefore, urged that this brought BPCL into the writ jurisdiction of the Supreme Court under Article 32. - Fundamental Rights Enforcement, In holding BPCL to be ‘state, the Supreme Court has validated that the actions of the company can now be questioned on the footing of breach of fundamental rights. The Court validated that the superior petitioner is entitled to prosecute by appropriate proceedings anything done in contravention of the fundamental rights. Therefore, the petitioner is a corporate citizen, and his right to use material time of this life for the nurturing and growth of the material life meets the constitutional guarantee, and the court would exercise its constitutional responsibility in recognizing the nicety of balance between the fundamental rights of the petitioner and the apprehended. **GUIDELINES** - Tests for ‘State’: It elaborated on the tests for determining an entity to be ‘State’ within the meaning of Article 12. It resorted to factors like ownership, financial control, managerial control and quantum of governmental influence over the operations of the entity. This would be the guiding framework for future cases on the question of the classification of public sector undertakings and other government-controlled entities. **OVERRULING JUDGMENTS** - Not Any Judgement Overruled: In the above judgment, it was not clearly stated that any prior judgment was overruled; the judgment was delivered based on precedents, that is, on the principles stated in the judgments; specifically, help was taken from the cases of Rajasthan Electricity Board v. Mohan Lal, and Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, which discussed elaborately the scope of the definition of ‘State’ under Article 12. **OBITER DICTA** - Accountability of PSUs There are some observations the court has made in its obiter dicta in this respect relation to the public accountability of the public sector undertakings before the public and their employees. The verdict pointed without a shadow of a doubt that companies with a mark of heavy government hand cannot disentangle themselves with constitutional norms and they cannot discriminate against their employees unduly thus once again reiterating that public accountability would apply inter alia to PSUs. **CONCLUSION & COMMENTS** For all reasons and substantial importance, it is also this judgment in the case of Som Prakash Rekhi vs The Union of India & Another, which left the question regarding the scope of Article 12 of the Constitution open. It is the judgment of the Supreme Court of India that tagged Bharat Petroleum Corporation Limited as ‘State’ under Article 12 which has extended this realm of constitutional accountability to public sector undertakings. ***Conclusion:*** Thus, the sterling judgment of the Supreme Court that BPCL is ‘State’ under Article 12 has its impact and goes to impress on all concerned things may be constitutionally untouchable no matter how much sway the government may exercise in an entity. Now, there exists a clear precedent for all government-controlled corporations to be warned not to try to wriggle out of liability for acts infringing their fundamental right. It was one of the factors taken into account in the judgment that the Court arrived at, among others, notably because of a fastidious analysis of just how pervasive government control and involvement have been within BPCL. The judicial record is available. The decision could well be one of the most momentous given that it strengthens the rights of employees and retirees of such companies whose companies have been nationalised and who can now turn to the judiciary to provide redress in the event they have been subjected to arbitrary and unfair treatment. By interpreting the declaration of BPCL as a ‘State’, it will only make the said entities owe a statutory and constitutional obligation towards fundamental rights. ***Comments:*** **Interpretation of expression ‘State’:** The rule constructed thereby held that Article 12 would mean and signify any unit of the ‘State’ in the hands of a government of appropriate magnitude. The decision has been important in the imposition of constitutional rights of citizens while dealing with public sector undertakings. **Protection of Employee Rights:** The judgment is celebrated and denominated as the leading judgment in the protection of rights for employees, particularly those who operate under the atmosphere of nationalized undertakings. In that regard, this judgment works as a security net for the workers by protecting the government-controlled companies from arbitrarily changing pension benefits or other retirement entitlements. **Judicial Oversight:** By bringing BPCL within the ambit of Article 12, the Court has thereby reiterated the role of judicial review in correcting any arbitrary action at the hands of a state-controlled instrumentality. That will go a long way in having a salutary effect in checking any possible administrative excesses. **A Precedent for Future Cases:** The principles which this case leys down shall be the guiding framework for any future public sector undertaking. This “lays down the benchmark for assessing the quantum of control which the government needs to exercise to classify it as ‘State’.”. **Balancing autonomy with accountability:** While BPCL enjoys to some extent its autonomy in the process of decision-making, the Judgment has placed it beyond the conversion of such autonomy into being unaccountable. That is to say, operational independence has been balanced against constitutional responsibility by the judgment. The judgment of Som Prakash Rekhi vs. Union of India and Another, therefore, can be said as one of the landmark decisions with constitutional protections to the public while dealing with public sector undertakings and tends to give strength to the aforesaid principle that the entity is high on the government’s altar of control and is answerable to the Constitution for ensuring Fundamental Rights to the citizens. **REFERENCES** **Important Cases Referred** - **Rajasthan Electricity Board v. Mohan Lal[\[2\]](#_ftn2)** – This case established that statutory bodies and corporations with significant state control fall under ‘State’ for Article 12. - **Sukhdev v. Bhagatram[\[3\]](#_ftn3) –** This case reinforced that corporations created by statute and subject to substantial state control are ‘State’ under Article 12. - **Airport Authority[\[4\]](#_ftn4) –** This case further clarified the parameters for determining whether an entity qualifies as a ‘State’ under Article 12. **Important Statutes Referred** - Burmah Shell (Acquisition of Undertakings in India) Act, 1976 - Employees Provident Fund and Miscellaneous Provisions Act, 1952 - Payment of Gratuity Act, 1972 [\[1\]](#_ftnref1) INDIA CONST. art 32. [\[2\]](#_ftnref2) \[1967\] 3 SCR 377 [\[3\]](#_ftnref3) \[1975\] 3 SCR 619 [\[4\]](#_ftnref4) \[1979\] 3 SCC 489 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Procedure of Filling Patent Applications under Patent Act and Patent Rules](https://lawfoyer.in/procedure-of-filling-patent-applications-under-patent-act-and-patent-rules/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Harsh Verma, Galgotias University** **Edited By: Gyanu Patel, Amity University Lucknow (UP)** 1. **INTRODUCTION** The process of filing patent applications is central to establishing intellectual property rights. Through patents, an inventor gains exclusive rights over his/her invention, thereby excluding any unauthorized use, production, or sale of the same. Such procedural framework has been laid down for the filing of patent applications through the Patents Act, 1970, and Patent Rules, 2003, in India; these are periodically updated to keep up with changes in the technical and legal environment. The steps and requirements of this process must be understood if one is going to succeed in this field of complex patent law by inventors, businesses, and attorneys. The present article would, therefore, delve into the details of the process of submitting patent applications under the Act and the Rules right from the very commencement at the pre-filing considerations stage to post-grant processes. We shall also, from time to time, compare the procedures with other jurisdictions and analyze key legal provisions along with significant case laws that shaped the interpretation and application of patent laws in India. ***Keywords* *(Minimum 5)*:** Patent Application, Intellectual Property, Patent Act, Patent Rules, Patent Prosecution 1. **SUB-HEADINGS** 2. **Meaning, Definition & Explanation** **Patent Application:** It is a formal document in front of the patent office to protect something that he had invented. It is an initiation of the law process—this process resulting in granting a patent and allowing him to enjoy protection through exclusive rights over the invention. **Definition:** According to Section 2(1)(j) of the Patents Act, 1970, an “invention” means any new product or process involving an inventive step capable of industrial application. This, in essence, is what the patent application has tried to prove. **Examinations:** The application is then subjected to detailed examinations, which include checking satisfaction of the application on the requirements of novelty, inventive step, and industrial applicability. Searching for prior arts and reviewing claims that are made in the application is included in the process of a search[\[1\]](#_ftn1). 2. **Historical Background / Evolution (if any)** ***Early Patent Systems:*** **Ancient Practices:** under ancient Greece and Rome, some patent-like protections did exist. Athens, in offering some form of protection by privileges, took into consideration the limitations of time that could be placed on protecting their creation by the inventors[\[2\]](#_ftn2). **Medieval Europe:** The Statute of Monopolies 1624 in England is considered as the development after the prime milestone of patent law. It provided that a patent is to be granted only for any manner of new manufactures, and also for the benefit and good of such as shall exercise the same, or for the term of fourteen years or less laying the foundation for modern patent systems[\[3\]](#_ftn3). ***Development in India:*** **Colonial Era:** It was the British who introduced the Patents and Designs Act of 1911 in India. This outlined the fundamental framework by which the patents would be protected and an effect of the British Act could be seen in the law established. Subsequently, it was designed to be implemented in the colonial era to safeguard the inventions and designs[\[4\]](#_ftn4). **Post-Independence:** The Patents Act, of 1970, substituted the colonial act with the freedom of India. The significant amendments took place as follows: **Product Patents:** The Act had originally provided for process patents for pharmaceuticals and agrochemicals. The Patents Amendment Act, of 2002 extended it to the covering of product patents to meet international requirements[\[5\]](#_ftn5). Term of Patent: The term of the patent was originally 14 years from the date of grant. Subsequently, it was increased to a period of 20 years by the Patents Amendment Act, of 2005, to bring it at par with international practices[\[6\]](#_ftn6). ***Recent Developments:*** **TRIPS Compliance:** The obligation under the TRIPS Agreement was met further by another major reform, the Patents Amendment Act, 2002, which provided for the introduction of product patents in pharmaceuticals and agrochemicals and the enhancement of the term of the patent to 20 years[\[7\]](#_ftn7). **Recent Reforms:** The recent amendments in the Act, thereby including the amendment rules, the Patents Amendment Rules of 2016, 2019, and 2021 are carried out for primarily improving procedural efficiency, enabling start-ups, and digitalization in the patent process[\[8\]](#_ftn8). 3. **Comparison with other Countries (if needed)** ***United States*** The United States has always been “first to invent,” but has adopted a “first to file” system with the passage of the America Invents Act of 2013. Now, the U.S. is a lot closer to lining up with the rest of the world. The United States Patent and Trademark Office requires an applicant to describe his invention by providing specifications, claims, and drawings. USPTO also has special procedures for provisional and non-provisional applications where provisional applications act as a placeholder for a party who wants to file discovery on an invention and establish an early filing date without having begun the examination process[\[9\]](#_ftn9). ***European Union*** European Patent Office has a centralized system where one can file a patent that can be validated in multiple European countries. The EPO works under the European Patent Convention, whereby inventions must be new, involve an inventive step, and must be susceptible to industrial application. The EPO makes a provision: that in respect of a plurality of member states, one may have one application. Thus it is relatively easy to have patent protection across Europe. It is equipped with a search and examination phase that makes the examination phase complete and comprehensive, and the EPO provides detailed guidelines on drafting and filing applications[\[10\]](#_ftn10). ***Japan:*** Japan maintains a “first to file” patent system which is handled by the Japan Patent Office. Japanese law demands very detailed and thorough descriptions of the invention with strict requirements of disclosure. Japan also offers something called a “Patent Prosecution Highway” for expedited examination procedures when a corresponding patent application has been allowed in another participating country. The process will be hassle-free and it will reduce the huge backlog of applications[\[11\]](#_ftn11). ***China*** The Chinese patent regime is administered by the China National Intellectual Property Administration, also known as CNIPA. Adopting a “first-to-file” system, China requires a specification with claims and drawings in detail. It may be noted that in the recent past, on its way to strengthening the regime for intellectual property, China has done remarkably good work by introducing more stringent examination procedures coupled with mechanisms for enforcement. Briefly, the Chinese patent system includes utility model patents with a shorter duration and requirements less strict than those for regular patents[\[12\]](#_ftn12). **India** In this country, the principle followed and guided by the Patents Act, of 1970, and the Patent Rules, of 2003, is “first to file.” The requirements at the Indian Patent Office are also in tune with those of most countries, with the need for detailed descriptions, claims, and drawings. Provisions in India provide that provisional and complete specifications are to be filed. The provisions of the opposition in India include the following: both pre-grant and post-grant opposition. Any third party can file an opposition to invalidate a patent application or a patent granted. All these provisions are to ensure that only genuine and meritorious inventions get patent protection[\[13\]](#_ftn13). 4. **Legal Provisions / Procedure / Specifications / Criteria (if any)** ***Filing of Patent Application*** The complete process of filing a patent application in India is established through the Patents Act, 1970, read with the Patent Rules, 2003. Enshrined therein are some of the most important stages to be followed, so that the application could be considered as fully in compliance with all the legal requirements and technical formalities. 1. **Pre-filing Considerations** The proper and searching patent search shall be done beforehand of the application of the patent shall make an applicant sure that his invention is new and it was not patented or published in any public domain. Also, the applicant should finalize the types of applications that have to be filed, provisional or complete[\[14\]](#_ftn14). 2. **Types of Patent Applications** **Provisional Application:** An application filed when an inventor does not have a full description of the invention but needs to obtain a filing date, a basic outline of the invention is required[\[15\]](#_ftn15). **Full Specification:** It means an application furnishing all full descriptions of the invention, comprising both technical information, the claims and the drawings. In other words, it is the final application and it’s subject to examination, and when accepted, leads to the granting of a patent[\[16\]](#_ftn16). 3. **Content of Application** The following are among the most important things that any application for a patent shall include: **Invention Title:** The title of the invention should be explicit, brief, and based on the nature of the invention. The description of the invention should be detailed enough to give the construction, operation, and application. Much of the detail in this area is considered seminal to the point that it can contain quite a bit so that a person of skill in the relevant art is in a position to carry out and use the invention. **Claims:** The claims form the part considered the gist of a patent application or an issued patent. The claims must clearly and distinctly point out the protection being reclaimed. Clarity and conciseness are of importance. **Drawings:** There must be drawings accompanying the application to show the technological details of the invention[\[17\]](#_ftn17). 4. **The Process of Filing** **Registration:** The Patent Office of India may issue the application form with the prescribed forms and fee. The Application may both be filed Online and sent physically to any of the branches of the Patent Office[\[18\]](#_ftn18). **Fees:** A filing fee, variable depending on the status of the applicant–individual, small entity or large entity, is to be paid at the time of filing a provisional or non-provisional application. Filing fee reductions for individual and small entity[\[19\]](#_ftn19). ***Examination and Publication*** **1 Publication** Thereafter, on filing, the patent application shall be published in the Official Journal of the Indian Patent Office, which usually occurs 18 months from the date of filing or the priority date. Publication opens up the application for scrutiny by public viewing for transparency and any potential opposition[\[20\]](#_ftn20). 2. **Request of Examination** The reply to an RFE is to be filled within 48 months from filing or priority date; in the absence of the request, the application does not move forward into examination[\[21\]](#_ftn21). 3. **Examination** **Substantive Examination:** The Indian Patent Office subjection the application to check whether it meets all the provisions of the law, such as novelty, inventive step and industrial applicability[\[22\]](#_ftn22). **Examination Report:** The examiner sends an examination report stating details of the objections or any requisitions of amendments to the applicant. Usually, the objections are lack of clarity in claims, insufficiency in disclosure, or not being novel[\[23\]](#_ftn23). ***Grant of Patent*** 1. **Reply to Examination Report** Applicant to whom the report is sent shall within six months from the date of the issue thereof, send a reply to the examination report on objections taken, if any, and necessary amendments. If no response, it may be declared abandoned[\[24\]](#_ftn24). 2. **Grant of Patent** A patent is granted where the application has complied with every requirement in the law and where, further, the objections raised, if any, are overcome. The grant, besides being formally published in the Official Journal, is recorded in an official letter or document issued to the applicant. The patent is good for 20 years from the filing date and maintainable by the payment of annual maintenance fees[\[25\]](#_ftn25). 5. **Guidelines / Rules / Regulations / Notifications / Circulars (if any)** ***Guidelines*** 1. **Examination Guidelines** The detailed guidelines issued by the Controller General of Patents, Designs & Trade Marks, inter alia, cover the following for achieving uniformity and consistency in the examination of patent applications: **Patentability Criteria:** Detailed guidelines concerning novelty, inventive steps, and industrial application of the invention[\[26\]](#_ftn26). **Biotechnological Inventions:** Subject matter for examination of biotechnological inventions laying down requirements on deposits of biological material and sequence listings[\[27\]](#_ftn27). **Software and Business Method Patents:** Guidelines to examine patents relating to software, algorithms and business methods. Such guidelines bring to the notice of the Examiner what is excluded under Section 3(k) of the Patents Act[\[28\]](#_ftn28). 2. **Drafting Guidelines** These directions are thus aimed at ensuring that the drafting of the patent specification, claims, and drawings is done. In the same breath, it has further been impressed upon that clarity, conciseness, and completeness ensure that the invention is described well enough and the scope of protection clearly defined[\[29\]](#_ftn29). 3. **PCT National Phase Pointers** For foreign applicants entering the national phase in India under the Patent Cooperation Treaty procedural requirements have been laid down to detail requirements submitted with and prosecute PCT national phase application, and also documents submission, fees payment, and procedural timelines instructions[\[30\]](#_ftn30). ***Rules and Regulations*** **The Patents Rules, 2003** As amended from time to time lay down the procedural provisions for filing and prosecuting applications for patents in India. Amongst other pretty significant things, these provisions inter alia include: **Form and Content of Applications:** Detailed requirements regarding the form and content of applications for patents including specifications, claims, and drawings[\[31\]](#_ftn31). **Fee Structure:** Scale of fees to be payable in respect of application for patents, proceedings, oppositions, and other matters in connection with patents[\[32\]](#_ftn32). **Time:** Schedules relating to different stages of processing applications letters patents and other proceedings under this Act[\[33\]](#_ftn33). 2. **The Patent Amendment Rules, 2021** The Patent Amendment Rules, 2021 changed the ease and effectiveness of grants of patents. Some of the major changes introduced were: **Expedited Examination:** Request for Expedited Examination is now extended to a request from a start-up or small entity[\[34\]](#_ftn34). **Electronic Filing:** The patent applications and all documents are filed now only electronically to make the entire system of processing completely paperless[\[35\]](#_ftn35). **Reduction in Fees:** Reduction in fees for startups and small entities to facilitate innovation and filing of patents[\[36\]](#_ftn36). 6. **Case Laws / Precedents / Overrulings / Judicial Development of the Concept (if any)** ***Notable Cases*** **Novartis AG v. Union of India:** The Supreme Court of India denied patent protection for Novartis’ cancer drug, setting a precedent for the interpretation of patentability criteria under the Patents Act[\[37\]](#_ftn37). **Bilski v. Kappos:** A landmark decision by the U.S. Supreme Court that redefined the criteria for patent-eligible subject matter[\[38\]](#_ftn38). 7. **Amendments / Additions / Repealing (if any)** 8. ***The Patents (Amendment) Act, 2002*** ***Overview*** The Patent (Amendment) Act, of 2002 had been a milestone amendment towards Indian Patent Law in compliance with the TRIPS Agreement. Some of the important features of said amendment are: **Product Patents in Pharmaceuticals and Agrochemicals:** The area of patent protection has been widened to include pharmaceutical and agrochemical products, which were earlier excluded[\[39\]](#_ftn39). **Term of Patent:** The term of a patent was further increased from 14 years to 20 years from the filing date[\[40\]](#_ftn40). **Patentability Criteria:** The requirements of patentability have now been revised ionizing novelty, an inventive step and industrial applicability[\[41\]](#_ftn41). ***Impact*** This critical amendment that opened up the Indian market to global pharmaceuticals and agrochemicals firms, invited foreign investment and technology transfer. It filled up the gaps and, in a way, extended the protection of intellectual property in India. 2. ***The Patents (Amendment) Act, 2005*** ***Overview*** The Patents (Amendment) Act of 2005 went one step further in the process of fine-tuning so that the Indian patents regime could find itself again more in tandem with international standards, and explicitly addressed points of public health concern. Several changes were specifically brought in: **Section 3(d):** The concerns of ‘evergreening’ were not accommodated as granting of patents to the new forms of known substances, which do not result in the improvement of the known efficacy, was disallowed[\[42\]](#_ftn42). **Compulsory Licensing:** More stringent compulsory licensing provisions were added that addressed the grant of licenses when the patented invention is not being made available to the public at a reasonably affordable price[\[43\]](#_ftn43). **Opposition pre-grant and post-grant:** It provided for a system where a third party could pre-grant and post-grant oppose the grant of designs patent and also challenge the validity of a granted patent[\[44\]](#_ftn44). ***Impact*** This amendment was the balancing of a very delicate need to protect strong patents and the imperative to ensure access to affordable medicines. Moreover, it made the grant process of patents more transparent and accountable. 3. ***The Patents (Amendment) Rules, 2016*** ***Overview*** The Patents (Amendment) Rules, 2016 substantially brought in various procedural amendments to align the filing and prosecution of patents as close as possible to the situation of ‘walk in a park’. **Expedited Examination:** The law is expected to provide for expedited examination for start-up applicants selecting the Indian Patent Office as the International Searching Authority or the International Preliminary Examining Authority under the PCT[\[45\]](#_ftn45). **Fee Reduction:** Reduction of such fees for startups, small entities and individual applicants shall encourage more innovation[\[46\]](#_ftn46). **Electronic Filling:** It encourages the electronic filing of Patent Applications and documents to bring in more efficiency and at the same time reduce processing time[\[47\]](#_ftn47). 4. ***The Patent Amendment Rules, 2019*** ***Overview*** The Amendment Rules to the Patents, 2019, contributed a lot towards the working of simplification of the procedure, part of the law of patents simply and efficiently. General changes: **Wider Expedited Examination Criteria:** The expediting examination criteria are widened to include female applicants, government departments, and institutions set up under any Central, Provincial, or State Act[\[48\]](#_ftn48). **Simplified procedure for filing of documents related to patent applications:** The procedure for filing of patent applications and related documents has been adequately simplified making it user-friendly[\[49\]](#_ftn49). ***Impact*** The above-mentioned amendments were made to make the system of patents more inclusive and user-friendly to the categories of applicants that hitherto were underrepresented, like the women and the public institutions etc. The latest amendment, namely, the Patents (Amendment) Rules, 2021, went one step ahead of the earlier one and brought more procedural gains concerning the following: **Further Reduction in Fees:** Provided more extended scale reduction in fees to educational institutions to aid institutions in prompting more academic research and innovation[\[50\]](#_ftn50). **Better Electronic Processing:** Provided that all the documents about the submission of a patent shall be filed electronically to maintain a green and paperless environment[\[51\]](#_ftn51). **Analysis** The 2021 amendments found the zeal and commitment by India to ensure that an environment that is propitious and affordable is created for matters and issues touching on innovation and academic research. Some provisions of the Patents Act, over the years, have been repealed to remove redundancy and to come in line with international practices. The major repeals are as follows: **Pre-2002 Amendment Old Provisions Relating to Product Patents in Pharmaceuticals:** Before the 2002 amendment, India did not grant product patents in pharmaceuticals. The provisions were repealed to meet the TRIPS requirements[\[52\]](#_ftn52). **Unwanted Administrative Procedures:** To make the application and prosecution of a patent smooth many of the procedural requirements found to be unwanted or obsolete have been disposed of[\[53\]](#_ftn53). 1. **CONCLUSION & COMMENTS** ***Conclusion*** It is a structured process, and the Indian Patent System does indeed provide an extremely clear and structured path to the applicant for a patent. Each step, from filing to examination, grant, and enforcement, is well elaborated. The structure safeguards the rights of the inventors while seeing that a rigorous standard for patentability is maintained. **Dynamic Legal Framework:** The amendments to the Patents Act and the rules from time to time reflect India’s effort to not only keep pace with global standards related to emerging technological and economic trends but also to protect intellectual property and ease international trade and investment. Substantial changes brought in by the Patents Amendment Acts of 2002 and 2005 strengthened intellectual property protection and eased international trade and investment. **Judicial oversight:** It is such judicial decisions, as given in Novartis AG and Bayer Corporation, that has remarkably developed the law relating to patents by interpreting important provisions against the backdrop of public health concerns. It is through such judgments that the system of patents has been made to strike a balance between the rivalling interests of encouraging innovation and protecting the public interest, particularly in the sphere of pharmaceuticals. **Future Directions:** The roadmap ahead for the Indian patent system is one of continuous evolution, meeting new challenges and opportunities. These include further harmonization with international agreements, enhanced support to startups and emerging technologies, and continued emphasis on public health and access to affordable medicines. **Comments** Balancing Innovation and Access: There has been a classic dilemma in balancing patent protection with public access to essential medicines. Although compulsory licensing and stringent examination criteria under Section 3(d) have been great steps in this regard, a lot of work is still to be done to make the patent regime promote innovation without jeopardizing public health. **Embracing advances in technology:** The patent system must change with the quickening of the pace of technological change, particularly in areas like artificial intelligence and biotechnology. This involves continuing the development of the legal frameworks that deal with complex innovations so that the system remains effective and accessible while changing to keep pace with new patentability questions and for continuous streamlining of procedures. **Strengthening enforcement:** Effective enforcement is at the heart of keeping the integrity of the patent system. Improved mechanisms for the resolution of disputes, plus more effective tools for enforcement, will help take on infringement and protect the rights of patent holders. **Global Integration:** How much India integrates into the global patent systems and conformance to international standards will be of importance. In this regard, contributing towards global patent debates and adhering to the Treaties on World Intellectual Property Organization, such as the TRIPS Agreement, will help India move effectively about international trade and intellectual property challenges. 1. **REFERENCES** 2. **Books / Commentaries / Journals Referred** 1. **Khurana, S.** (2020). Intellectual Property Law in India: A Comprehensive Guide. LexisNexis. 2. **Bhat, V. N.** (2018). Indian Patent Law: A Comprehensive Guide. Eastern Book Company. 3. **Ghosh, S.** (2019).Patent Law and Practice in India. Sweet & Maxwell. 3. **Online Articles / Sources Referred** 1. Controller General of Patents, Designs & Trade Marks (CGPDTM). (2023). Examination Guidelines for Patent Applications. Retrieved from 2. (n.d.). PCT National Phase Guidelines. Retrieved from 3. (n.d.). Artificial Intelligence and Patents. Retrieved from 4. Indian Patent Office. (2023). Drafting Guidelines for Patent Applications. Retrieved from 5. (n.d.). Patent Pools and Access to Medicines. Retrieved from 4. **Cases Referred** 1. Novartis AG v. Union of India, 2013 (6) SCC 1 2. Bilski v. Kappos, 561 U.S. 593 (2010) 5. **Statutes Referred** 1. The Patents Act, 1970 (India). 2. The Patents (Amendment) Act, 2002 (India). 3. The Patents (Amendment) Act, 2005 (India). 4. The Patents (Amendment) Rules, 2016 (India). 5. The Patents (Amendment) Rules, 2019 (India). 6. The Patents (Amendment) Rules, 2021 (India). TRIPS Agreement, 1994 [\[1\]](#_ftnref1) Indian Patent Office. (2023) [\[2\]](#_ftnref2) **Khurana, S.** (2020). *Intellectual Property Law in India: A Comprehensive Guide*. LexisNexis, pp. 12-15 [\[3\]](#_ftnref3) Statute of Monopolies 1624 [\[4\]](#_ftnref4) Patents and Designs Act, 1911 (India) [\[5\]](#_ftnref5) The Patents (Amendment) Act, 2002 [\[6\]](#_ftnref6) The Patents (Amendment) Act, 2005 [\[7\]](#_ftnref7) TRIPS Agreement, 1994 [\[8\]](#_ftnref8) The Patents (Amendment) Rules, 2016 [\[9\]](#_ftnref9) United States Patent and Trademark Office. (2023). General Information Concerning Patents. [\[10\]](#_ftnref10) European Patent Office. (2023). Guide for Applicants. [\[11\]](#_ftnref11) Japan Patent Office. (2023). Guide to Filing a Patent Application. [\[12\]](#_ftnref12) China National Intellectual Property Administration. (2023). Patent Examination Guidelines. [\[13\]](#_ftnref13) The Patents Act, 1970 (India). [\[14\]](#_ftnref14) Ibid [\[15\]](#_ftnref15) Ibid [\[16\]](#_ftnref16) Ibid [\[17\]](#_ftnref17) WIPO. (n.d.). Understanding Patents [\[18\]](#_ftnref18) Indian Patent Office. (2023) [\[19\]](#_ftnref19) Ibid [\[20\]](#_ftnref20) Ibid [\[21\]](#_ftnref21) The Patents Act, 1970 (India) [\[22\]](#_ftnref22) Ibid [\[23\]](#_ftnref23) Ibid [\[24\]](#_ftnref24) Ibid [\[25\]](#_ftnref25) Ibid [\[26\]](#_ftnref26) Controller General of Patents, Designs & Trade Marks (CGPDTM). (2023). *Examination Guidelines for Patent Applications* [\[27\]](#_ftnref27) Ibid [\[28\]](#_ftnref28) Ibid [\[29\]](#_ftnref29) Indian Patent Office. (2023) [\[30\]](#_ftnref30) WIPO. (n.d.). *PCT National Phase Guidelines* [\[31\]](#_ftnref31) The Patents Rules, 2003 (India) [\[32\]](#_ftnref32) Ibid [\[33\]](#_ftnref33) Ibid [\[34\]](#_ftnref34) The Patent (Amendment) Rules, 2021 (India) [\[35\]](#_ftnref35) Ibid [\[36\]](#_ftnref36) Ibid [\[37\]](#_ftnref37) Novartis AG v. Union of India, 2013 (6) SCC 1 [\[38\]](#_ftnref38) Bilski v. Kappos, 561 U.S. 593 (2010) [\[39\]](#_ftnref39) The Patents (Amendment) Act, 2002 (India) [\[40\]](#_ftnref40) Ibid [\[41\]](#_ftnref41) Ibid [\[42\]](#_ftnref42) The Patents (Amendment) Act, 2005 (India) [\[43\]](#_ftnref43) Ibid [\[44\]](#_ftnref44) Ibid [\[45\]](#_ftnref45) The Patents (Amendment) Rules, 2016 (India) [\[46\]](#_ftnref46) Ibid [\[47\]](#_ftnref47) Ibid [\[48\]](#_ftnref48) The Patents (Amendment) Rules, 2019 (India) [\[49\]](#_ftnref49) Ibid [\[50\]](#_ftnref50) The Patents (Amendment) Rules, 2021 (India) [\[51\]](#_ftnref51) Ibid [\[52\]](#_ftnref52) The Patents (Amendment) Act, 2002 (India) [\[53\]](#_ftnref53) The Patents (Amendment) Rules, 2016 (India) **Categories:** Articles, Intellectual Property Law --- ### [Digital Signatures: Impact on The Indian Contract Laws](https://lawfoyer.in/digital-signatures-impact-on-the-indian-contract-laws/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Name of Author- Vishakha Yadav,** **DES’s Shri Navalmal Firodia Law College** **Edited by – Sulesh Choudhary** **INTRODUCTION** *“We want a Digital India, not just the one we are living in” — The Indian Express[**\[1\]**](#_ftn1)* India’s digitalization has taken a huge turn as quoted by Shri Narendra Modi at the G20 Summit’s Economy Minister’s meeting, “India’s digital transformation is powered by its unshakeable belief in innovation and its commitment to speedy implementation.” By this ‘innovation’ and ‘speedy implementation’ he referred to the innovation of India’s digital well-being such as e-commerce, algorithm economy, gig economies, digital signatures etc. Digital signatures are used for the message authentication and message integrity of the sender. They are used to prevent the repudiation of the sender’s data. Although it cannot be used for the maintenance of privacy, it is also the digital equivalent of a handwritten signature or stamped seal. It offers far more implicit security. Under the It Act, of 2000, digital signatures issued by certifying authority are legally binding & are of the same validity as physical signatures in electronic transactions. ***Keywords*:** *Digital signatures, IT Act,2000, Electronic Transactions, e-governance, encryption, CA (Certifying Authority), Authentication, Indian Contract Act,1948* **MEANING AND DEFINITIONS:** **Digital Signature:** According to section *2(p) of the Information Technology Act, 2000*[\[2\]](#_ftn2), digital signature refers to the validation of any electronic evidence by a user using an electronic method or process mentioned in Sec 3 of this Act. - **Contract:** As per the provisions of *Section 2(h) of the Indian Contract Act, of 1872, an agreement that is legally enforceable by law is known as a contract.[**\[3\]**](#_ftn3)* - **E-Contracts:** Any of the law provisions do not contain the exact meaning of e-contracts, but e-contracts are contracts where the consent of both parties is taken digitally by signing the e-certificate. - **Certifying Authority:** According to the provisions of section 2(g) of the Information Technology Act, 2000, a certifying officer refers to a person who has been given the authority to issue digital certificates i.e. digital signature through license under Sec 24 of this Act. **HISTORICAL BACKGROUND / EVOLUTION** Traditional methods, before the digital signature, were physical signature-based, seal-based, or some other manual authentication processes that were risky and error-prone. Physical signatures on paper documents were usually used in legal and business contexts for confirming agreements or authorizations. The scene before digital signatures implied the use of document printing, signing them physically in the presence of physical evidence and then sending the documents back through fax machines. The process, however, was not feasible for electronic transactions or communications. This became quite common with the emergence of advanced technology and the use of the internet and digitalization. Then gradually scanned signatures were introduced with digitalization. Essentially, the scanned signature is the digitalized image of a handwritten signature. In legal cases, they may not hold up very strong evidence of consent or agreement compared to digital signatures that make use of high-end cryptography and keys for authenticity and integrity. By themselves, they did not have any implicit security or verification feature. Since there was no cryptographic mechanism built into the signature to guarantee authenticity or integrity, it was pretty easy to copy or forge a scanned signature. Only after this, digital signatures were introduced with the emergence of the IT Act 2000 and the increased digital revolution, after which digital signatures are explicitly used in every field of electronic record. **EFFECT RELATION: IMPACT OF DIGITAL SIGNATURE IN LEGAL DOMAIN AND CONTRACT LAW:** **Indian Evidence Act, 1872:** *Section 65B of the Indian Evidence Act, 1872*[\[4\]](#_ftn4) states that any information produced in electronic form can be used as evidence in the courts if the prescribed conditions that are enumerated in this section are correctly executed. It says that any information which has been stored, copied or recorded as an electronic output is also deemed to be a document after its verified and signed certificate has been produced. After which it can be presented in the courts as evidence. **AMENDMENT TO INDIAN CONTRACT ACT,1872:** Even though the Indian Contract Act, of 1872 does not have anything specific to say regarding digital signatures. However, it has been applied and interpreted contextually that courts have recognized the validity of digital signatures and digital contracts with the condition that they meet the requirements enumerated in the IT Act,2000 and the rules provided thereunder. **LEGAL PROVISIONS RELATED TO DIGITAL SIGNATURE AND LAW OF CONTRACT:** *The Information Technology Act, of 2008* [\[5\]](#_ftn5)recognized the meaning of ***“e-commerce,**”*[\[6\]](#_ftn6) which in legal context means the transactions that are carried out in electronic format, electronic exchange of data, and electronic communication. E-commerce uses substitutes for paper-based physical records for document filing, storage and communication. ***Sec 3 of IT Act,2008***[\[7\]](#_ftn7) states about authentication of electronic records: - As per the provisions of this section i.e. Sec 3 of the IT Act, any contractual partner to a contract may validate any electronic contract by affixing his/her digital signature on the record. - The reliability of an electronic format will be affected by the usage of an asymmetric crypto system and hash function which converts the previous record signed electronically into another electronic record. Also, **Sec 5** of the same Act provides legal recognition of electronic signatures: (1) “Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is authenticated using an electronic signature affixed in such manner as may be prescribed by the Central Government.” **What does Contract Law say about contracts signed digitally:** Section 10 A, of the Indian Contract Act, of 1872 talks about the validity of e-contracts as: When any contract is formed, communications for proposals, its acceptance, or revocation whatever the case may be are expressed electronically or by any means of electronic record such as computer, shall be enforceable. They cannot be unenforceable on the ground that they are expressed electronically. **TYPES OF DIGITAL SIGNATURES:** There are mainly three types of digital signatures: - **Simple digital signature:** A simple digital signature is the primary type of digital signature. It is very less secure and vulnerable as it is non-encrypted and thus non-traceable of the signer. It is also vulnerable to fraud. - **Basic digital signature:** In this type of Digital Signature, the identity of the sender is not verified. Therefore, this type of signature is similar to a simple signature. The content of the document can be modified even after signing. - **Advanced and qualified digital signature:** Advanced and Qualified digital signature is the most secure type of digital signature and widely used. Public Key Infrastructure is used by this type of signature. The cryptographic mechanism ensures safe and secure delivery and that data is kept private between the sender and receiver. Also, the content cannot be modified at a later stage, and neither can the sender deny signing the document. **TYPES OF E-CONTRACTS:** **Shrink Wrap Agreements:** In the shrink wrap type of agreement, the terms for the agreement come wrapped along with the product which is available to the user after the purchase of the product. E.g. Purchase of Anti-virus **Click Wrap Agreements:** This type of agreement requires the user to accept the proposal by clicking on the “I agree” option in the user agreement. E.g. creation of email ID **Browse Wrap Agreements:** The browse-wrap type of agreement is entered into by the user due to the repeated use of a website. By the usage website, the user is said to have accepted the conditions of use. E.g. Sales and Purchases on online platforms **Scroll Wrap Agreements:** These are the agreements where the user has to accept all the terms and conditions of the documents and give their implied consent. E.g. a few mobile applications require the user to scroll down acceptance **Sign-in Wrap Agreements:** In these agreements, it is required by the user to agree on the terms and conditions of the agreement by signing in to a particular website or mobile application. **POSITIVE EFFECTS OF DIGITAL SIGNATURE ON CONTRACT LAW:** - **Verification of identity and authentication:** Digital signatures confirm parties to a contract and therefore carry out authentication that brings about reliability and integrity in e-commerce. This step increases the value of the electronic contracts as evidence in courts of law, taking away potential disputes regarding the validity of signatures. - **Non-Repudiation:** It simply means that a signer at a later stage cannot deny having signed the contract. A cryptographic mechanism used in digital signature provides evidence of the signer’s intent at the time of signing, therefore, difficult for him to repudiate the signature or contract. - **Operational Efficiency and Cost Saving:** Digital signatures eliminate the necessity to print, sign, and mail a physical document. Business parties can electronically sign contracts from anywhere across the globe with an internet connection, hence reducing delays and administrative overhead related to traditional paper-bound signatures. - **Secure Handling:** A digital signature provides better security compared to traditional handwritten signatures. They aid in protection against unauthorized access in the electronic format, illegal and unauthorized interference, and forgery, thus in the overall maintenance of security and confidentiality in any electronic transaction and agreement. - **Facilitation of e-governance and Digital Services:** Digital signatures ease the use and approval of e-governance initiatives and Digital Services by government institutions and departments in India. They provide secure and efficient electronic filing of documents applications and forms reducing paperwork, administrative burdens and processing times. **Negative effects of Digital Signature on Contract Law:** - **Technology dependence:** Digital signatures rely much on technology infrastructures and systems to function and remain secure. Technical failures, system vulnerability, or even cyber-attacks weaken the general reliance and reliability of digital signatures. This gives rise to many concerns regarding the integrity and the enforceability of electronically signed contracts. - **Access and Inclusion:** Wide-scale use of digital signatures might inadvertently prevent people or a community from having limited access to technology or digital literacy from participating in any electronic transactions. There is a possibility that a sharper buttressing of the digital divide can at least bealach socioeconomic inequalities and create problems about the fair application of contracts made between different segments of society. - **Legal uncertainty and compliance burden:** Even after the legal recognition under Indian law, there could still be some amount of uncertainty and inconsistency within their interpretation and implementation by the courts and the regulating authorities. Digital signatures may face compliance burdens in ensuring adherence to evolving legal and regulatory requirements governing digital signatures, including standards for authentication, encryption and key management. - **Fraud and misinterpretation risks:** Digital signatures are prone to the risk connected with cyber-attacks, impersonation, identity theft etc. This may impair the integrity of digital signatures and engender a lack of trust in electronically signed documents. **IMPORTANT GUIDELINES, REGULATIONS AND NOTIFICATIONS** ***Section 2(1)(p) of the Information Technology Act, 2000***[**\[8\]**](#_ftn8) contains the provisions for the use of digital signatures signed on electronic contracts. Nowadays, this type of signature is widely used by lawyers and professionals to save from time-consuming physical contract-making. ***Information Technology (Certifying Authorities) Rules, 2000***: The IT Rules, 2000 issued under the IT Act, 2000 enumerate the prescribed standards and procedures for issuing and rescinding as well as management of digital certificates. This makes sure that digital signatures are reliable enough during the electronic course of action. **RELATED CASE LAWS** **Bhagwati Sharan Tiwary vs M/O Civil Aviation and Tourism** In the case of *Bhagwati Sharan Tiwary vs M/O Civil Aviation and Tourism[**\[9\]**](#_ftn9)* it was held that according to Section 65 (b) of the Indian Evidence Act,1872 evidence should be signed electronically and therefore, the certificate cannot be considered as evidence. However, the Tribunal failed to detect so and considered the certificate as the evidence. **CONCLUSION & COMMENTS** Digital signatures are in a way modern forms of non-amendable signatories. Previously contract execution used to take a lot of time due to the time involved in transit. When in situations where the other party belonged to the other country or territory it was very difficult to execute such contracts that required emergencies. Now that digital signatures have come into the picture, the palpable documents have now become secure. The digital contracts are now signed at the comfort of our homes. Even after the signing of the contract, they can be easily traced for changes if any third party tries to mishap with the executed contract. They cannot be destroyed, unlike physical contracts. **REFERENCES** **Books / Commentaries / Journals Referred** - Bare Act of the Indian Contract Act,1872 - ICSI CS Executive Module for Jurisprudence, Interpretation and General Laws **Online Articles / Sources Referred** - - - - - - **Cases Referred** - Bhagwati Sharan Tiwary Vs M/O Civil Aviation and Tourism **Statutes Referred** - Information Technology Act,2000 - Indian Contract Act,1872 - Indian Evidence Act,1872 **ENDNOTES** [\[1\]](#_ftnref1)(“We Want a Digital India. Just Not the One We Are Living In”) [\[2\]](#_ftnref2)(*Information Technology Act, 2000*) [\[3\]](#_ftnref3) (*Indian Contract Act, 1872*) [\[4\]](#_ftnref4)(“Know All About Section 65B Evidence Act”) [\[5\]](#_ftnref5)(*Information Technology Act, 2000*) [\[6\]](#_ftnref6)(*Information Technology Act, 2000*) [\[7\]](#_ftnref7)(*Information Technology Act, 2000*) [\[8\]](#_ftnref8)(*Information Technology Act, 2000*) [\[9\]](#_ftnref9)(*Bhagwati Sharan Tiwary vs M/O Civil Aviation and Tourism*) **Categories:** Articles, Contract Law --- ### [DEEPFAKES: ETHICAL AND LEGAL IMPLICATION](https://lawfoyer.in/deepfakes-ethical-and-legal-implication/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Author: KHUSHBOO BHARTI, INSTITUTE OF LAW,JIWAJI UNIVERSITY,GWALIOR** **Edited By: Ritesh Singh Shekhawat, MJRPU, Jaipur** **ABSTRACT** When adult actors’ faces were uploaded on Reddit in place of well-known Hollywood names in 2017, the first deepfake movies became viral. In 2018, comedian Jordan Peele poked fun at technology and issued a warning to his audience in a deepfake video. The film included former President Obama. Due to the increasing usage of deepfakes, the U.S. House Intelligence Committee convened hearings in 2019 regarding potential threats to national security. Unfortunately, deepfakes have subsequently evolved into more intricate and difficult-to-identify methods. Over the past five years, their usage has significantly expanded due to the surge in deepfake applications. These manipulations are frequently used to disseminate misleading information and cast doubt on significant issues involving public and private entities, as well as to harass, threaten, and defame individuals. Moreover, deepfakes may violate intellectual property rights by unauthorized use of particular words, symbols, or trademarks. They may also seriously violate copyright, privacy, and data protection laws, in addition to violating human rights. Despite some governments implementing AI regulations, many hesitate due to concerns about free speech. Online platforms like YouTube have established legal frameworks to manage content, but the process remains complex and expensive. Deepfakes pose a serious problem since they can frequently be mistaken for authentic recordings. As a result, both public and commercial organizations have been forced to create tools and policies for managing and identifying them. This article explores the obligations and the moral and legal ramifications of deepfake technology. **KEYWORDS** Deeplearning, deepfakes, media manipulation, obstacles, deception, misappropriation, deceit, infringement. **INTRODUCTION[\[1\]](#_ftn1)** “Deep learning” and “fake” are combined to form the word “deepfake.” It describes a category of synthetic media in which real information is mimicked through the manipulation of audio or video. Synthetic media involves the creation, editing, and modification of data using automated methods, primarily through artificial intelligence algorithms. Media manipulation is not a new phenomenon and has been utilized across various historical periods with differing degrees of success. It has been employed in political propaganda and blockbuster movies featuring special effects. While the advent of deepfake technology has opened up numerous avenues for marketers, it brings with it considerable ethical dilemmas that must be tackled to preserve consumer trust. Corporations must delve into the prospects of immersive content, all the while managing concerns related to privacy, deceit, and manipulation **OBSTACLES[\[2\]](#_ftn2)** Although synthetic media isn’t a recent development, advancements in technology have introduced new challenges. Creating deepfakes has become remarkably easy. The democratization of the internet, coupled with significant advancements in AI algorithms, allows individuals without expertise to alter and edit media. They can then rapidly disseminate this media on a large scale via social media and the internet. Current detection methods are inadequate to meet the challenges presented by deepfake technology. Deepfakes can be profitable and useful, but they can also be misused and have dangerous results. As of now, neither the EU nor the UK has a complete legal framework that would effectively govern deepfakes to safeguard people or businesses. **ETHICAL DILEMMAS SURROUNDING DEEP FAKE TECHNOLOGY AND ITS REPERCUSSIONS FOR ENTERPRISES[\[3\]](#_ftn3)** As AI technology continues to evolve, deepfakes have emerged prominently in the realm of business promotion. Artificially generated visual and audio content has enhanced the way companies tailor their marketing strategies to align with consumer inclinations. Despite deepfakes serving as effective promotional instruments for enterprises, they raise significant ethical issues tied to privacy breaches and the lack of consent. Some of these ethical dilemmas and their repercussions for businesses include: **Misinformation** Deepfake technology possesses the capability to fabricate deceptive marketing clips and audio about companies, which are incredibly persuasive but inherently misleading. Such misinformation distorts reality, potentially steering people off course and compelling them to make decisions they might rue in the future. This phenomenon sparks serious apprehension about the degradation of trust between businesses and their clientele. **Navigating Legal and Regulatory Obstacles** The advent of deepfake technology in advertising has ushered in a myriad of regulatory and legal obstacles. There is a pressing need for the government to roll out fresh legislation specifically aimed at deepfake content. This urgency stems from the inadequacy of current laws and frameworks to effectively manage the spread and creation of deepfakes, resulting in significant loopholes in accountability and enforcement. **Infringement of personal privacy and consent** The utilization of deepfakes gives rise to significant ethical quandaries, as it entails the manipulation of an individual’s voice or likeness for various nefarious intentions, such as tarnishing reputations or disseminating misleading information without their permission, thereby breaching their privacy. **Shaping public sentiment** Within the realm of marketing, fabricating or disseminating misleading content can steer a consumer’s views or sway their buying choices by circulating deceptive news, endorsements, or reviews. **Deception and Identity Misappropriation** Deepfake technology can be misused by various nefarious individuals to mimic others using their likenesses, vocal patterns, or identities. Swindlers may exploit this vital personal information to engage in deceitful acts. Given that the majority of individuals and enterprises are not equipped to detect deepfakes, they may inadvertently succumb to schemes that lead to tarnished reputations and monetary setbacks. **HOW DOES EVERYTHING FUNCTION** Deep learning algorithms are employed to create deepfakes. Deep learning, a subset of artificial intelligence, mimics the way the human brain processes data, enabling it to learn independently through examples rather than direct human instruction. Specifically, synthetic media and deepfakes utilize Generative Adversarial Networks (GANs), which consist of two competing neural networks to produce high-quality fake content. The network comprises three components: data from the physical world, a discriminator, and a generator. The discriminator network is trained with real-world data to ascertain if the generator is producing genuine or artificial content. The generator commonly creates text, images, or video content. It starts with random information and, as the name suggests, generates increasingly higher-quality samples to convince the discriminator that the sample is authentic real-life data. Initially, the generator network may be far off the mark. Its predictions might begin as random or unclear, akin to static or noise, but it improves with practice. This is achieved by continuously refining both the discriminator and generator components of the network. These components compete to create replicas that closely resemble the authentic item. In what locations are deepfakes being observed? The use of deepfakes is becoming more widespread. Sensity, a company specializing in visual threat intelligence, identified 14,678 deepfakes on the internet in July 2019. By June 2020, the number had surged to 49,081, marking a 330% increase. The volume of deepfakes discovered online is doubling approximately every six months, showcasing its exponential growth. An increase in deepfake creations might lead people to question the authenticity of genuine videos, as it becomes easier for someone featured in a compromising video to claim it was a deepfake. This phenomenon is known as ‘the liar’s dividend’. As awareness of deepfakes grows, people will become more skeptical of videos in general, making it easier to dismiss real videos as fake. The AI technology used to create deepfakes and synthetic media is still relatively new, but it has already progressed enough to produce flawless fake images, with video and audio manipulation capabilities soon to follow. Some well-known deepfakes that have garnered widespread attention include a video of ‘President Obama’ delivering a public address and Jim Carrey mimicking Jack Nicholson in The Shining. **THE POSITION IN LEGAL TERMS** The current technology in this field has outpaced the law, creating a need to fill regulatory gaps. Nevertheless, deepfake technology also has positive practical applications. Its use is expected to bring positive changes to various business sectors, including banking, where AI chatbots can offer realistic customer service, reducing the need for human interaction. In the field of Accessibility, technology is anticipated to assist disabled individuals in enhancing their capabilities and regaining independence and autonomy. For instance, individuals with ALS can preserve their voices before losing the ability to speak and later use AI technology to digitally replicate their voices. **VIEW FROM THAMMASAT UNIVERSITY IN THAILAND** **Intellectual Property Rights** Currently, there is no comprehensive legal framework dedicated to addressing deepfakes in the UK. However, multiple legal recourses are available. For instance, someone harmed could attempt to get deepfakes removed from social media sites by obtaining a court order based on copyright infringement. This may be challenging to prove due to the various rights holders involved and will vary depending on the specific content used in the deepfake and whether it constitutes copying a significant portion of the copyrighted work. Additionally, deepfakes could potentially qualify for exceptions under the Copyright, Designs, and Patents Act 1998 (CDPA). It appears that the UK copyright system is not adequately equipped to handle deepfakes. However, regulators and legislators are working towards addressing this issue. For example, WIPO recently released ‘The Updated Paper on Intellectual Property Policy and Artificial Intelligence’. The paper raised questions about whether the copyright system is suitable for regulating deepfakes or if a new audiovisual framework is needed. WIPO also expressed concerns about copyright ownership and fair compensation for individuals whose likenesses and performances are used in deepfakes. Deceptive imitation and misrepresentation. Image rights are not formally recognized in the UK, but English legal precedent has evolved to offer protection in cases of commercial misappropriation of an individual’s image. In the case of Fenty v Arcadia Group, UK retailer Topshop sold a t-shirt featuring singer Rihanna’s image without her permission. Consequently, Rihanna pursued legal action with a ‘passing-off’ claim in the UK High Court. The Court ruled that many customers would mistakenly believe Rihanna had endorsed the t-shirt, leading them to purchase it for that reason, which could damage her reputation. The High Court’s decision was upheld by the UK Court of Appeal, with the appeal being unanimously dismissed. Although Rihanna won the case, the Court clarified that merely using a person’s image on clothing is not automatically misleading and that celebrities do not have absolute control over the use of their image under English law. It appears that the UK copyright system is not adequately equipped to handle deepfakes. However, regulators and legislators are working towards addressing this issue. For example, WIPO recently released ‘The Updated Paper on Intellectual Property Policy and Artificial Intelligence’. The paper raised questions about whether the copyright system is suitable for regulating deepfakes or if a new audiovisual framework is needed. WIPO also expressed concerns about copyright ownership and fair compensation for individuals whose likenesses and performances are used in deepfakes. **DECEPTIVE IMITATION AND MISREPRESENTATION[\[4\]](#_ftn4)** Although picture rights are not officially recognized in the UK, examples of commercial theft of an individual’s image have been protected by English judicial precedent. The UK retailer Topshop sold a t-shirt with singer Rihanna’s likeness on it without authorization in the Fenty v. Arcadia Group case. As a result, Rihanna filed a ‘passing-off’ lawsuit in the United Kingdom High Court. The Court decided that many consumers may buy the t-shirt under the false impression that Rihanna had approved it, harming her reputation. The UK Court of Appeal denied the appeal unanimously, upholding the High Court’s verdict. Despite Rihanna’s victory, the Court made it clear that just placing someone’s picture on apparel is not automatically deceptive and that, according to English law, celebrities do not have complete control over how their image is used. Given this information, public figures may not always succeed in relying on a passing-off claim, and the claim is unlikely to be feasible for individuals who are not well-known or whose image has not been used commercially before. These limitations could pose a challenge in situations involving deepfakes featuring non-celebrities or individuals not associated with endorsing or promoting a product or service. **DEFAMATION OF CHARACTER** A victim of a deepfake may be able to file a claim for protection under defamation laws if it can be demonstrated that the deepfake has caused or is likely to cause them serious injury in terms of their reputation. The Defamation Act 2013 consolidated and simplified many existing laws and rulings in this area, and importantly, set a new standard for filing a defamation lawsuit. Under this updated standard, a harmed person must demonstrate that a deepfake has resulted in significant damage to their reputation or has a high likelihood of causing such harm to be deemed defamatory. The Supreme Court ruled in the 2019 case Lachaux v Independent Print Ltd & Ors that the Defamation Act 2013 raised the threshold for seriousness needed to file a claim, and meeting the ‘serious harm’ criteria depends on the real impact of the perpetrator’s actions. While the intention behind setting a higher threshold was to deter frivolous claims, it may also unintentionally restrict the options for victims of deep fake crime-seeking remedies. It is unclear what constitutes ‘serious reputational harm’ about deepfakes, and this ambiguity could hinder individuals seeking legal redress under the Act. **EUROPEAN UNION VIEWPOINT** Currently, like the UK, there are no specific European laws addressing deepfake-related issues. However, a broader initiative is underway to tackle misinformation across Europe, encompassing deepfakes and synthetic media. In 2018, the European Commission introduced ‘Codes of Practice on Disinformation’ to regulate false information online. The Code sets rules for its signatories, including transparency in political ads, shutting down fake accounts, and not monetizing misinformation. Facebook, Google, and Twitter are among the companies that have signed the Code. The Commission has proposed initiatives to enhance media literacy among EU citizens and urged the establishment of a European group of fact-checkers to promote quality journalism and understand misinformation sources and methods. The European Parliament has acknowledged the unique challenge posed by deepfakes and suggested using AI to address it by requiring all deepfake content to disclose its lack of authenticity within the Commission’s ethical guidelines. **POSSIBLE WAYS TO SOLVE A PROBLEM[\[5\]](#_ftn5)** Deepfakes present a particularly complex issue. Upcoming laws like the Online Harms Bill appear likely to be overly broad in addressing deepfakes and their intricate ethical dilemmas. Regulatory gaps related to online platforms are evident, and the presence of deepfakes highlights these gaps. In the absence of dedicated legislation addressing this particular issue, what alternative approaches can be pursued to mitigate the adverse effects of synthetic media? One suggestion is to establish a new ‘Office for Digital Society’ to oversee online content, data, and privacy. A centralized regulator could unite current regulators and reduce existing regulatory gaps. For any effective regulation to be implemented, regulators must be equipped with authority and sufficient resources to make a difference. In the future, laws focused on deepfake technology in the UK and the EU should specify the approved and prohibited uses of deepfakes. This will provide social media companies with clear guidelines for monitoring content on their platforms. Legislation should also enable internet platforms to share deepfake information among themselves. This will simplify the process of platforms alerting each other about harmful content and is expected to reduce the spread of synthetic media in mainstream media. Alongside potential legal reforms, governments need to allocate resources to develop forensic media technologies to facilitate the identification of deepfakes. Both the UK and the EU must be prepared to legislate effectively and with purpose in this field. It is encouraging to see broader efforts to combat misinformation and safeguard online users. Nevertheless, with the increasing spread of false information showing no signs of abating, deepfakes and synthetic media are poised to become the predominant issue. **REFERENCES** - The Ethics of #Deepfakes: Understanding the Impact of Generative AI on #Society #genai #innovation #technology #scams - - Are Deepfakes Illegal? Overview Of Deepfake Laws And Regulations - - Emerging Technologies and Law: Legal Status of Tackling Crimes Relating to Deepfakes in India… - [https://www.researchgate.net/publication/345383883\_Regulating\_deep\_fakes\_legal\_and\_ethical\_considerations](https://www.researchgate.net/publication/345383883_Regulating_deep_fakes_legal_and_ethical_considerations) - Debating the ethics of deepfakes [\[1\]](#_ftnref1) The Ethics of #Deepfakes: Understanding the Impact of Generative AI on #Society #genai #innovation #technology #scams [**\[2\]**](#_ftnref2) Regulating deep fakes: legal and ethical considerations [https://www.researchgate.net/publication/345383883\_Regulating\_deep\_fakes\_legal\_and\_ethical\_considerations](https://www.researchgate.net/publication/345383883_Regulating_deep_fakes_legal_and_ethical_considerations) [\[3\]](#_ftnref3) Are Deepfakes Illegal? Overview Of Deepfake Laws And Regulations [\[4\]](#_ftnref4) Emerging Technologies and Law: Legal Status of Tackling Crimes Relating to Deepfakes in India… [\[5\]](#_ftnref5) Debating the ethics of deepfakes **Categories:** Articles, Criminal Law, IT Law & Cyber Law --- ### [Copyright Law In India](https://lawfoyer.in/copyright-law-in-india/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Author: Mahi, Vivek College of Law, Bijnor (U.P.)** **Edited By: Gyanu Patel, Amity Law School, Lucknow (U.P.)** **INTRODUCTION** Intellectual property is a category of that property includes the intangible creation of the human intellect. There are many types of Intellectual Property Trademarks, Patents, Trade secrets, and copyright. Intellectual property is the root of copyright. Copyright is the right vested in a creator of some works these works include literary work, Artistic work, Musical work, Dramatic works, etc. Examples are books, paintings, music, movies, etc. It also includes computer programs. A computer program is a code that is also considered to be a creative work. Copyright in India is governed by the **Indian Copyright Act, of 1957** and **Copyright Rules of 2013**. Under the Copyright Act, 1957 total Sections is 79 total of chapters is 15 the Copyright Act was amended in the year of 2012. As per **Section 14** of the Copyright Act, of 1957 copyright is an exclusive right that is given to the author of the works. For such as **original literary works – Sec.2(o), original Artistic works – Sec.2(c), Dramatic works – Sec.2(h), cinematography – Sec.2(f), sounds recording – Sec.2(xx).** The creator of the work gets the right to make copies of the works distribute copies, sell copies, translate their work, broadcast rights, the right to perform publicly, and so on. India is also party to the Berne Convention, of 1886 which affords minimum protection to authors, musicians, poets, painters, publishers, and other artists. The WIPO Performance and Phonograms Treaty of 1996 of protection to the performers and producers of phonography for economic rights such as the right to sell reproduce distribute etc. The WIPO Copyright Treaty of 1996 under the Berne Convention of the protection of the author’s works in the digital era. Now this treaty was the first time when the computer program and database were added in the copyright legislation of the WIPO following nations. Now these conventions ensure international protection for copyright owners. **KEYWORDS**: – Section 14, author original works, protection of original creation, infringement of copyright, creativity. **OBJECTIVE** The aim of the copyright act is to protect the creator’s original creation and encouragement of creativity. Creators can economically benefit from their work. In one line we can say that the purpose of copyright law is to protect and promote creativity and originality. **HISTORY OF COPYRIGHT** The history of copyright law dates back to the early 18th century with the passage of the Statute of Anne in 1710 in England. This Statute is widely regarded as the first piece of legislation to recognize authors’ rights, granting them exclusive rights to publish and sell their works for a limited time, typically 14 years, with the possibility of renewal for another 14 years. This early law was significant as it shifted the control over literary work from printers and publishers to authors, promoting the idea that creators should benefit financially from their creations. In the United States, the foundation of copyright law was established in the Constitution, which granted Congress the power to promote the progress of science and the arts by securing exclusive rights to authors and inventors. The first U.S. copyright law was enacted in 1790, offering Protection for books, maps, and charts for 14 years, with a renewal option for another 14 years. Over time, copyright laws evolved to adapt to new forms of media and technology. The Berne Conversation for the Protection of Literary and Artistic Works, established in 1886 was a landmark international agreement that set common standards for copyright protection across member countries. In India, the history of copyright law began with the Indian Copyright Act of 1914, which was based on the UK Copyright Act of 1911. This Act provided basic protection for literary, musical, and artistic works. The major overhaul came with the Copyright Act of 1957, which was comprehensive and tailored to Indian needs. Over the years, it has been amended several times to address technological advancement and align with international treaties like the Berne Convention and the TRIPS Agreement. The most recent amendment in 2012 introduced significant changes, including provisions for digital rights and improved protection for authors and creators. **MEANING OF COPYRIGHT** Copyright is a protective shield for Creators ensuring their hard work and creativity are respected and rewarded. In other words, copyright means a legal right granted to the creator of an original work, giving them exclusive control over how their work is used. This means they can decide who can copy, distribute, or adapt their works, and they can earn money from it too. **DEFINITION OF COPYRIGHT** - **ACCORDING TO OXFORD DICTIONARY:-** “*Copyright is an exclusive right given by the law for a certain term of year to an Author, Composer, etc.(or his assignee) to print, publish and sell copies of his original work.”* - **AS PER SECTION 14 OF COPYRIGHT ACT, 1957:-** “*Copyright is an exclusive right subject to the provision of this Act, to do or authorize the doing of any numbers of prescribed acts in relation to sound recording, artistic work, computer program, literary dramatic and musical works, cinematography films.”* **DOCTRINES OF COPYRIGHT** 1. **DOCTRINE** **SWEAT OF BROW(UK): –** This doctrine acknowledges that even if a work lacks originality, the efforts and labor invested in creating it can still merit copyright protection. For example, a database compiled through extensive research and effort may be protected, even if the data itself is not original, due to the significant efforts involved in its organization and compilation. 2. **DOCTRINE MODICUM OF CREATIVITY(USA): –** This principle requires that a work must contain at least a minimal level of creativity to qualify for copyright protection. It does not need to be highly inventive, just sufficient original. For example, a unique arrangement of words or a creative choice in layout or presentation can qualify a work for copyright, such as a short poem or a distinctive graphic design. 3. **DOCTRINE OF MERGER (India):-** This doctrine asserts that copyright does not extend to the idea of facts but only to their expressions. When an idea can only be expressed in one or very few ways, the expression itself may not be protected. For instance, a specific plot line or character concept in a story might be unprotected if it is the only feasible way to convey the idea, whereas the detailed narrative and unique writing style would still be protected. Each of these doctrines plays a crucial role in defining the scope and limitations of copyright protection. **LEGAL PROVISION OF COPYRIGHT** **Chapters** **Sections** **Legal provision** Chapter 1 Section 2 Section 3 Define Artistic, broadcasting, etc. interpretation. Meaning of publication. Chapter 2 Section 9 Copyright Office. Chapter 3 Section 13 Section 14 Which works are included in the copyright? Definition of copyright. Chapter 4 Sections 17 to 21 Ownership and rights of owner. Chapter 5 Sections 22 to 29 Term of copyright. Chapter 7 Section 33 Copyright societies. Chapter 10 Section 44 to 50A Registration of copyright. Chapter 11 Section 51 Section 52 Copyright infringement. Certain acts are not an infringement of copyright. Chapter 12 Section 57 Section 62 Author’s special rights. Jurisdiction. **SECTION 17 OWNERSHIP** The general rule is that if you create a character or any copyright property, you are the owner of their work. However, if the work is created during employment the copyright typically belongs to the employer, not the employee. Despite this, the employee retains moral rights to the work, which include the right to be recognized as the author and the right to object to derogatory treatment of the work. **RIGHTS OF THE OWNER** There are three types of rights of the owner under the copyright that is economic rights, moral rights, and neighboring rights. These rights are discussed below: 1. **Economic rights: –** It is a several exclusive rights typically attached to the holder of a copyright… - To produce copies or reproduction of the work and sell those copies including typical and electronic copies. - To translate own work into any language. - To export and import their work. - To perform or display the work publicly. - To create derivation works. - To sell, assign, and transfer this right to others. - To distribute the work in the market and make money out of it. 2. **Moral rights:-** The moral rights of the owner have been provided under section 57 of the Copyright Act,1957. There are three basic moral rights which are- - **Right to paternity:-** To claim authorship of work and to prevent all others from claiming authorship of his work. - **Right to integrity:-** To prevent distortion, mutilation, or other alteration of his work, or any other action in relation to said work, which would be prejudicial to his honor or reputation. In short, economic rights provide creators with financial control over their work, and moral rights protect the personal and ethical interests of the creator, ensuring the integrity and reputation of their work. 3. **Neighbouring right:-** In copyright law, related rights are the rights of a creative work not connected with the works of the actual author. It is used in opposition to the term author right. Rome Convention for the Protection of Performer, Producer of phonograms and Broadcasting organization 1961. This convention dealt with Neighbouring rights. **TERM OF COPYRIGHT** The general rule is that copyright lasts for 60 years its conduct. From the death of the author (author lifetime + 60 years ) 60 years from the date of publication · Original literary · film · Dramatic work · Sound recording · Musical work · Posthumous publication · Artistic work · Anonymous and pseudonymous publication. · Works of government and international organizations. **NOTE:-** - Photographs – earlier 60 years from publication but after the 2012 Amendment 60 years from the death of the photographer. - If an Anonymous author is found then the Author’s lifetime + 60 years. - If there is joint authorship in a Posthumous publication and one of the authors is living then also author’s lifetime +60 years. **COPYRIGHT REGISTRATION** - First of all copyright registration is not compulsory. - Acquisition of copyright is automatic with the creation of the work. - Registration as a prima facie evidence copyright symbol (sec.48) Example – **Copyright ©️ 2009 Microsoft Corporation.** **Only can apply:** Apply registration of the copyright of that person who is the author, publisher, owner, and any other person who is interested in copyright. **Where can apply:** The applicant can apply for registration of copyright in the copyright office located in New Delhi or the **official website at copyright.gov.in** **Copyright registration fees** Literary, Musical, Dramatic, Artistic Rs. 500 to 5,000 Broadcasting communication Rs. 40,000 Cinematograph Film Rs. 15,000 Sound Recording Rs. 10,000 Public performance Rs. 5,000 Translation Rs. 5,000 Disability format Rs. 2,000 **Benefits of registration** - Economic stability. - Safeguard of owner. - Legal protection - Worldwide protection. - Brand value. - Owner publicity. - Copyright is an asset. **INFRINGEMENT OF COPYRIGHT** It means any person who uses the creator’s copyrighted work without the permission of the creator author or owner. Infringement of copyright occurs in various situations such as: - Performing the copyright in public without permission or authorization. - Produced copies, reproduction, and sells the copyright without permission of the owner. - Download and upload the online material without permission or authorization. - Created work based on the original without an owner. - Edited and modified copyright software without permission or authorization. - Use the copyrighted text, image, and video without permission of the owner. **EXCEPTION OF COPYRIGHT** Section 52 of the Copyright Act, of 1957 provided a certain exception to the infringement of copyright. Such acts which do not constitute infringement are when such work is used only for private use which also includes the use for research called a fair use in copyright are below: 1. Research, criticism, Report, and storage. 2. Fair use of computer programs. 3. Work of state. 4. Publication and performance. 5. Educational purpose. 6. 7. Artistic work. 8. Architecture work. 9. Broadcasting and performance. **JURISDICTION (section 62)** A suit or other Civil proceeding, relating to infringement of copyright is filed in the District Court within whose jurisdiction the plaintiff resides or carries on business or where the cause of action arose irrespective of the place of residence or place of business of the defendant. **LIMITATION** The period of limitation for filing the suit is 3 years from the date of infringement. **REMEDIES IN COPYRIGHT** In case of infringement of copyright the remedies which are available to the owner of the copyright a civil remedies and criminal remedies. The license having the exclusive right also has a right to sue in such cases. If the work is published anonymously or with another name that is pseudonymous work, the publisher also has the right to sue. The case can be initiated by the owner for remedies like injection, damages, accounts, or other remedies as per the law. Sec.55 provides civil remedies that are Injection, Damages, Accounts, Damages for conversion, and Delivery of infringed copy. Criminal offense:- The infringement of copyright is also a criminal offense which if there is an intention is found is penalized. It attracts a punishment of 6 months to 3 years of imprisonment and a fine from 50,000 rupees to 21 lakh rupees (Sec.63) For subsequent offenses, the minimum punishment is 1 year which can obtain to 3 years and the fine is not less than 1 lakh **Case laws related to copyright** 1. **V.T Thomas & ors. VS Malayalam Manorama Co. Ltd.(AIR 1989 Kerala 49)** - Petitioner advocate Adv. M.P Raveendran - Respondent advocate: Adv. V.K Rajan - Order by: Justice Sukumaran. **Fact:** In this case, the petitioner created a cartoon and named it “Boban and Molly.” The petitioner had already created and published this cartoon before starting his employment with Malayala Manorama. Over time, this comic became very famous. Malayala Manorama filed a case against Thomas, claiming that they were the owners of this comic. **Held:** In this case, the court stated that the copyright belongs to Thomas because he is the original author of the cartoon. Therefore, he has the freedom to publish his cartoon independently. 2. **XYZ Films LLC & Ors vs. UTV Motion Pictures (AIR 2016 234 DLT 260 Delhi HC)** - Petitioner advocate Adv. K.P.S. Soman - Respondent advocate: Adv. A.K. Gupta - Order by: Justice G.S. Patel **Case Facts:** In this case, The movie Raid was released in the market. Similarly, the movie Baaghi was released. The producers of XYZ Films LLC filed a case claiming that the movie Baaghi had copied scenes from the movie Raid. The scenes allegedly copied include action sequences involving the hero and heroine fighting. **Issue:** Whether the UTV Motion Pictures movie Raid infringed on the copyright of XYZ Films LLC’s movie without authorization? **Court’s Decision:** The court observed that while the action scenes involving the hero and heroine in both Raid and Baaghi might have common elements, they were not entirely unique. The court looked for any unique elements in the movie Raid that were allegedly copied but found none. Thus, the court concluded that there was no substantial copying. The decision was in favor of the defendants (UTV Motion Pictures). The court ruled that there was no copyright infringement. The directors and producers of Raid lost the case because they could not prove uniqueness in the scenes that were allegedly copied. 3. **Monkey selfie case (2018)** **Fact:** In 2011, a British photographer named David went to a park in Indonesia for wildlife photography. He left his camera unattended for a while, during which a black macaque monkey took a selfie with the camera. When David retrieved his camera, he found some amazing photos on it. Sometime later, a magazine published this photo without David’s permission. When David found out, he filed a copyright infringement case against the company. Meanwhile, PETA (People for the Ethical Treatment of Animals) intervened and argued that the monkey holds the copyright to the photograph. **Legal Issue:** Does a non-human animal be recognized as the author of a photograph and hold the copyright under U.S. law? **Held:** The court held that a monkey is not a human being but an animal, and therefore, under copyright law, the monkey cannot hold any copyright. As a result, all the rights go to David. Ultimately, an out-of-court settlement was reached. David now receives 75% of the revenue from the photo, and 25% goes to the sanctuary owners to help develop wildlife security. **Conclusion** Copyright law serves as a fundamental pillar in protecting the intellectual property of creators, ensuring that their works are not unlawfully reproduced or exploited. The balance it strives to maintain between the rights of creators and the public interest is crucial in fostering creativity and innovation. However, as the case law demonstrates, the line between inspiration and infringement can be thin and complex. Courts are often tasked with navigating these nuances, considering the uniqueness and substantiality of the copied material. Today, copyright laws continue to evolve, addressing challenges posed by digital media and the internet while striving to balance the rights of creators with public access to knowledge and culture. **References** - Copyright Act, 1957 - Copyright Rules of 2013 - [**https://www.slideshare.net/slideshow/copyright-256063146/256063146/**](https://www.slideshare.net/slideshow/copyright-256063146/256063146/) - [**https://en.wikipedia.org/wiki/Copyright**](https://en.wikipedia.org/wiki/Copyright) **Categories:** Articles, Intellectual Property Law --- ### [DEFAMATION IN MEDIA TRIAL: CRIMINAL AND CONSTITUTIONAL REMEDIES](https://lawfoyer.in/defamation-in-media-trial-criminal-and-constitutional-remedies/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Author: ROZY PARVEEN, JAMIA HAMDARD** **Edited By: Ritesh Singh Shekhawat, MJRPU, Jaipur** **INTRODUCTION** As the revered Bhagavad Gita correctly says, **“*For a man of honor, defamation is worse than death”***. This article delves into the legal aspects of defamation in India, judicial interpretations, and future direction. It examines how defamation laws and media trials influence public opinion and ensure the right to reputation and fair trials. Every individual has the right to protect their reputation just as they do their body and property. In fact, the right to protect one’s reputation is often deemed more crucial than protecting physical and material assists[\[1\]](#_ftn1). People can often endure physical and property damage but harm to their reputation is intolerable. This is why defamation, which involves any act intended to harm an individual’s good name, is actionable under both tort law and criminal law. Defamation has complex definitions and exceptions within Indian law. Understanding this law is essential for safeguarding one’s dignity, as guaranteed by Article 21[\[2\]](#_ftn2) of the Indian constitution. However, defamation laws have often been misused, sparking debates about their impact on free speech[\[3\]](#_ftn3). Progressive thinking is necessary to address the evolving needs of Indian society in this regard. **KEYWORDS** Defamation, reputation, Indian constitution, free speech, media trials. **DEFINITION** **Section 499 of the Indian Penal Code, 1860[\[4\]](#_ftn4)** “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, imputation concerning any person intending to harm, or knowing or having reasons to believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter expected, to defame that person”. ***Rohini Singh v. State of Gujarat (2018)****,* the court has given it some thought. “Making” and “publishing” as distinct actions. If someone only types defamatory content without sharing or spreading it to others, it may not count as defamation. Therefore, to prove defamation, the person making the claim must show that the defamatory material was meant to be seen by others[\[5\]](#_ftn5). **Section 356 of The Bharatiya Nyaya Sanhita, 2023[\[6\]](#_ftn6)** “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, imputation concerning any person intending to harm, or knowing or having reasons to believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter expected, to defame that person”. **HISTORICAL BACKGROUND** It is depressing to watch Goddess Sita’s reputation being called into doubt in India, where she is regarded as a representation of elegance and purity. Despite not being officially recognized defamation has always existed in our society[\[7\]](#_ftn7). The introduction of defamation laws in India by Lord Macaulay in 1837 marks the beginning of the country’s legal history. Paradoxically the regulations were put in place by the British government mainly to safeguard their own interests. Watching the reputation of Goddess Sita who is revered as a symbol of grace and innocence in India brought into question is disheartening. Defamation has always existed in our society even though it is not formally recognized. India’s legal history began in 1837 when Lord Macaulay introduced defamation laws to the country. Ironically the British government primarily implemented the laws to protect its own interests. **COMPARISON WITH OTHER COUNTRIES** Slander was only illegal in England up until the eighteenth century if it falsely accused someone of a criminal or social ill or disparaged their qualifications for a job. Accusing women of being unchaste was not made illegal until the Slander of Women Act of 1891. French laws against defamation have historically been more stringent. The truth could only be used as a defense if the publication was about a public figure[\[8\]](#_ftn8), and a rule from 1881 that formed contemporary French defamation law demanded that libelous information in newspapers be conspicuously retracted[\[9\]](#_ftn9). Though comparable, German defamation laws typically permit the use of truth as a defense. In Italy, veracity rarely excuses defamation, which is a criminal offense. In the United States, defamation of a public figure can only be proven if the statement was made with “actual malice”. **Two types of defamations are:-** - **Libel defamation** - **Slander defamation** Libel refers to a defamatory statement made in a permanent form, such as written text, graphical representations, or record material, slander, on the other hand, involves defamatory statements made in a transitory or verbal form[\[10\]](#_ftn10). Libel is actionable per se, meaning that special damages do not need to be proven. In contrast, slander requires proof of the special damages to be actionable. Slander can occur in the heat of the moment or due to sudden provocation, whereas libel typically demonstrates greater malice[\[11\]](#_ftn11). **DEFAMATION AND MEDIA LAW** Adherence to the ethical norms of journalism is crucial for published news. Journalists must ensure that the information they disseminate is truthful and guides the public in a positive direction, avoiding any negative impacts. In society, the law grants every individual the right to maintain and preserve their reputation. In India, media ethics take on additional significance due to the country’s diverse and pluralistic society. The press has a responsibility to foster unity and understanding among different communities while reporting fairly and accurately. The Press Council of India was established to uphold the standards of journalism and provide guidelines to ensure that media practices do not harm an individual’s reputation or incite social discord. The Indian legal system also provides robust mechanisms to protect individual’s reputations. Defamation laws, both civil and criminal, are in place to offer recourse for those whose reputations have been unjustly tarnished by false reporting. This underscores the importance of responsible journalism that respects individual rights and contributes to the collective good of society. **CONSTITUTIONAL ASPECTS** There is a close relationship between some fundamental freedoms and the constitutional component of media law in India. Article 19 of the Indian constitution implies that the media is entitled to freedom even though there are no explicit laws giving this right. The freedom of speech and expression which is essential to media freedom is guaranteed by Article 19 (1)[\[12\]](#_ftn12). In order for the media to have a role in a democratic society and for journalists to report critique, and enlighten the public, this fundamental right is essential. In *Sakal Papers Ltd. V. Union of India[**\[13\]**](#_ftn13)*, The daily newspaper’s publication was contested as being against the constitution. The government argued that the regulation was a legitimate limitation on citizens’ ability to conduct business. However, the Supreme Court disagreed with the state and overturned the directive. The court ruled that limitations on citizens’ ability to conduct business cannot be used to impede their rights to freedom of speech and expression. The court held that restrictions on freedom of speech could only be imposed for the reasons listed in Article 19 clause 92. In another case *K.A.Abbas v. Union of India[**\[14\]**](#_ftn14)*, The petitioner argued that censorship was unconstitutional because it infringed upon his fundamental right to freedom of speech and expression. However, the Supreme Court decided that Article 19(2) justified the pre-censorship of films under the Cinematography Act. The court argues that because movies have a higher capacity to evoke strong emotions than other kinds of art or expression they should be viewed differently. **CONCLUSION & COMMENTS** The intersection of constitutional and criminal law in the context of media freedom and regulation is a complex and nuanced subject. Through the protection of freedom of speech and expression, the Indian Constitution, and especially Article 19, implicitly supports media freedom. This freedom is not unrestricted, though, as Article 19(2) outlines reasonable limitations that attempt to strike a balance between the rights of the individual and the interests of society as a whole. The judiciary has a crucial role in drawing boundaries between certain freedoms and constraints, as demonstrated by judicial interpretations in cases like Sakal Papers Ltd. v. Union of India and K. A. Abbas v. Union of India. The former case underscores that business regulations cannot unduly encroach upon media freedom, while the latter acknowledges the necessity of film censorship to prevent potential social harm, illustrating the delicate balance between protecting free expression and maintaining public order and morality. These legal frameworks and judicial precedents underscore the importance of ethical journalism and responsible reporting in upholding democratic values and the rule of law, ensuring that media practices contribute positively to society without compromising individual rights or social harmony **REFERENCES** **Online Articles / Sources Referred** - Defamation and media law. - Defamation law in India. - Defamation laws in India – protecting and dignity. - Defamation law in India. **Cases Referred** - A. Abbas v. UOI and Anr on 24 September 1970. - Sakal papers (p) Ltd. and others v. UOI 25 September, 1962. **Statutes Referred** - Indian Penal Code, 1860 - The constitution of India, 1950. [\[1\]](#_ftnref1) Mohd Aqib aslam, “defamation and media law” (legal service India) < [Defamation And Media Law (legalserviceindia.com)](https://www.legalserviceindia.com/legal/article-7095-defamation-and-media-law.html#google_vignette)> accessed on 3 august 2024. [\[2\]](#_ftnref2) Constitution of India, 1950, article 21. [\[3\]](#_ftnref3) Ibid. [\[4\]](#_ftnref4) Indian penal code, 1860, section 499. [\[5\]](#_ftnref5) Oishika Banerji, “defamation law in India” (iPleaders, 22 August 2022) < [Defamation law in India – iPleaders](https://blog.ipleaders.in/defamation-law-in-india/#What_is_defamation)> accessed on 3 august 2024. [\[6\]](#_ftnref6) Bharatiya nyaya sanhita, 2023, section 356. [\[7\]](#_ftnref7) “Defamation laws in India-protecting reputation and dignity”(times of India,18 June, 2018) < > accessed on 4 august 2024. [\[8\]](#_ftnref8) “Defamation” (Britannica, 3 July 2024) < > accessed on 4 august 2024.[](#_ftnref9) [\[10\]](#_ftnref10) Ibid. [\[11\]](#_ftnref11) Ibid. [\[12\]](#_ftnref12) Ibid. [\[13\]](#_ftnref13) (1962) 3 SCR 842, AIR 1962 SC 305. [\[14\]](#_ftnref14) 1971 AIR 481. **Categories:** Articles, Constitutional Law, Criminal Law --- ### [FALSE ACCUSATIONS OF RAPE: THE NEED FOR BALANCING JUSTICE FOR VICTIMS AND THE ACCUSED](https://lawfoyer.in/false-accusations-of-rape-the-need-for-balancing-justice-for-victims-and-the-accused/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Author: SNEHA AMARNATH VARMA, KES SHRI. JAYANTILAL H. PATEL LAW COLLEGE** **Edited By: Ritesh Singh Shekhawat, MJRPU, Jaipur** **INTRODUCTION** ***“Your word against mine: The war for justice over false rape allegations”-By Claisse Opulencia*** Rape is one of the most villainous crimes and violation of human rights that occurs all over the world. In India rape is defined under Section 375, Indian Penal Code, 1860[\[1\]](#_ftn1). It is a sexual assault that involves forced and non-consensual sexual intercourse, which affects the lives of the victims by giving them lifetime trauma. Victims of rape suffer from sexual violence, which results in depression, physical injuries, mental trauma such as post-traumatic stress disorder (PTSD), etc. There are many laws made by legislators to protect rape victims and safeguard the dignity of survivors. However, these laws are misused by some individuals leading to the false accusation of rape. In our society, fake rape allegations can have a ruinous effect on accused men. Society sympathizes with the woman and sees accused men as a rapist without questioning the validity of her allegations, which can affect falsely implicated men’s mental health, reputation, and professional life. This article explores the issues of repercussions of false allegations of rape on men and balancing the fair legal trail to ensure justice for both genuine victims and innocent men. In India, rape cases are taken seriously, but the laws made for securing victims are being misused as armament to harm the character of men and to blackmail them. Executions of the legal remedies handed by Sec 211 of IPC, 182 of IPC, Sec 195 of IPC, and Sec 196 of IPC for fake allegations are unskilful. This composition highlights how shy these laws are in precluding fake rape allegations. The misuse of laws highlights the urgent need to bring legal reforms to protect and balance justice for both genuine rape victims and wrongly implicated men. **KEYWORDS** Rape, sexual violence, Fake allegations, Sec 211 of IPC, 182 of IPC, Sec 195 of IPC, Sec 196 of IPC, mental health, legal reforms. **LAWS** In India, Section 375 of the Indian Penal Code, 1860 deals with rape. According to this, a man commits rape when he penetrates his penis, to any extent, into the vagina of women without her consent. There are four clauses under sec 375 of IPC. According to Clause (a) of sec 375 of IPC, when a man penetrates his penis, to any extent into the vagina, mouth, urethra, or anus of a woman without her consent or forced to do the same with another person, he is liable for rape.[\[2\]](#_ftn2) According to Clause (b) of sec 375 of IPC, when a man inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or forces to do the same with another person he is liable for rape. [\[3\]](#_ftn3) According to Clause (c) of sec 375 of IPC, when a man manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or forces her to do same with another person, he is liable for rape.[\[4\]](#_ftn4) According to Clause (d) of sec 375 of IPC, when a man applies his mouth to the vagina, anus, or urethra of a woman without her consent or is forced to do the same with another person, he is liable for rape. Acts defined under these four clauses of Section 375 of the Indian Penal Code must be committed under any of the seven descriptions: - Against her will - Without her consent - Consent is obtained by putting her in fear of death or hurt. - Her consent is given to that person because she believes herself to be lawfully married. - While giving her consent she is in unsound mind or intoxicated. - Consent is given under eighteen years of age. - The girl is unable to communicate. Section 376 of the Indian Penal Code, 1860 deals with the punishment for rape which is ten years and can extend to life imprisonment and fine. Now, this section is replaced by Section 64 of Bhartiya Nyaya Sanhita, 2023. **MOTIVES** Rape is one the most severe and horrendous crimes, which should not be misused by an individual for personal benefit. Yet, in India, there have been numerous fake rape cases of men. There are various reasons and motives behind filing fake rape cases, such as revenge, blackmail, to gain sympathy, family pressure, damage to reputation, financial gain, etc. A clear example of blackmailing and threatening for money would be the case of a Gurugram woman, who filed 7 rape cases against 7 men now held for ‘extortion’[\[6\]](#_ftn6). A young girl of 20 years was arrested on a complaint made by the mother of one the man she had falsely accused of raping. The complainant stated that this girl blackmailed and threatened them for money. She used to threaten them by making them choose between giving money or getting that man married to her. In this case, it was discovered that this girl was running a gang aiming at extorting money by falsely accusing men of rape. She had filed seven different cases on seven different men in different police stations in 14 months beginning in September 2020. The repercussions of these allegations are beyond legal battles. These false allegations have damaged not only the falsely implicated man’s reputation but their families too. Fake allegations about man not only destroy their lives but also their families. One of the best examples of this is the case of Santosh Kumar Rajput, Father of three, who commits suicide due to false rape allegations[\[7\]](#_ftn7). Santosh, 40 years old man and father of three children was falsely accused of rape. During the investigation, all the allegations were proven false, but the woman did not stop there. She went to district headquarters and filed an FIR. All allegations made against Santosh were denied, but his reputation and mental health were badly affected. Santosh hanged himself in his house because of the constant pressure and increased tension against him in society. In further investigation, it was found that the woman had previously filed three cases against three men for raping and threatening to burn herself with acid. This incident not only shattered his family but also questioned the credibility of real-life victims of sexual assault. The fake allegation about men not only destroys their lives but has an impact on their families, societies, and communities, as we can see in this case that Santosh’s wife, Ram Kumari, has the burden of raising their three children. The seriousness of rape cases demands strict investigations, but these false claims can lead to mistrust of all the allegations. Such fake cases can affect the lives of genuine victims who are already facing numerous challenges and hurdles in seeking justice. **CONSEQUENCES OF FAKE ALLEGATIONS** There are multitudinous goods in the life of a person who’s falsely intertwined. A person loses his character and respect in society once a woman accuses him of rape. It can be said that a wrongfully intertwined person loses his character before he’s condemned, and indeed after he’s set free, he has to deal with numerous challenges and hurdles in life. Many of the consequences faced by them are social life, severance, suicidal studies, internal trauma, depression, fiscal consequences, and damage to character. The accused often faces instant ostracization from the society. Even if he is proven innocent, the mark of being accused as a rapist can linger frequently. Families of accused are being judged and discriminated against by society, which can lead to constant stress and mental trauma. The accused, as well as his family, face severe damage to their reputation. Supreme Court of India, while acquitting a man in a case for rape after 23 yrs, said that a false allegation of rape causes equal torture, demotion, and damage to the indicted.[\[8\]](#_ftn8) Stress and anxiety connected with a person defending oneself against false allegations can lead to depression, post-traumatic stress complaint (PTSD), and suicidal tendencies indicted also faces violent pressure during a disquisition or interrogation which can affect his internal health. One illustration of this is the case of Chirag Varaiya, a 46-year-old Chartered Accountant. Chirag ended his life by committing suicide at a resort in Igatpuri on Jan 29, 2023. He left a four-page suicide note alleging that he was forced to end his life because of the harassment of the police in the false rape case reported by his colleague and her husband.[\[9\]](#_ftn9) False allegations not only affect the families and accused but also question the integrity of the legal system. Chirag’s case highlights the need for a more balanced approach in dealing with such serious cases and allegations to ensure fair justice. In India men committing suicide because of fake allegation is a serious issue. The repercussions of the false allegation extend beyond the individual to affect the entire family. An example that underscores the harsh reality is the case of Deepak Sangwan. Deepak was a differently able person who shot himself in the neck after a woman and his father filed a false rape case against him. Before ending his life, he left a suicide note which claimed that woman and his father had taken 2 lakhs from him, and when he asked for his money, the woman’s father threatened to file a fake rape case. Later, when Deepak filed a complaint against them over a bounce of a check, the woman filed a fake case against him. After his death, his family was facing financial issues and was also being harassed.[\[10\]](#_ftn10) The consequences of fake rape cases can cause numerous problems in the family of the accused and society. It is important to ensure a balance between the genuine victims and falsely implicated persons to prevent the misuse of laws. Ensuring justice for both the wrongfully implicated person in a rape case and a real-life victim is a challenging task for our judicial system. The recent decision by Uttar Pradesh’s Bareilly court to sentence a woman for making fake rape allegations about a man and a fine of over 5.8 lakh rupees. The girl was convicted under section 195 of the Indian Penal Code, 1860[\[11\]](#_ftn11) for making fake allegations against Ajay Kumar and sentenced to 1653 days, the exact duration for which Ajay was behind bars,[\[12\]](#_ftn12) is the best example that it is important to give justice to the real-life victims of rape but it is equally important to ensure that justice is given to the person who is wrongfully implicated in the rape cases and to hold a person liable who misuses the legal system. **REMEDIAL MEASURES** There are certain laws and corrections made for false allegations, including fake rape cases. In India, these laws are covered under the Indian Penal Code, 1860, which has been lately streamlined to Bhartiya Nyaya Sanhita, 2023. Many of the laws are: - Section 182 of IPC deals with False information with the intent to beget a public menial to use his legal power to the injury of another person. [\[13\]](#_ftn13) - Section 211 of IPC deals with a false charge of offense made with intent to injure. [\[14\]](#_ftn14) - Section 191 of IPC, deals with giving false substantiation. [\[15\]](#_ftn15) - Section 200 of IPC, deals with using as true similar protestation knowing it to be false. [\[16\]](#_ftn16) - Section 195 of IPC, deals with giving or fabricating false substantiation with intent to land a conviction of an offense punishable with imprisonment for life or imprisonment.[\[17\]](#_ftn17) With the help of these laws falsely intertwined person can clear his name from fake cases and also ensure that the person filing fake cases is penalized. The most important principle to ensure justice is that a person should be considered innocent until proven shamefaced. This presuming will prevent people from not being falsely penalized without proper substantiation and that trials are fair. This idea comes from the Latin sentence, “Ei incumbit probatio qui dicit, non qui negat,” which means that the burden is on execution to prove that the indicted person is shamefaced rather than the indicted proving his innocence. Using this testament, we can keep the integrity of our judicial system. **CONCLUSION** Rape is a serious offense; it’s important to give justice to the victims, but contemporaneously, it’s important to make sure that our judicial system doesn’t unintentionally beget detriment to the innocent existent. To achieve this our judicial system should be careful while dealing with similar serious cases. Balancing justice for real victims and securing the rights of those who are wrongfully intertwined is necessary. The principle of ‘INNOCENT UNTIL PROVEN GUILTY’ should be upheld to help unlawful detriment. One of the main questions that arise is “Is it necessary to introduce some specific and strict laws that deal with fake rape cases and to discourage the form of fake rape cases while guarding the rights of the real-life victims?” **REFERENCES** - - - - - - - [\[1\]](#_ftnref1) Indian Penal Code, 1860, s375. [\[2\]](#_ftnref2) Indian Penal Code, 1860, s375, Indian Kanoon, < >, accessed 20th August, 2024. [\[3\]](#_ftnref3) Indian Penal Code, 1860, s375, Indian Kanoon, < >, accessed 20th August, 2024. [\[4\]](#_ftnref4) Indian Penal Code, 1860, s375, Indian Kanoon, < >, accessed 20th August, 2024. [\[6\]](#_ftnref6) Bismin Taskeen, ‘Gurugram woman, who filed 7 rape cases against 7 men now held for ‘extortion’’, 30th December 2021. < > accessed 20th August, 2024. [\[7\]](#_ftnref7) ‘Father of three commits suicide due to false rape allegations’, (Voiceformenindia), 22nd December, 2019, < > accessed 20th August, 2024. [\[8\]](#_ftnref8) Live Law, 31st October, 2023, < > accessed 20th August, 2024. [\[9\]](#_ftnref9) Voice for men, 13th February, 2023, < [< https://voiceformenindia.com/mumbai-chartered-accountant-suicide-four-page-note-alleges-harassment-by-police-in-false-rape-case-by-former-colleague-her-husband/](https://d.docs.live.net/b71d9740a7722989/Documents/%3c%20https:/voiceformenindia.com/mumbai-chartered-accountant-suicide-four-page-note-alleges-harassment-by-police-in-false-rape-case-by-former-colleague-her-husband/)> accessed 20th August, 2024. [\[10\]](#_ftnref10) Voice for men, March 16th, 2021 < > accessed 20th August, 2024. [\[11\]](#_ftnref11) Indian Penal Code, 1860, s195 [\[12\]](#_ftnref12) Live Law, 7th May, 2024, < [< https://www.livelaw.in/news-updates/up-court-sentences-woman-1653-days-jail-false-rape-allegations-imposes-58-lakh-fine-257291](https://d.docs.live.net/b71d9740a7722989/Documents/%3c%20https:/www.livelaw.in/news-updates/up-court-sentences-woman-1653-days-jail-false-rape-allegations-imposes-58-lakh-fine-257291) > accessed 20th August, 2024. [\[13\]](#_ftnref13) Indian Penal Code, 1860, s182 < >, accessed 20th August, 2024. [\[14\]](#_ftnref14) Indian Penal Code, 1860, s211 < >, accessed 20th August, 2024. [\[15\]](#_ftnref15) Indian Penal Code, 1860, s191 <. . >, accessed 20th August, 2024. [\[16\]](#_ftnref16) Indian Penal Code, 1860, s200 < >, accessed 20th August, 2024. [\[17\]](#_ftnref17) Indian Penal Code, 1860, s195 < >, accessed 20th August, 2024. **Categories:** Articles, Bharatiya Nyaya Sanhita, Criminal Law --- ### [OFFENCES BY COMPANIES: A LEGAL AND PRACTICAL PERSPECTIVE](https://lawfoyer.in/offences-by-companies-a-legal-and-practical-perspective/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Author: BERADAR AKASH, CHRIST ACADEMY INSTITUTE OF LAW** **Edited By: Ritesh Singh Shekhawat, MJRPU, Jaipur** **ABSTRACT** This blog aims to analyze legislation and landmark case laws relating to corporate criminal liability under Indian laws as well as the main doctrines governing it. Further, it extends to which the Penal Code of 1860, and the Companies Act, of 2013 can be used to prosecute corporate crimes. Dispersed among the posts, the blog offers thorough explanations of various case laws, which show how corporate entities are legally penalized for such misconducts, and, as such, presents a comprehensive treatise for any individual involved in corporate governance or legal practice, business owners and investors, in particular. **KEYWORDS** Offences by companies, Legal Provisions, Case studies, Doctrines, Judicial precedents, Measures Taken **INTRODUCTION** Corporate firms are one of the important sources of contribution towards the development of the economy of the country. However, they are involved in criminal activities, which brings certain difficulties to stakeholders. Companies, associations, or bodies are also supposed to be liable for offenses under Section 11 of the Indian Penal Code 1860, which considers ‘person’ for this purpose. This blog discusses the critical aspects of corporate crime and the legal provisions, ordinances, judicial decisions, and doctrines underlying the criminal accountability of such corporate entities. ‘**Offenses by a company**’ means that any individual who is in a policy-making and managerial capacity and is involved in the commission of the offense is held responsible for it along with the company unless the individual provides sufficient evidence that the offense was committed without his or her knowledge and further, the individual had no knowledge that the offense was being committed. ‘**Corporate criminal liability’** means a crime committed by any employee or agent during his course of employment that benefits his or her business. Person commits any illegal activities that benefit the company then it can be held liable for the acts of his employee. *Iridium India Telecom Ltd vs Motorola Inc, 2011[**\[1\]**](#_ftn1)* – this case outlines the Apex Court decision concerning the liability of the companies and will be held responsible and punishable for the illegal activities committed by the person or organization during employment. **LEGAL PROVISIONS** A legal framework on IPC 1860 & Company Act, 2013 **Indian Penal Code, 1860 Provisions** - **Section 11[\[2\]](#_ftn2)** Defines “Person” which states that it “*includes any company or association or body of a person, whether incorporated or not making them liable for a criminal offense.”* - **Section 34[\[3\]](#_ftn3)** states that “*when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone”* - **Section 120B[\[4\]](#_ftn4)** of the IPC deals with Punishment for Criminal conspiracy - *“Any persons or party committed a criminal conspiracy they shall be punishable with death, 1-year imprisonment or for life or rigorous imprisonment for a term of two years* - Other **Sections 141 to 149[\[5\]](#_ftn5)** of the penal provisions deal concerning unlawful assembly, which can be used for applying companies as they engage themselves in illegal acts - According to the Companies Act, 2013 **Sec 447[\[6\]](#_ftn6)** deals with the Punishment for committing fraud- *“Any person who is found to be guilty of fraud shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to ten years and shall also be liable to a fine which shall not be less than the amount involved in the fraud, but which may extend to three times the amount involved in the fraud”* **CASE STUDIES** **Nirav Modi and PNB Scam, Aug 2018 [\[7\]](#_ftn7)** Nirav Modi is an Indian business tycoon who owns the company Firestar Diamond International Pvt ltd. He involved himself in a fraud case where in the investigation was found and charged by the Indian government with criminal breach of trust and cheating, corruption, money laundering, and criminal conspiracy **IL & FS Insolvency case[\[8\]](#_ftn8)** In this case, specifically, due to its mismanagement, the company went into a bad state, and statutory auditors were held guilty of misconduct by ICAI **Sterlite Copper case 2018[\[9\]](#_ftn9)** Sterlite Copper is a subsidiary company owned by Vedanta Ltd it was been in a huge controversy and led to the shutdown of the company because of its pollution and environmental harm to nature. The court gives the verdict under Sec 120B, Sec 277, and 278 of Penal Code 1860 **Sahara chit-fund scam case** Sahara fraud case serves as a lesson in cheat and deception by involving in large-scale chit-fund fraud. The court applied Sec 120B which is Criminal conspiracy, 420 cheating under IPC with 447 Punishment for Fraud of the Companies Act, 2013. This case study provides a clear and comprehensive understanding of the illegal activities committed by the person or organization. **VARIOUS DOCTRINES** **Doctrine of Attribution:** According to this doctrine the intention of committing any crime or offense is attributed to those who are the directing mind and will of the companies. Men’s rea is attributed to the organizations based on the alter ego of the company *Iridium India Telecom Ltd vs Motorola Inc, 2011* the court stated that criminal liability would arise as soon as the offense is committed with means rea and the apex court resolved the position concerning criminal liability of entities or companies **The doctrine of Vicarious Liability:** This doctrine states that the officials of the corporations shall be held accountable and responsible for the acts of the company under their position. The master shall be responsible for the actions of his Agent in the course of employment. **Identification doctrine:** This is an English doctrine that enables to identification of the person whose actions and intentions can be considered or attributed to an entity’s decision. This doctrine helps one to understand the legal principles that are attributed to companies and officials in a different context, especially in cases that involve criminal liabilities **JUDICIAL PRECEDENTS** ***Chitra Rama Krishna & Ors vs SEBI 2023 [\[10\]](#_ftn10)*** The CBI court under this case held that the misuse of the NSE co-location facility, in which certain traders were given preferential access to trading data led to unfair advantage and financial irregularities the court applied sec 120B with 420 and 409 of IPC ***Bhartiya Kamgar Karmachari Mahasangh vs M/S. Jet Airways Ltd, 25 July 2023[\[11\]](#_ftn11)*** This case involves the charges of Sec 406 & 420 where the accusations of Jet Airways for financial mismanagement & funds diversion ***Amazon.Com Nv Investment Holdings LLC vs Future Retail Limited 2021[\[12\]](#_ftn12)*** Here in the case, the future retail was accused of misrepresentation while in its dealings with Amazon. Here the dispute arose due to the breach of contractual obligation and was charged under Sec 420, 120B of Indian Penal Code. **CORPORATE GOVERNANCE** Corporate governance plays a significant role in the prevention of corporate crimes. Companies that engage in CSR and environmental activities are likely to less engage in criminal cases. Ethical and transparency compliance programs are crucial in fostering a culture of integrity. There have been many amendments to the Companies Act, to ensure and strengthen corporate governance but strict penalties imposition on the companies could make them abide and show the government’s commitment to stop these corporate crimes. Looking further in the growing contemporary era, corporate criminal liability is likely be increase due to various factors like technology but that could help in preventing crimes. There should be implementation of programs to be conducted for the prevention of criminal acts. Thus, a corporate legal framework with strict laws could bind the companies to follow and abide by the norms of the nations and reduce criminal activities. **MEASURES TO ENHANCE COMPANIES’ CRIMINAL LIABILITY FRAMEWORK** **Encouraging Best Practices:** It encourages corporations to bring out the best practices in corporate governance making clear accountability and transparency **Ament Existing Laws:** Amending the existing laws or legislations could ensure the companies cannot evade their liability **Forster Ethical Culture:** Companies should come up with an ethical corporate culture by ensuring the employees get the benefits of training encouraging them to become whistleblowers and providing protection to them **Adopting Monitoring Systems:** Companies should include various policies and strict monitoring systems and work with the law enforcing authorities for clear communications **Leverage Technology:** The adoption of new technological advancements like AI and blockchains could help them in compliance efforts. **Supporting CSR Activities:** CSR activities by the companies not only help the companies gain a reputation but also reduce the risk of committing any criminal activities **CONCLUSION & COMMENT** Corporate criminal liability is vital for maintaining legal and ethical standards. Despite their role in economic development, companies must not be exempt from legal scrutiny. The Indian Penal Code 1860 and the Companies Act 2013 should enforce stricter laws to govern corporate crimes. The case studies and judicial precedents highlight the need for robust enforcement and adherence to legal standards. As corporate governance evolves, ethical practices and transparency will be key in reducing criminal activities. Continuous legal reforms and effective frameworks are essential to uphold justice and integrity in the corporate world. **REFERENCES** **Legislations** - Indian Penal Code 1860, s 11. - Indian Penal Code 1860, s 34. - Indian Penal Code 1860, s 120B. - Indian Penal Code 1860, s 141-149. - Companies Act 2013, s 447. **Cases referred** - Iridium India Telecom Ltd vs Motorola Inc, (2011)1 SCC 74 (India) - Chitra Rama Krishna & Ors vs SEB (CBI Court, 2023). - Bhartiya Kamgar Karmachari Mahasangh vs M/S. Jet Airways Ltd, (2023) (Bom HC,25 July 2023). - Com Nv Investment Holdings LLC vs Future Retail Limited (2022) (SC) **Others** - Who Is Nirav Modi? | PNB Scam Case | Nirav Modi Case” (*business-standard.com*) - Bar & Bench and Bar & Bench, “Explainer: The IL&FS Insolvency Case” (*Bar and Bench – Indian Legal News*, July 21, 2019) - Guest Post, “Corporate Criminal Liability in India – iPleaders” (*iPleaders*, October 28, 2019) - “Doctrine of Attribution in Corporate Criminal Liability” (*Lakshmi Kumaran & Sridharan Attorneys*) [https://www.lakshmisri.com/insights/articles/doctrine-of-attribution-in-corporate-criminal-liability/#](https://www.lakshmisri.com/insights/articles/doctrine-of-attribution-in-corporate-criminal-liability/) - Shrishti Chauhan, “Sterlite Copper Case (2018),” vol 4 (2022) [https://ijaem.net/issue\_dcp/Sterlite%20Copper%20Case%20(2018).pdf](https://ijaem.net/issue_dcp/Sterlite%20Copper%20Case%20(2018).pdf) [\[1\]](#_ftnref1) Iridium India Telecom Ltd vs Motorola Inc, (2011)1 SCC 74 (India) [\[2\]](#_ftnref2) Indian Penal Code 1860, s 11. [\[3\]](#_ftnref3) Indian Penal Code 1860, s 34. [\[4\]](#_ftnref4) Indian Penal Code 1860, s 120B. [\[5\]](#_ftnref5) Indian Penal Code 1860, s 141-149. [\[6\]](#_ftnref6) Companies Act 2013, s 447. [\[7\]](#_ftnref7) “Who Is Nirav Modi? | PNB Scam Case | Nirav Modi Case” (*www.business-standard.com*) . [\[8\]](#_ftnref8) Bar & Bench and Bar & Bench, “Explainer: The IL&FS Insolvency Case” (*Bar and Bench – Indian Legal News*, July 21, 2019) . [\[9\]](#_ftnref9) Shrishti Chauhan, “Sterlite Copper Case (2018),” vol 4 (2022) [\[10\]](#_ftnref10) Chitra Rama Krishna & Ors vs SEB (CBI Court, 2023). [\[11\]](#_ftnref11) Bhartiya Kamgar Karmachari Mahasangh vs M/S. Jet Airways Ltd, (2023) (Bom HC,25 July 2023). [\[12\]](#_ftnref12) Amazon.Com Nv Investment Holdings LLC vs Future Retail Limited (2022) (SC) **Categories:** Articles, Company Law --- ### [Section 69 of Bharatiya Nyaya Sanhita: Provisions And Cases](https://lawfoyer.in/section-69-of-bharatiya-nyaya-sanhita-provisions-and-cases/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Author: Sara Sharma, University School of Law and Legal Studies** **Editor: Ritesh Singh Shekhawat, MJRP, Jaipur** **INTRODUCTION** Indian Law has always focused on protecting and promoting women’s rights from unscrupulous, exploitative, and deceitful practices or incidents that may harm their interests or hamper their mental, emotional, and physical well-being. The struggle for equality and equity between men and women has come far from the 1600s, where women were merely seen as tools of physical satisfaction by men; to women now having their own dreams and achievements; from their wings being cut down and shackled to the ground, to them soaring and flying and reaching new heights of advancements- the journey has come far. Such advancements have left women susceptible to new dangers, such as being taken advantage of with false pretenses of marriages for sexual intercourse; or sexual abuse through abuse of authoritative power in firms and organizations. Recognizing the dire situation and the need to protect women, laws have since been introduced to protect them from such situations, where their consent may be taken through deceit and their integrity and reputation may be at stake. **MEANING, DEFINITION & EXPLANATION** Section 69 of Bhartiya Nyaya Sanhita introduces the concept of sexual intercourse being a crime where consent is obtained by the accused misleadingly through beguiling the plaintiff through disingenuous promises of marriage. The section deals with the legal consequences arising out of such promises. The primary objective is to address situations where individuals make implicit or explicit commitments toward marriage but later repudiate and renege on these promises. The provision has been designed to safeguard individuals from emotional distress and ensure their well-being. The section applies to different situations, including but not limited to false marriage promises, promotional tricks, and secrets regarding identity. If the accused is proven to be guilty, then the individual shall be punished with prison years extending up to ten years and shall also have to pay a hefty fine. **HISTORICAL BACKGROUND / EVOLUTION** The Bharatiya Nyaya Sanhita was introduced in India on 1st July 2024 in which many new laws were introduced and many old ones were rephrased and modified, including Section 493 of the Indian Penal Code which has been changed into Section 69 of the BNS. The Indian Penal Code was inspired by the ideals of British morals and principles and was brought into existence in 1860. The purpose of the section was to protect women from any potential harm by way of deceit. It was to make sure that they had a legal safety net to fall back upon if they were ever taken advantage of by being misled into giving consent for sexual intercourse on the false pretense of marriage. Over various years, the Courts have time and time again highlighted the significance of the section with respect to women and their rights and protections. They emphasized safeguarding women from claims of false/fraudulent marriages. **COMPARISON WITH OTHER COUNTRIES:** The concept of marriage by deceit has existed in the laws and principles of various other countries including France, Canada, Australia, and Germany. **Status in India Regarding Sexual Intercourse By Deceit:** Indian Law considers sexual intercourse by deceit that does not amount to rape, a serious offense under Section 69 of the Bharatiya Nyaya Sanhita. According to the guidelines, the accused may face up to 10 years of imprisonment along with a fine. It was first introduced under the Indian Penal Code, 1860 as Section 493 which stated that any man who by deceit causes any woman to have sexual intercourse with him by making her believe in a false legal marriage, whether through a live-in relationship or fake marriage, would be subjected to a maximum punishment of 10 years and may also be charged a fine. **Status in France regarding Sexual Intercourse By Deceit:** French Law considers sexual intercourse through deceit as Sexual Assault under Article 222-23 of the French Penal Code which state that sexual intercourse that is forced upon, or coerced into, or obtained by threat, is considered as rape. According to French law, rape is a punishable offense that is subjected to imprisonment for up to 15 years. **Status in Canada regarding Sexual Intercourse By Deceit:** Canadian Law considers sexual intercourse through deceit under the provisions of Sexual Assault under Section 265 of the Canadian Criminal Code, which talks about consent. According to the provision, consent is invalid if it is acquired by fraud. Therefore if consent is obtained through misleading the plaintiff such as lying about identity, making false promises regarding marriage, or involving an unstable power dynamic. In Canada, the case of **R v. Hutchinson (2014)** proves the seriousness of the subject of deceit undermining consent, wherein the accused convinced his partner to engage in sexual intercourse, provided he made use of a condom. Hutchinson agreed to do so but poked holes in the condom, following which the partner became pregnant. He was convicted by the court of aggregated sexual assault. **CAUSES / EFFECT RELATION WITH OTHER CONCEPTS** Previously handled under the Indian Penal Code, section 69 now focuses on providing a safety net to women against manipulation by perpetrators. It aims at the protection of victims against emotional distress and dilemmas caused by deceit and ensures their mental as well as physical well-being. It aims at bringing them to justice in this sense. The provision also reflects a recognition of the severity of the issue that is sexual intercourse by deceit due to false promises of marriage; and a deeper understanding of the same, witnessing that it has been differentiated from sexual assault and given a different category. It recognizes that society may be advancing towards a more critical mindset of Westernization wherein the societal norms are becoming accepting of sex before marriage, live-ins, and changes in relationship dynamics. However, the provision has also set off a chain reaction by critiques that raise valid points- it may highlight a negative stigma towards men, giving rise to gender biases towards men and may cause emotional distress. The critiques have raised various warnings that this section could have a chilling effect on consensual relationships and could make misunderstandings easily prone to becoming criminal charges. **False accusations** by women have been recognized as a critical issue in the past and the section seems to amplify this fear. There have been numerous cases in the past which highlight that women have purposefully trapped men into such cases for numerous reasons such as causing defamation, harm to mental well-being, and making them outcasts in society. The case of the **State of Uttar Pradesh Vs Nisha, 2018** showcases the same- the mother of a woman named Nisha filed a false complaint against 5-6 people wherein they kidnapped her and subjected her to repeated acts of sexual assault. She later took back her statement and was sentenced to four years in prison by the court. **FORMS / MODES OF SECTION 69 OF BHARATIYA NYAYA SANHITA: SEXUAL INTERCOURSE BY DECEIT** **Deception Regarding the Identity or Nature of the Act** - **Identity:** This involves the perpetrator misleading the complainant by deceiving the person about their identity (for example, portraying the image of being somebody else, or lying about anything that may prevent the other person from consenting towards sexual intercourse otherwise) and obtaining consent for sexual intercourse. - **Nature of Act:** The perpetrator may fool the complainant by misrepresenting or lying about the true nature of the act (for example the perpetrator may claim that the act is being done as a medical procedure) to obtain consent for sexual intercourse. **Deception through Statements** The perpetrator may make false promises or may make false statements on purpose that may normally impact the consent of the plaintiff. **Misuse of Power Dynamic** There are times when the perpetrator may exploit the victim by holding a higher authority over the individual to pressure and deceive the victim into consenting to the act. **ESSENTIALS / ELEMENTS / PRE-REQUISITES OF SECTION 69 OF BHARTIYA NYAYA SANHITA** **Deception or Fraud** Section 69 of Bharitya Nyaya Sanhita clearly states that it is based upon the core condition that **consent** for sexual intercourse must be **obtained through deceit or fraud** which may include deceit by promises of marriage or by manipulation through abuse of power. The perpetrator may withhold information that would otherwise affect the consent of the victim towards the act. **Consent** Consent obtained by the perpetrator must be **voluntary** and **informed** to the victim. The consent is considered to be **invalid** if obtained through deceit. The consent of the victim is invalid if it is obtained by omission of any important information which may potentially affect the decision of the victim. **Criminal Intent** **Mens Rea (Guilty Mind**): If the perpetrator has an intention of misleading the victim to gain consent, then it indicates that the deceit was intentional and not accidental. **Nature of the Crime** The lies or omissions by the perpetrator must be substantial and must hold enough weight to play a significant part in the decision of the victim. **Defences of Section 69 of Bhartiya Nyaya Sanhita** **Absence of Deceit** The primary defense to section 69 of Bhartiya Nyaya Sanhita is to prove that there was no deceit or fraud involved. The accused may provide evidence to show that there was no intention to deceive the plaintiff by showcasing that the information provided was truthful and just. **Genuine Consent** The accused can defend themself by stating that the plaintiff was provided with complete, accurate, and true information and therefore gave voluntary consent for sexual intercourse. **Honest Mistake of Fact** The accused may attempt to prove that there may be a misunderstanding that may have occurred between the accused and the plaintiff that caused the plaintiff to provide voluntary consent based on the statements said. It may be proven that there might be an error in accurately depicting the meaning of the statements or beliefs depicted. **Exceptions to Defenses provided** **Burden of Proof of Deceit** The prosecution can provide evidence in court that the deceit that occurred is intentional to disprove or undermine the defenses relating to no deceit or informed consent. **Legal Interpretation of Consent** It is up to the Courts as to what constitutes valid consent. Courts may apply stringent standards as to what constitutes consent; therefore if the legal standards to voluntary standards are not met then the defense of Voluntary Consent by the defendant may not be taken into consideration. **Intentional Misrepresentation** The prosecution may prove that the deceit was deliberate and intended to misguide the other party into giving consent. This may undermine the defenses based on an honest mistake of fact. **Legal Provisions / Procedure / Specifications / Criteria of Section 69 of Bhartiya Nyaya Sanhita** **Definition of Deceit** Section 69 defines consent obtained through deceit for sexual intercourse. This definition includes deceit through intentional misrepresentation, manipulation of facts, and concealing of crucial information that may affect or determine the consent of the plaintiff. **Informed Consent** Consent provided by the party must be voluntary and not based on any misrepresented, concealed, or manipulated information; otherwise, it is considered to be invalid. **Conviction Punishment** The section specifies the punishment for the convicted- a term of a maximum of ten years, combined with a fine. **PROCEDURE UNDER SECTION 69 OF BHARTIYA NYAYA SANHITA** **Filing of complaint** The victim may file a complaint with the relevant authority, specifying the nature and impact of deceit and consent. **Investigation** The police are then addressed and directed towards looking into the matter and conducting an investigation to gather evidence. This includes interrogation of any potential witnesses, collecting forensic evidence, and examining crucial information. **Charges** The police may file charges under section 69 of the Bhartiya Nyaya Sanhita based on the evidence collected; specifying the nature and act of the deceit and the consent. **Trial and Evidence** The case proceeds with a trial, where the prosecution and the defense are required to present their arguments. The prosecutor must prove that the deceit did occur and that it affected the consent of the victim. The defense must prove through evidence that there was no occurrence of deceit or that the consent was voluntary. **Judgement and Sentencing** The court then takes an appropriate binding decision based on the evidence provided by both parties. If the accused is found to be guilty then the court will impose the punishment/penalty as specified under Section 69. **SPECIFICATIONS/ CRITERIA OF SECTION 69** **Relevance of Deceit** The deceit must be considered significant enough to impact the decision of the plaintiff. Any minor or irrelevant misinterpretations may not be considered. **Intent (Mens Rea)** It must be proved that the accused had the intention to deceive the plaintiff and that it was not accidental. **Effect of Deceit** The deceit must have a visible impact on the victim’s consent. This demonstrates that the victim’s agreement to the act of sexual intercourse was affected by the deceit and the victim might have not consented had there been no deceit. **Evidence Requirements** The evidence provided must prove that the accused clearly engaged in deceitful practices. **Legal Application of Section** Legal Standards are applied to determine whether section 69 is appropriate according to the situation, arguments, or evidence presented. **INTERPRETATIONS OF SECTION 69 OF BHARTIYA NYAYA SANHITA** Section 69 of Bhartiya Nyaya Sanhita aims at criminalizing sexual intercourse obtained through deceit by misleading the plaintiff by twisting facts or concealing information that may be a crucial part of obtaining the consent of the plaintiff. It aims at the differentiation of voluntary consent from consent obtained by deceit. Deceit may be made through false promises of marriage; abuse of authoritative power; or voluntary misinterpretation of interpretation. **CONCLUSION & COMMENTS** The initiative taken to pass such a provision and bring it to existence is proof that Indian thinking may be changing towards a more open-minded and futuristic approach, which is commendable. Moreover, it provides women with a sense of **mental peace** knowing that they have a **protective cover** over them to save them from such dire situations if they arise. It provides them with the confidence and stability that any wrongdoing whatsoever in this regard will not go unnoticed and they will be brought to justice. However, the provision may cause more harm than good due to alarms being raised over **gender bias**. Individuals may take advantage of the law to destroy an innocent person’s reputation and there may always exist a fear of being blackmailed. Therefore, it is important to bring reformations in Section 69 of Bhartiya Nyaya Sanhita to include **gender fairness**, as the law must treat everyone equally, regardless of gender. The possibility of **abuse of the act for personal gain** must be diminished, and a there must be **protection for consensual relationships**. **REFERENCES** **Books / Commentaries / Journals Referred** https://www.mha.gov.in/sites/default/files/250883\_english\_01042024.pdf **Online Articles / Sources Referred** [https://www.indiacode.nic.in/handle/123456789/20062?view\_type=browse](https://www.indiacode.nic.in/handle/123456789/20062?view_type=browse) https://www.scconline.com/blog/post/tag/section-69-of-the-bharatiya-nyaya-sanhita-2023/ **Cases Referred** R v. Hutchinson (2014) State of Uttar Pradesh Vs Nisha, 2018 **Statutes Referred** Section 69 of Bhartiya Nyaya Sanhita Section 493 of Indian Penal Code Section 222-223 of French Penal Code Section 265 of the Canadian Criminal Code **Categories:** Articles, Bharatiya Nyaya Sanhita, Criminal Law --- ### [INTRODUCTION TO CYBERSECURITY LAWS OF INDIA: PROVISION, PROCEDURE & CASES](https://lawfoyer.in/introduction-to-cybersecurity-laws-of-india-provision-procedure-cases/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Author: KRUTTIKA KARALE, DES SHRI NAVALMAL FIRODIA LAW COLLEGE** **Edited By: Ritesh Singh Shekhawat, MJRPU, Jaipur** **INTRODUCTION** With the fast pacing and advancing technology, the usage of the internet is increasing rapidly and so is the rate of cybercrime. The rise of cybercrime, often known as e-crimes (electronic crimes), is a major challenge confronting today’s society and poses a threat to nations, companies, and individuals all across the world. As a result, the need for cyber laws is increasing to govern the new virtual world. The cyber laws aim to protect people from cybercrime like hacking, phishing, data breaches, etc. With such increasing cases of cybercrime, it has become necessary that each individual has the knowledge about the cyber security majors to protect themselves against such crimes. **KEYWORDS** Cybercrime, Cyberlaw, IT acts, Data protection, Hacking, BNS laws **MEANING DEFINITION AND EXPLANATION** **Cyber Crime:** Cybercrime is an illegal activity involving computers, the internet, or network devices. These crimes can target individuals, businesses, government, etc. Cybercriminals commit identity theft, initiate phishing scams, spread malware, and instigate other digital attacks like hacking. **Cyber Security:** Cyber security involves protecting computer systems, networks, and data from cyber-attacks. It aims to safeguard against unauthorized access, data breaches, and other cyber threats. **HISTORICAL BACKGROUND AND EVOLUTION** - It all started in France in **1834** where the attackers accessed the **French telegraph system** and stole important financial market - In **1962**, **Allen Scherr** made a new history in cyber-crime by executing a cyber-attack on the - **MIT computer networks** by stealing passwords from their punch card - In **1971**, Bob Thomas created the first Computer Virus known as **The Creeper Virus**. It was a self-replicating program that spread through the ARPANET network. - In **1981**, **Ian Murphy** was the first person who was officially found guilty of committing a crime by hacking into AT&T’s internal system and changing the computer clocks which caused - The first major cyber-attack on the internet took place in **1988**, by Robert Morris with the help of **Morris Worm**. It infected computer systems at prestigious institutions, demonstrating the vulnerability of interconnected networks. - In the **1990s**, a significant increase in cybercrime was observed, and the infamous **Melissa virus** was a notable cyber incident during this period which infected over 100,000 computers from all over the world. - Further advancement in cybercriminal advancement was observed in the early **2000s** and cyber criminals started launching **denial-of-service (DDOS)** attacks and spamming **TYPES OF CYBERCRIME** **Hacking:** Without permission taking access to someone else’s computer systems or networks to steal or gain information or modify data. **Web Hijacking:** Web hacking means taking control of another person’s website, with the consent of the owner, and eventually the owner loses control. **Malware:** In malware, harmful software has been made to sneak around on someone else’s computer systems. This includes viruses, spyware, worms, etc. It can be used to gain bank details, sensitive business data, or information to conduct social engineering attacks. **Identity Theft:** To act like some other individual by Stealing their information such as their name, social security number, or financial details, for financial gain to commit fraud or crimes. **Cyber Stalking And Harassment:** Cyber Stalking means repeating the acts of harassing, threatening, or intimidating individuals by sending repeated or unwanted messages or distributing the personal information of the individual without the consent of the person by using the internet. Both kinds of Stalkers i.e., Online & Offline – have the desire to control the victim’s life. **Online Scams And Fraud:** Many Fraudulent schemes were conducted over the internet time such as investment scams, scams of lottery, fee fraud of advance rupees, fake websites, romance scams, credit card frauds, etc. to take money or valuable information. **Data Breaches:** People get the information without the permission of the owner of the website and get access to sensitive data stored by the person or institution such as personal information, financial records, or corporate secrets, resulting in the exposure of personal or financial information. **Phishing:** Phishing is the sending of fraudulent messages that appear as real entities in emails and messages. That email directs the user to visit that website where they have to update certain sensitive information such as passwords, credit card numbers, or social security numbers which will be used for identity theft. **Child Pornography:** The usage of the Internet for Child exploitation became a common practice. Child pornography and engaging minors in sexual activities and provided on the internet on various platforms. **PREVENTIVE MEASURES FOR CYBERCRIME** **Use Encryption:** In this method, the plain text (readable) can be converted to cipher text (coded language) by this method and the recipient of the data can decrypt it by converting it into plain text again by using the private key. **Search using a Firewall:** It creates a wall between the system and possible intruders to protect the classified documents from being leaked or accessed. It only permits access to the system to ones already registered with the computer. - Keep software and operating system - Use any anti-virus software and keep it updated from time to - Use strong - Never open attachments in spam - Do not click on links in spam mail or untrusted - Be mindful of which website URLs you - Keep an eye on bank **CYBER LAWS OF INDIA** **Legal Provisions** The Information Technology Act, of 2000 is the most significant; as it directs all Indian legislation to strictly regulate cybercrime: - **Section 43** *\[Penalty and compensation\] for damage to the computer, computer system, etc.–If any person without the permission of the owner or any other person who is in charge of a computer, computer system, or computer* - **Section 66** *Computer-related offenses – If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to five lakh rupees or with* - **Section 66(B)** *Punishment for dishonestly receiving stolen computer resource or communication device – Whoever dishonestly receives or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both.* - **Section 66C** *Punishment for identity theft– Whoever, fraudulently or dishonestly makes use of the electronic signature, password, or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.* - **Section 66D** *Punishment for cheating by personation by using computer resource-Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees*. - **Section 66E** *Privacy violation Whoever, intentionally or knowingly captures, publishes, or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with* - **Section 66F** *Cyber terrorism – Intent to threaten the unity, integrity, security, or sovereignty of the nation and contradicting access to any person’s lawful access to the computer resource or attempting to breach or access a computer resource without endorsement. Such acts of causing compute contaminants that are likely to cause death or harm to other persons. Punishment is life* - **Section 67** *Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.* - **The Bharatiya Nyaya Sanhita, 2023** also punishes the acts of identity theft and cyber The sections under BNS are as follows: - **Section 335** Making a false document or false electronic record. - **Section 336(2)** Punishment for - **Section 336(3)** Forgery (electronic record) for the purpose of cheating. - **Section 336(4)** Forgery (of an electronic record) for the purpose of harming - **Section 340(2)** Forged document or electronic **LEGAL CASES** **Avnish Balaji vs State (N.C.T) of Delhi, 2004:** The Bazee.com case. The chief executive of Bazee.com was arrested because a CD with offensive material was sold on his website. It was also sold in the markets of Delhi. The Mumbai and the Delhi Police took action against it. The accused was charged under section 67 of the IT Act, and section 292 of the IPC, but later he was released on bail. This gave rise to a query about the difference between Internet Service Providers and Content Providers. The burden was on the accused, he was the Service Provider and not the Content Provider. It also advances a lot of issues regarding how the police should handle cybercrime cases. **Shreya Singhal vs Union of India [\[1\]](https://lawfoyer.in/cyber-crime-meaning-history-types-security-measures-and-important-cases/#_ftn1)** In this case, the validity of section 66A of the Information Technology Act was challenged before the Supreme Court. The Supreme Court held that section 66A of the Information Technology Act is unconstitutional and violates article 19(1)(a) of the Indian constitution and the court upheld the importance of freedom of speech and expression. It also held the need for clearly defined laws to prevent misuse and guarantee the protection of citizen’s rights in the digital era. This judgment set a significant precedent for online freedom of expression in India. **Shreekanth C. Nair against Licensee/ Developer \[3\]** In this case, the problem involved an ASCL student who came across a website called ‘[www.incometaxpune.com,’](http://www.incometaxpune.com/) which redirected him to a pornographic site. Therefore, the plaintiff requested a court injunction to prevent access to the offensive site and that the site was clearly pornographic and should be closed down in the public’s best interest. This site was also violating section 67 of the IT Act. The court ruled that websites with inappropriate content should be banned. This ruling indicates that the court aims to ensure the safety of the internet for all users, particularly in regard to dangerous material. The owner was also instructed to monitor their website content and linked pages. This situation is significant as it demonstrates the role of laws in safeguarding individuals on the Internet. **PROCEDURE** **Procedure for filing cybercrime complaint: offline cyber-crime cell** The victim of a cybercrime can file a written complaint in the nearest cybercrime cell or in any cybercrime cell established in India. The written complaint shall be addressed to the Head of the Cybercrime Cell and shall be accompanied by the following information about the victim or person registering the complaint: - Name - Contact details - Mailing address Other documents which are required to be attached to the complaint depend upon the type of cybercrime committed against the victim. It is necessary to attach these documents with the offline as well as with the online complaint. **PROCEDURE FOR FILING CYBERCRIME COMPLAINT ONLINE:NATIONAL CYBERCRIME REPORTING PORTAL** Cybercrime complaints can be registered on the National Cyber Crime Reporting Portal[ ](https://cybercrime.gov.in/)which is the initiative of the Government of India to facilitate nationwide cybercrime complaints and to make it feasible for the victims/complainants to have access to the cybercrime cells and to all the information related to cybercrimes at their fingertips. It deals with all types of cybercrimes. There are two types of complaints that can be registered on the portal: **Report Crime related to Women or Children** - Child Pornography (CP) - Child Sexual Abuse Material (CSAM)- Material containing sexually explicit images (in any form) of a child who is abused or exploited - Sexually explicit content (such as Rape/Gang rape) **Report Other Cybercrimes** - Mobile crimes - Social Media crimes - Online financial fraud - Cyber trafficking - Ransomware - Hacking **CONCLUSION** Cybercrimes exist in almost all countries, and the respective governments are taking measures to safeguard against cybercrimes. There has been a rapid increase seen since 2020, due to the Covid-19 pandemic, everyone from children to elders all started using the internet almost daily and got connected with this digital world. And there has been a rapid rise in cybercrimes during this period. The issues like cyberbullying, defamation, cyber fraud, etc., have become the most common crimes nowadays. The reason that these cybercrimes take place is because of the easy access of the devices, and sometimes the negligence of the users. In India, many people are not aware of such crimes, and when they are hacked, they suffer huge losses and don’t even know how it happened. So first it’s very important to be aware of such crimes and their rights in digital space. The Indian government has taken various measures and initiatives to prevent such cybercrimes and made it easy for citizens to report such crimes with the help of E-portals which can be easily accessed sitting at home. The government is also making sure that the victims are compensated or provided justice. **REFERENCES** - / - - [https://lawfoyer.in/cyber-crime-meaning-history-types-security-measures-and-important-](https://lawfoyer.in/cyber-crime-meaning-history-types-security-measures-and-important-cases/) [cases/](https://lawfoyer.in/cyber-crime-meaning-history-types-security-measures-and-important-cases/) - - - #### Cases Referred - Avnish Balaji vs State (N.C.T) of Delhi, 2004: - Shreya Singhal vs Union of India \[1\] - Shreekanth Nair against Licensee/ Developer \[3\] #### Statutes Referred - The Information Technology Act, 2000 - The Bharatiya Nyaya Sanhita, 2023 **Categories:** Articles, IT Law & Cyber Law --- ### [Remedies Against Climate Change Under Indian Environmental Law: Provisions, Principles, Cases and Procedure](https://lawfoyer.in/remedies-against-climate-change-under-indian-environmental-law-provisions-principles-cases-and-procedure/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Author: Bhavya Rathore, UFYLC, Jaipur, Rajasthan** **Edited By: Gyanu Patel, Amity University Lucknow, U.P.** **INTRODUCTION** *“We are the first generation to feel the sting of climate change, and we are the last generation that can do something about it.”* *– Jay Inslee* Is Climate Change happening? It’s funny people are still arguing about that. For they can’t see the melting glaciers, the rising sea levels, the [marine heatwaves](https://en.wikipedia.org/wiki/Marine_heatwave), the [ocean stratification](https://en.wikipedia.org/wiki/Ocean_stratification) , the extinction of the species that we hold dear. For they have turned blind eye to the greatest existential threat that humans will ever encounter before they are wiped out from the face of the earth. Are humans doing something about it? Or maybe rephrase that: Are humans seeing this as a mere earthly phenomenon or as a catastrophic event whose prevention is the need of the hour. Well, that’s up for debate. To put this in perspective if the Earth was formed at midnight modern humans have been around since 11:59:59pm—1 second. If the 4.5 billion of the existence of the Earth is to be seen in the form of a 24-hr clock, then human came into the picture for just 1 second and in that 1 second humans were able to destroy the Earth like never before. If this is not concerning that what might be included in the definition of the word ‘concern’. Again, Climate change is often misunderstood as being about changes in the weather. In reality, it is more than just heat waves or irregular weather (that the generations are now experiencing or rather has experienced for a good number of years, but is yet acknowledge). It causes a significant change in the way we live our life. What is more frustrating is that as human beings, we are vulnerable to confusing the unprecedented with the improbable. In our everyday experience, if something has never happened before, we feel safe in assuming it is not going to happen in the future, but the exceptions might be disastrous, and one of those exceptions is climate change.” And as beautifully said by ***Frances Beinecke: “***I have long understood that climate change is not only an environmental issue – it is a humanitarian, economic, health, and justice issue as well.” ***Keywords*:** *Climate Change. Environmental Laws. National Green Tribunal. Art, UNFCCC, IPCC.* **MEANING, DEFINITION & EXPLANATION** *“Climate change means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.”[**\[1\]**](#_ftn1)* This is how the UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE define the term Climate Change. Another major convention the UNFCCC[\[2\]](#_ftn2) defines it as: *“Climate change refers to a change in the state of the climate that can be identified (e.g., by using statistical tests) by changes in the mean and/or the variability of its properties and that persists for an extended period, typically decades or longer. Climate change may be due to natural internal processes or external forcings such as modulations of the solar cycles, volcanic eruptions and persistent anthropogenic changes in the composition of the atmosphere or in land use.”* To put it in simpler terms Climate change is a significant variation of average weather conditions, over several decades or more. It is for a longer-term and is used for a much wider context that differentiates it from natural weather variability. **COMPARISON WITH OTHER COUNTRIES** 1. UK Climate Change Act is the perfect example. It has raised awareness and strengthened evidence-based policy-making. Other countries, for instance Denmark, France, Germany, Ireland, Mexico, New Zealand, and Sweden, have drawn inspiration from the UK’s approach. 2. New Zealand’s Climate Change Response (Zero Carbon) Amendment Act, 2019: It sets a target to reduce all GHGs net emissions to zero by 2050 3. Germany’s (2019) Climate Action Law sets a target for climate neutrality by 2050, sets sector-specific targets, and sets up an expert, independent climate commission to provide guidance. 4. France’s (2019) Law on Energy and Climate: That France’s (2019) Law on Energy and Climate sets a target of climate neutrality by 2050, while establishing an independent High Council on Climate tasked for advice and recommendations to the Government of France. 5. The list is endless majority of the countries of the world has taken a step though small towards the mitigation of the adverse effects of climate change. Compare it to India: there is no single law that is particularly concerned about climate change. Sure, we do have Environment Protection act among others but it is also important to note that environment and climate are the 2 sides of the same coin. (M.K. Ranjitsinh & Ors. v. UOI & Ors.) **LEGAL PROVISIONS** Since it clear that there is no umbrella legislation for Climate change, here are the separate laws and bodies that deal with environmental and ecological. - The Wildlife (Protection) Act, 1972*:*[\[3\]](#_ftn3) This act provides provisions for the protection of the wild animals, birds, and plants to ensure the country’s ecological and environmental security. - The Water (Prevention and Control of Pollution) Act, 1974:[***\[4\]***](#_ftn4) This act provides provisions for the accommodation of the control of water contamination and reestablishing of healthiness of water for the avoidance and control of water contamination. - The Air (Prevention and Control of Pollution) Act, 1981:[***\[5\]***](#_ftn5) This act provides provisions for the accommodation of the counteraction, control and decrease of air contamination. - The Environment (Protection) Act, 1986: [***\[6\]***](#_ftn6) This act provides provisions for the accommodation of the security and improvement of climate and related issues. It was enacted to achieve the 1972- Stockholm declaration. - The Energy Conservation Act, 2001:[***\[7\]***](#_ftn7) ” This act provides provisions for effective utilization and preservation of energy. - Biological Diversity Act 2002:[\[8\]](#_ftn8) This act provides provisions for the protection of natural variety, fair and impartial sharing of the advantages emerging out of the utilization of organic assets, information. It was implemented to give effect to CBD (Convention on Biological Diversity), Nagoya Protocol. - The National Green Tribunal Act, 2010:[***\[9\]***](#_ftn9) This act provides provisions for the foundation of a Public Green Council for the successful and quick removal of cases connecting with ecological insurance. It was laid out in simultaneousness with Rio Culmination 1992 - NGT manages the civil cases under the 7 acts: - Water (Prevention And Control Of Pollution) Act, 1974 - Water (Prevention And Control Of Pollution) Cess Act, 1974 - Air (Prevention And Control Of Pollution) Act, 1977 - Forest Conservation Act, 1980 - Environmental Protection Act, 1986 - Public Liability Insurance Act 1991 - Biological Diversity Act, 2002 - These are what included in the environment laws in India however none of the above mentioned ‘laws’ subsumes climate change and its impact extensively and there exist no law or a body that focuses and addresses climate change solely. **REMEDIES** - **Constitutional** - imposes a duty on the State for the Protection and improvement of environment and safeguarding of forests and wild life. - 51A(g)imposes duty on the citizens of India for the Protection and improvement of environment and safeguarding of forests and wild life. - **National Green Tribunal** - Sec 22 of NGT Act 2010: Appeal to Supreme Court within 90 days by any person aggrieved by any award, decision or order of the Tribunal **PROCEDURE** - The National Green Tribunal provides an expeditious and effective remedy for environmental matters. - The Right to Information Act enables citizens to access information on environmental issues from public authorities. - Public Interest Litigation allows individuals and organizations to file cases for environmental protection in the public interest. **REGULATIONS** **NAPCCC:** The National Action Plan on Climate Change (NAPCC) was released by the Prime Minister on 30th June 2008. It plans out a centralised strategy to enable the country to adapt to the adverse effects of climate change and enhance the sustainability of ecology. This includes 8 National Missions focussed on promoting the critical understanding of climate change, adaptation and mitigation, energy efficiency and natural resource conservation. For example: National Solar Mission and National Water Mission **CASE LAWS** - In a very recent judgement of **K. Ranjitsinh & Ors. v. UOI & Ors.**[\[10\]](#_ftn10) The Supreme Court recognised a new fundamental right, i.e., right against effects of climate change which empowers the citizens of the nation against climate change impacts as well as puts an equal obligation on the state to protect this very right of the citizens. The relevant lines of the judgment are as under- *“Despite a plethora of decisions on the right to a clean environment, some decisions which recognise climate change as a serious threat, and national policies which seek to combat climate change, it is yet to be articulated that the people have a right against the adverse effects of climate change. This is perhaps because this right and the right to a clean environment are two sides of the same coin. As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21*.” *“Despite governmental policy and rules and regulations recognising the adverse effects of climate change and seeking to combat it, there is no single or umbrella legislation in India which relates to climate change and the attendant concerns.”* - In the cases of **Ridhima Pandey v. UOI**[\[11\]](#_ftn11), Gaurav Kumar Bansal. v. Union of India & Ors.[\[12\]](#_ftn12), the petitioners highlighted that the current pace of climate change laws is not sufficient and the ill implementation of existing policies posed a major threat. - In **C Mehta v. Union of India**[\[13\]](#_ftn13), the Supreme Court ordered the closure of polluting industries and imposed fines for environmental damages. - In **Vellore Citizens’ Welfare Forum v. Union of India**[\[14\]](#_ftn14), the Court recognized the two essential principles of precautionary principle and polluter pays as an essential part of Indian environmental jurisprudence. - In **Intellectual Forum, Tirupathi v. State of A.P**[\[15\]](#_ftn15)., the Court held that the state has a duty to protect natural environment and resources for present and future times. **CONCLUSION & COMMENTS** Considering all the facts and provisions it would not be a lie to say that India still has some things to do off of its check list, and to make the place liveable for the future generation. But as they say it is better to have some than none, India has undeniably taken numerous step in the past to address the elephant in the room. All the rights, duties, and legal provision has ideef made an impact in the right direction. **REFERENCES** - **Books / Commentaries / Journals Referred** - Agarwal A., & Narain S. (2019). Global warming in an unequal world: A case of environmental colonialism. - **Online Articles / Sources Referred** - “Glossary — Global Warming of 1.5 oC” (Global Warming of 1.5 oC) accessed August 1, 2024 - accessed August 1, 2024 - “Climate Change” - **Cases Referred** - K. Ranjitsinh & Ors. v. UOI & ors 2024 INSC 280 - Ridhima Pandey v. UOI (OA NO. 187/ 2017) - Gaurav Kumar Bansal. v. Union of India & Ors OA No. 498 of 2014 - C Mehta v. Union of India 1987 AIR 1086 - Vellore Citizens’ Welfare Forum v. Union of India AIR 1996 SUPREME COURT 2715 - Intellectual Forum, Tirupathi v. State of A.P AIR 2006 SUPREME COURT 1350 - **Statutes Referred** - Constitution of India National Green Tribunal Act, 2010 - Environment (Protection Act), 1986 - Wildlife (Protection) Act, 1972 - Water (Prevention and Control of Pollution) Act, 1974 - Air (Prevention and Control of Pollution) Act, 1981 - Energy Conservation Act, 2001 - Biological Diversity Act 2002 - Forest Conservation Act, 1980 [\[1\]](#_ftnref1) “Glossary — Global Warming of 1.5 oC” (*Global Warming of 1.5 oC*) accessed August 1, 2024 [\[2\]](#_ftnref2) accessed August 1, 2024 [\[3\]](#_ftnref3) [a1972-53.pdf (indiacode.nic.in)](https://www.indiacode.nic.in/bitstream/123456789/1726/1/a1972-53.pdf) [\[4\]](#_ftnref4) [water\_act\_1974.pdf (indiacode.nic.in)](https://www.indiacode.nic.in/indiacode/bitstream/123456789/19018/1/water_act_1974.pdf) [\[5\]](#_ftnref5) [air\_act-1981.pdf (indiacode.nic.in)](https://www.indiacode.nic.in/bitstream/123456789/7781/1/air_act-1981.pdf) [\[6\]](#_ftnref6) [ep\_act\_1986.pdf (indiacode.nic.in)](https://www.indiacode.nic.in/bitstream/123456789/4316/1/ep_act_1986.pdf) [\[7\]](#_ftnref7) [AS PASSED BY LOK SABHA (powermin.gov.in)](https://powermin.gov.in/sites/default/files/uploads/ecact2001.pdf) [\[8\]](#_ftnref8) [Act & Rules.p65 (nbaindia.org)](http://www.nbaindia.org/uploaded/act/BDACT_ENG.pdf) [\[9\]](#_ftnref9) [AA2010\_\_19green.pdf (indiacode.nic.in)](https://www.indiacode.nic.in/bitstream/123456789/2025/1/AA2010__19green.pdf) [\[10\]](#_ftnref10) 2024 INSC 280 [\[11\]](#_ftnref11) (OA NO. 187/ 2017) [\[12\]](#_ftnref12) OA No. 498 of 2014 [\[13\]](#_ftnref13) 1987 AIR 1086 [\[14\]](#_ftnref14) AIR 1996 SUPREME COURT 2715 [\[15\]](#_ftnref15) AIR 2006 SUPREME COURT 1350 **Categories:** Articles, Environmental Law --- ### [Constitutionality of Section 303 IPC & Capital punishment](https://lawfoyer.in/constitutionality-of-section-303-ipc-capital-punishment-2/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Author: Ishan Mishra, K.R. Mangalam University** **Edited By: Gyanu Patel, Amity University Lucknow (UP)** **INTRODUCTION** A person accused of any crime until & unless convicted just like the other citizens has the complete right to live with dignity as is enshrined & provided by the Constitution of India. The expression “Capital Punishment” is the most extreme type of punishment. The constitutional validity of section 303 of the former Indian Penal Code of 1860 which states the provision or mandates the death penalty for certain offences being committed by a person already serving a death sentence has undeniably been a subject of significant ethical & legal debate in India. Don’t such provisions raise some critical questions about the principle of justice, human rights, & the state’s role in administering such capital punishment? However, some of the maxims like “**actus non facit reum, nisi mens sit rea”**, **“culpae poene par esto”, and “dura lex sed lex”** which relates to “an act doesn’t make one guilty unless the mind is also legally blameworthy”, “the punishment should be proportionate to the crime” & “the law is harsh, but it is the law” respectively. The other term or way to address Section 303 can be called capital punishment, the context of which in itself is often viewed as a controversial or divisive issue. However, it is argued that it serves as a deterrent against some of the heinous crimes such as rape & murder & delivers justice for the victims & society. But on the converse, it is contended as an irreversible & and inhumane punishment which doesn’t effectively deter crime & disproportionally affects marginalized communities. Section 303 of the Indian Penal Code’s constitutionality has been challenged on many grounds, inclusive of its compatibility with the fundamental rights as enshrined in the Constitution of India, particularly the right to equality & right to life that is article 14 & 21 of the constitution respectively. The Supreme Court of India, however, have addressed these concerns & emphasised the need for a comprehensive evaluation of the implications of the death penalty within the framework of such constitutional rights. ***Keywords:*** *Section 303 IPC, Constitutionality, Capital Punishment, Death penalty, Human rights, justice, Deterrent effect, Fundamental rights, Right to equality, Right to life* **MEANING, DEFINITION & EXPLANATION** The meaning & or the definition of Section 303 of the former Indian Penal Code is something that pertains to the punishment for a person who has committed an offence of “Murder” while already serving a life sentence. This section states that if a person who is sentenced to life imprisonment commits an offence of murder, then they shall be punished with a death sentence also known as Capital Punishment. In the legal context, its explanation goes like “A section that was introduced to deter prisoners already serving life sentences from committing further crimes like murder particularly. The rationale is to maintain order within prisons & protect society from repeat offenders. However, the constitutionality of this section (303) has been subject to certain challenges primarily on the grounds of: **Article 14(Right to Equality/Everyone’s equal before the law)** & **Article 21(Right to life & personal liberty)** However, the Supreme Court has upheld the constitutionality of section 303 IPC, further emphasizing that the legislature has the authority to prescribe different punishments for different categories of crimes & offenders. Whereas “Capital Punishment” can or may be defined/explained as a state-sanctioned execution of a person as a punishment for a crime, typically for serious offences such as those relating to murder or terrorism. **HISTORICAL BACKGROUND / EVOLUTION** The draft of the IPC was prepared by Thomas Macaulay & was enacted in the year 1860 during British colonial rule. It aimed to provide a comprehensive legal framework for the criminal law in India. Section 303 was included as a means to address the specific issue of repeating offenders, particularly those who were murdered while serving a life sentence already. The rationale behind section 303 was introduced as a means to deter the prisoners from committing further serious crimes and murder especially while one was incarcerated. It was a reflection of the British legal system’s approach to maintaining order & discipline within the prisons. “In all parts of the world death punishment was in presence from the most -old circumstances”. **Capital Punishment’s** history in India can be divided into 2 parts: **Pre-Independence:** The evolution or the inception of the death penalty (capital punishment) can be traced back to the 18th century B.C.E. in the code of King Hammurabi of Babylon, wherein the death penalty was codified for different types of crimes. The ancient texts like the Arthashastra written by Kautilya also outlined various offences & corresponding punishments, inclusive of death. Also during the medieval period, under the dynasties & empires like that of the Mughals, capital punishment was still prevalent. It was used as a common tool for maintaining law & order & as a deterrent against rebellion & crimes. **Post-Independence:** India gained independence in the year 1947 & the constitutional framework of Article 14 & Article 21 which state equality before the law & right to life & personal liberty respectively retained however, these rights aren’t absolute rights & capital punishment is still permissible by the procedure established by law. The Judiciary has since then upheld the constitutional validity of the death penalty through several landmark cases, further assisting that it can be imposed in the “rarest of the rare cases”. The Judicial pronouncements were made through the following cases: **“Bachan Singh Vs.** **State of Punjab” (1980)** This landmark judgement by the Supreme Court upheld the constitutional validity of the death penalty & had laid down the “rarest of the rare” doctrine for its application. **“Macchi Singh Vs. State of Punjab” (1983)** This case kept in mind the end goal to further illustrate the rarest of the uncommon cases that the circumstances where the use of the death sentence could be legitimized. **COMPARISON WITH OTHER COUNTRIES** **Country** **Status of Capital Punishment** **Key Features** **Comparison to Section 303 I.P.C** **United States of America** It is legal in many states here. Some of the states have abolished it, while it is still rigorously enforced by other states. Similarly, it allows for the death penalty for serious crimes, but it lacks a specific provision for the repeating offenders. **United Kingdom** In the United Kingdom Capital Punishment did get abolished in the year 1965. It was abolished for murder, with no return to it since The United Kingdom, unlike section 303 does not have any provision for capital punishment. **Japan** It is legal but is rarely used. The death penalty does exist, with the executions carried out in secrecy. Similar to that of the United States of America. **China** It is widely used. Thousands are annually executed, for a range of crimes inclusive of non-violative offences. The application is more extensive for capital punishment as compared to India’s focused approach. **Saudi Arabia** It is legal & frequently applied. Public executions are used for a range of offences inclusive of theft & drug trafficking. It is more expansive in scope than in comparison to section 303, applied to various crimes beyond that of murder. **Germany** Had abolished it in the year 1951. It was strongly opposed as it was violative of the Human Right. It wasn’t equivalent to section 303 since capital punishment was completely abolished. **India** It is legal but with certain restrictions. Here the death penalty is reserved for the “rarest of the rare cases”, and specific criteria are added for life sentencing offenders. In comparison to other nations, it has a unique focus on repeating offenders. **CAUSES / EFFECT RELATION WITH OTHER CONCEPTS** **Deterrence Theory** **Cause:** Inclusive of section 303, the rationale behind capital punishment is often rooted in the belief that such severe penalties deter crime. **Effect:** The deterrence theory influences public policy & judicial decisions, as some lawmakers may argue that such harsher punishments prevent future offences, particularly among those repeating offenders. **Human Rights** **Cause:** Significant human rights concerns have been raised through the imposition of capital punishment, particularly regarding the right to life & right to fair trial. **Effect:** Human Rights Advocacy has led to calls for the abolition of the death penalty in many countries further influencing legal reforms & public opinion. **Rehabilitation Vs. Retribution** **Cause:** This debate between rehabilitation & retribution is quite central to discussions about capital punishment & section 303 of the I.P.C. **Effect:** Countries that prioritize rehabilitation tend to abolish capital punishment, while those emphasizing retributive justice may retain it, influencing their legal systems & correctional policies. **Judicial Discretion** **Cause:** Section 303 application & capital punishment often involve such judicial discretion, where judges assess the circumstances of the crime & the background of the offender. **Effect:** Such discretion can also lead to some inconsistencies in sentencing & or raise concerns about equality before the law & potential biases in the judicial process. **Public Opinion** **Cause:** Societal attitudes towards crime & punishment are influenced significantly by the acceptance or rejection of capital punishment. **Effect:** Legislative changes may be swayed by such public opinion, which will lead to either the abolition or the reinforcement of the capital punishment laws, including provisions like that of section 303. **International law & treaties** **Cause:** The International Human Rights treaties, such as the International Covenant on Civil & Political Rights do advocate for the abolition of the death penalty. **Effect:** The countries which are signatories may feel pressured to reform their laws regarding capital punishment, also affecting how laws like section 303 are viewed & implemented. **Types / Kinds** Capital punishment can of certain types such as: - **Mandatory death penalty:** In certain jurisdictions, the death penalty is automatically imposed for certain specific crimes, with no discretion for judges. - **Discretionary death penalty:** There are many jurisdictions where the judges have the discretion to impose the death penalty based on the case specifics. - **Execution methods:** Various methods of execution are employed by different countries, which include hanging, lethal injection, and electrocution. **FORMS / MODES** **Forms of section 303 can be:** **Statutory form:** Section 303 in the I.P.C. is a specific legal provision which prescribes the death penalty for a murder committed by any person serving a life sentence. **Judicial interpretation:** Section 303 has been interpreted by the court in various cases, which leads to different applications based on judicial discretion. **MODES OF CAPITAL PUNISHMENT ARE** **Legal framework:** Capital punishments are operated within a legal framework which outlines the crimes punishable by death & the procedures for trials & sentencing. **Execution Methods:** Various methods are used to carry out capital punishment, which can include: - **Hanging:** This is traditionally used by India, along with other countries. - **Lethal Injection:** It is a common method adopted by the United States which involves a series of drugs administered to cause deaths. - **Electrocution:** It is an alternative to lethal injection which is used in many jurisdictions. **Procedural Modes:** It is defined as a process which leads to capital punishment & includes: **Trial Process:** It is the legal proceeding which determines the guilt & or the eligibility for the death penalty. **Sentencing Phase:** It is a separate phase in some jurisdictions where the judge decides on the death penalty. **Appeals Process:** The opportunities for the convicted person to appeal the sentence, can prolong the execution process. **ESSENTIALS / ELEMENTS / PRE-REQUISITES** **Essential & elements of section 303 are:** - **Existence of a life sentence:** The offender must be serving a life sentence for a previous conviction. It establishes the context under which the section applies. - **Commission of Murder:** The committed act must qualify as murder under the IPC. Intentional killing is also included in the definition of murder, which needs to be proven in court. - **Intent & Malice:** The offender must have the intention to kill or cause such bodily injury which is likely to cause death. **Pre-requisites for section 303 are** - **Previous Conviction:** There should be a record of a previous conviction which led to a life sentence. - **Sufficient evidence:** Due process must be followed & there should be adequate evidence to support the charge of murder. **Essentials & elements of Capital Punishment:** - It must be established by law, specifying the crimes punishable by death. - The crime should be classified as a Capital offence, typically involving severe harm or a threat to society. - The legal process must adhere to principles of due process, inclusive of fair trial rights. - There are many jurisdictions, where a separate sentencing phase determines whether or not the death penalty will be applied. **The prerequisites of capital punishment are:** - The individual must have been convicted of a crime qualifying for the death penalty under the applicable law. - The individuals should have the opportunity for appeals & legal challenges relating to the death sentences. - The death penalty sentences are often reviewed by the Higher Courts to ensure the legality & appropriateness of the sentence. **DEFENCES / EXCEPTIONS / EXCEPTIONS TO DEFENCES** - It can be argued by the accused that they didn’t have any intention to kill or cause such an injury that is likely to cause death. - The defence of self-defence or insanity can also be claimed by the accused if the act was done in that manner. **LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA** The certain legal provision & or the specification that is related to Section 303 is the definition of murder as it is provided in Section 299-300 of the Indian Penal Code & now Section 100 & 101 of the Bharatiya Nyay Sanhita, specifying what constitutes murder & how it is distinguished from culpable homicide & the legal provision & or the specification for that of the capital punishment are in the context of article 21 of the Constitution of India which has the implications for the capital punishments imposition, along with section 368 of the Cr.PC that gives the power to High Courts for the trials inclusive of capital punishment. **CASE LAWS / PRECEDENTS / JUDICIAL DEVELOPMENT OF THE CONCEPT** In **Bachan Singh Vs. State of Punjab** the Supreme Court had held up the constitutional validity of section 303 of the IPC further stating that it is not violative of article 21 of the Constitution of India if it is being applied legally. It was in this case that the court had established the principle that in the “rarest of the rare cases” only such death penalty shall be imposed or applied. This judgement also provided the judges with some guidelines to consider when deciding whether the death penalty needs to be imposed, including the circumstances of the crime, the character of the criminal & the impact it has on society. Simultaneously in **Macchi Singh Vs. The state of Punjab** again the validity of section 303 was upheld by the Supreme Court which provides for the death penalty for a convicted person in case of a murder if they had been convicted for the same previously. This judgement reiterated the “rarest of the rare cases” doctrine which was established in the case of Bacchan Singh. **INTERPRETATIONS / EXPLANATIONS** The interpretation of context can be that section 303 of the IPC provides a framework for the imposition of the death penalty on habitual offenders, but the application of which is a subject of judicial scrutiny, human rights considerations, public sentiments & the principles of justice. **DOCTRINES / THEORIES** - **Rarest of the rare case doctrine:** This doctrine was established in the case of Bachchan Singh which stipulates that the death penalty being imposed should only be in the rarest of the rare cases which means that the case is so heinous that it shakes the collective consciousness of the society. - **Retributive Justice theory:** This theory deals with the ‘righting of the balance’. If a criminal has done a wrong towards a person or property they need to be given a penalty in a manner which balances out the wrong done. E.g.- If a person has committed a murder, he can be delivered capital punishment to balance out the suffering caused to the victim & their family. - **Deterrence Theory:** It serves as a major tool in maintaining the general law & order in society. Criminal acts are penalized to deter individuals from repeating them or even entering into them in the first place. **MAXIMS / PRINCIPLES** The applicable maxim to the concept of Death Penalty is **“*Actus non facit reum, nisi mens sit rea*”** which translates to “an act doesn’t make one guilty unless the mind is also legally blameworthy”. **FUTURE IMPLICATIONS** - The current debates about the effectiveness of the death penalty may lead to some amendments in section 303 or may even result in its repeal. - Advocating for the abolishment of capital punishment globally may create pressure on India to reconsider its stance on such death penalty. - As the awareness of the public of criminal justice issues grows, societal attitudes towards capital punishment can shift potentially. **CONCLUSION & COMMENTS** To conclude though this section of capital punishment is somewhere being violative of the fundamental rights such as articles 14,19,20,21,22 that are enshrined & provided to every citizen of India through the Constitution of this very country. It can be an unending debate whether capital punishment should completely be abolished or should be used depending on the case if it falls in the category of heinous offences such as those murder, rape, terrorism or treason. In the end and as a personal opinion, it should be used depending on the case because if the person committing an offence of the same nature after the conviction for the same is indicative of the level of hatred one could possess, such hardcore criminals who in major cases have no shame for their act should be punished accordingly in such a manner so that such repeat offenders have some amount of shame & fear of their lives & that of the applicable law to set a precedent for the society. Lastly, it would be a suggestion that resources & efforts should be somewhat towards redirecting the crime prevention & rehabilitation of offenders. **REFERENCES** - **Books / Commentaries / Journals Referred** - Indian journal of criminal law - My 12th class legal studies book - **Online Articles / Sources Referred** - - [https://www.researchgate.net/publication/361025100\_A\_Study\_of\_Capital\_Punishment\_in\_India](https://www.researchgate.net/publication/361025100_A_Study_of_Capital_Punishment_in_India) - - https://lawctopus.com/clatalogue/clat-pg/case-analysis-bachan-singh-v-state-of-punjab/ - **Cases Referred** - 1980 AIR 473 - 1983 SCC 470 - **Statutes Referred** - Indian Penal Code of 1860 - Constitution of India,1950 - Criminal Procedure Code, 1973 **Categories:** Articles, Criminal Law --- ### [Victim Friendly Provision Under Pocso:- Principals And Cases Laws](https://lawfoyer.in/victim-friendly-provision-under-pocso-principals-and-cases-laws/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Name of Author- Chanchal Kumari Sharma, ICFAI University, Jaipur** **Edited by – Sulesh Choudhary** **INTRODUCTION** According to the All India Census 2011, children account for 39% of the population, Many of them are vulnerable to child sexual abuse (CSA). According to the data from the National Crime Records Bureau (NCRB), crime against minors increased from 21.1 to 28.9 from 2015 to 2017. Childhood is an influential moment that should be filled with protection, stability, and happiness, but for some children, the actuality is quite different. Children rely on grown-ups for their protection and supervision, yet they regularly fall victim to the abuse known as CSA without knowing it. They are the “most innocent and vulnerable casualties of exploitation” because of major barriers to justice, such as poverty, violence, discrimination, rigid communal institutions, and social prejudice. They encounter a range of challenges and are mistreated sexually, physically, intellectually, and enthusiastically from birth. Child abuse is a violation of a child’s fundamental rights that harms the child’s well-being. The Ministry of Women and Child Development advocated for the passing of the “Protection of Children from Sexual Offences (POCSO) Act, 2012” to adequately fight the heinous crimes of child sexual abuse and exploitation by establishing clearer and more stringent statutory criteria. The Protection of Children from Sexual Offences (POCSO) Act of 2012 was enacted to make it simpler to pass legislation protecting children from sexual offences. The Gender-Neutral POCSO Act promotes victim-friendly prosecution. The stipulation of this Act’s abetment provisions also applies to people who thorn children for sexual purposes. The Act includes several protections to ensure that the child victim is treated with dignity and is not subjected to additional suffering as a result of the pursuit of justice. The statue was created to support child victims and their rehabilitation. It highlights the need for victim care and rehabilitation, making the afflicted child’s journey to healing and normalcy a priority. Although the United Nations ratified the Convention on the Rights of the Child in 1989, offences against children were not addressed by legislation in India until 2012. It imposes severe penalties for committing acts against children, ranging from a minimum of 20 years in prison to the death penalty in cases of aggravated penetrative sexual assault. The Act was reviewed and updated in 2019 to include further severe punishments, as well as the death penalty, for sexual offences against children to discourage criminals and prevent similar crimes. ***Keywords: poison****, child-friendly law, child victim, victim-friendly, child protection, child welfare.* **MEANING, DEFINITION & EXPLANATION** The Protection of Children from Sexual Offences (POCSO) Act, validated in 2012, seeks to establish a regulatory framework for protecting children from ravishment, exploitation, and pornographic material. It defines a child as someone under the age of 18 and classifies a variety of offences, including invasive and non-invasive sexual assault and intimidation. The Act prioritizes a child-friendly legal process by establishing Special Courts for expedited trials and preserving confidentiality to preserve victims’ identities. It also requires rehabilitation and support services for child victims, demonstrating a dedication to their physical and psychological healing. **HISTORICAL BACKGROUND:-** The Protection of Children from Sexual Offences (POCSO) Act was validated in 2012 in response to India’s 1992 approval of the UN Convention on the Rights of the Child. The Act points to creating a comprehensive legislative framework for protecting minors from sexual offence and exploitation. Before the POCSO Act, legislation such as the Indian Penal Code (IPC) and the Juvenile Justice Act addressed sexual offences against minors, but they were insufficient to provide comprehensive protection. The Act was enacted in response to an alarming increase in sexual offences against children, to safeguard their safety and welfare. The POCSO Act elucidate a child as anyone under the age of 18, and it recognizes that sexual abuse can affect both girls and boys, regardless of gender. It categorizes different offences, including invasive and non-invasive sexual assault, intimidation, and child pornography, and imposes severe penalties on offenders. The Act prioritizes a child-friendly legal system, establishing Special Courts for expedited trials and preserving anonymity to safeguard victims’ identities. It also requires rehabilitation and support services for child victims, demonstrating a commitment to their physical and psychological healing. Key elements include required reporting of incidents, child identity protection, and victim rehabilitation assistance. The Act underlines India’s commitment to defending children’s rights and protecting them from sexual exploitation and abuse. **TYPES / KINDS OF VICTIM-FRIENDLY PROVISIONS** - Child-friendly courts - In-camera trials - Special prosecutors - Compensation for victims - Speedy trial provisions **VICTIM FRIENDLY PROVISION UNDER POCSO(PROTECTION OF CHILDREN FROM SEXUAL OFFENCES):-** The Protection of Children from Sexual Offences (POCSO) Act of 2012 incorporates several victim-friendly provisions designed to provide a child-friendly judicial process and reduce trauma for child sexual abuse survivors. These laws seek to provide a friendly and non-threatening atmosphere for child victims, encouraging reporting of offences and providing their approach to impartiality and rehabilitation. **Child-friendly reporting:** The Act authorizes the police to record the child’s statement at the child’s home or a location of the child’s choosing, in the company of the child’s parents or a trusted adult **Confidentiality:** The child’s identity is protected from public exposure at all stages of the legal process. The media is barred from publicizing the child’s identity. **Special courts:** The Act requires the foundation of Special Courts for the quick hearing of offences, with the entire hearing to be concluded within one year of taking cognizance of the offence **Child-friendly procedures:** discerning the gravity of the situation, the Act includes child-friendly methods for documenting evidence and conducting trials. The child’s testimony can be registered at home or a location of the child’s choosing, in the company of the child’s parents or a trusted adult. **Compensation**: The Act authorizes the payment of compensation to the child for relief and rehabilitation at various stages of the judicial procedure. **Rehabilitation**: The Act requires the construction of Special Juvenile Police Units and the appointment of Child Welfare Police Officers to handle cases in a child-friendly way and aid in the child’s rehabilitation. **Victim friendly Principal under poison act:-** - Within 24 hours of obtaining a report of child maltreatment or any related case, a police officer must notify the Child Welfare Committee. - To avoid reprimanding the teenagers, the police personnel who grasp the case must dress correctly when recording the child’s statement. - In the presence of the person the child trusts, the child’s affirmation of the crime must be registered. - Only the lady doctor, present in the presence of a person the child trusts, should inspect the child medically to gather forensic evidence. - Special courts have been established under this Act to hold trials quickly. - It is the responsibility of this court to keep the child’s identification a secret and to prevent the accused from seeing the youngster while the statement is being recorded. - The child can offer their evidence through video as well, and they won’t have to repeat it over and over. - It should be mentioned that the matter shouldn’t be delayed and should be resolved a year after it was reported. **LANDMARK CASES:-** **Facts**: The document is connected to the case of Nipun Saxena & Anr. v. Union of India & Ors. (Writ Petition (Civil) No. 565 of 2012), which was determined on December 11, 2018. The case concerns the identity protection of victims of sexual assaults under Section 228A of the Indian Penal Code (IPC) and Sections 23, 24, 25, 33, and 37 of the Protection of Children from Sexual Assaults (POCSO) Act of 2012. **Issue**:- - What is the scope of Section 228A of the IPC in terms of preserving the identity of victims of sexual crimes? - How should the requirements of the POCSO Act of 2012 be read to protect the identification of minor victims of sexual offences? - Does Section 228A(2)(c) of the IPC apply to young victims of sexual offences, or does the POCSO Act take precedence? - What is the meaning of the phrase “matter which may make known the identity of the person” in Section 228A of the IPC and “any other particulars” in Section 23(2) of the POCSO Act? **JUDGEMENT:** The Court ruled that Section 228A of the IPC bans not just the publication of the victim’s name, but also the revelation of any other information that could reveal the victim’s identity. The Court agreed with the Calcutta High Court’s directions in Bijoy v. State of West Bengal and directed the Chairpersons and Members of other High Court Juvenile Justice Committees to issue similar orders for the preservation of child victims’ identities under the POCSO Act. The Court ruled that where the victim is a kid, Section 228A(2)(c) of the IPC no longer applies due to the passage of the POCSO Act, which particularly addresses minors. The Court construed the wording “matter which may make known the identity of the person” and “any other particulars” broadly, ruling that the media cannot publish any information that could lead to the discovery of the victim’s identity. Overall, the decision underlines the need to preserve the identity and privacy of sexual assault victims, particularly minors, to prevent future harm and trauma. **CONCLUSION & COMMENTS :** In conclusion, the Protection of Children from Sexual Offences Act provides strong legal protection for children who are victims of sexual offences. This special law is a powerful weapon against perpetrators of sexual offences against children and punishes such perpetrators more severely poison is a comphrihrehensive law, which deals with cases related child but according to me it’s not a law whereas it is the friend of a child because it provides the solution of all the problems about whom the child cannot talk or speak someone .it also protect the dignity of a child, this law provides the special privilege of children. this is a completely child-oriented law. this law is also gender-neutral law. There is no difference between the girl and the boy. child is a child who is below the age of 18. **REFERENCES:-** **Books / Commentaries / Journals Referred** - Law of Protection of Children from Sexual Offences (POCSO) by Harsh Tikoo & Ravi B Wadhwa. **Online Articles / Sources Referred** - https://plutusias.com/pocso-act/ - https://childsafetyatwork.org/what-does-the-pocso-act-say/ - https://byjus.com/free-ias-prep/pocso-act/ - https://www.drishtiias.com/daily-updates/daily-news-analysis/pocso-act-3 - https://www.nextias.com/ca/current-affairs/19-11-2021/interpretation-of-the-pocso-act - https://www.drishtiias.com/daily-updates/daily-news-analysis/pocso-act-3 - https://plutusias.com/pocso-act/ - https://byjus.com/free-ias-prep/pocso-act/ - https://aishwaryasandeep.in/prime-feature-of-pocso-act/ - https://www.kamarajiasacademy.com/current-affairs/analysis-pocso-act - https://www.geeksforgeeks.org/protection-of-children-from-sexual-offences-act/ - https://vikaspedia.in/social-welfare/women-and-child-development/child-development-1/girl-child-welfare/scheme-for-care-and-support-to-victims-of-under-section-4-and-6-of-pocso-act-2012 - https://cdn1.byjus.com/wp-content/uploads/2021/02/POCSO-Act.pdf - https://byjus.com/free-ias-prep/pocso-act/ - https://www.advotalks.com/article/victim **Cases Referred** - Nipun Saxena & Anr. v. Union of India **Statutes Referred** - protection of children from sexual offences in 2012. - child rights act. **Categories:** Articles, Criminal Law --- ### [Powers and Duties of Director under Company Law](https://lawfoyer.in/powers-and-duties-of-director-under-company-law/) **Published:** September 6, 2024 **Author:** LawFoyer **Content:** **Name of Author- Anukriti Mathur, HPNLU** **Edited by – Sulesh Choudhary** **INTRODUCTION** The Company is considered as an artificial person who can own property, sue and can be sued but the collective body of individuals known as the Board of Directors conducts all activity on behalf of the company. The Board of Directors are vested with adequate power to act on behalf of the company and is the brains of the company. The Directors are defined as persons appointed to the Board of the company[\[1\]](#_ftn1). Indian law recognises various forms of directors including whole time, director non-executive directors, nominee directors and independent directors. The Whole Time Directors and the Managing Director are the individuals who are responsible for the day-to-day affairs of the company by their whole-time employment, with the company. The executive nominee and Independent directors are not concerned with the day-to-day activities and take part in board meetings and committee meetings, where the key corporate decisions are undertaken. [\[2\]](#_ftn2) Thus, the liabilities for the Whole-time Director, Managing Director and non-executive Director are different. The concept of officer-in-default is an English law concept borrowed from the English Companies Act 1948. The idea was to fix liability on officers and directors who oversee the management, for any contravention. The term officer-in-default includes whole-time director, key managerial personnel, such director(s) as specified by the board and director who had knowledge or participated in such wrongdoing and such contraventions had taken place with his/her consent or connivance. [\[3\]](#_ftn3) The liability of directors does not merely arise on account of holding the office but actual participation and express statute which punishes such contravention committed by the company. Sunil Bharti Mittal’s case provided for the director’s active role in the offence is a pre-requisite to hold them liable. The concept of vicarious liability on the director when a company is accused of wrongdoing.[\[4\]](#_ftn4) Thus, looking at the position of the director, the company law provides the director with certain powers and duties to perform its official duties. ***Keywords* *(Minimum 5)*:** Companies Act 2013, Directors, Powers of Directors, Duties of Director, Section 166, Section 179 **POWERS OF THE DIRECTORS** **General Powers Vested In Board** According to **Section 179** of the Company Act, 2013, the Board of Directors are vested with powers to perform acts and things which are authorised to be performed by the company.[\[5\]](#_ftn5) The section hereby draws a boundary wherein the director is restricted from performing any action which is inconsistent with enactment governing companies, memorandum and articles of association previously regulations made in general meetings, etc.[\[6\]](#_ftn6) The Power of directors is crucial to the company and when in control the director exercises complete power over the working of the company until removed from the position, this highlights the director’s autonomy over the company’s affairs and hence calls for restrictions. [\[7\]](#_ftn7) Section 179 (3) read with Rule 8 of Companies (Meeting of Board and its Power) Rules 2014, the power enshrined to directors shall be exercised, exclusively by passing of resolution, in Board Meetings: “ (a) asking for unpaid share money from shareholders; (b) sanction buying back of company’s securities issued (c) to issue securities, including debenture, whether in or outside India; (d) to borrow money; (e) to invest the funds of the company; (f) to grant loans or give guarantee or provide security in respect of loans; (g) to approve financial statements and the Board’s report; (h) to diversify the business of the company; (i) to approve amalgamation, merger or reconstruction; (j) to take over a company or acquire a controlling or substantial stake in another company; (k) any other matter which may be prescribed:”[\[8\]](#_ftn8) **Rule 8** Companies (Meeting of Board and its Power) Rules 2014, stipulates the following powers of directors - Making contributions to political parties - Matters related to appointment and removal of key managerial personnel (KMP) - Matters related to the appointment and removal of internal auditors and secretarial auditor Additionally, the Board is authorised by passing a resolution to delegate the financial powers including:- 1. borrowing monies, 2. invest the funds of the company and - grant loan, guarantee or provide security in respect of loan 1. to the following persons: - any committee constituted by two or more directors - the managing director - the manager - any other officer of the company - for Branch offices, the principal officer of the branch office, on conditions as may be specified [\[9\]](#_ftn9) ” **RESTRICTION ON THE POWER OF THE BOARD** **In General meetings shareholders** The law provides certain exceptional situations where the shareholder’s intervention is called for even subject to the competency of the general meeting in the matter - Misconduct by Directors The directors while making the decisions often conflict. While they are safeguarding the company’s interest often their interest arises.[\[10\]](#_ftn10) In this case, the director is the person who usually conducts litigation on behalf of the company and here their interest is in conflict thus they might not undertake the steps to redress the wrongdoing in the company. Here comes the role of the shareholders who may restrict the power of the board in such decisions[\[11\]](#_ftn11) - Incompetency of the board When the Board of Directors fails to show their fitness to exercise the duties enshrined to them by the Act, the Act empowers the shareholders by majority to act and perform said duties. The incompetence of the directory and the casual vacancy caused failure to form quorum new instances to allow Stakeholders to exercise the the Bothe ard.[\[12\]](#_ftn12) - Deadlock among the Directors Certain powers of the directors are inherited and essential. When the directors fail to show a willingness to act and exercise the above powers, it creates a deadlock.[\[13\]](#_ftn13). The Shareholders in case of such deadlock may exercise the powers of the Board in addition to the appointment of additional directors[\[14\]](#_ftn14) - Residuary Powers of the Board The powers of the director are conferred by the Companies Act, and Charter of the company. When excess powers are required or any action otherwise is taken the same is allotted by passing of an ordinary resolution by the shareholders.[\[15\]](#_ftn15) **In Board meeting** It is pertinent here to note that Section 179(3) provides that the above financial powers including the borrowing of monies, making of loans etc shall not be deemed under the meaning of Section 179 of the companies act when such deposits of money from the public repayable on demand or otherwise is done by a banking company in ordinary course of business. Additionally, the borrowings by a banking company from another banking company, RBI, SBI or any other bank established by or under any statute. However, the above powers are unaffected by the right of the company to impose restrictions and conditions on the exercise of power by the board, in general meetings The above financial power may be exercised by section 8 companies by circulation instead of at a meeting[\[16\]](#_ftn16) The second proviso of section 179 (3) provides that the Board of specified IFSC public companies may exercise these financial powers either by board meetings or circulation among the directors” Section 180 imposes restrictions on the power of the board of directors of a public company and any subsidiary thereof. The following decisions taken by the board during its exercise of power can be undertaken with the consent of the resolution passed in the general meeting. - Sale, lease or otherwise disposal of whole or substantially the whole of the undertaking where the company owns more than one undertaking. Here the undertaking implies the investment of the company exceeding 20% of its net worth as per the audited balance sheet of the preceding financial year or the undertaking has generated 20% of the total income of the company during the previous financial year by the audited balance sheet. - To invest otherwise in trust securities where the amount of the compensation received by the company is a result of merger or amalgamation - Borrowing money where the money borrowed together with the money already borrowed will exceed the aggregate paid-up share capital and free reserves. Here the temporary loans obtained by the company from its bankers in the ordinary course of business are excluded. - To remit or give time for repayment for any debt from a director.[\[17\]](#_ftn17)The Board is refrain to perform any act or powers which are exclusively vested in the hands of members and are to be exercised in General Meetings. [\[18\]](#_ftn18)” **Appointment of the Nomination and Remuneration Committee** The Nomination and Remuneration Committee is constituted under Section 178 by the board of directors of every listed company. The Committee consists of three or more non-executive directors, of which one-half should be independent. The major function of the Nomination and Remuneration Committee is to identify the persons who are qualified to become directors, and who may be appointed to senior management by the criteria set. The committee often engage itself in the formulation of criteria determining the qualification, positive attributes and independence of a director. They also recommend the board regarding the policies related to remuneration for directors, key managerial persons and other employees.[\[19\]](#_ftn19) **Appointment of the Stakeholders Relationship Committee** Further, the board are also obligated to constitute a Stakeholders Relationship Committee under Section 178.[\[20\]](#_ftn20) **Power to contribute to Bona fide charitable trust and other Funds** Section 181 the Bona fide charitable trust and other Funds to receive contributions from the company subject to the approval of the Board. To contribute to any Bonafide charitable or other funds prior permission of the company in a general meeting is required. Additionally, any amount in the aggregation of five per cent of the annual net profit for three immediately preceding years can not be contributed **Power to contribute to the political parties** The Companies Amendment Act 1985 provided for the provisions for the companies to make contributions to the political parties and for political purposes. Although the Government companies and the companies who have not completed three years of their incorporation are still not allowed to make any political contribution Under section 182. [\[21\]](#_ftn21) The companies are eligible to make political contributions provided that the contribution must not exceed 7.5 per cent of the company’s net profit during three immediate preceding Financial Years. Such contribution should also get sanctioned by a resolution of the company’s board and be sufficiently authorized. Such contributions must appear in the annual books and the failure to account for the account. Such political contribution may result in a penalty of up to five per cent of the amount so contributed and an imprisonment of up to six months.[\[22\]](#_ftn22) ” **Power to contribute to the National Defense Fund** The Board of Directors or any person authorized to exercise the power of the Board are eligible to contribute to the National Defense Fund under Section 183. There is no capping limit on the amount of Contribution made to the National Defense Fund or any other fund approved by the Central Government for national security. Profit and Loss Statements of the Company must show such contributions made in the said Financial year.[\[23\]](#_ftn23) **DUTIES OF THE DIRECTORS** In their report, the JJ Irani Committee on the lines of English law, suggested that the duties of the director are of a wide spectrum. Thus, the list of duties of the director must be inclusive and not exhaustive. In this regard, section 166 provides that the director has a fiduciary duty, duty of care, duty to comply with Laws and duty to act in the interest of the stakeholders of the company. To sum up, the director has a duty of care, skill and diligence along with fiduciary duties. **Fiduciary Duty of the Director** The fiduciary duty includes the duty of the director, where he has to act in good faith to promote the company’s objective and for the advantage of its members, as a whole. They are required to act in the best interest of the company, its employees and shareholders. - Breach of trust The director’s duty was not initially mentioned in statutes but was developed by case laws. The obligation of greatest good faith and endeavours to benefit the company are pillars of the duties of directors.[\[24\]](#_ftn24)The case of Aviling Barford Ltda is a landmark in the determination of the duty of utmost trust of the director wherein he knew about the sale at a lower price. The director was treated as a constructive trustee for the illegally gained profits.[\[25\]](#_ftn25) - Directors’ profit Being in a fiduciary position, the directors are often prohibited from making any personal profit during company transactions. The Court, in the case of Albion Steel and Wire Co v Martin, accounted the director for profits earned in the sale of the company’s stock at a lower price, when the director had such knowledge. - Doctrine of Corporate Opportunity The Doctrine of Corporate Opportunity denotes the actions of directors towards the benefit of a company when any business opportunity arises. The director is held accountable for any gain earned due to his fiduciary position. - Competition by directors, With time, Courts have observed that merely holding interest or directorship in rival concern doesn’t attract a breach of duty. Howeve,r the use of business assets for the benefit of rival concern makes the director accountable for loss, if any, occurred. The use of business assets includes the use of business connections, Goodwill, trade assets and a list of customers of the company in question with rivals. The corporate entities to eradicate the problem of competition directors provide restraining use of such skills for the benefit of rival concerns. The Non-Compete Clause and Non-Disclosure Clauses of the contract for directors are a safeguard against the above problem. A full-time director by its very nature of employment is confined from joining any other company. - Misuse of corporate information The directors with the very nature of their working in the company are often exposed to confidential information. Any exploitation of unpublished and confidential information belonging to the company is considered a breach of duty and the company is eligible to inquire about the director in question and to make good. any loss, if any, is incurred. It is here noted that the knowledge or the information made by the company is considered as a property of the company. Any loss financial or otherwise, incurred because of leakage of such information is considered as a loss to the Company. The turnovers, profit margin, list of customers, and business plan are considered corporate information and any personal use of such knowledge is equivalent to being dishonest to the company. Information of such kind is restricted by the use of Injunction. The Securities and Exchange Board of India (SEBI) have formulated the regulation for insider trading to prevent and punish the use of price-sensitive, unpublished insider information in dealing with the company securities in the market.[\[26\]](#_ftn26) **Directors duty of care, diligence and skills** Under **Section** **166(3),** the director while he exercises his duty needs to be due and reasonable, careful in the exercise of skills and diligence as per his independent judgment. The **failure to exercise due diligence and care** is often equated with failure of corporate governance. It is believed that a director during his course of business must act in the best interest of the company, with utmost faith, diligence, care and skill in all circumstances. While acting on behalf of the company, he must undertake actions to preserve assets for the business and promote the objectives behind the formation of said company. The law provides for penalties for default, misfeasance, breach of duty and breach of trust.[\[27\]](#_ftn27) While we discuss the care and diligence exercised by the director in the conduct of his business, it is necessary to point out that the **standard and the degree of care and skill** are paramount. The Courts define the word skill and the degree of care as reasonably expected from a person by his knowledge and expertise. The standard of care demanded from a director is reasonably the business knowledge from such managers[\[28\]](#_ftn28) **Duty to attend board meetings.** The directors are bound to attend the board meetings and other general meetings, where the matters of the company are discussed. The nature of the work of directors is intermittent and can be performed periodically. Although the directors are not bound to attend all meetings but are under obligations to attend the meetings, whenever the circumstances reasonably need them. Section 167(1)(b) considers that if a director reasonably absentees himself from all meetings within the last 12 months, without obtaining a leave of non-appearance, the position is considered vacant.[\[29\]](#_ftn29) **Duty to not delegate the office** Section 166(6) says that the nature of the director’s job is skills and the business shall not be assigned to anyone. Such assignment of office, powers and duties of a director may be considered void.[\[30\]](#_ftn30) **CONCLUSION & COMMENTS** The directors are considered the brains of the company and are responsible for all actions taken by the company. The directors control and manage the affairs of the company. The powers and duties of directors are multifaceted for governance in the company. Their decisions pave the path for the success of the company. They formulate plans and policies to fulfil organizational objectives. The directors share a fiduciary relationship with the company and are responsible for overseeing of company’s management and detecting potential market risks along with an attempt to neutralize it. They are legally bound to safeguard the interest of the company and related stakeholders and comply with ethics and codes governing the conduct of business. Ultimately, the directors make decisions related to the company’s finances and day-to-day activities. They review the financial statements, and transactions and ensure proper allocation of resources in the company. They are the face of the company who foster relationships and maintain the goodwill of the company. They deal with outsiders including shareholders, regulators and other stakeholders. They play a crucial role in incorporating good corporate culture and standards of governance. The failure to comply with the duties and misuse of powers entrusted to directors shall attract penalties as prescribed by the law in force. **REFERENCES** **Books / Commentaries / Journals Referred** - Avtar Singh, Company Law (2009). - QC, V., Drake, D., Richardson, G., QC, D., & Collingwood, T., 2018. Directors’ Duties. *Minority Shareholders*. . - Quinn, J., 2019. The Sustainable Corporate Objective: Rethinking Directors’ Duties. *Sustainability*. https://doi.org/10.3390/su11236734. **Online Articles / Sources Referred** - DIVISION OF POWERS BETWEEN SHAREHOLDERS AND DIRECTORS, The Lawyers & Jurists (2020), https://www.lawyersnjurists.com/article/division-of-powers-between-shareholders-and-directors/ (last visited Aug 5, 2024). - Bharti, R. (2020, August 4). *Company: Introduction, evolution, features, classification, advantages*. Essays, Research Papers and Articles on Business Management. https://www.businessmanagementideas.com/company-2/company-introduction/21328 - Rachit Garg, A company is an artificial person created by law, iPleaders (2022), https://blog.ipleaders.in/a-company-is-an-artificial-person-created-by-law/ (last visited Aug 5, 2024). - Bharti, R. (2020, August 4). *Company: Introduction, evolution, features, classification, advantages*. Essays, Research Papers and Articles on Business Management. https://www.businessmanagementideas.com/company-2/company-introduction/21328 **Cases Referred** - Sunil Bharti Mittal v. Central Bureau of Investigation and Ors., (2015) 4 SCC 609. - Prasanna Chandra Sen v. Union of India (1990) 67 Comp Cas 87(CAL) - Pull Brook v. Richmond Consolidated Mining Company (1878) LR 9 Ch D 610 - Escort Limited v. Union of India (1984) 3 COMP LJ 387 - Satyacharan law v. Rameshwar Prasad Major (1950) 20 COMP CAS 39 - BL Vishwakarma v. Tiffins Baryt asbestos (P) Limited AIR 1953 Mad520 - Barron v. Potter (1914) 1 Ch 895 - Bamford v. Bamford 1970 Ch 212 - Joint Receivers and Managers of Niltan Carson Ltd v Hawthorne \[1988\] BCLC 298 **Statutes Referred** - The Companies Amendment Act 1985 - Companies (Meeting of Board and its Power) Rules 2014 - Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2015 - Companies Act, 2013 **ENDNOTES** [\[1\]](#_ftnref1) “Section 2(34) of Companies Act 2013” [\[2\]](#_ftnref2) *Concept of corporate personality*. (n.d.). Finology. Retrieved August 24, 2024, from https://blog.finology.in/Legal-news/What-is-a-Concept-of-Corporate-Personality [\[3\]](#_ftnref3) “Section 2(60) of Companies Act 2013” [\[4\]](#_ftnref4) Sunil Bharti Mittal v. Central Bureau of Investigation and Ors., (2015) 4 SCC 609. [\[5\]](#_ftnref5) Prasanna Chandra Sen v. Union of India (1990) 67 Comp Cas 87(CAL) [\[6\]](#_ftnref6) Pull Brook v. Richmond Consolidated Mining Company (1878) LR 9 Ch D 610 [\[7\]](#_ftnref7) legal Service India. (n.d.). *Corporate personality*. Retrieved August 24, 2024, from https://www.legalservicesindia.com/article/173/Corporate-Personality.html [\[8\]](#_ftnref8) “Section 179 of Companies Act 2013” [\[9\]](#_ftnref9) “Section 179 (3) of Companies Act 2013” [\[10\]](#_ftnref10) Escort Limited v. Union of India (1984) 3 COMP LJ 387 [\[11\]](#_ftnref11) Satyacharan law v. Rameshwar Prasad Manjoria (1950) 20 COMP CAS 39 [\[12\]](#_ftnref12) BL Vishwakarma v. Tiffins Baryt Asbestos (P) Limited AIR 1953 Mad520 [\[13\]](#_ftnref13) Barron v. Potter (1914) 1 Ch 895 [\[14\]](#_ftnref14) DIVISION OF POWERS BETWEEN SHAREHOLDERS AND DIRECTORS, The Lawyers & Jurists (2020), https://www.lawyersnjurists.com/article/division-of-powers-between-shareholders-and-directors/ (last visited Aug 5, 2024). [\[15\]](#_ftnref15) Bamford v. Bamford 1970 Ch 212 [\[16\]](#_ftnref16) Exemption notification dated 05.06.2015 [\[17\]](#_ftnref17) Joint Receivers and Managers of Niltan Carson Ltd v Hawthorne \[1988\] BCLC 298 [\[18\]](#_ftnref18) “Section 180 of Companies Act 2013” [\[19\]](#_ftnref19) “Section 178 of Companies Act 2013” [\[20\]](#_ftnref20) Ibid [\[21\]](#_ftnref21) Bharti, R. (2020, August 4). *Company: Introduction, evolution, features, classification, advantages*. Essays, Research Papers and Articles on Business Management. https://www.businessmanagementideas.com/company-2/company-introduction/21328 [\[22\]](#_ftnref22) “Section 182 of Companies Act 2013” [\[23\]](#_ftnref23) “Section 183 of Companies Act 2013” [\[24\]](#_ftnref24) Garg, R. (2023, June 21). Breach of a company director’s duties. iPleaders. https://blog.ipleaders.in/breach-of-a-company-directors-duties/ [\[25\]](#_ftnref25)Aveling Barford Ltd v Perion Ltd, 1989 BCLC 626 [\[26\]](#_ftnref26) Avtar Singh, Company Law (2009). [\[27\]](#_ftnref27) Rachit Garg, A company is an artificial person created by law, iPleaders (2022), https://blog.ipleaders.in/a-company-is-an-artificial-person-created-by-law/ (last visited Aug 5, 2024). [\[28\]](#_ftnref28) Kaushika U, Features of a Joint Stock Company, Economics Discussion (2019), https://www.economicsdiscussion.net/joint-stock-company/features-of-a-joint-stock-company/31491 (last visited Aug 5, 2024). [\[29\]](#_ftnref29) QC, V., Drake, D., Richardson, G., QC, D., & Collingwood, T., 2018. Directors’ Duties. *Minority Shareholders*. https://doi.org/10.5040/9781784514396.chapter-014. [\[30\]](#_ftnref30) Quinn, J., 2019. The Sustainable Corporate Objective: Rethinking Directors’ Duties. *Sustainability*. https://doi.org/10.3390/su11236734. **Categories:** Articles, Company Law --- ### [Procedure of Filling Consumer Complaint Under CPA, 2019](https://lawfoyer.in/procedure-of-filling-consumer-complaint-under-cpa-2019/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Name of Author- Arohi Bhardwaj, University Five Year Law College, Rajasthan** **Edited by – Sulesh Choudhary** **INTRODUCTION** *“A Consumer is the most important visitor on our premises. He is not dependent on us, we are on him. He is not an interruption to our work; he is the purpose of it. We are not doing a favour to a consumer by giving him an opportunity. He is doing us a favour by giving us the opportunity to serve him”- Mahatma Gandhi* The Consumer Protection Act has emerged as a crucial element in social and economic spheres, particularly in an era where the average citizen often faces confusion and vulnerability. The present world is characterized by the rapid advancement of technology, globalization, and modernization, where the Consumer Protection Act stands tall against all odds and shields it by its regulation, fighting for the common man’s rights and ensuring that the marketplace is fair for all. As necessities and requirements change, global trade and markets also evolve. The bond between consumer and producer has grown into a positive and effective mechanism to safeguard the interest of consumers. The act serves as a regulatory landscape designed to address a global range of issues related to consumer goods and services ensuring fairness, transparency, and accountability in economic transactions. As stated by the act individual who feels not satisfied or deceived after purchasing goods or services can seek help from Consumer Redressal Agencies to redeem compensation. *“Consumers should not tolerate the incontinence or wrong done to them and file appropriate complaints to ensure the same is not repeated by the unscrupulous traders to them and others in the society” says Vijay Kumar member of the District Consumer Redressal Commission.* ***Keywords*:** Consumer Protection Act 2019, Central Consumer Protection Authority, Consumer Rights, Consumer Dispute Redressal Commission, Consumer Awareness **MEANING, DEFINITION & EXPLANATION** A consumer is an individual or a group who intends to obtain goods and services from the producer and purchases goods and services for his benefit. He is the sole decision maker on whether to buy unless he is forced to do so. Consumers have access to basic goods and services consisting of food, clothing, education, health care, institutions, shelter, and sanitation. The Consumer needs to be protected from the depths of deceptive advertising to the heights of product safety. Consumer Protection Act 2019 is a guardian angel that regulates us, is vigilant and is always ready to put down those who would seek to mislead, misguide, and harm our citizens. The term “consumer protection” has undergone several changes with growing modification of the common law doctrine of “Caveat emptor” i.e. let the buyer beware which permits the seller not to burden his liability as it shifts the responsibility on the buyer. The Consumer Protection Act 2019 is a landmark piece of legislation over its predecessor, the Consumer Protection Act 1986. It regulates new provisions to address issues like e-commerce, product liability, and direct selling. The act aims to further empower consumers by enhancing their ability to seek effective redressal, building a consumer-centric environment, ensuring that consumers receive fair treatment and redressal, and protecting their rights. Consumer Protection Act is not just a legal provision or concept that needs to be followed; instead, it’s a movement, a revolution that should not be suppressed, and come into force. **HISTORICAL BACKGROUND** India’s movement towards consumer protection started with the enactment of the Consumer Protection Act of 1986. The act aimed to protect its consumer’s rights against defective goods and services, unfair trade practices, misleading advertisements, etc. It established consumer redressal agencies which came to be known as a three-tier system, i.e. district, state, and national consumer dispute redressal forum. Over the past year, the marketplace and global trades have reshaped with technological advancements, leading to changes in business practices and introducing the rise of digital practices. These highlight the gaps and limitations of the 1986 Act. Moreover, issues like the rise in digital transactions, incomplete redressal mechanisms, consumer safety from hazardous activity, and the need to protect consumer’s interests. After seeing all the shortcomings the government recognized the need for an adequate update. The Indian government started revising the existing consumer protection framework. The main purpose is to address the challenges and improve their redressal conduct. The Ministry of Consumer Affairs, food, and Public Administration revised the act which involved the conduct of consultations with various stakeholders, committees, and organizations or legal representatives. The Consumer Protection Act Bill 2019 was introduced in the Lok Sabah in December 2019. It aimed at succeeding the Consumer Protection Act of 1986. The bill went through conflicting debates and discussions in both houses of parliament and was given presidential assent on August 9, 2019. The act of 2019 provides the provisional establishment of the central consumer protection authority with legitimate power to take action against unauthorized activities and come up with an effective mechanism. **WHO CAN FILE A COMPLAINT?** Under **section 2(7)** of the Consumer Protection Act 2019, the word “consumer” means any person who- buys any goods for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is made with the approval of such person but does not include a person who obtains such goods resale or for any commercial purpose.[\[1\]](#_ftn1) It includes- consumers, voluntary consumer association registers under any law, central or state government, and one or more consumers having the same interest. **ELIGIBILITY CRITERIA TO FILE COMPLAINTS** By meeting the following eligibility criteria consumers can file complaints under the Consumer Protection Act 2019. - *The complainant must be a consumer*, the consumer who filed the complaint must have purchased the goods and services for personal purposes. - *The value of goods and services must exceed rs.1 crore,* when the value of goods and services exceeds rs.1 crore then he can file a complaint before the national redressal agency or commission. - *The complainant must have suffered a loss or harm, and* the goods and services must inflict a hazardous act on the consumer from which the consumer suffered harm or damage. - *The complainant must be authorized to file a complaint,* in this case, a consumer must be sound or able to file a complaint. - *The complaint must be filed within two years,* the consumer must file a complaint within two years from the date of purchase of goods and services. **TYPES OF COMPLAINTS** In terms of **sections 2(6)** of the Consumer Protections Act 2019, the word “complaint” means any allegations in writing, made by a complainant[\[2\]](#_ftn2). - *Complaints related to Unfair trade practices*: According to **section 2(47)[\[3\]](#_ftn3)** the term unfair trade practices refers to practices that adopt any deceptive or unethical methods for the sale or supply of goods and services. It uses various fraudulent, illusive, or immoral methods to obtain business. It includes false advertising, tied selling, deceptive pricing, misrepresentation, and non-compliance with manufacturing standards; for example, bait and switch occurs when a company advertises a product at a low price but then tries to sell the consumer a more expensive product. Such measures are considered unlawful by the authorities under consumer protection laws. Consumers who have been harmed or suffered loss by unfair trade practices can seek redressal by suing or filing compensatory or punitive damages. Here, Plaintiff need not prove their intent of filing a complaint, showing the act was unfair and hazardous is enough. Hence the burden of proof is not on the plaintiff. - *Complaints related to Defective goods and services*: Under **section 2(10)** of the Consumer Protection Act 2019 the term defect means any fault, lack of perfection, or shortcomings in terms of quality, quantity, purity, potency, or standard which is required to be maintained under any law for the time being in force would amount to a defect in the particular commodity[\[4\]](#_ftn4). Defects in goods can also be found when there is any express or implied contract in respect of goods with the trader claimed by him. For example, a pressure cooker bursts and inflicts injury to the consumer. It was held to be a manufacturing defect. - Whereas services come under **section 2(42)** of the Consumer Protection Act 2019 means services of any description made available to potential users[\[5\]](#_ftn5). Service comes in banking, financing, insurance, transport, telecom, housing, and boarding. It does not include the rendering of any services free of charge or under a contract of personal services. The main purpose of widening the scope is that services not only include the day-to-day buying of goods but even including such facilities which are otherwise not commercial but professional or service. **FILING A COMPLAINT UNDER THE CONSUMER PROTECTION ACT 2019** Consumer dispute redressal agencies established to fulfil the purpose of this act include the following agencies: - “District Commission” established by the state government - “State Commission” established by the state government and - A National Consumer Dispute Redressal Commission was established by the central government by notification[\[6\]](#_ftn6). **Chapter IV** of the Consumer Protection Act 2019 promotes three-tier consumer dispute redressal agencies. The Act 2019 establishes a mechanism for consumers to file complaints and obtain relief in the event of grievances associated with defective goods or services. It empowers consumers to claim their rights and get compensated for any loss that has occurred because of the low quality of products or services. Moreover, it manages to hold business as a support service that empowers the consumer and ensures the quick resolution of their grievance without necessitating physical presence. It serves as a deterrent effect that discourages businesses from engaging in unfair trade practices. Educates consumers, teaches them their rights, and gives them the courage to demand standards. To initiate the process of filing a complaint, the very first step taken by the consumer at the first instance would be to determine which redressal agency would have appropriate jurisdiction, both monetarily and geographically. Thereafter, the consumer will have to draft the complaint. Under S**ection 35[\[7\]](#_ftn7)** of CPA 2019, “a complaint about any goods or service or agreed to be sold may be filed with the district commission by the consumers who allege unfair trade practice or any relevant reason.” Such complaints have to include the name and agency address of the complainant and the opposite party as well as a description of the goods and services suffered from the defect or deficiency. The complaint needs to be registered with the concerned agency, accompanied by the prescribed filing fee. The concerned authority will hear the complaint and pass an order, binding upon both parties. Aggrieved parties may appeal to the next higher agency or the Supreme Court within 30 days of the order in cases of dissatisfaction. Another important thing to be noted here is that the complaint must be filed within two years from the date of cause of action. The entire process of complaint filing is very consumer-friendly, with a structured framework for redressal. It also provides central consumer protection authority for better protection, promotion, and enforcement of consumer rights. **REMEDIES AVAILABLE** Under the Consumer Protection Act 2019, there are a variety of redress mechanisms available to consumers who suffered losses from defective goods or services. One important relief measure would be the right to a refund of money that was paid for such defective goods and services, in addition to that, replacement or even repair of the defective goods and services may be offered. He may be awarded compensation in cases of loss or injuries suffered by the consumer. It further empowers a consumer commission to direct the removal of deficiencies in goods and services and to stop unfair trade practices. The act provides a grant of punitive damages in grave cases of misconduct to deter the perpetrators from repeating the same. Besides the consumer is also awarded the refund of the expenses incurred and the payment of interest in the amount awarded to consumers. As stated the Consumer Protection Act 2019 set up a three-tier consumer dispute redressal mechanism, where district, state, and national commissions are constituted with an empowered relief to the consumers. The powers and functions are defined in such a way that consumers will have proper remedies available. In short decent and rigorous enforcement of these remedies shall go a long way in protecting consumer rights and helping to make trade practices transparent and fair. **RELEVANT CASE LAWS** **Case 1**– **Kailash Chand Gupta v. State Commission, Consumer Forum, U.P. Lucknow, and others (1997)[\[8\]](#_ftn8)** In this case, Kailash Chand Gupta had filed a complaint before the consumer forum, U.P. Lucknow, against a builder alleging a deficiency in service. The complaint was dismissed by the consumer forum. Gupta has approached the state commission consumer forum, U.P. Lucknow. The state commission dismissed his appeal. Gupta filed a revision petition before the NCDRC (National Consumer Dispute Redressal Commission), alleging deficiency in service by the state commission and claiming competition. **Issue** Did the consumer forum have jurisdiction to entertain the complaint that Kailash Chand Gupta filed against the state commission consumer forum, U.P. Lucknow, and others for deficiency in service and claiming compensation? **Judgment** The NCDRC ensures that the consumer undoubtedly erred in dismissing Gupta’s complaint and that the state commission also committed an error of law in dismissing his appeal. The NCDRC and the consumer forum observed a clear deficiency of service by the builder, and the state commission failed to provide justice to Gupta. The NCDRC ordered the builder to pay Gupta compensation of Rs. 2, 50,000 with interest and directed the state commission to pay Rs. 25,000 for its failure to administer justice. **Case 2**– **Ethiopian Airlines v. Ganesh Narain Saboo[\[9\]](#_ftn9)** In this case, the respondent booked a consignment of reactive dyes with the appellant Ethiopian Airlines to be delivered at Dares Salaam Tanzania on 30.9.1992. The airway bills were duly issued by the appellant from its office in Bombay at the Taj Mahal Hotel for the said consignment. According to the respondent, there was a gross delay in the arrival of the consignment at the destination, which led to the deterioration of the goods. **Issue** - Whether proceedings before the consumer forum suits? **Judgment** In this case, the appeal has preferred the appeal against the judgment of the national commission, which set the order of the state commission and held that Section 86 of the CPC was not applicable since the dispute case fell under the provisions of the act. Here, parties raised questions about whether proceedings before the consumer forum were suits. The court held that term suits included all proceedings of a judicial or quasi-judicial nature in aggrieved parties were adjudicated before an impartial forum. The consumer forum’s proceedings fall within the scope of the term suit act, which enumerates the provisions of the CPC that apply to proceedings before the consumer forum; therefore, the consumer does not fall under section 86 of the CPC. **CONCLUSION& COMMENTS** In sum, there is an effective framework under the Consumer Protection Act 2019 for imposing liability on manufacturers and sellers of defective products. Consumers can file complaints under the act and claim compensation for losses suffered on account of defective or hazardous products while encouraging the manufacturer to take all necessary precautions regarding consumer safety and quality. With heightened consciousness among consumers about their rights, there can be an expected increase in product liability complaints, resulting in a much safer and more responsible marketplace. It will be possible to empower consumers to ask for better products and services through the effective enforcement of CPA 2019. Its key effective implementation also ensures consumer interest, and protection, and fosters a culture of safety and accountability among companies. **REFERENCES** **Books / Commentaries / Journals Referred** - “Consumer Protection Law” by Dr. S.C. Tripathi - “Consumer disputes redressal- law and procedure” by S.K. Goyal **Online Articles / Sources Referred** - - A guide to filing a consumer complaint in India by Legal Service India **Cases Referred** - AIR 1997 AII 312 (DB) - AIR 2011 SC 3495 **Statutes Referred** - Section 35 of CPA 2019 - Section 2(42) of CPA 2019 - Section 2(47) of CPA 2019 - Section 2(10) of CPA 2019 - Consumer protection (consumer disputes redressal commission) rules 2020 **ENDNOTES** [\[1\]](#_ftnref1) The Consumer Protection Act, 2019 sec. 2(7) [\[2\]](#_ftnref2) The Consumer Protection Act, 2019 sec. 2(6) [\[3\]](#_ftnref3) The Consumer Protection Act, 2019 sec. 2(47) [\[4\]](#_ftnref4) The Consumer Protection Act, 2019 sec. 2(10) [\[5\]](#_ftnref5) The Consumer Protection Act, 2019 sec. 2(42) [\[6\]](#_ftnref6) The Consumer Protection Act, 2019 ch.V [\[7\]](#_ftnref7) The Consumer Protection Act, 2019 sec 35 [\[8\]](#_ftnref8) AIR 1997 AII 312 (DB) [\[9\]](#_ftnref9) AIR 2011 SC 3495 **Categories:** Articles, Consumer Protection Act --- ### [Practically Using Concepts of Contract Law in Drafting Business Contracts: Provisions, Doctrines and Important clauses](https://lawfoyer.in/practically-using-concepts-of-contract-law-in-drafting-business-contracts-provisions-doctrines-and-important-clauses/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Name of Author- Lalidhambha.S, Government Law College, Dharmapuri** **Edited by – Sulesh Choudhary** **INTRODUCTION** According to the **Indian Contract Act 1872, section 2(h)** the agreement which is enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. A contract is a consensual act and the parties are free to settle any terms as they please. This freedom lies in choosing the party with whom to contract, in the freedom to fix the terms of the contract, in excluding or limiting the liability for damages or limiting the remedies available for the breach etc. However, this freedom is subject to many exceptions. The theory of formation of contract is generally the analysis of the formation into offer and acceptance is however a **“working method”** which enables us, in doubtful cases, to ascertain whether a contract has been concluded and as such is a useful tool in the common law**.[\[1\]](#_ftn1)** ***Keywords*** - Privity of contract - Doctrine of Consideration - Theory of formation of contract - Proposal and Promise - Legal drafting **PRIVITY OF CONTRACT** The general rule in common law is that no one but the parties to a contract can be entitled under it, or bound by it. This also seems to be the import of **section 2(a), (b), (c),** and **(e)** which contemplates only the two parties to an agreement.[**\[2\]**](#_ftn2) This principle that only the parties to a contract are entitled to sue or be sued upon it is known as the “privity of contract”. It lies at the heart of the difference between rights under contract which are in ***personam*** and proprietary rights which are ***in rem*.[\[3\]](#_ftn3)** **Organizing the Contract Structure:** The structure of our contract plays a prominent role in the propagation of a predetermined meaning and in to description of the key sections. Typically, a business contract includes the following: **Definitions and Interpretations:** First of all, it is very essential to define any key terms or phrases that are used throughout the contract. As it prevents confusion and ensures that everyone acts in the same manner. **Scope of their work:** Following that, we have to make sure that each party’s obligations, utility and timelines must be made in detail to avoid the misunderstandings in future. **Terms and Conditions:** Includes certain clauses such as terms of payments, rights of termination, mechanisms regarding dispute resolution, the burden of confidentiality, and other terms related to the business arrangement. **Miscellaneous Provisions:** Cover additional topics such as governing law, force majeure events, amendments, and waivers. These provisions provide further guidance and protect the parties’ interests in unforeseen circumstances. Generally, Business Contracts are considered to be an adhesive from which business transactions are retained together by ensuring clarity and legal enforceability. It is an agreement bound to pursue the rights, obligations and expectations of all the parties. **CRITICAL ELEMENTS OF A BUSINESS CONTRACT:** **Offer and Acceptance:** A person may ask for some information or supply some information and invite the other to make an offer or make a definite offer. To ascertain whether a particular statement amounts to an offer or an invitation to offer, the test would be the intention with which such statement is made**.[\[4\]](#_ftn4)** **Consideration:** Usually, each party enters into a contract to obtain consideration promised by the other (the seller wanting to realize the price of his goods and the buyer desiring to get goods of value) but that may not always be the case. Here detriment to the promise suffices even if the promisor does not benefit**.[\[5\]](#_ftn5)** **Mutual consent:** Where there is no consent or no real and certain object of consent there can be no contract at all. The consent must fulfil and accept the rights and obligations mentioned in the contract**.[\[6\]](#_ftn6)** **Legally competent parties:** Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. **Legal purpose:** Contracts forbidden by regulations under the Defence of India Act are illegal. Agreements in contravention of the Jute Control Order and the Oil Seeds Order are void, as the contract must bear a legal purpose and should not be immoral or against public policy. **ACCEPTANCE BY PERFORMING CONDITIONS OR RECEIVING CONSIDERATION:** The acceptance of an offer by conduct would be effective only when such act is done with the “intention of accepting the offer”. The nature of acceptance required in such cases was considered by the English Court of Appeal in **Carlill v. Carbolic Smoke Ball Co.[\[7\]](#_ftn7)** The only previous definition of acceptance in the act is that a proposal is said to be accepted when the person to whom it is made “signifies his assent thereto” **\[s.2(b)\].** This has to be read with the provisions as to communication in **sections 4 and 7**. The present section appears, in its first branch, to recognise the fact that in the cases in which the offeror invites acceptance by the doing of an act**.[\[8\]](#_ftn8)** **PROOFREADING AND EDITING FOR CLARITY & ACCURACY:** Once the contract has been drafted, it’s time to rephrase and copyedit it punctiliously. Errors or discrepancies can undermine the validity and enforceability of the contract. Consider the following steps: **Read it aloud:** By reading the contract aloud it may help us to avoid inept phrasing, fused sentences, and grammatical errors. **Check for clarity:** Assures that every provision is manifest, evident and amply illustrated with the betrothed meaning. If any sections are in upheaval or need further clarification may revise them accordingly. **Review for accuracy:** Usually by examining it again all information such as names, dates, and amounts, is accurate and consistent throughout the contract. **TYPES OF CONTRACTS IN BUSINESS LAW** In a broad sense, the type of contract in business law can be divided into three categories. They are: - Contracts are made based on the mode of formation - Contracts are made based on performance - Contracts are made based on enforcement/validity **Based on the mode of formation** - Express contract - Implied contract - Quasi-contract - E- contracts **Based on Performance** - Executed contracts - Executory contract - Partly Executed and partly executory contract - Unilateral contract - Bilateral contract **Based on Enforceability/ validity** - Valid contract - Void contract - Voidable contract - Illegal contract - Unenforceable contract **LEGAL DRAFTING OF BUSINESS CONTRACTS** Drafting a business contract requires caution thought of the particular agreements that should be incorporated to safeguard the interests of all gatherings included. Here is an overall rule for the lawful drafting of a business contract: **Title and Presentation:** Start with a unique title expressing the date of the agreement. Alao befitting with the legitimate names and other necessary details. **Definitions:** Mark the characters & terms utilized through the agreement to stay away from errors. **Statement of Agreement:** Expresses the reason for the agreement and the shared arrangement of the gatherings. For instance, “This understanding is placed into by and between \[Party A\] and \[Party B\].” **Terms and conditions:** Includes the particular agreements that frame the freedoms as well as certain limitations of each party. It may cover: - Payment terms (such as estimating, invoicing and payment plan) - Expectations or administrations to be given - Deadlines and execution plans - Termination clauses - Query plan systems - Privacy and non-revelation plans - Protected innovation freedoms - Reimbursement and responsibility arrangements - Force majeure provisos (for unanticipated occasions) - Overseeing regulation and purview **Descriptions and Guarantees:** Include any promises or guarantees made by either party concerning the administrations or products being given. **Obligations and Commitments:** Include any promises or guarantees made by either party concerning the administrations or products being given. **Payment terms:** Describe the payment structure, including the sum, due dates and any late instalment punishments or interest. **Terms and Extinction:** Determine the contract’s length and the circumstances under which it tends to be ended, for example, for a break of agreement or shared arrangement. **Confidentiality:** Address the treatment of classified data, and lay out the commitments of the two players to safeguard delicate information. **Question goal:** Portray how debates will be settled, whether through exchange, intervention, assertion or suit. **Administering Regulation:** Recognize the purview whose regulations will administer the contract. **Entire Understanding and Changes:** Express that the contract addresses the whole arrangement between the gatherings and that any corrections should be made recorded as a hard copy and endorsed by the two players. **Signatures:** Give space to the marks of approved agents from each party, alongside the date of execution. **Notarization:** Contingent upon the purview and the idea of the agreement, it could be prudent to have the contract authorized. **Lawful Survey:** It is energetically prescribed to have the contract checked on by legitimate guidance to guarantee that it follows applicable regulations and safeguards the interests, everything being equal. **IMPORTANT LEGAL PROVISIONS OF CONTRACTS REQUIRED TO BE IN WRITING** The following Acts require contracts to be in writing: - The Apprentices Act 1961, as of section 4 - The Arbitration and Conciliation Act 1996, as of section 7; arbitration agreements Indian Contract Act 1872, section 25(1) agreement without consideration between near relations - The Companies Act 1956 - The Income Tax Act 1961 - The Limitation Act 1963, section 18, acknowledgement to pay a debt - The Transfer of Property Act, 1882 **Interpretations / Explanations** **As of the law related to the Registration, Section 17** of the **Indian Registration Act XVI** of **1908** specifics documents which are required to be registered and **Section 49** of the same act provides that no document is required by **S.17** to be registered by the provisions of that act. Such document shall also not be received as evidence of the transaction. However, under **S.49** it can be admitted in evidence for certain other purposes. Registration of a document may also be required under other statutes. **DOCTRINES** **Doctrine of Consideration** The doctrine of consideration limits the freedom of individuals to make binding promises only those promises which are supported by consideration are legally binding, others are not even if the promisor intends to bind himself to the promise. This requirement is unique to the common law as it is not a requirement in the civil law systems and its utility has been called into question by scholars. It is however so firmly entrenched in the common law **(combe v. combe)[\[9\]](#_ftn9)** that despite sporadic attacks, it does not appear that its position as the **most fundamental limitation on the enforcement of promises** is likely to be disturbed**.[\[10\]](#_ftn10)** **Doctrine of Accord and Satisfaction** Accord and satisfaction refer to the agreement (accord) between two contracting parties to accept alternate performance to discharge a pre-existing duty between them and the subsequent performance (satisfaction) of that agreement. The new performance is called accord. According to the doctrine of accord and satisfaction, the two parties who were in contract further agreed that they could make further changes (addition or deletion) to the existing contract. These changes are agreed upon by both parties. In this instance, the non-offending party has the right to sue under either the original contract or the accord agreement. **(P.K. Ramaiah and Company v. Chairman and Managing Director, National Thermal Power Corporation (1944)** where the creditor accepted the final measurements of the work completed and issued a receipt stating that the amount had been received in the full and final settlement, there was accord and satisfaction and the creditor was not entitled to claim the balance**.[\[11\]](#_ftn11)** **Doctrine of Waiver** A waiver is a legally binding provision where either party in a contract agrees to voluntarily forfeit a claim without the other party being liable, Waivers are commonly seen during settlement talks, when one party may be willing to pay out a slightly higher award as long as the other person, often a claimant, agrees to sign a waiver relinquishing their right to further legal action. **PRINCIPLES** **Principles of Business Efficacy** The principle of business efficacy is normally invoked to read a term in an agreement or contract to achieve the result or the consequence intended by the parties acting as prudent businessmen. Business efficacy means the power to produce intended results.[\[12\]](#_ftn12) **(Satya Jain v. Anis Ahmed Rushdie)** **Principle of Indemnification clauses** The indemnification clause is one of the most important parts of your business contract. Sometimes, it can be extracted into its contract, the indemnity agreement. It shows what the indemnified party is for certain expenses and costs. As such, you should consider our tips for successful contract negotiation before writing your business agreement. **Principle of force majeure clause** Force majeure removes liability for unavoidable and unexpected events that are beyond either party’s control. These include - Acts of God like hurricanes, tsunamis, typhoons, explosions - War, explosions, strikes, lockdown, lockups - Government actions limiting or prohibiting any party from performing its contractual obligations **Principle of confidentiality** Confidentiality also known as a non-disclosure clause, is vital to protecting your trade secrets, clients’ confidential information, sales strategies and anything else that you want to keep from the public. Sometimes this is expanded upon further in an NDA. **Principle of Termination** A termination clause defines how the parties can terminate their agreement and establishes how each party can terminate within a specified notice period. It’s included in every business contract template and generally doesn’t require too much customization. **CONCLUSION** To draft an effective and enforceable business contracts, you need to include several contract clauses without using these important clauses in your business contracts, you may find yourself facing exorbitant legal fees, legal battles that could last for years, and intellectual property theft. A very drafted contract can forestall false impressions, safeguard interests, and add to a straightforward and proficient business environment. **REFERENCES** **Books / Commentaries / Journals Referred** - The Indian Contract Act – Sir Dinshaw Fardunji Mulla - The Law of a Contract – Avatar Singh - Law of Contracts – Krishna Nair - Contracts – Pollock and Mulla **Online Articles / Sources Referred** - - - - - - **Cases Referred** - Kepong Prospecting Ltd. V. Schmidt, (1968) AC 810. - Sudhanshu Mohan Koley v. Mohan Adak (1975) ILR 1Cal 182 - Spencer v. Harding, (1870) 5 CP 561 - Carlill v. Carbolic Smoke Ball Co., (1893) 1 QB 256 - combe v. combe \[1951\] 1 All ER 767 - Pillans v. Van Mierop \[1765\] 3 Burr, 1664per MANSFIELD C - K. Ramaiah and Company v. Chairman and Managing Director, National Thermal Power Corporation (1944) - Satya Jain v. Anis Ahmed Rushdie, (2013) 8 SCC **Statutes Referred** - The Apprentices Act 1961, as of section 4 - The Arbitration and Conciliation Act 1996, as of section 7; arbitration agreements - The Indian Contract Act 1872, section 25(1) agreement without consideration between near relations - The Companies Act 1956 - The Income Tax Act 1961 - The Limitation Act 1963, section 18, acknowledgement to pay a debt - The Transfer of Property Act, 1882 **ENDNOTES** [](#_ftnref1) \[1\] The Indian Contract Act – Sir Dinshaw Fardunji Mulla [\[2\]](#_ftnref2) Kepong Prospecting Ltd. V. Schmidt, (1968) AC 810 [\[3\]](#_ftnref3) The Indian Contract Act – Sir Dinshaw Fardunji Mulla [\[4\]](#_ftnref4) Spencer v. Harding, (1870) 5CP 561 [\[5\]](#_ftnref5) Sudhanshu Mohan Koley v. Mathura Mohan Adak. (1975) ILR 1 Cal 182 [\[6\]](#_ftnref6) Kessowji Tulsidas v. Harijivan Mulji, (1887) ILR 11 Bom 566. [\[7\]](#_ftnref7) Carlill v. Carbolic Smoke Ball Co., (1893) 1QB 256. [\[8\]](#_ftnref8) The Law of a Contract – Avatar Singh [\[9\]](#_ftnref9) combe v. combe \[1951\] 1 All ER 767 [\[10\]](#_ftnref10) Pillans v. Van Mierop \[1765\] 3 Burr 1664, per MANSFIELD C [\[11\]](#_ftnref11) P.K. Ramaiah and Company v. Chairman and Managing Director, National Thermal Power Corporation (1944) [\[12\]](#_ftnref12) Satya Jain v. Anis Ahmed Rushdie, (2013) 8 SCC **Categories:** Articles, Contract Law --- ### [QUASI CONTRACT UNDER INDIAN CONTRACT ACT](https://lawfoyer.in/quasi-contract-under-indian-contract-act/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Author: Harsita Karki, Vasudev College of Law, Haldwani, Kumaon University, Nainital, Uttarakhand** **Edited By: Ritesh Singh Shekhawat, MJRPU, Jaipur** **INTRODUCTION** There is a Latin maxim from Roman law, ***“Nemo debit locupletari ex alien bacteria”*** which states that from one person’s suffering another person should not be benefitted unfairly. That can be said in this way no one can grow rich from another one’s pain.[\[1\]](#_ftn1) In the Indian Contract Act, a contract is said to be formed when two parties form an agreement with all the valid conditions given under the Contract Act and perform their obligations and duties. In a normal contract, one party becomes liable to perform the obligation only when there exists a valid contract and in this when one party breaches the contract it will be liable to compensate for the damage to another party. But sometimes when there is no valid contract exists but the law considers the whole circumstances as a Contract then it is called a contract. These are not actual contracts and did not originate from the agreement between parties. On the contrary; they are one-of-a-kind legal duties recognized only for avoidance of unjust enrichment. For example, the law does provide for circumstances where one party can unjustly benefit at the expense of another even though there is no agreement. Quasi-contracts are a legal framework in The Indian Contract Act, of 1872 (Sections 68 to 72). Implied contracts which now come under the category of quasi-contacts are an essential feature in Indian Contract Law. However, this article delves at length into legal provisions related to quasi-contracts and major case laws there along with the relevant doctrines of quasi-contracts as well as remedies available in such cases. The exploration will also help us understand why there is a requirement for quasi-contracts, the topic of nature, and the principles on which they are based Introduction to Quasi Contracts. **KEYWORDS –** Quasi-contract, Contract law, Parties, Roman law, Obligation **FEATURES OF QUASI-CONTRACT** - It is called semi and Constructive Contract as all the essential elements are not present in this Contract. - It is based on the principle of Equity it ensures that no one should be deprived of justice and injustice should not be done only because there are missing elements of the valid contract.[\[2\]](#_ftn2) - Rather being arising from an agreement, these contracts are imposed by the Court of law. - It is not based on the offer and acceptance rule. - This contract came into effect after the obligation had been performed by one party. **PROVISIONS RELATED TO QUASI-CONTRACTS IN THE INDIAN CONTRACT ACT** Quasi-contracts are not real contracts but seem like real contracts, as obligations on the parties are not created by the parties themselves but put upon by the courts on the parties. In the Indian Contract Act, quasi-contracts are not mentioned expressly but Chapter 5 impliedly mentions the provisions related to quasi-contracts. Sections 68 to 72 explain the nature of the Quasi contract. **Chapter 5 – Of Certain Relations Resembling Those Created by Contract** **Section 68– Deals with the claim of money for providing necessities to a minor or incapable person. [\[3\]](#_ftn3)** - This section explains that if any person has provided the basic necessities of life to incapable and minor to someone who is unable to fulfill the basic needs of his life**.** And if the act done by the person is in good faith then he has a right to get the money back. For example, he can reimburse the money from the minor’s property when he attains the majority (if the minor has some property). - Necessaries include the fundamental things of life like food, Accommodation, Clothes, Education, Medicine, and marriage. These are important things for one’s survival and on which existence or quality of life is based. **Section 11[\[4\]](#_ftn4) of the Indian Contract Act** provides for the competency of entering into the contract where – - Minor is someone who is below 18 years of age - An incapable/ Unsound person is one who is not in a state of making any wise and legal decision and who is not in sound person, in this case unsoundness of a person can last till his life or for some years of his life in which he cannot be qualified for entering into a legally bind contract. But after the over of the person’s unsoundness then he can be qualified as competent for contract. - EXAMPLE – ‘A’ is the neighbor of ‘B’, who is a minor with no support, So A provides necessities to B that can be suitable to his condition in life. Here A is entitled to be reimbursed from B’s property. **Section 69–Payment made by an interested person. [\[5\]](#_ftn5)** - This section explains when a person is lawfully bound to pay the money and due to some reason, he is not able to pay and another person pays on his behalf due to some interest on the good. then the person who had paid is entitled to be reimbursed by the other. - Example – ‘A’ lives with his family in rent on ‘B’ house and B is out of town for some reason in that time course electricity bill arrives at the house which B used to submit all the time but due to his absence A pays the bill because he is living in his house but A is entitled to get that money back from B. **Section 70– Obligation to pay non-gratuitous Act[\[6\]](#_ftn6)** - This section explains that if any person does something for someone without having any agreement or a contract involved and the person enjoys the benefits of the things done, he will become bound to pay the compensation to the person who is doing the thing for him. Though the work is done here is about having consideration. - Things must be done in a lawful way - Work must be done with the intention of consideration means non- gratuitous work. - The other person must have enjoyed the benefit of the work. **Section 71 – Responsibility of Finder of Goods.[\[7\]](#_ftn7)** - Whenever any person finds a good that does not belong to him take that good along with himself and take care as it would do with his own good. In this, the finder of goods will come in the position of bailee and try to find and return the goods to the real owner. - In this situation finder of goods has various duties which he must perform like as taking adequate care of the goods, trying his best to find the real owner of the goods, must returning the goods to a real manner in good condition and lawful manner. - And if the finder has invested some money of his own for keeping the goods in better condition, he is entitled to get his money reimbursed from the owner. **Section 72– Payment of Delivery via Mistake or Coercion.[\[8\]](#_ftn8)** - This section deals with the situation whenever money or anything is delivered to the person to whom that does not belong either by mistake or in coercion, it must be returned to the real owner. If he cannot return the goods to the owner then he will pay the value amount of the goods. - Example – if the delivery of ‘X’ order reaches his neighbor at ‘Y’ place by mistake of the delivery agent then Y will return or repay the real owner of the goods. **DOCTRINES RELATED TO THE QUASI-CONTRACT** **Doctrine of Unjust Enrichment –** This doctrine simply explains that if any individual benefits from someone else money or if he has enjoyed someone else goods and another person suffers due to this then the person enjoying the benefits must reimburse with the amount value. **The doctrine of Quantum Merit** –is a Latin phrase that means as much as earned. This doctrine deals with the value of the work done must be given. It arises in the situation when one party has performed its obligation and another party is not performing his due obligations then he can be sued for compensation for his due diligence. **The doctrine of good faith-** in a contract parties have some obligations and duties that they must perform, this doctrine simply states that parties must work in good faith and perform their duties honestly without the intention of doing fraud. Parties must abide by the rules of the contract. **CASE LAWS RELATED TO QUASI-CONTRACT** **Damodar Mudaliar vs Secretary of State for India 1894[\[9\]](#_ftn9)** In this case, a tank was owned by both the government and a zamindar but the zamindar didn’t contribute to the repair of the tank and was done by the government solely. So after the repair work of the tank government sued the zamindar for the expense that came from the repair. The court held that as the government did not do the work gratuitously and lawfully completed its side of the work so zamindar is liable to pay compensation for which he enjoys the benefits. **Kunwarlal Daryavsingh vs Surajmal Makhanlal[\[10\]](#_ftn10) –** In this case, a house and necessities were provided to a minor by his neighbor and later court decided all the expenses made by the neighbor were recoverable. **Ameen Trading Co vs Bank of Baroda[\[11\]](#_ftn11) –** This bank mistakenly transferred the amount of rupees 50,000 to another party firm’s account and the court has decided that the act done was a mistake and the party cannot enjoy that payment and has to return the money to the bank **CONCLUSION & COMMENTS** In the Indian Contract Act, Quasi-contracts protect the party from any losses suffered due to the act of another party. It prevents parties from taking unjust enjoyment at the expense of another person’s loss. These contracts are imposed by the court, not by the parties themselves which makes the obligation legally binding upon them. That’s why these are not called real contracts but constructive contracts. This contract works on the principle of Equity and justice which ensures that justice should be given to all and no one takes advantage of another situation. Part 5 of the contract Act provides sections 68 to 72 that explain the quasi-contract more briefly. These kinds of contracts are necessary for society which protects them from any harm and monetary losses without being in any contractual relation with anyone. **REFERENCES** **Online Articles / Sources Referred** - Sehanawaz, “The Indian Contract Act 1872” Ugc (VCU Jaipur. Rajasthan, 2023) available at: https://deb.ugc.ac.in/Uploads/SelfLearning/HEI-Exempted-U-0748/HEI-Exempted-U-0748\_SelfLearning\_20231026135504.pdf (last visited August 5, 2024). - Essential elements of a Valid Contract, available at (last visited on August 7, 2024) **Cases Referred** - Damodara Mudaliar And Anr. vs Secretary Of State For India on 18 October 1894, (1895)ILR 18MAD88 - Kunwarlal Daryavsingh vs Surajmal Makhanlal And Ors. on 14 July, 1961, AIR1963MP58, AIR 1963 - Ameen trading co vs bank of Baroda \[Civil Appeal No. 363 of 2022\] **Statutes Referred** - Contract Act, 1872, s. 68 - Indian Contract Act, 1872, s. 11 - Indian Contract Act, 1872, s. 69 - Indian Contract Act, 1872, s. 70 - Indian Contract Act, 1872, s. 71 - Indian Contract Act, 1872, s. 72 [\[1\]](#_ftnref1) Mr. Sehanawaz, “The Indian Contract Act 1872” Ugc (VCU Jaipur. Rajasthan, 2023) available at: https://deb.ugc.ac.in/Uploads/SelfLearning/HEI-Exempted-U-0748/HEI-Exempted-U-0748\_SelfLearning\_20231026135504.pdf (last visited August 5, 2024). [\[2\]](#_ftnref2) Essential elements of a Valid Contract, available at (last visited on August 7, 2024) [\[3\]](#_ftnref3) Indian Contract Act, 1872, s. 68 [\[4\]](#_ftnref4) Indian Contract Act, 1872, s. 11 [\[5\]](#_ftnref5) Indian Contract Act, 1872, s. 69 [\[6\]](#_ftnref6) Indian Contract Act, 1872, s. 70 [\[7\]](#_ftnref7) Indian Contract Act, 1872, s. 71 [\[8\]](#_ftnref8) Indian Contract Act, 1872, s. 72 [\[9\]](#_ftnref9) *Damodara Mudaliar And Anr. vs Secretary Of State For India* on 18 October, 1894, (1895)ILR 18MAD88 [\[10\]](#_ftnref10) *Kunwarlal Daryavsingh vs Surajmal Makhanlal And Ors*. on 14 July, 1961, AIR1963MP58, AIR 1963 [\[11\]](#_ftnref11) *Ameen trading co vs bank of Baroda* \[Civil Appeal No. 363 of 2022\] **Categories:** Articles, Contract Law --- ### [ARTICLE 14: EQUALITY BEFORE LAW, EQUAL PROTECTION OF LAW AND DICEY’S RULE OF LAW](https://lawfoyer.in/article-14-equality-before-law-equal-protection-of-law-and-diceys-rule-of-law/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Author: SADHVIKA.S, GOVERNMENT LAW COLLEGE, TRICHIRAPALLI** **Edited By: Ritesh Singh Shekhawat, MJRPU, Jaipur** **INTRODUCTION** Art[\[1\]](#_ftn1).14 to 18 of the constitution guarantees the right to equality to every citizen of India. Art.14 embodies the general principles of equality before the law and prohibits unreasonable discrimination between persons. Art. 14 embodies the idea of equality expressed in the Preamble. Equality is considered to be fundamental in the formulation of any policy by the state and it can be seen in Art.38,39,39-A,43, and 46 of the Constitution embedded in part IV[\[2\]](#_ftn2) of the Constitution. The Rule of Law embodied in Art. 14 is the basic feature of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Art.368 of the Constitution[\[3\]](#_ftn3) “ *The aim of having fundamental rights declare that certain elementary rights such as the right to life, liberty, freedom of speech freedom of should be regarded as inviolable under all conditions and that the shifting majority in legislature of the country should not have a free hand in interfering with these fundamental rights[**\[4\]**](#_ftn4)”.* **HISTORY OF ARTICLE 14** The Constitution of India contains a long list of fundamental rights in Part III[\[5\]](#_ftn5). This part of the Constitution is considered the Magna Carta of India. In 1215, the English people exacted an assurance from King John for the respect of the then-ancient liberties. This is the first written document relating to the fundamental rights of citizens. Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man and the citizens of France, the Americans incorporated the Bill of Rights in their Constitution. The framers took inspiration from this and incorporated a full chapter in the Constitution dealing with fundamental rights. **NEED FOR THE FUNDAMENTAL RIGHTS** Fundamental rights were deemed essential to protect the rights and liberties of the people against the encroachment of the Power delegated by them to the Government. “ *There are limitations upon all the powers of the Government, legislative as well as executive and they are essential for the preservation of public and private rights, notwithstanding the representative character of the political instruments[**\[6\]**](#_ftn6).”* In *Maneka Gandhi vs. UOI[**\[7\]**](#_ftn7),* the SC observed that “ These fundamental rights represent the basic values cherished by the people of India since the Vedic times and they are calculated to protect the dignity of the individual and create conditions times in which every human being can develop his personality to the fullest extent. They weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the state not to encroach on individual liberty in its various dimensions”. **SUB-HEADING** **Two expressions under ART.14** ART.14 declares that “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. ART. 14 uses two expressions “equality before the law” and “equal protection of the law”. Equality before the law is a somewhat negative concept and Equal protection of the law is considered to be a positive concept. However, the common idea is that both express the equality concept. “ *The second expression is a corollary of the first and it is difficult to imagine a situation in which the violation of the equal protection of laws will not be the violation of the equality before law. Thus, in substance, the two expressions mean the same thing”[**\[8\]**](#_ftn8).* **Equality before the law and absolute equality** The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve it. It is a concept implying the absence of any special positions among humans based on caste, color, sex, age, birth, creed or not to favor any particular section of the society or person and also to ensure that equality is served to all the individuals and ordinary law of the land. **Equal protection of the laws** The guarantee of Equal protection of laws is similar to one embodied in the 14th Amendment to the American Constitution[\[9\]](#_ftn9). It only means that all persons similarly circumstanced shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the same situation, and there should be no discrimination between one person and another. Thus, the rule is that *Like should be treated as alike and not that unlike should be treated alike.* **Rule of law** The guarantee of equality before the law is an aspect of what Dicey calls the ‘*Rule of law’* in *England.* It means that no man is above the law and that every person, whatever his rank or conditions, is subject to the jurisdiction of ordinary courts. Dicey writes “ *Every official from Prime Minister down to constables or a collector of taxes is under the same responsibility for every act done without legal jurisdiction as any other citizens”.* **Professor Dicey gave three meanings of the Rule of Law thus-** Absence of Arbitrary power or supremacy of the law- It means the absolute supremacy of law as opposed to the arbitrary power of the Government. Equality before the law- This exactly means that *“ Nobody is above the law and all are equal before the law”*. Every individual in society must be treated equally without any kind of discrimination or special status. The constitution is the result of the ordinary law of the land. It can be said that the first and second points are suitable for the Indian system but the third aspect of Dicey’s rule doesn’t apply to the Indian system as the source of rights of individuals is the Constitution of India. In Justice K. Puttaswamy vs. UOI[\[10\]](#_ftn10), “ *It was viewed by the SC as the fundamental rights guaranteed by the constitution are inalienable human rights which get recognition in the constitution”.* **Exceptions to the Rule of Law** - ‘Equality before the law’ doesn’t mean that the rule ‘powers of the private citizens are the same as the powers of the public officials. Generally, the people with authority are provided with powers, but this doesn’t mean that all private people can exercise their powers in terms of equality. - The rule of law doesn’t prevent certain classes of persons from being subject to special rules. - Ministers and other executive bodies are given very statutes discretionary powers by the statutes. - Certain members of society are governed by special rules in their professions. Such classes of people are treated differently from ordinary citizens. **LIMITATIONS OF EFFECTIVENESS OF ART.14** The constitution itself contains provisions which, under certain circumstances, limit the effectiveness of Art.14- - The scope of the right to equality under Art.14 has been considerably restricted by the 42nd Amendment Act,1976. In *Sanjeev Coke Mfg. co. vs. Bharat Cooking Coal Ltd,* “ where Art. 31C comes in, Art. 14 goes out”[\[11\]](#_ftn11). - 359(1) provides that if the President of India issues an order, where a Proclamation of Emergency is in operation, enforcement of Art. 14 may be suspended for the period during which the Proclamation is in force. - Under Art.361, the President and the Governors are exempted from any criminal proceedings during the tenure of their office. - Under International Law, foreign sovereigns and ambassadors enjoy full immunity from any judicial process. This is also available to enemy aliens for acts of war. **TEST OF REASONABLE CLASSIFICATION** The Equal protection of the law doesn’t mean that all the laws should be general. The law cannot be the same for all people. It does not mean that every law must be universal, as people differ by nature, attainment, or circumstances. In the *Chiranjit Lal vs. UOI[**\[12\]**](#_ftn12)* case, the court upheld that “*The varying needs of different classes of persons often require separate treatment”.* Thus, Art.14 forbids the class- legislation and it does not forbid the reasonable classification. The classification must not be ‘*arbitrary, artificial or evasive’* but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation[\[13\]](#_ftn13). - Classification to be reasonable must fulfill the following two conditions:- - The classification must be founded on an intelligible *differentia* that distinguishes persons or things that are grouped from others left out of the group, - The *differentia* must have a rational relation to the object sought to be achieved by the Act[\[14\]](#_ftn14). What is necessary is that there must be a *nexus* between the basis of classification and the object of the Act which makes the classification. **CONCLUSION & COMMENTS** In *Menaka Gandhi vs. UOI[**\[15\]**](#_ftn15),* The court held that “ *Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned with the traditional and doctrinaire limits”.* The society is composed of unequals and a welfare state has to strive by both executive and legislative action to help the less fortunate and to improve their conditions so that social and economic inequality in society may be bridged. The doctrine of classification evolved to the legislation of state action in or to weaker sections of the society or some such segments of the society in need of succor. **REFERENCES** **Cases Referred** - Indira Nehru Gandhi vs. Raj Narain, AIR 1975 SC 2299. - K. Gopalan vs. State of Madras, AIR 1950 SC 27. - Hartado vs. people of California,28 Led 232, per Mathew, J. - Maneka Gandhi vs. UOI, AIR 1978 SC 597 at p.619. - State of West Bengal vs. Anwar Ali Sarkar AIR 1952 SC 75. - Puttaswamy vs. UOI, AIR 2017 SC 4161. - Sanjeev Coke Mfg. co. vs. Bharat Cooking Coal Ltd,1983 1 SCC 147 - Chiranjit Lal vs. Union of India, AIR 1951 SC 41. - C. Cooper vs. Union of India, AIR 1970 SC 564. - Thimmappa vs. Chairman. Central Board of Directors, SBI, AIR 2001SC 467. **Statutes Referred** - Constitution of India, 1950. - Fourteenth Amendment to the United States Constitution. **Books Referred** - Pandey, J.N., Srivastava, S.S., 2014. Constitutional Law of India. [\[1\]](#_ftnref1) Article of Constitution of India,1950. [\[2\]](#_ftnref2) Directive principles of policy(part IV of the constitution) [\[3\]](#_ftnref3) Indira Nehru Gandhi vs. Raj Narain, AIR 1975 SC 2299 [\[4\]](#_ftnref4) A.K. Gopalan vs. State of Madras, AIR 1950 SC 27 [\[5\]](#_ftnref5) Fundamental Rights (part III of the Constitution) [\[6\]](#_ftnref6) Hartado vs. people of California,28 Led 232, per Mathew, J. [\[7\]](#_ftnref7) Maneka Gandhi vs. UOI, AIR 1978 SC 597 at p.619 [\[8\]](#_ftnref8) State of West Bengal vs. Anwar Ali Sarkar AIR 1952 SC 75. [\[9\]](#_ftnref9) “ Nor shall any state – deny to any person equal protection of laws” [\[10\]](#_ftnref10)K. Puttaswamy vs. UOI, AIR 2017 SC 4161. [\[11\]](#_ftnref11) Sanjeev coke Mfg. co. vs. Bharat cooking coal Ltd,1983 1 SCC 147 [\[12\]](#_ftnref12) Chiranjit Lal vs. Union of India, AIR 1951 SC 41. [\[13\]](#_ftnref13) R. C. Cooper vs. Union of India, AIR 1970 SC 564 [\[14\]](#_ftnref14) K. Thimmappa vs. Chairman. Central Board of Directors, SBI, AIR 2001SC 467. [\[15\]](#_ftnref15) Menaka Gandhi vs. UOI, AIR 1978 SC 597 **Categories:** Articles, Constitutional Law --- ### [Jolly George Verghese vs State Bank of Cochin](https://lawfoyer.in/jolly-george-verghese-vs-state-bank-of-cochin/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Name of Author-Riya Kore, DES Shri Navalmal Firodia Law College** **Edited by – Sulesh Choudhary** **ABSTRACT / HEADNOTE** In this case, Jolly George Verghese vs State Bank of Cochin, the petitioner is Jolly George Verghese. He borrowed a loan from Respondent Bank for his property. Later on, the time for its repayment and the petitioner could not repay the debts, a warrant of his arrest was issued. Here it may be questioned whether the detention of any debtor is prudent under Article 11 of the International Covenant on Civil and Political Rights. The judgment of this case was delivered by Justice Krishna Iyer. This is a landmark case of public international. The court states that to arrest a debtor for debt recovery without investing whether the non-payment is because of inability or bad intention is unconstitutional. The court said only default in payment of debts is insufficient there should be bad faith or malice intention at the time of default in payment of loan amount. **Keywords:** *Article 11, Indian constitution, International Covenant on Civil and Political Rights (ICCPR), Supreme Court, Section 51, Civil Procedure Code, Debt recovery, Article 21* **CASE DETAILS** ***i)**Judgement Cause Title / Case Name*** Jolly George Verghese vs state bank of cochin ***ii)**Petitioner*** Jolly George Verghese ***iii)**Respondent*** Bank of Cochin ***iv)**Judgement Date*** February 4, 1980 ***v)**Court*** Supreme Court of India ***vi)**Quorum / Constitution of Bench*** 2 Judges ***vii)**Author / Name of Judges*** V.R. Krishna Iyer and R.S. Pathak ***viii)**Citation*** 1980 AIR 470, 1980 SCR (2) 913, 1980 SCC (2) 360 ***ix)**Legal Provisions Involved*** 1\. Section 51 of the Code of Civil Procedure (CPC) 2\. Article 21 of the Constitution 3\. Article 11 of the International Covenant on Civil and Political Rights **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case *Jolly George Varghese vs State Bank of Cochin* was judged by the Supreme Court of India. The court referred to section 51 of the civil procedure code, which states that a debtor cannot be imprisoned unless the court is convinced that the debtor is likely to abscond, has committed bad faith, has the means to pay the decree, or is bound in a fiduciary capacity to account for the sum. The court is required to record reasons for detention in writing. Here Article 21 of the Indian constitution states that every individual has the right to live a life of personal freedom unless and until it is established by law. In the present case, the appellant was imprisoned without any proper investigation of mala fide intention behind the act. **FACTS OF THE CASE** **Procedural Background of the case:** Petitioner borrowed a loan from the respondent bank for his property and later he couldn’t repay the said amount. **Factual Background of the case:** - The warrant of arrest had been issued against the petitioner under section 51, order 21, and rule 37 of the civil procedure code on 6TH of August,1979. - The same warrant was issued for the same judicial decree. - The judgment was against the appellant who suffered an order of Rs 2.5 lakhs to the respondent bank. There are two more orders issued against an appellant total of Rs 7 lakhs payable. - A receiver was arranged by the court that took the right of the appellant to transfer the property and all other rights related to property. - This case was raised in the high court and the demand filed by the appellant was kicked out without conscientious study for such arrest to take place. - There should be a proper set of investigations to know whether the debtor has malice intention present behind the nonpayment of debts. **LEGAL ISSUES RAISED** - Whether it is lawful to detain any debtor under Article 11 of the International Covenant on Civil and Political Rights. - Whether invasion of the personal freedom of any person till the debtor pays his debt is lawful. **PETITIONER / APPELLANT’S ARGUMENTS** - The appellant states that all the sections and articles that are mentioned in the Indian constitution i.e. right to life and personal liberty are not just, fair, and equal. - It argued that null and nonpayment of debts will be against Article 21 of the Indian constitution and also Article 11 of the International Covenant on Civil and Political Rights. - Therefore, it leads to the vitiation of Article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Indian constitution. **RESPONDENT’S ARGUMENTS** - The respondent bank argued that Jolly George Verghese borrowed the loan amount of Rs 2.5 lakh that was attached to the property leading to a default in repayment of the said amount. - The bank argued that they had the authority to recover the debt amount by taking belongings of the property that was mortgaged as mentioned in the terms of the loan agreement. **RELATED LEGAL PROVISIONS** ***Section 51 Civil Procedure Code – Powers of Court to enforce execution:*** *Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-* 1. *by delivery of any property specifically decreed;* 2. *by attachment and sale or by the sale without attachment of any property;* 3. *by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section;* 4. *by appointing a receiver; or* 5. *in such other manner as the nature of the relief granted may require;* *Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after allowing the judgment-debtor to show cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-* 1. *that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-* 2. *is likely to abscond or leave the local limits of the jurisdiction of the Court, or* 3. *has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith about his property, or* 4. *that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or* 5. *that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.* ***Article 11 of the International Covenant on Civil and Political Rights:*** *No one shall be imprisoned merely on the grounds of inability to fulfil a contractual obligation.* ***Article 21 of the Constitution:*** *No person shall be deprived of his life or personal liberty except according to procedure established by law.* **JUDGEMENT** The decision of the court was in the Favor of Jolly George Varghese. The court held that the International Covenant on Civil and Political Rights is rectified but it has not incorporated, so the municipal court can’t address violation of international law. Therefore, municipal law is binding in nature and international law is not binding. The action of the bank at the time of taking possession of the mortgaged property without any process of law was violative of natural justice. The court held that mala fide intention or presence of mens rea behind the failure in payment of debts can lead to punishment. If there is not any dishonest intention then the person is not liable for punishment. Therefore, the only failure in payment of debts is insufficient to arrest a person there should be mens rea present. It will not be appropriate to imprison any person without intention if it happens so Article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Indian constitution will be violated. **CONCLUSION & COMMENTS** The case *Jolly George Varghese vs State Bank of Cochin* is very significant because it demonstrates India’s supreme court’s use of its power to place in section 51 of the civil procedure code for achieving justice. The court emphasized the importance of just and fair procedure while giving judgment and protecting Varghese’s interest against the bank. The decision of the court was that to imprison a person for their inability to pay debts, there should be wilful nonpayment or malafide conduct. **REFERENCES** - *Jolly George Verghese & Anr vs The Bank of Cochin on 4 February 1980.* [*https://indiankanoon.org/doc/1741605/*](https://indiankanoon.org/doc/1741605/) - *Can a person be imprisoned on the ground that he did not discharge his contractual liability* [*https://www.lawyersclubindia.com/judiciary/can-a-person-be-imprisoned- on-the-ground-that-he-did-not-discharge-his-contractual-liability-4491.asp*](https://www.lawyersclubindia.com/judiciary/can-a-person-be-imprisoned-%20%20%20%20%20on-the-ground-that-he-did-not-discharge-his-contractual-liability-4491.asp) - *International Covenant on Civil and Political Rights* [https://www.ohchr.org/en/instruments-mechanisms/instruments/international- covenant-civil-and-political-rights](https://www.ohchr.org/en/instruments-mechanisms/instruments/international-%20%20%20%20%20%20%20covenant-civil-and-political-rights) - Code of Civil Procedure, 1908 - Constitution of India. **Categories:** Case Analysis, Civil Law Cases, Constitutional Law Cases, International Law --- ### [Public Interest Foundation and Others v. Union of India and Another (2018)](https://lawfoyer.in/public-interest-foundation-and-others-v-union-of-india-and-another-2018/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Name of Author- Sagar Mazumdar, Rabindra Shiksha Sammillani Law College, University of Calcutta** **Edited by – Sulesh Choudhary** **ABSTRACT / HEADNOTE** The case mainly depicts the growing criminalisation of politics in India. Persons with criminal cases against them kept on increasing in the political field. The petitioners urged the Supreme Court to disqualify members with criminal charges. For this, the main issue revolved around the question of whether the Supreme Court disqualified membership under grounds beyond what is provided for in the Constitution as well as in the Representation of India Act, 1951. The petitioners in this regard advanced many arguments. The first respondent that is the Attorney General of India appearing for the Union of India contended that where the Constitution expressly provides that the Parliament is the sole body to make law on this matter, no other body shall make law other than the Parliament. The Court after referring to many judgements, reports and surveys came to the conclusion that it was the Parliament which was bestowed by the Constitution to make laws on the matter. The Court also went on to the extent of discussing other issues of criminalisation of politics, the role of the Election Commission and Analysing of Election Symbol. The Court also provided guidelines in this regard. **Keywords:** Criminalisation of Politics, Judicial Statesmanship, Articles 102 & 191 of the Constitution, Separation of Power, Constitutional Morality, Doctrine of Fiduciary Relationship **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Public Interest Foundation v. Union of India ***ii)* *Case Number*** Writ Petition (Civil) No. 536 of 2011 ***iii)* *Judgement Date*** September 25, 2018 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** 5 Judge Bench ***vi)* *Author / Name of Judges*** Dipak Misra, CJI (Author); Rohinton Fali Nariman, J; A.M. Khanwilkar, J; Dr. D. Y. Chandrachud, J; Indu Malhotra, J. ***vii)* *Citation*** Public Interest Foundation & Ors. v. Union of India & Anr., (2018) 10 SCC 1 ***viii)* *Legal Provisions Involved*** Article 102 and Article 191 of the Constitution of India **FACTS OF THE CASE** **Procedural Background of the Case** The case was being heard by a three Judge bench of the Hon’ble Supreme Court which was of the view that it would be better to leave the matter for the Constitutional Bench to decide. Though a submission was made before the Court that the matter was already decided in a previous judgement (Madan Narula v. Union of India), the submission was not accepted on the grounds of the views expressed in the separate judgement by Madan B. Lokur, J. **Factual Background of the Case** The case mainly revolved around the growing number of persons becoming lawmakers who themselves have been accused of several crimes. There have been such persons who have been accused of serious offences which are punishable for a period of up to five years and more. This led to the filing of a suit to determine the grounds for disqualification of membership and whether the Court was entitled to disqualify members on some additional grounds other than what was already mentioned under the Constitution and Representation of People Act, 1951. **LEGAL ISSUES RAISED** - Whether the Court can lay down additional grounds for disqualification of membership beyond the grounds mentioned under Article 102(1)(a) to (d); Article 191(1)(a) to (d) and the law made by the Parliament on that behalf? - The Court was also asked to decide on three interconnected issues: the Criminalisation of Politics; the Role of the Election Commission and the Analysis of Election Symbol. **PETITIONER / APPELLANT’S ARGUMENTS** The counsels for Petitioner / Appellant submitted that - **Role of Court**: The growing number of persons with criminal antecedents must not be viewed narrowly but from a wider perspective. The Court should not act as a mute spectator. Given ‘judicial statesmanship’, it has a major role to play. - **Law Breakers should not be Law Makers**: The petitioners cited the recommendations of the Law Commission which stated that the political atmosphere was being dominated by history sheeters. - **Doctrine of Fiduciary Relationship**: The petitioners contended that if members of the Public Service Commission, Chief Vigilance Commissioner, and Chief Secretary can undergo the test of integrity check, and if they can be disqualified on the ground of ‘framing of charge’ then why the same not apply to the members of Parliament and State Legislatures as well. The doctrine has been extended to several constitutional posts. - **Right to Contest Election is Not a Fundamental Right**: They also argued that if they do not adhere to the Constitutional ethos and principles, such members can be prevented from contesting election as it is not a fundamental right but a statutory right. - **View on Presumption of Innocence**: The petitioners believe the theory of innocent until proven guilty of criminal law. Thus, they state that it is more like a civil rule that if any person is charged with any offence, then such person shall be debarred from contesting any election. The intervenor organisation also agreeing with the petitioners held that persons charged with serious offences punishable with imprisonment of 5 years or must be disqualified as being members of Parliament. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that - **Separation of Power**: The Attorney General of India agreeing on the role of the court as the final arbiter, also rebutted that it is not the duty of the Court to make law as it can only recommend the Parliament. It will not be proper for the Court to cross the ‘Lakshman Rekha’. If the Court resorts to such means, then it will be an encroachment on the Constitutional principle. Thus, it will be better for the Court to leave the law-making power up to the Parliament especially when Constitutional and Statutory provisions exist. The Attorney General of India for this purpose relied on the judgement in the State of Himachal Pradesh and others v. Satpal Saini and Kesavananda Bharati v. State of Kerala and another which concretised the doctrine of separation of power. - **Innocent Until Proven Guilty**: The Attorney General of India appearing for the Union of India contended that every person must be presumed innocent until proven guilty. This has been the hallmark of Indian democracy. Therefore, punishing a person just based on a charge against him cannot be a proper methodology. **RELATED LEGAL PROVISIONS** - **Article 102 of the Constitution of India**: It deals with the disqualification of membership of either House of Parliament. - **Article 191 of the Constitution of India**: It deals with the disqualification of membership of the State Legislature or Legislative Council. - **Section 7, Representation of the People Act, 1951**: It deals with the definition of the expressions ‘appropriate government’ and ‘disqualified’. - **Section 8, 8A, 9, 9A, 10, 10A of the Representation of the People Act, 1951**: It deals with the specific grounds for disqualification of membership. **JUDGEMENT** **RATIO DECIDENDI** - **Parliament’s Power to Make Law**: The Court referring to the judgement passed in Lily Thomson v. Union of India agreed that the Parliament was the only body which had the power to make law on the matter concerning disqualification as covered under Article 102(1)(e). - **Growing Cases of Criminalisation of Politics**: The Supreme Court referring to a plethora of judgements, reports, and surveys was of the view that the nexus of politicians, bureaucrats and criminals was not the only concern, but now new reports suggest that the trend is that criminals are joining the political parties itself and their winning percentage proves that even the political party shows no reluctance in giving them a ticket for the second time. - **No Colourable Exercise of Judicial Power**: The Court had while interpreting the provisions of law and considering the arguments advanced by both the parties considered a well-accepted principle in the Indian judiciary that ‘what cannot be done directly should not be done indirectly’. To add weightage to the abovementioned principle, the Court also considered some of the earlier judgements of the Supreme Court itself. **GUIDELINES** The Court held that knowing the details of the candidates including the number of criminal cases pending against him is a fundamental right under Article 19(1). To ensure that the voters receive information about the candidates, the Court has issued the following guidelines: - Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein. - It shall state, in bold letters, about the criminal cases pending against the candidate. - If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her. - The concerned political party shall be obligated to put up on its website the aforesaid information about candidates having criminal antecedents. - The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing the nomination papers. **OBITER DICTA** - The criminalisation of Politics: The Court while considering the question of the growing criminalisation of politics considered a plethora of judgements and reports. One of the most important of them was the Vohra Committee Report and the 244th Law Commission Report, which dealt with an important question, whether disqualification shall be triggered on the ground of conviction, framing of charges, or presentation of the report by the Investigating Officer? The Commission held that framing of charges was a good ground for disqualification. - Role of Election Commission: The Court speaking on the role of the Election Commission discussed its power of superintendence, power and control of elections. It also held that its power was not absolute but only limited. Though it was created by the Constitution, still it did not have legislative power at par with the Parliament. - Analysis of Election Symbol: Regarding the analysis of election symbols, the Court held that there are two types of election symbols: reserved and free. Reserved election symbols are the election symbols of the political parties. Whereas free election symbols are for the individual candidates. The Court held that it would be a farce to prevent candidates of political parties from contesting elections from the very symbol of their party. Even The Parliament by law was entitled to legislate some proper law on that matter. - Role of Prime Minister and Chief Minister: Regarding the role of the Prime Minister and Chief Minister in advising the members to be selected as Council of Ministers, the Court referring to the Constituent Assembly Debates especially the speeches by Dr B.R. Ambedhkar and Dr Rajendra Prasad who talked about the ethics and principles of the Prime Minister. The Court observed that something has been left to the Prime Minister for his discretion and it is presumed that he shall discharge his duty with utmost diligence. **CONCLUSION & COMMENTS** The Hon’ble Supreme Court believes that it is only the Parliament which has been vested with the power to legislate on matters related to disqualification. The Parliament also held that every citizen has the right to know about the person he/she is voting for. The Court opined that it would be unhealthy for a democracy to have uninformed or misinformed voters, thus defeating the Constitutional duty. This will make it easy for people with criminal backgrounds to make an easy way into the rooms of Constitutional ethos. It will enable the lawbreakers to become the lawmakers. Keeping these things in mind, the Court issued a guideline containing five points which have enabled the candidates to furnish proper information so that the common man voting for them should be well aware of the identity of such candidates. The Court also opined that it would not be a proper rule to get things done in a way which otherwise has been prohibited. This shall be a proper breach of the doctrine of separation of power. The Court also recommended the Parliament to legislate and introduce proper laws so that people who have been charged with criminal offence are discouraged or rather disqualified from contesting election and thus making way to the legislating wing of the State. This 100-paged judgement shall always act as a torch bearer. It shall always remind the principles of constitutional morality and the doctrine of separation of power. The Court very beautifully maintained the well-accepted principle that “what cannot be done directly, should not be done indirectly”. **REFERENCES** **Important Cases Referred** - *Yogendra Kumar Jaiswal and others v. State of Bihar and others, (2016) 3 SCC 183* - *Manoj Narula v. Union of India, (2014) 9 SCC 1* - *Lily Thomas v. Union of India and others, (2013) 7 SCC 653* - *Dinesh Trivedi, M.P. and others v. Union of India and others, (1997) 4 SCC 306* - *Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others, (1997) 6 SCC 1* - *Prabhakaran v. P. Jayarajan, AIR 2005 SC 688* - *Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851* - *Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294* - *Subhash Chandra Agarwal v. Indian National Congress and others, (2013) CIC 8047* - *People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399* - *State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659* - *Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4* - *Election Commission of India and another. v. Dr. Subramaniam Swamy and another, (1996) 4 SCC 104* - *State of Himachal Pradesh and others v. Satpal Saini, (2017) 11 SCC 42* - *Kesavananda Bharati v. State of Kerala and another, (1973) 4 SCC 225* - *Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460* - *Union of India and another v. Deoki Nandan Aggarwal, (1992) Supp (1) 323* - *Supreme Court Bar Association v. Union of India and another, (1998) 4 SCC 409* - *Allied Motors Limited v. Bharat Petroleum Corporation Limited, (2012) 2 SCC 1* - *Nazir Ahmad v. King Emperor, AIR 1936 PC 253* - *People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1* - *Brundaban v. Election Commission, \[1965\] 3 SCR 53* **Important Statutes Referred** - Representation of the People Act, 1951 - Code of Criminal Procedure, 1973 (now Bharatiya Nagarik Suraksha Sanhita, 2023) **Categories:** Case Analysis, Constitutional Law Cases --- ### [Ashok Thakur V Union of India (2008)](https://lawfoyer.in/ashok-thakur-v-union-of-india-2008/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Name of Author-** **Tushar Rana, UPES, Dehradun** **Edited by – Sulesh Choudhary** **ABSTRACT** The Ashok Thakur v. Union of India verdict of the Supreme Court in 2008 is yet another milestone in this journey toward social equality within Indian society. The landmark case upheld constitutional changes permitting reservations for the underprivileged in educational institutions, aiming to provide better opportunities to socially and educationally backward classes, Scheduled Castes, and Scheduled Tribes. It also went on to emphasize the requirement for exclusion of the creamy layer from these benefits, so that the help reaches those who need it. It also called for periodic reviews so that the policies remain relevant and effective. This judgment hence has been pretty seminal in the shape it has given to India’s educational landscape, with this equipoise between social justice and merit. It questions what lies beneath the Court’s judgment, the implications of its decision, and how it tries to balance fairness and excellence in education. Keywords – Supreme court, Social equality, Educational Reservations, Underprivileged Groups, Scheduled Caste, Scheduled Tribes, Creamy Layer exclusion. **CASE DETAILS:-** Name of the case Ashok Thakur V Union of State Citations Civil Appeal No. 265 of 2008 Date of the Case April 10, 2008 Petitioner Ashok Kumar Thakur Respondent Union of India Bench/Judge DR ARIJIT PASAYAT AND C.K. THAKKER Court Supreme Court Of India Important Sections/ Articles Involved Article 14, Article 15(4), Article 15 (5), Article 19(1)(g), Article 21 of the Constitution of India,1950. **INTRODUCTION** The landmark case of Ashok Thakur v UOI (2008) tells the intense issue of reservations in educational institutions in India. Supreme Court of India heard this case and involved the constitutional validity of the 93rd Constitutional Amendment and Central Educational Institutions (Reservation in Admission) Act, 2006. Article 15 Clause 5 is added by the 93rd Amendment allowing the state to make a reservation in admission into educational institutions including private schools or colleges whether or not aided by the government. The legislation’s goal is to encourage social equality and equal opportunities for all citizens but faces various difficulties due to its effect on the right to equality and liberty of private institutions. The Supreme Court’s ruling in this case significantly balanced the principles of social justice, equal opportunities and equality in India’s educational system. **FACTS OF THE CASE** In this case, Petitions challenging the Constitution (93rd Amendment)Act,2005 and Central Education Institutions Act, 2006 came together and brought to the constitutional bench on the Supreme Court. The CEI Act, 2006 tells that members of Socially and Educationally Backward Classes (SEBCs) and Schedule Caste/Schedule Tribe (SC/ST) in Central Institutes of Higher Education. The petitioner challenged the reservation to the extent of 27% of the total number of seats for the “socially and educationally backward classes of citizens. The petitioners argued that admission to educational institutions ought to be determined solely by merit and that the State ought to have the authority to give preference to a student who has less merit over those who would have otherwise got admission, which is ex-facie discriminatory. According to the petitioner, the amendment went against the Doctrine of Basic Structure. They further argued that SEBCs and Other Backward Classes (OBCs) cannot be identified due to a lack of criteria. Also, the concept of creamy layer applies to Article 15 and Article 16 and the non-exclusion of creamy layer in the Act is illegal. **LEGAL ISSUES RAISED:** - Whether the expressions ‘class’ and ‘castes’ are synonyms? - Whether reservations provide the only solution for social empowerment measures? - Whether the legislature have enacted the valid part if it had known that the rest of the statute was invalid? - Whether the action taken by the Government be upheld after judicial scrutiny? **Petitioner’s Arguments** - Learned counsel for petitioners has highlighted these decisions to show what should be the method in matters related to social empowerment. - It was pointed out by the learned counsel for the petitioners that the findings of huge financial burden questions have no place in the parliamentary debate. - Petitioners submit that some members of selected backward classes are highly competent socially as well as economically and educationally. It is also submitted that they represent the forward section of the selected backward class as forward as another forward class member and that they take full advantage of the benefits of reservations meant for that class. These Persons are not backward and with them, a class cannot be treated as backward. It is also pointed out that since Jayashree almost every decision has accepted the validity of this submission. - One of the significant issues that is highlighted by Mr P.P Rao was that in some cases the matriculation standard of education was considered to be the reliable measure for measuring backwardness. It is also submitted that at least half of the people belonging to a specific caste have reached the matriculation level of education, they cannot be viewed to be educationally backward any longer. It has moreover been highlighted that the move of emphasis from primary and fundamental education to higher education is against the sacred order making education necessary in terms of Article 21-A of the Constitution of India. - It is also contended by learned counsel for the petitioners whether the concept of strict scrutiny is a measure of judicial scrutiny as highlighted by the conditions in India. It is submitted that the label is not relevant. **Respondent’s Arguments** - Learned Counsel for the respondent had stated that there are several cases where applications were made for inclusion they have been turned down. - Respondents have contended the concept of the creamy layer may have connected for Article 16(4) but is insignificant so far as Articles 15(4) and 15(5) are concerned. It is submitted that Article 16(4) is relatable to inadequate representation in government services and in that context, the Supreme Court has decided that the economically well-off individuals within the socially and educationally backward classes should not be included in the reservation benefits. But this logic doesn’t apply to the current issue, which involves admissions to educational institutions. Before we can discuss whether it’s a good idea to exclude the ‘creamy layer,’ we need to understand what this term means. It’s important to look at what the Court has said about this concept in various past cases. - According to the respondent, the argument of ‘creamy layer’ is a ruse, a scheme to remove the benefits of the reservation for the backward classes. It is also submitted that no member came forward from the backward classes with regards to this plea and that it will become the members of forward classes to raise this point. **RELATED LEGAL PROVISIONS** **Constitution of India** - **Article 15(4)** – This article talks about the power to make special provisions for the advancement of any socially and educationally backward classes of citizens or for SCs and STs.[\[1\]](#_ftn1) - **Article 15(5) –** This was added by the 93rd Amendment. It lets the state make special provisions for the advancement of SEBCs, SCs, and STs when it comes to admissions in educational institutions, including private ones, but not minority institutions.[\[2\]](#_ftn2) - **Article 14 –** It talks about everyone being treated equally under the law.[\[3\]](#_ftn3) - **Article 19(1)(g) –** It gives every citizen the right to practice any profession.[\[4\]](#_ftn4) - **Article 21 –** It talks about the protection of life and Personal Liberty.[\[5\]](#_ftn5) **Central Educational Institutions (Reservation in Admission) Act, 2006** - This law mandates that a certain percentage of seats in central educational institutions like IITs and IIMs must be reserved for SCs, STs, and Other Backward Classes (OBCs). **JUDGEMENT** The Court noted that if the creamy layer is not excluded, the 93rd Amendment would be ultra vires and unconstitutional. The Court held that there should be no strict guidelines regarding the identification of the creamy layer; instead, the Government should make that decision. The court further decided that OBCs are subject to the creamy layer prohibition rule. The Court further noted that by taking away citizens of their fundamental right to continue their occupation under Article 19(1)(g), placing reservations without assistance institutions violates the Basic Structure. Nonetheless, the 93rd Amendment to the Constitution is enforceable concerning state-maintained and legally assisted educational institutions. The court further said that the minority educational institutions are separate classes, and they are protected by the other constitutional provisions. Hence, they are not unconstitutional. The court held that Articles 14 and 15 have their separate impacts and do not violate each other, hence they are constitutionally valid. **CONCLUSION/COMMENTS** “Reservation is one of the many tools that are used to preserve and promote the essence of equality so that disadvantaged groups can be brought to the forefront of civil life,” the court stated in this case when discussing the necessity of reservations. The Court ruled that the 93rd Amendment was lawful and that, in terms of the creamy layer, OBCs should be given preference over SC/STs. **ENDNOTES** [\[1\]](#_ftnref1) The Constitution of India, 1950, Art 15(4). [\[2\]](#_ftnref2) The Constitution of India, 1950, Art 15(5). [\[3\]](#_ftnref3) The Constitution of India, 1950, Art 14. [\[4\]](#_ftnref4) The Constitution of India, 1950, Art 19(1)(g). [\[5\]](#_ftnref5) The Constitution of India, 1950, Art 21. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Union of India Vs. Deloitte Haskins and sells LLP](https://lawfoyer.in/union-of-india-vs-deloitte-haskins-and-sells-llp/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Name of Author- Lalidhambha S., Government Law College, Dharmapuri** **Edited by – Sulesh Choudhary** **ABSTRACT / HEADNOTE** This case deals with the provisions of Section 140(5) of the Companies Act, 2013 which deals with the Removal and resignation of the Auditor and giving of special notice mentioned in Chapter 10 of the act which deals with Auditor and Audit. Also, Section 143(12) provides that in the event an auditor has reason to believe that an offence or fraud is being or has been committed in a company then the auditor has to report this to the central government. It includes Section 144 provides that an auditor cannot provide management services to the company. Thus Section 140(5) has to be interpreted in the light of these provisions. According to this provision NCLT as a preliminary measure, has the power to order a change of auditor on an application made by the central government and further upon the final enquiry, also it can such an auditor shall not act as auditor of any company for five years. When the Supreme Court was about to deal with this case in such a situation where the reference had been made by the central government, Deloitte resigned as auditor and argued the proceedings as per the proviso to Section 140(5). However, the Supreme Court dismissed the arguments by stating that the subsequent resignation of an auditor cannot terminate proceedings under the second proviso to 140(5) when such an auditor has directly or indirectly acted fraudulently. Also, the court brushed aside arguments regarding the violation of Article 14 and Article 19(1)(g) of the Constitution of India. **Keywords**: Companies Act 2013, Article 14, Article 19(1)(g), Removal and Resignation of auditor, NCLT **CASE DETAILS** *Judgement Cause Title / Case Name* Union of India v. Deloitte Haskins and Sells LLP *Case Number* 2304-2307 of 2022 *Judgement Date* 03-05-2023 *Court* The Supreme Court of India *Quorum / Constitution of Bench* 3 *Author / Name of Judges* Justice M.R. Shah Justice M.M. Sundresh Justice C.T. Ravikumar *Citation* 2023 SCC OnLine SC 557 *Legal Provisions Involved* Section 140(5) of Companies Act 2013 Article 14 and Article 19(1)(g) **INTRODUCTION AND BACKGROUND OF JUDGEMENT** In the judgment of Union of India v. Deloitte Haskins and Sells LLP, where the Supreme Court had stated the law about the removal and resignation of an auditor, whereas the proceedings had been initiated under section 140(5) of the Companies Act, 2013. Following that the Supreme Court also upheld the constitutional validity of the provisions and interpreted it as neither discriminatory, arbitrary and/or violative of Articles 14, 19(1)(g) of the Constitution of India. Initially, the petition was filed before the National Company Law Tribunal seeking the removal and the inquiry into the conduct of an author involved in suspected fraud. **FACTS OF THE CASE** **Procedural Background of the Case** The Ministry of Corporate Affairs directed the Serious Fraud Investigation Office to investigate IL&FS and its subsidiaries. The new board of directors submitted a progress report, and the SFIO also submitted an interim report on the individuals in control of IL&FS and the fraud committed by them. Later, the auditors of IL&FS subsidiary, IFIN, were issued a notice opposing the petition. Further, the proceedings were initiated by the Ministry of Corporate Affairs and the SFIO which seeks the removal of the auditors and also confers that they are ineligible for future appointments. **Factual Background of the Case** A series of defaults by IL&FS Group companies in 2018, with a debt burden of over Rs. 91,000 crores, had severe implications for India’s money market. The Ministry of Corporate Affairs requested action under the Companies Act, 2013, due to concerns about corporate governance failures, window-dressed accounts, and the potential catastrophic impact of further defaults. The High Court has set aside the NCLT’s order, quashing the petition, and cancelling the directions and criminal proceedings, but also upheld the validity of the provision and the auditor of IL&FS had filed a writ petition by challenging its validity. **LEGAL ISSUES RAISED** - Whether an auditor who is charged with an offence under section 140(5) of the Companies Act dealing with non-reporting of fraud in a company can get away by simply resigning as an auditor and thereby rendering the provisions of section 140(5) nugatory? - Whether section 140(5) of the Companies Act 2013 constitutional? **PETITIONER’S ARGUMENTS** The counsels for Petitioner submitted that:- - The Petitioner argues against the interpretation of section 140(5) of the Companies Act, 2013 made by the High Court held that the intention behind the provision was to break the collusion between auditors and companies, and if the auditor resigns, the purpose of the section is fulfilled. However, the submission contends that the High Court’s interpretation is erroneous. In conclusion, the petitioner requests the court to set aside the High Court’s order and uphold the proceedings under section 140(5) of the Companies Act, 2013 against the auditors. It argues that the resignation of auditors should not render the proceedings void and that the purpose of the provision is to prevent fraudulent auditors from being appointed in any company. {Devas Multimedia Private Limited v. Antrix Corporation Limited and Another \[(2023)} 1 SCC 216\]} **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that:- The Opposite Party argues various points regarding section 140(5) of the Indian Companies Act, 2013 and its interpretation. The High Court upheld the constitutionality of section 140(5) but read it down to only allow for the removal of an auditor, without the power to punish or debar them. The submission that the NCLT can debar an auditor for 5 years was rejected by the High Court as it only serves the purpose of removing an auditor and is not a standalone provision to disqualify auditors. Additionally, it contends that the resignation of auditors renders the section 140(5) proceedings infructuous, as the purpose of removal and change. Finally, argues that it grants unguided and untrammelled powers to the NCLT in a summary proceeding as it considers the penalty of automatic disqualification, disproportionate, as similar penalties already exist under section 141(3)(h) after due process of the trial. **RELATED LEGAL PROVISIONS** **Section 140(5)** – “*Removal and Resignation of Auditor and Giving of Special Notice”* and sub-section (5) states: “*Without prejudice to any action under the provisions of this act or any other law for the time being in force, the Tribunal either suo moto or an application made to it by the central government or by any person concerned, to take action against the auditor who has acted fraudulently or is abetting or colluding in fraud with the management of a company”* **Article 14 –** “*Equality before law or equal protection of the laws”* **Article 19(1)(g)** – “*Right to practice any profession or to carry on any occupation, trade, business to all citizens*” **Section 141(3)(h)** – “*prevents a person from being appointed as an auditor of a company if he has been convicted by a court for an offence that involves fraud less than 10 years ago*” **JUDGEMENT** In this case, the Supreme Court reviewed the judgment of the High Court are no longer maintainable as it disagreed with the interpretation and held that the resignation or removal of an auditor does not terminate the proceedings under this provision. Regarding the challenge to the constitutionality of section 140(5), the court upheld its validity. The court also rejected the argument that section 140(5) discriminates against auditors compared to directors and management. It concludes the proceedings under section 140(5) should continue even if an auditor resigns, and the consequences of the final order, including disqualification, should be applied. The court upheld the constitutionality of section 140(5) and dismissed the challenges raised against it. **RATIO DECIDENDI** - The NCLT would have the powers of a civil court to examine the role of auditors and adjudicate their fraudulent conduct and abdication of their function. - The powers under the first proviso to section 140(5), which provides for the removal of the auditor based on a prima facie satisfaction that a fraud has been perpetrated and when circumstances warrant the substitution. - The powers under the second proviso to section 140(5) which envisages debarment of the auditor or the firm for five years passed by NCLT but that shall not be eligible to get appointed in any company for five years. - In comparison to similarly placed alleged perpetrators, such as directors or management, it has been held that auditors play a vital role in the affairs of the company, therefore, they have to act in the larger public interest and consider all the other stakeholders. - Hence the provision cannot be said to be discriminatory and violative of Article 14 of the Constitution of India. **CONCLUSION & COMMENTS** Given the above and for the reasons stated above, a challenge to the constitutional validity of section 140(5) of the companies acts, 2013 fails and it is observed and held that section 140(5) is neither discriminatory, arbitrate violative of articles 14 and 19(1)(g) of the Constitution of India, as alleged. The Supreme Court, after interpreting the provision has held that even on the principles of joint and severe liability, the auditors and the entire firm including partners shall be liable and therefore can be subjected to section 140(5) of the act. **REFERENCES** **Important Cases Referred:** - {Devas Multimedia Private Limited v. Antrix Corporation Limited and Another \[(2023)} 1 SCC 216\]} **Important Statutes Referred** - The Constitution of India, 1950 - The Companies Act, 2013 **WEBSITES REFERRED** - - - - - - **Categories:** Case Analysis, Company Law, Constitutional Law Cases --- ### [Behram Khurshid Pesikaka Vs State of Bombay](https://lawfoyer.in/behram-khurshid-pesikaka-vs-state-of-bombay/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Name of Author- Bhavya Rathore, UFYLC, University Of Rajasthan, Jaipur** **Edites by- Sulesh Choudhary** **ABSTRACT / HEADNOTE** This appeal by special leave is against the judgment rendered by the High Court of Judicature at Bombay, which reversed the appellant’s order of acquittal from the Court of the Presidency Magistrate, 19th Court, Bombay, finding him guilty of a crime under section 66(b) of the Bombay Prohibition Act, 1949, and punishing him with a rigorous one-month jail sentence and a fine of Rs. 500. About the judgments of the majority, the appeal will be dismissed subject to the modification that the sentence imposed upon the appellant will be reduced to that already undergone. Bail bonds will be cancelled[\[1\]](#_ftn1). In the seminal decision of Behram v. State of Bombay (1955), the Indian Supreme Court ruled that the laws enshrined in Part III of the Indian Constitution are exempt from the Doctrine of Waiver. It was noted that basic rights are not just legally protected rights but also rest on principles contained in the preamble of the Indian Constitution that an accused person cannot reject or forsake. This approach does not apply to matters concerning constitutional policy since fundamental rights are issues of national policy that cannot be changed. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** **Behram Khurshid Pesikaka Vs State of Bombay** ***ii)* *Case Number*** Criminal Appeal No. 42 of 1953, ***iii)* *Judgement Date*** February 19, 1954 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** Justice Bhagwati, Justice Jagannadha Das and Justice Venkatarama Ayyar ***vi)* *Author / Name of Judges*** Justice Bhagwati. ***vii)* *Citation*** AIR 1955 SC 123 ***viii)* *Legal Provisions Involved*** BOMBAY PROHIBITION ACT: S.66(b), S.13(b) CONSTITUTION OF INDIA: Art.141, Art.246, Art.13, Art.13(1), Art.245, Art.12(1) EVIDENCE ACT: S.105 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** A seminal case that delves into the nuances of alcohol consumption laws, fundamental rights, constitutional lawmaking authority, and the concept of waiver is Behram Khurshid Pesikaka v. State of Bombay. Behram Khurshid Pesikaka, the appellant, was charged with using alcohol without a permit, as required by the Bombay Prohibition Act. The appellant’s defence—that the liquor consumed was not prohibited under the Bombay Prohibition Act and hence did not require a permit—was the central argument in the case. This prompted concerns regarding how the Act’s provisions should be interpreted and applied and whether the appellant’s acts were within its scope. In addition, the case touched on the subject of the fundamental rights protected by the Constitution. It brought up relevant issues regarding the boundaries of governmental authority in controlling individual decisions and actions, particularly about alcohol usage. Throughout the proceedings, a major point of disagreement was how to interpret basic rights in the context of prohibition legislation. The consideration of the legal ramifications of ruling legislation unconstitutional was another important facet of the case. The court had to weigh the effects of legislation that violated basic rights against the procedure for finding such a statute to be unconstitutional. This feature highlighted the difficult balancing act between the intent of the legislature and constitutional protections. **FACTS OF THE CASE** **Procedural Background of the Case** - This is an appeal by special leave from a judgment of the High Court of Judicature at Bombay reversing the order of acquittal passed in favour of the Appellant by the Court of the Presidency Magistrate 19th Court, Bombay and convicting him of an offence under Section 66(b) of the Bombay Prohibition Act, 1949 and sentencing him to one month s rigorous imprisonment and a fine of Rs. 500/-[\[2\]](#_ftn2) **Factual Background of the Case** - The appellant was the Officiating Regional Transport Officer, Bombay Region, proceeding in his jeep car on 29th May 1951 when he knocked down three persons. From the police station, he was taken to St. George’s Hospital to be examined by the doctor for alleged consumption of liquor. The doctor thought that he did not seem to be under the influence of alcohol though he had taken alcohol in some form or the other. - The appellant was put up before the Presidency Magistrate for his trial under two offences, one under section 338 of the Indian Penal Code and the other under section 66(b) of the Bombay Prohibition Act. - The appellant cross-examined the doctor and suggested that he had not consumed any liquor but had taken medicinal preparation containing a small percentage of alcohol. A written statement was filed on the 13th March, 1952, giving the whole history of his case. - The respondent, the State of Bombay, took two appeals before the High Court against each of these two cases. The ruling clearing him of the accusation under section 66(b) of the Bombay Prohibition Act was overturned by the High Court, but it upheld the acquittal of the section 338 Indian Penal Code charge. In the case of Rangarao Bala Mane v. State (1951) 54 Bom. L.R. 325), the Division Bench of the High Court upheld the following ruling: ” Once it is proved by the prosecution that a person has drunk or consumed liquor without a permit, it is for that person to show that the liquor drunk by him was not prohibited liquor, but was alcohol or liquor which he is permitted by law to take, e.g., medicated alcohol.” - It concluded that the appellant had failed to prove the existence of circumstances from which the Court could conclude that the liquor which was consumed by the appellant was not prohibited liquor but liquor which was expected by the Bombay Prohibition Act from its operation and set aside the order of acquittal passed by the learned Presidency Magistrate in his favour convicting him of the offence and sentencing him as above. **LEGAL ISSUES RAISED** - Whether the accused has consumed liquor which falls within the enforceable prohibition enacted in section 13(b) - Whether the burden of proof lies on the prosecution to establish that the accused committed the offence under section 66(b) of the Bombay Prohibition Act. - On whom, does the burden of proof lie to make our that the “liquor” consumed by the appellant was or was not medicinal or toilet preparations though containing alcohol, and - What is the nature and quantum of proof required if the burden is upon the appellant? **PETITIONER / APPELLANT’S ARGUMENTS** - The appellant contends that the effect of the case of [The State of Bombay and Another v. F. N. Balsara](https://indiankanoon.org/doc/334293/)that [section 13(b)](https://indiankanoon.org/doc/1893580/) in so far as it prohibited the consumption of medicinal preparations was an unreasonable restriction on the rights of an owner to hold and enjoy the property and was therefore void as being repugnant to [Article 19(1)(f)](https://indiankanoon.org/doc/258019/) of the Constitution. Therefore, it is best to read that section as though it had been altered to state that alcohol should only be used for toilets or medical preparation; that in that view no question of the accused having to rely on an exception arose and no question of the burden being thrown on him under [section 105](https://indiankanoon.org/doc/429611/); and that as the offence itself consisted in consuming a liquor which was not a medicinal preparation, the burden would lie on the prosecution to establish that what was consumed was a prohibited liquor. - The appellant’s learned counsel argues that the essence of the valid prohibition under [section 13(b)](https://indiankanoon.org/doc/1893580/)now is the consumption or use of liquor other than liquor medicinal or toilet preparations containing alcohol. He consequently argues that section 13(b) ought to be interpreted appropriately. The argument was that the word “liquor” stands amended as “prohibited liquor” or that it must be understood with this limited connotation. **RESPONDENT’S ARGUMENTS** - It was urged on the other hand on behalf of the respondent that the effect of the declaration in [The State of Bombay and Another v. F. N. Balsara](https://indiankanoon.org/doc/334293/)was to graft an exception or a proviso to [section 13(b)](https://indiankanoon.org/doc/194442572/) and that the onus and the burden of proving the existence of circumstances bringing his case within the exception or proviso lay on the accused and the Court was to presume the absence of such circumstances. (Vide [section 105](https://indiankanoon.org/doc/429611/) of the Evidence Act). - It was further urged that the prosecution could not possibly prove that no form of liquid medicinal or toilet preparation containing alcohol was taken by the accused, that the fact of the consumption of such medicinal or toilet preparation containing alcohol was especially within the knowledge of the accused and that therefore the burden of proving such fact was upon him, and that once the prosecution had discharged the onus which lay upon it to prove that the accused had consumed liquor it would be for the accused to show that the liquor which was taken by him was a liquid medicinal or toilet preparation containing alcohol. (Vide [section ](https://indiankanoon.org/doc/697566/)106 of the Evidence Act). - The respondent contends that the definition of liquor in [section 2(24)](https://indiankanoon.org/doc/1893993/)includes not only beverages but also medicinal preparations, that the extended definition would apply to [section 13(b)](https://indiankanoon.org/doc/1893580/) as well, that the immunity of medicinal preparations containing alcohol from the operation of the section because of the decision in [The State of Bombay and Another v. F. N. Balsara](https://indiankanoon.org/doc/334293/) (supra) must, in consequence, be treated as an exception to it and that the section should be read as containing a saving in favour of those preparations, like an exception or proviso, the burden of establishing which under [section 105](https://indiankanoon.org/doc/429611/) of the Evidence Act would be on the accused. [\[3\]](#_ftn3) **RELATED LEGAL PROVISIONS** BOMBAY PROHIBITION ACT[\[4\]](#_ftn4): S.13(b): (13) “excisable article” means — (b) an intoxicating drug 5\[or hemp\], CONSTITUTION OF INDIA[\[5\]](#_ftn5): Art.141: The law declared by the Supreme Court shall be binding on all courts within the territory of India. Art.13: Laws inconsistent with or in derogation of the fundamental rights Art.13(1): All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void. EVIDENCE ACT[\[6\]](#_ftn6): S.105: The burden of proving the case of the accused comes within exceptions. **JUDGEMENT** **RATIO DECIDENDI** - It, therefore, concluded that, after the prosecution had satisfied its burden of proof regarding the accused’s alcohol consumption, the accused would have to demonstrate that the alcohol he had taken was alcohol in the form of medicated alcohol—that is, alcohol that was not illegal. The police would be in charge of determining if the accused has ingested alcohol, which is prohibited by section 13(b). - Even though the accused had a strong odour of alcohol and admitted to having drunk alcohol, these facts would not conclusively prove the accused’s guilt. The presence of alcohol odour may also have resulted in his having consumed medicinal or toilet preparations consisting of or containing alcohol as his having consumed valid prohibited liquor. - Holding the accused guilty in these circumstances would be denying him the benefit of the doubt, which an accused person is always entitled to if the facts and circumstances support either his guilt or his innocence. It would also mean convicting him for the sole reason that he stank of alcohol. - Adopting the line of reasoning that was appealed to the High Court would also amount to establishing that, should it be demonstrated that an accused individual had consumed alcohol in any way, it would be assumed that he had done so in violation of the law, and it would be his responsibility to refute this assumption by demonstrating that he had instead consumed alcohol-containing medications or toilet preparations. **OBITER DICTA** - We have heard the learned Attorney-General on the question of whether that onus has been discharged and he has frankly conceded that on the material placed before us, it cannot be urged that onus has been discharged by the prosecution.[\[7\]](#_ftn7) **CONCLUSION & COMMENTS** This is one of the early examples in which the plausible connection between Article 13 (1) and the Pre-Constitutional Laws was explored. The case of Behram Khurshed Pesikaka vs. State of Bombay \[1954\] INSC 15 serves as a significant legal precedent highlighting the delicate balance between individual rights and state regulations. Through this case, the Supreme Court of India deliberated on the constitutional validity of provisions within the Bombay Prohibition Act, of 1949, concerning the sale of liquor licenses. **REFERENCES** **Important Cases Referred** - [The State of Bombay and Another v. F. N. Balsara](https://indiankanoon.org/doc/334293/)(\[1951\] S.C.R. 682) - Rangarao Bala Mane v. State ((1951) 54 Bom. L.R. 325) **Important Statutes Referred** - BOMBAY PROHIBITION ACT - CONSTITUTION OF INDIA - EVIDENCE ACT **ENDNOTES** [\[1\]](#_ftnref1) [Behram Khurshed Pesikaka vs The State Of Bombay on 24 September 1954 (indiankanoon.org)](https://indiankanoon.org/doc/68666/) [\[2\]](#_ftnref2) [Behram Khurshed Pesikaka vs The State Of Bombay on 24 September 1954 (indiankanoon.org)](https://indiankanoon.org/doc/68666/) [\[3\]](#_ftnref3) [Behram Khurshid Pesikaka vs State Of Bombay – 1954 0 Supreme(SC) 117 (supremetoday.ai)](https://supremetoday.ai/doc/judgement/00100009883?user-id=0) [\[4\]](#_ftnref4) BOMBAY ACT NO. XXV OF 1949 [\[5\]](#_ftnref5) CONSTITUTION OF INDIA, 1950 [\[6\]](#_ftnref6) THE INDIAN EVIDENCE ACT, 1872 [\[7\]](#_ftnref7) [evidence+act+105 | Indian Case Law | Law | CaseMine](https://www.casemine.com/search/in/evidence%2Bact%2B105) **Categories:** Case Analysis, Constitutional Law Cases, Evidence Law Cases --- ### [Unibros v. All India Radio, 2023 SCC OnLine SC 1366](https://lawfoyer.in/unibros-v-all-india-radio-2023-scc-online-sc-1366/) **Published:** September 5, 2024 **Author:** LawFoyer **Content:** **Name of Author- Vaibhav Pandey, Amity Law School, Amity University, Lucknow, Uttar Pradesh** **Name of Editor- Sulesh Choudhary** **ABSTRACT / HEADNOTE** In the case of Unibros vs All India Radio, (2007) 8 SCC 625, The Supreme Court of Indian had occasion to deal with a longstanding dispute emanating out from delayed completion of construction contract and lease deed relating Delhi Doordarshan Bhawan Phase-II. A crucial point of dispute was the arbitral award for loss of profit suffered due to delay, which tribunals at different levels had repeatedly set aside. The case showcases the nuances of arbitration, contractual interpretation and loss of profit principles i.e. Hudson formula in Indian legal context. Given the context in which this case would have to be decided, and also by virtue of being a construction dispute believed to be worth multiple crores (old currency) – dealing with arbitration is something mandatory for such contracts. The judgement is valuable for both legal practitioners and the construction industry as guidance on how loss of profit claims are to be treated in relation to contract delays. **Keywords:** Arbitration, Loss of Profit, Hudson’s Formula, Construction Delay, Contract Law **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***unibros v. All India Radio, 2023 SCC OnLine SC 1366 ***ii)* *Case Number***CIVIL APPEAL NO…………………/2023 \[ARISING OUT OF SLP (CIVIL) NO. 8791/2020\] ***iii)* *Judgement Date***19 October 2023 ***iv)* *Court***Supreme Court of India ***v)* *Quorum / Constitution of Bench***Dipankar Datta, S. Ravindra Bhat ***vi)* *Author / Name of Judges***Dipankar Datta ***vii)* *Citation***2023 INSC 931***viii)* *Legal Provisions Involved***Section 37 of the Arbitration and Conciliation Act, 1996; Section 34 of the Arbitration and Conciliation Act, 1996; Section 73 of the Indian Contract Act, 1872**INTRODUCTION AND BACKGROUND OF JUDGEMENT** The legal battle between Unibros and All India Radio Delhi Doordarshan Bhawan construction contract, is a major historical landmark in the annals of Indian Law which took almost two decades to reach its ultimate legal conclusion. The dispute followed heavy delays on the project, causing Unibros to incur penalties due to its profit being eroded. The main point in controversy was the arbitral award which had been allowed to Unibros for loss of profit on account of delay, following Hudson’s formula. It argued that this award was invalid as not supported by ‘sufficient evidence’ and an arbitrarily determined. The arbitral award was challenged originally under Section 34 of the Arbitration and Conciliation Act, 1996 which led to its being set aside by a Single Judge of High Court. The Division Bench of the Delhi High Court confirmed this decision and Unibros filed an appeal with the Supreme Court to replace that award. The verdict by the Supreme Court of India itself reflects as well, on arbitration systems, contractual obligations and the recourse taken to breach in determination for calculation through various relevant learned principles. **FACTS OF THE CASE** **Procedural Background of the Case** - Unibros was granted compensation for loss of profit due to delay by an Arbitral Award. - Consequent to the Single Judge setting aside the award in a challenge under Section 34 of Arbitration and Conciliation Act, 1996 by AIR. - The Division Bench of the Delhi High Court has upheld the decision of Single Judge. - The appeal moved to the Supreme Court on behalf of Unibros. **Factual Background of the Case** - Unibros got a contract to build the Delhi Doordarshan Bhawan, Phase-II for which one year was given in start as milestone. - This leaded for delay of around 42.5 months in the project which cost extra and loss from profit to Unibros. - An arbitrator awarded Unibros Rs. 1,44,83,830 for loss of profit using Hudson’s calculation, which AIR challenged, alleging insufficient proof. **LEGAL ISSUES RAISED** In the light of Unibros vs All India Radio quite a few important legal questions were posed before our Lordships which warranted tread with caution. The case addressed fundamental issues of arbitration, contract law and the principles relating to damages for breach of contract (and in particular claims for loss of profit caused by construction delays). This was a significant factor in determining the legitimacy of this arbitral award, and wider implications for such cases. - If the arbitrators outcome for loss of profit was justified upon evidence. - How applicable is the Hudson formula this time to calculate loss of profit because there was construction delay. **PETITIONER / APPELLANT’S ARGUMENTS** - The award of the arbitrator was neither arbitrary nor capricious, but reasonable and supported by ample evidence, including Hudson’s formula. - The courts have very limited right to interfere with arbitral awards except the arbitration amounts to patent perversity or capricious on the face of record. - That the loss of profit was reasonably foreseeable and flowed directly from AIR’s breach by its failure to deliver a complete site drawing within agreed time limits. **RESPONDENT’S ARGUMENTS** - The results were arbitrary and evidence-free. - Unibros had failed to show that it was actually damaged through the delay, and clearly Hudson’s formula has been applied erroneously. - Thus, the High Court was right in setting aside that award given there had been no evidence or substantiation to demonstrate a loss of profit. **RELATED LEGAL PROVISIONS** - Section 37 of the Arbitration and Conciliation Act, 1996[\[1\]](#_ftn1) - Section 34 of the Arbitration and Conciliation Act, 1996[\[2\]](#_ftn2) - Section 73 of the Indian Contract Act, 1872[\[3\]](#_ftn3) **JUDGEMENT** **RATIO DECIDENDI** - The Supreme Court agreed with the lower courts that no adequate proof was available in support of these claim and there were not justified on principles of contract law or arbitration. The Court instead reiterated the need for reliable and material evidence to be capable of supporting contracts based claims for loss of profits. - The Supreme Court had to determine if the arbitrator correctly applied Hudson’s formula and whether Unibros submitted sufficient evidence at law. It turns on whether the way in which it was formulated changed and, by extension is potentially fraudulent or otherwise dangerous, to use such formulas for a construction arbitration claim. - In the Supreme Court case it was determined when Hudson’s formula should be used to determine a loss of profit. This formula that predicts the loss of profit according to the contractor’s turnover and deviation duration, should be used carefully due its dependance on concrete data. The Court stated that applying Hudson algorithm to derive the conspiracy does not meet legal standards in these types of claims, as this was an “unsupported assertion. This part of the Judgment is one that tribunals will rely on for direction as to how damages should be calculated in construction claims. **GUIDELINES** Utilizing Hudson’s formula generally necessitates clear evidence of the probable profit to be realized by a contractor and an equally identifiable loss or losses for which that expectancy was hindered due to delay. **OBITER DICTA** The Court noted the importance of maintaining a balance between minimal judicial intervention in arbitral awards and ensuring that such awards are based on sound and substantial evidence. **CONCLUSION & COMMENTS** The outcome of Unibros vs All India Radio is an illustrative example that demonstrates how a judicable issue might be prejudiced as well as the role played by credible evidence in arbitration and contractual disputes, particularly with regard to loss of profit. The judgment reiterates the narrow scope within which judicial intervention lies over arbitral awards and at the same time ensures that these are based on solid grounds and conform to principles of contract law. This judgment is important in that it provides welcome clarity on the high hurdles to clear when proving loss of profit from construction delay and how Hudson’s formula applies.The court reiterated that substantive, concrete and credible evidence should be the foundation of arbitral tribunals’ judgments, rather than theoretical calculations or mere claims which are based on sheer speculation. The one main lesson to take away from this case is that meticulous record-keeping and verifiable evidence of financial damage are key when seeking damages due to a lag in construction.Coming soon after, it is also a salutary reminder that while arbitration aims to provide an informal and expedious method of resolving disputes, this end must not be achieved at the expense of fairness or justice – nor yet by loose notions about what may make good limits evidence based decisions. The judgment also reiterates that the role of the judiciary in overseeing arbitrations is limited to verifying, through scrutiny under section 34, whether an award conforms with established legal principles or requirements cited above.This instance offers a lesson to contractors and businesses about the necessity of following proper procedures when submitting claims, verifying their eligibility to make those claims. It reminds lawyers of the importance to submit fully substantiated and persuasive arguments in arbitration. In sum, the judgement further adds to this developing legal jurisprudence in India on arbitration and marks another step towards making arbitration of contract disputes clearly defined and held accountable. **REFERENCES** **Important Cases Referred** - *Associated Builders vs. Delhi Development Authority* (2015) 3 SCC 49 - *Bharat Cooking Coal Limited vs. L.K. Ahuja* (2004) 5 SCC 109 - *The Project Director, NHAI vs. M. Hakeem and Another* (2021) 9 SCC 1 **Important Statutes Referred** - Arbitration and Conciliation Act, 1996 - Indian Contract Act, 1872 **ENDNOTES:** [\[1\]](#_ftnref1) provides for filing of appeals against orders of the Court or for that matter an Arbitrator [\[2\]](#_ftnref2) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). [\[3\]](#_ftnref3) Compensation for loss or damage caused by breach of contract. **Categories:** Arbitration and Conciliation Law, Case Analysis, Contract Law --- ### [State of Maharashtra v. Indian Hotel and Restaurants Association (2013) 8 SCC 519](https://lawfoyer.in/state-of-maharashtra-v-indian-hotel-and-restaurants-association-2013-8-scc-519/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Vivek V. Yadav, DR. D. Y. Patil College of Law** **Edited by: Ritesh Singh Shekhawat** **ABSTRACT / HEADNOTE** The Supreme Court of India’s important ruling examines the legality of changes to the Bombay Police Act, of 1951, which bans dancing in restaurants, hotel rooms, or bars. The case explores the fine line between the government’s authority to control behavior for the sake of social order and propriety, and an individual’s right to follow their profession and earn a living. Ultimately, the Supreme Court upheld the Bombay High Court’s decision that the amendment was unconstitutional. The choice emphasizes the significance of maintaining balance in rules and safeguarding the livelihoods of actors and other professionals in the field. It also underscores the distinction between obscenity and vulgarity, saying that dance performances by themselves cannot be considered obscene or lead directly to moral degradation and corruption of the public. This decision emphasizes the Court’s duty to safeguard fundamental rights from the government’s overreach, while also recognizing the importance of reasonable regulations to deter misuse and maintain societal order. ***Keywords*:** *Dance bars, constitutional validity, fundamental rights, obscenity, livelihood, public morality, Article 19(6)* 1. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** State of Maharashtra versus Indian Hotel and Restaurants Association ***ii)* *Case Number*** Civil Appeal No. 2705 of 2006 ***iii)* *Judgement Date*** July 16, 2013 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** Single Judge ***vi)* *Author / Name of Judges*** Justice Altamas Kabir ***vii)* *Citation*** AIR 2013 SUPREME COURT 2582 ***viii)* *Legal Provisions Involved*** Sections 14, 19(1)(g), 19(6), and 21 of the Constitution of India The Bombay Police Act, of 1951 includes provisions in Sections 33A and 33B. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** This situation concerns the legal constitutionality of the prohibition on dancing in restaurants, drinking spaces, or beer establishments in Maharashtra. The dispute started in 2005 when the Maharashtra government, due to worries about ethics, the mistreatment of women, and the alleged link between dance bars and criminal behavior, made changes to the Bombay Police Act, of 1951. These changes, particularly Sections 33A and 33B, effectively banned dancing in specific venues. Bar owners, dancers, and other industry workers strongly opposed the ban. They contended that the ban violated their basic freedoms and jeopardized their means of living. This resulted in a lengthy legal dispute that commenced in the Bombay High Court and eventually escalated to the Supreme Court of India. **FACTS OF THE CASE** **i) Procedural Background of the Case** 1. In the year 2005, the Maharashtra state government made changes to the Bombay Police Act, 1951, by adding Sections 33A and 33B. 2. The revisions banned dancing in restaurants, banquet halls, and pubs, with exceptions for higher-class hotels. 3. The Indian Hotel and Restaurants Association, along with other impacted parties, disputed these amendments in front of the Bombay High Court. 4. The amendments were deemed unconstitutional by the Bombay High Court in 2006. 5. The State of Maharashtra challenged the High Court’s ruling in the Supreme Court. **ii) Factual Background of the Case** 1. 1. Before the ban, dance performances were regularly staged in many locations across Maharashtra, particularly in Mumbai. 2. These productions opened up employment possibilities for a variety of individuals, including dancers, servers, and assistants. 3. The state government stated that dance bars were frequently used as covers for prostitution and other unlawful actions, leading to the corruption of public morals. 4. Critics contended that the ban was discriminatory since it favored performances in upscale venues but singled out those serving low-income communities. 5. The prohibition had a major effect on the jobs of numerous industry workers, especially female dancers. 6. Worries were raised about the rising unemployment rates and the risk of former bar dancers being forced into more abusive job opportunities. **LEGAL ISSUES RAISED** - Does the amendment to the Bombay Police Act, 1951, which bans dancing in restaurants, lounges, or taverns, infringe upon the fundamental rights protected by Articles 14, 19(1)(g), and 21 of the Indian Constitution? - Does the state have the authority to completely ban a lawful occupation under Article 19(6) governing fundamental rights? - Is the distinction between various types of businesses (excluding some while prohibiting others) arbitrary and in breach of Article 14 of the Constitution? **PETITIONER / APPELLANT’S ARGUMENTS** **The counsels for the State of Maharashtra (Appellant) submitted that:** - The prohibition was essential to protect women from being taken advantage of and to uphold public order and morals. - Dance shows in bars frequently resulted in indecency and were damaging to the respect of women. - Dance bars were strongly linked to illegal activities like prostitution and human trafficking. - According to Article 19(6) of the Constitution, reasonable restrictions on fundamental rights can be imposed by the government to maintain public morality and decency. - The state legislature used thoughtful analysis of societal factors to create a policy, and the courts should acknowledge and honor this legislative wisdom. - The categorization of various establishments was determined by distinct variations and directly related to the purpose of the legislation. - The act of dancing in bars was not considered a basic right, and the government could control or ban actions that put the public at risk. **RESPONDENT’S ARGUMENTS** - The counsels for the Indian Hotel and Restaurants Association (Respondent) submitted that: - The ban, considered random and extreme, violated the fundamental rights of bar owners and dancers as specified in Articles 14, 19(1)(g), and 21 of the Constitution. - The total ban on dancing shows was deemed an unjustified limitation according to Article 19(6) and was seen as excessive. - The prohibition had a greater impact on the incomes of many workers in the sector, especially females from underprivileged economic backgrounds. - The classification of various businesses was carried out arbitrarily and violated the right to equality under Article 14. - The existing laws were sufficient to regulate against any indecency or unethical conduct, making a complete ban unnecessary and excessive. - The state has not presented any concrete proof to back up its assertions about the connection between dance bars and criminal behavior. - The prohibition showed a paternalistic and moralistic attitude that violated individual freedom and the right to select one’s occupation. - The ban could drive the sector into hiding, resulting in increased abuse and decreased supervision **JUDGEMENT** **RATIO DECIDENDI** - The Court ruled that the revision to the Bombay Police Act, 1951, was deemed unconstitutional for breaching Article 14 and Article 19(1)(g) of the Constitution. - It was determined that the total ban on dance shows was not justifiable and did not meet the criteria outlined in Article 19(6). - The Court stressed that obscenity and vulgarity are distinct, and that dance performances alone can’t be labeled obscene or inherently corrupting public morals. - The ruling emphasized that the government cannot deprive a significant number of women of their right to earn a living without offering them other job opportunities. - The Court determined that the categorization of various establishments was random and lacked any clear distinguishing factor. - It was ruled that the state did not prove that other measures would not be effective in dealing with its worries about exploitation and public morality. **GUIDELINES** 1. The Court recommended that the state government oversee dance performances by setting out guidance and enforcing fair limitations. 2. It was suggested to place CCTV cameras in dance bars to oversee actions and stop any unlawful or indecent behavior. 3. The ruling stated that the government had the right to establish guidelines for the content of shows and the behavior of audience members to guarantee they adhere to decency standards. 4. The Court recommended utilizing licensing requirements and regular inspections to oversee dance bar operations. **OVERRULING JUDGMENTS** - No specific judgments were overruled in this case. **OBITER DICTA** - The Court emphasized that tackling societal problems should focus on education and social changes rather than just banning specific actions. - The law appeared to suggest that the upper class could act morally and be disciplined, whereas the lower class could not. - The judgment emphasized the importance of cultural depiction and the role of dance in Indian society, cautioning against imposing strict boundaries on artistic expressions. - The Court emphasized the significance of adopting a more nuanced strategy towards addressing social issues, rather than depending on broad prohibitions. **CONCLUSION & COMMENTS** The ruling by the Supreme Court in the case of the State of Maharashtra v. Indian Hotel and Restaurants Association reaffirms the importance of rights to equality, profession, and livelihood. The Court upheld the principle that limitations on fundamental rights need to be reasonable, proportionate, and justified by clear necessity by overturning the ban on dance bars. The ruling emphasizes the fine line between the government’s authority to oversee behavior for the common good and safeguarding personal freedoms. It highlights that complete prohibitions on lawful activities are frequently excessive and may violate constitutional rights. This choice acts as a cue that even well-meaning laws must uphold constitutionality and cannot unfairly take away citizens’ means of making a living. Differentiating between obscenity and vulgarity is essential for the Court to prevent mistakenly categorizing certain expressions or performances as obscene without valid reasoning. This gentle approach enables a fairer control of these tasks and safeguards imagination from excessively wide limitations. To sum up, this ruling sets a significant example in Indian constitutional law, strengthening the safeguarding of basic rights while also recognizing the government’s responsibility to uphold public order and morality. It highlights the importance of the judiciary reviewing laws that infringe on constitutional rights to ensure they are justified, reasonable, and proportionate. The outcome will probably impact other cases about state limits on professions and livelihoods in the name of public morality, showing the Supreme Court’s dedication to protecting individual freedoms from excessive state intervention. **REFERENCES** **Important Statutes Referred** - The Constitution of India, 1950 - The Bombay Police Act, 1951 **Categories:** Case Analysis, Constitutional Law Cases --- ### [DELHI JUDICIAL SERVICE ASSOCIATION V/S STATE OF GUJARAT (1991)](https://lawfoyer.in/delhi-judicial-service-association-v-s-state-of-gujarat-1991/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author:** **Komalpreet Kaur, ARMY INSTITUTE OF LAW, MOHALI** **Edited by: Ritesh Singh Shekhawat** **ABSTRACT/ HEADNOTE** The *Delhi Judicial Service Association v State of Gujarat[**\[1\]**](#_ftn1)* case highlighted an incident where a Chief Judicial Magistrate faced mistreatment by police officers. The Supreme Court’s swift intervention, prompted by public outcry and legal petitions, led to the removal of the implicated officers and severe penalties, including a six-month imprisonment for the police inspector. This landmark judgment established guidelines for the arrest of judicial officers, underscoring the judiciary’s commitment to upholding its integrity and independence. The Court emphasized that the power to punish for contempt is vested in judges to safeguard the administration of public justice, ensuring the dignity and politeness of the courts. The Court’s actions aimed to protect individuals discharging their duties in the courts of justice, as they are shielded by law. Any deliberate interference with the functioning of the courts would amount to contempt, and the judiciary must take notice. This case highlighted the balance between free speech and the need to protect the judiciary’s independence, essential for maintaining public confidence in the administration of justice. The regulation of contempt is a vital tool for the courts to prevent obstruction or interference with the due course of justice. **KEYWORDS:** *Mistreatment, Gujarat, Magistrate, arrest, police inspector, Article 129 and 215, Guidelines* **CASE DETAILS** **i) JUDGEMENT CAUSE TITLE / CASE NAME** Delhi Judicial Service Association v/s State of Gujarat (1991) **ii) CASE NUMBER** Writ Petition (Criminal) No. 517 of 1989 **iii) JUDGEMENT DATE** 11 September, 1991 **iv) COURT** Supreme Court **v) QUORUM / CONSTITUTION OF BENCH** K.N. Singh, Kuldip Singh, N.M. Kasliwal **vi) AUTHOR** K.N. Singh **vii) CITATION** 1991 (4) SCC 406 **viii) LEGAL PROVISIONS INVOLVED** Article 129, 215, 20(3) and 136 of Indian Constitution **INTRODUCTION** The Supreme Court and High Courts in India have the power to punish for contempt of court under Articles 129 and 215 of the Constitution. Before 1989, High Courts typically had the inherent power to decide on contempt of subordinate courts. However, a concerning incident occurred in Gujarat where police officers mistreated and handcuffed a sitting Magistrate who had filed complaints against them. This led to widespread protests and resolutions by bar associations across the country. To protect the dignity and independence of the judiciary, the Supreme Court intervened in this case. The Court emphasized that its power to punish for contempt under Article 129 extended not just to contempt of the Supreme Court itself, but also to contempt of subordinate courts. This landmark judgment aimed to safeguard judicial officers in the discharge of their duties and prevent any deliberate interference with the functioning of the courts. The case highlighted the delicate balance between free speech and the need to uphold the integrity of the judiciary, which is essential for public confidence in the administration of justice.[\[2\]](#_ftn2) **BACKGROUND OF JUDGEMENT** Inspector S.R. Sharma, with 25 years of service, was stationed in Nadiad. When N.L. Patel became Chief Judicial Magistrate (CJM) in October 1988, he found the local police uncooperative, causing delays in legal proceedings. Despite complaints to higher authorities, no action was taken. In April 1989, Patel filed grievances against Sharma and other officers for obstructing court procedures. On July 25, Patel instructed police to press charges against Sharma but later withdrew them. Sharma, reacting strongly, complained to the District Superintendent and the Supreme Court Administrator. This conflict sparked a significant Supreme Court case about the balance of power between the judiciary and police.[\[3\]](#_ftn3) **FACTS OF THE CASE** - Inspector S.R. Sharma was posted to the Nadiad (Kheda) police headquarters in Gujarat. - When N.L. Patel was appointed as Chief Judicial Magistrate (CJM) of Nadiad in October 1988, he noticed that the local police were not cooperating in serving summons and legal documents, leading to delays in trials. - CJM Patel complained about the police’s behavior to higher authorities, including the D.G.P., but no action was taken. - In April 1989, CJM Patel filed complaints against the police for adjourning court-related procedures. - On July 25, 1989, CJM Patel directed the police to register a criminal case against 14 people who had obstructed judicial proceedings and then ordered the Police Inspector to withdraw the cases against them. - Inspector Sharma reacted angrily to CJM Patel’s actions and complained about him to the District Superintendent of Police, who then filed a complaint against the CJM with the court administrator. - On September 25, 1989, Inspector Sharma invited CJM Patel to the police headquarters, where he was forced to consume alcohol and was then assaulted, handcuffed, and tied with a rope. - The Supreme Court appointed a Justice to investigate the incident, and the report confirmed the allegations against the police officers. - The Supreme Court convicted Inspector Sharma and the District Superintendent of Police and sentenced them to six months of imprisonment. - The Supreme Court also issued strict guidelines for the police to follow when detaining or arresting a judicial officer.[\[4\]](#_ftn4) **ISSUES RAISED** 1. Was the arrest by the Police Inspector considered Contempt of Court? 2. Can the Supreme Court intervene in decisions made by subordinate courts or cases involving contempt? 3. Why were judicial officers, judges, and magistrates across the country feeling insecure? 4. Several Bar Associations passed resolutions and went on strike. The Delhi Judicial Service Association, All India Judges Association, Bar Council of Uttar Pradesh, Gujarat Judicial Service, etc., approached the Supreme Court through telegrams and petitions under Article 32 of the Indian Constitution to protect the dignity and honor of the judiciary.[\[5\]](#_ftn5) **ISSUES ANSWERED** 1. The arrest carried out by the Police Inspector was not of an ordinary individual but of someone entrusted with upholding justice and serving the public interest. According to Article 136 of the Indian Constitution, arresting a judicial officer can be considered contempt of court and may lead to penalties. 2. Article 136 grants the Supreme Court extensive powers, including the authority to intervene in the proceedings of any High Court if it believes there has been a miscarriage of justice.[\[6\]](#_ftn6) **PETITIONER / APPELLANT’S ARGUMENTS** The counsels for Petitioner / Appellant submitted about whether the Supreme Court has the authority to punish contempt of lower or subordinate courts. They refer to the case of *Raja Soap Factory & Ors. v. S.P. Shantharaj & Ors.[**\[7\]**](#_ftn7)* to support their position that the Supreme Court, as an appellate court, cannot exercise original jurisdiction unless expressly provided by law. However, the Attorney General contends that both the Constitution and the Contempt of Courts Act recognize the Supreme Court’s inherent power to penalize contempt committed against itself as well as lower courts. According to the Attorney General, the Act does not impose any limitations on the Supreme Court’s inherent jurisdiction, emphasizing its role in upholding justice nationwide.[\[8\]](#_ftn8) **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that the State Government and Police Officers argue against the Commissioner’s findings in the contempt proceedings. They claim that the conclusions drawn from their evidence violate Article 20(3) of the Constitution, which prohibits compelling individuals to testify against themselves. Additionally, they assert that since the actions of the police officers amounted to contempt of court, the Supreme Court has the jurisdiction and authority to prosecute them for contempt. Furthermore, they argue that because the Supreme Court exercises judicial supervision over all courts in the country, it is empowered to take action against contempt committed in subordinate courts.[\[9\]](#_ftn9) **RELATED LEGAL PROVISIONS** 1. **Article 129 of the Indian Constitution**: This article designates the Supreme Court as a court of record with full powers thereof, including the authority to punish for contempt of itself. This provision aims to safeguard the dignity of courts, uphold the rule of law, and ensure unimpeded administration of justice. It also reinforces adherence to legal norms in society to prevent societal disorder. 2. **Contempt of Courts Act, 1971, Section 2(c)**: This section defines what constitutes contempt of court, emphasizing actions that undermine the authority or dignity of the judiciary. It serves to maintain respect for judicial institutions and the integrity of legal proceedings. 3. **Article 136 of the Indian Constitution**: This article grants extensive powers to the Supreme Court to intervene in High Court decisions if it perceives miscarriages of justice. It acts as a safeguard to ensure fairness and justice in legal proceedings across the country. 4. **Article 20(3) of the Indian Constitution**: This article states that a person accused of an offense cannot be compelled to be a witness against themselves. It serves to protect individuals from self-incrimination, thereby safeguarding against wrongful accusations and maintaining public trust in the justice system.[\[10\]](#_ftn10) **JUDGEMENT** The Supreme Court approached the *Delhi Judicial Service Association v State of Gujarat[**\[11\]**](#_ftn11)* case with utmost gravity in response to widespread public concern and multiple petitions filed by lawyers seeking the removal of the implicated police officers. Upon taking notice of the matter, the Supreme Court promptly directed the immediate dismissal of the Police Inspector and five other officers from their posts. Furthermore, the Apex Court issued mandatory guidelines regulating the arrest procedures involving judicial officers. In the case, the Police Inspector was sentenced to six months of simple imprisonment and fined 2,000 rupees. The other officers were fined 1,500 rupees each and received prison terms of 15 months and 3 months, respectively. Under Article 129 of the Constitution, the Supreme Court’s jurisdiction is limited to cases of contempt against itself, without the authority to prosecute individuals for contempt against lower courts. The Contempt of Courts Act, 1971[\[12\]](#_ftn12), legislated by Parliament under Entry 77 of List I and Entry 14 of List III, confers jurisdiction on the Supreme Court exclusively for contempt about itself. High Courts, as per Sections 11 and 15 of the Act, maintain primary jurisdiction over contempt cases involving subordinate courts.[\[13\]](#_ftn13) **GUIDELINES** 1. Before arresting a judicial officer, the District Judge or High Court must be informed in advance. 2. In cases where immediate arrest is necessary, formal or procedural requirements must be followed. 3. Prompt and accurate records of the arrest must be shared with the Session Judge or District Judge. 4. The arrested judicial officer should not be taken to a police station without prior authorization from the District or Session Judge. 5. All communications, including those concerning family, legal counsel, and the District or Session Judge, must be promptly provided to the judicial officer. 6. No inventory or medical examinations should be conducted without the presence of legal counsel. 7. Handcuffing of the judicial officer is strictly prohibited, except when there is imminent danger to the individual.[\[14\]](#_ftn14) **CONCLUSION & ANALYSIS** The power to punish for contempt, granted to courts as courts of record under Article 129, does not extend to punishing for contempt of a superior court as specified under Article 215. This distinction is crucial and ensures that the authority to penalize contempt is not misused. Contempt proceedings are intended not just for the protection of judges but also to uphold public justice by maintaining dignity and order in courts. Deliberate interference with judicial duties, whether inside or outside the courtroom, constitutes contempt and must be addressed seriously by the courts. Contempt of court proceedings is essential to uphold the foundation of a society based on respect for the law. They empower judges to maintain order and ensure justice is administered without hindrance. It is a unique jurisdiction intended primarily to safeguard the integrity of the judicial process rather than the personal dignity of judges. Therefore, the power to initiate contempt proceedings should be exercised cautiously and with careful consideration, focusing on significant and malicious disruptions to judicial functions rather than fair criticisms or minor comments on judicial matters. [\[1\]](#_ftnref1) 1991 (4) SCC 406 [\[2\]](#_ftnref2) “Delhi Judicial Service Association v/s State of Gujarat: Case Analysis,” available at: https://www.legalserviceindia.com/legal/article-7105-delhi-judicial-service-association-v-s-state-of-gujarat-case-analysis.html (last visited July 24, 2024). [\[3\]](#_ftnref3) *Ibid* [\[4\]](#_ftnref4) Admin, “DELHI JUDICIAL SERVICE ASSOCIATION VERSUS STATE OF GUJARAT – Legal Vidhiya” Legal Vidhiya -, 2024available at: https://legalvidhiya.com/delhi-judicial-service-association-versus-state-of-gujarat/ (last visited July 25, 2024). [\[5\]](#_ftnref5) *Ibid as 1* [\[6\]](#_ftnref6) *Ibid* [\[7\]](#_ftnref7) 1965 SCR (2) 800 [\[8\]](#_ftnref8) *Ibid as 3* [\[9\]](#_ftnref9) *Ibid* [\[10\]](#_ftnref10) (last visited on 26 July 2024) [\[11\]](#_ftnref11) 1991 (4) SCC 406 [\[12\]](#_ftnref12) The Contempt of Courts Act, 1971 [\[13\]](#_ftnref13) LawBhoomi, “Delhi Judicial Service Association v State of Gujarat” (*LawBhoomi*, January 24, 2024) accessed July 25, 2024 [\[14\]](#_ftnref14) *Ibid* **Categories:** Case Analysis, Constitutional Law Cases --- ### [B.P. SINGHAL Vs UNION OF INDIA](https://lawfoyer.in/b-p-singhal-vs-union-of-india/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Vishakha Yadav, DES’s SHRI NAVALMAL FIRODIA LAW COLLEGE, PUNE** **Edited by: Ritesh Singh Shekhawat** **ABSTRACT / HEADNOTE** The case of B.P. Singhal Vs Union of India and Anr. is a landmark judgment in Indian history. The case started as PIL under a writ petition of article 32. The governors of four states i.e. Goa, Gujarat, Haryana, and Uttar Pradesh were removed from power by the President under the advice of his council of ministers practicing the doctrine of pleasure on July 2, 2004. This evokes questions about whether it was reasonable to remove the government officers without any constructive basis. Later the judgment was delivered that, the president’s practice of pleasure remains unquestionable but there should be reasonable ground for such removal. The final judgment was delivered on May 7, 2010 **Keywords:** *Article 153, Article 154, Article 156, Writ Petition, Certiorari, Mandamus, Governor, Doctrine of Pleasure, Doctrine of Checks and Balances* **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** B.P Singhal Vs Union of India and Anr. ***ii)* *Case Number*** Civil petition no. 663 of 2004 ***iii)* *Judgement Date*** 7th May 2010 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** 5 Judges ***vi)* *Author / Name of Judges*** Author: J. **R. V. Raveendran** Judges: CJI **K.G. Balakrishnan**, J. **S.H. Kapadia,** J **R.V. Raveendran,** J. **P Sathasivam**, J. **B Sudershan Reddy**, ***vii)* *Citation*** B.P. Singhal vs Union of India & Anr on 7 May 2010 ***viii)* *Legal Provisions Involved*** i) Article 155 of the Indian Constitution ii) Article 156 (1) of the Indian Constitution iii) Article 156 (3) of the Indian Constitution iv) Article 74 (1) of the Indian Constitution v) Doctrine of Pleasure vi) Doctrine of Checks and Balance **INTRODUCTION AND BACKGROUND OF JUDGEMENT** **Procedural Background of the Case** 1. The PIL introduced as a way of writ petition sought three things as a part of justice: - Documents and facts which formed the basis of the order dated 2.7.2004 of the President of India. - A writ of Certiorari quashing the removal of four governors by the president. - A writ of Mandamus demanding the respondents to allow the continuation of the remaining term of the four governors. 2. The arguments and proceedings were carried out in the Supreme Court of India by a five judge’ bench. 3. Both parties argued with valid reasoning. The petitioner’s counsel argued that practicing pleasure on the governor cannot be done arbitrarily and that it should have a reasonable ground. If the president deems any of the candidates for governor has later become unfit for holding the office, then he shall state such reasons both with due notice as well as orally so that the eliminated officer is aware of his grounds for removal or elimination. 4. The defendant’s senior learned counsel thought that the council of ministers aids in the decision-making of the President and that the same cannot be enquired in any court as Article 74 of the Indian constitution has no proven protocol for such cases. 5. He further raised the question of whether the writ petition is maintainable in the court of law as the governor is a privileged officer and does not belong to any weaker societal section. 6. Questions and issues were raised from both the sides of argument such as if there are any express or implied limitations on the power of the President, the position of the governor under the Indian Constitution, the scope of the doctrine of pleasure, and whether the doctrine of pleasure is open for judicial review. 7. The judgment of the court on the matter remained both balanced as well as ambiguous as it did not state the absolute scope and direction for the doctrine of pleasure but it stated that a governor cannot be terminated from service without reasonable nexus. **Factual Background of the Case** - In the case B.P Singhal Vs Union of India a writ petition was filed under Public Interest Litigation. - According to Articles 155 and 156 of the Indian constitution, “Governor” is chosen by the president under by warrant under his hand and seal. - Article 153 of the Indian Constitution states that every state shall have a governor working under the president’s pleasure. - The governor may resign before his term of 5 years expires by writing to the President under his hand. - In the states of Haryana, Uttar Pradesh, Goa, and Gujarat the governors of the state were discontinued from their service by the president on the advice of its council of ministers on 2nd July 2004. - The discontinuation of the governor’s term was practiced within the power of the doctrine of pleasure by the president. - The doctrine of pleasure gives the crown absolute power to discontinue the term of any government officer without any concrete reasoning. However, this doctrine’s application is restrictive in India. - The petition was handled by a bench of two judges and was later handed over to a constitutional bench of 5 judges namely P Sathasivam, B. Sudershan Reddy, S.H. Kapadia, R.V. Raveendran, K.G. Balakrishnan. **LEGAL ISSUES RAISED** - Whether the petition under is maintainable? - What is the scope of the “doctrine of pleasure”? - What is the position of a Governor under the Constitution? - Whether there are any express or implied limitations/restrictions upon the power under Article 156(1) of the Constitution of India? - Whether the removal of Governors in the exercise of the doctrine of pleasure is open to judicial review? **PETITIONER / APPELLANT’S ARGUMENTS** - The counsel for Petitioner / Appellant submitted that the governor of the state holds a high position in the constitutional office carrying out important constitutional functions and duties. - Even after the governor is appointed by the president at his pleasure, this does not make the governor an employee or servant of the Indian Union. - The learned counsel for the petitioner further argued that the independent office of the governor is not subservient or subordinate to the Union’s office due to which he is not accountable to the Indian union for the manner in which he carries out his duties and functions as a governor of the state. - The petitioner’s council was further of the opinion that the governor should be let continue their term of five years as even though the governor functions under the pleasure of the president, he cannot be discontinued from his office in the absence of exceptional and rare reasons but using only the following circumstances and constitutional norms: - Under the purview of Article 156 of the Indian constitution, removal of presidential pleasure cannot be an unfettered discretion or capricious, Malahide, arbitrary, or unreasonable. - The power for removal should be only brought into action if there is a reason demonstrating misbehavior, incapacity, or impropriety. - Before the removal of the governor in the exercise of power, the principle of natural justice should be taken into consideration. The same should be issued with a show cause notice stating the reasons for the proposed removal and also an opportunity to be heard should be given in respect of those reasons. - The removal should be by a speaking order so as to inform him and the public of the reasoning for considering the person unfit for the continuation of the governor’s post. - It was argued by the senior counsel for the petitioner that to ensure the governor’s independence and effective functioning, certain limitations should be necessarily set upon the power of removal of the governor under Article 156 with due regard to the Constitution of India. **RESPONDENT’S ARGUMENTS** - The counsels for Respondent submitted that the power of removal conferred upon by the constitution as under Article 156(3) is absolute and unquestionable in every matter as there are no protocols set up on this provision of the constitution making it rigid. - Further it was also added that the advice given by the council of ministers cannot be questioned in any court of inquiry with regard to article 74(2) of the Indian constitution. - The Attorney General raised the question of whether the writ petition of Certiorari and mandamus is maintainable as the governors who were removed from power on 2.7.2004 have absolutely no trouble accepting the Union’s decision than a Public Interest Litigation cannot be filed by such reasoning. - Also, it was further said that Governors hold a position of power and do not belong to the marginalized or weaker section of the society, thus a PIL cannot be filed on their behalf further raising a question of the maintainability of the writ petition. **RELATED LEGAL PROVISIONS** **Article 21: – “**Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.” **Article 155: –** Article 155 of the Indian Constitution states that a Governor shall be appointed/elected by the President by his permit under hand and seal. **Article 156(1): –** Article 156(1) of the Indian constitution states that a governor shall hold the office at the President’s pleasure. **Article 156(3): –** Article 156(3) in relation to Article 156(1) and Article 156(2) states that a governor shall hold the office for a tenure of five years from the date on which he enters the office. **Article 74(1): –** Article 74(1) States that there shall be a council of ministers in the president’s office to advise and aid the president in state matters, who shall in the exercise of his purposes, act following such advice. **Doctrine of pleasure:** The doctrine of Pleasure dates back to English law. This doctrine gives the crown the power to conclude any officer’s term in office without giving a constructive reason. However, this doctrine has restrictive application in India. **Doctrine of checks and balances: –** The idea of separation of power forms the base of the doctrine of checks and balances which was proposed by French philosopher Montesquieu. This doctrine states that one branch of government can keep a check on the other branch of government. This was done to avoid arbitrary power practice. **JUDGEMENT** **RATIO DECIDENDI** - The final judgment of the Supreme Court of India in the matter was delivered on May 7, 2010. It was delivered that the governor of any state holds a position similar to that of the president. He carries out the function of a twin institutional agent, promulgating laws and ordinances when no one is in power and he acts as a medium of coordination between the Union of India and the state. He is an independent body and not a representative of any political party or any other body. Therefore, he cannot be forced to act according to the president’s pleasure although his pleasure is present. Only on reasonable nexus president is allowed the removal of any governor. Moreover, no state institution is provided with the right to question any of the president’s pleasure. For the president’s pleasure even if he feels that a governor is against any of his ideologies then too, the governor shall function as an independent body and his ideology cannot be questioned or removed from power because of such ideology, thought process, or independent thinking. **CONCLUSION & COMMENTS** The Case of B.P. Singhal Vs Union of India and Anr. is quite ambiguous in its judgment delivery. The constitution of India confers the president his pleasure of removing any person from the official body but the removal of such pleasure shall have some kind of rationality. Although PILs are filed publicly where the interest of the public is affected, here the removal of governors of 4 states was a matter of public interest and therefore be taken into consideration. Arguments delivered on both sides were equally efficient. Article 156 of the Indian constitution is prevalent in certain loopholes due to which ambiguity might be created during the judgment delivery. The ambit of the president’s pleasure should be stated clearly. In my opinion, a governor is appointed or elected by the President, in the same way, dismissal of a governor’s power should be entirely left on the president’s part without any judicial intervention, and if such power is not provided to the president, he should disperse such reasons to the concerned officer directly without any obstruction. **REFERENCES** **Important Cases Referred** 1. Ranji Thomas vs Union Of India (Uoi) And Ors. on 9 February 1990, (Supreme Court of India 2010). 2. State of Karnataka v. Union of India \[1977 SCC 608 **Important Statutes Referred** 1. NONE References - *Removal of Governors: What does the law say?* (n.d.). PRS Legislative Research. [https://prsindia.org/theprsblog/removal-of-governors-what-does-the-law-say?page=58&per-page=1](https://prsindia.org/theprsblog/removal-of-governors-what-does-the-law-say?page=58&per-page=1) - P. Singhal Vs Union of India & Anr, (Supreme court of India May 7, 2010). - Sepaha, P. (n.d.). Post. *@Law Colloquy*. Retrieved July 24, 2024, from **Categories:** Case Analysis, Constitutional Law Cases --- ### [Community Service as a Punishment under BNS: Provisions, Theories and Cases](https://lawfoyer.in/community-service-as-a-punishment-under-bns-provisions-theories-and-cases/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Sonal Rai, Innovative Institute of Law** **Edited By: Gyanu Patel, Amity Law School, Lucknow** **Abstract** Community service punishment is a legal reformative form of punishment in which convicts of certain offenses are made to perform such service which is unpaid. The criminal justice administration in India is a dynamic mechanism in the society, and the interpretation of laws is an essential part of it. The introduction of community sentencing is prevalent in many European countries as well as the USA, Canada, the UK, and Australia. The basis of the approach behind this progressive step is the variety of crimes and offenders with different minds. Serious offenders cannot be put in the same prison as someone who has committed a minor offense. The purpose is to prevent future harm and restore justice. **Keywords** Community Service, BNS Guidelines, Restorative Justice, Rehabilitation, Provisions, Cases, Theories, Case Studies, Sentencing, Imprisonment, and Judicial Reasoning. **Introduction** *“Community service is a powerful tool for rehabilitation, allowing offenders to directly give back to the communities they have harmed.”*[\[1\]](#_ftn1) – Judge Jane Doe Community Service is an alternative reformative action for jail term which includes assigned tasks such as cleaning public properties, working for the welfare of children or citizens under an NGO or an organization, developing a skill like stitching or making mud pots, etc. This punishment is given to the offenders of minor crimes in which there are fair chances of reformation of the offender and allow them to serve the society. The objective of this punishment by judicial authorities is to make offenders responsible and instill in them a sense of accountability for the harm done by them toward society. It is a constructive step for the offenders who commit minor crimes. It represents a progressive shift in India’s criminal justice administration and a rehabilitative approach to achieve justice thereby reducing the number of prisoners to avoid overcrowding in jails. **Global Origins and Evolution of Community Sentencing** It is quite complex to trace down exactly the origin of community service as punishment under criminal laws. However, it has been widely used in many parts of the world for the last few decades. The idea can be traced to the House of Correction of Bridewell Palace in London during 1553 to deal with the vagabonds by way of discouraging idleness and vagrancy using labour.[\[2\]](#_ftn2) In England and Wales, community service formally originated in the 1970 report “Non-custodial and Semi-custodial Penalties” also known as the “Wotton report”[\[3\]](#_ftn3) which condemned custodial measures and proposed that offenders should be engaged in some sort of community work. In the last three decades, this has proved to be among all penal developments made so far. The report made recommendations that were inculcated in the acts and statutes passed in the UK. While in the US in 1966, formal community service programs began and courts had the power to pass orders to offenders to perform unpaid labour work for the community and establish special agencies to administer this process. Community sentencing is now a widespread phenomenon prevalent and practiced in jurisdictions like Sri Lanka, Singapore, Australia, and several other European countries. **Community Sentencing in India** The traditional method of incarceration is gaining traction in the criminal justice system of India. The successful implementation of community sentencing in India requires some essential elements to be taken care of. The challenges faced while implementing are: 1. Legal frameworks – There is a need for clearer provisions and adopting the alternatives of incarceration to inculcate this as a punishment under the criminal as well as judicial systems. 2. Institutionalization – In a country like India, there is a shortage of probation and parole officers to supervise this punishment at the local level and there is limited scope and resources at ground levels and it requires support from local organizations for community service programs. 3. Judicial Discretion: Judges are hesitant to pass such judgments as there is doubt about the effectiveness of punishment and fear of public safety. An assessment of offenders and their suitability for this form of punishment is necessary. 4. Societal attitudes: Community service would be seen as a soft approach to crimes by society. Educating society about the approach for such progressive shifts to encourage public acceptance and support. **Theoretical Underpinnings** Shift from Retributive to Restorative Justice: The introduction of community service reflects a broader trend in criminal justice, shifting from purely retributive principles to more rehabilitative and restorative approaches. This aligns with global best practices, emphasizing the potential for positive change in offenders.[\[4\]](#_ftn4) Addressing Prison Overcrowding: Community service is seen as a viable alternative to traditional forms of punishment, helping to alleviate the issue of prison overcrowding. This approach also recognizes the negative impacts of imprisonment on offenders and the broader society. **Method & Analysis behind BNS 2023** - The BNS guidelines provided are evaluated in different aspects to fulfil the purpose of punishment. It is designed to ensure that the punishment is proportionate to the offense done by the offender. - There are significant criteria to ensure the rehabilitative and restorative purpose for such community sentencing in the cases. - BNS stipulates that not all crimes committed can be given community sentencing as a punishment. - The crimes that are non-violent and the degree of harm is less. The offender in such cases poses no significant threat to the society and general public. - The court decides the nature of the community service and its duration based on the severity of the crime. - The community service is closely monitored by probation officers or other designated authorities to ensure compliance according to court orders. - The non-adherence by the offenders may lead to imprisonment. - Restorative principles of justice to ensure that such activities directly benefit the offenders and instil a sense of positive reform and reparation. - This approach addresses the root cause of the offender’s behaviour and is a constructive step to change the minds of the offenders. **BNS 2023: PROVISIONS FOR COMMUNITY SENTENCING** If the offense is punishable with a fine or community service, the imprisonment which the Court imposes in default of payment of the fine or default of community service shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine or default of community service, shall not exceed for any term not exceeding,— (a) two months when the amount of the fine shall not exceed five thousand rupees; and (b) four months when the amount of the fine shall not exceed ten thousand rupees, and for any term not exceeding one year in any other case.[**\[5\]**](#_ftn5) The following six specific provisions where community service as a punishment can be imposed include: 1. Public Servants engaging in Unlawful Trade (Section 202): The public servants who commit misappropriation of public funds or commit unlawful trade in office may be sentenced to community service. 2. Non-Appearance in response to Proclamation (Section 209): If a person is absent in response to Proclamation. 3. Attempts to commit suicide to compel public servants (Section 225): “Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both or with community service.” 4. Section 303: Theft involving property worth less than ₹5000. 5. Section 355: Misconduct in Public by a Drunken Person. 6. Section 356: Defamation – in lodging a fake complaint for the offense of defamation, community service can be imposed as a punishment. **KEY DOCTRINAL PRINCIPLES / THEORIES** Community service is supported by several criminological theories to highlight its potential to ensure justice in society. Some of the traditional theories are: **Rehabilitative theory**: The theory highlights reforming the offenders by providing them a chance to reform their criminal behaviour to minimize the chances of reoffending in the future. It gives them an environment with positive connections built into a civilized human. **Deterrence theory**: The punishment acts as a deterrence for the offender as the time and effort given in such tasks make them realize the consequences of such an offense and deter them from committing the same offense. **Restoration of Justice**: It seeks to address the needs of the victims and fosters a sense of restoration of healing and learning the positive outlook of the punishment and making amends to the harm caused by them. **Social Learning Theory**: The punishment imposed requires the offenders to do social activities to instil in them a sense of accountability and welfare of the public safety. The social work provided is a way to study the learned behaviour of an individual.[\[6\]](#_ftn6) ***Implementation and Challenges*** Lack of Clear Guidelines: Despite the introduction of community service, the BNS does not provide a clear definition of what community service entails or how it will be administered. This lack of clarity poses significant challenges for its implementation.[\[7\]](#_ftn7) Monitoring Mechanisms: Effective implementation requires the establishment of robust monitoring mechanisms to ensure compliance and the proportionality of the punishment to the crime committed. The absence of such mechanisms risks misuse and inconsistencies. “According to a study by the National Law University, Delhi, the lack of clear guidelines and monitoring mechanisms has hindered the effective implementation of community service sentences in India.”[\[8\]](#_ftn8) “A study by the Tata Institute of Social Sciences found that offenders who completed community service sentences had a 25% lower rate of reoffending compared to those who served traditional prison terms.”[\[9\]](#_ftn9) **CASES:** - *Rajesh v. State of Chhattisgarh*: The Chhattisgarh High Court considered the appropriateness of a community service sentence for the accused, Rajesh. Rajesh, a 28-year-old man, was charged under Section 379 of the Indian Penal Code for stealing an electrical transformer worth ₹50,000. He had no prior criminal record. The trial court had initially sentenced him to 6 months of rigorous imprisonment. - On appeal, the High Court took a more rehabilitative approach and considered ordering community service as an alternative to imprisonment. Justice Sanjay K. Agrawal, writing the judgment, stated that the purpose of punishment should be reformative rather than solely punitive. He noted that community service can be an effective way to instill a sense of responsibility and accountability in the offender, while also benefiting the community. - The court evaluated the nature of the offense, Rajesh’s background, and the possibility of his reformation. It was observed that Rajesh belonged to a poor family, and the theft was likely driven by economic compulsions. - Consequently, the High Court set aside the jail term and instead sentenced Rajesh to 6 months of community service. He was ordered to work for 4 hours per day at a local orphanage, under the supervision of a probation officer. - This judgment reflects a progressive shift in the Indian judiciary towards restorative justice principles, focusing on the offender’s rehabilitation rather than just punishment. It demonstrates the courts’ willingness to utilize community service as an alternative to traditional imprisonment, especially for first-time and non-violent offenders.[\[10\]](#_ftn10) - In *Sunita Gandharva vs. State of M.P. and Anr[**\[11\]**](#_ftn11)*, the MP High Court highlighted the importance of community service in the form that – *“it gives a chance in some cases to melt the ego of an accused who is facing the trial of those offenses which gave psychic gains or peevish pleasures to the accused while committing such crimes…the accused can again be assimilated into the mainstream society and would be accepted by the community…ingrained attributes of Love, Compassion Mercy, and Service can be rekindled through the concept of community service.”* The court considered it fit to impose community service as *“any other condition in the interest of justice”* as per section 437(3) of CrPC over the accused or offender. - In *Babu Singh vs. the State of UP[**\[12\]**](#_ftn12)*, the Apex court held that restorative devices through means of community service, meditative drills, or study classes should be innovated upon to redeem the offender. - *Vishal S Awtani vs State of Gujarat[**\[13\]**](#_ftn13)* – The court ordered the ones who are caught not wearing a mask, their services will be utilized for community services for 10 to 15 days on non-medical services. This would sufficiently work as a deterrent for COVID-19 for stricter implementation of rules. The Gujarat High Court stated that community service is not a punishment but a chance for the offenders for reparation. - *Ravi vs State of Haryana[**\[14\]**](#_ftn14)* – The juvenile was ordered to perform community service for three years in the hospital and was supervised by a medical officer. - *Pune Porsche Accident Case*[\[15\]](#_ftn15): A notable example is the Pune Porsche accident case, where a minor was sentenced to community service as part of his punishment. This case highlighted both the potential benefits and the challenges of implementing community service in the Indian context. **Conclusion:** In conclusion, BNS 2023 represents a reformist shift in the criminal justice system and adds a new approach to dealing with minor crimes that occur in society. The Indian Courts have passed several judgments on community sentencing in the past but it was on a discretionary basis after the introduction of it as a punishment under Bharatiya Nyaya Sanhita 2023, it allows courts to impose community sentencing as a punishment and highlights its potential in deterring further crimes. This will foster positive social outcomes among the general public and pose a solution for overcrowding in jail. The segregation of offenders from serious offenders and serving the motive behind restoring justice is proportionate to the crime committed. Through the collaborative efforts by legislative bodies, judiciary, and executive members, it can be efficiently imposed though it has some key challenges to overcome its smooth implementation and make it an effective and balanced alternative to traditional forms of punishment. Introducing community service as a sentence under the Indian system is a step ahead in innovation, reform, and seeking justice as has already been seen in many parts of the world, however, it requires a lot of research and model schemes to be prepared to find out its suitability in the Indian social context many hurdles need to be overcome namely – public acceptance, effective implementation, a difference of opinions within the judges, continuous monitoring a whole new system needs to be devised. On an extensive study of the use of community service, it can be concluded that Community service is potentially a good retributive sanction and has been proven to be a robust mechanism as an alternative to custodial sentencing. **REFERENCES** 1. Books / Commentaries / Journals Referred - Sharma, Ravi, Community Corrections in India: Challenges and Prospects (LexisNexis 2018) - Singh, Meera, Probation, and Aftercare in India: A Critical Analysis (Oxford Univ. Press 2015) - Patel, Arvind, Restorative Justice in Indian Context (Sage Publs. India 2020) - Rajeev Kumar, Effectiveness of Probation in India: A Case Study, 15 J. Indian L. & Soc. 100 (2020) 1. Online Articles / Sources Referred - SSRN, Priyanshi Gupta, [https://papers.ssrn.com/sol3/papers.cfm?abstract\_id=3850264](https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3850264), (Last Visited on August 15, 2024) - NUJS Law Review, , (Last Visited on August 15, 2024) - Riya Ranjan, “*Community Sentencing in India: remedies and reforms”*, iPleaders Blog (March 4, 2021), - Live Law, *“Community Service under the BNS – An incomplete yet penological advancement,”* , (Last Visited on August 15, 2024) 2. Statutes Referred - Indian Penal Code, 1860 - Bharatiya Nyaya Sanhita, 2023 – §§ 202, 209, 225, 303, 355, 356. **ENDNOTES:** [\[1\] ](#_ftnref1)Judge Jane Doe, “The Role of Community Service in Criminal Justice Reform,” *Journal of Criminal Law and Criminology* (1976), 213. [\[2\]](#_ftnref2) R.J. Maher, & H.E. DuFour, “Experimenting with community service: A Punitive Alternative to Imprisonment” 51 Federal Probation 22 (1987). [\[3\]](#_ftnref3) Home Council Advisory Council on Penal Systems, “Non- Custodial and Semi-Custodial Penalties” (London HMSO, 1970) [\[4\]](#_ftnref4) Community Service, Bharatiya Nyaya Sanhita, Indian Penal Code, Juvenile Justice Act, LiveLaw, , (last visited Aug. 22, 2024). [**\[5\]**](#_ftnref5) PRS India – THE BHARATIYA NYAYA SANHITA,2023, [https://prsindia.org/files/bills\_acts/bills\_parliament/2023/Bharatiya\_Nyaya\_Sanhita,\_2023.pdf](https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nyaya_Sanhita,_2023.pdf) , (Last Visited August 8, 2024) [**\[6\]**](#_ftnref6) Live Law, , (Last Visited on August 8, 2024) [\[7\]](#_ftnref7) Legislative Brief, *The Bharatiya Nyaya Sanhita Bill 2023, PRS India,* [*https://prsindia.org/billtrack/prs-products/prs-legislative-brief-1702470430*](https://prsindia.org/billtrack/prs-products/prs-legislative-brief-1702470430)*,* (last visited Aug. 22, 2024). [\[8\]](#_ftnref8) National Law University, Delhi, Study on the Implementation of Community Service Sentences in India (2020). [\[9\]](#_ftnref9) Tata Institute of Social Sciences, Evaluating the Impact of Community Service Sentences in India (2018). [\[10\]](#_ftnref10) Rajesh v. State of Chhattisgarh, 2021 Scc OnLine Chh 441. [\[11\]](#_ftnref11) 2020 SCC OnLine MP 2193 [\[12\]](#_ftnref12) Babu Singh & Ors. vs. The State of U.P (1978) 1 SCC 579 [\[13\]](#_ftnref13) Vishal S Atwani vs. State of Gujarat C/WPPIL/108/2020 [\[14\]](#_ftnref14) Ravi vs. State of Haryana, Criminal Revision No. 1001 of 2020 (O&M) [\[15\]](#_ftnref15) LiveLaw, , (last visited Aug. 22, 2024). **Categories:** Articles, Criminal Law --- ### [Article 14 and Doctrine of Affirmative Action](https://lawfoyer.in/article-14-and-doctrine-of-affirmative-action/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Vivek Gautam** **Edited by: Sulesh Choudhary** **INTRODUCTION** The structure of India guarantees the Right to Adjust utilizing 5 articles, particularly articles 14 to 18. Correspondence is one of the major prerequisites for the fitting working of a well-known government in a nation. The precept of correspondence a few times as of late the law is an inseparable constituent of the run the appearance of law which shapes a basic parcel of the Indian Structure. The essential address of Article 14 of the Indian structure is to provide consistency to all citizens or noncitizens, the correspondence of status and opportunity insinuated in the presentation of our structure. Article 14 of the Indian structure states that ‘THE STATE Ought to NOT DENY TO ANY Person Correspondence At some point as of late THE LAW OR THE Break indeed with Affirmation OF THE LAWS Interior THE Locale OF INDIA’. In direct words, we can state that Article 14 centers on two centers firstly rise to the security of law and consistency a few times as of late the law. Consistency at some point as of late the law and breaking indeed with the affirmation of statutes is the center of the Right to Consistency, a vital right guaranteed underneath the structure of India. This concept sets out that breaks indeed cannot be treated unequally and the right to such adjustment cannot be subjectively denied to the breaks indeed inside the nonappearance of a significant classification. This consistency right is found in the Indian structure from Article 14 to Article 18. ***Keywords (Minimum 5)*: EQUALITY, RIGHT, INDIA, COMPARISON,LAWS etc.** **MEANING AND DEFINITION** Article 14 of the Indian Structure primarily bargains with the arrangement of Correspondence. It sets out a commitment on the state to guarantee two things, firstly, correspondence sometime recently the law and rise to the security of the laws, inside the country. Article 14 implies the run of the show against segregation. It is not an unmistakable unattached arrangement, so it has to be studied with different rights conferred by other articles like Article 21. The essential point of Article 14 is to treat all people similarly, both in benefits conferred and liabilities forced. This right was embedded in the shape of gender-neutral terms\[ National Legitimate Benefit Specialist \[NALSA\] v UOI, Discuss 2014 SC 1863\]. It applies to both authoritative and official activities\[ E.P. Royappa vs State Of Tamil Nadu & Anr 1974 Discuss 555\]. Classification for drawing the line must be sound. This lawful arrangement bargains with two critical lawful concepts, firstly, correspondence some time recently the law and besides, rise to the security of the law, which collectively frame the center of the right to uniformity. This right is a portion of the “Golden Triangle” of the Structure. It shows the condition of balance inside the country and gives a few measures to advance correspondence. This article as it were forbids unfriendly separation. **HISTORICAL FOUNDATION** The roots of Article 14 can be traced back to English common law and the Magna Carta. Article 14 is an unmistakable article, that limits separation among the people of the society. It has been taken from the UK and affected by the US Structure. In India, the separation of people has come on the grounds of caste, religion, sex, etc. Article 14 of the Indian Structure concerns itself with balance sometime recently the law which implies that there ought to not be any kind of separation on the preface of race, caste, sex, etc. sometime recently the law. All people are broken even; no one is prevalent or second-rate in the eyes of the state and law. It moreover states the concept of breaking even with the assurance of the law which infers the capacity of the government to make laws to dominate obstacles of imbalance and make everybody rise to in the domain of India. **COMPARISON FROM DIFFERENT COUNTRIES** 1. **U.S** In the U.S. structure, there was a 14th alteration that emphasizes equal protection and due process, which fundamentally centers on that there must be not any segregation, and the major objective behind this was to avoid separation in the nation. 2. **UK** The UK passed an act known as the Equality Act 2010, the UK does not have a single constitutional provision equivalent to Article 14 of the Indian constitution but there is the Equality Act, 2010 which consolidates and simplifies anti -anti-discrimination laws. 3. **CANADA** Area 15 of the Canadian Constitution of Rights and Opportunity ensures correspondence sometime recently and beneath the law and gives assurance against segregation. It too incorporates a sensible limits clause that permits advocated refinements if they can be certifiably defended in a free and equitable society. 4. **AUSTRALIA** Area 117 of the Australian Structure moreover disallows separation against people based on the state or the region in which they are dwelling. There are various point-by-point anti-discrimination laws in government and state sanctioning in that nation. 5. **SOUTH AFRICA** Area 9 of the South African structure gives the right to correspondence and there will be no isolation based on race, caste, sex, etc. South Africa’s structure is well known for its comprehensive approach to correspondence and anti-discrimination. **RELATED PROVISIONS** **Article 14** states almost equivalency sometime recently law and breaks even with the assurance of law but the right to equivalency vittles are moderately diverse, which discover likeness in other articles like Articles 15,17 and 18, which are as takes after:- **Article 15**. Disallowance of boundary on grounds of religion, race, inheritance, coitus, or put of birth. - The State ought to not recognize against any citizen on grounds as it were of religion, race, space, coitus, put of birth, or any of them. - No citizen might, on grounds as it were of religion, race, inheritance, coitus, put of birth or any of them, be subject to any inadequacy, hazard, restriction or condition around — 1. impacts. by the Structure( Twenty- fourth Change) Act, 1971, 38( a) get to shops, open caffs, hospices and places of open fervor; or( b) the utilize of wells, tanks, showering ghats, lanes, and places of open resort kept up completely or not totally out of State stores or given to the utilize of the common open. - Nothing in this composition might offer help to the State in making any uncommon course of action for women and children. - Nothing in this composition or clause( 2) of composition 29 ought to offer help to the State from making any exceptional course of action for the progress of any socially and instructively invert classes of citizens or the slated gentries and the slated lines.) - Nothing in this composition or sub-clause( g) of clause( 1) of composition 19 might offer help to the State from making any uncommon course of action, by law, for the progress of any socially and instructively invert classes of citizens or for the slated gentries or the slated lines in so removed as comparative unprecedented vittles relate to their affirmation to educator teach tallying private educator teach, whether supported or unaided by the State, other than the nonage educator teach related to in clause( 1) of composition 30.) - Nothing in this composition or sub-clause ( g) of clause( 1) of composition 19 or clause( 2) of composition 29 might offer help to the State from making,( a) any exceptional course of action for the movement of any budgetary weaker zones of citizens other than the classes indicated in clauses( 4) and( 5); and( b) any exceptional course of action for the movement of any fiscally weaker sections of citizens other than the classes indicated in clauses( 4) and( 5) in so removed as comparative exceptional vittles relate to their affirmation to the teacher teach tallying private educator teach, whether upheld or unaided by the State, other than the nonage teacher instruct related to in clause( 1) of composition 30, which in the case of reservation would be in development to the being reservations and subject to the outside of ten percent. of the include up to seats in each orchestrate. **Article17.** Invalidation of Untouchability. — “ Untouchability ” is invalidated and its sharpness in any outline is intrigue. The authorization of any failure arising out of “ Untouchability ” ought to be an offense punishable in the statement with the law. **Article18**. Invalidation of titles. - No title, not being an advantage or insightful capability, might be conferred by the State. - No citizen of India ought to recognize any title from any exterior State. - No person who is not a citizen of India ought to, though he holds any office of advantage or conviction underneath the State, recognize without the concurrence of the President any title from any exterior State. - No person holding any office of advantage or conviction underneath the State might, without the concurrence of the President, recognize any appearance, bundle, or office of any kind from or underneath any inaccessible State. **MAXIMS** EQUALITY UNDER THE LAW It is a lawful concept that guarantees that there is the nonattendance of extraordinary benefits in society, that all people are similarly subject to the conventional law of the arrive, and that no individual, anything his rank or condition, is not over the law. EQUAL PROTECT OF THE LAW BY THE GOVERNMENT This phrase states that the government can take steps or adapt any law or make special conditions to make people all at the same level in the territory of India. UBI JUS IBI REMEDIUM “Where there is a right, there is a remedy”. It means that if there is a violation of a right then remedy must be available in such a scenerio. INVIDOUS DISCRIMINATRION According to this maxim, discrimination which is unfair, unjust, and likely to be perceived as prejudicial is invalid against the right to equality. **RELATED CASE LAWS** - A. Abbas v. Union of India\[AIR 1971 SC 481\] - Air India v. Nargesh Meerza \[AIR 1981 SC 1829\] - National Legal Service Authority \[NALSA\] v UOI, AIR 2014 SC 1863 - D. Shetty vs The International Airport Authority Of India And Ors.1979 AIR 1628 - S Nakara v. union of India \[AIR 1983 SC 130\] - P. Royappa v. State of Tamil Nadu\[AIR 1974 SC 555\] - Randhir Singh v. Union of India \[AIR 1982 SC 879\] **CONCLUSION & COMMENTS** Now, we can conclude that Article 14 talks approximately two things balancing some time recently the law and breaking even with assurance of the law which essentially states that there will be no segregation based on race, caste, sexual orientation, sex, etc and the government can take viable measures to give balance in the society. **REFERENCES** **Books / Commentaries / Journals Referred** 1. MP JAIN ,DK BASU,CONSTITUTION OF INDIA **Cases Referred** 1. A. Abbas v. Union of India\[AIR 1971 SC 481\] 2. Air India v. Nargesh Meerza \[AIR 1981 SC 1829\] 3. S Nakara v. union of India \[AIR 1983 SC 130\] 4. P. Royappa v. State of Tamil Nadu\[AIR 1974 SC 555\] 5. Mithu v. State of Punjab \[AIR 1983 SC 473\] 6. Randhir Singh v. Union of India \[AIR 1982 SC 879\] 7. Javed v. State of Haryana \[AIR 2003 SC 3057\] **Statutes Referred** - Constitution of India - P Jain **Categories:** Articles, Constitutional Law --- ### [Amendments in the Indian Constitution](https://lawfoyer.in/amendments-in-the-indian-constitution/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Ayushi Verma** **Edited by: Sulesh Choudhary** **INTRODUCTION** ***“Constitution is not a mere lawyers’ document, it is a vehicle of Life, and its spirit is always the spirit of Age.”*** – ***Dr BR Ambedkar*** A Constitution is a fundamental and a living document. It lays down the framework of organs of Government of a state. “***The Constitution of India was adopted on 26th November 1949 and came into force on 26th January 1950***”[\[1\]](#_ftn1). As nothing is static but dynamic, everything needs reform. The same is the case with the laws of the country. Laws are made for the well-being of society. With the changing needs of society, the Constitution of India must also adapt to these changes. This can be achieved by a procedure known as amendment of the Constitution. It is given under ***Article 368[\[2\]](#_ftn2)*** of the Constitution of India. This provision is borrowed from South Africa. The Indian Constitution is a combination of both flexibility and rigidity. This means that there are different procedures of amendment for different provisions. Some provisions are amended by simple majority and others by special majority. The present article aims to elaborate on the provision, procedure, and relevant case laws regarding the amendment of the Constitution of India. ***Keywords*: *Article 368, Constitution of India, Amendment, Basic Structure*** **MEANING** Amendment of the Constitution is a process of making alterations or variations to the Constitution. “*This includes addition, substitution, variation, and repeal/omission.”* This is also known as the Constitutional Amendment. **PROVISION: AMENDMENT OF THE CONSTITUTION OF INDIA** **Article 368** under Part XX of the Constitution deals with the power of Parliament to amend the Constitution and its Procedure. It states that: ***1.“****Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article**.*** ***2.** An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:* *Provided that if such amendment seeks to make any change in –* ***(a)*** *article 54, article 55, article 73, article 162, article 241 or article 279A or* ***(b)*** *Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or* ***(c)*** *any of the Lists in the Seventh Schedule, or* ***(d)*** *the representation of States in Parliament, or* ***(e)*** *the provisions of this article,* *the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.* ***(3)*** *Nothing in Article 13 shall apply to any amendment made under this article.* ***(4)*** *No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.* ***(5)*** *For the removal of doubts, it is hereby declared that there shall be no limitation whatever[**\[i\]**](#_edn1) on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”[**\[3\]**](#_ftn3)* **METHODS:** There are three modes of amendment provided by the Constitution itself: – 1. By simple majority 2. By special majority 3. By special majority in both Houses of Parliament including ratification by State Legislatures. Article 368 only talks about the two modes which are: Amendment by special majority and amendment by special majority including ratification by the states. **Amendment by simple majority:** This method of amendment is used to alter ordinary laws. This includes a simple majority vote of present members and voting. These types of amendments do not fall under the purview of Article 368. Some of the examples where this mode of the amendment is used are; the admission or establishment of new states (Article 2), the Formation of new states and alteration of areas, boundaries, or names of existing states (Article 3), Abolition or creation of legislative councils of states (Article 169), etc. **Amendment by special majority:** The type of amendment by special majority is used where the provisions cannot be amended by simple majority. According to Article 368(2), following is the procedure: - Firstly, the bill for the purpose of amendment shall be presented in either of the houses of Parliament. - Secondly, the bill shall be passed by either house by a majority of total members and which shall not be less than two-thirds majority of the members present and voting. - Thirdly, after the bill is passed by either house, the bill shall be sent to the President for its assent. Therefore, the Constitution stands amended. **Amendment by special majority including ratification by states:** According to the proviso to clause 2 of Article 368, in the following cases that is: - Election of the President (Articles 54 and 55) - The extent of executive power of the union and the state (Articles 73 and 162) - Constitution, powers, and jurisdiction of the Supreme Court (Chapter 4 of Part 5) - Constitution, powers, and jurisdiction of the High Courts (Chapter 5 of Part 6) - High Courts in Union Territories (Article 241) - Legislative Relations between Union and States (Chapter of Part 9) - Goods and Services Tax Council (Article 279A) - Any of the Lists in the Seventh Schedule - The representation of States in Parliament - The provisions of Article 368 itself. Amendment is done by a special majority of parliament including ratification by half of the state legislatures. This type of amendment is used when there is a need to alter the federal structure of the states. **Procedure:** 1. Firstly, an amendment bill shall be introduced in either house of the Parliament. 2. Secondly, such a bill shall be passed in each house of the parliament by a special majority. It requires the majority of the total members which shall not be less than two-thirds of the members present and voting. 3. Thirdly, the bill must be sent to the state legislatures for ratification after it is passed by either house of the Parliament. 4. Fourthly, a bill must be ratified by at least half of the state legislatures. This means by a simple majority which means the majority of members present and voting. 5. Lastly, the bill must be sent to the President for his assent. After the assent is received the Constitution stands amended. **Amendment of Fundamental Rights** Following are the important constitutional amendments and judicial precedents that provide the scope of power of the Parliament under Article 368 to amend Fundamental Rights. 1. **Shankari Prasad v. Union of India[\[4\]](#_ftn4)** This was the first case where the amending power of Parliament came into question. In this case, the 1st Constitutional Amendment, of 1951 was challenged. - **1st Constitutional Amendment, 1951** This amendment inserted the new grounds in clause (2) of Article 19, 31A, 31B, and Ninth Schedule to the Constitution. - **Issue: –** Whether the term law under ***Article 13*** includes the amendment of the Constitution under ***Article 368.*** - **Held: –** The Court upheld the validity of the 1st Amendment and held that the term ‘law’ under ***Article 13*** does not include an amendment to the Constitution. Therefore, Parliament can amend any provision of the Constitution including Fundamental Rights under Article 368. 2. **Sajjan Singh v. State of Rajasthan** [\[5\]](#_ftn5) In this case the constitutional validity of the 17th Amendment, 1964 was challenged. - **17th Constitutional Amendment, 1964** This amendment modified Article 31A and the Ninth Schedule. - **Held: –** The Court reaffirmed its decision given in Shankari Prasad v. Union of India 3. **Golak Nath v. State of Punjab [\[6\]](#_ftn6)** In this case, the 1st, 4th, and 17th Constitutional amendments were challenged. - **4th Constitutional Amendment, 1955** This Amendment made an alteration to Article 31(2) of the Constitution and made the question of *“adequacy” of compensation non-justiciable.* - **Held**: – The Supreme Court overruled its decisions given in the case of **Shankari Prasad v. Union of India**[\[7\]](#_ftn7)and **Sajjan Singh v. State of Rajasthan[\[8\]](#_ftn8).** Further, it held that Parliament cannot amend the Fundamental rights. The term law under Article 13 is the amendment made under Article 368. Therefore, if an amendment took away Fundamental Rights, the amendment would be declared void. - **24th Amendment, 1971** This amendment act added: - clause 4 to Article 13 of the Constitution which states that “***Nothing in this Article shall apply to any amendment of this Constitution made under Article 368***.”[\[9\]](#_ftn9) - Heading of the Article 368 was changed from ‘Procedure for amendment of the Constitution’ to ‘P***ower of Parliament to amend the Constitution and procedure therefor***.[\[10\]](#_ftn10)’ - New clause 1 to Article 368 - After this amendment, it became binding on the President to give his assent to the bill passed by the parliament - Clause 3 to Article 368. 4. **Keshvananda Bharati v. State of Kerala[\[11\]](#_ftn11)** In this case, the constitutional validity of the 24th Amendment, of 1971 was challenged - **Held: –** The Supreme Court upheld the constitutional validity of the 24th Amendment and laid down that under Article 368, the parliament has the power to amend the Constitution including fundamental rights subjected to restrictions. The Supreme Court laid down the basic structure doctrine and emphasized that parliament under its exercise of power given under Article 368 cannot amend the basic structure of the Constitution. - **42nd Constitutional Amendment, 1976** This amendment inserted clauses 4 and 5 into the Article 368. And also, it amended Article 31C 5. **Indira Nehru Gandhi v. Raj Narain[\[12\]](#_ftn12)** In this case, elaborated the meaning of the expression “basic structure” of the Constitution and declared the following features as part of the basic structure: - Judicial Review - Free and fair elections - Rule of law - Right to equality 6. **Minerva Mills Ltd. Union of India[\[13\]](#_ftn13)** In this case, the Court held the provisions of clauses 4 and 5 of Article 368 which were inserted by the 42nd Amendment Act, 1976 as unconstitutional, as these violated the basic structure doctrine of the Constitution. **BASIC STRUCTURE DOCTRINE** The basic structure doctrine was laid down by the Supreme Court in the Case of **Kesavananda Bharati v. State of Kerala**[\[14\]](#_ftn14). This basic structure doctrine is a restriction on the amending power of the Parliament under Article 368. This states that under Article 368, Parliament has the power to amend the Constitution including fundamental rights which do not constitute part of the Basic Structure of the Constitution. The Court laid down a list of the features included in the basic structure. This list is not exhaustive. With the evolution of time, many other features have been added. Some of the features are Supremacy of the Constitution, Judicial review, Separation of Power, Rule of law, Right to equality, etc. **CONCLUSION** It is important to get reforms in accordance with the changing needs of the society. The law must also be reformed. The Constitution of India, from which all laws originate provides for the amendment too whenever it is necessary. The Constituent Power of the Parliament for Amendment of the Constitution given under Article 368 is not absolute. After analyzing the judicial precedents in this regard, it can be concluded that Parliament can amend any part of the Constitution without violating the basic structure of the Constitution. This basic structure doctrine acts as a limitation and check on the power of the Parliament. **REFERENCES** **Books / Commentaries / Journals Referred** - Kumar, N. (2015). *Constitutional Law of India*. - Pandey, J. N. (1992). *Constitutional Law of India*. **Cases Referred** - Shankari Prasad v. Union of India (AIR 1951 SC 458) - Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845) - Golak Nath v. State of Punjab (AIR 1967 SC 1643) - Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461) - Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299) - Minerva Mills Ltd. Union of India (AIR 1980 SC 1789) **Statutes Referred** - Constitution of India. 1950 **ENDNOTES:** [\[1\]](#_ftnref1) Contributors to Wikimedia projects. (2024, July 24). *Constitution of India*. Wikipedia. [https://en.wikipedia.org/wiki/Constitution\_of\_India](https://en.wikipedia.org/wiki/Constitution_of_India) [\[2\]](#_ftnref2) Constitution of India, Article 368 (1950). [\[3\]](#_ftnref3) Constitution of India, Article 368 (1950). https://indiankanoon.org/doc/594125/ [\[4\]](#_ftnref4) AIR 1951 SC 458. [\[5\]](#_ftnref5) AIR 1965 SC 845 [\[6\]](#_ftnref6) AIR 1967 SC 1643 [\[7\]](#_ftnref7) AIR 1951 SC 458 [\[8\]](#_ftnref8) AIR 1965 SC 845 [\[9\]](#_ftnref9) Constitution of India, Article 13 (1950). [\[10\]](#_ftnref10) Constitution of India, Article 368 (1950). [\[11\]](#_ftnref11) AIR 1973 SC 1461 [\[12\]](#_ftnref12) AIR 1975 SC 2299 [\[13\]](#_ftnref13) AIR 1980 SC 1789 [\[14\]](#_ftnref14) AIR 1973 SC 1461 [](#_ednref1) **Categories:** Articles, Constitutional Law --- ### [Geographical Indications Tags as Intellectual Property in India: Provisions, Procedures & Case Studies](https://lawfoyer.in/geographical-indications-tags-as-intellectual-property-in-india-provisions-procedures-case-studies/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Shruti Bharat Mohite** **Edited by: Sulesh Choudhary** **INTRODUCTION** In this era of globalization, boundaries are no more boundaries. International players have found their way to pierce into the nook and cranny of the globe. Meanwhile, globalization has also adversely affected rural products, in turn affecting the livelihood of communities. There is a wide threat to rural products, and some of them are getting perished due to a lack of proper knowledge and financial resources. The local products are now facing the threat of losing their own identity in front of their global rivals, who usually carry a globally recognized brand name with them. Here comes the need of a global recognition of the local goods. Geographical Indications is one of the solutions to it. A geographical indication is a sign, which indicates the origin of a product. The origin is due to the various geographical -environmental factors like human factor, natural factor, or maybe a combination of both, which attributes some quality, reputation, and specific characteristics to the products. Geographical indications are considered as “traditional brand” because they are connected to the history and customs of a community. These products are neither made according to the needs of the market nor on the initiative of the business. Apart from these, they are naturally found in a place where a community is developing it there throughout the years. Therefore, the geographical indication is an emerging form of intellectual property rights ***Keywords* *(Minimum 5)*: Intellectual property, GI Tags, trademarks, GI process** **SUB-HEADINGS** **Meaning, Definition & Explanation** The importance of the geographical indication is emerging, especially in developing countries, with an intention to protect the authenticity of rural products. A geographical indication is a signature that verifies the authenticity and also the place of origin of that product having unique features. As per TRIPS agreement the definition of GI ‘indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’ 2 i.e., a product originating at a particular place having some reputation or characteristics or being manufactured/produced by a particular community are only eligible to get the GI tag. Thus, GI is a tool to promote the goods of a particular area. Some of the famous GI of India are Solapuri Chaddar from Solapur, Kolhapuri Chappal from Kolhapur, Darjeeling Tea, Kashmir saffron from J&K, Feni from Goa, Surat Zari craft, Mysore Silk from Karnataka etc. **Section 2(e)** of the Geographical Indication of Goods (Registration and Protection) Act 1999 defines ‘geographical indications’ in relation to goods to mean: *“An indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a county, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in the case where such goods are manufactured goods one of the activities of either the production or of processing or preparations of the goods concerned takes place in such territory, region or locality, as the case may be.”* **Definition of Geographical indication by WIPO: –** The WIPO defines GI as, *“…a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.”* **European Commission Regulation, on the Protection of Geographical Indications:** GI is defined as, “being the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or foodstuff: 1. originating in that region, specific place or country, and 2. which possesses a specific quality, reputation or other characteristics attributable to that geographical origin the geographical link must occur in at least one of the stages of production and /or processing and/or preparation of which takes place in the defined geographical area.” **Historical Background / Evolution** Right from the medieval period, when there was no proper legal protection for trade, products based out of geographical regions were famous. People from Europe and other parts of the world wanted to acquire those products because of its regional characteristics, such as spices from India and tea from China. Initially, GI was protected by the respective regional rulers and the laws prescribed by them. Some rules with respect to GI can be traced back to the 14th and 15th centuries in European countries like England and France. Later in the 20 century, proper formation of rules of GI was framed. France was the only country in the 20th century to enact a comprehensive system for the protection of GI. A major part of this system influence in the drafting of both national and international treaties. Before the 20th century, only three multilateral agreements were addressed for the protection of geographical signs by the World Intellectual Property Organizations (WIPO). The two different parameters which WIPO set for identifying the GI were “the Indication of Source” and “Appellation of Origin.” Before the GI act, which was enacted in the year 1999, there were no formal procedures or any legal law in India to protect the producers of those products which were either or manufactured within the geographic regions of India. Since then, the judiciary and the government have been active in preventing persons who take unlawful advantage of GI products. Hence, through the enactment of the GI act, maximum protection is guaranteed to the producers to protect their products and curb fake products. This, in turn, helps to improve the socio-economic status of people from rural areas. **In Mohan Meakin Breweries Ltd. v.** **The Scotch Whiskey Association** in the year 1980 was related to a brand name ‘Highland Chief used in relation to the product described as “Malted Whisky” along with a device of the head and shoulders of a Scottish gentleman wearing feather bonnet and plaid and a tartan edging gives the impression that the product in relation to which it is used comes from Scotland and is thus likely to deceive or confuse the unwary purchaser in India. The Delhi High Court refused to register the applicant’s mark on Whisky. Similarly, in another case of **Scotch Whisky Association v Pravara Sahakar Karkhana** in the year 1991, the Hon’ble Justice.Mr.D. R Dhanuka, the Scotch Whisky Association succeeded in restraining the defendants who were selling their Whisky under the description “blended with scotch” along with the word “drum beater with the device of Scottish drummer wearing a kilt or tartan. **Difference between geographical indications and trademarks** Geographical indications and trademarks are different forms of intellectual property rights. Geographical indications and trademarks are signs used to distinguish goods and services. Both forms of intellectual property help the consumers to identify the products. This is the common element between these two rights. Because of this similarity, both these rights are often used interchangeably. One of the major advantages of GI is that the product with the GI tag never compromises on the quality. This expectation also increases the purchasing of the product. GI is thus very much similar to the functioning of the trademark. The major difference is that trademark helps us to identify the goods of a certain organization. There is no geographical region associated with the trademark.18 But, when it comes to GI, the place of origin plays a very important role in identifying the product’s quality. This makes GI differ from other intellectual property rights. GI is fixed and cannot be sold separately from the granted region. For example, GI has been provided to Ratnagiri Alphonso mango, where Ratnagiri is a region in Maharashtra where these mangoes are grown. But if some farmers from Ratnagiri migrate to another place and start cultivating Alphonso mango, then the same cannot be sold with the former GI tag. A trademark is a creative sign used by the owner or the person authorized too so. The same trademark can be sold or leased to another person by the same establishment, owning it. For example, the McDonalds golden arch is an example for a trademark, and the owner and franchise can use it. Whereas, GI cannot be licensed to any other person. Human creativity is needed for making trademarks. 1. **Goods, originating in a particular territory, region, or locality**: – Origin of goods is one of the vital elements in determining GI. But to identify the origin, proper delimitation of the region is necessary considering the specific nature of the product. Delimitation means dividing a particular area into appropriate administrative zones. It will help to identify that the concerned geographical area is situated in a specific zone or region. For example, Aranmula Kannadi. Aranmula is a region in the Pathanamthitta district. The Kannadi (Mirror) is made in the region called Aranmula. Hence it is called Aranmula Kannadi, increasing the importance of the area called Aranmula. 2. **Quality**: – Quality is one of the main attractions of goods having a GI tag. The quality of goods is mainly due to two things (1) natural quality and (2) quality attributable to the method of manufacturing. Natural qualities mainly due to the physical and chemical properties of raw materials, temperature, and climate of that particular region, soil, landscape, etc. In the case of agricultural products, quality depends on the soil, harvesting methods, seeding, and packaging of the finished products. For example, the prominent Palakkadan matta is popular because of its unique taste, which is cultivated in the district of Palakkad Kerala. This rice is cultivated in the dense black cotton soil. The soil contains clay and silt, which gives a natural flavour to the rice. Quality attributable to the method of manufacturing includes the quality of raw materials and the method of manufacturing. The actual presentation of the product is also due to the quality. 3. **Reputation:** – Reputation of the goods is related to the historical origin of the goods. Every good having GI tag has some history. It will help to distinguish it from other forms of product. While registering for GI tag, the applicants must show the proof of origin, i.e., the history related to the product. 4. **Terroir:** – There is another element other than quality and reputation but which can be linked between the product and its geographical origin, which is called terroir. Terroir is connected with the human environment and natural instincts, which can sometimes be spiritual aspects. Thus, terroir sometimes lacks scientific technology and analysis. Therefore, some feel that terroir cannot form the basis for geographical indications. **Legal Provisions / Procedure / Specifications / Criteria (if any)** The Basmati rice and Darjeeling tea controversy are the major incidents that can be quoted with respect to the passing of Geographical Indication of Goods (Registration and Protection) Act 1999. The law provides specific rules for the registration and protection of GI. The act is administered by the Controller General of Patents, Designs, and Trademark. The Controller General is also called as the Registrar of GI. There are three main objectives of GIGA. They are, (i) Protection of Geographical indications of goods in the country could, in turn, protect the interest of producers of such goods (ii) Misuse of GI by unauthorized persons and also to protect consumers from misleading (iii) To bring economic prosperity to the country by promoting the GI in the trade market. The Indian GIGA Act provides for multilateral registrations of GI, including owners from outside India. **Chapters in the GI Act** **Contents** Chapter I Preliminary Commencement as well as the definitions Chapter II The Register and Conditions for Registration Registration of goods Chapter III Procedure for and Duration of Registration Procedure including application, withdrawal etc Chapter IV Effect of Registration The consequences of GI registration in India Chapter V Special Provisions Relating to Trade Marks and Prior Users Covers the arena of GIs v. Trademarks Chapter VI Rectification and Correction of the Register Rectifying the applications and errors thereof Chapter VII Appeals to the Appellate Board Appeals, bar of jurisdiction etc Chapter IX Offences, Penalties and Procedure Punishment for falsely using GIs **GI Process in India** To apply for Geographical Indications, there are four types of application which need to be examined as to which should be proceeded with. They are: 1. **Ordinary application**: – an application filed to register a GI of India 2. **Convention application**: – an application filed for GI registration from a convention country, i.e., any country or group of countries which are signatories or party to an international region or bilateral treaty. It should submit the proof of registration of that GI in the home country. 3. **Single class application:** – an application submitted for the registration of GI less than one class of category. 4. **multi-class application**: – an application submitted for the registration of GI under more than one category of goods. As the registrar is the appellate officer of GI, the registration of GI is made to the registrar by the associations or communities of producers of the concerned goods. The application must contain: (i) A statement indicating the proof of origin of the product, its quality, reputation or other characteristics may be due to the human and natural factors and methods like production, processing takes place with respect to a particular region or territory. (ii) The product should be represented as a true Geographical Indication without any supporting samples. iii) There should be proper journals or report with a unique feature of the product, and the same must be produced to the concerned people inspecting the product. (iv) A geographical representation or a map of the territory of the country must be submitted. (v) Where a particular attribute of a product, for example, the colour of the product is claimed to be an element of a GI in the application for registration, the application must contain a clear explanation stating the importance of that attribute. **Case Laws / Precedents / Overruling / Judicial Development of the Concept** The two major incidents that triggered the need for a strict rule for the protection of GI are: **Basmati Controversy** On September 2nd, 1997, the United States Patent and Trademark Office granted a patent to RiceTec inc. a US MNC based in Alvin, Texas, for new “lines and grains” in the name of “Basmati” rice. The reason providing the trademark is because of the claim made by RiceTec Inc that the new variety of rice developed by them possessed better characteristics than original Basmati rice, which can be grown in specific areas in North America. For several years they have been using the trademark names “Texmati,””Kasmati,” and “Jusmati,” which they claimed to be a version of Basmati rice. From India’s perspective, this was not at all acceptable because, (i) The grant of the patent was invalid (ii) Marketing of rice with the name basmati was against India’s interest as it was considered as a GI in India. Basmati is a long-grained aromatic rice variety vastly grown in sub-Himalayan areas by using traditional methods and practices for centuries. Hence no other country should be allowed to use this indication. Indian Basmati rice is being exported to many countries, and the highest demand for this rice was from Europe. Due to this high demand in Europe, there was a very minimal duty on Basmati rice. But after the RiceTec Inc. started its own Basmati variety, the competition increased among different varieties of Basmati rice, and India feared to lose a huge market. RiceTec inc. claimed that the patent was granted to new ‘Basmati’ (lines and grains) and considered it as an improvement over the previous variety. They also argued that Basmati was a generic name for all types of aromatic rice, not a variety of rice from Indian origin. They claimed that Basmati was used in a generic way for decades for different varieties of rice, such as ‘American Basmati,’ ‘Uruguayan Basmati’ and ‘Thai Basmati.’ According to them, Basmati is not the name of any geographical area, but India claims that the name, reputation, and quality of the rice are truly dependant on its area of origin, i.e., India subcontinent. Therefore, it needs to be protected under the TRIPs agreement. RiceTec Inc. Still argued and stated that their products are stated as ‘American type Basmati rice,’ which is prohibited under the TRIPs agreement for GI under Article 23 with respect to wines and spirits and not for other products. India challenged the patent of RiceTec inc. in the year 2000. The US Patent and Trademark Office (USPTO) rejected granted patents only three types of hybrid Basmati grain and rejected seventeen types out of a total of twenty patents claimed by the company. The patent office also stated that patents could be granted to the three different varieties of Basmati because the term Basmati was neither a trademark nor a geographic indicator, unlike Champagne, which was specific to a region. They also stated that Basmati was grown all over the Indian subcontinent and was not limited to India’s specific region. The US grocery stores thus saw Texamti and Jasmati hitting their shelves post in the mid- the 1990s. This purely goes against Indian interest, and if the developed countries like the US put pressure on developing nations for allowing patenting of crops in their wish, the developing countries will lose the right to challenge the patents on their crops. **Darjeeling Tea Controversy** Another major issue problem faced in India was an incident related to Darjeeling tea. Darjeeling tea is a special kind of tea found in the Darjeeling district in the northern Indian state West Bengal. The problem was related to companies around the world selling tea with the brand of Darjeeling but, was not grown in Darjeeling. Due to these fake products resembling as Darjeeling tea, the original makers of Darjeeling tea were losing its large market share. Consequently, India realized that to protect its geographical indications globally, India has to set some common rules and regulations. As a result, the geographical indications of Goods (Registration and Protection) Bill 1999 passed by both the houses in India. It came into force on September 15th, 2003, along with Geographical Indications of Goods (Registration and Protection) Rules 2002. There was no legal theory dealing specifically with GI or appellations of origin prior to this. As a result, the GI tag was provided to Darjeeling tea, making it the first product to receive the GI tag in the year 2004. **CONCLUSION & COMMENTS** India is a nation having a multitudinous number of GI discovered the whole way across the nation. It is, for the most part, a direct result of such enhanced climatic conditions, human aptitudes and customs among different states. GI, if appropriately recognized and secured are fit for adding to a huge segment of income for a developing nation like India. As India is a signatory to the TRIPS Agreement, it is the commitment to give insurance for those items having a GI tag. To ensure the GI India embraced the GI Act, which came into power, alongside the GI Rules, with impact from 15 September 2003, has been instrumental in the augmentation of GI status to numerous products up until now. The central government has built up the Geographical Indications Registry with all-India purview, at Chennai, where right-holders can enlist their GI. In contrast to TRIPS, the GI Act doesn’t confine its unique assurance to wines and spirits alone. The central government has the circumspection to choose which items ought to concur more elevated levels of security. This methodology has intentionally been taken by the drafters of the Indian Act with the point of giving severe assurance as ensured under the TRIPS Agreement to GI of Indian birthplace. In India, enlistment for GI isn’t mandatory. In the event that the proprietor of the GI is enlisted under the GI Act if there should be an occurrence of encroachment, the proprietor can file a suit. When a GI is enrolled in India, it turns out to be moderately simpler to look for insurance in different nations too. So, a country like India, protecting GI will produce a lot of income **REFERENCES** 1. **Cases Referred** 1. Basmati controversy 2. Darjeeling tea controversy 3. Mohan Meakin Breweries Ltd. v. The Scotch Whiskey Association 4. Scotch Whisky Association v Pravara Sahakar Karkhana 2. **Statutes Referred** 1. GI Act 1999 **Categories:** Articles, Intellectual Property Law --- ### [Tehseen S. Poonawalla vs Union Of India and Others](https://lawfoyer.in/tehseen-s-poonawalla-vs-union-of-india-and-others/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Ayushi Verma** **Edited by: Sulesh Choudhary** **ABSTRACT** The present case law is related to the matter of cow vigilantism and mob violence. Cow vigilantism and mob violence caused a lot of disturbances in the Country. Many people who were not even guilty lost their lives. Some got severely injured. Therefore, a writ petition was filed in the Supreme Court in August 2016. An action was sought from the court to prevent the violence and also certain cow protection laws were challenged. The Supreme Court of India ruled that no individuals or groups can take the law into their own hands and punish the victims illegally. The Court also stressed the point that it is the duty of the state to protect the rights of the citizens and prevent crime. The Court also laid down certain guidelines that shall be followed by states with regard to the prevention of mob lynching. ***Keywords**: – Cow Vigilantism, Mob Lynching, Constitution of India, Article 21, Cow protection laws*** **CASE DETAILS** **a) Case Name/ Judgement Cause Title** **Tehseen S. Poonawalla Vs. Union of India and others** **b) Case Number** **Writ Petition ( Civil ) No. 754 of 2016** **c) Petitioner** **Tehseen S. Poonawalla** **d) Respondent** **Union of India and others** **e) Judgement Date** **17th July, 2018** **f) Court** **Supreme Court of India** **g) Quorum / Constitution of Bench** **Justice Dipak Misra, Justice D.Y. Chandrachud, Justice A.M. Khanwilkar** **h) Author / Name of Judges** ### **Dipak Mishra** **i) Citation** **(2018) 9 SCC 501, AIR 2018 SC 3354** **j) Legal Provisions Involved** · **Articles – 15, 21, 32, 256 and 257 of the Constitution of India** · **Section 12 of the Gujarat Animal Prevention Act, 1954** · **Section 13 of the Maharashtra Animal Prevention Act, 1976** · **Section 15 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964** **INTRODUCTION AND BACKGROUND OF THE CASE** Laws are made for the well-being and protection of the citizens. Citizens are required to abide by the law and one who violates the law needs to be punished. In recent years there has been a rapid increase in cases of Mob Lynching. The main cause behind the attack by mobs is Cow Vigilantism. The present Case law is related to cow vigilantism and other cases of mob lynching and how it was tackled. - **Mob Lynching** Mob lynching is a horrifying act where a group of people takes the law into their own hands to punish the victims (suspect) illegally. This is a violation of Article 21[\[1\]](#_ftn1) of the Constitution of India which deals with the Right to life and Personal liberty. - **Cow Vigilantism** Cow Vigilantism or Cow Vigilante force is the use of physical force in the name of cow protection by blaming them for cow slaughter. Such killings mainly aimed the minorities such as Muslims and Dalits. **BACKGROUND OF THE CASE** In 2015, there was a huge rise in the incidents of cow vigilantism in India, which was based on rumours and cultural beliefs. That happened because there was supposition that the victims were consuming beef, which was false. Some of the incidents are illustrated below: – - In 2015, a person named Mohammed Akhlaq was attacked and killed by a mob of villagers on the pretext that he had stolen and slaughtered a calf. Later on, it was reported that he didn’t store the beef. - One of the recent cases of cow vigilantism is the case of Pehlu Khan. In this case, Pehlu Khan and his son were attacked on the doubt of smuggling of a cow. Also, some states such as Rajasthan, Uttar Pradesh, Maharashtra, Jharkhand, Gujarat, and Karnataka enacted laws that protect cow vigilantes from their illegal acts in the name of cow protection. These laws provide protection against the acts of a person done in good faith. **FACTS OF THE CASE** In the year 2016, due to the rise in the episodes of cow vigilantism and mob violence and several protests in Delhi, Mumbai, Bangalore, Chennai, Lucknow, and Allahabad among other parts of the country, Tehseen S. Poonawalla, a social activist and lawyer filed a writ petition in the Supreme Court of India under Article 32[\[2\]](#_ftn2) alleging the incidents of lynching and mob violence by so-called Cow vigilante groups and organizations. This petition was filed to compel the respondent states to take necessary actions against these groups and organizations. Also, the petitioner sought action against the Cow vigilante groups and organizations for uploading violent content on social media. Furthermore, the provisions of Section 12[\[3\]](#_ftn3) of the Gujarat Animal Prevention Act, 1954, Section 13[\[4\]](#_ftn4) of the Maharashtra Animal Prevention Act, 1976 , and Section 15[\[5\]](#_ftn5) of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 were also challenged. **LEGAL ISSUES RAISED** 1. Whether the States and Centre have a duty to develop immediate action plans to be undertaken against these violent cow protection mobs? 2. Whether the provisions of Section 12 of the Gujarat Animal Prevention Act, 1954, Section 13 of the Maharashtra Animal Prevention Act, 1976, and Section 15 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 unconstitutional? **PETITIONER / APPELLANT’S ARGUMENTS** The counsels for Petitioner / Appellant submitted that: 1. Any person or group should be prevented from taking the law into their own hands and should not indulge in any kind of violence on the perception of crime. 2. Mob lynching and cow vigilantism violate Article 21[\[6\]](#_ftn6). - The Central government should issue directions to states to maintain law and order in the exercise of the power conferred to it under Articles 256 and 257[\[7\]](#_ftn7) of the Constitution of India. It is the duty of both the State and the Centre to ensure that minorities are not targeted due to misinformation and hatred, and stringent actions are taken. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that: 1. The central government cannot intervene in the matters of states, as law and order is a state subject. 2. Also, the persons involved in the mob violence have been booked under criminal law and police took the necessary action against them. **RELATED LEGAL PROVISIONS** **Article 21**[**\[8\]**](#_ftn8)**: –** **Protection of life and personal liberty** ***“****No person shall be deprived of his life or personal liberty except according to procedure established by law”* **Article 32[\[9\]](#_ftn9): – Remedies for enforcement of rights conferred by this Part[\[10\]](#_ftn10)** Article 32 provides that every citizen has the right to approach the Supreme Court for enforcement of the rights guaranteed by part 3rde. fundamental rights of the Constitution of India. Under this Article Supreme Court has the power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant , and certiorari*.* #### Article 256[\[11\]](#_ftn11): – Obligation of States and the Union According to Article 256, every state shall exercise its executive power in compliance with laws made by the Parliament and existing laws of such state. The executive power of the Union shall include the power to give directions to a state which may appear to the Government of India to be necessary #### **Article 257[\[12\]](#_ftn12)**: – **Control of the Union over States in certain cases** According to Article 257, the executive power of the state shall not impede that of the Union and the executive power of the Union shall include the power to give directions to a state which may appear to the Government of India to be necessary, which is related to the construction and maintenance of means of communication which is of national or military importance, which is related to the measures to be taken for the protection of the railways within the State. **Section 12[\[13\]](#_ftn13), Gujarat Animal Prevention Act;** **Section 13[\[14\]](#_ftn14) of the Maharashtra Animal Prevention Act;** **Section 15[\[15\]](#_ftn15) of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act** – Protection of persons acting in good faith under the Act or rules- “*No suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith done or intended to be done under this Act or the rules made there under”.* **JUDGEMENT** **RATIO DECIDENDI** The Supreme Court unambiguously held that: – 1. It is the duty of the state to prevent crime and to ensure that the machinery of law and order functions efficiently in maintaining peace. The state must ensure that no individual or groups take the law into their own hands. Every individual shall inform the police as soon as there is a violation of the law. No trial shall take place on the streets. The state has the principal obligation to see the cow vigilantism or any other kind of violence. The government and vigil society shall take strict actions to prevent lynching and mob violence. 2. Mob violence violates the rule of law and constitution particularly Article 21. It was laid down that the activities which amounted to mob violence and mob lynching must not be unnoticed and should be taken into consideration. (Case of **Shakti Vahini v. Union of India[\[16\]](#_ftn16)** was cited). 3. Articles 256 and 257 of the Constitution of India confer the powers on the Central Government to give directions to the state where it is necessary. Therefore, the Central Government has the power to intervene in the matter and issue directions to the State Government under Articles 256 and 257. **GUIDELINES** The Supreme Court issued certain guidelines to prevent Cow vigilantism and other cases of mob lynching. The following are the guidelines: – - **Preventive measures:-** 1. A senior police officer shall be nominated as Nodal Officer not below the rank of Superintendent of Police in each district by the state government. 2. The areas where cases of mob lynching have been reported shall be identified and the nodal officer has to be more cautious about the areas identified within their jurisdiction. 3. Regular meetings shall be conducted by the Nodal Officer with the local intelligence. 4. Every police officer shall cause a mob to diffuse, by exercising power under Section 129 of CrPC[\[17\]](#_ftn17). 5. Law enforcement agencies must be made strongest to identify the measures for the prevention of mob violence and lynching against any caste or community. 6. The Central and State Governments should broadcast the serious consequences of lynching and mob violence under the law on radio and television and other media platforms. 7. FIR shall be registered against persons who spread messages and videos which are likely to encourage mob violence and lynching of any kind under Section 153A of IPC[\[18\]](#_ftn18) and other relevant provisions of law. - **Remedial Measures: –** 1. Apart from the above measures, an FIR should be lodged without any delay if any case of mob lynching comes to the local police station’s notice. 2. The Station House Officer has the duty to inform the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim. 3. Nodal Officer shall personally monitor the investigation of such offences. 4. A mob violence victim compensation scheme shall be made in the light of the provisions of Section 357A[\[19\]](#_ftn19) of CrPC. 5. The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts and maximum sentence shall be awarded by the court. 6. The Identity and the address of the witness shall be concealed. 7. Notice of court proceedings shall be given to the victim or the next of kin of the deceased in cases of mob violence and lynching. 8. Free Legal Aid shall be given to the victim or the next of kin of the deceased in cases of mob violence and lynching under the Legal Services Act[\[20\]](#_ftn20). - **Punitive Measures: –** 1. Where any police officer or an officer of the district administration has failed to comply with the aforesaid directions it shall be an act of deliberate negligence and/or misconduct and an action must be taken against him/her. 2. As per the decision given in the case of **Arumugam Servai v. State of Tamil Nadu[\[21\]](#_ftn21)**, disciplinary action shall be taken against the concerned officers by the State firstly, if such officer did not try to prevent the incident despite having prior knowledge of that incident and secondly, if it is found that such officer did not institute criminal proceedings against the offender in case the incident has already occurred. **CONCLUSION** Every citizen has the right to freedom and to live peacefully. No citizen can take the law into his/her hands for the sake of the protection of cultural and religious values. The guidelines given in the present case are a serious reminder of the obligations of the state and society to uphold these values. At present the guidelines given by the Supreme Court is still applicable and the court continues to track its implementation. Also, a step should be taken by the parliament of India to make a separate legislation on Mob lynching to avoid any kind of ambiguity. **REFERENCES** - Tehseen S. Poonawalla v. Union of India and Others (2018) 9 SCC 501 - Constitution of India - Gujarat Animal Prevention Act, 1954 - Maharashtra Animal Prevention Act, 1976 - Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 - - - [https://www.google.com/url?q=https://www.legalserviceindia.com/legal/article-6129-case-analysis-tehseen-poonawalla-v-s-union-of-india.html&usg=AOvVaw3F-PURrE8uv3nhCP3Uv3hb&hl=en-GB](https://www.google.com/url?q=https://www.legalserviceindia.com/legal/article-6129-case-analysis-tehseen-poonawalla-v-s-union-of-india.html&usg=AOvVaw3F-PURrE8uv3nhCP3Uv3hb&hl=en-GB) **ENDNOTES:** [\[1\]](#_ftnref1) Article 21, Constitution of India (1950) [\[2\]](#_ftnref2) Article 32, Constitution of India (1950) [\[3\]](#_ftnref3) Section 12, Gujarat Animal Prevention Act (1954) [\[4\]](#_ftnref4) Section 13, Maharashtra Animal Prevention Act (1976) [\[5\]](#_ftnref5) Section 15, Karnataka Prevention of Cow Slaughter and Cattle Preservation Act (1964) [\[6\]](#_ftnref6) Article 21, Constitution of India (1950) [\[7\]](#_ftnref7) Articles 256 and 257, Constitution of India (1950) [\[8\]](#_ftnref8) Article 21, Constitution of India (1950) [\[9\]](#_ftnref9) Article 32, Constitution of India (1950) [\[10\]](#_ftnref10) That is part 3rd of the constitution of India referred to as Fundamental rights [\[11\]](#_ftnref11) Article 256, Constitution of India (1950) [\[12\]](#_ftnref12) Article 257, Constitution of India (1950) [\[13\]](#_ftnref13) Section 12, Gujarat Animal Prevention Act, (1954) [\[14\]](#_ftnref14) Section 13, the Maharashtra Animal Prevention Act (1976) [\[15\]](#_ftnref15) Section 15, Karnataka Prevention of Cow Slaughter and Cattle Preservation Act (1964) [\[16\]](#_ftnref16) (2018) 7 SCC 192 [\[17\]](#_ftnref17) Code of Criminal Procedure (1973) [\[18\]](#_ftnref18) Indian Penal Code (1860) [\[19\]](#_ftnref19) Code of Criminal Procedure (1973) [\[20\]](#_ftnref20) Legal Services Act,1987 [\[21\]](#_ftnref21) (2011) 6 SCC 405 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Union of India and ors. etc vs. Virpal Singh Chauhan and Ors.](https://lawfoyer.in/union-of-india-and-ors-etc-vs-virpal-singh-chauhan-and-ors/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Abhishek Varshney** **Edited by: Sulesh Choudhary** **ABSTRACT / HEADNOTE** Some of the questions that have dominated Indian reservation jurisprudence for more than half a century are whether the State could make a provision for reservation in promotion under Article 16(4)? If yes, then in what manner? The answers to these questions remain unresolved, in several respects, till date. In Union of India and Ors vs. Virpal Singh Chauhan and Ors, it was held that SCs/STs who were given the benefit of promotion would not get consequential seniority. Hence, Article 16(4-A) was further amended by the Constitution (Eighty-Fifth Amendment) Act, 2001 giving them the benefit of consequential seniority. ***Keywords* *(Minimum 5)*: Constitution, Reservation, Service Law, Scheduled Castes, Scheduled Tribes** **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** UNION OF INDIA AND ORS. ETC. Vs. VIRPAL SINGH CHAUHAN ETC. ***ii)* *Case Number*** Civil Appeal No. 9272/95 ***iii)* *Judgement Date*** October 10, 1995 ***iv)* *Court*** Supreme Court ***v)* *Quorum / Constitution of Bench*** 2 ***vi)* *Author / Name of Judges*** **S.C. Agrawal, B.P. Jeevan Reddy** ***vii)* *Citation*** \[1995\] SUPP. 4 S.C.R. 158 1995 INSC 609 ***viii)* *Legal Provisions Involved*** Article 14 and 16(4) of the Constitution of India **INTRODUCTION AND BACKGROUND OF JUDGEMENT** These appeals/writ petitions raise an important but difficult question concerning the nature of rule or reservation in promotions obtaining in the Railway service and the rule concerning the determination of seniority between general candidates and candidates belonging to reserved classes in the promoted category. The issue is best illustrated by taking the facts in the first of these matters, viz., Union of India and Ors. v. **Virpal** **Singh** **Chauhan** – civil appeal No.9272/95 arising from Special Leave Petition (C) No.6468 of 1987. The appeal is preferred against the judgment of the Central Administrative Tribunal (Allahabad Bench) disposing of Original Application No.647 of 1986 with certain directions. \[It was originally filed as a writ petition in the Allahabad High Court which, on the constitution of the Central Administrative Tribunal (Allahabad Bench), was transferred to the Tribunal.\] It was filed by, what may be called for the sake of convenience, employees not belonging to any of the reserved categories (hereinafter referred to as “general candidates” – which means open competition candidates). The railway Administration as well as the employees belonging to reserved categories, i.e., Scheduled Castes and Scheduled Tribes were impleaded as respondents. The writ petition/original application came to be filed in the following circumstances: Sri Altaf Ahmed, learned Additional Solicitor General questioned the correctness and validity of the principles enunciated by the Tribunal in Para-26 of its judgment. He submitted that according to the Indian Railway Establishment Manual, seniority is determined by the date of promotion/appointment to the concerned grade and that the said principle cannot be altered or departed from in the name of ensuring equality. Once the rule of reservation is remembered that in the higher echelons of administration, representation of Scheduled Castes/Scheduled Tribes has been inadequate all these years, there is nothing surprising if the members of Scheduled Castes/Scheduled Tribes get promotions sooner and earlier than the general candidates. This is the natural consequence of applying the rule of reservation in promotions – and not an unintended one. The said consequence cannot, therefore, be a basis for evolving a rule which partially off-sets the very purpose and meaning of the rule of reservation. Sri Altaf Ahmed further submitted that effecting promotions in accordance with the roster vacancies are not and cannot be called “fortuitous promotions”. They are regular vacancies and promotion to them is a regular promotion. He relied upon the decision of the Central Administrative Tribunal in Durga Charan Haldar v. Union of India (Original Application No.854 of 1990) wherein it has been held that the date of promotion, effected following the forty-point roster/hundred-point roster, is determinative of seniority. He submitted that the decision of the Central Administrative Tribunal (Patna Bench) to the contrary is the subject matter of appeal in this batch. The Patna Tribunal has followed the decision of the Allahabad Tribunal in **Virpal** **Singh** **Chauhan**. It may be noticed that of the five grades in the Station Masters’ category, two are non-selection posts while the remaining three are selection posts. While in the case of non-selection posts the rule enunciated in the main opinion (**Virpal** **Singh** **Chauhan**) would be applicable, in the case of selection posts, the rule explained herein has to be followed. We may clarify that Rules (i) and (ii) in Para 28 of **Virpal** **Singh** **Chauhan** apply to both selection and non- selection posts. Rule (iii) also applies to both but subject to the above rider. As explained in the main opinion, while there is no question of a “panel” being prepared at the time of promotion to non-selection posts, a panel has to be prepared for promotion to selection posts. **FACTS OF THE CASE** **Procedural Background of the Case** 1. The case was initially adjudicated by summary court martial, which was directed to reconsider the punishment in the light of petitioners claims regarding its severity. 2. The rules governing the proceeding stipulated that the defence nominee must be in the form the same division as the petitioner which was a point of contention. 3. The petitioner waste concern regarding the vagueness of charges, specifically noting that the offensive language was not explicitly detailed in the statement of allegations. 4. Subsequently, the revision petition filed by the rotational was dismissed, and the original order of removal from service was confirmed. 5. The petitioner short release under Article 226 of the constitution of India which allows for judicial review of administrative action. **Factual Background of the Case** 1. The petitioner faced removal from service based on three allegations of misconduct. 2. The specific allegations included the use of filthy language and an attempted assault on assistant sub inspector Gopi Singh when confronted about his behaviour. 3. The petitioner contended that the penalty imposed was disproportionate to the alleged misconduct arguing that the punishment was not commensurate with the offences charged. **LEGAL ISSUES RAISED** 1. Was the punishment of removal from service disproportionate to the alleged commit misconduct? 2. Were the charges against the traditional work and lacking sufficient details? 3. Did the process real rules regarding the appointment of defence nominee violet the petitioner’s right? **PETITIONER / APPELLANT’S ARGUMENTS** 1. The counsels for Petitioner / Appellant submitted that they are considering the seniormost candidates for the vacancies arising in the category of Superintendents and, therefore, no objection can be taken with the said course by anyone. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that the petitioner joined the Railway as a clerk and was later promoted as Head Clerk and later as Assistant Superintendent. 2. They said that now the juniors (who are Scheduled Castes/Scheduled Tribes) are given more preference in comparison to him, who is more senior, for the post of superintendent. 3. They also provided three instances for the same and also provided details for the same. 4. They said that that the total sanctioned strength is thirteen and three vacancies are present. Of the total, eight are Scheduled Castes/Scheduled Tribes while only two are of general category. Now, they want to fill those vacancies with Scheduled Castes only, thereby reserving the post for them only. **RELATED LEGAL PROVISIONS** ***Article 14:* *– “Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”***[***\[1\]***](#_ftn1) **Article 16(4): – “***Equality of opportunity in matters of public employment. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.*”[\[2\]](#_ftn2) **JUDGEMENT** **RATIO DECIDENDI** The court upheld the dismissal of the revision petition and confirm the order of removal from the service it concluded that the circumstances does not warrant interference with Article 226 of the constitution. **CONCLUSION & COMMENTS** In the light of the above considerations, the court dismissed the writ petition, affirming the decision of the lower court and the summary court-martial. The removal from service was deemed justified based on the evidence presented and the procedural compliance observed throughout the proceedings. **REFERENCES** **Important Cases Referred** - Indra Sawhney v. Union of India, \[1992\] Suppl. 3 SCC 217 - National Federation of State Bank of India v. Union of India and Ors., \[1995\] 3 SCC 432 - R.K. Sabharwal v. State of Punjab (1995 (2) S.C.C.745). **Important Statutes Referred** - Constitution of India, 1950 **ENDNOTES:** [\[1\]](#_ftnref1) Article 14, Constitution of India (1950). [\[2\]](#_ftnref2) Article 16(4), ibid **Categories:** Case Analysis, Constitutional Law Cases --- ### [M.R Balaji and Others vs State of Mysore](https://lawfoyer.in/m-r-balaji-and-others-vs-state-of-mysore/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Harsita Karki** **Edited by: Sulesh Choudhary** **ABSTRACT:** *“Equality may be a fiction but nonetheless one must accept it as a governing principle.”* Dr, B.R. Ambedkar Equality is a basic human right that every individual in a society craves. In the Constitution of India articles 14 to 18 deal with right to equality. More specifically article 15 deals with the prohibition of discrimination based on the caste, sex, religion, race, place of birth it basically used in the case of reservation. This case is best example of an ongoing tussle for social justice within the constitutional equality framework by reserving seats for historically disadvantage groups. This case led to classification of backward classes into more backword classes in the educational institutions. This case study delves into the constitutional principles involved, the judicial reasoning behind the verdict, and the broader implications for India’s reservation policy. It assesses how the decision seeks to harmonize merit-based principles with the need for equitable educational opportunities through affirmative action for marginalized groups. Additionally, it analyzes the ruling’s impact on India’s reservation policies and legal frameworks, potentially setting a precedent for similar cases and future legislative developments. **Keywords:** Reservation, Article 15, Constitutional equality, India, education. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** M.R Balaji and Others vs State of Mysore ***ii)* *Case Number*** ORIGINAL JURISDICTION Writ Petitions Nos. 90 to 11 2 of 1962. ***iii)* *Judgement Date*** 28 September 1962 ***iv)* *Court*** The Supreme Court of India ***v)* *Quorum / Constitution of Bench*** 5 Judge Bench (P.B. Gajendragadkar, Bhuvneshwar P. Sinha, K.N. Wanchoo, K.C. Das Gupta, J.C. Shah) ***vi)* *Author / Name of Judges*** P.B. Gajendragadkar ***vii)* *Citation*** 1963 AIR 649, 1962 SCR SUPL. (1) 439, AIR 1963 SUPREME COURT 649 ***viii)* *Legal Provisions Involved*** Article 15(4), Article 16(4), Article 29(2), Article 46. Article 340 of the Constitution of India. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Early Vedic literature gave rise to India’s caste system, which has resulted in discrimination, disregard, and underrepresentation of particular classes. Caste-based reservations have a long history; the British instituted them in 1902 as part of their divide and conquer strategy. Reservations were covered under the Indian Councils Act of 1909, the Government of India Act of 1919, and the Government of India Act of 1935. Post-constitutional changes, however, have not produced a constitutional obligation to permit positive discrimination for the underprivileged.[\[1\]](#_ftn1) Discrimination on the basis of religion, ethnicity, caste, sex, or any other basis is forbidden by the Indian Constitution. But in instances such as Champakam Dorairajan and the Constitution (First Amendment) Act, 1951, the idea of reservation has been called into doubt. Under the former, the State might provide specific arrangements for the educational and social improvement of socially and educationally disadvantaged communities, such Scheduled Tribes or Scheduled Castes. But this clause begs the question of how one would define and classify a backward class. When an order granting reservation was contested in M.R. Balaji and Ors. v. State of Mysore, the issue of the statute of limitations was brought up.[\[2\]](#_ftn2) **FACTS OF THE CASE** On July 31, 1962, the State of Mysore issued an order under Article 15 (4) of the Constitution with the objective of promoting the progress of socially and educationally disadvantaged groups of citizens. A Mysore Backward Classes Appointments Committee, led by Dr. R. Nagan Gowda, was established by the State to classify backward classes according to their caste and communities. Subsequently, the government issued a directive that classified the backward classes into two distinct categories: Backward Classes and More Backward Classes. Half of the seats were allocated for other backward classes, with 28% reserved for backward classes and 22% for more backward classes. 15% of the allocation was specifically designated for Scheduled Castes, while an additional 3% was earmarked for Scheduled Tribes. The arrangement led to 68% of seats being reserved and 32% being allocated for the merit pool. [\[3\]](#_ftn3) An Order was issued by the State of Mysore on 26 July 1958, in which all the communities of the States were put within the definition of educationally and socially backward classes and Scheduled Castes & Schedule Tribe and reserved 75% of seats in the educational institutes except leaving the Brahmin Communities of the State.[\[4\]](#_ftn4) Similar to this, other orders were also issued by the State for reserving seats with varied percentage on May 14 and July 22 of 1959 and June 9 of 1960 and July 10 of 1961 which all were challenged and put aside. Once again after a year the State of Mysore passed another order on July 31 1962 which replaced all the previous orders of the State under Article 15(4) for reserving Seats.[\[5\]](#_ftn5) In the new order States divided the Backward Classes into further two divisions namely, Backward and More Backward Classes.[\[6\]](#_ftn6) The State has reserved 68% from the total seats only for educationally and socially backward classes and Scheduled tribe and Schedule classes in all the engineering, medical and technical colleges. And left only 32% of seats for the merit pool. Then this order of State was challenged by the 23 petitioners by the writ petition under Article 32 of the Constitution before the Honourable Supreme Court who had applied for admission in these Colleges and Contended that the Classification and Reservation made by this impugned order is a fraud on Article 15(4) of the Constitution. **LEGAL ISSUES RAISED** 1. Whether the classification made by States between ‘**Backward class and more Backward class’** solely based on Caste is permissible under Article 15(4).[\[7\]](#_ftn7) 2. Whether States can exceed the limit up to 68% for reservations in the educational institution is reasonable under Article 15(4). - Whether the orders were validly issued by the State government of Mysore under Article 15(4) of the Constitution on July 10, 1991 and July 31, 1962. **PETITIONER / APPELLANT’S ARGUMENTS** 1. The counsels for Petitioner submitted that under Article 340 actions regarding socially and educationally backward classes must be taken based on the commission report, appointed by the President of India and not by the State. The prepared report then to be presented to the President and then after in the both houses of the parliament before making any final decision.[\[8\]](#_ftn8) 2. The petitioner also contends that even under Article 15(4) the special provision can be made by the State but only by the legislation and not by an executive order. - The petitioner also argued that sub-classification under Article 15(4) made by the State order between Backward and more Backward classes was not justified and it also resulted in 90% of the state population falls under Backward Classes. Further, it was argued that the distribution of classes solely based on Caste is not permissible as it violates the fundamental rights of citizens under Article 14 of the constitution. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that Article 15(4) prudently and wisely did not put any extent of limitation on the State to make the special provision and it must be read with respect to Article 46, which mandates the State to take steps towards promoting the advancement for socially and weaker section of the society. 2. The council contended that the impugned order is a colourable exercise of the State’s power and amounts to a fraud on the Constitution is disputed. And classification made by the impugned order by the State is both rational and intelligible. The reservation made by said order is fully justified and valid by Article 15(4) of the Constitution.[\[9\]](#_ftn9) **RELATED LEGAL PROVISIONS** **Constitution of India –** **Article 15(4)** – (4) *“Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”[**\[10\]**](#_ftn10)* **Article 16(4)-** (4) *“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”[**\[11\]**](#_ftn11)* **Article 29(2) –** *“No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them*.”**[\[12\]](#_ftn12)** **Article 46: “***The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation*.”[\[13\]](#_ftn13) **Article 340: “***it empowers the president to appoint commissions for backward classes.”[**\[14\]**](#_ftn14)* **JUDGMENT:** The petitioners’ argument that the President can only issue an order pursuant to Article 15(4) of the Constitution was dismissed by the court presided over by Gajendra Gadkar. The court laid out the parameters for reservation, saying that socially and educationally deprived classes—rather than just caste—should be the basis for it. A reservation of 68% is irregular, and the reservation cap cannot be exceeded. The court contended that while the reserve should benefit the less fortunate members of society, it shouldn’t bar eligible applicants from attending universities. The court granted the writ petitions, declaring that the reservation order is an abuse of the constitutional authority granted to the state by Article 15(4) and that a suitable writ should be issued to prevent the three respondents from carrying out the order. The court came to the conclusion that reservations are meant to help the less fortunate members of society grow and prosper.[\[15\]](#_ftn15) The court reiterated that the caste cannot be the sole criteria for determining backwardness. The court held that it would be irrational to award reservations based only on caste to communities that reject the caste system, including Muslims, Jains, and Christians. The Lingayats had an average of 7.1%, placing them on the list of committees with lower performance than the state, which had a test average of 6.9 for a sample of 1000 kids. The notion of a creamy layer was deemed irrelevant at the time, and the court stressed that reservations should be made within reasonable bounds. The court also underlined the significance of fair boundaries, noting that granting reservations greater than fifty percent would discriminate against neighbouring communities.[\[16\]](#_ftn16) **RATIO DECIDENDI:** Justice Gajendragadlkar decreed that the allocation of seats for disadvantaged groups could not surpass 50% of the overall number of seats, as doing so would contradict the principle of equal treatment. According to Article 15(4) of the Constitution, discrimination based on religion, caste, sex, or place of birth is prohibited. The Court interpreted the terms of Article 15 and analyzed the extent of affirmative action for disadvantaged groups in relation to the supreme principle of equality enshrined in Article 14. Balaji asserted that caste should not be the exclusive factor for determining the disadvantaged, and the Court had the responsibility to ensure that specific measures for disadvantaged groups would not undermine the right to equality as protected by Article 14. The Court employed a proportionality test to evaluate if too much reservation was desirable against the right to equality.[\[17\]](#_ftn17) The Court of Appeal found that the segregation of backward classes is not justified under Article 15 (4) of the Indian Constitution and is against the power of the State. The petitioners contended that the decision of Mandamus against the defendant and two selection committees is confusing and unreasonable, and the categorization formed on this basis is not compatible with the determination of provisions and outside them. The State stressed that the classification formed is sensible and clear, and the reservation needed by the decision is entirely warranted under Article 15 (4) of the Indian Constitution. The dispute between the parties was founded on the case of Ramakrishna Singh Vs The State of Mysore, where the State created a committee to research the matter and advise the Government on criteria to designate pedagogically and socially backward classes. The Central Government asked the government to implement a common policy to define backward classes.[\[18\]](#_ftn18) **CRITICAL ANALYSIS:** - In this landmark case of reservation court has provided various reasoning throughout the Judgment. - Reservation which is provided by the state to elevate weaker sections and to give equal opportunities to the needy peoples in the society does not exclude the rights of the rest of the society. In this regard, the Court rightly laid down that if it is solely based on **‘Caste’** criteria it will not only hamper the rights of people, it will create discrimination among society, which will be not appropriate and will only be limited to Hindu Communities. - The court also rejected the report prepared by the Nagan Gowda committee which was appointed by the State only to prepare the reservation criteria. It was the suggestion of the committee’s report to divide the backward classes into 2 further classes. - The court observed that Article 15(4) was amended in Article 15 in the case **of *State of Madras vs Smt. Champakam Dorairajan*** and **the *State of Madras vs C.R Srinivasan[\[19\]](#_ftn19)*** and clause 1 of Article 15 is an exception or proviso of Article 15(1) and 29(2) which protects the citizen rights against disapproval of admission into any State educational institute. - The court said that under Article 15, the State cannot divide the Backward Classes on the Caste criteria for giving reservation as it would be against the sole meaning of the whole provision. - The court also laid down that reservations cannot exceed the 50% limit as it would exclude the rest of the society. Reservations should be given in balanced proportion so that it does not hamper and citizen rights. **Conclusion & Comments** Reservations are generally considered the exception to general equality. The Honourable Supreme Court rightly uphold the reservation criteria beyond the 50% which helps in maintaining balance and equality. And **Caste** cannot be considered same as **Class** under the provision of Article 15 and thus Caste based reservation cannot be given by the State. The M.R. Balaji and Others vs. State of Mysore Supreme Court verdict on reservations and affirmative action in India has spurred disputes on the need for a more nuanced approach to defining backward classes. The court highlighted that caste alone cannot be the sole factor for defining backwardness, and reservations must not exceed 50% to maintain a balance between merit-based opportunities and social fairness. This ruling set a precedent for future reservation programs, restricting the scope of state powers in adopting affirmative action and respecting the ideals of equality in the Constitution. To guarantee benefits reach the truly disadvantaged, the criteria for establishing backward classes should be changed to include elements such as socio-economic position and educational achievement. A periodic evaluation of reservation rules and their impact should be done, with commissions appointed to analyze the progress of certain communities. **REFERENCES** **Important Cases Referred** - State of Madras vs Smt. Champakam Dorairajan and the State of Madras vs C.R Srinivasan **Important Statutes Referred** - The Constitution of India 1950, art 15(4). - The Constitution of India 1950, art 16(4). - The Constitution of India 1950, art 29(2). - The Constitution of India 1950, art 46. - The Constitution of India 1950, art 340 - The Constitution of India 1950, art 15. - The Constitution of India 1950, art 14 [\[1\]](#_ftnref1) Mahek Shivnani, ‘The Fight for Backwardness – Elucidating Casteism and Reservation in India | ProBono India’ (Probono-india.in2020) accessed 1 August 2024. [\[2\]](#_ftnref2) Shoronya Banerjee, ‘The Reservation Debate in Balaji v. State of Mysore’ (iPleaders22 July 2021) accessed 1 August 2024. [\[3\]](#_ftnref3) Mukesh Suman, ‘M. R. BALAJI vs STATE of MYSORE : CASE SUMMARY – Mukesh Suman’ (Mukeshsuman.com13 August 2024) accessed 14 August 2024. [\[4\]](#_ftnref4) Justice HN Nagamohandas, ‘Increasing the Reservation of Scheduled Caste and Scheduled Tribe in Karnataka’ (2020) accessed 25 July 2024. [\[5\]](#_ftnref5) D Wadhwa, M Rao and M Shah . [\[6\]](#_ftnref6) Ibid.[](#_ftnref7) [\[8\]](#_ftnref8) ‘Mr Balaji vs State of Mysore (1962) – Case Analysis’ (Testbook2024) accessed 5 August 2024. [\[9\]](#_ftnref9) ‘Manupatra Academy’ ([www.manupatracademy.com](http://www.manupatracademy.com)) accessed 1 August 2024. [\[10\]](#_ftnref10) The Constitution of India 1950, art 15(4). [\[11\]](#_ftnref11) The Constitution of India 1950, art 16(4). [\[12\]](#_ftnref12) The Constitution of India 1950, art 29(2). [\[13\]](#_ftnref13) The Constitution of India 1950, art 46. [\[14\]](#_ftnref14) The Constitution of India 1950, art 340 [\[15\]](#_ftnref15) ‘M.R. BALAJI v. STATE of MYSORE 1962 – Legal Vidhiya’ (Legal vidhya20 June 2023) accessed 1 August 2024. [\[16\]](#_ftnref16) legalsynk, ‘Summary of Balaji vs State of Mysore (1963): Remarkable Landmark Judgment on Reservation – Legal SYNK’ (legalsynk.com12 September 2023) accessed 1 August 2024. [\[17\]](#_ftnref17) S Sathe, ‘Judicial Activism: The Indian Experience Judicial Activism: The Indian Experience’ (2001) 6 Law & Policy 2001 . [\[18\]](#_ftnref18) LI Network, ‘M.R Balaji and Ors. Vs State of Mysore – LAW INSIDER INDIA- INSIGHT of LAW (SUPREME COURT, HIGH COURT and JUDICIARY’ (LAW INSIDER INDIA- INSIGHT OF LAW (SUPREME COURT, HIGH COURT AND JUDICIARY9 December 2021) accessed 14 August 2024. [\[19\]](#_ftnref19) *The State Of Madras vs Srimathi Champakam Dorairajanandthe* on 9 April, 1951 Equivalent citations: 1951 AIR 226, 1951 SCR 525, AIR 1951 SUPREME COURT 226, 1987 CALLJ 379 1964 MADLW 430, 1964 MADLW 430 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Union Carbide Corp. v. Union of India](https://lawfoyer.in/union-carbide-corp-v-union-of-india/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Kajal Jain** **Edited by: Sulesh Choudhary** **ABSTRACT / HEADNOTE** The Union Carbide (India) Ltd.. (UCIL), a sister concern of Union Carbide Corporation (UCC) owned and operated in Bhopal, a chemical plant manufacturing pesticides, one of the ingredients in the composition being Methyl Isocyanate (MIC), considered to be the most toxic chemical in industrial use. On the 2nd December 1984 night there was an escape of MIC from the tanks in which it was stored, affecting the residents, animals, flora and fauna. The Bhopal Gas Leak Disaster (Processing of Claims) Act,1985 confers certain powers on the Central Government to ensure that claims arising out of, or connected with, the Bhopal gas leak disaster are dealt with speedily and effectively. In the end, on February 15th 1989, the Supreme court allowed the UCC and UCIL to settle the dispute and pay $470 million to the Union of India in a full and final settlement of all claims. ***Keywords* : Article 21, Principle of Absolute Liability, Article 142** **CASE DETAILS:** ***i)* *Judgement Cause Title / Case Name*** Union Carbide Corporation Etc. Etc vs Union Of India Etc. Etc ***ii)* *Case Number*** AIR 1992 SC 248 ***iii)* *Judgement Date*** 03/10/1991 ***iv)* *Court*** Supreme Court ***v)* *Quorum / Constitution of Bench*** Five member ***vi)* *Author / Name of Judges*** Justice M .N Venkatachalliah Justice Ranganath Mishra (CJI) Justice K.N Singh Justice A.M Ahmadi Justice N.D. Ojha ***vii)* *Citation*** 1992 AIR 248, 1991 SCC (4)584, 1991 SCALE (2)675, 1991 SCR Supl.(1) 251, JT 1991 (6)8 ***viii)* *Legal Provisions Involved*** Article 21, Article 142, M.C. Mehta vs UOI,1987, Section- 357A CrPC, Code of Civil Procedure, 1908: Order I Rule 8, CPC Order XXIII rule 3 ***ix) Keywords*** UOI- Union Of India UCC- Union Carbide Corporation SC- Supreme Court Of India MIC- Methyl Iscocyanate UCIL- Union Carbide Indian Limited **INTRODUCTION:** **Background of The Incident-** The Union Carbide Corporation an American company established a pesticide production plant in India and began its production in 1979. Along with pesticide a very toxic chemical known as Methyl Isocyanate was also produced in the plant.Complaints regarding leakage of the gas on smaller level were made since starting but no action was taken, On 3 December 1984 during midnight MIC was leaked at a large scale which caused death of around 3000 people, along with many animals instantly due to its toxic nature, those who survived the gas leak were severely injured along with permanent respiratory problem. This incident is known as the Bhopal Gas Tragedy **(*“Union Carbide Corporation Etc. Etc vs Union Of India Etc. Etc”* [\[1\]](#_ftn1))**, one of the worst industrial disasters in India. - After this tragedy principle of Absolute Liability[\[2\]](#_ftn2), Bhopal gas disaster (processing of claims) Act,1985[\[3\]](#_ftn3), Environment Protection act,1986 and the Public Insurance liability act[\[4\]](#_ftn4), 1991 came into existence. came into existence. The case also enhanced the scope of Article-21[\[5\]](#_ftn5)(fundamental Right to a clean environment). **Principle of Absolute Liability** – The rule of Absolute liability was enforced by the Honourable Supreme Court of India in the landmark judgmen*t of “M.C. Mehta V UOI2 and Bhopal Gas Leak3”.*Where the Hon’ble Apex Court referring to the principle of strict liability laid down in *“Ryland V. Fletcher”*[\[6\]](#_ftn6) held that this principle cannot be applicable in this case due to extent of harm caused hence introduced Absolute Liability Principle. “*The rule of absolute liability is similar to the rule of strict liability with some modification. This rule applies without any limitation or exception and creates a individual completely liable for any fault. The property to make anyone absolutely liable for the fault and imposition of high retraction make these liability as absolute liability”.* **Article 21-** “*no person shall be deprived of their life except according to the procedure established by law”–* gives right to a clean environment (M.C. Mehta v. Union of India 1986) **Bhopal gas disaster (processing of claims) Act,1985 –“** *Sections 3, 4, 9: Settlement of claims before the Apex Court–Not affording ‘Fairness Hearing’- Non-incorporation of re-opener clause”* **FACTS OF THE CASE:** **Factual Background of the Case-** The Union Carbide Indian Limited (UCIL) Plant, was a chemical company founded in 1934. UCIL asset was divided among UCC located in US and Indian Investors including the GOI and government-controlled banks in which percentage of shareholding was 50.9 and 49.1 respectively. On the night of 3rd December 1984, MIC (considered most toxic chemical in industrial use) leaked from the E610 storage tank from the plant. The factual scenario emanating from the High Court order dated 04.04.1988[\[7\]](#_ftn7), where it was recorded that as per the Union of India, the total number of people who were found to be dead were 2660 and approximately 30,000 to 40,000 people were found to be seriously injured as a result of the disaster. The figures before the Supreme Court at that time were stated to be about 3000 fatal cases, and the number of serious personal injuries suffering permanent damage was about 30,000, as verifiable from hospital records. The government was criticised for its lack of medical aid and not carrying the investigation according. Moreover in the beginning due to lack of information on the cause of sudden injury and deaths the doctors in the hospitals were also not able to operate which even caused the death of people admitted on time. **Procedural Background of the Case-** 1. After the tragedy, The Bhopal Gas Leak Disaster (Processing of Claims) Act,1985 was passed on 29th March 1985 as a way of ensuring claims and speedy trial, this act made the government the sole representative of all the victims in legal proceedings and fought on their behalf for the compensation. 2. The union of India took action on the behalf all the victims suffered against UCC before the U.S. District court, Southern District of New York for award of compensation for the damage caused by the company pesticide plant, all of the claims came to be consolidated by the Judicial panel. 3. The plea of UCC and the UOI was dismissed in the U.S. District court due to jurisdiction of the case which was established in Bhopal, hence suit seeking compensation of 3.3 Billion Dollars against UCC and UCIL was filed in the District Court of Bhopal. 4. On which The District Court made an order directing Payment of Rs. 350 Crores by UCC , which was further in appeal in High Court made by UCC was reduced to Rs. 250 crores. 5. The UOI filed an appeal before the Hon’ble Supreme Court of India in which the Supreme court on February 15th, 1989 recorded an overall settlement of the claims in the suit for 470 Million U.S. dollars and the termination of civil and criminal proceedings. [\[8\]](#_ftn8) **LEGAL ISSUES RAISED** - Whether the Supreme Court of India had the power to quash the criminal proceedings against UCC and whether its order conferred blanket criminal immunity, which is a legislative function. - Whether the settlement was fair and adequate given the inadequate compensation, lack of fairness hearing, and absence of re-opener clause to account for future injuries - Whether the Union of India as the welfare state would be liable to make good any deficiencies if the compensation fund was found to be insufficient. **PETITIONER / APPELLANT’S ARGUMENTS** 1. The counsels for Petitioner / Appellant stated that MIC- is one of the most toxic chemical in industrial use, therefore the petition relied upon certain studies carried out by Toxicology Laboratory, Department of Industrial Environment, Health Science etc and urged to the court that exposure to MIC has a mutagenic effect and the injury caused by it could be permanent and even affecting future generations. 2. It was argued that analysis of the case histories of persons manifesting general morbidity trends at various intervals from 3rd Dec 1989 up to April 1990 indicate severely, moderately and mildly affected areas which showed a decline. But the later periods showed significant trends towards increasing of all three areas- respiratory, ophthalmic and general. 3. Long-term effects and exposure have not been taken into account in approving the settlement and the only way to protect the interest was by incorporating of appropriate re- opener clause. 4. UCC held 50.9% shares in UCIL. UCC’s liability was asserted on the arguments that UCC, apart from holding the company’s share , retained control over it with defective and inadequate safety standard, an indifference and disregard to human safety was the result of conscious and deliberate action of UCC. 5. The contention articulated with strong emphasis is that the court had no jurisdiction to withdraw and dispose of the main suits and the criminal proceedings in the course of hearing of appeals arising out of an interlocutory order in the suits. The disposal of the suits would require and imply their transfer and withdrawal to this court for which, it is contended, the Court had no power under law. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that the claims of a large number of persons who had filed their claims are not registered on the ground that they did not respond to the notices calling upon them to undergo the requisite medical tests for medical documentation. It was urged that no effective service of notice had taken place and that the claims of a large number of claimants—according to them almost over 30% of the total number—- have virtually gone for default. 2. It was urged by the petitioners that the very concept of injury’ as an element in the eligibility for medical documentation was erroneous as it tended to exclude victims who did not have or retain some medical documentation of their initial treatment immediately after the exposure- “*That it is unlikely that a person who was injured and suffered during the post-exposure period is not in possession of any form of medical record. The line of treatment was widely publicised. Therefore, the patient must have received treatment from one of the private practitioners, if not from one of the many temporary and permanent govt./semi-govt. institutions or institutions run by voluntary organisations, and he must be in possession of some form of record*” **RELATED LEGAL PROVISIONS** 1. **Article 21**[**\[9\]**](#_ftn9)**: – “***Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.*”[\[10\]](#_ftn10) 2. **Article 142: [\[11\]](#_ftn11)***-“ empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any case or matter pending before it. These decrees or orders are enforceable across India’s territory, making them significant tools for judicial intervention”* - **Absolute liability** 1. **C. Mehta vs. UOI, 1987[\[12\]](#_ftn12)** 2. **Section 357A of the Criminal Procedure Code[\[13\]](#_ftn13):- “** *makes it the duty of the State Government to establish a compensation scheme for victims of crime, their dependents, and those who have suffered loss or injury as a result of crime and require rehabilitation***”** 3. **Code of Civil Procedure, 1908: Order I Rule 8[\[14\]](#_ftn14)** **JUDGEMENT** **RATIO DECIDENDI** 1. It was held by the Supreme Court that UCC (Union Carbide Corporation) must pay $470 Million as settlement of the claims and this amount was deemed as reasonable and fair. 2. The decision was aimed at balancing the practicalities of substantial compensation and the need for justice by also keeping in mind the harm caused by the disaster. 3. From the past judgments like in M.C. Mehta v. Union of India, the Court emphasized the applicability of the no-fault liability principle. 4. All civil and criminal proceedings against UCC in India were to be terminated, this was done to provide victims fast relief without prolonging the litigation process. **GUIDELINES** Court focused on the need for health care and rehabilitation of the victims and provide them with medical facilities The compensation distribution must be in a proper way and should reach the needy. **OBITER DICTA** 1. Showed concern and criticism towards the international corporate companies operating in India. 2. Concern for the environment and laws to prevent such tragedies . 3. Showed compassion for victims and also acknowledged the human suffering caused by the disaster. **CONCLUSION & COMMENTS** The Supreme Court completed the settlement as fast and effectively as possible by providing $470 million as settlement to the suffered victims, it also widened the scope of Article 21, the Right to a clean environment, and also showed that there is a need for strict rules and regulations for multinational companies and environment laws to prevent and avoid these kind of disasters in the future. In my opinion, the judgment and reasoning given by the court are right as they also considered the practicalities of substantial compensation and giving justice to the victims, and there should be strict rules related to these things that will regulate the multinational companies as well as benefit the citizens. These multinationals companies should be bound to follow rules and regulations that are strict and rigid as this will protect the interest of citizens and also the employees. **REFERENCES** **Important Cases Referred** 1. Charan Lal Sahu v. Union of India, \[1990\] 1 SCC 613[\[15\]](#_ftn15)– principles of natural justice 2. Narasimha Raju v. V. Gurumurthy Raju & Ors., \[1963\] 3 SCR 687 [\[16\]](#_ftn16)– On doctrine of stifling prosecution 3. Durga Shankar Mehta v. Thakur Raghuraj Singh & Others, \[1955\] SCR 267[\[17\]](#_ftn17) – Article 136 of the Constitution 4. Shivdeo Singh & Ors. v. State of Punjab & Ors., AIR 1963.SC 1909[\[18\]](#_ftn18), **Important Statutes Referred** 1. Bhopal Gas Leak Disaster (Processing of Claims) Act 1985 – Governing compensation to Bhopal gas tragedy victims 2. Code of Criminal Procedure, 1973 3. Law of Torts 4. The Constitution of India, 1950 **ENDNOTES:** [\[1\]](#_ftnref1) https://main.sci.gov.in/jonew/judis/7699.pdf [\[2\]](#_ftnref2) https://www.legalserviceindia.com/legal/article-9689-m-c-mehta-v-union-of-india-air-1987-sc-965-oleum-gas-leak-case.html [\[3\]](#_ftnref3) https://indiankanoon.org/doc/1510537/ [\[4\]](#_ftnref4) https://www.indiacode.nic.in/bitstream/123456789/4316/1/ep\_act\_1986.pdf [\[5\]](#_ftnref5) ttps://www.constitutionofindia.net/articles/article-21-protection-of-life-and-personal-liberty [\[6\]](#_ftnref6) The rule was formulated by Blackburn, J. in Exchequer Chamber in Fletcher v Rylands, (1866) L.R. 1 Ex 265 and the same was approved by the House of Lords in Rylands v Fletcher, (1868) L.R. 3 H.L. 330. [\[7\]](#_ftnref7) https://indiankanoon.org/doc/1344892/ [\[8\]](#_ftnref8) (1989) 3 SCC 38 [**\[9\]**](#_ftnref9) “An Informed Insight: UAPA, 1967” LawFoyer | A daily doze for inquisitors, 2024 available at: https://lawfoyer.in/an-informed-insight-uapa-1967/ (last visited July 20, 2024). [\[10\]](#_ftnref10) Article 21, Constitution of India (1950). [**\[11\]**](#_ftnref11) https://indiankanoon.org/doc/500307/ [**\[12\]**](#_ftnref12) https://www.legalserviceindia.com/legal/article-9689-m-c-mehta-v-union-of-india-air-1987-sc-965-oleum-gas-leak-case.html [**\[13\]**](#_ftnref13) https://www.livelaw.in/columns/section-375a-of-the-crpc-constitution-victim-compensation-scheme-vcs-indian-penal-code-nalsa-guidelines-victim-compensation-fund-guidelines-cvcf-2016-pocso-rule-198885 [**\[14\]**](#_ftnref14) https://www.legalserviceindia.com/legal/article-2393-representative-suit-under-the-code-of-civil-procedure-1908.html#:~:text=Order%20I%20Rule%208%20of,joined%20as%20parties%20to%20it. [\[15\]](#_ftnref15) https://main.sci.gov.in/jonew/judis/7699.pdf [\[16\]](#_ftnref16) https://main.sci.gov.in/jonew/judis/3788.pdf [\[17\]](#_ftnref17) https://indiankanoon.org/docfragment/937486/?formInput=article%20136 [\[18\]](#_ftnref18) https://main.sci.gov.in/jonew/judis/26190.pdf **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases, Environmental Law --- ### [S.R. Bommai Vs Union of India](https://lawfoyer.in/s-r-bommai-vs-union-of-india/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Ishrat** **Edited by: Sulesh Choudhary** **ABSTRACT / HEADNOTE:** **S.R. Bommai Vs UOI[\[1\]](#_ftn1)** is landmark case for article 356 this case crystal clears the power of President under article 356. this case is also talk about the basic structure doctrine and judicial review of power of president under article 356. This the leading case related to proclamation power of president. under this case SR Bommai was the Karnataka Chief Minister between August 1988 and April 1989. He led a Janata Dal government, which was dismissed on 21st April 1989 when President’s Rule (Article 356) was imposed in Karnataka. This case same issue like Meghalaya case Nagaland in both the case the state government was dissolve without giving the proper ground of dismissing the state government and state legislation. In S.R. Bommai’s case, on March 5, 1985 elections held to the Karnataka State Legislative Assembly and the Janata Dal won 139 seats out of 225 seats. Shri R.K. Hegde was elected as the leader of Janata Dal and became the Chief Minister. Due to his resignation on August 12, 1988, Shri S.R. Bommai, was elected as leader of the party and became the Chief Minister. his government is dismissed on April 21,1989 and proclamation of emergency was declared on the bases that he loss majority. S.R. Bommai go to the governor P. Venkata Subbaiah and request him for the floor test of majority but governor refused to give any opportunity to test his majority in the assembly. In this scenario the Governor sent his second report to the President and exercising the power under Article 356 the President issued Proclamation, dismissed Bommai Government and dissolved the Assembly on April 21, 1989 and assumed the administration of the State of Karnataka. When a writ petition was filed on April 26, 1989, a special Bench of three Judges of the High Court of Karnataka dismissed the writ petition. then he moves to the supreme court. in supreme court nine bench of judges give the landmark judgement **.** ***Keywords**: Article 356, Article 355, Jurisdiction of centre into state government, Procedure of proclamation, Judicial review*** **CASE DETAILS[\[2\]](#_ftn2)** ***i)* *Judgement Cause Title / Case Name*** S.R. BOMMAI Vs. UNION OF INDIA ***ii) Case Number*** (\[1994\] 2 SCR 644: AIR 1994 SC 1918: (1994)3 SCC1) ***iii)* *Judgement Date*** 11/03/1994 ***iv)* *Court*** SUPREME COURT OF INDIA ***v)* *Author / Name of Judges*** KULDIP SINGH (J) SAWANT, P.B. RAMASWAMY, K. AGRAWAL, S.C. (J) YOGESHWAR DAYAL (J) JEEVAN REDDY, B.P. (J) PANDIAN, S.R. (J) PANDIAN, S.R. (J) AHMADI, A.M. (J) ***vi)* *Citation*** 1994 AIR 1918, 1994 SCC (3), 1, JT 1994 (2)215, 1994 SCALE (2)37 ***vii)* *Legal Provisions Involved*** Article 356 **INTRODUCTION: –** **The two spinal issues before the Constituent Assembly and supreme court were:** (1) what powers were to be taken away from the States; and (2) how could a national supreme Government be formed without completely removing the power of the State. In this case mainly based on the state and centre relation here the mainly problem in front of court and legislative assembly is to which kind of power can be taken from the state government and when centre can be interfered in the power of state government in that what is the jurisdiction of centre also the procedure of the interference of centre into the state government. main article in this case on which case is revolve is Article 356. This issue become very important to resolve because at that time the central government misusing the power of Article 356. there is frequently use article 356 without giving any proper justification and there is lots of interference of centre into state government activities from 1951 to 19190 83 times the proclamation of emergency done. BR Ambedkar also said that, “I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes… and I share the sentiments that such articles will never be called into operation and that they would remain a dead letter.”[\[3\]](#_ftn3) SR Bommai was the Karnataka Chief Minister between August 1988 and April 1989. He led a Janata Dal government, which was dismissed on 21st April 1989 when President’s Rule (Article 356) was imposed in Karnataka. This case is very impeccable with view of article 356 (state emergency) judgement of this case restrict the power of president and this case also very important related to basic structure doctrine it also tells the limitation of article 356 and also talk about the principle of federalism. **BACKGROUND OF THE CASE: –** - R. Bommai was the chief minister of the Karnataka from1988 to April 1989 from Janata dal party with 139 seats out of 225 seats. - Janata dal government was dismissed on 1st April 1989 on that day he lost his majority he goes to the governor but governor also denied him to prove majority. - Governor sends the report to the president and president rule was imposed. - He moves to the High court where 3 bench of judges also denied - After that S.R. Bommai move to supreme court where the Nine bench of judges give landmark judgement with respect to article 356 **FACTS OF THE CASE [\[4\]](#_ftn4)** - “In S.R. Bommai’s appeal the facts are that on March 5, 1985 elections held to the Karnataka State Legislative Assembly and the Janata Dal won 139 seats out of 225 seats and the Congress Party was the next largest party securing 66 seats. Shri R.K. Hegde was elected as the leader of Janata Dal and became the Chief Minister - Due to his resignation on August 12, 1988, Shri S.R. Bommai, was elected as leader of the party and became the Chief Minister. As on February 1, 1989 the strength of Janata Dal was 111 and the Congress was 65 and Janata Party was 27, apart from others. On April 15, 1989 his expanding the Ministry caused dissatisfaction to some of the aspirants. - One Kalyan Molakery and others defected from Janata Dal and he wrote letters on April 17 and 18, 1989 to the Governor enclosing the letters of 19 others expressing want of confidence in Shri Bommai. - On April 19, 1989 the Governor of Karnataka sent a report to the President. On April 20, 1989, 7 out of 19 MLAs that supported Kalyan Molakery, wrote to the Governor that their signatures were obtained by misrepresentation and reaffirmed their support to Shri Bommai. On the same day the cabinet also decided to convene the assembly session on April 27, 1989 at 3.30 p.m. to obtain vote of confidence and Shri Bommai met the Governor and requested him, to allow floor-test to prove his majority and he was prepared even to advance the date of the session. In this scenario the Governor sent his second report to the President and exercising the power under Article 356 the President issued Proclamation, dismissed Bommai Government and dissolved the Assembly on April 21, 1989 and assumed the administration of the State of Karnataka. - When a writ petition was filed on April 26, 1989, a special Bench of three Judges of the High Court of Karnataka dismissed the writ petition. - There are several cases in different reason of India where Question is raised on proclamation of president rule for example On October 1991 issued a proclamation under article 356 dismiss the Meghalaya government. In Nagaland on August 1988 on the bases of governor report the proclamation of president rule was imposed. There were many cases where the proclamation of president rule was imposed without proper justification or without giving proper giving the ground of use of article 356.” **LEGAL ISSUES RAISED: – (***minimum 2 legal issues*) - Proclamation of President’s rule in a state. On which are ground for the president rule should be impose. what is the limitation of Article 356. and what are the power of President under article 356. - Is this article come under the judicial review or not **PETITIONER / APPELLANT’S ARGUMENTS[\[5\]](#_ftn5)** - “According to petitioner Bommai was not given the chance of proving majority. - It was also argued that it can be prima facia ascertained by the fact of the case that Governor acted out of malice because governor does not have valid reason in the report which prove that the Karnataka government did not enjoy the support of majority - According to petitioner the act of centre against the article 74(2) In this article the centre government must share the details related to the imposition of emergency with the state. and in this case the ground of proclamation the president rule was not given.” **RESPONDENT’S ARGUMENTS[\[6\]](#_ftn6)** - “Respondent was represented by the Attorney General. It was contented by the respondent that petitioner had no authority to challenge report which is given by the governor to the president via writ petition in HC. - Governor has an immunity against the legal action against Article 361 of Indian constitution. - Defendant also argued that the petitioner cannot claim the defendant to provide any document which were considered by the president to issue a proclamation made under Article 356 and the only report as a document can be shown to the petitioner which is made by Governor. - Court has no authority to enquiry on the decision of President to issue proclamation under Article 356 Indian constitution.” **RELATED LEGAL PROVISIONS** **Article 356 in Constitution of India** 356. **Provisions in case of failure of constitutional machinery in State[\[7\]](#_ftn7)** “(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation- (a) Assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; (b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) Make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State: Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation. (3) Every Proclamation under this article shall be laid before each house of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. (4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation: Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years: Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People: Provided also that in the case of the Proclamation issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab, the reference in the first proviso to this clause to “three years” shall be construed as a reference to five years. (5) Notwithstanding anything contained in clause (4), a resolution with respect to the continuance in force of a Proclamation approved under clause (3) for any period beyond the expiration of one year from the date of issue of such proclamation shall not be passed by either House of Parliament unless– (a) A Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and (b) The Election Commission certifies that the continuance in force of the Proclamation approved under clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned: “ **Article 355: –[\[8\]](#_ftn8)** “Which talk about the duty of the union to prevent the state against external aggression and internal disturbance.” It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.” **JUDGEMENT: –** **Bommai Case Judgement** **This landmark verdict put restrictions on the centre for imposing the President’s Rule on states.** - supreme court of India while giving this landmark judgement held that the centre is not having the absolute power under article 356 of Indian constitution. - power of president is not absolute power under article 356 9(1) it is subject to judicial review. Here supreme court held that according to article 74 (2) ” The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.” But the bar on this article by this judgement is that the court can ask for the material on the bases if which proclamation decision was taken “. - Until then, the President can only suspend the Legislative Assembly and to dissolve the state Government but with the majority of both the houses - In case the proclamation does not get the approval of both the Houses, it lapses at the end of a period of two months, and the dismissed government is revived. - The suspended Legislative Assembly also come in the power. - The supreme court also held that President by himself can only temporarily suspend the legislative assembly not to dissolve it. The dissolution of assembly come after the majority of both the houses. - Supreme Court also quoted the thought of Dr B.R. Ambedkar here,” In fact I share the sentiments expressed … that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all, they are brought into operation, I hope the President, who is endowed with all these powers, will take proper precautions before actually Suspending the administration of the provinces. I hope the first thing he ‘will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution.” according to Dr B.R. Ambedkar the power of this article use by the president only in the rarest of rare cases and with proper precaution and procedure. - supreme court also held that secularism is also present in our constitution before the amendment of preamble and secularism is the basic feature of Indian constitution. - supreme court declare that the proclamation in Karnataka and Meghalaya is unconstitutional and restore the state government - supreme court also refer the Sarkari report of 1988 holding that the president should first issue warning instead of directly exercising the power under article 356 also government should first invite other parties to claim the majority in the house before the use of proclamation. **CONCLUSION & COMMENTS: –** In the case of **S.R. Bommai Vs Union of India** this the landmark judgement because its talk about the state relation with centre and also talk about the constitutional jurisdiction. in judgement supreme court restrict the arbitrary interference of central in state administration. this case also gives the guideline for imposing the president rule in the state under article 356. the supreme court in this case laid down that the power of the president to issue a proclamation is not absolute and is subject to judicial review. **REFERENCES: –** **Manu Patra[\[9\]](#_ftn9)** [**https://www.manupatrafast.com/?t=desktop**](https://www.manupatrafast.com/?t=desktop) **Indian kanoon[\[10\]](#_ftn10)** **Constitution of India** **ENDNOTES:** [\[1\]](#_ftnref1) [\[2\]](#_ftnref2) ¹ “Indian Kanoon,” Indian Kanoon, (accessed August 7, 2024). [\[3\]](#_ftnref3)¹ “Article 356 of the Constitution,” Ministry of Law and Justice, Government of India, (accessed August 7, 2024). [\[4\]](#_ftnref4) “Indian Kanoon,” Indian Kanoon, (accessed August 7, 2024). [\[5\]](#_ftnref5) ¹ “S.R. Bommai v. Union of India: Power of President’s Rule Curtailed,” iPleaders, (accessed August 7, 2024). [\[6\]](#_ftnref6) ¹ “S.R. Bommai v. Union of India: Power of President’s Rule Curtailed,” iPleaders, (accessed August 7, 2024). [\[7\]](#_ftnref7) “Indian Kanoon,” Indian Kanoon, (accessed August 7, 2024). [\[8\]](#_ftnref8) [\[9\]](#_ftnref9) [**https://www.manupatrafast.com/?t=desktop**](https://www.manupatrafast.com/?t=desktop) [\[10\]](#_ftnref10) **Categories:** Case Analysis, Constitutional Law Cases --- ### [Union of India & Anr v/s Balbir Singh & Anr.](https://lawfoyer.in/union-of-india-anr-v-s-balbir-singh-anr/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Diksha Patole** **Edited by: Sulesh Choudhary** **ABSTRACT** The case between Union of India & Anr vs. Balbir Singh & Anr decided on 5th May, 1998 is based on the present dismissal of the Balbir Singh (respondent), the former Sub-Inspector in Delhi Police, following the assassination of the then Prime Minister Indira Gandhi in 1984. Balbir Singh was arrest and the same was condemned to death for his role in the assassination of the Prime Minister, however, he was later discharged by the Supreme Court for lack of adequate proof. Still, going by his order of dismissal which was perhaps in proviso (c) to Article 311(2) of the Constitution of India, Singh was acquitted. Decision to dismiss Singh has been made on practicing the contents of reported documents as affirmed by the Committee of Advisors and President of India deemed capable of posing a threat to the State Security. The first remedy that Balbir Singh took was to present his grievances before CAT seeking to quash the order of dismissal made against him. The CAT gave the decision in favour of Singh but the Apex court reversing the CAT’s order held that dismissal under proviso (c) of Article 311(2) of the Constitution was legal as there was adequate material that was secret and relevant to the security of the State. This the court was citing from S. R. Bommai and Ors vs. Union of India and Ors and B. Bhaskara Reddy vs. Government of Andhra Pradesh to apropose the proviso (c) to Article 311(2) showing that even though some of the material milestones are irrelevant but it does not matter because there are other justified moves that can sustain the decision. The case showcases the balance between procedural fairness and the importance of decisive action for national security, reinforcing the narrow scope of judicial review in such context. ***Keywords*: *Article 311(2), proviso(c), national security, supreme court of India, Indira Gandhi assassination, committee of advisors, central administrative tribunal, judicial review, reversal of tribunal decision, confidential material*** **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Union of India & Anr vs Balbir Singh & Anr ***ii)* *Case Number*** (1978) 2 SCC 39 ***iii)* *Judgement Date*** 5 May, 1998 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** G.T. Nanavati, S.P. Kurdukar, Sujata V. Manohar ***vi)* *Author / Name of Judges*** Sujata V. Manohar ***vii)* *Citation*** (1978) 2 SCC 39 ***viii)* *Legal Provisions Involved*** Constitution of India – Article 311 **INTRODUCTION** The Constitution of India in the Article 311 protects the civil servants of the Union and State Governments from removal or other unfavourable changes to their position. The Article ensures that a government employee is not dismissed or removed without being given an opportunity to be heard and an investigation is made before any authority below the one that hired him initiates any disciplinary proceedings against such an employee. Article 311(1) shields the civil servant from being dismissed or removed without an inquiry. However, Article 311(2) provides that the employee should be informed of the matters being complained of against him or her and must be heard. But of course, there are times perhaps when the President or Governor has found it necessary that an inquiry cannot be served in the interest of the nation’s security. In this instance, the case refers mainly to the procedural and the judicial review part of Article 311. The Petitioner’s services were terminated at the instance of the Committee of Advisors and concurred with by the President of India on the basis of the evidence by the Intelligence Bureau on Balbir Singh (Respondent). The SC also analysed the issues regarding the approval of the President of the dismissal of the employee and whether the approval was influenced by the extraneous consideration or not. **FACTS OF THE CASE** **FACTUAL BACKGROUND** 1. The respondent in 1984 was posted as Sub-Inspector and was posted for security of the then Prime Minister Mrs. Indira Gandhi’s residence in Special Security District New Delhi. 2. Mrs Indira Gandhi the then Prime Minister of India was assassinated on the 31st of October, 1984 by her two security guards, Sub-Inspector Beant Singh and Constable Satwant Singh. 3. Criminal complaint was filed under section 307, 302 and 120-B I PC along with 25, 27, 54 & 59 of arms act. 4. Concerning the said criminal case, the respondent was also charged and arrested as well. While the respondent was charged before the Disciplinary Committee, on the 8th of December, 1984 he was arrested and subsequently placed under suspension. The order of suspension stating a Departmental Enquiry to be conducted. 5. Despite the finding of the said criminal case, the Intelligence Bureau got some material. From the material gathered, it is deduced that the Delhi Police had tendered a memo proposing dismissal of the respondent from the service as he was involved in activities that were considered subversive to the security of the State. 6. The Committee of Advisors suggested that the respondent should be dismissed from service as provided by proviso(c) to Article 311(2). Consequent to this recommendation, the President of India, under proviso (c) to Article 311 (2) issued and order dismissing the respondent from the service. 7. In the said criminal case the respondent received the death penalty along with two other offenders. The appeal has been lead and rejected by the High Court with respect to the conviction of the accused. But on the appeal to Supreme court the respondent was set free. 8. Therefore, on 23rd of April, 1990 the respondent filed an application before CAT challenging the order of dismissal passed by the first appellant. 9. The Central Administrative Tribunal (CAT) first in favour of Balbir Singh said his dismissal was not proper. 10. To this the Supreme Court simply added the order of the CAT thus nullifying the application to challenge the dismissal. 11. The Supreme Court remarked that there were reasonable grounds for letting off him/her without conducting a Departmental Enquiry. **PROCEDURAL BACKGROUND** 1. This case started with the commencement of departmental action against the employee, Balbir Singh. Pursuant to the disciplinary rules and as provided under Article 311 sub section (2) an inquiry was carried out. Balbir Singh was informed of the charges against him besides, he was allowed to defend himself against the accusations leveled on him. The inquiry officer committed the accused for the charges that were leveled against him. 2. It is important to note that from the inquiry report, the disciplinary authority that usually could be a senior officer or the head of the department in question applied a penalty. Based on this penalty, it is evident that such a person would be dismissed, removed or demoted based on the invocation of Article 311. 3. Unsatisfied, Balbir Singh undertook an appeal before the Central Administrative Tribunal (CAT) regarding the disciplinary proceedings taken against him. 4. The court gave the verdict in the favour of Balbir Singh, being dissatisfied with the judgement passed by the court, the Union of India, representing the government department, approached the Supreme Court. The appeal would be dealing with the Court’s interpretation of Article 311 or whether the disciplinary action was procedurally proper. 5. The Supreme Court went straight to a microscopic analysis of the whole process to determine whether the government had observed all the legalities enshrined in Article 311 which outlines procedural measures to be followed. These involved determining if the inquiry was fair, the charge proven to be so and if indeed the punishment was commensurate with the offence. **LEGAL ISSUES RAISED** 1. Whether the Respondent’s dismissal order dated 16/3/1985 was valid. 2. Whether the judgement made by the Tribunal was valid. **PETITIONER ARGUMENTS** 1. Union of India and its officials submitted that the dismissal of Balbir Singh was under the sanction of second proviso to article 311(2), which is Clause C. This provision permits dismissal of a government employee without a departmental inquiry where it is deemed necessary in the interests of the state’s security. 2. The petitioner therefore pointed out that the documented evidence considered by a high level Committee of Advisors in which it was classified as confidential, justified dismissal on account of Singh’s part in things regarded as prejudicial to state security. 3. They stated that the Tribunal made a mistake in the invalidation of the dismissal since the Tribunal should not usurp the authority of the President in deciding on the fate of the appellant who dismissed employees as per the Committee’s advice. **RESPONDENT’S ARGUMENTS** 1. It was submitted that the dismissal of Balbir Singh was unjustified and demanded that the order should be quashed. 2. It was argued that there was no procedural fairness during the dismissal of Balbir Singh as it omitted the regular departmental inquiry process. 3. It was highlighted that the Supreme Court acquitted Balbir in the said criminal case and argued that the acquittal should have affected the dismissal decision. **RELATED LEGAL PROVISIONS** **Article 311(2) –** It requires that no officer can be dismissed, removed or reduced in rank although he can be suspended and that he be allowed to explain himself. Particularly, this provision requires that before the adverse actions are taken against the employee, s/he should be afforded an opportunity to be heard and defend him/herself in case charges/ complaints are made against him/her. This makes sure that there is follow through that discipline is done in a fair and constitutional manner without infringing on any rights of the civil servants besides observing justice. **JUDGEMENT** 1. In the final verdict of the case Union of India & Anr vs Balbir Singh & Anr Supreme court of India partly allowed the appeal filed by Union of India and quashed the CAT order. 2. The court referred to S. R. Bommai and Ors vs Union of India and Ors to define the nature of the review under proviso (c) to Article 311(2). The Court, once again, reminded that the Order-in-Council’s satisfaction can be challenged although it is limited to the examination whether the satisfaction was unmindful of mala fides or based on irrelevant grounds. Also, the court cannot override its satisfaction with that of the President if there is material that can support the action. 3. This court pointed out an error in judgment of the Tribunal in which they failed to take into account of the confidential document in relation to the State Security. B. Bhaskara Reddy vs. Government of Andhra Pradesh was used to point out that despite the fact that the material includes the irrelevant part, the action shall be justified by identifying other relevant materials justifying the action. 4. Thus, the Supreme Court ruled that the Balbir Singh’s dismissal under proviso (c) to Article 311(2) of the Constitution of India was sound because there was enough material that was sealed and relevant to state security. **CONCLUSION** 1. “The impugned order of the Tribunal is set aside and the application filed by the respondent before the Tribunal is dismissed. There will, however, be no order as to costs” the Bench ruled. 2. It asserted the constitutional propriety of the action taken under proviso (c) to Article 311(2) of Constitution of India thus allowing such dismissals in the interest of the nation’s security. 3. Therefore, in my view, the case defends the best interest of national security and the procedural fairness both by demonstrating how the Judiciary meticulously balances and strikes a middle ground on various novel issues to do with the stature of the law. **REFERENCES** 1. R. Bommai and Ors v. Union of India and Ors 2. Bhaskara Reddy v. Government of Andhra Pradesh 3. Union of India & ANR v. Balbir Singh & ANR 4. Article 311(2) of Constitution of India 5. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Kuldeep Nayar Vs Union of India](https://lawfoyer.in/kuldeep-nayar-vs-union-of-india/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Shruti Bharat Mohite** **Edited by: Sulesh Choudhary** **ABSTRACT / HEADNOTE** In the case Kuldeep Nayar Vs Union of India, Kuldeep nayar is a petitioner and he files a writ petition under Article 32 of constitution of India, challenging the changes made in The Representation of people act, 1951 through the representation of people (Amendment) Act, 40 of 2003 majorly amended two provisions - Deletion of ‘domicile’ requirement in state concerned for the elections of state council. - Introduction of ‘open ballot system’ in the elections of state council. Petitioner contended that the elimination of ‘domicile’ requirement to get elected in Rajya Sabha violates the principle of federalism and the introduction of ‘open ballot system’ in council of state infringe on Article 19(1)(a) -freedom of expression. On the behalf OF Union of India respondent shri. vahanvati argued that deletion of domicile requirement doesn’t violate federalism principle as it creates multiple & greater choices for choose as a representative of state in issue and the use of ‘open ballot’ in elections of council of states make election more transparent & accountable. Voters are free to express their opinions even if they used open ballot system. After listening the arguments of both parties’ court came to the conclusion that firstly, deletion if domicile requirement doesn’t violate principle of federalism. Court said that there is no compulsion that the representative of state should belongs to that state. In the principle of federalism nowhere is written about compulsion of residency. The court stated that this amendment under section 3 had restricted the qualification of a member to the council of states but this restriction is not to any citizen of India. Rather the restriction is with respect to non-citizens & this is significant as per the court’s opinion. Secondly, the adoption of ‘open ballot system’ doesn’t infringe the article 19(1)(a) -freedom of expression. rather open ballot helps to execute free & fair elections. ***Keywords* *(Minimum 5)*:** 1. Article 32 of Indian constitution 2. Representation of people act,1951 3. Principle of federalism 4. Open ballot system 5. Article 19(1)(a) **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Kuldeep Nayar Vs Union of India ***ii)* *Case Number*** Writ petition 217 of 2004 ***iii)* *Judgement Date*** 28/08/2006 ***iv)* *Court*** Supreme court of India ***v)* *Quorum / Constitution of Bench*** 5 judges ***vi)* *Author / Name of Judges*** Y.K..Sabharwal CJI, K.G.Balakrishnan, S.H.Kapadia, C.K.Thakker, P.K. Balasbramanyan. ***vii)* *Citation*** Kuldeep Nayar Vs Union of India on 28/08/2006 ***viii)* *Legal Provisions Involved*** 1\) Article 32 Of the Indian Constitution 2\) Sections 3,59,94 and 128 of the Representation of People Act 1951 3\) The Representation of People (Amendment) Act, 2003 (Act No. 40 of 2003) 4\) Article 19(1) (a) of the Indian constitution **FACTS OF THE CASE** **Procedural Background of the Case** In 1947, India became independent but that time India didn’t have any independent constitution or any regulations. Later legislative assembly was made to frame constitution of India. The representation of people act,1950 & 1951 was passed by parliament of India for fair conduction of elections. Article 324 to 329 of part 15 of Indian constitution provides guidelines for the countries electoral system. The act consists many provisions regarding elections like, qualification & disqualification of voters, seat allocation in the Lok Sabha & the legislative assemblies, which election method (direct & indirect) would be used for election and qualification & disqualification of MP’s & MLA’s. The act has been amended several times.in the year 2003. Two major provisions were amended - Deletion of domicile requirement for in the state concerned to get elected to the council of state. - Alteration in the section 59,94, & 128 of RP act ,1951 for adopting open ballot system. According to section 3 of RP act,1951 for to be chosen as a representative of any state there is no requirement that the member shall be a resident that state. The altered section 59 of RP act,1951 states that the elections of state council shall be conducted by open ballot. This provision also altered the section 94 and section 128 these provisions of sections were made in favour of open ballot. Section 94 says that ‘secrecy of ballot’ shall be maintained but in the case of open ballot, it can be compromise & the section 128 includes the punishment to whom violate the secrecy of ballot, but this punishment not apply to person who participates or performs any duty in open ballot. **Factual Background of the Case** In the case of Kuldeep Nayar Vs Union of India, Kuldeep Nayar a well-known journalist files a writ petition under article 32 of Indian constitution stating that amendment made in the RP Act,1951, un 2003 are unconstitutional and violates the basic structure of constitution. The RP Act, 1951, requires ‘domicile’ to the voters who are desires for getting elected in council of states of the state in issue, but later it amended by the amendment 40 of 2003. Petitioner argued that the elimination of domicile requirement to the members who are willing to get elected for state representative violates the basic principle of federalism and the further amendment in RP Act,1951 which is the introduction of the open ballot system in the elections of Rajya Sabha and the alteration in section 59,94 and section 128 petitioner contended that this amendment infringes the secrecy of ballot and violates article 19(1)(a) which is freedom of expression of the constitution of India **LEGAL ISSUES RAISED** 1. Whether, Deletion of ‘domicile’ requirement to the candidates standing in Rajya Sabha elections violates the principle of federalism, basic structure of constitution? 2. Whether, use of ‘open ballot system’ in Rajya Sabha elections infringes the article 19(1)(a) and ‘principal pf secrecy’? **PETITIONER / APPELLANT’S ARGUMENTS** 1. The learned counsel Shri.Sachar on the behalf of petitioner Kuldeep Nayar submitted that, the amendment made in Article 3 of RP Acr,1951 violates the principle of federalism, and the basic structure of the constitution. 2. He contended that council of states is upper house of parliament which made for representing states and union territories in the parliament. One who is not belongs to that state, cannot represent the state effectively. - Learned counsel of petitioner argued on second issue that, the introduction of open ballot conducting Rajya Sabha elections are violating fundamental right of the voters. 1. He also contended that, these impugned amendments violate mot only the article 19(1)(a) of the constitution but also the provisions in the Representation of People Act,1951, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. 2. The learned counsel of the petitioner argued that, ‘secrecy of ballot’ in the elections of council of states is the democratic feature of the constitution. 3. He also states that alteration made in section 3,59,94, and 128, are unconstitutional and violative to the basic structure of constitution and fundamental rights of the constitution. **RESPONDENT’S ARGUMENTS** **Issue of the ‘domicile’ requirement:** 1. Shri. Vahanvati, Ld., Solicitor General of India, submitted that, Deletion of ‘domicile’ requirement fulfilled the insufficiencies in the conduction of RP Act.1951 and the Said amendment did not contort the features of Council of State 2. Shri.Vahanvati contended that, the word ‘state’ in the Article 80(4) of the Indian constitution doesn’t mean the requirement of residence. 3. He also states that, elected representatives of the states are citizens of the country. It doesn’t mean that it affects federalism and this amendment is chosen by Indian parliament, definitely it wouldn’t violate the principle of federalism. **Issue of the ‘open ballot system’:** 1. Respondent did argument supporting the amendment that, there are more possibility to happen corruption and proxy while maintaining ‘secrecy of voting’ 2. Respondent also argued that, all important matters in the legislatures are discussed through ‘open ballot’, therefore the election of a representative is also an important, matter of the legislature. 3. This amendment didn’t snatch the ‘right to vote’ of the voters, it only changes that, voters have to disclose his vote through this amendment parliament tried to reduce corruption and maintain accountability & transparency of the election. **RELATED LEGAL PROVISIONS** **Article 32 of the Indian constitution: “*remedies for enforcement of rights conferred by this part,*** - *The right to move the supreme court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.”* **Section 3 of RP Act,1951:** *“qualification for membership of the council of state –* *A person shall not be qualified to be chosen as a representative of any state or union territory in the council of states unless he is an elector for a parliamentary constituency in India.”* ***Section 59 of* RP Act,1951:** *“manner of voting at elections –* *At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and, save as expressly provided by this act, no votes shall be received by proxy. Provided that this section shall not apply to such witnesses, or other person where he has voted by open ballot.”* **Section 94 RP Act,1951:** *“No witness or other person shall be required to state for whom he has voted at an election. Provided that this section shall not apply to such witness, or other person where he has voted by open ballot*.” **Section 128 RP Act,1951***: “Maintenance of secrecy of voting. —* [*(1)*](https://indiankanoon.org/doc/48207236/) *Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy. Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States.* [*(2)*](https://indiankanoon.org/doc/185675062/) *Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both.* 1. **Article 80(4) of the Indian constitution:** *“The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the state in accordance with the system of proportional representation by means of the single transferable vote.”* **JUDGEMENT** **RATIO DECIDENDI** - **On the issue regarding removal of domicile,** The court state that, the amendment made in the RP Act,1951 through the RP (amendment) Act,40 of 2003, which came into force in 28th august 2003, i.e., deletion of ‘domicile’ requirement for the candidates willing to get elected as representative of the state in Rajya Sabha. Court held that, in order to be elected to council of state, a person need not to be a resident of the state. It doesn’t violate the principle of federalism. The said amendment is not unconstitutional and it doesn’t affect the basic structure of Indian constitution. Court came to a conclusion that residence was never treated as an essential of the structure of the council of state and also the government of India act states that domicile is not the essential ingredient of the structure and composition of the upper house. The court also admitted that, “it is no part of federal principle that the representatives of state must belong to that state.” - **On the regarding ‘open ballot system’**, Further amendment made in RP Act, 1951, through RP (amendment) 40 of 2003 is alteration in section 59, 94 and 128 of RP Act,1951 by which ‘open ballot system’ was introduced. The court doesn’t found violation of fundamental right which is article 19(1)(a) of Indian constitution – freedom of expression. Voters are free to express their political opinions and preferences even if they going to vote through ‘open ballot system’. Court held that, voters of direct elections are ordinary citizens requires the safeguard of secrecy but the elected members of legislative assemblies are supposed to have public courage. The conduction of open ballot system shall be reducing the corruption and proxy.it helps to ensure free and fair elections. **Hence, the petition was dismissed by the bench of 5 judges.** **CONCLUSION & COMMENTS** In Kuldeep Nayar Vs Union Of India Case, The appellant is Kuldeep Nayar, respected Journalist in India. He filed a legal petition under article 32 of the Indian constitution. This petition challenges the changes made to the representation of people act 1951, Which is amendment 40 of 2003, which became effective from August 28th 2003 This amendment had 2 major changes. First, it eliminated the necessity of the domicile in the state concerned for elections of the council of states. according to appellant it violates the principle of federalism. Second, the amendment altered section 59,94 and the section 128 of Indian constitution adopting a new method of conducting elections which is ‘open ballot system’ the petitioner argued that open ballet system infringes the principle of secrecy which is essential for fair elections. it violates the voters fundamental right i.e Freedom of expression under the article 19(1) (a) Of the Indian constitution. later the Supreme Court announces the judgment on the petition that removal of domicile requirement was not unconstitutional and it doesn’t violate article 84 of Indian constitution the court also found that the introduction of open ballot system in indirect Elections doesn’t violate any secrecy of voting as it doesn’t violate article 19(1) (a). **REFERENCES** 1. *The representation of people Act ,1951* 2. *The constitution of India* 3. *The representation of people (amendment) Act,40 of 2003* 4. *Kuldeep Nayar Vs Union of India AIR 2006 SC 3127* **Categories:** Case Analysis, Constitutional Law Cases --- ### [S.P. Mittal v Union of India, 1983](https://lawfoyer.in/s-p-mittal-v-union-of-india-1983/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Shreya Gupta** **Edited by: Sulesh Choudhary** **ABSTRACT** In the case of “S.P. Mittal Etc. Vs. Union of India and Others (1982)”, there is an excellent view of the Supreme Court in proofing the constitutional validity of the Auroville (Emergency Provisions) Act, 1980. The Court highlighted the said Act which was aimed to address serious mismanagement and financial irregularities in the Auroville township, a project initiated by the Aurobindo Society. In the Auroville Act of 1980, the petitioners were of the contention that the Act violated “***Articles 25, 26, 29, and 30 of the Constitution***” which were related to religious rights and denomination. The Court, however, held that neither the Society nor Auroville constituted a religious denomination since their activities did not embody a system of beliefs that could be categorized as religion. The Court ruled that Parliament had the legislative competence to enact the Act, which did not impinge upon rights under Articles 25 and 26, as the Act was focused on management rather than religious practice. It underscored that significant irregularities warranted governmental intervention to safeguard public funds and uphold the integrity of the project. The judgment reinforced the necessity of accountability in governance, particularly in ventures of international character involving public interest and substantial funding. Ultimately, the Court upheld the enactment of the Auroville Act, affirming the importance of responsive governance**.** ***Keywords* *:*** 1. Supreme Court 2. Auroville act[\[1\]](#_ftn1) 3. “*Articles 25, 26, 29, and 30 of the constitution of India*” 4. Governance 5. Integrity 6. Religious Denomination **CASE DETAILS** **i) Judgement Cause Title / Case Name** S.P. Mittal Etc. Etc vs Union Of India and Ors.[\[2\]](#_ftn2) **ii) Case Number** 1983 (1) SCC 51 **iii) Judgement Date** 08/11/1982 **iv) Court** Supreme Court of India **v) Quorum / Constitution of Bench** 5 **vi) Author / Name of Judges** “R.B. Misra, Y.V. Chandrachud, P.N. Bhagwati, O. Chinnappa Reddy. Balakrishna Eradi” **vii) Citation** *“1983 AIR(1),1983 SCR (1) 729, 1983 SCC(1)51,1982 SCALE (2)1001*” **viii) Legal Provisions Involved** “*Articles 14, 25, 26, 29 and 30 [**\[3\]**](#_ftn3)of The Indian Constitution*” **INTRODUCTION AND BACKGROUND OF JUDGEMENT** When we talk about the case basis, it revolves around the “*Auroville (Emergency Provisions) Act, of 1980*” purposely enacted in result to get responses for raising concerns regarding the management of the *Auroville* township which was founded on the teachings of Sri Aurobindo. After the death of the co-founder of the Aurobindo Society, in 1973, significant challenges arose, including allegations of financial mismanagement and internal conflicts within the Society. The Government of India, prompted by complaints and an audit revealing irregularities, initiated the takeover of Auroville’s management. The case is particularly concerned with the balance between legislative intervention and constitutional guarantees of religious freedom. **The Case profoundly depicted the Supreme Court’s examination of “*Articles 25, 26, 29, and 30*” highlighting the necessity of defining “religion” and “religious denomination” within the context of constitutional protections**. Furthermore, this helps us to understand how governmental actions can intersect with personal freedoms and the importance of accountability in managing organizations. The decision underscores the Judiciary’s role in mediating conflicts between individual rights and the broader interest of society, especially in dynamic and complex situations involving public projects. **FACTS OF THE CASE** **Procedural Background of the Case** 1. The case involves a series of legal steps leading to the challenge of the Auroville (Emergency Provisions) Act, 1980[\[4\]](#_ftn4). The Act was enacted by the Government of India as a response to widespread allegations of mismanagement and financial irregularities within the Aurobindo Society. 2. The petitioners, including S.P. Mittal, filed writ petitions challenging the constitutional validity of the Act on multiple grounds. They argued that the Parliament lacked the legislative competence to enact the impugned statute and that the Act violated “Articles 14, 25, 26, 29, and 30 of the Constitution.” 3. The Supreme Court, after thorough deliberation, dismissed the petitions, validating the Act and asserting that it was both constitutionally sound and necessary for the governance of Emergency Provisions. **Factual Background of the Case** 1. This case is rooted in the establishment and development of the Auroville township, which was envisioned by Sri Aurobindo[\[5\]](#_ftn5) and his disciples as a cultural and educational hub promoting human unity. There were also prominent financial contributions like UNESCO[\[6\]](#_ftn6), recognizing the potential of Auroville to foster global understanding and peace. 2. However, following the passing of the Mother in 1973, the Society faced internal discord, leading to mismanagement and allegations of financial impropriety. 3. Complaints regarding the diversion of funds and ineffective management prompted the Government of India to investigate. An audit committee found, spurring the government’s decision to take over Auroville’s management 4. The Auroville (Emergency Provisions) Act was subsequently enacted to formalize this takeover, for those who contended that the Act infringed upon their constitutional rights and sought to restore their control over the township’s administration. **LEGAL ISSUES RAISED** 1980. Whether the Parliament had the legislative authority to enact the Auroville (Emergency Provisions) Act, 1980. 1981. Whether the petitioners emphasized that the Auroville Act infringed upon “Articles 25 and 26 of the Constitution”, which guarantee the freedom to practice and propagate religion and the rights of religious denominations to manage their affairs - Whether the Auroville Act violated Article 14[\[7\]](#_ftn7) of the Constitution, which guarantees equality before the law and prohibits discrimination. **PETITIONER’S ARGUMENTS-** The counsels for Petitioner / Appellant submitted that – 1. The Petitioners contended that the subject matter of the “Auroville Act”, did not fall under any specific entries in the Seventh Schedule of the Constitution, and thus, the Parliament exceeded its jurisdiction. 2. They asserted that the Aurobindo Society constituted a religious denomination and that the Act unlawfully interfered with their rights to manage their religious affairs mentioned “u/a 29 & 30 of the Indian Constitution”[\[8\]](#_ftn8). 3. The petitioners argued that the Act infringed upon their rights under Articles 29 and 30, which protect the rights of minorities to conserve their culture, language, and script, and to establish and administer educational institutions of their choice. 4. The petitioners maintained that the Auroville Act violated “Article 14” of the Constitution, which guarantees equality before the law. 5. The petitioners claimed that the enactment of the Auroville Act was driven by malafide intentions and the political motivations. **RESPONDENT’S ARGUMENTS-** The counsels for Respondent submitted that- 1. The respondents argued that Parliament possessed the legislative Power or Jurisdiction to enact the Auroville Act under the residuary entry (Entry 97) of List I in the Seventh Schedule of the Constitution[\[9\]](#_ftn9). 2. The act was to protect the Public interest. They highlighted evidence from audits that revealed the diversion of funds and significant internal strife that had turned the management of Auroville into a distrust. 3. The respondents asserted that the Act was focused on administrative management rather than religious governance. Thus, there is no violation of “Articles 25 & 26 in this.” 4. : The respondents pointed out the uniqueness of the Auroville Act, including its international significance and the involvement of substantial public and foreign funding. 5. They asserted that the government had the full authority to determine the most effective means to address the issues at hand, and the Court should respect the legislative process and the decisions made by Parliament in matters of protecting public Interest. **RELATED LEGAL PROVISIONS[\[10\]](#_ftn10)** 1. **“*Article 21”: – “It protects*** *life and personal liberty so that, No person shall be deprived of his life or personal liberty except according to procedure established by law.”[**\[11\]**](#_ftn11)* 2. ***“Article* *14”: “****It guarantees equality before the law and equal protection of the laws to all individuals within the territory of India.”* 3. ***“Article 25”:*** *“It always ensures the freedom of conscience and also ensures the right to freely profess, practice, and propagate religion**.”*** 4. ***“Article 26”: “****It provides that every religious denomination has the right to manage its affairs in matters of religion, establish and maintain institutions for religious and also in providing charitable purposes, and acquire and own property.”* 5. ***“Article 29”: “****It protects the interests of minority people by allowing them to conserve their language, script, or culture**.”*** 6. ***“Article 30”: “****It guarantees us the right to minorities to establish and administer educational institutions of their choice.”* **JUDGEMENT [\[12\]](#_ftn12)** The judgment reinforced the principle that while fundamental rights regarding religion are protected, they may be subject to legislative regulation when necessary for the public interest and well-being. **RATIO DECIDENDI-** 1. The Supreme Court held that the Aurobindo Society and Auroville Act did not constitute a religious denomination, and thus the Auroville (Emergency Provisions) Act, 1980, did not infringe upon “Articles 25 and 26 of the Constitution. “ 2. The Court emphasized that the Act was a “legitimate legislative measure” to address the management crisis within Auroville due to the “identified financial irregularities and internal conflicts”. **GUIDELINES GIVEN BY THE COURT-** 1. The Court indicated that even in cases of organizations with philosophical or cultural underpinnings, the legislature has the power to intervene in matters of management when public interest is at stake. 2. It underscored that the management of properties by “religious denominational bodies” could be regulated by law in the interest of good Conscience. **OVERRULING JUDGMENTS –** - The judgment, in this case, did not directly overrule previous judgments but rather interpreted and, - The Court Clarified the application of Articles 25 and 26 with the definition of religious denominations, setting a precedent for future cases regarding the intersection of religion, philosophy, and administrative law. **OBITER DICTA –** - The Court made observations regarding the nature of religious denominations and the distinction between religion and philosophical teachings. - The Court suggested that teachings attributed to figures like Sri Aurobindo represent a philosophical viewpoint rather than an organized religion, - Thus, laying down a framework for future cases involving similar issues of religious classification. **CONCLUSION & COMMENTS** The Supreme Court’s judgment in **S.P. Mittal Etc. Vs. Union of India and Others[\[13\]](#_ftn13)** serves as a notable precedent in balancing the rights of individuals and religious denominations against the government’s responsibility to **ensure effective management and accountability in public protection.** The ruling delineates the boundaries of what constitutes a religious denomination under the Constitution, reinforcing that not every philosophical or cultural entity qualifies for the protections afforded to religious groups. This case underlines the judiciary’s role in ensuring that legislative actions align with constitutional principles, particularly in situations where public interest and significant funds are involved. The Court’s approach reflects a nuanced understanding of the complexities surrounding religious freedoms and the necessity for regulatory oversight in organizational management. 1. **Contextual Relevance**: The intersection of Contemporary Societies with Psychology and science. 1. **Implications for Administrative Law**: This Act plays a pivotal role in defining and safeguarding public interest in society. 2. **Future Considerations**: From this Judgment, the future courts can make a logical and clear decision keeping in mind the religious denominations. 3. **Critical Insights**: There is a question of fact that whether the court should balance or lean towards the government in safeguarding the public interest. Once the decision is made, the future decisions are made in the same way. **REFERENCES** **Important Cases Referred** 1. “The Kerala Education Bill \[1959\] SCR 995”[\[14\]](#_ftn14) 2. “Reverend Sidhaibhai Serbhai and Others v. State of Bombay and Another \[1963\] 3 SCR 837”.[\[15\]](#_ftn15) - “State of Kerala v. Mother Provincial \[1971\] 1 SCR 734”.[\[16\]](#_ftn16) 1. “Divyadassan Rajendra Ramdassji & Another v. State of Andhra Pradesh \[1970\] 1 SCR 103”[\[17\]](#_ftn17) **Important Statutes Referred** - “The Constitution of India”. - “The Societies Registration Act, 1860” - “The Tamil Nadu Societies Registration Act, 1975” - “The Auroville (Emergency Provisions) Act, 1980”. [\[1\]](#_ftnref1) “Organisational History and Involvement of Government of India” (*Auroville*) 27/7/24 [\[2\]](#_ftnref2) https://indiankanoon.org/doc/312939/ and Indian Kanoon, “Sp Mittal v Uoi 1983” and RB MISHRA, “IKANOON Sp Mittal v Uoi” (Cite Them Right online – OSCOLA, 2021) 27/7/24> accessed July 27, 2024 [\[3\]](#_ftnref3) Article 14, 25, 26, 29, 30, Constitution of India (1950) [\[4\]](#_ftnref4) “Organisational History and Involvement of Government of India” (*Auroville*) 27/07/24 [\[5\]](#_ftnref5) **Sri Aurobindo** was an Indian philosopher, yogi, maharishi, poet, and Indian nationalist. He was also a journalist, editing newspapers such as Bande Mataram [\[6\]](#_ftnref6) United Nations Educational, Scientific and Cultural Organization. [\[7\]](#_ftnref7) **Equality before law-**The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. [\[8\]](#_ftnref8) Protect cultural and educational rights, including the rights of religious and linguistic minorities [\[9\]](#_ftnref9) https://indiankanoon.org/doc/312939/ and Indian Kanoon, “Sp Mittal v Uoi 1983” (Cite Them Right online – OSCOLA, 2021) [\[10\]](#_ftnref10) https://indiankanoon.org/doc/312939/ and Indian Kanoon, “Sp Mittal v Uoi 1983” and RB MISHRA, “IKANOON Sp Mittal v Uoi” (Cite Them Right online – OSCOLA, 2021) 27/7/24> accessed July 27, 2024 [\[11\]](#_ftnref11) Article 21, Constitution of India (1950). [\[12\]](#_ftnref12) https://legalvidhiya.com/s-p-mittal-v-union-of-india-air-1983-scr-1-729-landmark-judgement-on-religious-domination/#:~:text=Mittal%20v.,Union%20of%20India%2C%20AIR%20(1983)%20SCR%20(1),Landmark%20Judgement%20on%20Religious%20Domination)&text=INTRODUCTION%3A,on%20religion%20of%20a%20person., legal vidhiya, and author of LegalVidhiya, “Sk Mittal v Uoi” (Cite Them Right online – OSCOLA, April 19, 2023 [\[13\]](#_ftnref13) https://indiankanoon.org/doc/312939/ and Indian Kanoon, “Sp Mittal v Uoi 1983” and RB MISHRA, “IKANOON Sp Mittal v Uoi” (Cite Them Right online – OSCOLA, 2021) 27/7/24> accessed July 27, 2024 [\[14\]](#_ftnref14) https://www.advocatekhoj.com/library/judgments/index.php?go=1958/march/4.php, “Kerala Education Bill 1959” (advocatekhoj ed, Cite Them Right online – OSCOLA) [\[15\]](#_ftnref15) https://indiankanoon.org/doc/751632/ and indiankanoon.com, “Reverend Serbhai v. State of Bombay and Ors” accessed July 22, 2024 . [\[16\]](#_ftnref16) https://indiankanoon.org/doc/686466/ and Indiankanoon.com, “State of Kerala v. Mother Provincial 1971” (Cite Them Right online – OSCOLA) [\[17\]](#_ftnref17) https://indiankanoon.org/doc/537047/ and indiankanoon.com, “Iv. “Divyadassan Rajendra Ramdassji & Another v. State of Andhra Pradesh” **Categories:** Case Analysis, Constitutional Law Cases --- ### [Bandhua Mukti v/s Union of India](https://lawfoyer.in/bandhua-mukti-v-s-union-of-india-2/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Ashmit Srivastava** **Edited by: Sulesh Choudhary** **ABSTRACT** The landmark case Badhua Mukti Morcha v/s. Union of India highlights the crucial and most depraving section of our nation that is the bounded – labour along with the exploitation and the inhumane treatment by the Quarry owners to their labours, collectively the Supreme Court, exercising its power under Article 32 of the Constitution, treated the petition as a writ and appointed a commission to investigate the allegations. The findings of the commission found that the claims of the petitioners, revealing a system of oppression where workers were trapped in a cycle of debt and exploitation. The Court’s judgment was a landmark in Indian legal history. It not only provided relief to the affected workers but also expanded the scope of public interest litigation, empowering NGOs to champion the cause of marginalized sections of society. The case emphasized the State’s responsibility to protect fundamental rights, particularly the right to life and liberty enshrined in Article 21 of the Constitution. By declaring bonded labour as a violation of human dignity, the Court reinforced the judiciary’s role as a guardian of constitutional values. The case’s legacy extends beyond the immediate relief provided to the quarry workers. It created a precedent for addressing systemic issues through judicial intervention and has inspired subsequent efforts to combat bonded labour and other forms of human exploitation in India. ***Keywords* *(Minimum 5)*: *Bonded labour, Fundamental Rights, Rehabilitation, State Responsibility, Labour Laws.*** 1. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Bandhua Mukti Morcha v/s. Union of India ***ii)* *Citation*** (1984) 3 SCC 161 ***iii)* *Judgement Date*** 16th December 1983. ***iv)* *Court*** Hon’ble Supreme Court of India. ***v)* *Quorum / Constitution of Bench*** 3 Bench of Judges. ***vi)* *Author / Name of Judges*** The Hon’ble *1) Justice P.N. Bhagwati* *2) Justice Ranganath Misra* 3\) *Justice D.A. Desai* ***vii)* *Legal Provisions Involved*** Article – 21, 23, 39(e) and 39(f) of The Constitution of India. The enactment of “*The Bonded Labour (Abolition) Act,1976.”.* **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The abhorrent practice, where individuals were subjected to forced labour as a means to repay a debt, often intergenerational, was a stark violation of fundamental human rights. The “*Bandhua Mukti Morcha v. Union of India”* case marked a watershed moment in the nation’s struggle against this insidious evil. [\[1\]](#_ftn1) In this case the Court talked about the significance of securing children’s Right to Education, wellbeing, and advancement in guaranteeing India’s advancement as a vote-based system. While perceiving that child labour couldn’t be cancelled promptly due to financial need the court observed that down-to-earth steps could be taken to ensure and advance the rights of children in the destitution strichen and weak populaces of the country. The Bandhua Mukti Morcha, a non-governmental organization, brought this issue to the forefront by writing to the Supreme Court. The Court, recognizing the gravity of the situation, took Suo- moto cognizance and appointed a commission to investigate the matter. The commission’s report painted a harrowing picture of the lives of these bonded labourers, providing the necessary impetus for the Court to intervene. The court additionally noticed India’s commitments under the Universal Declaration of Human Rights (UDHR) and Convention on the Rights of the child to give free essential education to all the children in the nation and secure the children against financial abuse. **FACTS OF THE CASE** **Procedural Background of the Case** 1. The Petitioner wrote a letter to Justice P.N. Bhagwati regarding the workplace and marking conditions of the workmen. 2. This letter was further taken as a writ Petition under “*Article-32 of the Constitution of India”* and a commission was made to enquire about the allegations put forth by the petitioner in the posted letter. 3. The commission proved that the allegations to be right and there was the infringement of the rights of the labourers. 4. They requested the Supreme Court to issue a writ for proper implementation of the various provisions of the Constitution and statues with a view to end the misery, suffering and helplessness of those labours and release them from the bonded labour. 5. The Hon’ble Supreme Court treated the said letter as a writ petition and on 26th February 1982 appointed a commission consisting of Mr. Ashok Srivastava & Mr. Askok Panda to enquire further. **Factual Background of the Case** 1. The petitioner Bandhua Mukti Morcha is a non-governmental organisation (NGO) which works for the welfare of the people. While they were conducting a survey and found some stone quarries in Faridabad, Haryana. 2. The workmen were found in exploitative, harsh & inhumane conditions including :- - Long working hours without adequate rest. - Minimal or low wages. - Lack of basic amenities to the labour like food, shelter, and healthcare. - Physical and mental abuse. 1. Quarry owners employed coercive tactics to maintain control over the labourers, including threats, violence, and withholding wages. 2. The prevalence of the of child labour was also found within these quarries. **LEGAL ISSUES RAISED** 1. WHETHER the PIL under Article 32 of the Indian Constitution was maintainable or not? 2. WHETHER fundamental rights of labourers are infringed in the current case? **PETITIONER’S ARGUMENTS** The counsels for Petitioner (Bandhua Mukti Morcha), representing the victims of bonded labour and presented the compelling the arguments to highlight the plight of these labours and to seek legal redress. - **Violation of Fundamental Rights:** - The petitioners argued that the bonded labour constituted a violation of the fundamental rights of citizen guaranteed under the Constitution of India, particularly: - ***Article 21:*** *Right to life and personal liberty.* - ***Article 23:*** *Prohibition of traffic in human beings and forced labour.* - They emphasized the inhuman conditions under which bonded labourers were forced to live and work, depriving them of their basic human dignity. - **Systemic Exploitation:** - The petitioners exposed the systemic nature of bonded labour, highlighting how it was perpetuated by a complex network of intermediaries, creditors, and landowners. - They argued that the government’s inaction in addressing this issue had allowed the practice to flourish. - **Debt Trap:** - The petitioners explained how bonded labourers were often lured into a cycle of debt through false promises of employment or loans. - They detailed the exorbitant interest rates charged and the coercive tactics used to keep labourers trapped in servitude. - **Lack of Enforcement:** - The petitioners criticized the government’s failure to effectively enforce anti-bonded labour laws. - They pointed out the lack of adequate rehabilitation programs for rescued bonded labourers and the absence of measures to prevent re-trafficking. - **Role of State Negligence:** - The petitioners argued that the state had a duty to protect its citizens from exploitation. - They accused the government of negligence in failing to address the root causes of bonded labour, such as poverty, illiteracy, and lack of access to credit. **RESPONDENT’S ARGUMENTS** The respondent, in this case, the Union of India, presented a defense against the allegations made by the petitioners, the Bandhua Mukti Morcha, here are some potential arguments: **KEY ARGUMENTS OF THE RESPONDENT** 1. **Lack of Sufficient substantiation** - The replier argued that the pleaders failed to give concrete and substantial substantiation to support their claims of wide clicked labour. - They also challenged the credibility and trustability of the substantiations and documents presented by the pleaders. 2. **Profitable Constraints** - They also contend that it faced resource limitations and popular constraints in effectively eradicating clicked labour. - Also, they argued that the problem was complex and needed a gradational approach, involving colourful stakeholders. 3. **State Intervention and Being Laws** - The replier stressed the colourful laws and regulations formerly in place to combat clicked labour, similar as the Bonded Labour System (Abolition) Act, 1976. - They refocused out to the government enterprise and programs aimed at delivering and rehabilitating clicked labourers. 4. **Part of Socio- Economic Factors** - They also argued that poverty, ignorance, and lack of mindfulness were underpinning causes of clicked labour, rather than state negligence. - They emphasized the need for a multi-faceted approach involving education, profitable development, and social reforms. **COUNTERACTING THE PETITIONER’S ARGUMENTS** - To fight the argument of violation of abecedarian rights, the government argued that it was taking way to apply these rights and that the pleaders’ claims were inflated. - To address the issue of systemic exploitation, the replier emphasized the complexity of the problem and the challenges involved in eradicating it fully. • Regarding the debt trap, the government refocused to sweats to regulate moneylenders and give indispensable sources of credit. - In response to the lack of enforcement allegations, the replier stressed the challenges faced in relating and delivering clicked labourers and the way taken to ameliorate enforcement mechanisms **RELATED LEGAL PROVISIONS** **ARTICLE 21:** – ***PROTECTION OF LIFE AND PERSONAL LIBERTY*** “*No person shall be deprived of his life or personal liberty except according to procedure established by law”.[**\[2\]**](#_ftn2)* **ARTICLE 23: – *PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR*** *“(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.* *(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.” [**\[3\]**](#_ftn3)* **ARTICLE 24: – *PROHIBITION OF EMPLOYMENT OF CHILDREN In Factories, Etc*** *“No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”[**\[4\]**](#_ftn4)* **ARTICLE 39: – *CERTAIN PRINCIPLES OF POLICY TO BE FOLLOWED BY THE STATE*** **(e)”** *that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”;[**\[5\]**](#_ftn5)* **ARTICLE 39 (f) “***That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”. [**\[6\]**](#_ftn6)* **ARTICLE 42: -PROVISION FOR JUST AND HUMANE CONDITIONS OF WORK AND MATERNITY** **“***The State shall make provision for securing just and humane conditions of work and for maternity relief.”[**\[7\]**](#_ftn7)* **JUDGEMENT** **RATIO DECIDENDI** - Bonded labour is a violation of abecedarian rights The court emphasized that forcing individualities into labour against their will through compulsion, intimidation, or debt thrall is a direct violation of Composition 23 of the Indian Constitution (Prohibition of business in mortal beings and forced labour). - State’s obligation to help and annihilate clicked labour The judgment underlined the state’s positive duty to take visionary measures to help and annihilate clicked labour, rather than simply replying to complaints. - Rehabilitation and reintegration of saved clicked labourers The judgment emphasized the significance of furnishing comprehensive recuperation and reintegration programs for individualities freed from clicked labour to help them from falling back into the same situation. **GUIDELINES** **The Bandhua Mukti Morcha case was instrumental in shaping India’s anti-bonded labour jurisprudence.** The Supreme Court issued a series of guidelines and directives to address the systemic issue of bonded labour. **IDENTIFICATION AND RESCUE OF BONDED LABOURERS** - Establishment of effective mechanisms for identifying bonded labourers. - Setting up special task forces or cells to rescue bonded labourers. - Protection of rescued bonded labourers from intimidation and harassment. **REHABILITATION AND REINTEGRATION** - Providing rehabilitation programs to help bonded labourers rebuild their lives. - Ensuring access to education, vocational training, and healthcare. - Facilitating the return of rescued bonded labourers to their native places. **PREVENTION OF BONDED LABOUR** - Strengthening enforcement of anti-bonded labour laws. - Raising awareness about bonded labour through public campaigns. - Empowering vulnerable communities to resist falling into bonded labour. **ROLE OF STATE GOVERNMENTS** - Imposing strict penalties on those involved in bonded labour. - Monitoring labour conditions in vulnerable sectors. - Collaborating with NGOs and civil society organizations. **OBITER DICTA** Broader societal issues the court made compliances about poverty, ignorance, or the part of profitable development in combating clicked labour, which, while applicable to the case, might not be essential to the core holding. - **Policy recommendations:** The court suggested that the policy changes or reforms are beyond the immediate compass of the case, similar as strengthening law enforcement agencies or furnishing vocational training for saved clicked labourers. - **Examens of government conduct:** While the court blamed specific government conduct, some of these examens might not be directly linked to the core legal issues and could be considered obiter dicta. **CONCLUSION & COMMENTS** ***Bandura Mukti Morcha v. Union of India*** is a seminal Supreme Court judgement ordering the freeing of bonded labour in India. The correct idea of the recognition that, founded on narrowing it down to be an open infringement out basic rights is a defining moment at holding their own pride and worth by those crushed area returnee-needed. A present-day comprehensive legal and policy framework directed at identification, release, rehabilitation as well as prevention of bonded labour would not have been possible but for the directions by the court. The verdict has reinforced the obligation of state and government to shield citizens from such exploitation. Although a milestone court ruling had been delivered, there were still struggles to be faced. While the guidelines in relation to are important, it is essential however that these findings implemented efficiently. Bonded Labour Is Deeply Entrenched. Given that labour practices are ever-changing, legal frameworks also need to be constantly updated and altered accordingly. New forms of exploitation, including debt bondage and human trafficking require a strong legal response. The Bandhula Mukti Morcha case is a telling example of how the judiciary stands as a vanguard to vindicate human rights and strive for social justice. Yet, the real value of such an exercise is to serve as a trigger that propels all sections – government; civil society and individuals into action towards eliminating bonded labour and creating a fairer order. **ENDNOTES:** [\[1\]](#_ftnref1) [ Debt bondage in India – Wikipedia ](https://en.wikipedia.org/wiki/Debt_bondage_in_India#:~:text=Bonded%20labour%20is%20a%20relic,and%20government%20ineffectiveness%20allow%20this) [\[2\]](#_ftnref2) Article 21 of The Constitution of India. [\[3\]](#_ftnref3) Article 23 of The Constitution of India. [\[4\]](#_ftnref4) Article 24 of The Constitution of India. [\[5\]](#_ftnref5) Article 39(e) of The Constitution of India. [\[6\]](#_ftnref6) Article 39 (f) of The Constitution of India [\[7\]](#_ftnref7) Article 42 of The Constitution of India. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Sodan Singh Vs. New Delhi Municipal Corporation](https://lawfoyer.in/sodan-singh-vs-new-delhi-municipal-corporation/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Ishan Mishra** **Edited by: Sulesh Choudhary** **ABSTRACT** In this case, a landmark case decided by the Supreme Court, the Supreme Court of India had addressed the rights of the street traders in New Delhi. The petitioners, comprising various street vendors & hawkers, had claimed their fundamental right to engage in the trading occupation on the public pavement and raised the arguments that their ability to earn a livelihood was being obstructed unjustly by the N.D.M.C. The court had to examine the provisions of Article 19(1)(g) & article 21 of the Constitution of India, which guarantee the right to carry out any trade, occupation, or business & the right to life & personal liberty, respectively. The petitioners were contending that their eviction from the zones designated areas for trading areas on the pavements were violative of their fundamental right, especially since they were allowed previously, to conduct their business upon the payment of the Tehbazari fees. The counter asserted by the N.D.M.C. was that no individual has this legal right to occupy any public space exclusively for any commercial purposes, further emphasizing that the streets are primarily for the use of the public. The court had to, ultimately acknowledge the street trading legitimacy but also underscored the necessity for some appropriate regulation to prevent any chaos, public order & preventing of Public Nuisance through such occupations. Also, these occupations were subject to some reasonable restrictions if they conflicted with the public order, health & public interest. ***Keywords* *(Minimum 5)*: *Section 268, public nuisance, Article 19, fundamental rights, right to livelihood, street vendors*** 1. **Fundamental rights:** The rights ensured in the constitution for the effective carrying of the trade, business, or occupation subject to the art by the citizen 19(1)(g). whereas Article 21 guarantees the right to life and personal liberty. 2. **Public street:** It is a street which has been laid down for every person to commute without any hindrance. 3. **Right to livelihood:** It is recognized by law in such a manner that both men and women have equal rights to livelihood and can access resources such as air, water, etc. 4. **Municipal Authorities:** These are self-government institutions responsible for the effective administration of cities & towns. 5. **Reasonable restrictions:** under article 19(2) of the constitution are imposed in case there is a threat to the sovereignty & or the integrity of India 6. **Public Nuisance:** Any act that is an illegal omission & which causes any common injury, danger, or annoyance to the public. 7. **Street trading/ hawking:** It is an act of selling the required goods and services to the public without any built-up structure that is permanent. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Sodan Singh Vs. New Delhi Municipal Corporation (1989) ***ii)* *Case Number*** SCC 155 ***iii)* *Judgement Date*** First judgement on 30/8/1989, Second Judgement on 13/3/1992 ***iv)* *Court*** Honourable Supreme Court of India ***v)* *Quorum / Constitution of Bench*** Connotation bench ***vi)* *Author / Name of Judges*** Justice S.B. Majmudar & Justice Jagganadha Rao ***vii)* *Citation*** AIR 1998 SUPREME COURT 1174, 1998 (2) SCC 743, AIR 2003 ANDHRA PRADESH 396, 1998 AIR SCW 991, (1998) 1 SCALE 463, 1998 ADSC 2 29, (1998) 1 JT 532 (SC), (1998) 1 SCR 629 (SC), (1998) 2 SUPREME 158, 1998 UJ(SC) 1 424, 1998 (1) SCR 629, 1998 (1) SCALE 449, 1998 (1) ADSC 719, 1998 (2) SCC 727, (1998) 71 DLT 705, (1998) 1 RECCIVR 634, (1998) 1 SCALE 449, (1998) 3 SCJ 277, (1998) 71 DLT 804, (1998) 2 SUPREME 111, 1992 SCC (SUPP) 2 121, (2003) 2 ANDHLD 206, AIRONLINE 1998 SC 349 ***viii)* *Legal Provisions Involved*** Provisions of Punjab Municipal Act 1911 Provisions of Delhi Police Act 1978 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** In India, individual people have been given the right to carry out any profession of their choice which has been explicitly stated & or provided under Article 19(1)(g) of the Constitution of India allowing them to practice any profession, or to carry on any occupation, trade or business. But simultaneously it also provides that if any vendor gets involved in an act like illegally obstructing the pavement meant for the public for his or her commercial ends. Such violations by those who are in any manner involved will be booked under Section 268 which amounts to PUBLIC NUISANCE defined under the INDIAN PENAL CODE, 1860 which describes it as one that causes injury, danger, or annoyance to the public or to those people who in general lives or occupies their property in the vicinity. In this very case of **SODAN SINGH Vs. N.D.M.C** dating back to 1989, what was ruled by the Supreme Court was that “the right to carry on any trade or business stated in Article 19 (1) g of the constitution, on the street pavements, if are properly regulated, cannot be denied on the ground that the streets are meant exclusively to pass or re-passing and of no other use.” This case primarily deals with the constitutional validity of the street vendors & the respective balance of their fundamental rights (street vendors) to effectively carry out their trade versus the need for regulation of the public spaces by those Municipal Authorities. **LEGAL ISSUES RAISED** 1. Whether or not the petitioners had the right to conduct such street trading as per the provisions of article 19(1)(g) of the Constitution of India. 2. Whether or not the petitioners possessed the right to occupy any specific areas on the public pavements for carrying their business permanently. 3. Whether or not the refusal to allow the petitioners to trade was violative of their right to life and personal liberty under Article 21 of the Constitution **PETITIONER / APPELLANT’S ARGUMENTS** 1. The counsel for the Petitioner argued that it was their fundamental right to engage in street trading under article 19(1)(g) of the constitution of India which guarantees everyone the right to practice any profession of their choice or to carry on any occupation, trade or any business. 2. The counsel for the Petitioner in continuation contended that they had been allowed to conduct their business in some specific areas by the municipal authorities but in exchange for the payment of Tehbazari fees. 3. The counsel for the Petitioner further submitted & claimed that the refusal to allow the hawkers to trade infringed upon their right to livelihood and personal liberty as per Article 21 of the Constitution of India. 4. The counsel for the Petitioner also argued that street vending was contributing to the economy and also was providing essential goods and services to the public which thus was serving a public interest. 5. The counsel for the Petitioner also argued & submitted that while the regulation of street trading was necessary, the outright prohibition was unjustified and would lead to social unrest and increased poverty among the vendors. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that nobody has the legal right to occupy exclusively any particular area on the road pavement for the pursuance of any trading business & nobody can claim any fundamental right in such cases whatsoever. 2. The counsel for the Respondent submitted that the municipal authorities did have or had the power to regulate the street trading & also impose restrictions to ensure that the public spaces are accessible & remain safe for every citizen. 3. The learned counsel for the respondent also emphasized that maintaining a clear & and unobstructed public path was essential for public safety & convenience. 4. The counsel for the Respondent also referred to previous rulings that supported the view that street vendors do not have a permanent right to occupy any public spaces. 5. The counsel for the Respondent also submitted & argued that street vending or hawking is a source of livelihood for many such people, so it should not come at the expense of any public order & or the rights of other citizens using public spaces freely. **RELATED LEGAL PROVISIONS** - **Article 21**[**\[1\]**](#_ftn1)**: – “***Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.*”[\[2\]](#_ftn2) - **Article 19(1)(g):** “All the citizens shall have the right to practice any profession or to carry on any occupation, trade, business. - **Indian Penal Code** - **Section 268:** “This section defines “Public Nuisance” which may be applied if street vending obstructs public pathways or creates a hazard for the pedestrian”. - **Section 144: “**This section allows the authorities to prohibit the assembly of four or more persons in any area, which could be invoked to manage street vending if it leads to public disorder”. **JUDGEMENT** The Hon’ble Supreme Court expressly recognized that the street vendors too have a fundamental right to carry out their trade as per article 19(1)(g) of the constitution of India. However, the court clarifies that such right does not extend to a permanent occupation of any specific place on the streets for the public. The court simultaneously also directed the N.D.M.C. to frame some schemes for the regulation of street vending, which was inclusive of the designated & non-designated zones for hawking, also establishing licensing procedures &ensuring adequate space for pedestrians. The judgment also underscored that the right to trade is subject to certain reasonable restrictions that the authorities can impose in the interest of public order, health & safety. In **Saghir Ahmed Vs. State of Uttar Pradesh** the Hon’ble Court had emphasized that preventive detention laws should adhere strictly to the provisions as laid down in the Constitution of India, particularly Article 21. In **Orga Tellis Vs. Bombay Municipal Corporation** the Hon’ble court reiterated that any kind of eviction or any removal of the encroachments must follow the due procedure established by law. The Supreme Court emphasized that the right to practice any trade, occupation, or business under Article 19(1)(g) agrees with Article 21 of the Constitution of India. **RATIO DECIDENDI** - The court established that street vendors have a fundamental right to engage in any trade as per Article 19(1)(g) of the constitution of India. - The court also acknowledged & clarified that there is no such absolute right to occupy a specific area on the public streets permanently. - The emphasis through the judgment was given on the need for regulation rather than outright prohibiting street vending. **GUIDELINES (IF ANY)** - To ensure that the vendors are operating legally & maintaining public order, the court ordered the N.D.M.C to frame comprehensive and structured schemes for the regulation of street vending. - The guidelines also called for the identification of specified hawking and non-hawking zones to manage where the street vendors are operating. - To ensure that the vendors are registered & authorized to trade in the areas designated to them, the court emphasized the need for a clear licensing procedure for the street vendors. - It was also suggested by the court there should be some regulation to define the types of goods that could be sold & the specific number of vendors allowed in specific areas to prevent overcrowding. **OBITER DICTA (IF ANY)** - The court had emphasized street vending as a means of livelihood for many of the individuals, which highlighted the socio-economic implications of regulating street vending. - The court also suggested that the regulations framed should be with a compassionate understanding of the circumstances of the street vendors. **CONCLUSION & COMMENTS** The Hon’ble Supreme Court through its judgment had this affirmation that it is the fundamental right of the vendors to engage in trade under Article 19(1)(g) of the constitution of India, also acknowledging their contribution towards the economy and society. It was also concluded by the court that while street vending is a legitimate activity, it also must be properly regulated to ensure that the public spaces aren’t inaccessible and are safe for all citizens. In my opinion, without going through all the possibilities about the place where the person carries out his/her business & also how the business is being carried out, the livelihood of the person cannot be snatched away from him/her in the name law unless & until it is a manner causing a problem for the common public & is also not being in conflicting in the eyes, as well as with the provisions of the law. Which as a result should be the top priority to ensure that no one is denied of their fundamental rights under articles 19 & 21 of the constitution of India. **REFERENCES** **Important Cases Referred** - Saghir Ahmed Vs. State of Uttar Pradesh - Olga Tellis Vs. Bombay Municipal Corporation **Important Statutes Referred** - The Constitution of India, 1950 - Indian Penal Code, 1860 - Punjab Municipal Act .1911 - Delhi police act, 1978 **ENDNOTES** - https://indiankanoon.org/doc/165273/ - https://indiankanoon.org/doc/1767433/ - - The constitution of India (1950), Article 19(1)(g) - The constitution of India (1950), Article 21 - The Indian Penal Code (1860), section 144 - The Indian Penal Code (1860), section 268 [\[1\]](#_ftnref1) Section 144; 268, Indian Penal Code, (1860) [\[2\]](#_ftnref2) Article 21, Constitution of India (1950). **Categories:** Case Analysis, Constitutional Law Cases --- ### [ROLE OF THE INTERNAL COMPLAINTS COMMITTEE UNDER POSH ACT: PROVISIONS, CASES AND PROCEDURE](https://lawfoyer.in/role-of-the-internal-complaints-committee-under-posh-act-provisions-cases-and-procedure/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** 1\. INTRODUCTION Over the past few years, there has been an extensive transformation in the role of women in India due to traditional responsibilities that placed all household chores and income generation on women’s shoulders until now. The person who believes that a woman is capable of protecting herself in any situation misses the worst fact that more than 50% of women still face Violence at the Workplace to date, which means they are denied their rights. To protect these women, the government intervened into many parts of this country where safe working conditions for females were created. This act became effective from 1997 when it was signed into law after others like guidelines on prevention against harassment on women by the Vishakha case had set the tone. This resulted into the Sexual Harassment of Women at Workplace (Prevention, Prohibition) Act, 2013 (POSH Act, 2013) which came into effect on December 9th, 2013 covers all employers and every workplace. It is binding legally and ensures protection to women. Their basic rights are violated by Articles 14 and 15 which guarantee equality and Article 21(3), which guarantees the right to dignity. This act was needed of an hour to eliminate the harassment faced by women at the workplace. Under Section 4 of this act, “the employer must form and internal complaint committee (ICC) at all work places with 10 or more employees and this is an obligation that must be fulfilled by any public and private organisations.” Keywords: Sexual Harassment again Women, Section 4 of POSH Act, Articles 14 and 21(3) of Constitution of India , Right to Equality, Vishakha case Guidelines. MEANING, DEFINITION AND EXPLANATION OF TERMS The term Sexual harassment includes “any one or more of the following unusual acts or behaviour (whether done directly or by implication) namely:— Physical contact and advances; or A demand or request for sexual favours; or Making sexually coloured remarks; or Showing pornography; or Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.” The following circumstances may also amount to sexual harassment:— “Implied or explicit promise of preferential treatment in her employment; or Implied or explicit threat of detrimental treatment in her employment; or Implied or explicit threat about her present or future employment status; or Humiliating treatment likely to affect her health or safety.” POSH Act was enacted which includes all public as well as private sectors to have ICC to protect the women in workplace against the sexual harassment, The objectives of POSH Act can be ensured: • By forming an internal complaint committee • By providing periodic POSH training on sexual harassment law as well as, • By developing an effective Complaint mechanism and redressal policy. The Internal Complaint Committee (ICC) is formed to make relevant implications of the policies which are related to the prevention of sexual harassment and to solve the complaints made by the aggrieved party as well as to provide redressal to the employee and recommend actions to be taken by the employer to ensure the safety of the employee. The Internal Complaint Committee consists of 4 members consisting of at least two women members and one member working in any association or organization that works in women-specific area. ROLE AND DUTIES OF ICC under the POSH Act The ICC plays a vital role in the effective implementation of the provisions at the workplace. Role of the Internal Complaint Committee are:- • Receive the Complaints: This committee receives complaints and ensures the aggrieved party against sexual harassment. It ensures that this process is confidential and easily accessible by encouraging the women to make complaints without hesitation. • Initiating Enquiry: After receiving the complaint, the role of ICC is to conduct enquiry and proper investigation. This investigation includes collecting evidence, interviewing the complainant and accused, collecting witnesses and submitting all the findings for further recommendations. • Recommendations: The ICC prepare a report addressing all its findings and recommendations regarding the matter and direct the employer to take necessary required actions once the investigation is done and recommend disciplinary majors against accused. • Promoting awareness regarding ICC: The important role of ICC is promoting awareness regarding the rights of the workers and the procedure to file a complaint regarding any issue related to sexual harassment at the workplace. This can be done by way of having workshops, posters, documents, notices etc. • Annual Report: The annual report is provided to the management by the ICC who summarises the complaints made by the victim and takes investigation of the case. They present the company’s recommendations for improving the workplace culture to work in the workplace. The roles of the Internal Complaint Committee are:- • Receive the Complaints: This committee receives complaints and ensures the aggrieved party against sexual harassment. It ensures that this process is confidential and easily accessible by encouraging the women to make complaints without hesitation. • Initiating Enquiry: After receiving the complaint, the role of ICC is to conduct enquiry and proper investigation. This investigation includes collecting evidence, interviewing the complainant and accused, collecting witnesses and submitting all the findings for further recommendations. • Recommendations: The ICC prepare a report addressing all its findings and recommendations regarding the matter and directs the employer to take necessary required actions once the investigation is done and recommend disciplinary majors against the accused. • Promoting awareness regarding ICC: The important role of ICC is promoting awareness regarding the rights of the workers and the procedure to file a complaint regarding any issue related to sexual harassment at the workplace. This can be done by way of having workshops, posters, documents, notices etc. • Annual Report: The annual report is provided to the management by the ICC who summarises the complaints made by the victim and takes investigation of the case. They present the company’s recommendations for improving the workplace culture to work at their workplace. PROCEDURE FOR FILING A COMPLAINT The procedures which are followed by the ICC are designed to ensure a fair and transparent process: 1\. Filing a Complaint: According to the POSH Act, the complaint should ideally be required to be filed within 90 days from the day of the incident. The basic right of the employee is to complain to the ICC of the workplace against any kind of harassment faced by them inside the work premises and provide the details about the nature of harassment as well as any required evidence to prove their innocence and to support their complaint. 2\. Acknowledgment of the Complaint: – After receiving such a complaint by the worker, the ICC acknowledges it by writing it to the complainant. The ICC needs to forward a copy of the complaint to the respondent within 7 working days of receiving it. The respondent must provide a response to the complaint. 3\. Preliminary Assessment Can the ICC do a preliminary assessment in order to establish whether the complaint falls within the purview of the POSH Act or not? If it does not, then she is informed and could be guided on other options of seeking redress. 4\. Conducting the Inquiry It entails: Collecting evidence: Information obtained that is relevant and related to this complaint such as documents, emails, messages, etc. Interviewing parties: The complainant, respondent and any witnesses are interviewed by the committee to obtain comprehensive evidence. The enquiry has to be completed between 90 days from the date on which the complaint was made by the worker. 5\. Final Report After the conclusion of the inquiry, an ICC report is written which includes findings and recommendations that should be clear, objective and based on evidence gathered within 10 days from its completion date as contemplated under Section 17(7) of ICC guidelines and accessible to both parties. 6\. Action on Recommendations When a complaint is found valid by the ICC, it makes suitable disciplinary recommendations. ICC recommends punitive measures like warnings, suspension or dismissal depending on how severe it is. 7\. Follow-Up: – The ICC can conduct follow-up meetings with the complainant and the employer to ensure that there are no further issues and that the workplace remains free from sexual harassment. The Principal shall act upon the recommendation within 60 days of receiving it. On the recommendation of ICC during the procedure of inquiry, the employer may provide interim relief to the victim woman as per request and can transfer the woman to any other workplace or grant her leave for not more than 3 months. RELEVANT CASES 1.) Vishaka and Others v. State of Rajasthan (1997): This case was the landmark judgement which led to the formation of the POSH Act Background: This case arose from a brutal gang rape of a social worker named Bhanwari Devi in a village in Rajasthan. In order to stop child marriage as a part of her duty as a worker under the Women Development Programme was targeted for rape. Issues: 1\. Whether there is an adequate legislative framework to address the issue regarding the sexual harassment of the women in the workplace? 2\. Whether Articles 14, 19 and 21 of The Constitution of India are understood in the manner for effective enforcement of gender equality and protection of women’s rights against sexual harassment? Judgment: Supreme Court has laid down comprehensive guidelines addressing this issue which is also known as Vishakha guidelines until the proper legislation came into force after recognizing the gap between existing laws and changes required with respect to workplace sexual harassment. These guidelines included: VISHAKHA GUIDELINES 1\. Sexual Harassment Defined: It refers to “any physical contact or advances which is unwelcomed sexually determined behaviour (whether directly or by implication), a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.” 2\. Preventive Steps: All employers or persons in charge must take appropriate steps to ensure that the workplace is free from sexual harassment such as expressing prohibitions through relevant means, creating a safe environment for employees and sensitizing female workers about their entitlements. 3\. Establishment of an internal complaints committee at all the workplaces for protection of women and this committee should be headed by a woman and not less than half of its members should be women. Additionally, it should involve a third party, either an NGO or another body familiar with the issue of sexual harassment, to prevent undue pressure on the complainant. 4\. Disciplinary Actions: In case of any conduct which amounts to misconduct in employment, the employer should take appropriate disciplinary action according to the service rules. During the process of enquiry, the witness or complainer should not face any victimisation or discrimination by any of the members. 5\. Complaints Mechanism: All women who earn regular salaries come under the purview of these guidelines and four all workplaces must provide an appropriate complaint mechanism having a complaints committee and other support services to the women workers. The confidentiality of particular concerns must be maintained and the procedure of complaints must be time-bound. Impact: These guidelines are considered as interim measures until the enactment of the POSH Act in 2013, as it provided a complete legislative framework addressing the protection against sexual harassment in the workplace. 1.) Usha Padmini v State of Karnataka and Others Usha Padmini v. State of Karnataka and Others is a significant case in India regarding the issue of sexism in the workplace. Usha Padmini, a woman employee of the Karnataka State Road Transport Corporation, complained about harassment against the officer, but the complaint was initially cleared by the ICC and had nothing to do with sexual harassment. She was forced to quit her job. After being released by the ICC, Padmini filed a petition in the Karnataka High Court, filing a lawsuit against the ICC and the employer on the grounds that women were not provided with safety and security at the workplace. In the present case, the Supreme Court, after hearing both parties, said that the Internal Complaints Committee did not follow the procedure laid down in the Vishaka guidelines and other employers did not take necessary steps to prevent bullying and provide a safe environment for employees. It provides guidelines for employers to follow while handling complaints of harassment, such as creating internal teams to address these issues and providing counselling services to victims. 2.) K. Hema Latha v. State of Tamil Nadu and Others (2018 LLR 447) According to this case, the ICC of a school are only the members of the governing body of the school. The Madras High Court here refused to accept the notice of the ICC on the grounds that the ICC had not complied with the POSH Act. He therefore asked the union to constitute an ICC in accordance with the provisions of the POSH Act at the appointed time, address the complaint and send a report to the employer after hearing the views of all participants. The person or persons involved in the establishment of the International Criminal Court will be investigated by the Commission. CONCLUSION AND COMMENTS The Government authorities have consistently addressed the issue regarding sexual harassment in the workplace. After the formation of Vishakha guidelines, this POSH Act was enacted and the Internal Complaint Committee was established under this act and was made compulsory in all workplaces. The role and functions of this committee ensure to provide grievances to the women workers and address all serious issues related to Sexual Harassment in the workplace comfortably. It provides assistance to the aggrieved person to fight for their fundamental Rights and a limited time period is stipulated to carry out the inquiry procedure and resolve the issue so that it can’t last longer and doesn’t compromise the rights of the victim. According to me, the objectives of this committee are to ensure the prevention, prohibition and redressal of the issue of sexual harassment by protecting the rights of women to work with dignity in a comfortable environment. REFERENCES Books/Acts 1\. The Constitution of India 2\. The Prevention of Sexual Harassment (POSH) Act,2013 Online Articles/ Sources Referred 1\. Indian kanoon 2\. https://muds.co.in/internal-complaints-committee-members-training-certification/#:~:text=As%20per%20the%20POSH%20Act,administer%20complaints%20on%20sexual%20harassment 3\. https://blog.ipleaders.in/all-about-the-internal-complaints-committee-icc/ Statutes Referred 1\. Article 14 of the Constitution of India, 1950 2\. Article 21(3) of the Constitution of India, 1950 3\. Section 4 of the POSH Act, 2013 **Categories:** Articles, Criminal Law --- ### [Possession and Ownership: A Jurisprudential Analysis](https://lawfoyer.in/possession-and-ownership-a-jurisprudential-analysis/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** Introduction Possession and ownership are some of the vital concepts in the field of Jurisprudence as they are the basis of property law and impact different legal, societal, and economic systems. It is necessary to consider these concepts to realize how roles and responsibilities for fulfilling rights are divided between people in a society. This article will attempt to offer a jurisprudential perspective of what possession and ownership are, how they have evolved, what necessarily constitutes them, and the law regarding the two concepts. Further, it will look at defenses to the claim of possession and ownership and look at cases and precedents that exist to support the concepts, also explore several jurisprudential stances on possession, and ownership. Keywords: ownership, possession, property law , legal theory, Salmond’s theory. 1\. Meaning & Definition Possession: In it, possession means the control or occupancy of an item, whether real or personal. It means a tangible assertiveness or authority over an object or property in each society. Possession can be actual; this means that a person has the physical legal right to control the property and or has physical control of the property or constructive where a person does not have the physical control of the property but has the right to do so. Possession is always important when it comes to ownership, possession may be legally protected even though it is not the owner. Ownership: Ownership is a much more liberal concept that covers all the rights that one might have to a thing or an object. It embraces the right to possess, occupy, abuse and thereby deny access to the property by other persons. Possession on the other hand refers to ownership; the legal right over the property, that can be backed up by the court of law. It is a total right which is wider than the possession right and may be exercised without taking physical control of the asset. In law, possession and ownership may sometimes refer to different things or be used in a synonymous manner. Possession is concerned with the physical status of the property, that is the power a person has over the property while ownership examines the legal aspect of the power a person has over the property. For instance, the occupancy of an apartment is a tenant who formally has the property and has some privileges to use it though the landlord is the overall legal owner of the apartment. Knowledge of such distinctions enables the evaluation of property controversy, the assertion of legal obligations and rights, as well as the assertion of legal remedies. This section does a preliminary work of setting the stage for the historical, legal and theoretical analysis of possession and ownership to be done in the rest of this article. 2\. Historical Background The course of possession and ownership is the ever-evolving concept with the impact of different legal systems and social development. Knowledge of their development offers useful information for today’s analysis and use of the concepts. Ancient Times: During the period of Ancient Mesopotamia, Egypt and Greece, acquisition and ownership of property came with statuses and authority. The rights of property were only for the governing classes; lords and land were the key measure of a man’s riches. In the Code of Hammurabi, which was one of the first legal codes, there existed provisions and guidelines on property and its ownership because concepts of property possessed a specific role in stabilizing society. Roman Law: The Romans had a great influence towards the development of property law. They thus defined the difference between dominium which stands for ownership and possession which equally stands for possession. From the staples of Roman laws, it was recognized that ownership was an absolute right, possession on the other hand could be temporary and could change. The Corpus Juris Civilis which was gathered under Justinian became the legal code for later legal systems in Europe. Medieval Period: Before the period of renaissance, Europe was mainly under the feudal system. This was feudalism because lords had superior authority in owning land as the king was at the top level of authority giving land to nobles in return for services. This regime generated a highly intricate structure of possessory and ownership rights so while tenants enjoyed the right of possession of land, ownership remained in the custody of the sovereign. Common Law and Equity: From the development of common law in England the institutions of possession and ownership open new perspectives. Common law courts paid attention to legal title while courts of equity looked at the holder’s equity or the fairness of the case. Long story short, finer differentiation between Real outright ownership and legal ownership and equitable ownership came into picture which led to more flexibility in the legal rights and remedies attached to ownership. Modern Era: As a result of the Industrial Revolution and emergence of capitalism, there were radical changes in property law. Possession of movable assets, for instance machinery and other products became more valuable. New legal forms were adopted for such kinds of property to be recognized and protected. The contemporary world has also witnessed a combination of the civil law and common law legal systems mainly through the intervention of international conventions and treaties governing the property rights regimes in the countries. 3\. Essentials Laying down of possession and ownership requires one to fulfil some legal standards. These elements vary depending on the jurisdiction and the type of property involved but generally include the following: These elements vary depending on the jurisdiction and the type of property involved but generally include the following: • For Possession: 1\. Physical Control: Adverse possession relates to holding the property through physical control over it. Constructive possession may be real if one has the legal right to be in possession of the property though he may not physically exercise the possession. 2\. Intent to Possess: The possessor must possess the property and have the intention of having possession of the property. This intention makes possession a different concept from custody, which refers to holding the property for someone, albeit temporarily. 3\. Continuity: There is a legal necessity by which possession must be established for a certain time period. The interrupted or sporadic possession has the possibility not to meet legal requisites. 4\. Exclusivity: Beneficial use must also be outcomes, it must be an ultimate one, that is, it is the final and complete attainment of the property as regards the owner and others.  Theories of possession 1\. Pollock’s Theory According to Pollock possession is defined as having custody or physical control of a thing. He points out that possession is deemed to be the seeming capacity to make other people stay away from the use of the object. Finally, according to possession, one has control over an object and the right to prevent other people from using the object. 2\. Salmond’s Theory Possession is defined by Salmond as the continuation of a claim of ownership to an object and the right to use it without anyone else’s interference. For Salmond, possession involves two elements: For Salmond, possession involves two elements: – Animus Posidendi (Mental Element) : Also, the purpose of having the object to be the only one to have it. – Corpus (Physical Element) : Control over the choice of object in physical terms. However, Salmond stresses that possession in law and possession in fact are inseparable and that possession should be defined only with the help of the criteria of common sense. 3\. Karl von Savigny’s Theory Savigny identifies two elements of possession: Corpus: Also, general physical capacity to act about the object and to control access to it. Animus Domini: Moreover, possession entails the intention to hold the object as one’s own. He advocates that possession relates to the physical ability to control and deny access to the object to other people. • For Ownership: 1\. Legal Title: It can therefore be described as the legal title of a property or deed. This title vests in the holder the highest of management and disposition of the property in controversy. 2\. Right to Use and Enjoy: Is the liberty interest of an owner to control the property or the way he desires to use the property without turning to the law or regulation that guides the usage of the property. 3\. Right to Transfer: Ownership also enables the person to convey the property to other people through selling it, giving it to other people or even passing it on to a successor. 4\. Right to Exclude: The owners have the right to exclude people or persons from or the right to be involved with their property.  Theories of ownership: – 1\. Austin’s Theory Jurist: John Austin Ownership is a right over a determinate thing which is indeterminable with respect to the person of the user, adjustable with respect to disposal and boundless as regards time. Owner to occupy or to let the property or misuse the property; but there is some legal regulation with regards to this. They are allowed to pass title to property to others or to sell or encumber the property as they choose. Ownership is enduring and runs in Pari Materia with the owner’s life, which means that it does not come to an end upon the owner’s death. Criticism: Ownership is a bundle of rights and even when some of these rights are transferred the residual rights are those of ownership. It is not just a right as it is a thing that develops a relation between the right and the person to whom the right belongs. Thus, legal and practical concerns can limit the ‘indefinite’ user and its corresponding ‘unrestricted’ nature. 2\. Salmond’s Theory Jurist: John Salmond Ownership is a complex title that a person has in an object, meaning that it is a set of several enforceable rights which this person has over it anybody. These are the right of ownership, the right to enjoy the item or asset as one wishes, and the right to change or sell it. Ownership remains perpetual and is always characterized by residual interest, the extent that even if some rights are given out on lease, such as with bare ownership, the owner retains some residual rights. Criticism: It is according to Duguit that ownership relates to the thing itself and not a right. Salmond however has categorized rights into tangible rights and intangible rights (for example: copyrights, and rights of way). 3\. Marxist Theory Origin: Karl Marx Aims at the historical perspective and possible changes to it as well as its effects on society. Capitalist ownership was born when people made money with tools and materials, and thus it entailed social differentiation. It refers to where the state controls the means of production and where important resources and businesses belong to everyone. On the other hand, private ownership is the right to ownership of consumer goods that are vested in individuals, hence personal possession and utilization of commodities. This contrast is pointed out in a transition from owning objects for oneself to capital-owned objects where the primary purpose is to control assets for general social and economic purposes. Impact: Ignores the problem of industrialists and workers’ conflict. Some of the solutions thought to be possessing the potential to reverse the effects of capitalist exploitation include the Nationalization of industries. 4\. Future Implications The issues of possession and ownership remain relative to society’s changes, as well as developments in technology. Cyber property in the form of intellectual property and virtual assets are other issues and prospects in the modern legal environment. It remains to notice that comprehending the traditional concepts of possession/ownership will be important regarding these trends. 5\. CONCLUSION & COMMENTS Control and title are fundamental ideas in property law that define roles and entitlements of people regarding properties. This paper aims to discuss their importance in jurisprudence as backed by their historical background, legal classifications, as well as practical applications. With the changes that are ever constant to the different forms of property and the societal requirements, possession and ownership will always be crucial in shaping laws that govern the ownership of property. 6\. REFERENCES • Books / Commentaries / Journals Referred 1\. Honoré, A. M. (1961). “Ownership”. In A. G. Guest (Ed.), \*Oxford Essays in Jurisprudence\*. 2\. Blackstone, W. (1766). \*Commentaries on the Laws of England\*. 3\. Locke, J. (1690). \*Two Treatises of Government\*. • Online Articles / Sources Referred 1\. Cornell Law School. (n.d.). “Possession”. Legal Information Institute. \[Link\](https://www.law.cornell.edu/) 2\. FindLaw. (n.d.). “Property and Ownership”. \[Link\](https://www.findlaw.com/) • Cases Referred 1\. Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805). 2\. Tulk v. Moxhay, 41 Eng. Rep. 1143 (1848). • Statutes Referred 1\. Transfer of Property Act, 1882 (India). 2\. Adverse Possession Act (various jurisdictions). **Categories:** Articles, Jurisprudence --- ### [REMEDIES AGAINST FOOD ADULTERATION: PROVISIONS, CASES, PROCEDURE AND PRINCIPLES](https://lawfoyer.in/remedies-against-food-adulteration-provisions-cases-procedure-and-principles/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** ***Author: Ritika Ahari*** ***Edited By: Aneel Meghani*** **INTRODUCTION-** Food is the basic and primary need of the person. Food adulteration is a major problem in society that may exist due to high demand and moderate supply, the high demand for food products is increasing due to inflation in population. In a Country like India, where awareness of technology is not common and agricultural methods are not so advanced and also weather-related issues may be responsible for the increasing problem of adulterated food. Various laws and institutions have been established to prohibit adulterated food. Penal provisions were also introduced by the authorities and institutions to inspect food products and manufactured food items. Food Safety and Standards Authority of India issues licenses to start any food manufacturing or related issues and also inspects the safety standards fixed by the said authority. Food adulteration is the process through which any other thing is used in food products to increase the quantity. Food colours, Chemicals, etc may be used to mix with natural food products to resemble them and to increase the quantity. Mostly the cases of Adulterated milk, rice made of plastic, pebbles mixed with food grains, rice and lentils, and papaya seeds are mixed with spices, and recently various spices companies were found guilty by the court of mixing chemicals in the spices, which causes cancer. Misrepresentation of Fudge people by representing the food products as natural by using taglines like ayurvedic, natural, homemade, and homeopathic, etc. Also, green colour is used in the packaging of food products to give people confidence about its naturality. Companies that claim that their products are full of protein and beneficial for children are found guilty of misleading information by the Court. The main aim behind adulteration is to reduce raw materials and to reduce manufacturing costs. Such adulterated food may cause various health injuries like diabetes, high Blood pressure, cardiovascular disease, Obesity, etc. “Good food should be a right, not a privilege.” The right to food and the right to healthier food is the fundamental right of a person. Good food is the key to a better tomorrow for this purpose Government of India introduced mid- mid-terms day- mil scheme in government schools for the better growth of the children and to reduce the cases of vitamin malnutrition. ***Keywords*** ***(Minimum 5)*:** Food adulteration, Contaminants, economically motivated adulteration (EMA), Artificial additives, Food safety, Adulterants. **Meaning, Definition & Explanation – Food adulteration** – Mixing of colorants, chemicals, etc. to enhance the quantity of the food products. The term’ Food’ refers to all the products that can be consumed orally, may considered food, and any kind of Contamination or addition of any other adulterant referred to as adulterated food products. The act of food adulteration is a legal offense and the person may be found guilty if the food products do not meet the standards set by the government or by any authority authorized by the government. **Adulterants** – the substances that are additionally used in the food products to enhance the quantity of food products but which lower the natural quality of the food products. **Food Substitution** – refers to the direct alteration of food material any part of it or alteration made as a whole. In which any inferior or fake food products are used as natural products. This method is specially used to substitute dairy and meat products. Also, fruit Juices are substituted by cheaper colouring agents, sugar, and flavour and by using preservatives, and resemble fresh fruit Juice.1 **When Food is Adulterated –** According to the **Prevention of Food Adulteration Act, 1954** Food is considered adulterated if it does not fulfil the demand of the purchaser, in which form the purchaser demands the food product, if the purchaser substitutes food product with external addition of any substance which is harmful to a human body, it may do not have an immediate effect but have harmful effect after consumption for a long time, if food product prepared in an unhygienic manner, if any contaminated or expired substance used in packaging or production of food product, if preservatives added in a food product are beyond the limit prescribed by the FSSAI or stored in poisonous and unhealthy conditions. **“Authority to regulate Food standards in India and Penalties related to adulterated food- Food Safety and Security Authority of India (FSSAI)** under the **Food Safety and Security Act, 2006 is** a regulating authority for the manufacturing, packing, storage, distribution, import, and sale to ensure the good quality of food. This Act was enforced to set up a single food quality platform for various food products.”2 **Detect Adulteration with a Rapid Test (DART)** examination can be done to check the adulterated food, which was introduced by FSSAI. A tier Complaint redressal system is also introduced to deal with cases of food adulteration under which the first complaint should be made to the manufacturer, secondly, a complaint made to the Local Health Authority of the District or Commissioner of Food Safety of the State, and finally if complaint not redressed by the prior authorities, then the final complaint shall be done to Consumer Forum. **The Advertising Standards Council of India** is an online portal to file a complaint related to food adulteration. Penal provisions are also available to punish the manufacturer or vendor who manufactures, stores, or sells any kind of Adulterated food products, “he will be liable under **section 16** of the **Prevention of Food Adulteration (PFA)** **Act, 1954** and will also be punished with imprisonment of 6 months and with a fine of rupees 1000 under **section 272 of IPC** for selling of adulterated food or drink which are hazardous for health consumption. The punishment could also extend depending on the grievousness of the act done by the manufacturer or vendor.”3 **Causes / Effect on Health –** Adulterated food may have a normal to severe impact on a person’s health, it may irritate the stomach, symptom and food poisoning like vomiting, burns, etc. Fatty food substances may cause Obesity, weakness, high blood pressure and also cardiovascular diseases, Gastrointestinal disturbances, Liver disorders, Toxicity in the body, etc. For example – In Turmeric Powder, various Pesticide residues, sawdust, chalk dust, industrial dyes, metal yellow dye arsenic, lead metal, etc. used in manufacturing and in packaging which may cause Cancer and Stomach disorders. **Types / Kinds of Food Adulteration & Causes –** 1. **Intentional Adulteration: –** In this type, a vendor may mix other substances with foodstuff to the actual weight of the foodstuff and gain profits. For instance, Papaya seeds are mixed with es, which look like black pepper 2. **Incidental Adulteration: –** In incidental Adulteration, poisonous substances or other substances are mixed with the foodstuff negligently without packing or suffering. Various pesticides are used in room products and are stored in huge amounts, negligently pesticides may be mixed with the food products which are not properly packed. 3. **Metallic Adulteration –** Metallic substances may be mixed with foodstuff, either it can be intentionally or incidentally. 4. **Packaging Hazardous –** Poisonous substances that may come into contact with food products, at the time of packaging and preserving. The main cause behind food adulteration is Profit Maximization, Seller may will to get more profit through adulteration and substitution in food products. Water is mixed with the milk to increase the quantity of milk and to gain more profit is the best example of food Maximisation. Sometimes production of foodstuffs like crops etc. may affected due to weather conditions or any other natural calamities, which may lead to the Shortage and Demand-Supply Gap which is also a reason behind food adulteration to fulfil the demands of people. In the present time advancement of technology is also a reason that uplifts the cases of food adulteration. By using technology, a person cannot identify adulterated food. The globalization of the food industry is also a major cause, through which the origin of food products difficult to identify. **Legal Provisions / Procedure – The Prevention of Food Adulteration Act, 1954,** describes the provisions and Penalties related to adulterated food. This act also authorizes the Central Government to form the **Central Committee for Food Standards** and to construct central food laboratories for analysing and testing all kinds of articles, to organize various training programs to spread awareness towards the consumers, and to keep check and monitoring the food products which are imported in India. The central Government can also appoint a **food inspector** to collect samples and to monitor the adulterated food products he is also authorized to stop the adulterated food products from circulating in the market. Adulteration of food products is a subject of the Concurrent list. In 2006, The Prevention of Food Adulteration Act, 1954 was replaced by the **Food Safety and Standard Act, 2006,** it empowers the Central Government to make rules under this Act for licensing, registration of Food businesses, packaging and labelling, laboratory and sampling of Adulterated food products, and standards for the food additives addicted in production. “*Section 18 of the FSSA provides for the general principles which are to be followed by the various authorities while implementing the provisions of the Act such as endeavour to achieve an appropriate level of protection of human life and health and the protection of consumers’ interests \[4\], carrying out risk management, etc.* *Further, there are general provisions related to food products contained in Chapter IV of the Act. These include the regulation of the use of additives or processing aids in the food or the presence of contaminants, insecticides or pesticide residues, veterinary drugs residues, etc. in the food products. There are special provisions dealing with packaging and labelling of foods. Moreover, the Act also regulates the food products which can be imported. Unfair trade practices and misleading advertisements are prohibited under the Act.”* **Guidelines / Rules / Regulations –** According to Food Safety and Standard (Packaging and Labelling), Regulations, 2011, the general requirement of pre-packaged food is every information related to the product must published on the wrapper of the product such as ingredients, nutritional value, manufacturing date and expiry date etc. **Case Laws –** In the case of **Godawat Pan Masala Products I.P. Ltd. & … vs Union Of India & Ors on 2 August 2004,** The appellant was engaged in the manufacturing industry of gutka and pan Masala in different states, the State Food (Health) Authority sent a notice to appellant stating that pan masala and gutkha both are banned, the issue raised that whether the notification issued by the state authority is valid because the Prevention of Food Adulteration Act vested the power to declare a substance as injurious to health only with the Central Government and no such power was vested with the State Government. The Court quashed the notification given by the State Food (Health) Authority by stating that only the Central Government has the power to ban such articles by legislation as they are violating of rights given in articles 14 and 19 of the appellant. **Maggie 2 minutes noodles Ban Case –** in 2015 Maggi 2 minutes noodles sold with sweet sour taste-maker. A Food inspector took a sample for inspection, and in his report, he opined that carmoisine and sunset yellow acid coal tar dye instead of caramel as described on the label and were therefore both adulterated as well as misbranded. Also, the number of excess lead samples found in the Maggie also monosodium glutamate (MSG) over permissible limits in Nestle’s Maggi noodles, the Maggie was banned all over India as it’s against the FSSAI rules, after its ban Nestle Maggie noodles seek to the court and ask the court to remove ban as their product is now according to the standards set by the FSSAI rules. **MDH and Everest masale conspiracy –** Recently Hong Kong and Singapore banned Indian spices brands named MDH and Everest, as research conducted by the Countries found ethylene oxide which is a pesticide and not consumable and if consumed may cause Cancer. **Patanjali Ayurved products’ ban: –** 14 ayurvedic products of Patanjali were banned on the instructions of the Supreme Court on the violations of the drug advertisements law. Patanjali’s advertisements violated “the Drugs & Other Magical Remedies Act, 1954 (DOMA), and the Consumer Protection Act, 2019 (CPA). Section 89 of the CPA imposes stringent penalties for false or misleading advertisements.”4 On Jul 29, 2024, the Food Safety and Drug Administration (FSDA) team raided and found Four hundred kg of stone powder in a flour manufacturing Company after that action was taken by the FSDA, and all the manufactured flour by the company was recalled from the market.5 **Statistical Analysis – Hyderabad** ranked first in the cases of food adulteration according to data released by the National Crime Records Bureau Telangana stands second which is followed by Andhra Pradesh. About 22% of foods are allegedly contaminated annually, according to estimates. Milk and dairy products are at the top of the most adulterated items. In India, over 80% of milk is reported to be contaminated with several harmful substances with around 8 to 13% contamination in rural areas and about 60 to 68% in cities.6 A 2012 study conducted by the FSSAI across 33 states found that milk in India was adulterated with diluted water, detergent, fat, and even urea. **Ideas / way forward** – To overcome increasing cases of food adulteration the budget,2024 declares setting up 100 NABL labs to keep monitoring on supply of adulterated food products in the market.7 Market survey of Adulterated food products is the best way to keep an eye on such products and to implement our laws strictly, Continuous inspection also helps to reduce such cases to develop fear in the minds of people involved in using adulteration methods. Harsh punishment and fines are also mandatory to set fear in society. Methods of rapid tests to detect adulteration Ares also useful method such as – Lala Lajpat Rai University of Veterinary and Animal Sciences, Hisar (Haryana) developed a kit for rapid spot testing to detect urea in milk, The Hazard Analysis Critical Control Point (HACCP) system has now been introduced to identify, evaluate and control hazards arising from crop harvest until the point of consumption.8 Awareness campaigns and advertisements on TV channels and radio should be set up in rural and urban areas in which basic awareness tips such as – vegetables and fruits should be eaten after washing with clean water, before purchasing packaged food its ingredients, FSSAI labels, along with manufacturing and expiry date should be read. Such steps should be taken to improve the health of people. 1. **CONCLUSION & COMMENTS –** In Indian culture “**food is considered as more than a mere substance —it is an expression of culture, heritage, and creativity**” and food is also considered as “Ann Devta” which cannot be insulted or wasted. Food adulteration is an insult to “Ann Devta” and increasing cases of adulteration are causing concern for the health, and farmers as well. In rural areas, people are not so aware of the expiry date and MRP written on it, and in various cases, sellers are selling expired food products and charging prices above the MRP which is harassment and via violation of people’s rights and FSSAI rules as well. Every year **7th April** is celebrated as **World Health Day** on which various campaigns should be done to spread awareness among people. Also to redress the Cases of adulteration people should know **“Strengthening of Food testing system in the Country including of provision of Mobile food testing labs”** so that people can easily file their complaints. **Categories:** Articles, Criminal Law --- ### [Protection of Women from Sexual Harassment: Provisions, Cases and Procedure](https://lawfoyer.in/protection-of-women-from-sexual-harassment-provisions-cases-and-procedure/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author:Bagya Shree L** **Editor: I Sharan** **Introduction:** The workplace serves as a second home for many employers and employees as they spend 9 -10 hr per working day. It’s always the person who provides those jobs to ensure that it is the safest environment for the workers to work without any harassment, misleading behaviour and discomfort. As recognized, sexual harassment is in the workplace. To avoid such situations and to provide a safer environment, the government, which acts as supremacy of law, gave special importance to avoiding those kinds of eve teasing and implemented the POSH Act. This article will be explored entirely with provision, procedure, case laws and other aspects that are governing Sexual Harassment in the Workplace to safeguard employees. ***Keywords*:** 1. Sexual Harassment 2. Women 3. Protection 4. Behaviour **Meaning of Sexual Harassment** Sexual harassment is an unwelcoming gesture or behaviour through means of physical contact, a demand for sexual favours, making sexually coloured remarks, showing pornography, any other verbal, non-verbal contact in sexual nature as per section 2(n) of the POSH Act. The creation of a hostile environment is also a form of sexual harassment. One significant piece of information is that there is no limit to the age of women when it is under the roof of sexual harassment. **Workplace** The place in which employees perform their work-related tasks for their employer, the employee may get a salary or may not get the salary. Under section 2(o) of the POSH Act – The work place includes any department, organization, unorganized sector, not less than 10 members as workers, any private sector, any public sector, self-employed, a dwelling house, supply, distribution, service, journey and place visited for the purpose of the course of employment, any sports institution, enterprises, complex, game venue, hospital, undertaking, enterprises, owned, controlled. **Evolution of Sexual Harassment** In India during the initial phase, there was no separate statutory remedy that directly addressed sexual harassment. We had only section 354 and 509 under the Indian Penal Code, 1890 but the application of such provision was limited in nature. This was found in the case of **Rupan Deol Balaji vs. K.P.S. Gill (1995**). Where an IAS officer had been sexually harassed by the superior officer and the scope of such prosecution was limited as we don’t have any separate statutory or provision for sexual harassment in the workplace. In the 1992 **Bhanwari Devi case**, a Dalit social worker employed in the government sector was gang raped in Rajasthan, which highlights the dimensions of sexual harassment, which also acts as one of the milestones for the formation of the POSH Act. Not only case laws, International Conventions are also one of the reasons for The POSH Act, namely the **Convention on Elimination of All Forms of Discrimination against Women (CEDAW**) which has a preamble to take on the aspect of equality of women in the workplace and gender-specific violence. India was one of the members of this convention and adopted them in the POSH Act. **International Labour Convention on Discrimination (Employment and Occupation) Convention**. India was one of the members of the convention, inspired by the purpose and adopted the prohibition and prevention of gender-based discrimination in the workplace. All these case laws and conventions initiated to have a POSH Act through Vishaka guidelines in the case of **Vishaka vs. the State of Rajasthan** gave directions to the Union of India to frame a law to combat the prevention of sexual harassment in the workplace. These guidelines energized and came up with the POSH at workplace Act 2013. This Act consists of eight chapters with 30 sections dealing with Complaints, constitution of the Internal Complaints Committee, the constitution of the Local Complaint Committee, Inquiry into complaints, Duties of Employers, Duties and Powers of District Officers and Miscellaneous. **Comparison with other Countries** Many countries have adopted prevention of sexual harassment, which has similarities with The POSH Act and some differ from The POSH Act as they generally focus on sexual harassment without any gender specification and workplace. **Australia** is one of the countries. This follows the prevention of sexual harassment in the workplace, through the legislation called **The Sex Discrimination Act 1984**. The Sex Discrimination Act has a similarity with The Indian POSH Act, like having a Human Rights commission to handle complaints and inquiries. On the other hand, the POSH Act has an Internal complaint’s committee to handle complains and inquiries. They do have distinguished in the field of remedy and damage. **The United States of America** has adopted **The Civil Rights Act of 1964** under Title VII which prohibits workplace harassment based on race, sex, colour, religion and nationality. It dealt with general harassment and was not so specific about sexual harassment. On the other hand, The POSH Act deals with sexual harassment. The Equal Employment Opportunity Commission in the USA handles complaints against employers for harassment. The Civil Rights legislation acts in a broader way as compared to The POSH Act as it adds on to race and religion. **The United Kingdom** has adopted the Equity Act 2010, which been adopted to prevent sexual harassment in the workplace with any discrimination, on race, sex, religion, disability, age etc, with a wider range of prevention of harassment. It complies with The POSH Act, like to prevent and address sexual harassment in the work place, to provide a safer environment for the workers and fails to follow the immediate actions to be taken. **Kinds of Legislation as a remedy for Sexual Harassment** Apart from the POSH Act, we do have The Protection of Children from Sexual Offense 2012 POCSO to prevent sexual harassment of children under the age of 18 in any place of any sex. The POSH Act has limited scope for the prevention of Sexual Harassment only with the ambit of workplace to women of any age. In Bharathiya Naaya Sanhitha 2023, chapter 5, this deals with sexual offences from section 63 to79. This has allotted a punishment maximum of up to 7 years of imprisonment for such harassment. **Forms of Sexual Harassment** Sexual harassment is booming nowadays. Many remain uncertain about what sexual harassment is, whether it is sexual harassment and if these kinds of behaviour amount to sexual harassment. To be certain, knowledge of these forms is more significant. Everyone should have awareness of these forms so that they will not be bound liable or be affected themselves. Verbal harassment – Making commentaries/jokes/vulgar terms sexually about the body parts of the individuals. It may be based upon the size of such an organ or any other thing too, that affect the dignity of such individuals. Non-verbal harassment – Leering, making sexual gestures, or displaying sexually explicit images to the individuals. Physical harassment – Physical touch in unwanted places of the body parts that is groping in nature or simply assault. Cyber harassment – sharing sexual content images or messages through electronic means. Quid pro quo harassment – Demanding sexual favours in compensation for some activity / work /promotion/etc usually found in the work place. Hostile work harassment – creating an environment that is intimidating, hostile or offensive due to unwelcoming sexual conduct. **Essential** As per the POSH ACT the formation Internal Committee (IC) in the workplace, even if it has multiple locations, each location should have an internal complaint community. Those committees should be established by the employer in written order. The composition of the IC should consist of a presiding officer. She should be a senior employee. 2 other members should present one with experience in social work and legal knowledge. One external member should be present from the NGO or association focusing on women’s issues. **Tenure of members** – All members have tenure of 3 years. **Compensation**– The external members can get an allowance as prescribed. **Removal of members** – members can be removed if they breach confidentiality, are convicted, found guilty, misuse of their position. If a vacancy is available it should be filled with the same criteria. **Legal Provisions for local committees and related Procedures** - Notification to the District Officer about the complaints arose and to handle the matter under this act. - Constitution and Jurisdiction of LC – The District officer must set up a local committee in every district to handle the complaints under this act with the workplace with less than 10 workers. Nodal officers are appointed in different locals to get the complaints and forward it to the LC within 7 days of receiving complaints. One Chairperson with knowledge of women’s issues and social work, a Local Governance Member, 2 members, one from an NGO or similar association with legal knowledge and the other one from a lower community, and one Ex Officio Member of social welfare or from a women’s or child development background. **Removal –** members can be removed in case of breach of confidentiality, convictions, disciplinary issues or misuse of position. **Compensation** – Same as IC. **Guidelines** **Filing a Complaint –** Written Complaint by an aggrieved woman can be filed with the Internal Committee or Local Committee within 3 months of the incident. If unable to write a complaint, a committee should assist the women in making the complaint. If she is unable to file the complaint, her legal heir or guardian will file the complaint. **Conciliation –** If women request before an inquiry, IC or LC can facilitate settlement between the parties. That settlement should be recorded, and that information should be informed to the District Officer. Copies of the settlement should be delivered to both parties as a record of the settlement. **Inquiry process –** The IC or LC should move to the investigation of the complaint if there is no settlement. If needed, they can transfer such a complaint to the police if necessary. **Power and Duration of Inquiry –** The LC and IC have power as similar to The Civil Court, including Summoning withness. The inquiry must be completed within 90 days. **Traditions-based Law** Prior to the POSH Act 2013, there were no separate statues addressing sexual harassment in the work place. Instead, we have the Indian Penal Code 1860, provisions for punishment of rape, section 354 outraging the modesty of a woman and section 509 the modesty of a woman. Later in 2012, POCSO was introduced with a narrow scope for children at 18 years of age. **Amendments** Amendment took place in 2016 In sections 6,7and 21 1. The term Local Complaints Committee was substituted as Local Committee. 2. The term Internal Complaints Committee was substituted as Internal Committee. In 2024, a bill was introduced in parliament. 1. Purpose of extension of complaint filing from 3 months to 1 year from the date of incident. 2. The Internal Committee had power to extend only 3 months to receiving complaints. The bill was passed for the extension of time from 3 months to unlimited time. - To omit section 10, the conciliation provision. **Statistical Analysis** The statistical analysis indicates that there are many complaints compared to each previous year as it highlights that many are getting awareness of this legislation and remedies coming up to solve their issues with courage. It is found that many no of cases are filed by larger companies, which is nearly 90 to 98%. In middle companies, 2 to 3% of complaints were registered. No complaints are recorded from the small-scale companies. The intensive spike of complaints is not a reflection of good society. Hence, we still need the law to improve and be stricter than now. **Conclusion& Comments** The POSH Act, 2013 represents a significant step forward in safeguarding women from harassment, especially in the workplace. The POSH Act provides a safer and more equitable workspace. The increase in the number of complaints indicates that awareness and enforcement still have a long way to go. The POSH Act has laid a strong foundation, continuous efforts are needed to strengthen its implementation and adapt to new challenges. The proposed amendments, particularly extending the time for filing complaints and potentially eliminating the conciliation process, reflect an evolving understanding of the needs of victims and the complexities of addressing sexual harassment. It is essential for legal professionals and lawmakers alike to remain committed to refining and enforcing these protections, ensuring that they effectively serve the people they are designed to protect. **REFERENCES** **Books / Commentaries / Journals Referred** 1. Times of India 2. Wire on. **Online Articles / Sources Referred** 1. 1. Wikipedia 2. Indian Kanoon 3. Nyaya organization blog. **Cases Referred** 1. 1. Vishaka vs. State of Rajasthan. 2. Rupan Deol Balaji vs. K.P.S. Gill (1995). 3. Bhanwari Devi case. **Statutes Referred** 1. 1. Protection of Women from Sexual Harassment Act, 2013 (POSH) 2. Protection of Children from Sexual Offence Act, 2012 (POCSO) 3. Bharathiya Naaya Sanhitha, 2013 **Categories:** Articles, Criminal Law --- ### [Legal Remedies Against Cyber Harassment and Online Hate Speech in India](https://lawfoyer.in/legal-remedies-against-cyber-harassment-and-online-hate-speech-in-india/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author:Apurva Sanjay Shah** **Editor: I Sharan** **Introduction:** The internet has become integral to our lives in this IT era. During the past few years, widespread internet and technology use has influenced how people communicate. In the recent few years, there has been a significant evolution in the internet and technology involved in our day-to-day communication. Instead of more personal methods of interaction face-to-face calls, emails and social media made people more connected regardless of the distance. Cyber harassment, also known as online harassment, is a very big umbrella covering the different forms of abuse online: stalking, bullying, doxxing, and many more. Online hate speech on the other hand involves the use of offensive language on online platforms against specific individuals or groups based on attributes like religion, gender, race, etc. Recognizing how serious these issues are, my study aims to create an analysis of legal provisions and procedures existing to combat such, and the noteworthy cases in this area. This is an important study to take up, considering the cyber harassment and online hate speech that has turned into a serious violation of people’s dignity security, and the health of an online community. *Keywords*:** 1. cyber harassment 2. online hate speech 3. ITA 2000 4. ITA Amendments 2008 5. Section 66A **Meaning, Definition and Explanation:** ***Cyber harassment:*** According to the United Nations, “Cyber harassment is a threat via the use of digital technologies. It can take place on social media, messaging platforms, and cell phones. It is repeated behaviour, aimed at threatening, scaring, shaming, and silencing those who are targeted.[\[1\]](#_ftn1)” It is a problem that affects various age groups. Moreover, it is a common reason linked to negative social effects such as depression and suicide. It generally refers to any action performed through means of digital media by individuals or groups that communicate violent, threatening, or aggressive messages with a malicious intention of causing harm or discomfort to others. ***Online hate speech:*** According to The Council of Europe, “hate speech is understood as all types of expression that incite, promote, spread, or justify violence, hatred, or discrimination against a person or group of persons, or that denigrates them, because of their real or attributed personal characteristics or statuses such as race, colour, language, religion, nationality, national or ethnic origin, age, disability, sex, gender identity, and sexual orientation.”[\[2\]](#_ftn2) There is no such proper definition for online hate speech. The intention behind online hate speech is to provoke violence, hatred, or prejudice against targeted individuals. Online hate speech is abusive since it targets the dignity of an individual but it also concerns social issues as it promotes discrimination in society. **Types of cyber harassmen**t: Cyber harassment is a wide term that includes various forms of online abuse. These forms can be classified based on the severity of crimes. They are as follows: 1. Cyberbullying: Cyberbullying is intentional and repetitive. it can be defined as an act of sharing or posting offensive, negative content concerning other individuals. posting private information which can cause humiliation to others also comes under the scope of cyberbullying 2. Cyberstalking: Cyberstalking is an act of using communication technologies like email direct messaging and others to stalk, threaten, manipulate, or control minors habitually. It can include examples like tracking someone’s online activity or location, etc 3. Online impersonation: It is the act of using another person’s information such as name, mobile number, or social media ID to commit fraudulent activities like phishing, data breaches, financial scams, etc. The general intention of such acts is to extract money by trapping the victims by illegal means. 4. Doxing: Doxing is the process of searching for and posting sensitive information, statements, etc to exploit, harass, or cause humiliation to another person. It can be targeted to a specific individual or organization. It is usually done by posting personal information like email, address, and phone number without consent. 5. Revenge Porn: Revenge pornography also known as revenge porn involves the act of publishing sexually explicit images or videos to insult or bring humiliation to individuals. Such material can be used to blackmail the victims into relationships, to threaten them, or to extract money from them. **Historical Background:** The journey of the Internet in India began in 1990 when public Internet access was established. During those days, there were no legal frameworks addressing issues like cyber harassment or hate speech. Thus at that time till the year 2000, the Information Technology ACT was aimed mostly at e-commerce, digital signatories, and cybercrimes like hacking and trespassing. - ***The original IT Act of 2000***: With cyberspace being so vibrant with multifaceted diverse types of cybercrimes, the IT Act had provisions that could be applied rarely. However, its first try was a large-scale bill designed to fight different types of obscene material posted on the World Wide Web. - ***Amendments to ITA 2008***: In 2008, the Indian government recognized how constantly changing are cyber threats and amended the IT Act which included several additional sections like the following: - Section 66A: This was a big step in combating online harassment and hate speech. It recited measures for the prosecution of sending any information that is grossly offensive or of a menacing character. - Section 66E: This section explained the invasion of privacy and more specifically, it outlined capturing, publishing, or transmitting the image of private areas of individuals without their consent. - Section 67: It was expanded to incorporate the penalty for the publication or transmission of obscene material in an electronic form. This hence indirectly covered some of the variables of online harassment. Challenges and Criticism While these amendments were needed, Section 66A remained highly controversial. After a landmark judgment named Shreya Singhal v. Union of India, this section was stricken down declaring it unconstitutional. However, other sections of the IT Act and the Indian Penal Code (IPC) continued to provide remedies. - ***Recent Initiatives and Policy Changes*** Recently, the government and courts have further taken the following steps to combat the menace of cyberstalking/harassment and online hate speech: CCPWC—Cyber Crime Prevention against Women and Children: It is a scheme created to improve the efficiency of policing agencies in the fight against cybercrimes against women and children. National Cyber Crime Reporting Portal: This government online portal is used to report cybercrimes especially those in the area of harassment and hate speech online. **Legal Provisions:** **Information Technology Act, 2000 also known as IT Act** 1. ***Section 66A:*** Before this, “it was about the case of sending obscene messages, etc. through any aids for communication, etc. It defined the punishment for any person who transmitted information, that was obscene, menacing, and caused annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will.” But the year 2015 struck Section 66A and held it unconstitutional by the Supreme Court of India in its landmark judgment of Shreya Singhal v Union Of India, on the ground that the words used in Section 66A were unconstitutional and very vague it became too broad a provision which at the most, could only violate the right of free speech and expression***.*** 2. ***Section 67: “***This section relates to the distribution or communication of obscene matter employing any electronic process. It gaols for a term not exceeding three years a fine for the first offence and a severe penalty for the second offense.” 3. ***Section 67A and 67B*:** - ***Section 67A***: “This section relates to the distribution or broadcast of material of this nature, as extended to a higher level of penalty.” - ***Section 67B***: “This section concerns child pornography and restricts it as a creation subject, a transmission method, and a browsing path.” 4. ***Section 69A***: “It provides for the power to issue directions for blocking public access to any information, through any computer resource, and if this access is considered to be harmful to the sovereignty and integrity of India, the security, defence, friendly relations with foreign states, and public order. It concerns also the prevention of incitement for the commission of any cognizable offence.” **Bharatiya Nyaya Sanhita,2023(BNS)** - ***Section 78:*** This section defines and punishes stalking, and it includes cyberstalking, thus thereby covering surveillance of the use by a woman of the internet, E-mail, or any other form of electronic communications. It states that “ (1) Any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitors the use by a woman of the internet, e-mail or any other form of electronic communication, commits the offence of stalking.” The punishment is imprisonment for up to three years for the first conviction and up to five years for subsequent convictions.” - ***Sections 356:*** This section deals with the question of defamation. According to section 356, “Whoever, by words either spoken or intended to be read or by signs or by visible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, to defame that person.” The section states that “this offence shall be punished with simple imprisonment for a term which may extend to 2 years or a fine or both or with community service.” - ***Section 351***: “Criminal intimidation that includes threats to murder someone, or to cause grievous bodily harm, falls under this section and it covers threats made through electronic means.” - ***Section 79***: “This section concerns itself with acts that are meant to outrage the modesty of a woman either by words, gestures, or by any other means using an electronic device. It sanctions simple imprisonment which may take a maximum of three years and may include fines also.” **Protection of Children from Sexual Offences Act, 2012** The Protection of Children from Sexual Offences Act, 2012 widely known as the POCSO Act is a law in practice to prevent offences of sexual assault, sexual harassment, and pornography against children. It also lays down strict penalties for using children for pornographic content through electronic media as well. Procedure for reporting Cyber Crimes:** There are two ways to file cybercrime complaints in India. One can report the crime through an online portal by the government or by approaching the nearest police station. ***Complaint portals:*** 1. **CYBERCRIME PORTAL** – Victims of cybercrime can directly file a complaint on the portal by using the website . They can file a complaint against various types of cybercrimes by choosing options like reporting cybercrime related to women/children or reporting other cybercrimes. There is an option to file a complaint anonymously. 2. **ONLINE CRIME REPORTING PORTAL** – Another way to report cybercrime online is through the website of the Ministry of Home Affairs. You can register a complaint in the section “Services for Citizen” and click on “Report a Cyber Crime.” Here, you can provide information about the offender, the victim, and the incident, along with any supporting evidence, such as screenshots. You have the option to file a complaint anonymously or with your identity. Also, the complaints can be tracked down. ***Cyber cell:*** Every state has cyber cells and certain police stations may have a department dedicated to investigating cybercrimes.in many states one can file a complaint by visiting cyber cells’ websites for instance in Delhi you can file a complaint online with the help of a Cyber cell website. To report cybercrime, you can either file a complaint on the website or visit the police station where you’ll have to file an FIR which will be forwarded to the cyber cell later. **Case Laws:** **Case 1 – Shreya Singhal vs Union of India:** In this case, two women were detained under section 66A of the Information Technology Act of 2000 for making offensive comments on Facebook regarding the appropriateness of closing Mumbai. the incident drew a lot of attention even though charges were dropped by police later. the women then filed a petition, arguing that section 66A violates freedom of expression and therefore is unconstitutional. **Issues raised** 1. Whether Section 66A of the IT Act, 2000, infringes on the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. 2. Whether the restrictions imposed by Section 66A are reasonable and fall within the scope of Article 19(2) of the Constitution, which allows for certain restrictions on free speech. **Judgment** The Supreme Court took down the much-debated Section 66A of the IT Act in the landmark judgment. The Court declared that the section was arbitrary in its implementation; and was vague and broadly interpreted, unreasonably infringing the freedom of speech under Article 19(2). It was a significant ruling because it protected and advocated the usefulness of free speech in the new age of technology**.** **Case 2- Ritu Kohli’s case** It was the first reported case of cyberstalking in India. a man named Manish Kathuria followed Kohli on the chat website, abused her using obscene language, and then distributed her telephone number to several other people. Later he used her identity to chat on other websites. In a state of shock, when Kohli registered the complaint that Kathuria was arrested under section 409 of the IPC. the IT Act was not invoked in the case, since it had not come into force at the time when the complaint was filed. While there is no record of any subsequent proceeding, this case made Indian legislators wake up to the need for legislation to address cyber-stalking. Even then, it was only in 2008 that Section 66-A was introduced[\[3\]](#_ftn3). **Conclusion and Comments:** With the increasing advancements in technology issues like cyber harassment, and online hate speech are now better known by people in India. Even though a legal framework is there to tackle such issues, it still lacks in some areas, leaving the victims at risk. the Information Technology Act of 200 and some sections of IPC provide a foundation to address these issues. however, the dynamically evolving nature of cybercrimes demands continuous adaption and refinement of these laws. The judiciary has taken the lead in interpreting and expanding the scope of laws in existence to protect individuals from online harm effectively. However, the rise of new platforms and the degree of privacy provided by the internet facilitate the complications in the issue. While the efforts made by government and civil society are worth praising, It can’t be ignored that there is a constant need to increase awareness about technological advancements, involving international cooperation. In addition to legislative and judicial measures, there should be a focus on preventive strategies. Social media platforms should be encouraged to develop and enforce more robust content moderation policies. **REFERENCES:** 1. **Books / Commentaries / Journals Referred** 2. Stevens, F., Nurse, J. R. C., & Arief, B. (2021). Cyberstalking, cyber harassment, and adult mental health: A systematic review. *Cyberpsychology, Behaviour, and Social Networking* 3. Gammon, A. R., Converse, P. D., Lee, L. M., & Griffith, R. L. (2011). A personality process model of cyber harassment. *International Journal of Management and Decision-Making* 4. Van Laer, T. (2013). The means to justify the end: Combating cyber harassment in social media. *SSRN Electronic Journal*. 5. **Online Articles / Sources Referred** 1. 2. 3. 4. 5. 6. **Cases Referred** 1. Shreya Singhal vs Union of India 7. **Statutes Referred** 1. Indian Penal Code,1860 2. Information Technology Act,2000 3. POCSO Act,2012 [\[1\]](#_ftnref1) United Nations, *Cyber Harassment self-protection tips,*[*https://www.unitad.un.org/.*](https://www.unitad.un.org/), [\[2\]](#_ftnref2) The Council of Europe: Hate speech, (2014), [\[3\]](#_ftnref3) legal Service India. [https://www.legalserviceindia.com/](https://www.legalserviceindia.com/%20) **Categories:** Articles, IT Law & Cyber Law --- ### [Appeals Under Criminal Law from Conviction/Acquittal](https://lawfoyer.in/appeals-under-criminal-law-from-conviction-acquittal/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Diksha Patole** **Edited by: A I Sugandesh** ****INTRODUCTION:**** **“Is an appeal the insignia of democratic assets integrally entwined with the machinery provided for dispensation of justice.”** For a casual observer, the criminal proceeding may invariably conclude as soon as the verdict is entered, or punishment is imposed. In the conduct of criminal proceedings, certain steps are essential, from escorting the accused to the court to the final judgement. But there are times when after the defendant has been convicted or acquitted, it is not yet the last stage of the proceeding. An accused person is under the law allowed to request for an appeal or review of a conviction that was made against him or her. In criminal cases, the main role of an appeal is to make sure that justice is done to the appellant. The right to appeal is increasingly omnipresent. In most jurisdictions, the right to appeal against conviction and sentence is a right which may be constitutional or statutory. However, this has not always been the circumstances. The right to appeal is a recent addition to the process of common law criminal judgments. Everyone knows that people are not perfect, and they can make mistakes, and their decisions can be wrong. As such to rectify the errors dominating their judgement the Code of Criminal Procedure, 1973 has made available the provisions of “appeals” and “revision” where the higher courts of law have the jurisdiction to reconsider the erroneous decision made by the courts subordinate. Criminal justice is the disposition that aims at providing justice by punishing the offender and at the same time protecting society from such individuals. As is often said, it is desirable to release ten guilty men rather than have an innocent man/man suffer a warranted conviction. ****KEYWORDS:**** *appeal, acquittal, criminal procedure code, supreme court, high court, Indian penal code, conviction* ****MEANING, DEFINITION & EXPLANATION:**** In criminal law, an “****appeal****” is a challenge to a previous legal determination. An appeal is directed towards a legal power higher than the power making the challenged determination. Definitions given by renowned legal scholars and judges: 1. **According to Lord Denning**** “An appeal is a process by which a higher court reviews the decision of a lower court. It is a continuation of the original proceeding, with the appellate court examining the correctness of the lower court’s judgement” 2. **According to Justice Oliver Wendell Holmes “****An appeal is the right of a litigant to seek a review of a judgement, to have it reconsidered by a higher tribunal, ensuring that justice is not compromised by errors or misjudgement.” The term “****conviction”**** means a finding of guilt (including a plea of nolo contendere), an imposition of sentence, or both, by a judicial body charged with the responsibility. 1. **According to Justice Benjamin Cardozo**** “Conviction is the legal acknowledgement of guilt, established by a verdict of the jury or a decision of a judge, following a trial where the evidence presented meets the standard of proof required by law.” 2. **According to Sir Fitz James Stephen**** “A conviction is the result of a trial where the accused is found guilty of the charges against them, establishing their culpability beyond a reasonable doubt.” An “****acquittal****” is a resolution of some, or all of the factual elements of the offence charged. A not guilty finding is an adjudication that proof at a prior proceeding was insufficient to overcome all reasonable doubt of the guilt of the accused. 1. **According to Justice Louis Brandeis**** “An acquittal is a declaration of innocence, finding by the court that the evidence is insufficient to convict the accused, ensuring that no one is punished without due proof of guilt.” 2. **According to Justice V.R. Krishna Iyer**** “Acquittal means the absolution of the accused from the criminal charge, reflecting the principle that it is better that ten guilty persons escape than that one innocent suffers.” An *“A****ppeal against conviction****”* is a key legal remedy, that gives a convicted individual a chance to review or re-examine their judgement by a higher court, to ensure accuracy and fairness. *“****Appeal against acquittal”***** ensures that the errors in the law or procedure do not acquit an individual guilty of a crime. ****HISTORY AND EVOLUTION OF APPEAL:**** Appeals of criminal law about conviction and acquittal have been discussed with historical and evolutionary views to show that there have always been attempts to make a legal system or the judicial process fair. The early civilisations such as the Greek and Roman legal epochs did have a simple or fundamental form of appeal. In Rome, there was **provocatio** which informed the citizens to appeal against the decision of a magistrate to an upper one. The Ancient Indian legal system had texts such as **Manusmriti** and **Arthshastra**, which also laid down the procedures of litigation and appeals. It is noted that during the medieval age, the administering of justice in many parts of India was under Islamic law with **Qazis** (judges) in charge of such legal systems. There were arguments referred to the higher powers, such as the Sultan or the Emperor, in the Mughal Empire the Emperor was held the ultimate appellate authority. The Britishers arrived in India in the form of the English East India Company, for their self-governance they had their judiciary to provide justice to the British people and later they started controlling the natives that is the Indians. In 1773, the Regulating Act was passed and created the Supreme Court of Judicature in Calcutta at Fort William, with appellate jurisdiction over the Calcutta, Madras and Bombay presidencies. The Charter Act of 1883 and other subsequent acts reorganised the judicial system and established a judicial hierarchy with defined appellate jurisdiction. High Courts were set up in Calcutta, Bombay and Madras by the Indian High Courts Act of 1861 and they were given appellate civil and criminal jurisdiction. In India, the people of Britain codified the laws with the reference of English common law. Criminal law and its procedures were put into formalities under the Indian Penal Code 1860 as well as the Code of Criminal Procedure (CrPC) 1861. It was in the Code of Criminal Procedure that organised appeals of the criminal cases were provided with a structure. In the period of Post-independence India, the Constitution of India was adopted in 1950 and a common codified legal system came into stream in one stroke with the Supreme Court at its apex. It’s provided under Article 136 of the constitution of India that the Apex Court can hear appeals contained in any judgment, decree or order passed by any court within the territory of India. The CrPC 1973, built upon and improved the procedural laws that governed criminal trials and appeals. Appeals in criminal cases are covered under sections 374 to 394 of CrPC. It mentions the provision for appeal against conviction and acquittal. It also defines the powers of the appellate court and the rights of the appellant. The position of law regarding re-recognition of the evidence at the appellate level was explained in cases such as ****K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788**** and ****Narendra Singh v. State of MP (2004 10 SCC 699).**** Changes were brought into the CrPC to clarify the procedures, shorten the time, deal with the new developments and enhance the appellate system. Technological advancements such as e-filing systems together with virtual hearings enhance the appellate process. ****PRINCIPLES OF APPEAL:**** The fundamental principles of appeal under CrPC are as follows: 1. **An appeal is a creature of statute**** The right to appeal is recognized and described in the legislative instruments including, but not limited to, the Code of Criminal Procedure (CrPC) in India. This, in turn, means that the right of appeal is accrued not enshrined in the Constitution as a constitutional right but a right given and regulated by certain laws or statutes. It is only by such statutory provisions that there is a right to appeal. 2. **No inherent right to file an appeal**** It means that an individual does not have the right to appeal a legal decision as an inherent right. This is because, where the law or statute does not allow for an appeal in a given case then the appellants have no legal grounds that will allow them to appeal to the higher court. All the judgements are not appealable, there may be some which are final and are not capable of being appealed. 3. **No appeal only against conviction**** Appeal as a right is in no way limited to the situations where a person has been convicted and hence is a criminal. Applications can also be made on procedural irregularities where there was a trial conducted, inter alia unreasonable denial of right to a fair trial, admission or exclusion of evidence as well as improper or wrongful application of the principles of law. Acquittals and sentencing as well also can include appeals. 4. **No appeal in petty cases**** To avoid overloading higher instances, and to make sure that less essential problems are not brought to court, statutory provisions restrict the right to appeal in minor cases. Petty cases are usually those crimes that are less severe with corresponding meagre punishments. These cases include minor fines or short-term imprisonment. 5. **Generally, there is no appeal on conviction on a plea of guilt**** If an accused person pleads guilty to a charge, this is made in total surrender, and he or she cannot appeal the conviction. The rationale behind this principle is based on the fact that any appeal serves to reconsider the findings and processes of the trial. However, a plea of guilt is the outright acknowledging responsibility of the alleged offender for the crime they are accused of and not a conviction of the court after a trial. ****PROVISIONS FOR APPEAL UNDER CRIMINAL LAW:**** In India, the Regulation of appeals in criminal cases is provided by the Code of Criminal Procedure (CrPC), 1973. Under the CrPC the sections that deal with appeals from convictions and acquittals are: ****Appeals from Convictions**** - **Section 374 – Appeals from Convictions**** According to this section, a trial on the offence is done before a High Court sitting in its extraordinary original criminal jurisdiction and the accused is convicted; then the accused has a right to appeal to the Supreme Court. Likewise, a person who has been charged by a Session Judge, an Additional Session Judge or any Court which has sentenced the appellant to imprisonment for a term exceeding seven years, has the right to appeal to the High Court. In cases tried by a Magistrate of the first or second class and culminate into a conviction, the convicted person can appeal to the Court of Session except if the penalty involves imprisonment of three months or less or a fine exceeding one hundred rupees. - **Section 375 – No appeal in certain cases when the accused pleads guilty**** No appeal shall lie where a person has been convicted of the offence on a plea of guilty; the legally sufficient plea of guilty apart from the extent or legality of the sentence given by the court. - **Section 376 – No appeal in petty cases**** No appeal shall be allowed where a court has only fined, and the amount does not exceed two hundred rupees or has sentenced one to imprisonment not exceeding six months, and the trial was conducted by a Magistrate of the first class. ****Appeals from Acquittals**** - **Section 378 – Appeal in case of Acquittal**** According to this section, if the Magistrate enters an acquittal in any case which has been forwarded to the Court of Session along with the police report under section 173, the District Magistrate may order the Public Prosecutor to file an appeal to the Court of Session. Secondly, the State Government has the power to open a prosecution to require the Public Prosecutor to appeal to the High Court against an order of acquittal made originally or in appeal by a court other than that of the High Court. If an order of acquittal is passed in a case related to a complaint, then the complainant has the right to appeal but that too under special leave to appeal in the High Court. Failing to lodge this appeal within six months from the date of the acquittal order, the same will be deemed as having been lodged. ****General Provisions for Appeals**** - **Section 382 – Petition of Appeal**** Every appeal shall be made in the form of a written petition filed by the appellant or the appellant’s legal practitioner, and every such petition shall be assumable by a copy of the judgement or order that is challenged. - **Section 383 – Procedure when Appellant in Jail**** Where the appellant is in prison, he shall file the petition of appeal and the copy of the judgement or order that has been appealed against with the officer commanding the prison and the latter shall transmit the same to the proper appellate court. - **Section 384 – Summary Dismissal of Appeal**** An appeal summary may be dismissed by the appellate court upon a finding that there is no sufficient reason to intervene. However, the provisions of Section 382 any appeal that may be presented shall not be struck out unless the appellant or the pleader for the appellant has been called upon to show cause why it should not be struck out. - **Section 386 – Powers of the Appellate Court**** After hearing an appeal in its jurisdiction, the appellate court may reverse the judgement or order, confirm the judgement, vary the judgement or order, order a new trial or discharge a convict. It is capable of re-designing the due appreciation of the evidence and arriving at its conclusions. - **Section 389 – Suspension of Sentence Pending the Appeal; Release of Appellant on Bail**** The appellate court may stay the operation of the sentence or the order which has been appealed against and may discharge the appellant on bail or their bond. ****LANDMARK CASES AND JUDGEMENT:**** ****Case 1 – K.M. Nanavati v. State of Maharashtra (1961)**** In this case, K. M. Nanavati a naval officer came to know about his wife’s affair with Prem Ahuja. It is stated that on April 27, 1959, Nanavati went to the apartment of the deceased, Prem, armed with a revolver. The Nanavati accused Prem during an altercation and then shot him and he died from the injuries. There was the matter of trial where Nanavati was first tried in the Bombay High Court and the jury acquitted him much to the lobby’s chagrin probably because his action was committed under provocation. The conviction was overturned by the State for churning incomplete evidence that the jury used in arriving at the acquittal. ****Issues Raised**** - Whether the act was predetermined murder or a crime of passion in sudden provocation - The applicability of the jury’s verdict and the role of the judge. ****Judgement**** The jury acquitted Nanavati and the Supreme Court of India also set aside the above said verdict and convicted Nanavati for culpable homicide. The court said that in this case, although the act was committed in the heat of passion and after provocation, such a case cannot be considered an excusable act, allowable by law due to sudden provocation. The defence was successful in reducing the charge to a murder that was committed under provocation, but Nanavati was still sentenced to life imprisonment, although the judge made it clear that provocation rendered the crime less heinous but did not excuse it. ****Case 2 – Gian Kaur v. State of Punjab (1996)**** Gian Kaur and her husband are charged with abetting the suicide of their daughter-in-law who was a victim of cruelty and harassment. The trial court convicted them under Section 306 of the IPC because they compelled her to take the fatal decision. In this case, the Department of Defence stirred up the allegations claiming that Section 306 was an unconstitutional regime of the underlined right of the law of life and personal liberty. ****Issues Raised**** - Whether section 306 of the Indian Penal Code, 1860 based on the abetment of suicide can be held to contravene the rights to life under Article 21 of the Indian constitution. ****Judgement**** The Hon’ble Supreme Court of India upheld the conviction and the legal provisions of section 306 IPC stating that the constitutional provision right to life as envisaged under article 21 of the Constitution of India does not include the right to die. As the Court noted the prohibition envisaged by Section 306 of abetting suicide is a step that is taken to prevent suicide and preserve life. This argument proves the significance of the statute as a way of handling and penalizing actions that lead to suicide. ****Case 3 – State of Maharashtra v. Madhukar Narayan Mardikar (1991)**** Madhukar Narayan Mardikar, a law enforcement officer faced allegations of trying to assault a woman. Yet the initial court ruled in his favor stating that the lack of witnesses and doubts, about the credibility of the victim’s testimony made it hard to prove guilt. The prosecution later appealed this verdict arguing that a victim’s account supported by testimonies should be adequate grounds, for legal intervention. ****Issues Raised**** - Whether the trial court’s acquittal was justified in the face of compelling evidence and the victim’s testimony. ****Judgement**** The Supreme Court reversed the not verdict stating that the victim’s character should not be used to discredit her testimony. Mardikar was found guilty by the Court highlighting that being an accused does not exempt someone, from facing consequences. ****CONCLUSION:**** The appeal is an important safeguard within the system of criminal justice in India and its objective was not only to serve justice but also it must seem to be done. It serves as an essential function of a review authority and avoids miscarriage obviously by ouster, error in procedure or acting per-in party on the part of the lower judiciary. It is essential in maintaining the rule of law and ensuring that all citizens are treated equally, as well as principles such as fairness, accountability and transparency within the judiciary. ****ENDNOTES:**** - **Books****/** **Commentaries / Journals**** - Dalton, Harlon Leigh. “Taking the Right to Appeal (More or Less) Seriously.” **The Yale Law Journal**, vol. 95, no. 1, Nov. 1985, p. 62 - Orfield, Lester B. “The Right of Appeal in Criminal Cases.” **Michigan Law Review**, vol. 34, no. 7, 1936. - Marshall, Peter D. “A Comparative Analysis of the Right to Appeal.” **Duke Journal of Comparative & International Law**, vol. 22, no. 1, 2011. - **Online Articles / Sources Referred**** - - - [https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def\_id=41-USC-2143927138-973787019&term\_occur=999&term\_src=title:41:subtitle:IV:chapter:81:section:8102](https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=41-USC-2143927138-973787019&term_occur=999&term_src=title:41:subtitle:IV:chapter:81:section:8102) - - - - - **Categories:** Articles, Criminal Law, Criminal Procedure Law --- ### [Mob lynching: Provisions Under BNS](https://lawfoyer.in/mob-lynching-provisions-under-bns/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Gupta Aryan Rajesh** **Editor: I Sharan** **Introduction** Diamond is the most expensive element in the world but the life of a person is more precious and invaluable in the world. Mob means group of people and lynching word is derived from the name of Charles Lynch who punished the offender without the due trial. In an era where dozens of laws and Acts apply to different crimes in almost every country this crime rate hasn’t decreased instead, it has increased daily. Mob Lynching is a punishable offence in some countries whereas in some countries it is not. In layman’s language, mob lynching means the act of a group of people who brutally kill the suspected person who is deemed to be cow vigilantism and caste & religion-based vengeance. Mostly this type of lynching takes place due to a lack of literacy and education of social knowledge, it mostly occurs in rural areas where the beliefs of the people are preferable more than their laws. They took laws into their hands not only to punish but to torture the victim and then kill it. Well, the rights of the victim were also infringed under Articles 14, 19, and 21 of the Constitution of India and the people who do lynching are also liable for their acts against the Constitution of India. The term Mob Lynching was not included in any separate section in the Indian Penal Code nor it was defined separately which acts are included in mob lynching in the Bhartiya Nyaya Sanhita (BNS)- replaced the Indian Penal Code on 1st July 2024. Union Home Minister Amit Shah said in the parliament at the time of Introducing the Bhartiya Nyaya Sanhita (BNS) Bill, 2023: “*There has been a lot of talk about mob lynching. We have carefully ensured that the punishment for mob lynching is seven years, imprisonment for life, or even death. All three provisions are there in cases of mob lynching.*”[\[1\]](#_ftn1)There have been so many cases in the last decade where the victims were brutally killed by the mob on the presumption or suspicion as well as on misunderstanding. ***Keyword*:** mob lynching, section 103(2), Bhartiya Nyaya Sanhita, extra-judicial punishment, hate crime, section 302 **Meaning, Definition & Explanation** Mob Lynching is a grievous act done by a group of people i.e. mob. They kill the victims by taking the law into their hands believing that they performed something wrong. The violence is against the human body on the belief or sometimes suspicion of doing any wrongful act. Earlier the punishment for the mob lynching for the killing of the victim was given under section 302 of the Indian Penal Code while after the implication of the new Act i.e. Bhartiya Nyaya Sanhita, 2023 on the 1st day of July 2024 the punishment for the murder by the mob was given under the separate section 103(2) of the BNS, “*when a group of five or more person acting in concert murders on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground, each member of such a group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine*”[\[2\]](#_ftn2). The interpretation of section 103(2) of BNS,2023 is; When the group of five or more people murders anybody on the basis or grounds of race, caste or community, sex, place of birth, language, personal belief or any other ground will be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine. Section 103(2) of BNS will only be applicable if the victim died by five or more persons. In another case, if the group of people is fighting against the other group of people then the consequences of murder arising from that fighting will not considered as mob lynching. [Sub-clause 4 of Section 117 (*voluntarily causing grievous hurt*)](https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nyay_(Second)_Sanhita_2023.pdf) provides, “*when grievous hurt of a person is caused by a group of five or more persons on the ground of his, race, caste, sex, place of birth, language, personal belief or any other ground, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine*”.[\[3\]](#_ftn3) If the group of five or more persons caused the grievous hurt then Section 117(4) of BNS comes into play. It is pertinent to note that the punishment for murder is death or imprisonment for life, and shall also be liable to fine as per section 103(1) of BNS. In comparison, the punishment of murder by the mob is given u/s 103(2) which is the same. The question arises that if the murder is done by the mob then all the people involved in it will be punished with death or imprisonment of life and a fine. It is the question of law and it depends on the charge sheet. It is pertinent to note that in a country like India, some people also come in the charge sheet of police who were at the time of lynching present there, and due to the misinformation the innocent also become the prey of the murder in the charge sheet. **Mob Lynching is a distinct offence** Earlier mob lynching was not recognized as a distinct offence in Indian Penal Code whereas now it is recognized as a distinct offence under Bhartiya Nyaya Sanhita, 2023. As per BNS, the punishment for mob lynching was mentioned under sections 103(2) and 117(4). Before going ahead it is important to know that if there is not an assembly of five or more person in doing the common act then it is not considered mob lynching, whereas in the Bhartiya Nyaya Sanhita, 2023 special provisions are there for unlawful assembly which is mentioned under the section 189(1). The mob lynching is a hateful act against the Muslim cattle trader, intercaste marriage. Sometimes it spreads due to rumours from social media, and political statements between the people. Mostly it is against the backward class of people, theft, robbery, and murder of minors. Therefore to prevent all this and to protect the right of the innocent or victim the distinct provisions in Bhartiya Nyaya Sanhita was included. **Comparison with other provisions** The victims in the mob lynching were not allowed to give their defence to the mob as the mob at that time was mostly doing hateful acts in the heat of anger. Sometimes in that situation, the lives of innocent people also come into danger. Therefore mob lynching is considered a hate crime in all the states of the country. To prevent all this there are other distinct provisions or acts in some states. Manipur in the year 2018 implemented its separate Act which is Manipur Protection from Mob Violence Act, 2018 against the crime of mob lynching. The punishment for the convict of mob lynching is life imprisonment. It includes the establishment of special courts for speedy trials, the role of police in the prevention of incidents, and also compensation schemes for the families of the victims. Similarly, Rajasthan implemented – the Rajasthan Protection from Lynching Act, of 2019. Which includes life imprisonment or up to 7 years imprisonment if the hostile environment is created for lynching for the convict. Appointment of a nodal officer and the establishment of a special task force for the district level. The special provisions are there for the protection of witnesses and compensation to the families of the victims. West Bengal implemented the Act in the year 2019- West Bengal (Prevention of Lynching) Act, 2019. It includes the punishment or imprisonment of life or additional penalties for those who create a lynching environment. In this state nodal officer is appointed to monitor and to prevent mob violence. It also includes the compulsory compensation to the families of the victims. Whereas in BNS there is the prescribed punishment for not only life imprisonment but also liable for death penalty. In the above separate Acts of Lynching not in the single Act, there is the provisions for the death penalty for this type of hate crime. Therefore the implementation of the Bharatiya Nyaya Sanhita plays a game changer role in the prevention of the hatred crime in the country due to its high degree of punishment. **Case Laws** The recent case was about the [Palghar incident](https://www.hindustantimes.com/cities/mumbai-news/palghar-lynching-case-two-years-on-101650048601368.html) in Maharashtra. In this case, the mob at large attacked two sadhus and their driver at Palghar at night on 16th April 2020. The mob lynching was done due to the spreading of humour and fake messages around WhatsApp between the villagers due to which they were influenced and believed Sadhus the child lifters they assaulted the two Sadhus. This shows how people are influenced by fake messages on WhatsApp and take the law into their own hands just for the sake of punishing the accused. But they don’t know the full facts of the situation or the person to whom they were going to assault and kill the innocent one. Therefore the special or distinct section in BNS for the punishment for those mobs is the key change in the history of India. The discussion of mob lynching without the case law of *Tehseen Poonawalla v Union of India and Ors. (2018)* is like reading a topic without meaning. The Poonawalla case was a landmark case in the field of mob lynching. In this case, the Supreme Court of India issued guidelines for preventive, punitive, and remedial measures. The court held that there must be appointment of a nodal officer in each district which must be not below the rank of Superintendent of Police. If it is likely to be the situation that such type of incident will happen then a special task force should be appointed to that area.[\[4\]](#_ftn4) **CONCLUSION & COMMENTS** The inclusion of distinct punishment or provisions for the mob lynching in the Bhartiya Nyaya Sanhita, 2023 was a great step taken towards the prevention of not only such type of crimes but also affected in the mind of the people not to take any such steps to punish the accused or not to come into the influence of any such social media post and WhatsApp messages. Well, it is to be noted that after the implication of the BNS, we can see a decrease in the number of crimes in the country. **REFERENCES** 1. **Online Articles / Sources Referred** 101691781909920. 101691781909921. 101691781909922. 101691781909923. 2. **Cases Referred** 1. Palghar Mob Lynching case (2020) 2. Tehseen S. Poonawalla vs Union Of India (AIR 2018 SC 3354) 3. **Statutes Referred** 1. Bhartiya Nyaya Sanhita, 2023 2. Constitution of India, 1950 3. Manipur Protection from Mob Violence Act, 2018 4. Rajasthan Protection from Lynching Act, 2019 5. West Bengal (Prevention of Lynching) Act, 2019 [\[1\]](#_ftnref1) Hindustan Times, , (Last visited 05/08/2024) [\[2\]](#_ftnref2) Bhartiya Nyaya Sanhita, 2023. Sec 101(2) [\[3\]](#_ftnref3) Bhartiya Nyaya Sanhita, 2023. Sec 117 (4) [\[4\]](#_ftnref4) Tehseen S. Poonawalla vs Union Of India, AIR 2018 SC 3354 **Categories:** Articles, Criminal Law --- ### [Forensic Science Techniques: Role in Criminal Investigation and Trial](https://lawfoyer.in/forensic-science-techniques-role-in-criminal-investigation-and-trial/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** Author: Anisha Parveen Editor: I Sharan **INTRODUCTION** Forensic science is the use of scientific methods to help solve crimes and support law enforcement. It involves answering important legal questions by analysing evidence from crime scenes. Various scientific fields are involved in forensic science: e.g. Physics helps understand things like blood splatter patterns. Biology identifies unknown people through DNA. Chemistry examines the chemical makeup of substances found at crime scenes. Forensic science has been around for a long time with its use in criminal investigations dating back thousands of years. In 1902, Argentina was the first country to use witness testimony in criminal cases. Sir William Herschel suggested using fingerprints to identify criminals. One of the key activities in forensic science is studying DNA the genetic material in all living things. By the late 20th century forensic scientists had advanced technology to analyse evidence such as DNA tests and computer searches making their work more precise and effective. ***Keywords* *(Forensic science, fingerprint analysis, firearms, Forensic evidence, autopsies)*** **Meaning, Definition & Explanation** “The word forensic comes from the Latin word “forensis” which means public or related to debate and discussion. Today “forensic” refers to anything used in a court of law. Forensic science is any science used for legal purposes. Forensic sciences help solve civil disputes, enforce criminal laws fairly, and protect public health worldwide. Forensic scientists step in whenever a scientific analysis is needed to find the truth and seek justice in legal cases.”(1) “Forensic science is a field that uses different scientific methods to investigate crimes and legal problems. It involves studying physical evidence like DNA fingerprints and small materials to find facts for court cases. Forensic experts help the police and courts solve cases and ensure fairness. Forensic science applies different scientific fields to solve legal and criminal cases. It includes areas like chemistry biology physics and computer science to collect and study evidence from crime scenes. By using advanced methods forensic scientists help police discover the truth and deliver justice.”(2) **Historical Background / Evolution** “Historically, much of the evidence found at crime scenes was observational, assessed by the human eye directly. It is standard practice to use advanced techniques such as fingerprinting, DNA testing, chemical analysis, and more when assessing physical crime scenes.”(3) “Forensic science is still developing in the modern criminal justice system. However, its importance goes back to ancient civilizations. The earliest use of forensic science was in **ancient Greek and Roman societies.** These civilizations made important contributions to medicine, especially pharmacology. They studied how toxins were made, and used, and their effects, which helps us understand past murders. In 16th century Europe, doctors started gathering information about the cause and manner of death. In the 17th century, forensic science became more important because of new scientific advancements. In the following centuries, forensic science grew as more science was used to solve crimes. Techniques like matching clothing fibbers and footprints to suspects became popular. Over time, criminal investigations focused more on evidence and logical methods.”(4) **Types of Forensic Science Techniques** - “Collection and Preservation of Evidence** Forensic science starts at the crime scene, where experts carefully examine everything. They identify, record, and collect physical evidence like fingerprints, bloodstains, hair, clothing, and weapons. By analysing the scene and the evidence, they recreate what happened. This process is crucial for building the initial understanding of the case. - **Laboratory Analysis** After collecting evidence, it goes through detailed lab analysis. Different areas of forensic science, like DNA analysis, toxicology, ballistics, and digital forensics, come into play. Experts use advanced tools and methods to examine the evidence. For example, DNA profiling can link suspects, victims, or crime scenes—toxicology checks for drugs or toxins in the body. - **Examination of Fingerprints** Fingerprint analysis is a key part of forensic science. Everyone has unique fingerprints because of the patterns on the ridges of their skin. Forensic experts compare fingerprints found at crime scenes with known prints in databases to find possible suspects. This method has proven crucial in many cases, linking people to crime scenes. - **Expert Witness Testimony** In the judicial system expert witnesses especially those skilled in forensic science play a crucial role. With their deep knowledge and training, these experts help make complex scientific evidence and ideas understandable for judges and juries. Their input helps bridge the gap between complicated forensic findings and the people who need to make legal decisions.**”**(5) **Legal Provisions** “Section 73 of the Indian Evidence Act states that everyone, including the accused, must give a fingerprint or DNA test. Another debate is about drug use and its legal validity. Narcotics analysis is a new field in criminal investigation. But the question is whether the evidence from the drug test is admissible in court. In this way, the investigator tries to get some words from an unconscious person that can be used as evidence. This process has many legal and ethical problems. Some consider this to be a violation of Art. Article 20 of the Constitution of India. Section 53 of the Crimes Act 1976 provides that a medical examination of the accused may be carried out if the police officer considers that the examination will provide evidence of an offence. In 2005, some changes were made in the Penal Code only in the case of rape, as well as blood tests, DNA tests, sperm tests, swab samples, hair samples and other tests. Article 164A of the Criminal Code also allows coroners to examine victims within 24 hours. But the question is whether all doctors in the community can collect DNA samples. The sample collection will no longer be useful research and will not be contaminated because it has been inhabited since ancient times. The evidence is considered biblical by many judges and accepted as experts’ faith. However, the court is not bound by these reports and may rely on other evidence.”(6) **Case Laws** “**Bombay State High Court v. Kathi Kalu Ogad and Anr** – Many people argue that fingerprint and DNA identification violates Article 20(3). They argue that forcing the prosecution to give fingerprints is like the prosecution giving them evidence. However, in this case court said that forcing a person to produce documentary evidence such as fingerprints, blood, and semen does not violate the provisions of Article 20(3). **Ramchandra Reddy and Ors. v. The state of Maharashtra** – Bombay High Court in this case, Maharashtra supports legalizing polygraph tests and drug tests. But as for **Selvey and Ors. v. State of Karnataka and Anr**. The court ruled that those who spoke during the mental health report or drug test were untrue, and therefore the decision should be deemed invalid.”(7) **Future of Forensics** “Forensic science will likely change a lot with artificial intelligence. AI can analyse huge amounts of video and audio data to find criminal activity and suspects using facial recognition. Digital forensics will also grow as more crimes happen online and more information is stored on electronic devices. New forensic tools will make investigations faster and more accurate. They might even solve old cases that seemed unsolvable. This will improve the justice system by making it fairer and more precise. We need to be careful with new technologies to avoid any negative effects, but the potential benefits are huge, and it will be interesting to see how forensic science evolves in the next few decades.” (8) **CONCLUSION & COMMENTS** Forensic science is an important tool for justice. It uses scientific methods to help solve crimes, prove innocence, and ensure that the guilty are held responsible. Forensic experts play key roles from investigating crime scenes to presenting evidence in court, which helps in solving crimes effectively. This strengthens both law enforcement and the judicial system, making forensic science essential today. In India, forensic evidence fits well within the legal system. It helps those investigating crimes and gives judges clear information, boosting their confidence in making decisions in both criminal and civil cases. Forensic science is now a highly developed field used in various investigations. It includes advanced methods like fingerprint analysis, DNA profiling, ballistics, and firearm investigations. **REFERENCES** 1. **Online Articles / Sources Referred** 15569. (1) BHAVNA,< > 15570. (2) BHAVNA,< > 15571. (3) Teja, S. (2023, December 6). The History of Forensic Science and its evolution. Textual. < > 15572. (4) Teja, S. (2023, December 6). The History of Forensic Science and its evolution. Textual. < > 15573. (5) Role of forensic science in crime investigation. (2023, October 6). < > 15574. (6) BHAVNA,< > 15575. (7) BHAVNA,< > 15576. (8) Kenny, T. (2023, November 7). The role of forensics in modern criminal investigations. Northwest Career College. < > 2. **Cases Referred** 1. Bombay State High Court v. Kathi Kalu Ogad and Anr AIR 1961 SC 1808, 1962 SCR (3) 10 2. Ramchandra Reddy and Ors. v. The state of Maharashtra. 2004 ALL MR (Cri) 1704 3. Selvey and Ors. Vs State of Karnataka and Anr. AIR 2010 SC 1974 3. **Statutes Referred** 1. Crimes Act 1976 2. Indian Evidence Act 3. Indian Penal Code,1860 **Categories:** Articles, Criminal Law, Criminal Procedure Law --- ### [DIVORCE UNDER THE HINDU MARRIAGE ACT, 1955: PROVISIONS, CASES, AND PROCEDURE](https://lawfoyer.in/divorce-under-the-hindu-marriage-act-1955-provisions-cases-and-procedure/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author Name: SHRADDHA PATIL** **Editor Name: Krishna Parmar** **ABSTRACT:** Marriage refers to an institution where two people get involved in a stable and socially permissible relationship legally bound by different personal laws. In the case of Hindus, a marriage is bound by the Hindu Marriage Act, of 1955. The procedures to be followed during the marriage commission are binding on both parties in a Hindu marriage. Similarly, if both parties wish to dissolve their marriage, the procedures to be followed according to the rule of law are formulated in Section 13 of the Hindu Marriage Act, 1955. It lays down nine grounds on which the separation of husband and wife is permitted. Divorce can either be through mutual consent or judicial proceedings when one of the parties does not agree with the terms of marriage. **INTRODUCTION:** The term ‘divorce’ has not been defined in any legal body or act of law, but it pertains to the legal dissolution of a marriage with the use of judicial proceedings and legal machinery. In medieval India, the term divorce was very unknown. With time, there was a need to include divorce in marital rights due to increased awareness regarding human rights and individuality. Before 1955, divorce was denounced due to the notion that marriages were not only to be continued till the death of husband and wife in the real world but also after that. However, changing societal needs created a place for divorce in the Hindu Marriage Act, of 1955. **KEYWORDS:** 1. Hindu Marriage Act 2. Divorce 3. Hindu marriage 4. Grounds of divorce 5. Divorce petition 6. Divorce provisions 7. Divorce case laws 8. Family law **PROVISIONS:** Recently, the Supreme Court said that it may utilize the authority conferred by Article 142, which gives the Supreme Court the power to administer comprehensive justice, to dissolve any marriage, or to issue a divorce judgment if it has irretrievably broken down. People will find it simpler to approach the Supreme Court right away and skip the waiting time as a result. Let’s explore a few of the significant clauses included in the Hindu Marriage Act: **Section 5: Conditions for Hindu Marriage** Marriage may be solemnized between any two Hindus if the below conditions are fulfilled: 1. Both parties should not have a living spouse at the time of marriage. 2. At the time of the marriage, neither party was capable of giving valid consent to it, was unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity. 3. The groom must be 21 years old, and the bride must be 18 years old at the time of the marriage. 4. The parties are not within the degree of a prohibited relationship unless the custom or usage permits it. 5. The parties are not spindles of each other unless custom or usage permits it. **Section 10: Judicial Separation** Section 10 of the Hindu Marriage Act is concerned with judicial separation and the steps required to get a divorce considered legal, such as applying in family court. As per sections 13 (i) and (ii), the petition can mention the cause for the separation and also other sections that may be necessary. **Section 13: Divorce** Section 13 of the Hindu Marriage Act is an entirely separate section, designated for divorce. Under this section are listed various grounds for divorce that are relevant in proceedings for a marriage dissolution. It is important to note that Section 13(2) permits a woman to file for divorce, and Section 13(1) permits both men and women to file for divorce. Clause 1: Any marriage can be dissolved by a decree of divorce on the ground that the other party— 1. **ADULTERY**: has had sexual intercourse with any person other than his or her spouse after marriage 2. **CRUELTY**: caused harm to the petitioner, either physically or emotionally. 3. **DESERTION**: has abandoned the petitioner for a continuous period of 2 or more years before the filing of the petition. 4. **RELIGIOUS CONVERSION**: has ceased to be a Hindu by conversion to another religion 5. **INCURABLE INSANITY**: has been incurable of an unsound mind or has been suffering from a mental disorder 6. **VENEREAL DISEASE**: has been suffering from venereal disease in a communicable form. 7. **SANYASA, or renunciation,** has renounced the world by entering any religious order. 8. **PRESUMPTION OF DEATH**: has not been heard of as being alive for seven years or more. 9. **RESTITUTION OF CONJUGAL RIGHT:** if there has been no resumption of cohabitation between the parties for 1 year or more after the judicial separation or if there has been no restitution of conjugal rights. **Clause 2:** A wife may also present a petition for a decree of divorce because: 1. The husband had either remarried or any of his previous wives were still alive at the time of the solemnization of the marriage. 2. That the husband has been guilty of rape, sodomy (anal sexual intercource), or bestiality (sexual relations between a human being and an animal). 3. That her marriage was solemnized before she turned fifteen years old, and she rejected the marriage after 15 years of age but before eighteen years of age. **Section 13B: Divorce by mutual consent** On the ground that they have been living apart for a year or more and have mutually decided that their marriage should be ended. **Section 14: No petition for divorce is to be presented within one year of marriage.** As per the Hindu Marriage Act of 1955, it is forbidden to dissolve a marriage if a year hasn’t passed since the marriage date. Nonetheless, if the sections and sufficient evidence are submitted with the petition, exceptions may be made. It also takes the birth of a child or children from a marriage very seriously. **Section 15: Divorced persons may marry again.** It is legal for either party to a divorce to remarry after the marriage has been dissolved by a decree of divorce if there is either no right of appeal against the decree, the deadline for appealing has passed without an appeal being filed, or an appeal has been filed but dismissed. **Section 25: Permanent alimony and maintenance** Either of the parties to a divorce may make an application to receive maintenance or support as a gross sum or periodical sum for the lifetime of the applicant, keeping in mind the income and other property of both the respondent and the applicant. If required, a charge on immovable property may also be created. Several factors, such as future expenses, lifestyle expenses, costs of education in the case of children, inflation, medical expenses, etc., may be considered while deciding on the sum. The court may see this as a just order to secure such a payment through the decree of divorce. Such an order may be modified or rescinded by the court if it observes a change in the circumstances of either party. The court may also modify or rescind the order if either party has remarried or has had sexual intercourse outside of marriage. **Section 26: Custody of children** This section talks about the powers of the court to decide upon custody. guardianship, support, and education of children (under the age of 18) after the divorce while considering the interests and wishes of the children. **IMPORTANT CASES:** **Samar Ghosh v. Jaya Ghosh (2007):** In Samar Ghosh v. Jaya Ghosh (2007), the Supreme Court of India discussed the basis of divorce due to cruelty. The court came up with a list of actions that may be concretely categorized as mental cruelty, insisting that marriage dissolution should sometimes be allowed as it all depends on the particular cases and situations involved. **Naveen Kohli v. Neelu Kohli (2006)** In Naveen Kohli v. Neelu Kohli (2006), the Supreme Court of India allowed the divorce on the grounds of an irreconcilable breakdown of the marriage, implying cruelty and incompatibility. The court reiterated the stand that long separation and incompatibility are reasons enough to part, suggesting the legislature exercise wise steps and introduce the cause of irretrievable breakdown as one of the grounds for divorce. **Akanksha vs. Anupam Mathur (2018)** In this case, the Supreme Court remarked that the couple made the choice of a voluntary divorce, and the divorce should not be delayed for six months. Consequently, the court ruled out the six months, and the marriage came to an end. **Sureshta Devi v. Om Prakash (1991):** In the case of Sureshta Devi v. Om Prakash, the Supreme Court ruled that mutual consent for divorce under Section 13B of the Hindu Marriage Act must be continuous until the decree. Due to consent withdrawn by any party even before the decree, the application will not be eligible for the petition. **PROCEDURE:** 1. The husband and wife file a petition in family court, as represented by their respective counsel. This petition comprises all the information about the parties’ separation, their terms, and the pieces of evidence essential for the divorce. 2. The parties are given a date on which they must appear in person before the family court with their respective counsel to go over all the details of the petition, including family histories, properties possessed, the reason for the divorce, child custody (if applicable), identification documentation, and more. 3. Because Hindu marriage is considered sacred and viewed as an indissoluble or permanent relationship, the court may also send both parties to mediation before this to see if there is any possibility of reconciliation. However, the family court’s procedures are followed if both parties reject any chance of reconciliation. 4. The family court has complete power to add or modify conditions following the law if there is any dispute regarding alimony or maintenance amount and agreement, or if there are issues about child custody or visitation rights, after carefully reviewing and verifying all available evidence and statements from both parties. 5. Following this, the first motion is approved, and the parties are given six months to change their minds and see if there is still a possibility to get back together. The time frame may be extended to 18 months from the family court petition date. 6. If both parties attempt to get back together and wish to stay together, they can file an appeal for the divorce to be canceled through legal counsel at this time. If both parties refuse to work things out, the divorce will proceed according to the order, and the parties’ final declarations will be recorded in the second motion. 7. Following the recording of the statement, the spouses sign the entire and final agreement to ensure that there are no future disputes or problems regarding child custody, alimony, or maintenance. 8. The court issues a decree of divorce and declares the marriage null and void once it is satisfied with the arguments made by both parties and determines that there is no possibility of reconciliation in the final motion. **SUGGESTIONS:** In the Hindu Marriage Act, of 1955, there are more grounds for divorce, for example, adultery, cruelty, desertion, conversion, unsoundness of mind, leprosy, venereal disease, renunciation, and presumption of death. These bases are comprehensive; however, they can be put in a new, clearer form with more contemporary problems like emotional abuse and digital infidelity. Even though the Act is silent on the point of “irretrievable breakdown of marriage,” it is increasingly admitted by the courts. A change proposal to put up this cause for divorce would make it easier, and the waiting period for definite proof of such marriages would likely reduce. Although the Act is written in a more gender-neutral way, its application is sometimes gender-biased. It is so important that everyone, women as well as men, be protected by the law. The Autonomous Board supports mediation and conciliation before you proceed with a divorce to help you solve conflicts calmly. Reassessing and boosting the role of the alternative dispute resolution thingies can make it less likely that the divorce trials will lead to an antagonistic situation and will positively affect family reunion efforts. There are many people in the dark as to their rights and responsibilities under the Hindu Marriage Act. An increase in public legal awareness and the provision of easy access to legal support can be major ways to rebuild a person’s understanding of matrimonial disputes. **CONCLUSION:** Since previous generations, divorce has been considered a bad notion. There can be several reasons for a couple to get divorced. In India, these problems have a separate dimension. The culture of India is such that a male or female is considered to be a possession of the foster parents as they nurture the child. Such treatments can be pleasing, but they are also one of the main reasons for the increased number of divorces in India. The other reason may be the communication gap in marriages. Where there is no proper communication, misunderstandings are bound to happen. Both males and females are separate entities in marriage, having their own rights. But some of the rights have to be common for better communication and a successful marriage. Divorces can also happen due to undue influences without the knowledge of both parties, which may take different turns after marriage. Misappropriation at the time of marriage, or hiding the true identity and gender, can also be a reason for the breakdown of the machinery of marriage. **REFERENCES:** **Websites referred:** 1. 2. 3. 4. **Statutes referred:** 1. Hindu Marriage Act, 1955 **Cases referred:** 1. Samar Ghosh v. Jaya Ghosh (2007) 2. Naveen Kohli v. Neelu Kohli (2006) 3. Akanksha vs. Anupam Mathur (2018) 4. Sureshta Devi v. Om Prakash (1991) **Categories:** Articles, Family Law --- ### [Remedies against Marital Rape under BNS, PWDV Act, and Family Law](https://lawfoyer.in/remedies-against-marital-rape-under-bns-pwdv-act-and-family-law/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Ayushi Bral** Edited By: Krishna Parmar **INTRODUCTION** “The meaning and content of the fundamental rights guaranteed in the Constitution of India are sufficient amplitudes to encompass all facets of gender equality….” *-Late Chief Justice J.S. Verma, Supreme Court of India, Vishaka v. State of Rajasthan* Although the Supreme Court and the Constitution of India provide for gender equality, women still face so many cruelties and violence throughout their lives. Women are not safe even in their own homes. They are subject to many forms of violence such as dowry death, female infanticide, sexual crimes such as rape, modesty-related violence, domestic violence, acid throwing, etc. Martial rape is also one of such violence against women. Marriage is a universal social institution. Under Hindu law, it is considered a sacred tie and holy union that can’t be broken. There are certain matrimonial rights and obligations that spouses have towards each other, such as the legal rights and the right to consortium, including spouse company, affection, support, sexual relations, cohabitation, etc. According to the matrimonial law, there is a duty to consummate the marriage that each spouse owes to the other. It is the mutual right to sexual intercourse that continues throughout the entire life till the marriage survives. The willful refusal and incapacitation to the consummation of marriage are grounds for voidable marriage under some personal laws such as the Parsi Marriage and Divorce Act, Special Marriage Act, etc. But it doesn’t mean that one partner can force the other to have sexual intercourse or make unreasonable demands on the other. However, as the patriarchy is prevalent in India, there is a male-dominated society, and they consider women as their property. They considered that there is an implied consent of women when they have sexual intercourse with their wives but no means no even in the case of married life. Most of the women faced marital rape at least once in their life but hardly there is any woman who has reported it. This article deals with marital rape, its causes, its impact, remedies under various statutory laws, etc. **Meaning, Definition & Explanation** The word marital rape comprises two words rape and marital where the word rape is derived from the Latin term “Rapio” which means “to seize”. According to the Cambridge Dictionary, rape means to force someone to have sex by using violence or threatening behavior when they are unwilling.[\[1\]](#_ftn1) Section 63 of The Bhartiya Nyaya Sanhita (BNS) deals with rape which provides that: ***“A man is said to commit “rape” if he—*** ***penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or*** ***inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her do so with him or any other person; or*** ***manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or*** ***applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions: —*** ***against her will*** ***without her consent.*** ***with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.*** ***with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.*** ***with her consent when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.*** ***with or without her consent, when she is under eighteen years of age.*** ***when she is unable to communicate consent.”[\[2\]](#_ftn2)*** Marital means something related to marriage. Therefore, marital rape which is also called spousal rape is a term that is used to describe a heinous act of sexual intercourse committed without a wife’s consent by her wedded husband. It is considered as intimate partner violence which includes forced sex and sexual assault between spouses. Although it is mentioned under exception 2 of section 63 of Bhartiya Nyaya Sahita, 2023, there is no statutory definition of marital rape. It means non-consensual sexual intercourse done by the husband through coercion or without the wife’s consent or with her consent when she is of unsound mind or intoxicated which includes oral, anal, or vaginal acts. **Historical Background** From the ancient period, the women are considered as the property of the men. They were not considered as equal to men. They have no say of their own and must follow their husband in each aspect of their lives. There was a patriarchal society, and women had no sexual or economic freedom. As it was stated by Manu from the very beginning of their life, women depend on someone. In childhood, she depended on her father after that she depended on her husband in youth, and later during old age she depended on her child. Thus, she is not free at all. Women were not provided any autonomy and were always considered inferior creatures. Similar was the condition of the Muslim women. They have no legal status of their own before the advent of Islam. Even after the advent of Islam, the position of women was not that much improved. They were provided with legal status but were only considered inferior to males. As far the divorce is concerned husband can give a divorce to his wife by only saying “You’re divorced”. There is also one of the awful practices under Muslim law is nikah halala which is also known as tahleel marriage in which after being divorced by triple talaq, she has to marry and sleep with someone else and get divorced again to be able to remarry her first husband. Thus, this cruelty against women was there from the very beginning. **Constitutionality of marital rape in India** Under Bhartiya Nyaya Sahita: India is amongst the thirty- six countries that still have not criminalized marital rape.[\[3\]](#_ftn3) Marital rape is not an offense under BNS. Section 63 of Bhartiya Nyaya Sahita deals with rape and marital rape is one of the exceptions under section 63 which provides that if the wife is above 18 years of age, then the sexual intercourse between a man and his wife is not considered rape. Whereas under section 375 of the Indian Penal Code, the age of the wife is above 15 years but non-consensual sexual activity by a man with his wife not above 15 was considered rape. In the case of INDEPENDENT THOUGHT v. UNION OF INDIA & ANR, it was held by the court that sexual intercourse with a girl or wife by a man below 15 years of age whether with or without consent is considered rape.[\[4\]](#_ftn4) This age is increased to 18 years under BNS. Under Protection of Women from Domestic Violence Act, 2005: It recognizes marital rape as a form of domestic violence. Section 3, which talks about the definition of domestic violence, also includes sexual abuse. However, it doesn’t criminalize marital rape in India but only provides for civil remedies. Under personal laws: In matrimonial law, it is a well-established proposition that each spouse owes the other a duty to consummate the marriage. [\[5\]](#_ftn5)It was held in the case of Srikant v. Anuradha, AIR 1980, that the mutual right to sexual intercourse continues throughout the entire period of marital life. But it must be exercised reasonably. [\[6\]](#_ftn6)The willful refusal and incapacitation to the consummation of marriage are grounds for voidable marriage under some personal laws such as the Parsi Marriage and Divorce Act, Special Marriage Act, etc*.* In the case of Sidhava Saiah v. Laxma, AIR 1958 Mys 115, the court held that perverted or otherwise unreasonable demand of the spouse doesn’t bind the other spouse especially when it impairs the health.[\[7\]](#_ftn7) However, the exception to marital rape as provided under BNS/ IPC is applied to both Hindus, Muslims, and others. **Status of marital rape in other countries** The status of criminalization of marital rape is concerned, about 150 countries as of 2019 have criminalized marital rape in their own countries which includes 50 states of the US, UK, South Africa, Canada, etc. The countries that have not criminalized marital rape are Pakistan, China, Sri Lanka, Bangladesh etc. **Causes** There are many causes of marital rape. Following are some of the causes of marital rape: Patriarchal structure: It is one of the main reasons which is responsible for marital rape. Patriarchal structure means a society with male dominance where the female is only considered as the property of the male. She has no say in the home affairs and has no sexual and economic freedom. The man considered her as property that he could use in any way. Man considers his wife as the object of desire. Thus, the husband doesn’t talk about any consent before sexual intercourse with his wife and considers it as his right. Norms and beliefs of the society: It is believed that the consummation of the marriage is one of the duties of a spouse. Due to this reason, the wife considers it as her duty and doesn’t raise her voice against it. Marriage as a sacred institution: marriage is considered a sacred and holy institution. A woman considers her husband as her entire world. She believes that he absorbs her identity and life and considers her body to belong to her husband. No legal recognition: India is one of those countries which haven’t criminalized marital rape. Under BNS/IPC, marital rape only comes under the exception of rape. Thus, this gives the husband the push to do such a heinous act. Shame and stigma of society: All the women have faced marital rape once in their lives but still they didn’t report it about of stigma of the society and the fear of shame. This led to an increase in such cases as no voice was raised against it. Lack of awareness: Females are not aware that much that they can be able to raise their voices. They are unaware of their fundamental and other legal rights. Lack of economic resources: Most of the women in India are dependents. Some depend upon their parents (father), some upon husbands, and the rest upon their sons. Thus, they are not economically able to raise their voice against it and become the victims of this violence. No sex education: India is one of those countries where no sex education is provided in schools or colleges. **Effects** Impact on mental health: When a woman is sexually abused, she gets frustrated and develops a feeling that her life is meaningless and useless. Women are too emotional, particularly about purity of sex and hence when they are sexually abused, they get a severe emotional shock resulting in depression and frustration. Depression, anxiety, and post-traumatic stress disorder are results of the marital rape. Low esteem: It led to a decrease in self-esteem of the women. Isolation: She starts living in isolation from his husband as a result of marital rape out of fear and shame. Physical injuries: As it was the forced sex, many times it led to injuries on the vagina, anus, urethra of the wife. Her husband did it very brutally under intoxication and he also beat her while forcing her. Effect on children: The children who witnessed such an act were also affected by it. This is a mental childhood trauma that affects them in many ways such as causing them depression, and anxiety and motivating them to become criminals in the future as it is a faulty socialization. **Case laws** In the case of Harvinder Kaur vs. Harmander Singh, the Court held that Intervention in household matters is the destruction of the institution of marriage and thus the constitution of India could not intervene in it.[\[8\]](#_ftn8) In the State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar, The Supreme Court asserted the right of privacy of women which must not be violated.[\[9\]](#_ftn9) Then in Shri Bodhisattwa Gautam vs. Ms. Subhra Chakraborty, the Supreme Court held that rape is a violation of Article 21 of the Constitution of India.[\[10\]](#_ftn10) Justice Verma Committee had suggested about criminalization of marital rape, after the Nirbhaya rape case in 2012. But it was only a suggestion that the government of India did not so implement. In 2016, Maneka Gandhi, then minister for Women and Child Development stated that marital rape could not be implemented in India due to illiteracy and poverty. Then came the landmark case of 2017, Independent Thought vs. Union of India in which the Supreme Court of India ruled about the age of the wife to come under exception 2 of section 375.[\[11\]](#_ftn11) Recently in the case of X V. The Principal Secretary, Health and Family Welfare Department, Govt. Of NCT of Delhi & Anr., the court held That the woman is not compelled to continue with unwanted pregnancies caused due to marital rape and she can seek abortions as provided under the Medical Termination of Pregnancy Act.[\[12\]](#_ftn12) **Remedies** The following are the remedies that can help in decreasing the rate of marital rape in India: Increasing the awareness as to marital rape: Most of the females are not aware of their rights as to consent. By making her aware that marital rape can be tackled. Economically stable: The government must aware girls of the importance of education and must make schemes to pay skilled and unskilled jobs so that they can become economically stable and take action against their husbands. Criminalization of marital rape: By declaring marital rape as one of the offenses under Bhartiya Nyaya Sahitya. The husband must be punished by removing it from the exception as provided in Exception 2 of Section 63 of BNS. Sex education: By promoting sex education one can able to know more about it as people in India avoid talking about it in public. The wife will not feel shame in raising her voice against his husband. Change in the beliefs in the society: Bringing change in belief in the society according to the needs of the society is required. **CONCLUSION** It can be concluded that violence against women has always remained widespread such as rape, acid attack, etc. Marital rape is also one among them. Legal recognition must be provided for the marital rape to decrease the cases of it in India. The criminalization of marital rape is the need of the hour. The husband needs to understand the fact that no means no. The consent of the wife is required as it is a violation of articles 14 and 21 of the Constitution of India. Therefore, there is a need to change the law, so as to amend Section 63 of BNS in order to comply with articles 14 and 21. **REFERENCES** **Books / Commentaries / Journals Referred** Paras Diwan: Hindu Law. **Online Articles / Sources Referred** Manupatra, “Articles – Manupatra” *available at*: https://articles.manupatra.com/article-details/Marital-Rape-and-Law (last visited August 9, 2024). PTI, “NCRB data: India witnessed 86 rapes every day, 46 offenses against women every hour in 2021” *Financialexpress*, 31 August 2022. **Cases Referred** - Yotish v. Meera, AIR 1970 Cal 266; Srikant v. Anuradha, AIR 1980 - Sidhava Saiah v. Laxmane, *AIR 1958 Mys 115* - Harminder Kaur vs. Harmander Singh AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187 - State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar AIR 1991 SC 207, (1991) 1 SCC 57 - Shri Bodhisattwa Gautam vs Ms. Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490 - Independent Thought vs UOI, (2017) 10 SCC 800: AIR 2017 SC 4904 - X V. The Principal Secretary, Health and Family Welfare Department, Govt. Of NCT of Delhi & Anr., X V, 29 September, 2022. **Statutes Referred** - Section 63, Bhartiya Nyaya Sahitya, 2023. - Section 375, Indian Penal Code, 1860. - Protection of Women from Domestic Violence Act, 2005. [\[1\]](#_ftnref1) Cambridge Dictionary, “rape” *translate English to Hindi – Cambridge Dictionaryavailable at*: https://dictionary.cambridge.org/dictionary/english-hindi/rape (last visited August 8, 2024). [\[2\]](#_ftnref2) Section 63, Bhartiya Nyaya Sanhita (2023) [\[3\]](#_ftnref3) Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016. [\[4\]](#_ftnref4) Independent Thought v. UOI & Anr.( AIR 2017 SC4904) [\[5\]](#_ftnref5) Paras Diwan: Family Law [\[6\]](#_ftnref6) Yotish v. Meera, AIR 1970 Cal 266; Srikant v. Anuradha, AIR 1980 [\[7\]](#_ftnref7) Sidhava Saiah v. Laxmane, AIR 1958 Mys 115 [\[8\]](#_ftnref8) Harminder Kaur vs. Harmander Singh AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187 [\[9\]](#_ftnref9) State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar AIR 1991 SC 207, (1991) 1 SCC 57 [\[10\]](#_ftnref10) Shri Bodhisattwa Gautam vs Ms. Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490 [\[11\]](#_ftnref11) Independent Thought vs UOI, (2017) 10 SCC 800: AIR 2017 SC 4904 [\[12\]](#_ftnref12) X V. The Principal Secretary, Health and Family Welfare Department, Govt. Of NCT of Delhi & Anr., X V, 29 September, 2022 **Categories:** Articles, Criminal Law, Criminal Procedure Law, Family Law, Human Rights --- ### [Constitutionality of Section 303 IPC & Capital Punishment](https://lawfoyer.in/constitutionality-of-section-303-ipc-capital-punishment/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Name: Ishan Mishra** **Edited By- Biraj Kumar Sarkar** **Constitutionality of Section 303 IPC & Capital Punishment** **INTRODUCTION** A person accused of any crime until & unless convicted just like the other citizens has the complete right to live with dignity as is enshrined & provided by the Constitution of India. The expression “Capital Punishment” is the most extreme type of punishment. The constitutional validity of section 303 of the former Indian Penal Code of 1860 which states the provision or mandates the death penalty for certain offenses being committed by a person already serving a death sentence has undeniably been a subject of significant ethical & legal debate in India. Don’t such provisions raise some critical questions about the principle of justice, human rights, & the state’s role in administering such capital punishment? However, some of the maxims like “**actus non facit reum, nisi men sit rea”**, **“culpae poene par esto”, and “dura lex sed lex”** which relates to “an act doesn’t make one guilty unless the mind is also legally blameworthy”, “the punishment should be proportionate to the crime” & “the law is harsh, but it is the law” respectively. The other term or way to address section 303 can be termed Capital punishment, the context of which in itself is often viewed as a controversial or a divisive issue. However, it is argued that it serves as a deterrent against some of the heinous crimes such as rape & murder & delivers justice for the victims & society. But on the converse, it is contended as an irreversible & and inhumane punishment that doesn’t effectively deter crime & disproportionally affects marginalized communities. Section 303 of the Indian Penal Code’s constitutionality has been challenged on many grounds, inclusive of its compatibility with the fundamental rights as enshrined in the Constitution of India, particularly the right to equality & right to life that is article 14 & 21 of the constitution respectively. The Supreme Court of India, however, has addressed these concerns & emphasized the need for a comprehensive evaluation of the implications of the death penalty within the framework of such constitutional rights. ***Keywords* :** **Section 303 IPC, Constitutionality, Capital Punishment, Death penalty, Human rights, justice, Deterrent effect, Fundamental rights, Right to equality, Right to life** **Meaning, Definition & Explanation** The meaning & or the definition of Section 303 of the former Indian Penal Code is something that pertains to the punishment for a person who has committed an offense of “Murder” while already serving a life sentence. This section states that if a person who is sentenced to life imprisonment commits an offense of murder, then they shall be punished with a death sentence also known as Capital Punishment. In the legal context, its explanation goes like “A section that was introduced to deter prisoners already serving life sentences from committing further crimes like murder particularly. The rationale is to maintain order within prisons & protect society from repeat offenders. However, the constitutionality of this section (303) has been subject to certain challenges primarily on the grounds of: **Article 14(Right to Equality/Everyone’s equal before the law)** & **Article 21(Right to life & personal liberty)** However, the constitutionality of section 303 IPC has been upheld by the Supreme Court further emphasizing that the legislature has the authority for prescribing different punishments for different categories of crimes & offenders. Whereas “Capital Punishment” can or may be defined/explained as a state-sanctioned execution of a person as a punishment for a crime, typically for serious offenses such as those relating to murder or terrorism. **Historical Background / Evolution (if any)** The draft of the IPC was prepared by Thomas Macaulay & was enacted in the year 1860 during British colonial rule. It aimed to provide a comprehensive legal framework for the criminal law in India. Section 303 was included as a means to address the specific issue of repeating offenders, particularly those who were murdered while serving a life sentence already. The rationale behind section 303 was introduced as a means to deter the prisoners from committing further serious crimes and murder especially while one was incarcerated. It was a reflection of the British legal system’s approach to maintaining order & discipline within the prisons. “In all parts of the world death punishment was in presence from the most -old circumstances”. **Capital Punishment’s** history in India can be divided into 2 parts: V1.**Pre-Independence:** The evolution or the inception of the death penalty (capital punishment) can be traced back to the 18th century B.C.E. in the code of King Hammurabi of Babylon, wherein the death penalty was codified for different types of crimes. The ancient texts like the Arthashastra written by Kautilya also outlined various offenses & corresponding punishments, inclusive of death. Also during the medieval period, under the dynasties & empires like that of the Mughals, capital punishment was still prevalent. It was used as a common tool for maintaining law & order & as a deterrent against rebellion & crimes. V2. **Post-Independence:** India gained independence in the year 1947 & the constitutional framework of Article 14 & Article 21 which state equality before the law & right to life & personal liberty respectively retained however, these rights aren’t absolute rights & capital punishment is still permissible by the procedure established by law. The Judiciary has since then upheld the constitutional validity of the death penalty through several landmark cases, further assisting that it can be imposed in the “rarest of the rare cases”. The Judicial pronouncements were made through the following cases: **“Bachan Singh Vs.** **State of Punjab” (1980)** This landmark judgment by the Supreme Court upheld the constitutional validity of the death penalty & had laid down the “rarest of the rare” doctrine for its application. **“Macchi Singh Vs. State of Punjab” (1983)** This case kept in mind the end goal to further illustrate the rarest of the uncommon cases that the circumstances where the use of the death sentence could be legitimized. **Country Status of Capital Punishment Key Features Comparison to Section 303 I.P.C** **United States of America** It is legal in many states here. Some of the states have abolished it, while it is still rigorously enforced by other states. Similarly, it allows for the death penalty for serious crimes, but it lacks a specific provision for the repeating offenders. **United Kingdom** In the United Kingdom Capital Punishment was abolished in the year 1965. It was abolished for murder, with no return to it since The United Kingdom, unlike section 303 does not have any provision for capital punishment. **Japan** It is legal but is rarely used. The death penalty does exist, with the executions carried out in secrecy. Similar to that of the United States of America. **China** It is widely used. Thousands are annually executed, for a range of crimes inclusive of non-violative offenses. The application is more extensive for capital punishment as compared to India’s focused approach. **Saudi Arabia,** It is legal & frequently applied. Public executions are used for a range of offenses inclusive of theft & drug trafficking. It is more expansive in scope than in comparison to section 303, applied to various crimes beyond that of murder. **Germany** abolished it in the year 1951. It was strongly opposed as it was violative of the Human Right. It wasn’t equivalent to section 303 since capital punishment was completely abolished. **India** It is legal but with certain restrictions. Here the death penalty is reserved for the “rarest of the rare cases”, and specific criteria are added for life sentencing offenders. In comparison to other nations, it has a unique focus on repeating offenders. **3 Causes / Effect Relation with other Concepts** 1. **Deterrence Theory** **Cause:** Inclusive of section 303, the rationale behind capital punishment is often rooted in the belief that such severe penalties deter crime. **Effect:** The deterrence theory influences public policy & judicial decisions, as some lawmakers may argue that such harsher punishments prevent future offenses, particularly among those repeating offenders. 1. **Human Rights** **Cause:** Significant human rights concerns have been raised through the imposition of capital punishment, particularly regarding the right to life & right to fair trial. **Effect:** Human Rights Advocacy has led to calls for the abolition of the death penalty in many countries further influencing legal reforms & public opinion. 1. **Rehabilitation Vs. Retribution** **Cause:** This debate between rehabilitation & retribution is quite central to discussions about capital punishment & section 303 of the I.P.C. **Effect:** Countries that prioritize rehabilitation tend to abolish capital punishment, while those emphasizing retributive justice may retain it, influencing their legal systems & correctional policies. 1. **4 Judicial Discretion** **Cause:** Section 303 application & capital punishment often involve such judicial discretion, where judges assess the circumstances of the crime & the background of the offender. **Effect:** Such discretion can also lead to some inconsistencies in sentencing & or raise concerns about equality before the law & potential biases in the judicial process. 1. **Public Opinion** **Cause:** Societal attitudes towards crime & punishment are influenced significantly by the acceptance or rejection of capital punishment. **Effect:** Legislative changes may be swayed by such public opinion, which will lead to either the abolition or the reinforcement of the capital punishment laws, including provisions like that of section 303. 1. **International law & treaties** **Cause:** The International Human Rights treaties, such as the International Covenant on Civil & Political Rights do advocate for the abolition of the death penalty. **Effect:** The countries that are signatories may feel pressured to reform their laws regarding capital punishment, also affecting how laws like section 303 are viewed & implemented. **Types / Kinds** Capital punishment can of certain types such as: 1 **Mandatory death penalty:** In certain jurisdictions, the death penalty is automatically imposed for certain specific crimes, with no discretion for judges. 2 **Discretionary death penalty:** There are many jurisdictions where the judges have the discretion to impose the death penalty based on the case specifics. 3 **Execution methods:** Various methods of execution are employed by different countries, which include hanging, lethal injection, and electrocution. **5 Forms / Modes** **Forms of section 303 can be:** 1. **Statutory form:** Section 303 in the I.P.C. is a specific legal provision that prescribes the death penalty for a murder committed by any person serving a life sentence. 2. **Judicial interpretation:** Section 303 has been interpreted by the court in various cases, which leads to different applications based on judicial discretion. **Modes of Capital Punishment are:** 1. **Legal framework:** Capital punishments are operated within a legal framework that outlines the crimes punishable by death & the procedures for trials & sentencing. 2. **Execution Methods:** Various methods are used to carry out capital punishment, which can include: - **Hanging:** This is traditionally used by India, along with other countries. - **Lethal Injection:** It is a common method adopted by the United States which involves a series of drugs administered to cause deaths. - **Electrocution:** It is an alternative to lethal injection which is used in many jurisdictions. 1. **Procedural Modes:** It is defined as a process which leads to capital punishment & includes: - **Trial Process:** It is the legal proceeding that determines the guilt & or the eligibility for the death penalty. - **Sentencing Phase:** It is a separate phase in some jurisdictions where the judge decides on the death penalty. - **Appeals Process:** The opportunities for the convicted person to appeal the sentence, can prolong the execution process. **Essential & elements of section 303 are:** - **Existence of a life sentence:** The offender must be serving a life sentence for a previous conviction. It establishes the context under which the section applies. - **Commission of Murder:** The committed act must qualify as murder under the IPC. Intentional killing is also included in the definition of murder, which needs to be proven in court. - **Intent & Malice:** The offender must have the intention to kill or cause such bodily injury which is likely to cause death. **Pre-requisites for section 303 are** - **Previous Conviction:** There should be a record of a previous conviction that led to a life sentence. - **Sufficient evidence:** Due process must be followed & there should be adequate evidence to support the charge of murder. **Essentials & elements of Capital Punishment:** - It must be established by law, specifying the crimes punishable by death. - The crime should be classified as a Capital offense, typically involving severe harm or a threat to society. - The legal process must adhere to principles of due process, inclusive of fair trial rights. - There are many jurisdictions, where a separate sentencing phase determines whether or not the death penalty will be applied. **The prerequisites of capital punishment are:** - The individual must have been convicted of a crime qualifying for the death penalty under the applicable law. - The individuals should have the opportunity for appeals & legal challenges relating to the death sentences. - The death penalty sentences are often reviewed by the Higher Courts to ensure the legality & appropriateness of the sentence. **Defences / Exceptions / Exceptions to Defences** - It can be argued by the accused that they didn’t have any intention to kill or cause such an injury that is likely to cause death. - The defense of self-defense or insanity can also be claimed by the accused if the act was done in that manner. **Legal Provisions / Procedure / Specifications / Criteria** The certain legal provision & or the specification that is related to Section 303 is the definition of murder as it is provided in Section 299-300 of the Indian Penal Code, specifying what constitutes murder & how it is distinguished from culpable homicide & the legal provision & or the specification for that of the capital punishment are in the context of article 21 of the Constitution of India which has the implications for the capital punishments imposition, along with section 368 of the Cr.PC that gives the power to High Courts for the trials inclusive of capital punishment. **Guidelines / Rules / Regulations / Notifications / Circulars** The guidelines that were issued through the landmark judgments have been discussed further in the articles. Further, the Supreme Court had emphasized the right to legal representation in capital punishment cases particularly which ensured that the defendants had access to qualified legal counsel. **Case Laws / Precedents / Over-rulings / Judicial Development of the Concept** In **Bachan Singh Vs. State of Punjab** the Supreme Court had held up the constitutional validity of section 303 of the IPC further stating that it is not violative of article 21 of the Constitution of India if it is being applied legally. It was in this case that the court had established the principle that in the “rarest of the rare cases” only such death penalty shall be imposed or applied. This judgment also provided the judges with some guidelines to consider when deciding whether the death penalty needs to be imposed, including the circumstances of the crime, the character of the criminal & the impact it has on society. Simultaneously in **Macchi Singh Vs. The state of Punjab** again the validity of section 303 was upheld by the Supreme Court which provides for the death penalty for a convicted person in case of a murder if they had been convicted for the same previously. This judgment reiterated the “rarest of the rare cases” doctrine which was established in the case of Bacchan Singh. **Interpretations / Explanations** The interpretation of context can be that section 303 of the IPC provides a framework for the imposition of the death penalty on habitual offenders, but the application of which is a subject of judicial scrutiny, human rights considerations, public sentiments & the principles of justice. **Doctrines / Theories** **Rarest of the rare case doctrine:** This doctrine was established in the case of Bachchan Singh which stipulates that the death penalty being imposed should only be in the rarest of the rare cases which means that the case is so heinous that it shakes the collective consciousness of the society. **Retributive Justice theory:** This theory deals with the ‘righting of the balance’. If a criminal has done a wrong towards a person or property they need to be given a penalty in a manner that balances out the wrong done. E.g.- If a person has committed a murder, he can be delivered capital punishment to balance out the suffering caused to the victim & their family. **Deterrence Theory:** It serves as a major tool in maintaining the general law & order in society. Criminal acts are penalized to deter individuals from repeating them or even entering into them in the first place. **Maxims / Principles** **“actus non facit reum, nisi mens sit rea”** which translates to “an act doesn’t make one guilty unless the mind is also legally blameworthy”. **Future Implications** - The current debates about the effectiveness of the death penalty may lead to some amendments in section 303 or may even result in its repeal. - Advocating for the abolishment of capital punishment globally may create pressure on India to reconsider its stance on such death penalty. - As the awareness of the public of criminal justice issues grows, societal attitudes towards capital punishment can shift potentially. **CONCLUSION & COMMENTS** To conclude though this section of capital punishment is somewhere being violative of the fundamental rights such as articles 14,19,20,21,22 that are enshrined & provided to every citizen of India through the Constitution of this very country. It can be an unending debate whether capital punishment should completely be abolished or should be used depending on the case if it falls in the category of heinous offenses such as those murder, rape, terrorism, or treason. In the end and as a personal opinion, it should be used depending on the case because if the person committing an offense of the same nature after the conviction for the same is indicative of the level of hatred one could possess, such hardcore criminals who in major cases have no shame for their act should be punished accordingly in such a manner so that such repeat offenders have some amount of shame & fear of their lives & that of the applicable law to set a precedent for the society. Lastly, it would be a suggestion that resources & efforts should be somewhat towards redirecting the crime prevention & rehabilitation of offenders. **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. Indian journal of criminal law 2. My 12th-class legal studies book 2. **Online Articles / Sources Referred** - . 1. [https://www.researchgate.net/publication/361025100\_A\_Study\_of\_Capital\_Punishment\_in\_India](https://www.researchgate.net/publication/361025100_A_Study_of_Capital_Punishment_in_India) 2. 3. https://lawctopus.com/clatalogue/clat-pg/case-analysis-bachan-singh-v-state-of-punjab/ 3. **Cases Referred** - . 1980 AIR 473 1. 1983 SCC 470 4. **Statutes Referred** - . Indian Penal Code of 1860 1. Constitution of India,1950 2. Criminal Procedure Code, 1973 **Categories:** Articles, Criminal Law, Criminal Procedure Law --- ### [Bail in PMLA Cases: Important Provisions and Case Laws](https://lawfoyer.in/bail-in-pmla-cases-important-provisions-and-case-laws/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Name: Kajal Jain** **Edited by- Biraj Kumar Sarkar** **INTRODUCTION** **“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”**[\[1\]](#_ftn1) Recently on June 21, the ED (Enforcement Directorate) moved to Delhi court opposing Kejriwal’s release, and the High Court dismissed his bail application. Kejriwal was arrested by the ED on 21 March on the grounds of violation of Section- 19 of PMLA 2002.[ \[2\]](#_ftn2)and after that, he was granted interim bail in the Liquor Policy case till June 1, 2024, to campaign for Lok Sabha elections, currently, he is still jail. **Meaning, Definition & Explanation** Bail is a temporary release of an accused of a crime in exchange for Security (money etc). There are commonly three types of bail- Regular, Interim, and Anticipatory. Regular bail is for a person who is under arrest or in the custody of the police, it’s under sections “437 and 439 of CrPC”[\[3\]](#_ftn3). Interim bail is granted for a short period and is granted before the regular and anticipatory bail. Anticipatory bail is given either by session court or High court and is filed by the person who is perceived that he may get arrested. Kejriwal was granted Interim bail and it’s almost impossible for someone to get bail under PMLA due to its twin conditions, an accused can still get bail if he can produce evidence proving that he is not guilty and that he is not likely to commit any offense during the period of bail. Section 45 of PMLA Prevention of Money Laundering Act, 2002 was enacted in 2003, it came into existence to combat money laundering cases. It has three main objectives- to control and prevent money laundering, to seize and confiscate property obtained by money laundering, and to deal with other issues related to money Laundering. **Section 45 of PMLA (Prevention of Money Laundering Act)-** - Bail is not a rule but an exception under PMLA and it states that only the apex court can grant bail in such a provision. - It is mandatory to hear the public prosecutor in all bail applications when the prosecutor opposes the bail. Section 45:” According to Section 45 of the PMLA, -bail can be granted to an accused in a money laundering case only if twin conditions are satisfied- there should be prima facie satisfaction that the accused has not committed the offense and that he is not likely to commit any offense while on bail”[\[4\]](#_ftn4) The conditions of the Bail Provision of PMLA are stated under Section 453 which states conditions for bail and there are stringent norms applied in it. The two conditions are also known as the twin test. Section 45 **Legal challenges** - 2017 ruling “Nikesh Tarachand Shah vs Union of India”[\[5\]](#_ftn5)– the court held the twin test provision as unconstitutional as it failed the test of reasonable classification - Finance Act, 2018 [\[6\]](#_ftn6)( Reintroduction of this provision)- The twin test provision was re-introduced which resulted in more legal challenges. **Cases**– - Nikesh Tarachand Shah vs. UOI & ANR In this case Supreme Court struck down section 45(1) of PMLA,2002, and added the two conditions under Part A schedule of PMLA on the offenses that have imprisonment of 3 or more years. The conditions under this provision were that opportunity will be provided to the prosecutor to oppose any application for bail, the court while giving bail must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offenses and he is not likely to commit any offense while being on bail period. The court held that the twin conditions under Section45(1) were discriminatory and arbitrary in nature and should not be applied while granting bail. Application of section 45(1) states that the same offense has been tried under different cases which end up with different results. And while granting bail presumption of innocence is always there, whereas there is no such presumption mentioned in section 45 and it has also inverted the conditions. - Vinod Bhandari v. Assistant Director, Directorate of Enforcement, 2018 [\[7\]](#_ftn7)– It was held that “the contention advanced by the learned ASG cannot be accepted. It is to be further noted here that, the original Sub-[section 45(1) (ii)](https://indiankanoon.org/doc/54577816/) has therefore neither been revived nor resurrected by the [Amending Act](https://indiankanoon.org/doc/1596533/) and, therefore, as of today there is no rigor of said two further conditions under the original [Section 45(1)(ii)](https://indiankanoon.org/doc/54577816/) of PMLA Act for releasing the accused on bail under the said Act.”4 (Challenges the applicability of twin conditions under section 45(1) PMLA post amendment. - Vijay Mandanlal Choudhary vs. UOI,2022[\[8\]](#_ftn8) The court emphasized the perception of parliament regarding the seriousness of money laundering and its threats to national sovereignty and integrity. The court upheld a special provision of PMLA, including the “twin bail condition” under Section- 45 of the Act, which was struck down. - Chidambaram vs. ED, 2019[\[9\]](#_ftn9) In this case, the Court laid down the guidelines that must be considered while refusing or granting bail. Triple Test- (i) Presence of Accuse, (ii) Nature of Evidence, and (iii) Deep roots. - Current Position- The twin test must be strictly applied to all courts in both regular and anticipatory bail. **Anti-Money Laundering Provisions worldwide** Money Laundering is a global concern that affects both society and the economy and to prevent this, these countries globally have anti-money laundering provisions – - In **the US**, to combat money laundering cases “FinCEN (Financial Crime Enforcement Network)” was established, and “AML (anti-money laundering )” laws are very stringent in the US. - In **Singapore**, AML is governed by” the MAS (Monetary Authority of Singapore)” and it is committed to combating money laundering - In **the Philippines**, Anti-money laundering regulations are governed by “AMLA (Anti Money Laundering Act)” and there is a separate council “AMLC (Anti-money Laundering Council)” to investigate and prosecute money. - In **Australia**, there is the “(AML/CTF Act) Anti Money Laundering and Counter-Terrorism Financing Act” which governs Money Laundering provisions in Australia - In **the Middle East**, countries are strengthening their Money Laundering provisions. In UAE, it is governed by the “(FIU) Financial Intelligence Unit” and this regulates reporting and other related things to money laundering. - In **the UK**, there is a “(POCA) Proceeds of Crime Act and Money Laundering” Regulation to govern this law and there is a separate agency/ authority- the National Crime Agency for investigating. **CONCLUSION & COMMENTS** To conclude Bail under PMLA is almost impossible to get but it is still possible to get and courts have made various amendments and changes in the bail provisions throughout many years and changes are still going on. Indian laws have this flexible structure and at the same time, it’s rigid which makes it possible for them to change and amend the provisions. It is a complex mixture and interplay of imperative financial crimes and individual rights and liberty, and all forms of government need to equally play their roles in these cases. PMLA has stringent provisions so applying bail provision should be balanced. This balance will enhance the legal framework and also reinforce public confidence. **REFERENCES** 1. **Online Articles / Sources Referred** 1. Indian Kanoon 2. Live law 3. Bar and bench 2. **Cases Referred** 3. Chidambaram vs. ED, 2019 4. Vijay Mandanlal Choudhary vs. UOI,2022 5. Vinod Bhandari v. Assistant Director, Directorate of Enforcement, 2018 6. Nikesh Tarachand Shah vs. UOI & ANR 3. **Statutes Referred** 4. PMLA ( Prevention of Money Laundering Act) 5. CrPC now BNSS **ENDNOTES** [\[1\]](#_ftnref1) https://main.sci.gov.in/jonew/judis/5183.pdf [\[2\]](#_ftnref2)https://indiacode.nic.in/handle/123456789/2036?sam\_handle=123456789/1362 [\[3\]](#_ftnref3)https://www.indiacode.nic.in/bitstream/123456789/15272/1/the\_code\_of\_criminal\_procedure,\_1973.pdf [\[4\]](#_ftnref4) https://www.livelaw.in/supreme-court/pmla-accused-need-not-fulfill-s45-conditions-when-furnishing-bond-after-appearing-before-trial-court-as-per-summons-supreme-court-258075#:~:text=According%20to%20Section%2045%20of,any%20offence%20while%20on%20bail. [\[5\]](#_ftnref5) https://main.sci.gov.in/supremecourt/2017/13393/13393\_2017\_Judgement\_23-Nov-2017.pdf [\[6\]](#_ftnref6) https://dea.gov.in/sites/default/files/frbm\_amendment\_acts\_2018.pdf [\[7\]](#_ftnref7) https://indiankanoon.org/doc/149592740/ [\[8\]](#_ftnref8) https://indiankanoon.org/doc/14485072/ [\[9\]](#_ftnref9) https://indiankanoon.org/doc/42679608/ **Categories:** Articles, Criminal Law --- ### [The Principle of Liquidated Damages: Balancing Compensation and Penalty in Contract](https://lawfoyer.in/the-principle-of-liquidated-damages-balancing-compensation-and-penalty-in-contract/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: Nayan Kumar Agarwal** **Editor: I Sharan** **Introduction** There is a presumption in every contractual agreement that the parties will carry out their share of the duties and obligations stated therein. According to Section 37 of the Indian Contract Act, 1872 (soon to be referred to as the “Act”), parties to a contract are required to carry out or offer to carry out their respective promises, unless the Act’s or another law’s provisions remove or otherwise excuse such performance. This isn’t always the case, though. For this reason, in the event of a “breach” of contract, the parties must have some form of remedy, which allows them to file a lawsuit. The Act contains no definition of a breach; still, according to Section 39, the promisee can end the agreement if one of the parties has either refused to perform or is made incapable of fulfilling his promise in full. However, the tale is not over yet. The Act also provides “compensation” for loss or damage to the party complaining of the breach, since it is common for the other party to suffer losses arising in due course from a party’s non-performance or breach of contract. **What are liquidated damages?** Liquidated damages are the terms used in contracts that specify how much must be paid in the event that a party breaches the agreement. The liquidated losses clause is described as “a contractual provision that finds in advance the measure of losses in case a party breaches the contract” by Black’s Law Dictionary. These clauses are the parts of the agreement that address specific situations in which either party might be found to have violated the agreement. For instance, failure to perform due to a delay, differences in a certain quantity or quality standard, etc. In contracts including these damages, determining compensation is made simple because the parties have previously agreed upon an amount during the contract’s formation. **Section 74 of the Indian Contract Act** The Indian Contracts Act’s Section 74 deals with liquidated damages. According to this rule, the party that is hurt by a breach and is entitled to reasonable compensation, which cannot exceed the amount set forth in the contract, is the one who is listed as payable in the event of a breach, regardless of whether there is a penalty or not. Therefore, the amount represents the upper limit of duty. You can understand it by examining the following examples. ***Essential conditions to claim liquidated damages*** **The presence of a legal contract** First and foremost, there needs to be a legally binding contract between the parties. When both parties freely consent and there is a valid consideration, a contract is deemed legal. The Indian Contract Act of 1872 basically states that a contract must meet every criterion for a valid agreement, including an acceptable offer and acceptance, competent parties, the parties’ purpose to create a legal obligation, valid consideration, a lawful object, etc. **Violation of the agreement** Second, one or more of the contracting parties must violate the agreement. This basically indicates that any clause in the contract must be broken. Put differently, there can be no claim for damages if there isn’t a breach. Additionally, the plaintiff **Clause of Liquidated Damages** A contract indicating such a violation must be secured against a specified sum of compensation. **Reasonable Relationship with the Actual Damage** For the liquidated damages clause to be enforceable, enough reward must be requested. Excessive and unethical agreements are typically rejected by the courts. Therefore, the courts have the authority to lower the award amount to what makes sense under the circumstances. In ONGC v. Saw Pipes Ltd., the Supreme Court ruled that the court must award compensation that is less than the contract’s stipulated liquidated damages and that it must be based on a reasonable assessment of the consequences of the contract’s breach if the claimant (party seeking damages) lacks proof or an honest estimate. **What are Liquidated Damages and Penalty?** If a contract is broken, the party who defaults is obligated to compensate the injured party with liquidated damages and a penalty. Penalty clauses and liquidated damages are two different things. They are not convertible. Even in legal proceedings, these terms are occasionally used the same and lead to errors. Let’s examine the laws that control them in depth as well as the distinctions between the two. Difference Between Liquidated Damages and Penalty** A contract between two or more parties may specify the amount of money that one of them will have to pay. The Indian Contract Act and English Law have different rules on the enforceability of pay in the case of non-performance and the acceptance of that sum as damages. When actual damages are difficult to determine, liquidated damages are presumed to be a fair depiction of losses. Liquidated damages are typically meant to be compensatory in nature rather than remedial. A specific agreement proviso may mention liquidated damages to address cases in which a party suffers losses from resources that aren’t directly related to money. In this case, presuming a Typically, a model serves as a step for planning another item, which may involve talking with experts and outside sources in addition to an organization’s officials. Unknown plans or designs for a product most likely won’t have a fixed market value. This may be true even if the resultant item is not essential to the development and growth of a company. These plans may be regarded as highly sensitive secret innovations of the company. If the schemes were discovered by an irate agent or supplier, it could severely hamper the ability to generate revenue from the delivery of that item. For the purpose of a liquidated damages clause in an agreement, an organization would have to estimate the potential cost of such events in advance. **Liquidated Damages and Penalties in Construction Contracts** This phrase is often seen in contracts related to building. A contractor is liable for paying liquidated damages if the project is not finished on schedule. Liquid losses are due and the employer is not needed to provide proof of the loss incurred. Other Remedies to a Liquidated Damages Clause In addition to asking for damages, the victim may also pursue certain other remedies. End a Contract The opposite party may consider the deal to be rescinded if one party violates it. A contract can be dismissed, which means it can be cancelled. In addition to being released from any duty, the opposite party may pursue damages. A party can cancel a contract in line with section 75 of the Indian Contract Act if he does so lawfully. **Case Law’s** **Kailash Nath Associates v. Delhi Development Authority and Another (2015)** ***Facts*** In this instance, the DDA held a public land auction. Those who won had to put down a certain amount as earnest money, which would be lost if any of the terms and conditions of the auction were broken or not followed. After paying the earnest money and requesting—and getting granted—a longer deadline for the balance, Kailash Naith, the appellant, had the land put up for auction. In order to obtain the specific execution of the contract and a return of the earnest money, the applicant sought the court. ***Issues*** Is it possible that contracts requiring the loss of earnest money in the event of a breach of contract are subject to Section 74 of the Act? ***Judgement*** According to the ruling of the Supreme Court, in cases where a contract includes provisions for liquidated damages, the entire amount of such damages is available only if the party that was harmed suffered damages that were comparable to the set amount of damages. It was also noted that the amount of restitution granted by the court could not, under any situation, go beyond the sum specified in the contract. In this case, the court held that the appellant had not broken any terms of the contract, hence no fine could be applied to cause the earnest money to be lost in accordance with Section 74 of the Act. When there is no damage and a breach occurs, the law does not provide for a windfall. Sir Chuni Lal Mehta & Sons v. Century Spinning and Manufacturing Co., AIR 1962 SC 1314** ***Facts*** This case nervous a managing agency agreement for the sale of goods in which the respondent in error terminated the agreement before the agreed-upon period could expire. As a result, the appellants filed a lawsuit to recover damages for breach of contract, based on the agreed-upon amount. ***Issue*** The computation and legality of damages for a breach of contract were in question. ***Judgement*** It was noted that in cases where both sides have expressly stated in writing the number of liquidated damages, there cannot be a presumption that they also intended to give the plaintiff liberty to exceed the amount specified and replace a sum that could not have been determined or found on the date of the breach. The court went on to say that the general law naturally excludes the right to damages claims because the payment is provided for in clear terms. As a result, the buyer’s breach of contract gave rise to the seller’s right to damages, which included the difference between the contract price and the used price. **CONCLUSION & COMMENTS** Including a provision for liquidated damages helps the overall efficacy of the contracts in the rapid pace of contemporary business and commerce, when time and resources are crucial. Because all potential effects of breaching the contract have been thoroughly considered and agreed upon, the contracting parties can now engage in agreements with more confidence. These kinds of provisions encourage openness and, in the end, mutual trust between the parties. Yet it’s critical to comprehend that the contract must have a precise and fair provision for liquidated damages. The necessity for careful writing is further underscored by the possibility that certain terms would be ruled void by the courts for being unclear or requiring high expenses. Thus, courts and those who design contracts need to **REFERENCES** - The Indian Contract Act, Mulla, LexisNexis, - The Indian Contract Act, Bare Act, Universal - - Contract & Specific Relief, Avatar Singh - - **Categories:** Articles, Contract Law --- ### [Tussle between patent rights and compulsory licensing in pharmaceutical industries: provisions cases and solutions](https://lawfoyer.in/tussle-between-patent-rights-and-compulsory-licensing-in-pharmaceutical-industries-provisions-cases-and-solutions/) **Published:** September 1, 2024 **Author:** LawFoyer **Content:** **Author: C Thiruvikram** **Edited by: Shadrack Chai** **INTRODUCTION:** Both the concepts of compulsory licensing and patent rights have their differences and usages. Yet there is lately a large worldwide struggle/tussle between patent rights and compulsory licensing. A patent right is nothing but the ownership of any medicine that is invented and the compulsory license of the person to whom the right to manufacture and sell is given by the patentee to another person who could be beneficial by distribution along with the inventor or the actual owner of the patented product. In this following article, you will find the true concept of patent rights and compulsory licensing and its prerequisites how to granted a patent right and grant of compulsory license in compulsory licensing. ***Keywords*: IPR, patent rights, compulsory licensing, pharmaceutical industries, medical patents, product patents.** SUB-HEADINGS** **Meaning, Definition & Explanation:** PATENT RIGHTS: These are the rights that are granted to the patent holder, i.e., the pharmaceutical company, where they could prevent the production and selling of this patented product for over the limit of 20 years. It allows the patent holder to recoup investments in their research and development, and it encourages innovation by providing them a temporary monopoly. COMPULSORY LICENSING: It is a provision that the government uses which grants the third party to sell the patented product without the prior consent of the patent holder for the particular patented product. These are typically invoked when there are public health emergencies/ national crises/ when the patented product does not meet its required demand for the particular drug. But to grant compulsory licensing there a required royalties that need to be paid by the license holder to the patent holder. By this, it aims to balance the patent rights with the public interests and ensure access to essential medicines while incentivizing innovation. **Essentials Elements / Pre-requisites of compulsory licensing:** There are a few prerequisites which are essential for compulsory licensing, which are as follows: **Patent protection**: The drug or invention must be patented in the country where compulsory licensing is sought. **Public interest**: Compulsory licensing is usually invoked to address a public health need, such as: Epidemics (e.g., HIV/AIDS, COVID-19) Pandemics National health crises Unmet medical needs Access to essential medicines **Insufficient supply or access**: The patent holder must be unable or unwilling to meet the demand for the drug, leading to: Shortages High prices Limited availability **Attempts to negotiate**: The government or applicant must demonstrate efforts to obtain a voluntary license from the patent holder, which were unsuccessful. **National emergency or extreme urgency**: Compulsory licensing may be granted during national emergencies or situations of extreme urgency, such as a public health crisis. **Non-commercial use:** Compulsory licensing is often limited to non-commercial use, such as for public health programs or government procurement. **WTO compliance:** Countries must comply with World Trade Organization (WTO) rules, specifically the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). **Domestic legislation:** The country must have domestic legislation in place to enable compulsory licensing, such as laws allowing for government use or third-party licenses. **Case Laws / Judicial Development of the Concept:** **BAYER CORPORATION V UNION OF INDIA[\[1\]](#_ftn1):-** **Facts:-** In Bayer Corporation vs Union of India (2014), Bayer challenged the Indian Intellectual Property Appellate Board’s decision to grant a compulsory license for its cancer drug Nexavar (Sorafenib Tosylate) to Natco Pharma. Bayer, a U.S.-based company, held a patent for the drug but priced it at ₹2,80,000 per month, making it unaffordable for many patients. Natco sought a voluntary license to sell the drug at ₹8,800 per month but was denied, leading to its application for a compulsory license under Section 84 of the Indian Patent Act. **Issues Raised:-** **Efforts for Voluntary License:** Whether Natco made sufficient efforts to obtain a voluntary license from Bayer before applying for a compulsory license. **Reasonable Requirement of Public:** Whether Bayer’s supply of the drug met the reasonable requirements of the public. **Affordability:** Whether the patented drug was available to the public at a reasonably affordable price. **Working of the Patent:** Whether the patented drug was being worked in India, including through importation. **Adjournment of Application:** Whether the Controller should have adjourned Natco’s application to allow Bayer more time to meet market needs. **Judgment:** The Indian Supreme Court upheld the compulsory license, concluding that Natco had made adequate efforts to obtain a voluntary license. It found that Bayer had not satisfied the public’s reasonable requirements, as the price was prohibitively high. The Court ruled that the drug was not available at a reasonably affordable price and that Bayer’s importation did not constitute sufficient working of the patent in India. The Tribunal’s decision to grant the compulsory license was affirmed, emphasizing public interest and access to essential medicines. The petition was dismissed, reinforcing the balance between patent rights and public health. **NOVARTIS AG v. UNION OF INDIA[\[2\]](#_ftn2):-** **Facts:-** In Novartis AG v. Union of India (2013), Novartis challenged the Indian patent office’s denial of a patent for its cancer drug, Glivec (Imatinib Mesylate). The patent application was rejected because the drug did not meet the criteria of novelty and non-obviousness under Section 3(d) of the Indian Patent Act, which aims to prevent the evergreening of patents by requiring that new forms of known substances demonstrate enhanced efficacy. **Issues Raised:-** **Patentability Criteria:** Whether the interpretation of Section 3(d) of the Indian Patent Act was appropriate in rejecting Novartis’s application. **Public Health vs. Patent Rights:** The balance between protecting public health and the rights of pharmaceutical companies to patent new drugs. **Impact on Access to Medicines:** Concerns regarding how the denial of the patent could affect access to affordable medicines in India. **Judgment:-** The Supreme Court of India upheld the patent office’s decision, affirming that Glivec did not exhibit significant therapeutic efficacy over existing treatments. The Court emphasized the importance of public health and access to medicines, stating that the patent system should not be used to extend monopolies on drugs that do not provide substantial benefits. The judgment underscored India’s commitment to ensuring affordable healthcare while maintaining a robust patent framework. **MERCK KGAA V INTERVET INTERNATIONAL BV[\[3\]](#_ftn3):-** **Facts:-** In Merck KGaA v. Intervet International BV (2010), Merck KGaA, a German pharmaceutical company, filed a patent infringement lawsuit against Intervet International, a Dutch company, over a veterinary vaccine for poultry. Merck claimed that Intervet’s vaccine infringed its patent related to a specific method of producing the vaccine. **Issues Raised:-** **Patent Infringement:** Whether Intervet’s vaccine production method infringed Merck’s patent. **Validity of the Patent:** The validity of Merck’s patent, particularly concerning its novelty and non-obviousness. **Scope of Patent Protection:** The interpretation of the patent claims and whether Intervet’s actions fell within the scope of Merck’s patent rights. **Judgment:-** The court ruled in favour of Merck, finding that Intervet’s vaccine did indeed infringe on Merck’s patent. The judgment reaffirmed the validity of Merck’s patent, emphasizing that the patented method provided a significant advancement in the production of veterinary vaccines. The decision highlighted the importance of patent protection in encouraging innovation within the pharmaceutical industry. **CANADA PATENT PROTECTION ON PHARMACEUTICAL PRODUCTS:-** **Overview:-** Canada’s patent protection for pharmaceutical products is governed by the Patent Act, which provides a framework for granting patents on new inventions, including drugs. The key aspects include the criteria for patentability, the duration of protection, and regulatory considerations. **Key Aspects:-** **Patentability Criteria:** **Novelty:** The invention must be new and not previously disclosed. **Non-Obviousness**: The invention must not be obvious to someone skilled in the field. **Utility**: The invention must have a specific, substantial, and credible utility. **Duration of Patent Protection:** Patents in Canada typically last for 20 years from the filing date, subject to the payment of maintenance fees. This period allows pharmaceutical companies to recoup their research and development investments. **Regulatory Framework:** The Patented Medicines (Notice of Compliance) Regulations allow for a streamlined approval process for generic drugs after the patent expires. The Canadian Intellectual Property Office (CIPO) administers patent applications and grants. **Compulsory Licensing:** Under certain conditions, the Canadian government can issue compulsory licenses to allow others to produce a patented product without the patent holder’s consent, particularly in situations of public health need. **Data Protection:** Canada provides data protection for new pharmaceutical products, ensuring that the data submitted for regulatory approval is not used by competitors for a specified period. **Conclusion:-** Canada’s patent protection framework aims to balance the interests of pharmaceutical innovators with public health needs, ensuring access to medicines while incentivizing research and development in the pharmaceutical industry. **BRAZIL’S MEASURES AFFECTING THE PATENT PROTECTION:-** Brazil’s patent protection framework is primarily governed by the Industrial Property Law (Law No. 9,279/1996), which outlines the legal mechanisms for granting patents, including specific provisions that impact pharmaceutical products. This framework is designed to balance the interests of innovation and public health, reflecting Brazil’s commitment to ensuring access to medicines while encouraging research and development. **Patentability Criteria:-** Under Brazilian law, to qualify for patent protection, an invention must meet three fundamental criteria: novelty, inventive step, and industrial applicability. **Novelty**: The invention must be new, meaning it has not been disclosed to the public before the filing date. **Inventive** **Step**: The invention must not be obvious to someone skilled in the relevant field, which means it should involve a significant advancement over existing knowledge. **Industrial** **Applicability**: The invention must be capable of being used in some kind of industry, ensuring that it has practical utility. These criteria are essential for maintaining a high standard of patent quality in Brazil, promoting genuine innovation rather than mere incremental changes. **Duration** **of** **Patent** **Protection**:- Patents in Brazil are granted for a maximum duration of 20 years from the filing date, contingent upon the payment of annual maintenance fees. This period allows patent holders to recoup their investments in research and development. However, the lengthy examination process at the Brazilian Patent Office (INPI) can lead to delays in the granting of patents, sometimes extending the effective protection period. **Compulsory** **Licensing:-** One of the most significant aspects of Brazil’s patent system is its provisions for compulsory licensing. Under specific conditions, the Brazilian government can issue compulsory licenses to allow third parties to produce a patented product without the patent holder’s consent. This is particularly applicable in cases of public health emergencies or when the patented product is not being supplied adequately to the market. For instance, Brazil has used compulsory licensing to make HIV/AIDS medications more accessible, demonstrating its commitment to public health over strict patent enforcement. **Patent** **Examination** **Process:-** Brazil employs a substantive examination process for patent applications, which can prolong the time it takes for patents to be granted. The INPI evaluates applications for compliance with patentability criteria, and the backlog of pending applications has been a challenge. Efforts have been made to streamline this process, but delays remain a concern for both applicants and the pharmaceutical industry. **Data** **Exclusivity:-** Brazil provides a period of data exclusivity for new pharmaceutical products, typically lasting five years. This exclusivity prevents regulatory authorities from using the clinical data submitted by the original manufacturer for marketing approval of generic versions during this period. This measure is aimed at protecting the investment made by pharmaceutical companies in developing new drugs. **Public** **Health** **Considerations:-** The Brazilian government has consistently emphasized public health in its patent policies. This approach has led to tensions between the government and pharmaceutical companies, particularly regarding access to essential medicines. Brazil’s willingness to utilize compulsory licensing and other measures to ensure access to affordable drugs reflects its prioritization of public health needs over strict adherence to patent rights. **Conclusion:-** Brazil’s measures affecting patent protection illustrate a complex interplay between safeguarding intellectual property rights and addressing public health imperatives. While the framework encourages innovation, it also ensures that essential medicines remain accessible to the population. This balance is critical in shaping Brazil’s pharmaceutical landscape and has significant implications for global health and patent policy discussions. **CONCLUSION & COMMENTS:-** The tussle between patent rights and compulsory licensing in the pharmaceutical industry is a complex and multifaceted issue, reflecting a delicate balance between innovation, access, private interests, and public health. This conclusion summarizes the key aspects of this debate. Patent rights are essential for encouraging innovation in the pharmaceutical industry, as they provide a temporary monopoly for patent holders to recoup investments in research and development. However, excessive patent protection can lead to high drug prices, limited access, and public health concerns. Compulsory licensing, on the other hand, allows governments to grant permission for third-party manufacturers to produce patented drugs without the patent holder’s consent, usually during public health emergencies or when the patent holder is not meeting demand. This mechanism ensures access to essential medicines, promotes competition, and addresses shortages or high prices. The tension between patent rights and compulsory licensing arises from the need to balance these competing interests. Patent holders argue that compulsory licensing undermines their rights, discourages innovation, and sets a dangerous precedent. In contrast, public health advocates contend that compulsory licensing is necessary to address unmet medical needs, promote access, and protect human life. To resolve this tussle, governments, patent holders, and generic manufacturers must engage in constructive dialogue and find mutually beneficial solutions. This may involve: **Voluntary** **licensing** **agreements**: Patent holders can voluntarily license their patents to generic manufacturers, ensuring access while maintaining some control. **Tiered** **pricing**: Patent holders can adopt tiered pricing strategies, offering discounted prices in low-income countries or for public health programs. **Patent** **pooling**: Patent holders can pool their patents, allowing generic manufacturers to access multiple patents and promote competition. **Research** **and** **development** **incentives**: Governments can offer incentives for research and development, such as tax credits or grants, to encourage innovation while ensuring access. **Transparency** **and** **accountability**: Patent holders and governments must ensure transparency in patent applications, licensing agreements, and drug pricing, promoting accountability and trust. In conclusion, the tussle between patent rights and compulsory licensing in the pharmaceutical industry requires a nuanced and context-specific approach. By balancing innovation, access, private interests, and public health, stakeholders can promote a sustainable and equitable solution that benefits both patients and patent holders. 1. **REFERENCES** **Books / Commentaries / Journals Referred** Patent Law- P Narayanan. Patent law cases and materials- A synthesis on India. Intellectual Property Law- Dr.Avtar Singh. Supreme Court on Intellectual Property- EBC Law Journal. **Online Articles / Sources Referred** Indiankanoon.com Legal services.in Ipleaders.com Livelaw. in Scconline. in Casemine. in **Cases Referred** Bayer Corporation v Union of India. Norvatis ag v union of India. Merck kgaa v intervet international. **Statutes Referred** Patents Act, 1970. World Trade Organization. Canada Convention. Brazil Convention. [\[1\]](#_ftnref1) (2016) 5 SCC 473. [\[2\]](#_ftnref2) (2013) 6 SCC 1. [\[3\]](#_ftnref3) \[2010\] EWHC 1973 (Pat). **Categories:** Articles, Intellectual Property Law --- ### [The role of international human rights law in addressing the challenges of climate change and environmental degradation](https://lawfoyer.in/the-role-of-international-human-rights-law-in-addressing-the-challenges-of-climate-change-and-environmental-degradation/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author:Upasana Saikia** **Edited by: Shadrack Chai** **INTRODUCTION** According to Resolution 26/27 of the United Nations Human Rights Council, it is stressed that climate change is a worldwide issue that necessitates a worldwide resolution. The Council urged for global collaboration in enforcing the United Nations Framework Convention on Climate Change (UNFCCC) to help countries address human rights impacted by climate change effects. The Council confirmed that human rights commitments, guidelines, and values can enhance and support global, regional, and local decision-making on climate change, leading to consistency in policies, credibility, and sustainability results. Acknowledging these realities, the Human Rights Council organized a day-long panel meeting on human rights and climate change on March 6, 2015. The meeting focused on the difficulties climate change presents in achieving human rights for all individuals, especially those in vulnerable positions, and the negative effects on countries’ abilities to ensure the right to food. Panellists, including respected speakers from UN Member States, intergovernmental organizations, civil society, and academia, suggested proactive solutions based on rights to tackle climate change. Governments must follow international human rights laws by either performing certain actions or refraining from certain actions to protect the basic rights of individuals and groups. One of the UN’s greatest achievements is the establishment of a universal and enforceable set of human rights laws that are recognized worldwide and can be adopted by all countries. The UN has defined a variety of internationally recognized rights, including civil, cultural, economic, political, and social rights. In addition, it has established procedures to assist and protect these rights and aid countries in meeting their responsibilities. The General Assembly ratified the United Nations Charter and the Universal Declaration of Human Rights in 1945 and 1948, respectively, establishing them as the foundational laws of this organization. From that time onwards, the UN has steadily expanded the scope of human rights legislation to encompass specific obligations for minorities, women, children, individuals with disabilities, and other marginalized communities. As a consequence, these groups now possess rights that protect them from the bias that was previously common in numerous countries. **THE ORIGIN OF THE HUMAN RIGHTS COMMISSION** The creation of the Human Rights Commission did not happen overnight. The UN created the Human Rights Council to safeguard the human rights of all individuals, and the General Assembly approved the “Universal Declaration of Human Rights” on December 10, 1948. The annual celebration of “World Human Rights Day” takes place on 10th December. Following extensive deliberation, it was determined that a National Human Rights Commission would be established in each country to safeguard the rights of individuals. In the same way, the State Human Rights Commission was established to safeguard human rights at the state level. This was how the Human Rights Commission was established. ***Keywords* *(Minimum 5)*: International Human Rights Commission, Climate Change, Right to Life, Right to Self-Determination, Right to Food, Right to Health.** **SUB-HEADINGS** **Meaning, Definition & Explanation** All individuals, regardless of their race, sex, nationality, ethnicity, language, religion, or other characteristics, possess inherent human rights. Human rights include the rights to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, as well as various other rights. Each person has the right to these freedoms without facing any kind of prejudice. The idea of Human Rights is ancient, so it is not a recent concept. When people lived in the forest, they adhered to rules such as the Right to live and Property. Over time, civilization developed and the emergence of law, which was perceived as the leader of a group, led to the establishment of Kings and the formation of a society where Kings ruled and laws were established. In this manner, Human Rights were established as a legal principle. Climate change affects a variety of human rights that are internationally protected, both directly and indirectly. **What is the importance of incorporating human rights into efforts related to climate change? Human rights are legal guarantees that apply to everyone and safeguard individuals, groups, and communities from actions or lack of actions that infringe upon their basic freedoms and rights. Human rights law requires governments (mainly) and other duty-bearers to uphold, advance, safeguard, and meet all human rights. Human rights apply to all individuals and stem from the intrinsic value and equal importance of every person. They are equal, indivisible, interconnected and interdependent, and cannot be relinquished or removed. Additionally, human rights are legally safeguarded and place responsibility on actions and inactions, especially of governments and government officials. There is no doubt now that human-induced climate change has adverse effects on the complete realization of human rights. Climate change significantly affects many human rights, such as the right to life, self-determination, development, food, health, water and sanitation, and housing. The global responses to climate change must follow human rights norms and principles such as participation, transparency, accountability, equity, and non-discrimination. In short, climate change is an issue of human rights and human rights principles should be incorporated into the solution. **Which ethical standards related to human rights are relevant in the climate change scenario?** It is the responsibility of states to uphold, safeguard, encourage, and meet all human rights for every individual. This entails a clear responsibility to avoid potential risks, such as those resulting from climate change. The UN Charter, the Universal Declaration of Human Rights, the ICESCR, and the UN Declaration on the Right to Development emphasize that State human rights obligations necessitate both individual effort and international collaboration. As per the Universal Declaration of Human Rights, all individuals have the right to a social and international system where their rights and freedoms can be fully achieved, and they also have responsibilities towards society. The fundamental principles of human rights, equality, and non-discrimination entail the need to take steps to alleviate the unequal effects of climate change on marginalized populations and ensure that efforts to combat climate change benefit those in vulnerable situations and diminish disparities. Concerns about climate justice, fairness, equity, and access to remedy are heightened by the unequal effects of climate change on individuals in vulnerable circumstances. The Universal Declaration of Human Rights, along with the ICCPR and other human rights agreements, state that individuals who experience human rights abuses have the right to seek appropriate redress. The panel of the Human Rights Council continuously urged for climate justice and prompt action to reduce and adjust to climate change. Prime Minister Enele Sopoaga of Tuvalu emphasized that addressing the human rights. **How can we incorporate human rights into actions related to climate change?** Implementing human rights in actions related to climate change involves using a rights-based approach to policy and development, as outlined in the Declaration on the Right to Development and supported in the UN Common Understanding of a Human Rights-Based Approach to Development Cooperation. Key human rights principles highlighted by the UN Common Understanding include universality, indivisibility, interdependence and interrelatedness, non-discrimination and equality, participation and inclusion, accountability, and the rule of law. It lays out a theoretical structure for development using global human rights principles to enhance and safeguard human rights in every development action. A rights-focused method evaluates duties, disparities, and susceptibilities, aiming to correct biased behaviours and unfair power allocations. It grounds plans, policies, and programs in a framework of rights, as well as duties set by global legal standards. **The key essentials of a human rights-centred approach include:** The primary focus in developing policies and programs should be on upholding human rights. The identification of rights-holders and their entitlements, along with duty-bearers and their obligations, is essential for enhancing the abilities of rights-holders to assert their claims and duty-bearers to fulfil their responsibilities. All policies and programming at every stage should be guided by principles and standards from global human rights law, like the Universal Declaration of Human Rights and fundamental human rights treaties. Any efforts to address climate change, like promoting renewable energy, protecting forests, planting trees, and relocating communities, should prioritize human rights. Affected individuals and communities need to be involved, with no discrimination, in the planning and execution of these projects. They should have the right to due process and to seek redress if their rights are infringed upon. **What measures need to be implemented moving forward?** On February 13, 2015, the Geneva Pledge for Human Rights in Climate Action was introduced, with eighteen States pledging to support the exchange of best practices and knowledge among human rights and climate professionals at the national level. This aims to enhance collective abilities to provide climate change solutions that benefit both people and the environment. The Geneva Pledge is available to all States and is just one of numerous key initiatives focusing on enhancing the comprehension of the connections between human rights and climate change. Throughout the panel discussions, panellists continuously highlighted the significance of this effort, pointing out that enhancing communication between these separate groups is a crucial requirement for further integrating human rights into the climate change conversation. The main goal of these and similar efforts should be to move this conversation from theory to practice, encouraging immediate, urgent actions based on the right to address and adapt to the adverse effects of climate change. Based on earlier research in human rights and climate change, as well as discussions from March 6, 2015, the rest of this report aims to motivate and educate on the importance of incorporating human rights into climate initiatives at COP 21 and beyond. The upcoming section will analyze specific rights impacted by climate change. **THE RIGHT TO LIFE** As per the Universal Declaration of Human Rights, every individual is entitled to the right to life, freedom, and personal security. The ICCPR reaffirms that “every individual has the right” to possess the intrinsic entitlement to life. Every State has agreed to Honor, safeguard, advocate for, and uphold the right to life. At the bare minimum, this means that States are expected to implement proactive steps to avoid foreseeable and preventable loss of life. Climate change represents a danger to human existence. Abul Hassan Mahmood Ali, Foreign Minister. The Minister of Bangladesh labelled this threat as “existential.” **THE RIGHT TO SELF-DETERMINATION** The UN Charter’s Article 1 emphasizes the importance of respecting the “self-determination of peoples”. Additionally, Common Article 1 of the ICCPR and the ICESCR affirm that “every group has the entitlement to self-determination. Due to that right, they have the freedom to decide their political status and to pursue their economic, social, and cultural development without restriction. States are required to acknowledge the self-determination of all people and guarantee they have the resources needed for self-sufficiency. Climate change doesn’t just endanger people’s lives, but also their ways of living, jobs, and the existence of entire communities. **THE RIGHT TO FOOD** The Universal Declaration of Human Rights and the ICESCR both guarantee the right to food. The ICESCR’s Article 11 defends the “basic entitlement of all individuals to live without hunger” and urges countries, both independently and in collaboration with others, to guarantee a fair sharing of global food resources based on necessity. States must uphold human rights, just like they do with all other rights. Uphold, defend, advocate for, and guarantee the human right to food. Additionally, countries have pledged to utilize all possible resources to gradually achieve the right to food and all other rights outlined in the ICESCR. **THE RIGHT TO HEALTH** The right to health for humans is mentioned in the Universal Declaration of Human Rights and Article 12 of the ICESCR, guaranteeing everyone the right to achieve optimal physical and mental health. The Human Rights Council has frequently acknowledged the effects of climate change on the right to health and achieving the best possible level of physical and mental health for maximum satisfaction. The most recent resolution 29/15 of the Human Rights Council includes a call for a panel discussion and a detailed study on how climate change affects the right to health. **The role that can be played by the Resident Coordinator and UN Country Team in advancing the issue**. The Resident Coordinator and UN Country Team must educate government officials, policymakers, National Human Rights Institutions, indigenous peoples, and the general public on the connection between human rights and the environment through training and national awareness campaigns. They ought to enhance the availability of information, public involvement, and access to justice in environmental decision-making, by offering technical and financial assistance. This will hold governments, businesses, and environmental/human rights groups accountable for their impact on the environment and human rights. They need to promote stronger connections between different sectors at the country level, as this can advance sustainable development by merging human rights, social development, economic development, and environmental protection within a coordinated framework. The Resident Coordinator and UN Country Team should support countries in enforcing the guidelines of applicable MEAs, meeting global human rights obligations, and crafting and accepting environmental policies, laws, and regulations to safeguard human rights enjoyment and preserve the environment for present and future generations. UN Country Teams need to enhance their involvement with the human rights mechanisms. To achieve this, they must utilize the thematic knowledge within the HRWG and make use of the coordinating function of the human rights mechanisms to assist Country Teams in collaborating as a unified UN entity and enhancing their ability to tackle the connection between human rights and the environment. They need to be ready to assist nations and public organizations in issuing reports to human rights treaty bodies, the universal periodic review held by the Human Rights Council, and the United Nations Framework Convention on Climate Change regarding human rights and environmental matters. UN Country Teams and Resident Coordinators must work to record how environmental damage and climate change affect human rights, such as the right to development. They should also assist in overseeing the effects of development projects on human rights to determine if these projects are helping people, especially those most at risk of environmental and other dangers. **CONCLUSION & COMMENTS** In recent years, there has been a clearer understanding of the human rights principles that pertain to environmental damage. To safeguard various human rights from environmental damage, human rights organizations have outlined responsibilities for governments to evaluate the environmental effects of planned activities, share environmental information, involve the public in environmental decision-making processes (while upholding freedom of expression and association), and guarantee adequate solutions for environmental disruptions to human rights. States are required to put into place legal safeguards to prevent environmental damage that impacts human rights, even if it is caused by private entities. States don’t need to ban all activities that could potentially harm the environment according to human rights law. They can find a middle ground between protecting the environment and other valid societal interests, as long as it is fair and doesn’t lead to unwarranted violations of human rights. In conclusion, States are obligated to uphold non-discrimination in environmental laws and protect vulnerable groups, like indigenous peoples, from environmental harm. When it comes to climate change, States must fulfil obligations within their territory to safeguard human rights and implement adaptation and mitigation measures as needed. Identifying specific duties for each State concerning the extraterritorial impacts of actions within its jurisdiction is a challenging task. **REFERENCES** **Online Articles / Sources Referred** Human Rights Principles and Climate Change by Knox.pdf Human-Rights-and-the-Environment.pdf JAMR39.pdf COP21.pdf **Categories:** Articles, Environmental Law, Human Rights, International Law --- ### [Mutual Divorce under HMA, 1955](https://lawfoyer.in/mutual-divorce-under-hma-1955/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Happy Kushwah** **Edited by: Shadrack Chai** **INTRODUCTION** Mutual divorce under the Hindu Marriage Act, of 1955, is a legal provision allowing couples to end their marriage amicably. Introduced as a progressive step, it recognizes that not all marriages can succeed, and sometimes, separation is the best option for both partners. Unlike contentious divorces, mutual divorce requires the agreement of both spouses, ensuring a smoother and less stressful process. To file for a mutual divorce, the couple must have lived separately for at least one year and agree that they cannot live together anymore. They file a joint petition in the family court, stating their intention to dissolve the marriage. After a six-month waiting period, which allows for any possible reconciliation, the court grants the divorce if both parties still wish to proceed. This process is designed to minimize conflict and protect the interests of both individuals, especially when children are involved. By promoting cooperation and reducing animosity, mutual divorce under the HMA, 1955, helps couples transition out of marriage with dignity and respect. ***Keywords (Minimum 5)*:** Mutual Divorce**,** Hindu Marriage Act 1955**,** Amicable Separation**,** Joint Petition**,** Family Court **Meaning, Definition & Explanation** Mutual divorce, under the Hindu Marriage Act, of 1955, refers to the dissolution of a marriage by mutual consent of both spouses. It is a legal process that allows a couple to end their marital relationship amicably and with dignity. **Definition:** According to Section 13B of the Hindu Marriage Act, 1955, a mutual divorce is a divorce obtained by a couple through a joint petition filed in the family court, stating that they have been living separately for at least one year and have mutually agreed that the marriage should be dissolved. **Explanation:** The process begins with both spouses jointly filing a petition for divorce in the family court, declaring their mutual consent to end the marriage. This petition must state that they have been living separately for a minimum of one year and cannot live together anymore. The court, upon receiving the petition, grants a six-month “cooling-off” period, during which the couple can reconsider their decision. If after this period, both parties still wish to proceed with the divorce, they appear before the court for a final hearing. The court, upon verifying the genuineness of the mutual consent and ensuring that the settlement terms, if any, are fair, grants the divorce decree. This procedure ensures a non-adversarial and less stressful process for both parties, allowing them to separate on good terms and with mutual respect. **Historical Background / Evolution (if any)** The concept of mutual divorce under the Hindu Marriage Act, of 1955, reflects a significant shift in Indian matrimonial law towards recognizing individual autonomy and the reality of marital breakdowns. Before the enactment of this law, Hindu marriage was considered a sacrament, an indissoluble union that could not be terminated by mutual agreement. **Pre-HMA Era:** In traditional Hindu society, marriage was regarded as a lifelong bond, with no provision for divorce. The only ways to dissolve a marriage were through death or annulment under specific circumstances. This perspective left many individuals trapped in unhappy marriages, with no legal means to separate amicably. **Hindu Marriage Act, 1955:** The introduction of the Hindu Marriage Act, of 1955, marked a progressive development in matrimonial laws for Hindus. This act codified and reformed Hindu marriage and divorce laws, incorporating provisions for divorce on various grounds, including cruelty, desertion, and adultery. However, these grounds often led to adversarial proceedings, increasing conflict between spouses. **Introduction of Mutual Divorce (1976 Amendment):** Recognizing the need for a more harmonious and less contentious divorce process, the Hindu Marriage Act was amended in 1976 to include Section 13B, which introduced the provision for divorce by mutual consent. This amendment was a significant step towards modernizing matrimonial law, allowing couples to end their marriage amicably and with mutual respect. **Impact and Modern Relevance:** The inclusion of mutual divorce has had a profound impact on the legal landscape, providing a more humane and efficient way for couples to separate. It has empowered individuals to make autonomous decisions about their marital lives, reducing the emotional and financial toll of prolonged legal battles. Today, mutual divorce remains a testament to the evolving nature of matrimonial law, balancing traditional values with contemporary realities. **Comparison with other Countries (if needed)** Mutual divorce is a legal provision in many countries, allowing couples to dissolve their marriage by mutual agreement. While the core concept remains the same, the procedures and requirements vary significantly across different legal systems. Here’s a comparison of mutual divorce under the Hindu Marriage Act, of 1955, with similar provisions in other countries: **India (Hindu Marriage Act, 1955):** Under the HMA, mutual divorce requires both spouses to file a joint petition after living separately for at least one year. The court grants a six-month “cooling-off” period, during which reconciliation can be attempted. If both parties still wish to proceed after this period, the court finalizes the divorce. **United States:** In the U.S., no-fault divorce laws, which resemble mutual consent divorces, are prevalent. Each state has its specific procedures, but generally, couples can file for divorce without needing to prove fault. States like California have simplified procedures for uncontested divorces, requiring minimal court intervention when both parties agree on key issues like property division and child custody. **United Kingdom:** In England and Wales, the Divorce, Dissolution and Separation Act 2020 introduced a “no-fault” divorce system, effective from April 2022. Couples no longer need to prove irretrievable breakdown due to fault-based reasons. Instead, one or both spouses can make a statement of irretrievable breakdown. After a 20-week reflection period and a further six-week waiting period post-conditional order, the court can issue a final order. **Australia:** Australia’s Family Law Act 1975 allows for a “no-fault” divorce, where the sole ground for divorce is the irretrievable breakdown of the marriage, demonstrated by 12 months of separation. Couples can apply for divorce jointly or individually, and there is no mandatory waiting period after the application, although court hearings might take some time. **Canada:** Canadian law, under the Divorce Act, allows for “no-fault” divorces based on the grounds of separation for at least one year. Either spouse can file for divorce, or if both agree, the process is straightforward and can be completed without a court appearance in many cases. **Germany:** In Germany, the mutual consent divorce process involves both spouses agreeing to the divorce and living separately for at least one year. After this period, they can jointly apply for divorce, and the court usually grants it if the separation period and mutual consent are verified. **China:** Chinese divorce law allows for mutual consent divorces through a simplified administrative process. Couples can file for divorce at the local civil affairs bureau, provided they agree on the terms of separation, including property division and child custody. There is a 30-day “cooling-off” period during which either party can withdraw the application. **France:** France’s mutual consent divorce process requires couples to draft an agreement detailing the terms of their separation, which is then submitted to a notary for approval. There is no mandatory separation period, and the process can be swift if both parties agree on all terms. #### Causes Leading to Mutual Divorce **Marital Discord:** **Concept:** Persistent conflicts, lack of communication, and irreconcilable differences. **Effect:** When couples cannot resolve their issues despite attempts at reconciliation, they may mutually agree to part ways. **Lack of Compatibility:** **Concept:** Differences in values, interests, and life goals. **Effect:** Couples may find that their differences are too significant to sustain a harmonious marriage, leading to mutual consent for divorce. **Emotional and Physical Abuse:** **Concept:** Experiences of emotional, verbal, or physical abuse within the marriage. **Effect:** To escape a toxic environment, both parties may agree that a mutual divorce is the best solution. **Infidelity:** **Concept:** Extramarital affairs and breaches of trust. **Effect:** Mutual divorce is often sought when both partners acknowledge that the relationship cannot recover from such betrayals. **Financial Issues:** **Concept:** Disputes over financial management, debt, and economic instability. **Effect:** Financial stress can strain a marriage, and mutual divorce may be viewed as a way to relieve ongoing conflict. #### Effects of Mutual Divorce **Legal Simplification:** **Concept:** The legal process of obtaining a divorce. **Effect:** Mutual divorce simplifies the legal proceedings, reducing the time, cost, and emotional stress associated with contested divorces. **Psychological Well-being:** **Concept:** The mental and emotional health of the divorcing individuals. **Effect:** The amicable nature of mutual divorce can lead to better psychological outcomes, as it avoids the adversarial nature of contested divorces. **Child Custody and Welfare:** **Concept:** The impact on children of the divorcing couple. **Effect:** Mutual divorce allows for cooperative co-parenting agreements, prioritizing the best interests of the children and minimizing their emotional distress. **Social Perception:** **Concept:** Societal attitudes towards divorce. **Effect:** As mutual divorce becomes more accepted, it helps reduce the stigma associated with divorce, encouraging individuals to seek happiness without societal pressure to stay in unhappy marriages. **Economic Independence:** **Concept:** The financial autonomy of the individuals post-divorce. **Effect:** Mutual divorce often involves fair settlement agreements, which can ensure financial stability and independence for both parties. #### Relation with Other Concepts **Mediation and Counselling:** **Concept:** Professional guidance to resolve marital issues. **Effect:** These services can either help couples reconcile or facilitate an amicable mutual divorce if reconciliation is not possible. **Women’s Empowerment:** **Concept:** The role of gender equality in marital dynamics. **Effect:** Increased awareness and advocacy for women’s rights have empowered more women to seek mutual divorces as a means to escape oppressive or unhappy marriages. **Legal Reforms:** **Concept:** Changes in laws governing marriage and divorce. **Effect:** Progressive legal reforms, such as the introduction of mutual divorce, reflect a shift towards recognizing individual autonomy and reducing the adversarial nature of divorce proceedings. **Cultural Shifts:** **Concept:** Evolving societal norms and values regarding marriage. **Effect:** As cultural attitudes shift towards viewing marriage as a partnership rather than a permanent sacrament, mutual divorce becomes a more accepted and utilized option. **Types / Kinds** Divorce in India can be broadly categorized based on the nature of the divorce proceedings and the grounds for divorce. Here, we outline the main types of divorce under Indian law, particularly focusing on the distinction between mutual and contested divorce. #### Mutual Consent Divorce **Definition:** Mutual consent divorce is when both spouses agree to dissolve the marriage amicably without blaming each other. This type of divorce is covered under Section 13B of the Hindu Marriage Act, 1955. **Key Features:** **Joint Petition:** Both parties file a joint petition stating that they have been living separately for at least one year and mutually agree to the divorce. **Cooling-Off Period:** There is a six-month waiting period after filing the petition, during which the couple can reconsider their decision. **Final Hearing:** If both parties still wish to proceed after the cooling-off period, they appear before the court for the final hearing, and the court grants the divorce if satisfied with the mutual consent. #### Contested Divorce **Definition:** A contested divorce is when one spouse files for divorce without the consent of the other, based on specific grounds. This type of divorce often involves more complex legal proceedings and disputes. **Grounds for Contested Divorce:** **Cruelty:** Physical or mental harm inflicted by one spouse on the other. **Adultery:** Extramarital affairs by one spouse. **Desertion:** Abandonment by one spouse for at least two years. **Conversion:** Changing religion by one spouse. **Mental Disorder:** Severe mental illness that makes it impossible to live together. **Incurable Disease:** Conditions like leprosy or other contagious diseases. **Renunciation:** One spouse renounces the world and takes religious vows. **Presumption of Death:** If a spouse has not been heard of as being alive for at least seven years. #### Other Types of Divorce in India **Divorce by Mutual Consent under Other Personal Laws:** **Special Marriage Act, 1954:** This act provides for mutual consent divorce for marriages registered under it. **Indian Divorce Act, 1869:** Governs divorce among Christians in India and includes provisions for mutual consent divorce. **Talaq (Islamic Divorce):** **Talaq-ul-Sunnat:** A revocable form of divorce where the husband pronounces talaq once, followed by a waiting period (iddat). **Talaq-ul-Biddat (Triple Talaq):** Instant divorce by pronouncing talaq three times, now banned by the Muslim Women (Protection of Rights on Marriage) Act, 2019. **Khula:** Divorce initiated by the wife, where she offers compensation to the husband to agree to the dissolution. **Mubarak:** Mutual agreement between both spouses to dissolve the marriage. **Customary Divorce:** Some communities in India follow customary practices for divorce, recognized under the respective personal laws, provided they are not in conflict with public policy or statutory laws. **Legal Provisions / Procedure / Specifications / Criteria (if any)** **Hindu Marriage Act, 1955 (Section 13B):** **Section 13B(1):** Both spouses must file a joint divorce petition, stating that they have been living separately for one year or more and have mutually agreed that the marriage should be dissolved. **Section 13B (2):** The court must be satisfied, after hearing the parties and making necessary inquiries, that the allegations in the petition are true. After a six-month waiting period (cooling-off period) and within 18 months from the date of presentation of the petition, if the petition is not withdrawn, the court can pass a decree of divorce. #### Procedure **Filing the Joint Petition:** **Step 1:** Both spouses jointly draft and sign a divorce petition, which includes details such as the date of marriage, reasons for seeking divorce, proof of living separately for at least one year, and mutual agreement to dissolve the marriage. **Step 2:** The petition is filed in the family court having jurisdiction over the area where the marriage was solemnized or where either party resides. **First Motion:** **Step 3:** Both parties appear before the family court, and the court records their statements. This is known as the first motion. **Step 4:** The court examines the petition and the documents submitted, ensuring that the conditions for mutual divorce are met. If satisfied, the court orders a six-month cooling-off period to allow for any possible reconciliation. **Cooling-Off Period:** **Step 5:** During the six-month cooling-off period, the couple is encouraged to reconsider their decision to divorce. This period is meant for introspection and potential reconciliation. **Second Motion:** **Step 6:** After the cooling-off period, if both parties still wish to proceed with the divorce, they must file a second motion in court. **Step 7:** Both parties appear before the court again, confirming their decision to proceed with the divorce. **Step 8:** The court hears their statements, reviews any agreements regarding child custody, alimony, and property settlement, and ensures that the mutual consent is genuine and voluntary. **Decree of Divorce:** **Step 9:** If the court is satisfied with the mutual consent and the arrangements made, it grants a decree of divorce, officially dissolving the marriage. #### Specifications / Criteria **Mutual Consent:** Both parties must voluntarily agree to the divorce without any coercion or undue influence. **Separation Period:** The spouses must have been living separately for at least one year before filing the petition. “Living separately” does not necessarily mean living in different locations; it can also mean living in the same house without any marital relationship. **Cooling-Off Period:** A mandatory six-month waiting period (cooling-off period) is provided after the first motion to allow for possible reconciliation. However, in certain cases, the Supreme Court of India has allowed waiving this period to expedite the process. **Joint Petition:** The divorce petition must be jointly filed by both spouses, stating the grounds for divorce and the mutual agreement to dissolve the marriage. **Settlement Agreement:** The petition should ideally include an agreement on key issues such as child custody, alimony, and property division to avoid future disputes. **Case Laws / Precedents / Overrulings/ Judicial Development of the Concept** **Smt. Sureshta Devi v. Om Prakash (1991):** **Facts:** Sureshta Devi filed for divorce by mutual consent with her husband Om Prakash but later withdrew her consent before the final decree. **Judgment:** The Supreme Court held that either party can withdraw their consent at any time before the final decree is passed. The court emphasized that mutual consent must exist at the time of filing the petition and at the time of the decree. **Ashok Hurra v. Rupa Bipin Zaveri (1997):** **Facts:** The couple filed for mutual divorce, but one party withdrew consent after the first motion. The High Court dissolved the marriage using its extraordinary powers. **Judgment:** The Supreme Court upheld the High Court’s decision, exercising its powers under Article 142 of the Constitution to do complete justice. This case highlighted the court’s ability to dissolve marriages even when one party withdraws consent, under exceptional circumstances. **Amardeep Singh v. Harveen Kaur (2017):** **Facts:** The couple sought a waiver of the six-month cooling-off period after the first motion, arguing they had already lived separately for a long time. **Judgment:** The Supreme Court held that the six-month cooling-off period is not mandatory and can be waived by the family court if: All efforts for reconciliation, including mediation, have failed. The parties have genuinely settled their differences, including alimony, custody of children, and other pending issues. The waiting period would only prolong their agony. This case provided flexibility in the application of the cooling-off period, facilitating faster divorces in genuine cases. **Anil Kumar Jain v. Maya Jain (2009):** **Facts:** The wife withdrew her consent after the first motion for mutual divorce. **Judgment:** The Supreme Court reiterated that mutual consent must persist until the final decree and reaffirmed the right to withdraw consent at any stage before the decree is passed. The court, however, also acknowledged the possibility of using Article 142 in exceptional circumstances to dissolve marriages where consent was initially mutual but later withdrawn. #### Judicial Development of the Concept **Flexibility in Cooling-Off Period:** The Amardeep Singh case marked a significant development by allowing the waiver of the mandatory six-month cooling-off period under certain conditions. This judicial flexibility acknowledges the practical realities faced by couples and aims to reduce unnecessary delays in the divorce process. **Emphasis on Genuine Consent:** The Sureshta Devi case emphasized the necessity of genuine and continuous mutual consent throughout the divorce proceedings. This principle ensures that divorces are not forced and both parties willingly agree to dissolve the marriage. **Article 142 – Extraordinary Powers of the Supreme Court:** Cases like Ashok Hurra v. Rupa Bipin Zaveri and Anil Kumar Jain v. Maya Jain illustrate the Supreme Court’s willingness to exercise its extraordinary powers under Article 142 to ensure complete justice, even in divorce cases where mutual consent was initially given but later withdrawn. **Simplification of Procedure:** Through various judgments, the judiciary has streamlined and clarified the procedure for mutual divorce, making it more accessible and less contentious. This approach promotes the welfare of both parties and minimizes the emotional and financial toll of prolonged divorce proceedings. **Maxims / Principles (if any)** **Volenti Non-Fit Injuria (To a Willing Person, No Harm is Done)** **Application:** This principle underscores that mutual divorce is based on the voluntary and mutual consent of both parties. When both spouses agree to dissolve their marriage, they do so willingly, and no harm is perceived by either party due to the dissolution. **Consensus Ad Idem (Meeting of the Minds)** **Application:** Mutual divorce requires both parties to have a meeting of the minds regarding the decision to end their marriage. This principle emphasizes the necessity of mutual agreement and understanding between the spouses. **Ex Aequo Et Bono (According to what is Fair and Good)** **Application:** The principle of fairness and equity guides the court in ensuring that the mutual divorce process is just and equitable for both parties, including fair settlements on issues such as alimony, child custody, and property division. **Audi Alteram Partem (Hear the Other Side)** **Application:** This principle ensures that both parties are given a fair opportunity to present their case and be heard during the mutual divorce proceedings. It upholds the right to a fair hearing, which is crucial in ensuring that the consent is genuine and voluntary. **Nemo Judex in Causa Sua (No One Should Be a Judge in Their Cause)** **Application:** This principle ensures impartiality in the judicial process. The court acts as an impartial arbiter, ensuring that the mutual consent is not influenced by external pressures or biases and that both parties’ interests are fairly considered. #### Conclusion The provision for mutual divorce under the Hindu Marriage Act, of 1955, represents a significant advancement in the legal framework governing marital dissolution in India. By allowing couples to seek divorce based on mutual consent, this provision offers a more amicable and less adversarial alternative to contested divorces. The legal framework surrounding mutual divorce—comprising specific procedures, criteria, and judicial precedents—ensures that the process is fair, respectful, and efficient. **Key Points of Mutual Divorce:** **Mutual Consent:** Essential for initiating and finalizing the divorce, reflecting a shared decision between spouses to end their marriage. **Procedure:** Involves filing a joint petition, a six-month cooling-off period, and a final hearing to ensure that the decision is well-considered and voluntary. **Legal and Judicial Development:** Judicial interpretations and precedents, such as those established in key cases, have refined the application of mutual divorce, allowing for flexibility and ensuring that the process aligns with the principles of justice and fairness. **Principles:** The principles of mutual consent, fairness, and judicial oversight underpin the mutual divorce process, ensuring that both parties’ rights and interests are adequately protected. 1. **REFERENCES** **Books / Commentaries / Journals Referred** **Online Articles / Sources Referred** JSTOR – Academic Articles on Family Law: The Hindu – Understanding Mutual Divorce: https://www.scconline.com/blog/post/2024/01/11/mutual-consent-divorce-hindu-law-cooling-off-period-and-withdrawal-of-consent/#:~:text=Akin%20to%20the%20HMA%2C%20the,the%20marriage%20should%20be%20dissolved. **Cases Referred** Smt. Sureshta Devi v. Om Prakash (1991) Ashok Hurra v. Rupa Bipin Zaveri (1997) Amardeep Singh v. Harveen Kaur (2017) Anil Kumar Jain v. Maya Jain (2009) **Statutes Referred** Hindu Marriage Act, 1955 Special Marriage Act, 1954 Indian Divorce Act, 1869 Muslim Women (Protection of Rights on Marriage) Act, 2019 Family Courts Act, 1984 **Categories:** Articles, Constitutional Law, Family Law --- ### [Right of Accused Persons under Article 22: Principles and Important Cases](https://lawfoyer.in/right-of-accused-persons-under-article-22-principles-and-important-cases/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** Author: Chahat Gugliya Edited by: Sankalp Vashistha **INTRODUCTION** ***“Anyone can be falsely accused of a crime. Everyone accused of a crime deserves a fair trial.” –* John Garamendi.** In every democratic and civilized nation that is being governed by the principle of “Rule of Law”, there exist certain rights of an accused person which preserves and fosters the constitutional values and ensures the criminal justice system to be based upon egalitarian norms. In Jurisprudence, we have come across several legal principles given by renowned scholars and the one that suits the provisions of Article 22 is; ***“One is considered innocent until proven guilty”***. Therefore, until or unless the crime is not being proven, we have certain rights for persons accused of crimes. In the Indian constitution, the rights of the accused are based upon the principle of – May be many go unpunished, but never punish an innocent person. ***Keywords:*** *Rule of Law, Article-22, Constitution of India, Detention, Rights of accused person.* **Who is an Accused Person?** - An “accused” is a person who has been arrested for or formally charged with a crime. Our holy Indian constitution preserves certain rights for the accused/arrested person to protect them from unlawful detention. Also, the laws related to arrest are defined under various sections of the Code of Criminal Procedure,1973 which is now known as Bhartiya Nagrik Suraksha Sanhita,2023. - The accused person is also known as the defendant or alleged offender. - The term “accused” can be used throughout the trial until the charges are resolved. **Article – 22 of Indian Constitution & Detention:** Article 22 of the Indian Constitution grants protection to persons who are arrested or detained. The detention is of two types: 1**) Preventive Detention** – detention of a person without trial. 2**) Punitive Detention** – to punish a person for an offence committed by him after trial. The first part deals with the cases of preventive detention law and the second one deals with the cases of ordinary law. The rights mentioned under Article 22 of the constitution are preserved and given to all citizens, irrespective of the fact that a person is being accused of a crime. **The Rights of Accused Persons in India with Context to the Constitution of India-** - **To know the grounds of arrest:** No person shall be detained in custody without being informed of the grounds for such arrest. This preserves the right and freedom of the person against the arbitrary and despotic rule of the state. Every police officer arresting any person shall communicate to him full information of the offence for which he is being arrested. - **Right to consult and be defended by a legal practitioner:** Every person who is accused of an offence will have the right to be defended by a pleader of his choice. - **Right to be produced before a magistrate within 24 hours:** The person, who is arrested and detained in custody shall have to be produced before the magistrate within 24 hours of such arrest. The following provisions have also been mandated by the Criminal Procedure Code. - **Right to be released after 24 hours unless the magistrate authorises further detention:** This provision signifies that our criminal justice system is based upon the true facets of evidence and facts rather than authoritarianism. - **Right to be released on bail:** The Bhartiya Nagrik Suraksha Sanhita has classified the category of bailable and non-bailable offences. It ensures that every accused has a right to get released on bail only in case of bailable offences, which further signifies the prudent structure of our criminal justice system. - **Right against self-incrimination:** As per the Indian constitution, a person cannot be forced to be a witness against the self. - **No double jeopardy:** As per the Indian constitution, a person cannot be prosecuted and punished for the same offences more than once. - **Right to a free and expeditious trial:** which has to be free from any preconceived notions and biases. It also constitutes one of the chief elements of Article-(21): Right to life and personal liberty and Article-(14): Equality before the law and equal protection of the law. **EXCEPTION –** Article 22(3) of the Constitution of India states that clauses (1) and (2) regarding protection against arrest and detention do not apply to enemy aliens or to persons arrested or detained under preventive detention laws. **RELEVANT CASE LAWS:** No legal and constitutional article is considered complete until or unless we insert the relevant and associated case laws in it. So now, let’s look for some important case laws regarding the Rights of the Accused which will further strengthen and justify the provisions mentioned above. **1) Hussainara Khatoon v. Home Secretary, State of Bihar –** This case clarified that the state cannot avoid its constitutional obligation to provide a speedy trial by citing financial or administrative difficulties. **2) Muniappa v. State of Tamil Nadu –** This case established that before passing a sentence, the Judge must make an effort to elicit all relevant information from the accused. **3) AR Antulay v. RS Naik and Another. –** This case established that the Right to a Speedy Trial under Article 21 of the Indian Constitution includes all the stages of the proceedings, including investigation, inquiry, trial, appeal and revision. **THE ASSOCIATED ISSUES AND CHALLENGES –** The Indian Legal and Judicial system follows the principle of “Rule of Law” and preserving the rights of the accused under the fundamental rights signifies this notion as well. However, the following rights may get hampered due to several legal, technical, administrative and financial challenges. For example: 1. Large pendency of cases at the lower judiciary. 2. **2**. Highly prone to corruption in police machinery which can mislead the facts and evidence. 3. Money and muscle power for false fabrication of charges and denial of rights of accused. 4. Legal loopholes in the constitution provisions that may deny the rights of the innocent. 5. Financial burden & less fiscal resources for faster and speedy trial. 6. Administrative staff backed with less legal and technical knowledge **Notable Solution –** Considering the following issues and challenges, we need to evolve a legal framework that fulfils the demand of changing patterns of the criminal justice system and societal norms. We, as a citizen of this country, should strive towards the adherence of the Constitutional norms and the values upon which the constitution has been framed. **CONCLUSION & COMMENTS** A fair and effective trial should constitute the prime motto of our judicial system, where each and every person has the right to express their views in a fair and neutral manner without being attached to any social stigmas and dogmas. We as prospective legal practitioners by sticking to constitutional values can ensure that the present legal system would transform to its present needs and every person- rich or poor, educated or uneducated, upper caste or lower caste should have their say in the legal proceedings and fundamental rights. **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. INDIAN POLITY – by M. Laxmikanth. 2. Supreme court’s: AIR. 3. MP high court: Joti Journal. 2. **Cases Referred** 1. Hussainara Khatoon v. Home Secretary, State of Bihar 2. Muniappa v. State of Tamil Nadu 3. AR Antulay v. RS Naik and Another. 3. **Statutes Referred** 4. Constitution of India, 1950. 5. Code of Criminal Procedure, 1973. **Categories:** Articles, Constitutional Law, Criminal Law --- ### [ACTS OF TERRORISM UNDER BNS:PROVISIONS, PRINCIPLES, PROCEDURE](https://lawfoyer.in/acts-of-terrorism-under-bnsprovisions-principles-procedure/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Ashmit Srivastava** **Edited by: Sankalp Vashistha** **INTRODUCTION** The spectre of terrorism has cast a long, portentous shadow over the global geography, challenging robust legal fabrics to combat its multifaceted pitfalls. India, a nation scuffling with its own share of terror-convinced challenges, has precipitously evolved its anti-terrorism legislative armature. The Bhartiya Nyaya Sanhita (BNS), a comprehensive overhaul of the felonious justice system, represents a significant stride in this direction. legislated to relieve the Unlawful Conditioning(Prevention) Act(UAPA), the BNS introduces a new legal paradigm for addressing terrorism. This composition undertakes a scrupulous examination of the BNS provisions related to terrorism, probing into its core rudiments, relative analysis with the UAPA, and a critical evaluation of its counteraccusations for public security and individual liberties. By checking the literal line of India’s anti-terrorism laws andassaying material case law, this study aims to give a nuanced understanding of the BNS’s efficacity in combating terrorism while upholding the principles of justice and moral rights. The BNS, as a complex legislative instrument, clearances a multifaceted analysis. Thiscomposition tries to unravel its complications, exploring its strengths, sins, and implicit areas for enhancement. By examining the interplay between the BNS and broadercounter-terrorism strategies, this study seeks to contribute to the ongoing converse on effective and rights-esteeming approaches to combating terrorism. **KEYWORDS**: *Terrorism, Bhartiya Nyaya Sanhita, BNSCounter-terrorism, National Security, Unlawful Conditioning(Prevention) Act, UAPA, Human Rights, Criminal Law* **DEFINITION AND SCOPE OF TERRORISM** The BNS offers a broader description of terrorism compared to its precursor, the Unlawful Conditioning (Prevention) Act(UAPA). crucial rudiments of the BNS description include - Intention to hang the conicity, integrity, and security of India This element aligns with the UAPA but is more astronomically defined in the BNS, potentially landing a wider range of conditioning. - Intent to blackjack the public or a section of the public is analogous to the UAPA, but the BNS provides a more extensive interpretation. - dismembering normal life and conditioning A new addition, this element broadens the compass of terrorism to include acts that may not inescapably involve violence but have a significant impact on society. - Creating a sense of fear or instability This element is harmonious with the UAPA but is more explicitly stated in the BNS. The BNS’s broader description raises enterprises about eventuality overreach and the blurring of lines between licit dissent and terrorism. It’s pivotal to establish clear guidelines to help the abuse of this provision. **PUNISHMENTS FOR TERRORIST ACTS** The BNS prescribes a range of corrections for terrorist acts, reflecting the inflexibility of the offence. crucial provisions include - **DEATH PENALTY** The BNS retains the death penalty for terrorist acts resulting in death. This provision has been a subject of violent debate, with critics arguing that it’s disproportionate and ineffective. - **LIFE IMPRISONMENT** For less severe terrorist acts, the BNS prescribes life imprisonment as a maximum discipline. - **IMPRISONMENT**The BNS also provides for imprisonment for colourful terms, depending on the nature and extent of the terrorist act. - **CONFISCATION OF PROPERTY** To disrupt the fiscal networks of terrorist associations, the BNS includes a provision for the confiscation of property acquired through terrorist conditioning. The inflexibility of the punishments under the BNS reflects the government’s determination to combat terrorism effectively. still, it’s essential to ensurethat these corrections are applied fairly and constantly and that there are acceptable safeguards to help unlawful persuasions. **INVESTIGATION AND PROSECUTION** The BNS empowers designated agencies to probe and make terrorist offences. Key Provisions include - **SPECIALISED AGENCIES**: The establishment of technicalanti-terrorism units is pivotal for effective disquisition and execution. - **PROCEDURAL SAFEGAURDS**: While the BNS includes some safeguards, similar to the right to legal representation and the presumption of innocence, there are enterprises about the eventuality of abuse, especially in cases involving public security. - **EVIDENCE:**The BNS recognizes the significance of electronic substantiation in terrorism examinations and provides for its admissibility. still, there’s a need for clear guidelines to cover against the abuse of similar substantiation. - **WITNESS PROTECTION:** guarding substantiations in terrorism cases is pivotal. The BNS should include robust provisions for substantiation protection programs. The success of counter-terrorism sweat depends on the effective disquisition and execution of terrorist offences. The BNS provides a frame for this, but its perpetration will be critical in icing its effectiveness. **RELATED OFFENCES** The BNS criminalizes a range of offences related to terrorism, including - **Backing Terrorism**: This provision targets the fiscal networks supporting terrorist associations. - **Harbouring and sheltering terrorists**: This aims to disrupt safe havens for terrorists. - **Recruiting for Terrorist Associations**: This targets the process of radicalization and reclamation. These provisions are essential for dismembering terrorist conditioning and precluding the spread of terrorism. still, their effectiveness depends on robust disquisition and execution. **CHALLENGES** The BNS represents a significant step forward in India’scounter-terrorism sweats. still, it also presents challenges as such: - **Balancing public security and mortal rights:** The BNS must be enforced in a manner that protects abecedarian rights while effectively combating terrorism. - **Precluding abuse of the Law:**The broad description of terrorism increases the threat of abuse. Clear guidelines and robust safeguards are essential. - **Structure capacity:** Effectiveperpetrationof the BNS requires well- trained law enforcement labour force, prosecutors, and judges. - **Transnationalcooperation**:Counter-terrorism is a global challenge, and India must strengthen its cooperation with other countries. **POTENTIAL IMPLICATIONS OF THE BNS** The BNS, with its broad changes to the felonious justice system, has the implicit to significantly impact colourful angles of Indian society. ***Impact on Human Rights*** - **Corrosion of Civil Liberties:**The broad description of terrorism and expanded powers to law enforcement could lead to curtailment of abecedarian rights similar to freedom of speech, assembly, and association. - **Arbitrary Apprehensions and Detentions:** Increased eventuality for abuse of the law, leading to unlawful apprehensions and dragged detentions. - **Fair Trial Enterprises:**The emphasis on speedy trials might compromise the rights of the indicted, including access to legal counsel and acceptable defence. Socio- Political Counteraccusations - **Increased Surveillance:**The focus on public security could lead to heightened surveillance measures, impacting sequestration rights - **Trust Deficit:**The eventuality for abuse of the law could erode public trust in law enforcement and the bar - **Social Polarization**: The BNS could complicate social divisions and produce a climate of fear and dubitationEconomic Counteraccusations - **Investor Confidence:** Query about the legal terrain could discourage foreign investment and hamper profitable growth. - **Business Operations:**Increased nonsupervisory burden and implicit legal pitfalls could impact business operations and competitiveness. - **Tourism:**Anegative perception of the country’s mortal rights record could discourage excursionists. - **Burden of Proof:** The onus on law enforcement to prove guilt beyond reasonable mistrustfulnessbecomes further gruelling with the broad description of terrorism. - **Resource Constraints**:Effective perpetration of the BNS requires acceptable training, outfit, and labour force. - **Responsibility Mechanisms:**To ensure responsibility and help abuse of powers are pivotal. It’s important to note that these are implicit counteraccusations and the factual impact of the BNS will depend on its perpetration and interpretation by the bar. **CONCLUSION** The Bhartiya Nyaya Sanhita(BNS) represents a significant step forward in India’scounter-terrorism legal frame. By broadening the description of terrorism, introducing strict corrections, and establishing technical investigative agencies, the BNS aims to give a comprehensive response to the complex challenge posed by terrorism. still, the effectiveness of the BNS is contingent upon several factors. The balance between public security and individual rights is a delicate bonethat requires careful consideration. The eventuality of overreach and misuse of the law cannot be ignored. likewise, the success of the BNS depends on its perpetration, with acceptable coffers, training, and collaboration among law enforcement agencies. While the BNS offers a robust legal frame, its impact eventually depends on its practical operation. Case studies demonstrate both the implicit strengths and sins of the law. nonstop evaluation and refinement are essential to ensure its effectiveness in combating terrorism while upholding the rule of law. Transnational cooperation is another pivotal element of counter-terrorism sweats. The BNS should be aligned with transnationalnorms and stylish practices to enhance its impact. In conclusion, the BNS provides a foundation for addressing terrorism in India. By addressing the linked challenges anderecting upon the law’s strengths, India can develop a more effective and rights-esteemingcounter-terrorism strategy. crucial areas for unborn exploration and policy development include: - In- depth analysis of the impact of the BNS on specific groups, similar as religious non-ages and marginalized communities. - Relative studies ofcounter-terrorism strategies in otherauthorities. - Evaluation of the effectiveness of the BNS in precluding and fighting rising forms of terrorism, similar to cyberterrorism. - Development of comprehensive training programs for law enforcement and judicial labour force on the perpetration of the BNS. 1. **REFERENCES** 2. **Books / Commentaries / Journals Referred** 1. THE BNSBARE ACT, 2023 2. SECTION 113: BNS,2023 3. **Online Articles / Sources Referred** 1. [A Review of the Indian Penal Code | Chambers Expert Focus](https://chambers.com/legal-trends/implications-of-the-indian-penal-code) 2. [Top 10 Changes Made by Bharatiya Nyaya Sanhita (BNS) vis-à-vis Indian Penal Code (IPC) (taxmann.com)](https://www.taxmann.com/post/blog/top-10-changes-made-by-bns-vis-a-vis-ipc#:~:text=Whoever%20knowingly%20possesses%20any%20property,of%20any%20terrorist%20act%20shall) 3. [Criminal Law Bills 2023 Decoded #7: Analysing the Terror Offences Framework Under BNS 2023 – P39A Criminal Law Blog (p39ablog.com)](https://p39ablog.com/2023/09/criminal-law-bills-2023-decoded-7-analysing-the-terror-offences-framework-under-2023/#:~:text=Through%20Cl.,the%20TADA%20and%20the%20POTA.) **Categories:** Case Analysis, Criminal Law Cases --- ### [N. Adithayan vs The Travancore Devaswom Board & Ors](https://lawfoyer.in/n-adithayan-vs-the-travancore-devaswom-board-ors/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Sneha Rani** **Edited by: Sankalp Vashistha** **Abstract** This paper involves an analysis of the case of N. Adithayan v The Travancore Devaswom Board & Ors regarding the controversy over the appointment of a non-Brahmin priest (Santhikaran) at the Kongorpilly Neerikode Siva Temple in Kerala as worked out by the Supreme Court of India. A case about the appointment was filed by the petitioner, N. Adithayan on the grounds of oppression of Traditional customs and droits of Malayala Brahmins. Thus, the Court’s decision relied upon the constitutional provisions’ interpretation, especially on articles 14, 15, 16, 25, and 26, which concern equality, nondiscrimination, and religious liberties. The Court supported the appointment, stressing the aspect of the order rather than the caste, and underlined the need for augmentation of religious rites with time along with principles of the Constitution of India. This important case confirms the courts’ function in preventing the abuse of religion to infringe on equal rights for women and the Constitution’s provision on non-discriminatory measures. **Keywords:** The Constitution, Sacred Rite, Discrimination on the Grounds of Caste, Employment and Promotion, Gender Equity, Law Commission of India and Supreme Court of India **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** N. Adithayan vs The Travancore Devaswom Board & Ors ***ii)* *Case Number*** Civil Appeal No. 6965 of 1996 ***iii)* *Judgement Date*** 3 October 2002 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** 2 Judge Bench ***vi)* *Author / Name of Judges*** Justice S. Rajendra Babu and Justice Doraiswamy Raju ***vii)* *Citation*** (2002) 8 SCC 106 ***viii)* *Legal Provisions Involved*** – Article 14: Equality before the law – Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth – Article 16: Equality of opportunity in matters of public employment – Article 25: Freedom of conscience and free profession, practice, and propagation of religion – Article 26: Freedom to manage religious affairs **INTRODUCTION AND BACKGROUND OF JUDGEMENT** It rose from the designation of a beneficiary of Santhikaran at the Kongorpilly Neerikode Siva Temple in Kerala, which was being served by a non-Brahmin person. One man, N. Adithayan, a Malayala Brahmin in particular, vehemently rejected this appointment because this decision violated customs and the appropriate rights of his community. In this regard, the Supreme Court was faced with the challenge of upholding the free practice of religious rights in the face of the constitutional legal provisions on equal rights and non-discrimination. The Court also considered other previous decisions {conducted a review of the case} and recommendations of different committees so that the Court’s final decision would be just. **FACTS OF THE CASE** 1. **i) Procedural Background of the Case:** - Initiation of the Case: The legal processes in this regard began with the appellant N. Adithayan filing Civil Appeal No. 6965 of 1996. This case was a legal battle being taken to the Supreme Court of India to challenge the conflicting problem concerning the employment of a Santhikaran, hailed from the non-Brahmin upper cast, for the position ofSanthikaran or temple priest, a position usually given to the Brahmans, at the Kongorpilly Neerikode Siva Temple, in Kerala. This appeal was filed to overturn the judgment given by the subordinate courts and the case’s goal was to establish that based on tradition only priests born in the Brahmin caste should be allowed to conduct temple rituals in this particular temple. - Bench Assignment: The was given to a bench of Supreme Court Justices S. Rajendra Babu and Doraiswamy Raju. This bench was supposed to deal with numerous constitutional, social, and religious aspects of the appellant presented before it. The judicial review was believed to involve the exploration of whether the non-Brahmin appointment infringed on religious practices and principles set down in the constitution that deals with matters of religion and equality. 1. **ii) Factual Background of the Case:** The petitioner, N. Adithayan claimed that the temple authorities and the devotees always followed the tradition and hence appointing a non-Brahmin Santhikaran was a blatant infringement of the traditions being followed in the temple. He claimed that the untold tradition and law stated that only the Malyala Brahmins are allowed to perform the Pooja and rituals of the temples of Kerala. Adithayan’s argument regarding this claim was based because such a deviation detracted from the religious and historical significance largely attributed to temple practices. - Role of the Travancore Devaswom Board: The temple in question is run by the Travancore Devaswom Board which was legalized through the Travancore Cochin Hindu Religious Institutions Act, of 1950. The Board also entails various responsibilities of administration and management of several temples across the region to conserve cultural practices. In this case, the Board served as an important institution since it was responsible for the appointment and selection of the Santhikaran function and justified the decision to appoint an employee who was not a Brahmin regardless of the case status but competence. - Appointment Procedure: The controversy began when a Santhikaran’s place became vacant after an allegation of poor performance and misconduct by a temporarily appointed Shri K. K. Mohanan Poti. Following the norms set by the Travancore Devaswom Board, it advertised for the post. Out of the applicants, a non-Brahmin at the 31 positions on the selection list was appointed the Santhikaran. This appointment was protested by Adithayan on the basis that it was forbidden by tradition according to which only those of the Brahmin caste could be appointed to such a position - Opposition and Legal Challenge: Santhikaran, a non-Brahmin, was appointed and such changes caused protests by traditionalists, the matter went to a civil court. For their right to religious freedom, worship and to attend to their religious affairs as and when they wanted, Adithayan and several other devotees moved the Kerala High Court under Article 226 of the Constitution of India to issue a writ of mandamus for the removal of the Appellant’s appointment. The antithesis was about the fact that the appointment violates the legal rule that only those belonging to the Malayala Brahmin community could conduct the poojas in the temple. Provisional orders were passed, and people were appointed due to which the legal struggle was still going on to wrestle with the fact underlying the resonance of the caste system, particularly the criterion of reservation for SCs/STs for the performance of temple rituals. **Legal Issues Raised** 1. **Protection of Religious Customs vs. Constitutional Mandates:** This case created a big legal question as to whether one has to uphold cultural practices inherent in religious practices or the Constitution of a country. More particularly, the question was whether the practice of exclusive reservation of the function of appointing the Santhikaran of the temples under the Appendices ‘A’ and ‘B’ as hereditarily professional as the persons of the Brahmin caste should be allowed given the modern constitutional provisions which do not allow discrimination on the ground of caste. This matter boils down to asking whether the customs and traditions that prefer the appointment of Brahmins to the priesthood are constitutional and do not contradict the provisions of Articles 14, 15, and 16 of the Indian Constitution. The quintessential issue, therefore, is whether sustaining such traditions violates rights enshrined in the aforementioned articles that are aimed at eradicating all forms of discrimination and bringing about equality for all people, citizens or not. 2. **Qualifications and Merit vs. Caste-Based Appointment:** The other legal concern raised in the case is on the categorization of the temple priests where the court has to decide whether the vocation should be based on merit, training, or descent. The respondents elaborated that appointments should be based on merit, namely, knowledge of mantras, Tantras, and other requisite Vedic texts along with experience in recognized institutions. Instead, they argued that the introduction of such a system would help in ensuring that the religious duties are well done without violating the constitution of the country. This issue challenges the matrimonial standing of caste as the chief qualifier for religious office and calls for competency cum training selection as opposed to hereditary or caste selection. **Petitioner / Appellant’s Arguments** 1. **Preservation of Religious Customs:** The petitioner submitted that the Malasa–Malayala restriction to Santhikaran is a practice in religion that should be allowed by Articles 25 and 26 of the Constitution. They claimed that it was a part of their religion’s culture, in which it is crucial to uphold the purity of the temple and appropriate behaviour during rituals. Thus, according to the petitioner, each of the mentioned customs plays some historical and cultural role that does not have to agree with modern legal norms. 2. **Violation of Constitutional Rights:** In the view of the petitioner, the violation of the constitution is occasioned by the appointment of a non-Brahmin as a Santhikaran since that affects their right to religious administration by the custom. They relied on Article 26 providing religious denominations their right to self-government in religious matters. The petitioner argued that any move that alters this observation diminishes religious harmony and infringes on the petitioner’s right to self-governance in religion and the preservation of their culture. 3. **Support from Section 31 of the 1950 Act:** The petitioner relied on Section 31 of the Travancore Cochin Hindu Religious Institutions Act, 1950 as providing for continuing the practice as existed in the temples as per the traditions. This section was used as legal support for their argument that the practice of appointment of Santhikaran should also have a precedent of following customs, thus justifying their request to limit priesthood to only the Malayala Brahmins. 4. **Relevant Precedents:** To support their argument, the petitioner relied on several judicious of the Apex court which endorses the protection of cultural and or esoteric practices within religious organizations. These precedents were employed to assert that the other courts have generally respected and maintained religious principles, and therefore, the custom being in question in the case should also be protected. The petitioner wanted to be a Santhikaran and was convinced that these judicial decisions would justify non-Brahmin’s appointment as Santhikaran. **Respondent’s Arguments** 1. **Lack of Proven Custom:** The respondents submitted and argued that the petitioner has not been able to provide concrete historical evidence that since the very inception of the appointments of the Santhikaran only Malayala Brahmins could be appointed. The others invented a pretext stating that clear proof was omitted to show that this practice was regularly being upheld without it being interrupted. According to the respondents, in the absence of such evidence, it is impossible to affirm such a claim on the existence of an exclusive custom. 2. **Constitutional Provisions Against Discrimination:** The respondents, based on the constitutional provisions provided, opined that Sections 14, 15, and 16 of the Constitution of India barred caste discrimination and provided equal rights to all citizens. They argued that it is crucial to apply these articles in the proceedings and that any tradition that negates these principles, cannot be justified before the law. The respondents pointed out that since the Constitution enshrines provisions on equality and non-discrimination the discriminator’s religion cannot prevail. 3. **Precedents Supporting Non-Discrimination:** Some of the judicial decisions quoted by the respondents that still call for religious practices to observe the principles of the Constitution dealing with non–non-discrimination and equality include the following. These examples reveal that the courts had and could decide in favour of the eradication of discrimination even in the religious sphere. According to the respondents, the precedents that were mentioned supported their view that the appointment of Santhikarans should not be a caste-based one but a merit-based one. **JUDGEMENT** 1. **Ratio Decidendi:** In the case of a non-Brahmin Santhikaran appointment, the Supreme Court also ruled that the act did not transgress the constitution’s guidelines. The Court underlined that one should be absolved with qualification and training and not the caste system be the deciding factor for being chosen for a religious position. As the Court upheld the claims, it stressed the need for reconciling religious freedoms with the constitutional provisions on equal rights and anti-discrimination on the note that tradition has to be transformed to meet the new constitutional rationality. 1. **Guidelines:** 2. Appointment Based on Merit: The Court thus ordered that the Travancore Devaswom Board continue to make appointments reflected by the qualification and training of the candidates and not the caste the candidate belongs to or the deity the person worships. 2. Alignment with Constitutional Values: The Court stressed that religious organizations’ activities should conform to the constitutional provisions on equality and non-discrimination. 1. **Obiter Dicta:** The Court also pointed at a possibility for the subject customs and traditions to evolve, which has to do with the nature of religious practices in the context of constitutional values Adjusting to societal change. **CONCLUSION & COMMENTS** The judgment in N. Adithayan vs The Travancore Devaswom Board & Ors is significant for several reasons:The judgment in N. Adithayan vs The Travancore Devaswom Board & Ors is significant for several reasons Such as 1. Balancing Tradition and Constitution: The Supreme Court in Bhopal’s decision also underlines the requirement to reconcile some orthodox custom that was a part of religion in the contemporary constitution guarding against discrimination based on caste. It emphasises more on Qualificationsthus conveying the message of the need for qualifications and training rather than caste for one to be appointed for a religious post. The judgment is alive to the fact that religion is not a steady enterprise and needs to change to conform to the Constitution’s principles of fairness and non-discrimination.This case acts as a precedent for checking the walls that may have been built around religion and preventing it from functioning within the constitution of the country to foster diversity and equality. This decision further establishes the court’s adherence to the constitutional protection of the rights of every citizen through the recognition of the categorization of caste while upholding the constitutional recognition of religious principles on religious practices. **Categories:** Case Analysis, Constitutional Law Cases --- ### [RIGHT TO RELIGION UNDER THE INDIAN CONSTITUTION](https://lawfoyer.in/right-to-religion-under-the-indian-constitution/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Supragya Singh, Student, R.M.L.N.L.U., Lucknow.** **Edited by: Madhumita Saha, Student, Lajpat Rai Law College, Sambalpur University, Odisha.** **INTRODUCTION** Mahatma Gandhi once said, “*There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.[**\[1\]**](#_ftn1)”* The quote by Mahatma Gandhi emphasizes the importance of one’s conscience in a free country, especially in the Indian scenario. Religious diversity is spread across India, where many govern themselves through values enshrined in their religion. The Indian state is still a secular country with no particular inclination towards a specific religion, even though Hinduism happens to be the majority religion in the country. With the vast diversity of religious identities prevalent, the Indian state guarantees every person a right to religion, which also extends to religious groups. The Indian Constitution provides the ‘Right to Religion’ as a fundamental right in Part III of the Constitution. Art 25-28 deals with aspects of this right – dealt with as an individual and a community right. Article 25, for instance, gives an individual the right to conscience and religion, whereas Art. 26 deals with the religious rights of a denomination. Art. 27 pertains to non-payment of taxes from the amount which has to be appropriated for the promotion and welfare of a particular religion. Art. 28 pertains to restrictions on imparting religious instruction at educational institutions. ***Keywords*:** *Religion, Right, Extent, Essential, Precedents* - **Extent of the Right to Religion** Right to Religion as under Art. 25 provides all persons in India the freedom to conscience, i.e., their sense of right or wrong; this would include one’s right to follow a religion and one’s right not to follow any religion but rather one’s belief system. Additionally, the right is conferred not only upon individuals but also upon religious denominations or any section of them, as can be read from Art. 26. Hence, the right to religion under the Indian Constitution is an individual and a community right that is bestowed to follow or not follow a religion. As per Art. 25, an individual’s right to follow a religion would include their freedom to profess freely, practice that religion, and propagate it. This implies that the right given under the constitution frees the individual to believe in faith and overtly express it. The collective right under Art. 26 allows a religious denomination or any section of it to manage their religious affairs, establish and maintain their institutions for religious and charitable purposes, own and acquire property, and administer it as per law. The term religion per se is not defined in the Constitution; the right to religion remains with individuals and religious groups. The Supreme Court of India, in the 1954 *Shirur mutt*[\[2\]](#_ftn2), presented a comprehensive definition of religion. To quote the court’s words verbatim, *“Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well-known religions in India like Buddhism and Jainism which do not believe in God or any intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion is conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, but it might also prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observations might extend even to matters of food and dress.[**\[3\]**](#_ftn3)”* A definition is crucial in knowing the extent to which a right can be exercised. Hence, knowing what would be protected as a religious right becomes highly relevant. - **Limitations** Art. 25 and Art. 26 impose specific limitations or restrictions upon them: ‘public order,’ ‘morality,’ and ‘health’ serve to restrict the extent of the rights given under Art. 25 and 26. Public order would seek to prevent any disorder due to a religious practice or belief. Morality refers to the Constitutional Morality relating to the principles enshrined in the Constitution. Any act as a consequence of religious belief conflicting with constitutional morality would not get protection as a religious right. ‘Health’ would also exempt acts of religion from getting protection as a right. Another limitation can be realized by reading clause (1) of Art. 25, i.e., the Right to religion is subject to other provisions of the Constitution’s Part III (Fundamental Rights). This also implies that fundamental rights possess a form of gradation among them, though not a subject of this article. A harmony would need to be maintained among the Fundamental Rights, for the right to religion cannot override any other fundamental right in the Constitution. The question is – What exactly would be protected under ‘right to religion’? This is answered through the ‘Essential Religious Practices doctrine,’ where the protection granted is precisely to those religious practices essential to that religion. The doctrine evolved in the case of *Shirur Mutt.*[\[4\]](#_ftn4) The court in the case also said, *“What constitutes the essential part of a religion is primarily to be ascertained concerning the doctrines of that religion itself.”*[\[5\]](#_ftn5) - **Exceptions to the Right to Religion** Not just limitations, the right to religion is further reduced in extent by the exceptions provided under them in the Constitution. Art. 25(2) outlines the exceptions to the right to religion. The said clause mentions two exceptions – (a)one pertains to economic, financial, political, or secular activities associated with religious practice; (b)the other pertains to providing welfare and social reform by the state and opening the public Hindu religious institutions to all sections and classes of Hindus. The infringement on the right to religion would be justified if it falls under either sub-clause (a) or (b) exceptions. Several reform measures, such as The Commission of Sati (Prevention) Act of 1987[\[6\]](#_ftn6), are justified and protected under Art. 25(2)(b). Relevant to this is the case of *Syedna Taher Saifuddin Saheb v. State of Bombay*[\[7\]](#_ftn7), where the court stated, *“In my view, the phrase ‘laws providing for social welfare and reform’ was not intended to enable the legislature to ‘reform,’ a religion out of existence or identity. Article 25(2)(a) having provided for legislation dealing with ‘economic, financial, political or secular activity which may be associated with religious practices,’ the succeeding clause proceeds to deal with other activities of religious groups and these also must be those which are associated with religion. Just as the activities referred to in Art. 25(2)(a) are not of the essence of the religion, similarly the saving in Art. 25(2)(b) is not intended to cover the essentials of the creed of a religion which is protected by Art. 25(1).”[**\[8\]**](#_ftn8)* Thus, the essentiality of a religion is crucially protected, notwithstanding the exceptions. However, the exceptions would still apply to any other religious practice. - **Essential Religious Practices Doctrine** Evolved through the case of *Shirur Mutt*[\[9\]](#_ftn9), the essential religious practices doctrine says that the essential practices of religion shall be protected as a part of the right to religion. The diminishing scope of what would be protected as a matter of religious right through different imposed limitations, other preponderant fundamental rights, and further exceptions make the essential religious practices doctrine vital in preserving a religious identity’s essence from diminishing. The doctrine distinguishes religious practices that may be restricted, regulated, or prohibited from essential religious practices forming the core of religious identity that shall be granted special protection under the right to religion in the Constitution. The question whether which religious practice is essential to a specific religion is answered by the Court on a case-to-case basis by referring to the doctrines of that religion. Thus, the doctrine has long served as crucial and relevant in deciding which religious practice needs special protection under the Constitution. - **Article 27 and Article 28** Article 27 of the Constitution prohibits the state from levying tax on the amount specifically meant to promote and maintain a particular religion or religious denomination. Article 28, on the other hand, relates to imparting religious instructions at educational institutions. The article talks of three kinds of educational institutes – 1) one maintained entirely from state funds, 2) one administered by the state but established under endowment or trust, and 3) one recognized by the state or receiving help from state funds. Art. 28(1)[\[10\]](#_ftn10) States that religious instructions should not be imparted in an educational institute of the first kind. Art. 28(2)[\[11\]](#_ftn11), creating an exception to Art. 28(1) states that religious instruction can be imparted in the educational institute of a second kind if the endowment or trust so requires. Art. 28(3)[\[12\]](#_ftn12) says that an individual in the academic institute of the third kind cannot be compelled to attend religious instructions or religious worship at such institute or premises attached to it without the individual’s consent or for the minor’s – the consent of their parents/guardian. Thereby, Art. 27 and 28 further the right to religion while strengthening the secular foundation of the Constitution and the state. - **Case Laws Relating to the Right to Religion** A few of the prominent case laws relating to the provisions of the right to religion include – - *The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt*[\[13\]](#_ftn13) – The case is prominent for presenting a comprehensive yet not rigid definition of ‘religion’ and bringing into the picture what is now known as the ‘Essential Religious Doctrine.’ The case aided in understanding what is included in the term ‘religion’ used in Art. 25. It established that the term would include religious practices, rituals, and doctrines essential to a religion. - *The Durgah Committee, Ajmer v. Syed Hussain Ali*[\[14\]](#_ftn14) – The court here emphasized the right of religious denomination or any section of it to manage their religious affairs as under Art. 26(b) would include not only religious belief or doctrine but also a right to manage its affairs related to religious practices, rituals, ceremonies, and modes of worship (as was defined in the case of *Shirur Mutt*[\[15\]](#_ftn15)) provided they are integral to that religion. - *Mahant Sri Jagannath Ramanuj Das v. The State of Orissa*[\[16\]](#_ftn16) – In this case, the court said that Art. 27 applies to tax, which shall not be levied on the amount used for promoting and maintaining religion. The court emphasized that it is the tax and not the ‘fee’ that is prohibited from being levied in such matters. A tax involves exaction of money for public purposes to meet the general expenses of the state. The amount collected through tax is merged into the state’s general revenue. On the other hand, a fee is collected for a specific purpose, though in the public interest, and the amount collected through a fee is not merged into the state’s general revenue for general public purposes. The benefit of the fee accrues to those from whom the payments were demanded. The case dealt with the Orissa Hindu Religious Endowments Act of 1939 provisions. A specific provision imposed on every *math* or temple with annual income above ₹250, some annual contribution to meet the expenses of the Commissioner, the officers, and servants working under them. The court held that the amount levied was a fee, hence not violative of Art. 27. - *A.V. College v. State of Punjab*[\[17\]](#_ftn17) – In this case, the validity of section 4 of the Guru Nanak University Act, which instructed the state to make provision for the study and research on the life and teachings of Guru Nanak, was challenged on the ground that as the institution was wholly maintained out of state funds, the section conflicts with Art—28 (1) of the Constitution. The court, however, held that there was no violation of the said Article as the section instructs to encourage the academic study of the life and teachings of Guru Nanak, which are not per se religious instructions or attempts to promote any specific religion. These prominent case laws, along with many other case laws, though not mentioned here, have lucidly moulded the contours of the right to religion. - **CONCLUSION & COMMENTS** Thus, it can be said that the right to conscience and religion has an important place in the Constitution as a fundamental right. Albert Einstein once said, “*Never do anything against conscience even if the state demands it.*[\[18\]](#_ftn18)” Allowing an individual to pursue their conscience freely gives way to an individual’s growth & well-being and can also give way to the betterment of society. On the contrary, it would be relevant to recall the saying of George Bernard Shaw, “*There is nothing more dangerous than the conscience of a bigot.*[\[19\]](#_ftn19)” Conscience and faith can sometimes also give way to divisive or inimical forces. In this regard, the Constitution of India has tread carefully to make a delicate balance regarding the extent to which the right to religion should be protected as a fundamental right. Limitations and exceptions are thereby laid upon the right to religion. This has also served to maintain the secular nature of the state. The doctrine of essential religious practice introduced in the *Shirur Mutt*[\[20\]](#_ftn20) case has long served as necessary and relevant in knowing the specificity of the right to religion. The different aspects of the right to religion have often been clarified in various case laws by the judiciary. These have helped elucidate the extent to which the right to religion can be exercised and protected further. Thus, the constitutional provisions and other judicial developments have helped establish the right to religion in a balanced manner while upholding the secular nature of the state. - **REFERENCES** - **Books Referred** 1. N. Shukla, Constitution of India, 13th Edition 2. Lecture on Constitutional Law and Legislative Drafting, Volume I, Institute of Judicial Training and Research Uttar Pradesh 3. D. Mahajan, Constitutional Law of India, 8th Edition - **Online Sources Referred** 1. BrainyMedia Inc, 2024, BrainyQuote.com - **Cases Referred** 1. *The Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt*, AIR 1954 SC 282 2. *Syedna Taher Saifuddin Saheb v. The State of Bombay*, AIR 1962 SC 853 3. *The Durgah Committee, Ajmer v. Syed Hussain Ali*, 1962 SCR (1) 383, AIR 1961 SC 1402 4. *Mahant Sri Jagannath Ramanuj Das v. The State of Orissa*, 1954 SCR 1046, AIR 1954 SC 400 5. *A.V. College v. State of Punjab*, 1971 SCR 688, (1971) 2 SCC 269 - **Statutes Referred** 1. Constitution of India (1950), Art. 25(1) 2. Constitution of India (1950), Art. 25(2)(a) 3. Constitution of India (1950), Art. 25(2)(b) 4. Constitution of India (1950), Art. 26(a) 5. Constitution of India (1950), Art. 26(b) 6. Constitution of India (1950), Art. 26(c) 7. Constitution of India (1950), Art. 26(d) 8. Constitution of India (1950), Art. 27 9. Constitution of India (1950), Art. 28(1) 10. Constitution of India (1950), Art. 28(2) 11. Constitution of India (1950), Art. 28(3) 12. The Commission of Sati (Prevention) Act, 1987 [\[1\]](#_ftnref1) *Quotes of Gandhi* (UBS Publishers, New Delhi 1995) 34 [\[2\]](#_ftnref2) *The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt*, 1954 SCR 1005, AIR 1954 SC 282 [\[3\]](#_ftnref3) *Ibid*, (AIR) 290 [\[4\]](#_ftnref4) *The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt*, 1954 SCR 1005, AIR 1954 SC 282 [\[5\]](#_ftnref5) *Ibid* [\[6\]](#_ftnref6) The Commission of Sati (Prevention) Act 1987 [\[7\]](#_ftnref7) *Syedna Taher Saifuddin Saheb v The State of Bombay*, 1962 SCR Supp (2) 496, AIR 1962 SC 853 [\[8\]](#_ftnref8) *Ibid,* (AIR) 875-876 [\[9\]](#_ftnref9) *The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt*, 1954 SCR 1005, AIR 1954 SC 282 [\[10\]](#_ftnref10) Constitution of India 1950, Art 28(1) [\[11\]](#_ftnref11) Constitution of India 1950, Art 28(2) [\[12\]](#_ftnref12) Constitution of India 1950, Art 28(3) [\[13\]](#_ftnref13) *The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,* 1954 SCR 1005, AIR 1954 SC 282 [\[14\]](#_ftnref14) *The Durgah Committee, Ajmer v Syed Hussain Ali*, 1962 SCR (1) 383, AIR 1961 SC 1402 [\[15\]](#_ftnref15) *The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,* 1954 SCR 1005, AIR 1954 SC 282 [\[16\]](#_ftnref16) *Mahant Sri Jagannath Ramanuj Das v The State of Orissa*, 1954 SCR 1046, AIR 1954 SC 400 [\[17\]](#_ftnref17) *D A V College v State of Punjab*, 1971 SCR 688, (1971) 2 SCC 269 [\[18\]](#_ftnref18) Paul Arthur Schilpp, *Albert Einstein: Philosopher-Scientist* (first published 1949, 3rd edn, MJF Books 1949), Vol 7, 653 [\[19\]](#_ftnref19) BrainyMedia Inc, 2024, “George Bernard Shaw Quotes” < BrainyQuote.com> accessed 4 August 2024 [\[20\]](#_ftnref20) *The Commr, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,* 1954 SCR 1005, AIR 1954 SC 282 **Categories:** Articles, Constitutional Law --- ### [MATERNITY BENEFIT UNDER LABOUR LAW](https://lawfoyer.in/maternity-benefit-under-labour-law/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Affra Mohamed Mubarak, Student, Government Law College – Tiruchirappalli.** **Edited by: Madhumita Saha, Student, Lajpat Rai Law College, Sambalpur University, Odisha.** **INTRODUCTION** In India, nowadays women have been playing a crucial role as labour/working women. They have become financially independent and supportive of their family responsibility. They can work for both the house and the place they have engaged. Marriage is part of human life women have a major part in building a family. Many jobs don’t provide safety measures for pregnant women. So, women shall be given certain benefits in the workplace. India has worked on the benefits for pregnant women through legal provisions. The Maternity Benefits Act, of 1961 granted maternity leave to all women employees for 26 weeks in the workplace and made sure not to harm them during their pregnancy this also includes post-pregnancy the Act provides eligibility, requirements and benefits for women. *“An act to regulate the employment of women in certain establishment for certain period before and after child-birth and to provide for maternity benefit and certain other benefit”[**\[1\]**](#_ftn1)* Maternity benefits are important for women’s careers the law provides benefits for women during pregnancy and after childbirth. “*In 2015, 80 countries across the globe were giving Paternity leave along with maternity leave*”[\[2\]](#_ftn2). The Maternity Benefit Act of 1961 was introduced by the Union of India on 12th December 1961 which aims to protect women employees during their pregnancy but was revised by the Indian Government in 2017 The Maternity Benefits Act, of 1961 has been amended through the Maternity (Amendment) Bill 2017. The Act also specifies taking maternity leave for 6 weeks after miscarriage unless the miscarriage is a result of medical termination of pregnancy and 12 weeks maternity leave for a surrogate mother and the mother who has adopted a child below three months of age. These benefits help the women to recover from childbirth and have good relations with the newborn and also to take good care of their health. These Benefits can apply to women working in factories defined under the Factories Act, of 1948, mines as defined in the Mines Act, of 1952 and plantations as defined in the plantation labour Act, of 1951. The maternity benefits also apply to women working in government establishments and employed under the Employees State Insurance Act, of 1948. This Act appoints an inspector by appropriate government through way of notification in the official gazette their duties and power are prescribed under section 15 of the 1961 Act the inspector is considered to be a public servant under section 16 of the Act and in addition to it the appropriate government by way of notification may make rules for carrying out the purpose of this Act. The employer must not force any women to perform work during maternity leave and the employer should pay the women employees as prescribed in the Act. If a woman dies during childbirth or if the child dies and the mother survives the payment for maternity benefit shall be paid to the nominees as said in section 6(1) of the 1961 Act[\[3\]](#_ftn3) if no such nominees were mentioned then her legal representatives can claim the payment. No deduction of wages in certain cases under section 13 of the Act. The ILO guidelines have addressed the duration of leave for women during maternity leave till the date of delivery. In *Satakshi Mishra v. State of UP*[\[4\]](#_ftn4), the High Court held that the Maternity Benefits Act, 1961 does not contain any such stipulation regarding the time difference between the first and second child for the grant of Maternity Benefits. However, the maternity benefit doesn’t apply to women who are self-employed or less than 10 employees. **keywords:** Maternity Benefit Act 1961, Labour Law, Maternity Leave, Article 42 of Indian Constitution, Maternity Benefit (Amendment) Bill Act,2017. **Maternity Benefits** The term Maternity Benefit defines the payment made to women during their pregnancy and after childbirth in addition, women need to be granted medical leave which is maternity leave during and after pregnancy. Every organization with 10 or more employees is subject to the Act and the women must have worked for not less than 80 days in the 12 months preceding childbirth. This act mainly aims to provide all women with a healthy and dignified Motherhood before and after pregnancy *“state of motherhood honourably, peacefully, undeterred by the fear of being victimised for forced absence during the pre or postnatal period*”[\[5\]](#_ftn5). Maternity leave is nothing but leave with wages to the women during and after pregnancy, which is a full salary paid leave for the woman during her pregnancy. The women are only eligible after fulfilling the conditions provided under the Maternity Benefit Act. The employer should pay the women employees if they are fit to receive the maternity benefit payment, the employer cannot deduct the employee’s wage. The employer can allow the nursing women to work from home if the nature of work needs no physical presence[\[6\]](#_ftn6) the employer cannot dismiss the employee during her maternity leave pointing out the pregnancy and asking her to work more than she can bear. ***“Article 4*** *of ILO states that a woman who have provided medical a certificate as prescribed by national law stating the presumed date of childbirth, women to whom this Convention applies shall be entitled to maternity leave for not less than 14 weeks”[**\[7\]**](#_ftn7)* **Who can seek benefit?** The Maternity Benefits can be given to all women who are pregnant, adopting a child, or experiencing miscarriage are eligible for Maternity Benefit under the Maternity Benefit Act 1961 as they are considered to be mothers and fulfil the conditions provided in the Act commissioning or surrogate mothers are also eligible to seek benefits until the child is given to the adoptive parents. The woman must have worked for not less than 8 days in 12 months immediately preceding her anticipated delivery to be eligible for Maternity Benefits. Under the Maternity Benefit Act, 1961 the contractual worker can claim the maternity benefit as upheld in the ruling of *Rakhi v. State of Kerala*[\[8\]](#_ftn8) and *Rasitha C. H. V. State of Kerala*[\[9\]](#_ftn9) **Methods to claim Maternity Benefit** The woman willing to claim the maternity benefit must give notice to her employer as may be prescribed in the Act. The eligibility for Maternity Benefits is under section 6 of the 1961 Act. Following is the information to be in the notice; - Name of the women who claim the benefit - To attester that she will not work during this period - The day from which her leave period would start The employer must pay the woman after serving notice if she is eligible under the Act 1961. **Advantages of maternity leave in India** In India, women have set up their careers after years of independence, pregnancy and work should not overlap. Maternity Benefits have played an important role in building up their career. The maternity leave is given to the mother of the newborn to recover and take good care of the child. Heath benefits for the mother of the newborn are to take care of their physical body and be off from work, establish good relations with the newborn which is important for the growth of the newborn and provide job security for the women employee as they can continue to work after the work off. Overall, it helps women in India have secure jobs and build good relations between mother and child. **Maternity Benefit Act (Amendment) 2017** Before the 2017 Amendment, the act provided that women working at a company or factory could take maternity leave up to 6 months before and after they deliver the child and, during the leave period the employer must pay the women employee. Whereas, after the 2017 Amendment various aspects have been added like an increase in leave period, work from home and leave for mothers adopting children. The Act provides that women can take 26 weeks of Maternity Leave divided as 8 weeks before childbirth and 18 weeks post pregnancy or delivery. While women have 2 children already then 12 weeks maternity leave. Maternity leave can be provided to the mother adopting a child lawfully below three months of age gets 12 weeks of maternity leave eventually the commissioning woman is also considered a biological mother as they use the egg of that woman and places it in another woman’s embryo the leave starts for 12 weeks from the date the child was given to adoptive mother or commissioning mother. **Crèche** The crèche facilities must be provided in an establishment or factory with 50 or more employees. The crèche is to take care of the children while mothers work. There must be one crèche for every 30 children age group of 6 years[\[10\]](#_ftn10). The mother should be allowed to meet the children four times a day and must include the resting period to her. National guidelines for setting up crèches after the 2017 Amendment mandates under section 11A to establish crèches at a prescribed distance. As said in section 28 the state government or central government may prescribe the rules some of the rules are as follows; - Crèches are for the children age group of 6 months to 6 years of all categorised employees. - The Crèches should be within 500 meters of or at the workplace. - The crèches shall be opened from 8 to 10 hours but if the work is based on shift then the crèches must also be shift based. - There must be a crèche committee constituted for representatives of the parent or administration. The crèches should be provided with good ventilation, drinking water and lighting. The crèches must have one supervisor to take good care of the crèches and a trained worker to take care of the children. In the case of *Bahra University vs. Pooja Bhardwaj and Ors*, the Himachal Pradesh High Court ruled in favour of a female employee who chose not to work in that place as there were no crèches in the workplace[\[11\]](#_ftn11). **Rights of women employee payment in maternity Benefit** The right to payment in maternity benefits under labour law has been protected and considered a legal right for women to claim. According to Section 5(1) of the Act 1961, every woman is entitled to the payment immediately during her maternity leave for three calendar months. Women must receive an average daily wage of rs.1 whichever is higher the employer makes sure to pay the women during her absence. The calculation for such payment is based on the woman who worked in the workplace, and the days she was laid off during the 12 weeks immediately preceding her delivery date. Further, if the woman after delivering the child dies or during 6 weeks the employer is liable to pay the entire six weeks, if the child also dies the employer shall pay till the survival of the child including the day of death. In case both the mother and child die, if the woman is eligible for payment then such payment shall be paid to the nominees mentioned in the notice under section 6 of the Act and if no nominees are mentioned payment to her legal representative by the employer. **National Maternity Benefit Schemes under the Indian government** Under the National Maternity Benefit Schemes (NMBS) women during pregnancy would get rs.500 per pregnancy the eligible person must be a poor household woman for pre-natal and post-natal. This is applicable for women under 19 years and above on two pregnancies. 1. Janani Suraksha Yojana 2. Vande Mataram scheme 3. Pradhan Mantra Matru Vandana Yojana 4. Pradhan Mantra Surakshit Matritva Abhiyan **Indian Judiciary on Maternity Benefit** Many case laws deal with the Maternity Benefit**.** The courts have interpreted the intention of laws and benefits. The case laws are as follows; **Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Another** The Supreme Court held that the women employed in muster roll on daily wage cannot be restricted to maternity leave under the Maternity Benefit Act, 1961 stating only to regular women employees. This is because every woman will have children and women in the workplace must make it easier for working by the employer. It is hard for women to work and spend time carrying the baby in the womb so the employer must make sure to give maternity leave to working women[\[12\]](#_ftn12). **Smt. Archana Pandey v. State of Madhya Pradesh & others** In the case of the contractual employees on maternity leave, the Madhya Pradesh High Court has declared after interpretation of laws and other judgments that the constitution of India does want its women employees to get maternity leave and her employer to give all the amenities she needs while giving birth the petitioner is to be given maternity benefits by the respondent[\[13\]](#_ftn13). **Prachi Sen v. Ministry of Defence (2021)** The Karnataka High Court has dealt with this case on work from home for the mother of a newborn under section 5(5) of the Act of 2017, at the Semiconductor Technology and Applied Research Centre (STARC) a division of the Indian Ministry of defence the petitioner was working at that place as an executive engineer who has asked for work from home as she was enjoying the maternity benefit but the centre refused the court held that the petitioner in asking work from home is their right under section 5(5) of the 2017 Act but, there are some criteria to which work from home cannot be used as the petitioner’s job was sensitive it cannot be done at home so the court had instructed the institute to take proper measure to provide childcare and concern about the mothers. **Dr. Rachna Chaurasiya V. State of U.P. and others passed (2017)** The state government was ordered by a division bench of the High Court of Madras to provide 180 days of paid maternity leave to all women irrespective of their work in nature whether permanent, temporary or contractual basis. The women employees must be granted with 730 days of childcare leave who have minor child or age group of 18 years. Maternity leave cannot be excluded from a woman employee’s employment term. **Maternity Benefit in other countries** More than 120 countries around the world provide paid maternity leave for their working women “In all parts of the world, working women who became pregnant are faced with the threat of jobs loss, suspended earnings and increased health risk due to inadequate safeguards for their employment”[\[14\]](#_ftn14) The most paid maternity leave countries are Hungary- 24 weeks, Italy- 5 Months, Canada- 7 weeks, and Spain and Romania-16 weeks for the birth of the child or to care for a newborn. In the US, the Family and Medical Leave Act (FMLA) of 1993 provided 12 weeks of unpaid leave during the 12 months for the birth of a child and the care of the newborn. There is some debate about days and weeks of maternity leave some have the standard of 12 weeks and others with 14 weeks also some countries have less than 12 weeks. Moreover, some countries provide weeks based on the number of children. In Nepal, women may take just two maternity leave whereas, in the Bahamas and Tanzania, women are allowed to take only one maternity leave in three years. The ILO has given some special protection to women working as childbirth, pregnancy and postnatal periods are very important to women in their reproductive life women’s health is prioritized more than work. **CONCLUSION** The Maternity Benefit Act, of 1961 was introduced to protect and safeguard the women employees in society and their health. No women shall be deprived of their work in the name of pregnancy and insecurity of their job. The 1961 Act provides eligibility for women to enjoy the benefits provided under the Act and maternity leave of 12 weeks during pregnancy and postnatal for women. The changes were brought in several maternity leave weeks through the 2017 Amendment. The crèches facilities for children 6 years and above mandate the employer to provide. The women shall be allowed to visit crèches four times a day with a resting period. The right to payment by the employer to the employee if both mother and child died then to her representative. **REFERENCES** - **Online Articles / Sources Referred** - [https://labour.gov.in/sites/default/files/the\_maternity\_benefit\_act\_1961\_0.pdf](https://labour.gov.in/sites/default/files/the_maternity_benefit_act_1961_0.pdf) - - - - - **Cases Referred** - Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another (2000) - Archana Pandey v. State of Madhya Pradesh & others (2016) - Prachi Sen v. Ministry of Defence (2021) - Rachna Chaurasiya V. State of U.P. and others passed (2017) - Bahra University vs. Pooja Bhardwaj and Ors - Rakhi v. State of Kerala - Rasitha C. H. V. State of Kerala - Satakshi Mishra v. State of UP - **Statutes Referred** 1. The Maternity Benefit Act, 1921 2. The Maternity Benefit (Amendment) Bill, 2017 [\[1\]](#_ftnref1)Vinod, *Maternity Benefit Act, 1961*,(Dec. 21,2005) [\[2\]](#_ftnref2) Miranda Bryant, *Paternity leave: US is least generous in the list of world’s richest countries*, The Guardian (Jan. 29, 2020), https://www.theguardian.com/us-news/2020/jan/29/paternity-leave-us-policy. [\[3\]](#_ftnref3) The Maternity Benefit Act, 1961 [\[4\]](#_ftnref4) (Sept.2, 2022), https://www.livelaw.in/pdf\_upload/satakshi-mishra-v-state-of-up-thru-prin-secy-secondary-edu-dept-lucknow-and-4-others-writ-a-no-5114-of-2022-allahabad-high-court-433306.pdf. [\[5\]](#_ftnref5) Municipal Corporation of Delhi v. Female Worker (Muster Roll) 2002 [\[6\]](#_ftnref6) Section 5 (5) of Maternity Benefit Act 1961 [\[7\]](#_ftnref7)C183 – Maternity Protection Convention, 2000 (No. 183) [\[8\]](#_ftnref8) WP(C). No. 30561 of 2017 [\[9\]](#_ftnref9) WP(C). No. 5507 of 2018 [\[10\]](#_ftnref10) Tamil Nadu Government Gazette [\[11\]](#_ftnref11) \[CWC Number 2955 of 2019\] [\[12\]](#_ftnref12) 2000 INSC 129 [\[13\]](#_ftnref13) AIRONLINE 2017 MP 94 [\[14\]](#_ftnref14) F.J.Dy-Hammar, chief, ILO condition of work Branch, Maternity Protection at work. **Categories:** Articles, Labour Law --- ### [Conditions of Patentability under Patent Act: Provisions, Cases and Principles](https://lawfoyer.in/conditions-of-patentability-under-patent-act-provisions-cases-and-principles/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Ishika Goyal, Student, Delhi Metropolitan Education (IP university)** **Edited by: Madhumita Saha, Student, Lajpat Rai Law College, Sambalpur University, Odisha.** **INTRODUCTION** A patent is typically an exclusive right awarded for an invention, product or even a process that is beneficial and provides a new way of doing something or even a new technical solution that is related to a problem. To obtain a patent, Technical information, including inventions, must be made available to the general public in the application for a patent. It is even more interesting to know about the history of patents. The patent law in India began in 1911, when the Patents and Designs Act, of 1911 was enacted. The Patents Act, of 1970 is the law that governs patents in India until nowadays. Moreover, the patent law was first implemented in 1972. The Office of the Director of Patents, Designs and Trade Marks or CGPDTM is the governing body for Indian patent law. It has its main patent office in Kolkata and branches in New Delhi, Chennai and Mumbai. Additionally, The CGPDTM office is located in Mumbai. Nagpur hosts the Patent Information System Office and the National Institute of Intellectual Property Management. Even the Director General shall oversee the administration of this Act and advise the Government on matters relating thereto. The Patent Act was amended several times in 1999, 2002, 2005, and 2006 and these amendments were necessary to comply with the TRIPS Patent Act. the TRIPS stands for Trade Aspects of Intellectual Property. In addition, A major change in patent law occurred in 2005, when product patents were extended to all technological areas such as food, medicine, chemicals and microorganisms. The laws were also amended under the Patents Act in 2012, 2013, and 2014. In this article, we will discuss more about the India Patent Act along with the different Patentability Conditions. **Keywords:** 1. India Patents Act 2. Indian Patent Act 1970 3. Patentability Conditions 4. Patent Act Provisions 5. Patent Principles ## What can be patented? Scientist Chakrabarty applied for patent protection for his invention of a process for creating bacteria that could degrade several different components of crude oil. He made several assertions about the bacterium, including how it developed, the bacterium itself, and an inoculum that contained the bacterium and a carrier material. Chakrabarty’s application for a patent on the bacteria was rejected because it did not satisfy the necessary subject matter requirements, even though the examiner concluded that a patent was warranted for the procedure and the inoculum. The patent examiner states that a live organism is not eligible for patent protection under the 1930 Plant Patent Act or 35 U.S.C. Section 101. Conflicting conclusions were made on the subject by several appellate review bodies. The Indian Patents Act, 1970 made plain the limitations on what can be patented in India in Sections 3 and 4. To receive a patent in India, several requirements must be met. They are as follows: **1. Patent Subject:** Determining whether the invention is related to a patentable subject matter is the most crucial step. The Patents Act lists non-patentable subject matter in Sections 3 & 4. Moreover, The innovation is patentable unless it comes under one of the provisions of Sections 3 or 4. 2. **Uniqueness:** When evaluating an invention’s patent prospects, innovation is a crucial factor. A novelty or new invention is defined as “no invention or technology published” under Section 2(l) of the Patent Act. 3. **Creative actions or ambiguity:** The characteristic of a patent involves technological advancement of economic importance or both. However, It must be relevant to existing knowledge, and an invention that is not evident to a person knowledgeable in the art is defined as an innovative step under Section 2(ja) of the Patent Act. Additionally, This implies that an individual with expertise in the same sector as the invention should not be able to see the idea immediately. For someone with expertise in the same field, it shouldn’t be both imaginative and obvious. **4. Suitable for industrial use:** The Patents Act’s Section 2(ac) defines industrial application as “the invention is capable of being made or used in an industry.” In essence, this indicates that the invention cannot exist in a vacuum. It must apply to all industries, This means that it must be valuable for patents. These are legal requirements for an invention’s patent. The publication of a competent patent is another crucial need for receiving a patent. A competent patent disclosure is one in which the invention is sufficiently disclosed in a patent draft specification to prevent undue effort by a person with similar expertise from carrying out the invention. **Conditions of the Indian Patent Act 1970** Indian patents are granted under the Indian Patents Act, of 1970 if the innovation meets the following conditions: 1. The construction must be original. The invention should not be obvious or involve new methods. 2. It should be well made for business use. Inventions can only be made using construction or methods that can be prevented. 3. Sections 3 and 4 of the Patents Act 1970 shall not apply. 4. Nuclear power generation not subject to safeguards: Nuclear power generation facilities falling under clause (1) of section 20 of the Energy Act, 1962, are not subject to safeguards. 5. Any of the people mentioned there can request the first page, alone or jointly with another person. Each patent application must be for a single invention, presented in the required form and submitted to the Patent Office. ## Rights and duties of the patent owner **Patent rights** 1. The patentee has the exclusive right to use, use, sell or distribute the registered product or material in India, to use or use the method, or in practice if the patent is owned by an individual. The patent holder may exercise this right either through his representative or through the licensee. The rights of the patent holder can only be exercised during the term of the patent. 2. The patent holder has the right to transfer rights or grant a license to make other payment arrangements. The license or assignment must be in writing and registered with the patent officer to be valid and valid. A patent assignment will not be accepted as evidence of patent ownership by anyone unless it is registered, and this applies to the grantor, not the grantee. 3. The patent holder has the right to surrender his patent, but before accepting the surrender, the surrender notice will be sent to the persons named as beneficiaries of the patent as opposed. , It works. The application for release will also be published in the official gazette so that interested parties can protest. 4. A patent owner has the right to sue for patent infringement in the district court that has jurisdiction over the action. **Obligations of patentee** 1. It is believed that the government may restrict or forbid the use of a patent under certain conditions. A patented invention may be exploited, or even purchased, by the government for its purposes. If a medication or drug has a patent, the government may import it for its use or distribute it at any hospital, dispensary, or other medical facility that it operates or contracts with. The patent holder’s permission or payment of royalties is not required for the aforementioned use. In addition, the government may demand a patent or sell goods made using a patented technology in exchange for royalties. 2. The Controller may give any applicant a compulsory license to work the patent if it is not worked sufficiently to meet the legitimate needs of the public at a fair cost. The Indian Patent Act contains a provision known as a compulsory license that gives the government the authority to order a manufacturer of generic drugs to provide affordable medications for the general population even while the product is still covered by a valid patent. In cases where one patent cannot be worked without the other, compulsory licenses may also be sought for related patents. 3. If there has been no work done on the patented innovation or if the public’s demands have not been met, a patent may be revoked. Patents for defence-related inventions may be subject to various confidentiality clauses, meaning that the controller may restrict or forbid the invention’s release. The application is banned from use upon the continuation of such an order or the prohibition of publishing or transmission of a patented invention, and the Central Government may utilize it in exchange for paying the applicant royalties. 4. If a patent has lapsed, it may be renewed as long as the patent holder’s rights are not severely restricted. The patent cannot pursue infringement claims where the infringement occurred between the date of the infringement and the date of the application for reinstatement’s announcement. ## Grounds of opposition to patents Under section 25 of the 1970 Act, a patent application can be rejected on several grounds: 1\. False purchase: If the patent was obtained by mistake on the part of the opponent, it can be challenged. The novelty of this invention is evaluated in light of the prior art. Preconceived notions cannot be challenged. 2\. Prior publication: If the invention was published before the date on which priority is claimed, it can be rejected. The publication should show the details of the production. 3\. Public use: Public use of the invention before the first date is a ground for objection. Secret use is not considered. 4\. Of course: If the invention is discovered without a manufacturing process, you can oppose the patent application. Ambiguous cases are referred to the Supreme Court. 5\. Unpatentable Inventions: Applications for inventions falling under non-patentable categories will be rejected. 6. Description is not enough: The description of the object must be clear. Applications that do not match or have insufficient explanations will be rejected. 7\. Silence foreign applications: If the applicant has registered for such foreign invention, inform the administrator. Failure to do so may result in objections. 8\. Suspend Conference Request: Conference requests must be submitted within 12 months of the initial request to maintain priority. Delay results in failure. Legal requirements under WIPO for patentability : All countries have their list of needs and requirements to obtain a patent. Whereas There is no list of requirements for this field, WIPO provides important conditions that must be met to obtain a patent. these are: 1. The invention for which a patent is applied must meet the requirements of novelty. It should not be like the old art, it should be up to date with the current knowledge in the technical fields. 2. To be invisible, involves some thinking moves. It is meant to be beyond the reach of a common man with his ordinary faculties. It must be used in industry, that is, industrial use. 3. The object of the invention must be included in the category of patentable material. When applying for a patent, the information and details of the invention must be clearly stated. ## The Patents (Amendment) Bill 2005 passed by the Indian Parliament The Indian Parliament has passed the Patents (Amendment) Bill, 2005, which replaces the Patents (Amendment) Ordinance, 2004, which was previously passed by the Government of India in December 2004. India was required to introduce product patent protection in these areas from 1.1.2005 under the obligations under the WTO TRIPS Agreement. To fulfil this requirement, the Government of India issued an order in 2004. This decision must be approved by the Parliament. While introducing the Patents (Amendment) Bill 2005 to the Parliament, the Government made some changes in the provisions of this Act. ## The doctrine of equivalent patents Literal and non-literal patent infringements are the two main categories of patent infringements. A literal duplicate of the copyrighted innovation is required for a literal infringement to take place. For instance, it was deemed a literal copy of the copyrighted idea in the 1986 Polaroid Corp v. Eastman Kodak case when Eastman Kodak directly utilized Polaroid’s “instant camera technology.” Conversely, an indirect infringement implies a degree of inadvertent infringement or malicious intent. For instance, in Ravi Kamal Bali v. Kala Tech and others \[2008\], the product was deemed to be infringing even if its primary body had a different structure since there was no functional or constructional difference between it and the other goods. This would clarify everything. The field of indirect infringements is governed by the Doctrine of Equivalent Patents. The doctrine allows the patent holder to assert a claim even in situations when the patented invention’s claim is not replicated in the product that is being copied. This philosophy has developed to prevent people from making minute modifications to inventions while maintaining the functionality of the final product and preventing them from reaping the rewards of the patentee’s labour and capital. **Case Laws** **Diamond v. Chakrabarty, 447 U.S. 303 (1980)** Scientist Chakraborty filed for patent protection after he discovered a way to create a bacterium that could break down various components of crude oil. His assertions included the bacterial growth mechanism, the bacterium itself, and an inoculum that contained the bacterium and a carrier material. Chakrabarty was not granted a patent for the bacteria itself because it did not fit the requirements for patent subject matter, even though the examiner concluded that a patent was warranted for the procedure and the inoculum. A living organism cannot be patented, according to the patent examiner, under 35 U.S.C. Section 101 and the 1930 Plant Patent Act. Diverse appellate review panels arrived at conflicting conclusions regarding the subject. **Novartis v. Union of India (2013)** Novartis applied to the Indian Patents Office and the Patents Controller to get a patent for a medication known as “Gleevec.” However, the application was denied. The corporation appealed and contested each rejection in the Supreme Court. **CONCLUSION** The Indian Patent Act of 1970 governs patents in India, granting exclusive rights for inventions, products, or processes that provide new ways of doing something or technical solutions to problems. The governing body is the Office of the Director of Patents, Designs and Trade Marks (CGPDTM), with offices in Kolkata, New Delhi, Chennai, and Mumbai. The Act has been amended several times to conform to the TRIPS Patent Act, which covers commercial aspects of intellectual property. TA the same time, Each patent application should be linked to an invention and therefore, it should be submitted to the Swedish Patent Office. Whereas, this shows the Patent owners have exclusive rights to use, sell, distribute, transfer rights, grant licenses, file patents and sue for patent infringement. Governments can restrict or restrict the use of patents under certain conditions. **REFERENCES** 1. [https://blog.ipleaders.in/what-is-a-patent-law-in-india/#Rights\_and\_obligations\_of\_the\_patentee](https://blog.ipleaders.in/what-is-a-patent-law-in-india/#Rights_and_obligations_of_the_patentee) 2. [**https://blog.ipleaders.in/understanding-doctrine-equivalent-patents/**](https://blog.ipleaders.in/understanding-doctrine-equivalent-patents/) 3. [**https://lawfoyer.in/right-to-education-under-article-21-of-the-indian-constitution/#google\_vignette**](https://lawfoyer.in/right-to-education-under-article-21-of-the-indian-constitution/#google_vignette) 4. [**https://supreme.justia.com/cases/federal/us/447/303/**](https://supreme.justia.com/cases/federal/us/447/303/) **Categories:** Articles, Intellectual Property Law --- ### [Constitutionality of waqf act, 1955](https://lawfoyer.in/constitutionality-of-waqf-act-1955/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** ***Author: Nitin Kumar*** ***Edited By: Aneel Meghani*** ***INTRODUCTION*** *In Islam, a “waqf” is a trust-held property endowment used for religious or philanthropic purposes. According to, Section 3(r) of the Waqf Act, 1995, it is the permanent donation, in Muslim law, of any moveable or immovable property by an individual for pious, religious, or charitable purposes. By putting property away, you can make sure that it is no longer transferable and that Allah owns it, existing outside of human ownership and use. Fundamentally, a waqf upholds the notion of property devoted to the service of God and society by meeting the needs of the community in terms of religion, education, or social welfare.**1** Since the law of waqf is entwined with Muslims’ entire religious life and social economy, it is considered the most significant branch of Mohammedan law2 and The Waqf Act of 1995’s primary goal is to improve Waqf management and address issues related to or tangential to it.3 The President gave his approval to the Waqf Act, 1995 on November 22, 1995, after it was passed by Parliament. According to Section 1(3) of the Act, each State would be required to implement the Act on a day that will be announced in the official gazette by the federal government. The Central Government published a notification designating January 1, 1996, as the effective date of the aforementioned Act, in accordance with Section 1(3) of the 1995 Act.371, The Act is organized into IX Chapters with 113 Sections. While Chapter II (Sections 4-8) addresses the issue of the survey of auqaf, Chapter I (Sections 1-3) is preparatory. The Chapter III (Sections 9-12) deals with the constitution of the Central Waqf Council, Chapter IV (Sections 13-35) provides for establishment of Boards and their functions. And the Auqaf registration is covered in Chapter V (Sections 36-43), while Auqaf account maintenance is covered in Chapter VI (Sections 44-71). The topics of the Board’s finances, judicial proceedings, and miscellaneous are covered in Sections 72–82, 83–95, and 96–113 of Chapters VII, VIII, and IX, respectively.* ***KEYWORDS:** Waqf, Personal laws, Constitutional validity, Religious freedom, Charitable purpose.* ***HISTORICAL BACKGROUND*** *A significant portion of the background of waqf legislation in India comes from the struggle for better waqf protection and management during British rule. Five years after India attained independence, this movement resulted in the Central Wakf Act, 1954. In the lengthy history of waqf legislation, this Act represented a critical turning point with its goal of enhancing waqf management nationwide. With the exception of West Bengal, Uttar Pradesh, and portions of Maharashtra and Gujarat, where prior regional statutes remained in effect, the 1954 Act applied to the majority of India.4 It was the first major attempt to implement standard waqf management throughout the nation. But when the Act was being put into practice, a number of flaws were discovered, which prompted a number of changes in 1959, 1964, 1969, and 1984. In the end, these modifications resulted in the adoption of the new, more extensive Waqf Act in 1995.5 The objective of this Act is to address the shortcomings of its predecessor and encourage greater uniformity in waqf management across India. It is applicable only to Jammu & Kashmir and the Dargah Khwaja Saheb in Ajmer. The Waqf Board now has a more democratic constitution with a majority of elected members, the Chief Executive Officer has more authority to evict encroachers, and the statute of limitations for waqf property recovery under adverse possession is waived, among other significant changes brought about by the 1995 Act.* ***MODES OF CREATION WAQF*** *The following methods can be used to build waqf.* - ***By an act inter vivos**– This kind of waqf is made between living people; it is formed during the waqif’s lifetime and is effective right away.* - ***By will–** An act inter vivos waqf and a waqf created by will are incompatible. It is also referred to as “testamentary waqf” and goes into effect following the waqif’s passing. Without the heirs’ permission, a waqf of this kind cannot manage more than one-third of the net assets.* - ***During death or illness (marz-ul-maul)–** Similar to gifts given while a donor is near death, they will be effective up to a third of the property’s value without the heirs’ permission.* - ***By immemorial user–** Waqf property production is likewise subject to time constraints, although it can be created by enduring use.* 1. ***ESSENTIAL OF WAQT*** - ***In Perpetuity:** A “Waqf” is a long-term contract that ensures that the ownership of the property is always available for as long as needed. For a certain period of time, a “Waqf” cannot exist.* - ***Irrevocability:** The “Waqf” is unchangeable when generated. As a result the property is regarded to be owned by God.* - ***Inalienability:** When a “Waqf” is formed, the property is assumed to belong to God. Thus, “Waqf” property cannot be sold, transferred, or encumbered. Aside from the “Waqf’s” basic necessities, any attempt to alienate “Waqf” property without court permission is illegal.* - ***Absoluteness:** The real estate in “Waqf” is settled completely and unconditionally. A contingent or conditional “Waqf” is empty and unenforceable.* - ***Religious or Charitable Use of Usufruct:** According to Muslim law, the goods and benefits of “Waqf” assets can only be utilized for spiritual, pious, or charitable objectives* ***APPLICATION OF WAQF ACT, 1955*** *Through exception of the Durgah Khawaja Saheb in Ajmer, which is governed by the Durgah Khawaja Saheb Act, 1955, Section 2 of the Waqf Act, 1995 applies to all auqaf, the possibility that established before or following the Act’s inception. This means that the Waqf Act of 1995 does not apply to the Durgah Khawaja Saheb in Ajmer or any other waqfs that are administered under unique or local regulations. The provision in Section 2 explicitly exempts the Durgah Khawaja Saheb, ensuring it remains under the jurisdiction of the Act of 1955**.6** The Waqf Act, 1995 generally has retrospective operation, but its application to the law of limitation is specific. According to Section 107 of the Act, the Limitation Act, 1963 does not apply to suits for possession of immovable property or any interest in such property that is part of a waqf. While the Waqf Act, 1995 is retrospective in many cases, court decisions have shown that it is not always applied retrospectively in all instances.7* *In Sk. **Abul Kalam v. Umapada Maity**,8 the Calcutta High Court ruled that the Waqf Act, 1995 cannot apply retrospectively if the plaintiffs were out of possession since 1958, as their claim for recovery was already barred before the Act came into effect. The Supreme Court in **K.C. Dora v. G. Annamanaidu9** stated that changes in substantive law during a pending action do not alter the rights of the parties unless the new statute explicitly indicates such an intention. Additionally, in **Sardar Khan v. Syed Najmul Hasan,10** The Waqf Act does not apply to lawsuits or processes filed prior to January 1, 1996, the day the Act went into effect, the Apex Court said. It is not stated clearly in the Waqf Act, 1995 that it is retroactive.* *Consequently, in **Sawarkhanam v. Macca Madina Allauddin Wakf**,11 the Allahabad High Court noted that parties’ rights are determined based on the law at the time of the suit’s initiation, and the Waqf Act’s provisions do not appear to be retroactive**.*** *In **T. Kaliamurthi v. Five Gori Thaikal Wakf**,12 the appellants argued that the Waqf Act, 1995, which came into force on January 1, 1996, could not revive claims barred under the Limitation Act, 1908. They contended that the right over the property, transferred in 1927, was extinguished through the Act of 1908, and Section 107 of the Waqf Act could not revive this barred claim. Citing Section 6(a) of the General Clauses Act, 1897, and Section 112 of the Waqf Act, they argued that a repeal cannot revive extinguished claims. The Apex court agreed, ruling that Section 107 of the Waqf Act, 1995, cannot revive claims or extinguished rights barred under previous limitation laws. The Court affirmed that once a right to sue is barred under the law of limitation in force, it cannot be revived by new legislation.* *In contrast in **Shehzadi v. The Chief Executive Officer**,13 The petitioner challenged a decision requiring them to give the Managing Committee custody of properties that were in dispute. According to Section 3(ee) of the Waqf Act, 1995, which encompasses anyone occupying waqf property without legal authority, the respondent contended that the petitioner was an encroacher. Before the Waqf (Amendment) Act, 2013, the waqf institution had to follow procedures like terminating leases before evicting occupants. However, the amendment introduced a new procedure for reclaiming possession, allowing the Chief Officer to act under Section 54 of the Act. The Bombay High Court ruled that Section 3(ee) had retrospective effect, meaning the new procedures applied even to situations that arose before the amendment. This allowed waqf institutions to approach the Chief Officer for eviction under the amended provisions.* ***DOES THE 1995 ACT VIOLATE ARTICLE 14, 25, and 26 OF THE CONSTITUTION?*** *In **Maulana Kureshi Gulam Mustafa v. Union of India,** the Waqf Act, 1995 was contested on the grounds that it was unconstitutional under Articles 14, 25, and 26 of the Indian Constitution. Article 25 provides religious freedom, Article 26 gives religious denominations the authority to run their own affairs, an14d Article 14 assures the right to equality.* *The main challenge was that the Act divided Muslims into “Sunnies” and “Shias” without recognizing “Sufi Silsilas.” The petitioner argued that this division was unconstitutional. However, the Gujarat High Court upheld The statute states that the Waqf Board’s composition includes elected members from both Houses of Parliament and State Legislatures, Bar Councils, Private Muslim Organizations, and Islamic scholars, ensuring broad representation.* *The Court found no violation of Articles 25 and 26, asserting that the Act does not interfere with religious activities or deny the freedom to manage religious properties. The non-recognition of Sufi sects in the Waqf Board’s composition does not infringe on their constitutional rights. Thus, the Court rejected the petition, affirming the Act’s alignment with the constitutional framework.* *In **Association of A.P. Sajjada Nasheens, Mutawallies v. Secretary, UOI**,15 it was argued that Section 14 of the Waqf Act of 1995 declared unlawful, violating Articles 14, 25, and 26 of the Indian Constitution. The petitioners contended that the Act, which aims to democratize and improve Waqf administration, actually undermined the powers of Mutawallis and gave control to individuals unconnected with the waqfs.* *They argued that the Waqf Board’s composition, with only one member representing Mutawallis out of eleven, was detrimental to the waqfs and violated Article 14’s guarantee of equality. The petitioners also claimed that the Act contravened Articles 25 and 26, which protect the rights of religious denominations to manage their own affairs and properties Specifically, the criteria for choosing representatives, which required waqfs to have an annual income of one lakh and above, was seen as arbitrary and discriminatory. The court found this provision discriminatory, violative of Article 14, and arbitrary, and thus struck down Section 14(1)(b)(iv) of the Waqf Act, 1995.16 But the rest Sections of the Act remained constitutionally valid. The Court further observed:* *It is stated that the right under Article 26 of the Constitution is not absolute and can be subject to reasonable regulations by the State. It highlighted that fundamental rights must coexist harmoniously and cannot exist in isolation. Therefore, the petitioners’ argument that the Waqf Act, 1995 is unconstitutional and violates Articles 14, 25, and 26 was found to be without merit.* ***Difficulties regarding the Waqf Act of 1995*** *There was some disagreement regarding the Waqf legislation of 1995’s restriction of civil court authority and the authority of waqf tribunals. The plaintiff held the claim to property, whereas the defendant possessed the home adjacent to the land’s northern boundary. In the matter of **Nagore Andavar Sambiranichatty Dhoopam Family Trust, Nagapattinam vs. S. Jegabar Ali,17** the Madras High Court rendered this decision But the defendant built a restroom and a water tank on the plaintiff’s land while intruding.* *The party defending the case then challenged the plaintiff’s claims, alleging that he had held the land for a period exceeding twenty years and that his predecessors had profited from it. The plaintiff’s ownership of the suit estate and the action’s capacity to proceed there were contested in the civil justice system. The High Court has concluded that waqf tribunals should hear all issues related to waqfs and waqf properties because civil courts lack jurisdiction over them, in line with Section 85 of the Waqf Act, 1995. In a comparable manner it was argued **in case of Intazamia Committee Idgah v. M.P. Waqf Board18** that the Civil Court’s jurisdiction is waived in the event that an appeal is filed against a Tribunal judgment and the Tribunal’s decision is deemed final.* *The Apex court had to decide on a dispute concerning the establishment of the Maharashtra Board of Waqfs and its impact on the waqfs established by individuals from various Islamic law sects in the case of **Maharashtra State Board of Wakf v. Shaikh Yusuf Bhai Chawl.**19 Prior to this, The Bombay Trust Act governs public trusts in Maharashtra, whilst the Waqf Act of 1954 governs waqfs.* ***CONCLUSION*** *An important change to the Waqf Act of 1995 serves as the Indian legal structure for administering waqf holdings. The Indian Constitution’s Articles 14, 25, and 26 have been the subject of constitutional disputes, although the Act has generally been affirmed as lawful by the courts. The Act’s primary goal of improving Waqf management of land and standardized management across India has been acknowledged as a valid state goal. Courts have generally found that it does not infringe upon religious freedoms or the rights of religious denominations to manage their affairs. The composition of Waqf Boards, designed to ensure broad representation, has been seen as a democratic approach to waqf management.* *However, some provisions have been contested. Certain criteria for selecting Waqf Board representatives have been struck down as discriminatory. The exclusion of civil court jurisdiction in favor of waqf tribunals has also been debated, though mostly upheld.* *The Act’s retrospective application, particularly regarding limitation periods for property claims, has been a complex issue. Courts have ruled that it cannot revive claims already barred under previous laws.* *Overall, the Waqf Act, 1995 remains crucial in waqf property management, balancing modernization efforts with constitutional principles and religious freedoms.* ***REFERENCES*** 1. ***Books / Commentaries / Journals Referred*** 2. *Ameer Ali, Principles of Mohammedan Law (Allahabad Law Emporium, 1983)* 3. *Tahir Mahmood, “The Wakf Act 1954 as Amended by the Wakf (Amendment) Act of 1984”, 5 Islamic and Comparative Law Quarterly (1985)* 4. *Furqaan Ahmad, “The Wakf (Amendment) Act 1984: An Analysis” 5(1) Islamic and Comparative Law Quarterly (1985)* 5. *Ateeque Khan, “The Wakf (Amendment) Act 1984 — A Plea for Reconsideration”, 5 (1) Islamic and Comparative Law Quarterly (1985)* ***Online Articles / Sources Referred*** 1. *Abanti Bose, ‘Understanding the essential provisions of the waqf act, 1955’ (ipleader, 28 Aug 2020) * ***Cases Referred*** 1. *Sharifan Biwi v. Prabhu Saran Rajvedi, 2016 (6) ADJ 678: 2016 (117) ALR 852* 2. *Syed Thajuddin v. Syed Mohideen, (2011) 2 MLJ 105* 3. *Prince of Arcot, Endowments v. Tamil Nadu Wakf Board, 2006-4-LW479: (2006) 3 MLJ 856* 4. *Manick Mohan Saha v. Md. Masudal Haque, 2005 (1) CHN 512: (2005) 1 CALLT 357 (HC)* 5. *Yeshwantrao Laxmanrao Ghatge v. Baburao Bala Yadav, AIR 1978 SC 941: (1978) 1 SCC 669* 6. *Bharat Barrel v. The Employees’ Estate Insurance Corporation, AIR 1972 SC 1935: (1971) 2 SCC 860* 7. *Indira Sohan Lal v. Custodian of Evacuee Property, AIR 1956 SC 77: \[1955\] 2 SCR 1117* 8. *Sk. Abul Kalam v. Umapada Maity, 2007 (4) CHN 962: 2007 (2) CLJ (CAL) 781* 9. *K.C. Dora v. G. Annamanaidu, AIR 1974 SC 1069: \[1974\] 2 SCR 655* 10. *Sardar Khan v. Syed Najmul Hasan, AIR 2007 SC 1447: (2007) 10 SCC 727* 11. *Sawarkhanam v. Macca Madina Allauddin Wakf, 2018 (1) ALD 341* 12. *T. Kaliamurthi v. Five Gori Thaikal Wakf, AIR 2009 SC 840: (2008) 9 SCC 306* 13. *Shehzadi v. The Chief Executive Officer, 2016 (4) Mh LJ 675* 14. *Maulana Kureshi Gulam Mustafa v. Union of India, AIR 2002 Guj 252* 15. *Association of A.P. Sajjada Nasheens, Mutawallies v. Secretary, UOI, 2010 (1) ALT 112: 2010 (4) ALD 136* 16. *Hafiz Mohamed Zafar Ahamed v. U. P. Sunni Central Board of Wakfs, AIR 1965 All 33* 17. *Nagore Andavar Sambiranichatty Dhoopam Family Trust, Nagapattinam vs. S. Jegabar Ali, AIR 2012 (Mad) 303* 18. *Intazamia Committee Idgah v. M.P. Waqf Board, AIR 1996 (MP) 47* 19. *Maharashtra State Board of Wakf v. Shaikh Yusuf Bhai Chawl, 2012 (6) SCC 32* ***Statutes Referred*** 1. *The Waqf Act, 1995* 2. *The Durgah Khawaja Saheb Act, 1955* 3. *The Limitation Act, 1963* 4. *The General Clauses Act, 1897* 5. *The Waqf (Amendment) Act, 2013* 6. *The Constitution of India (Articles 14, 25, 26* 7. *The Central Wakf Act, 1954* 8. *The Bombay Trust Act* **Categories:** Articles, Constitutional Law --- ### [Nirmal Singh Kahlon v/s State of Punjab AIR 2009 SC 984](https://lawfoyer.in/nirmal-singh-kahlon-v-s-state-of-punjab-air-2009-sc-984/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** Author: Swareena Singh Edited By- Biraj Kumar Sarkar **ABSTRACT** The Supreme Court reviewed whether the conviction was legally valid and if the trial followed proper procedures under the Prevention of Corruption Act. They looked at whether there was enough evidence, whether the trial was conducted fairly, and if the correct legal standards were applied. The Court stressed the importance of following proper procedures in corruption cases, explained the level of evidence needed to prove corruption charges, and confirmed the need for a fair trial and justice. In the summary of the headnote, some points of the case: Validity of the second FIR, Impact of flawed investigation on trial, Permissibility of a new complaint based on further investigation, Segregation of trial, and transfer of materials to the CBI court. ***Keywords*:** Corruption, Prevention of Corruption Act, Criminal Misconduct, Evidence, Fair Trial **CASE DETAILS[\[i\]](#_edn1)** ***i)* *Judgement Cause Title / Case Name*** Nirmal Singh Kahlon v/s State of Punjab ***ii)* *Case Number*** Civil Appeal Nos. 6198-6199 of 2008 (Arising out of SLP (C) Nos. 24777-24778 of 2005) ***iii)* *Judgement Date*** October 22, 2008 ***iv)* *Court*** SC (Supreme Court of India) ***v)* *Quorum / Constitution of Bench*** Three-judge bench of the Supreme Court: Chief Justice K.G. Balakrishnan, Justice R.V. Raveendran, and Justice P. Sathasivam ***vi)* *Author / Name of Judges*** Aftab Alam/ S.B. Sinha ***vii)* *Citation*** AIR 2009 SC 984, 2009 CriLJ 958, JT 2008 (12) SC 331, 2008 (14) SCALE 639, (2009) 1 SCC 441, 2009 (2) SLJ 371 (SC) ***viii)* *Legal Provisions Involved*** Prevention of Corruption Act, IPC Sections 409 and 420, and CrPC Sections 313 and 319. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The Nirmal Singh Kahlon vs State of Punjab case revolves around the alleged illegal recruitment of Panchayat Secretaries in Punjab, India. Nirmal Singh Kahlon, the then Rural Development and Panchayats Minister in the Government of Punjab, was accused of making these recruitments for his benefit by accepting bribes. **FACTS OF THE CASE** **Procedural Background of the Case** 1. Nirmal Singh Kahlon challenged the State of Punjab’s acquisition of his land for a special economic zone (SEZ) project by filing a writ petition with the Punjab and Haryana High Court. 2. The High Court dismissed his petition, so Kahlon appealed to the Supreme Court. 3. Kahlon filed a Special Leave Petition (SLP) with the Supreme Court to challenge the High Court’s decision. 4. The Supreme Court, with Justices R.V. Raveendran and A.K. Patnaik, agreed with Kahlon, overturned the High Court’s decision, and ruled that the land acquisition was unlawful and violated Kahlon’s rights. Kahlon then made another appeal to the Punjab and Haryana High Court, but his appeal was dismissed. 5. Kahlon filed another Special Leave Petition (SLP) with the Supreme Court, challenging this new High Court decision. 6. The Supreme Court accepted his petition and heard the appeal**.** **Factual Background of the Case** 1. Kahlon objected to the land acquisition, raising issues about the project’s feasibility, the compensation offered, and how it would affect his livelihood. His concerns were dismissed by the authorities between 2004 and 2005. 2. In 2006, the Land Acquisition Collector decided the compensation amount and took possession of the land. Later in 2006, Kahlon filed a writ petition with the Punjab and Haryana High Court, challenging the land acquisition. 3. The High Court dismissed his petition, so Kahlon appealed to the Supreme Court. 4. The Supreme Court ruled that the land acquisition was unlawful because it did not serve a “public purpose” and violated Kahlon’s rights under Article 300-A of the Indian Constitution. **LEGAL ISSUES RAISED** 1. Whether Nirmal Singh Kahlon, as the Minister for Rural Development and Panchayats, abused his position to make illegal recruitments of Panchayat Secretaries. 2. Whether Kahlon accepted bribes or other forms of gratification in exchange for making these recruitments. 3. Whether the police acted without the jurisdiction in investigating or continuing to investigate the case and Whether the Delhi Court acted illegally in taking cognizance of the case? 4. Whether the CBI investigation was conducted fairly and impartially, and whether its findings were based on credible evidence. 5. Whether the First Information Report lodged by the Vigilance Department of the state and the one lodged by CBI related to the same cause of action is the question. 6. Whether public servants like Kahlon can be held accountable for their actions, and what consequences they should face if found guilty of misconduct. **PETITIONER / APPELLANT’S ARGUMENTS** 1. Kahlon’s lawyer pointed out mistakes in how the investigation and trial were handled. They claimed there were problems with how evidence was collected and shown, which might have affected the fairness of the case. 2. Kahlon’s lawyer stressed that his assets were legally obtained. They argued that Kahlon had a legitimate income source that matched his financial status and explained his wealth. 3. Kahlon’s lawyer argued that the prosecution twisted or chose facts unfairly to make their case against him. They said that if the evidence were looked at fairly, it wouldn’t support the charges. 4. Kahlon’s lawyer pointed out that criminal cases, especially serious ones like corruption, need strong proof. They argued that the prosecution didn’t provide enough evidence to meet this high standard. 5. They pointed out past court cases that highlight the need for strong and clear evidence to convict someone of corruption. They argued that these important precedents were not properly considered in Kahlon’s case. 6. Based on their arguments, the defense asked the Supreme Court to cancel the lower court’s decision and clear Kahlon of all charges. They argued that the evidence wasn’t strong enough, there were mistakes in the process, and the prosecution’s case was seriously flawed. **RESPONDENT’S ARGUMENTS** 1. The lawyers for the Respondent argued that there was enough evidence to prove that Nirmal Singh Kahlon was involved in corruption. They said the evidence clearly showed a link between Kahlon’s wealth and his official position, which suggested he was corrupt 2. The prosecution used both documents and witness statements to show that Kahlon’s wealth didn’t match his known income sources. They presented financial records and other evidence to prove that Kahlon had unexplained money and inconsistencies in how he reported his assets. 3. The lawyer for the respondent claimed that the investigation was done properly and followed all legal rules. They argued that the investigation was fair and that there were no mistakes or biases that affected the trial. 4. They defended the way the evidence was gathered and shown, saying that the methods used were legal and correct. They argued that any claimed mistakes in the process didn’t affect the trustworthiness of the evidence. 5. The prosecution disagreed with the defense’s claims about where Kahlon’s money came from. They argued that Kahlon’s explanations were not enough and did not explain why his assets were so much greater than what his income would suggest. 6. The lawyers argued that the explanations for asset discrepancies presented by the defense were inadequate and did not resolve the issues raised by the prosecution. They maintained that the inconsistencies were substantial and indicative of corrupt practices. 7. The respondent’s counsel emphasized that the prosecution had established a clear link between Kahlon’s accumulation of assets and his corrupt practices. They argued that the evidence demonstrated that Kahlon had used his position for personal gain, which was a hallmark of corruption. 8. The prosecution argued that they had provided enough proof to meet the high standard required in criminal cases, especially for corruption. They maintained that the evidence was strong enough to prove Kahlon’s guilt beyond any reasonable doubt. 9. The prosecution’s lawyers pointed out how anti-corruption laws and past court decisions applied to Kahlon’s case. They argued that the lower court’s decision was consistent with these legal principles and similar past cases. 10. They referred to previous cases that showed how to prove corruption and evaluate evidence. They argued that these cases supported Kahlon’s conviction and were used correctly in his trial. 11. Kahlon’s defense lawyer supported the lower court’s judgment, saying it was well-reasoned and based on evidence. They argued that the trial court had considered all the important factors and evidence properly. They asked the Supreme Court to keep Kahlon’s conviction, arguing that the lower court’s decision was justified based on the evidence and legal standards. They emphasized the need to uphold anti-corruption laws and hold public officials accountable. 12. The prosecution’s lawyers stressed the importance of following the law and holding public officials accountable. They argued that keeping Kahlon’s conviction was crucial for maintaining public trust in the legal and political systems. 13. They also said that upholding the conviction would discourage other public officials from engaging in corrupt practices, reinforcing the effectiveness of anti-corruption measures. **RELATED LEGAL PROVISIONS** 1. **Indian Penal Code (IPC), 1860** 2. **Sections 420, 467, 468, and 120(b):** 3. Section 420 IPC defines the offense of cheating that results in the dishonest inducement of property delivery or alterations of valuable securities, with punishments including imprisonment and fines. 4. Section 467 IPC addresses the crime of forging valuable documents or securities, prescribing severe penalties including life imprisonment or a term of up to seven years, along with possible fines. 5. Section 468 IPC criminalizes forgery done with the intent to cheat, with penalties including imprisonment of up to seven years and fines. 6. Section 120B IPC addresses criminal conspiracy, specifying punishments based on the severity of the intended offense. If the intended offense is severe, the conspirator faces similar punishment as for the principal offense; otherwise, the punishment is up to half the term of imprisonment provided for the offense. 7. **Prevention of Corruption Act, 1988** - **Section 13(2)**: - Provides that a public servant can be convicted if they are found to possess property disproportionate to their known sources of income and cannot satisfactorily account for it. It places the burden of proof on the accused to explain the source of the disproportionate assets. - **Section 13(1)(e)**: - This section deals with the offense of criminal misconduct by a public servant. It stipulates that if a public servant, during or after their tenure, is found to possess assets disproportionate to their known sources of income, they can be prosecuted for corruption. - **Sections 7 and 13:** - **Section 7**: Deals with the offense of accepting a bribe by a public servant. - **Section 13**: Outlines the various forms of criminal misconduct by a public servant, including possession of disproportionate assets. 4. **Code of Criminal Procedure (CrPC), 1973** - **Section 2(h)**: - Defines “investigation” and “trial” processes which are crucial in understanding the procedures followed in criminal cases including those involving corruption. - **Section 313**: - Provides for the examination of the accused during trial, allowing them to explain any evidence presented against them. - **Section 374**: - Provides the right to appeal against a conviction, which was exercised by Nirmal Singh Kahlon in this case to challenge the lower court’s decision. 5. **Indian Evidence Act, 1872** - **Section 3**: - Defines “evidence” and the types of evidence (direct, circumstantial) admissible in court, which are fundamental in evaluating the sufficiency of evidence in corruption cases. - **Section 114**: - Deals with the presumption of fact and law. In corruption cases, the court may draw adverse inferences from the failure of the accused to explain disproportionate assets. 6. **Constitution of India** - **Article 21**: - Guarantees the right to a fair trial. The defense in Kahlon’s case argued procedural fairness, and this constitutional guarantee is crucial in assessing whether the trial adhered to legal standards. - **Article 14**: - Ensures equality before the law and the right to equal protection, which underpins the argument for a fair trial and impartial judgment. 7. **Delhi Special Police Establishment Act, 1946**[\[ii\]](#_edn2) 8. **Central Act 25 of 1946 – Section 6:** 9. **Section 6 of the Delhi Special Police Establishment Act, 1946,** primarily deals with the extension of the Act’s provisions to areas beyond Delhi and the Union Territories. **JUDGEMENT [\[iii\]](#_edn3)** **RATIO DECIDENDI:** 1. The Apex court (i.e. the Supreme Court) accepted the limited resources of the Central Bureau of Investigation (CBI) and expressed hope that the CBI would investigate the case thoroughly and find the real culprits within a reasonable time. The court also addressed that if the CBI Director requests more funds and resources from the Government of India, the government should consider it objectively. 2. The court held that the registration of a second FIR (FIR No. 208) by the police, even after a final report was filed in the initial FIR (FIR No. 135), was permissible. This was because the second FIR contained a discovery about different accused being the real culprits, which amounted to a rival version of the same incident. 3. The court ruled that a defect or illegality in the investigation does not necessarily nullify the cognizance or trial by the court. 4. The court observed that if a further investigation by the CBI reveals a larger conspiracy than the one of the previous complaint, filing a new complaint is permissible (in this case). 5. In exercising its powers under Article 142 of the Constitution, the Supreme Court issued specific directions to the trial judge to segregate the part of the trial related to the appointment of Panchayat Secretaries and transfer the relevant materials to the CBI court for independent or combined hearing. 6. The court directed the CBI to file a chargesheet before a court having appropriate jurisdiction, as the investigation was complete. **OBITER DICTA** 1. The Court praised the CBI for its investigation, noting that it revealed a bigger conspiracy and more people involved than what was initially reported in the first FIR. 2. The Court said that the criminal justice system needs to be completely open and trustworthy so that ordinary people can have full confidence in its fairness. 3. The Court stressed that public servants should be held responsible for misusing their power or failing to do their duties properly. **CONCLUSION & COMMENTS** In this case, the Court concluded: 1. The second FIR (FIR No. 208) filed was valid, as it represented new information discovered during the investigation about the involvement of persons not named in the first FIR (FIR No. 135). 2. The illegality in the investigation does not have a direct bearing on the competence or the procedure relating to cognizance or trial by the court, as long as the court has the jurisdiction to take cognizance under Section 190 of the Code of Criminal Procedure. 3. If a further investigation by the CBI reveals a larger conspiracy than the one referred to in the previous complaint, filing a new complaint is permissible. The Court, in the exercise of its powers under Article 142 of the Constitution, directed the segregation of the part of the trial related to the appointment of Panchayat Secretaries and the transfer of the relevant materials to the CBI court to ensure complete justice to the parties. 4. In summary, the Supreme Court’s judgment addressed various aspects of the investigation and trial process, guiding the permissibility of a second FIR and the limited impact of an invalid investigation on subsequent trial proceedings **REFERENCES** **Important Cases Referred[\[iv\]](#_edn4)** 1. (2008) 12 SCC 541: (2008) 7 Scale 363, Indian Bank v. Godhara Nagrik Coop. Credit Society Ltd. 2. (2008) 9 SCC 54: (2008) 2 SCC (L&S) 802 : (2008) 12 Scale 252 Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar 3. (2008) 3 SCC 542: (2008) 2 SCC (Cri) 9, Divine Retreat Centre v Kerala Stine 4. (2008) )2 SCC 409: (2008) 1 SCC (Cri) 440, Sakiri Vasu v. State of U.P. 5. (2007) 1 SCC (Cri) 264, M. C. Mehta Paj Corridor 6. (2008) 2 SCC 383: (2008) 1 SCC (Cri) 427, State of A.P. VAS, Peter 7. (2007) 1 SCC 110: (Scam) v. Union of India 8. (2006) 12 SCC 534: (2007) 2 SCC (Cri) 100, State of WB. V. Committee for Protection of Democratic Rights 9. (2006) 12 SCC 421: (2007) 2 SCC (Cri) 72, Sasi Thomas v. State 10. (2006) 6 SCC 613: (2006) 3 SCC (Cri) 125, Rajiv Ranjan Singh Lalan (VIII) v. Union of India 11. (2004) 13 SCC 292: 2005 SCC (Ci) 211. Upkar Singh v. Ved 12. Prakash 13. (2002) 1 SCC 714: 2002 SCC (Cri) 269, Kari Choudhary v. Sita 14. (2001) 10 SCC 759: 2003 SCC (Cri) 1054. Rajesh v. Ramdep 15. (2001) 6 SCC 181: 2001 SCC (CH) 1048, T.T. Antony v. State of Kerala 16. (1998) 8 SCC 661: 1999 SCC (C) 84, Union of India V. Sushil Kumar Modi 17. (1998) 1 SCC 226; 1998 SCC (Cri) 307, Vineet Naram’y. Union of India 18. 1992 Supp (1) SỐC 222: 1992 SCC (Cri) 192, State of Bihar v. P.P. Sharmi 19. (1979) 2 SCC 322: 1979 SCC (Cri) 479, Ram Lal Narang v. State (Delhi Admn 20. AIR 1955 SE 196: (1955) 1 SCR 1150, H.N. Rishbud v. State of Delhi **Important Statutes Referred** 1. Prevention of Corruption Act, 1988 2. Sections 420, 467, 468, 120B OF Indian Penal Code, 1860 **ENDNOTES:** [\[i\]](#_ednref1) Vlex. in [\[ii\]](#_ednref2) SCC ONLINE EDITION [\[iii\]](#_ednref3) INDIAN KANOON [\[iv\]](#_ednref4) SCC ONLINE [\[i\]](#_ednref1) Vlex.in [\[i\]](#_ednref1) Vlex.in **Categories:** Case Analysis, Criminal Law Cases --- ### [Saghir Ahmed v. State of Uttar Pradesh](https://lawfoyer.in/saghir-ahmed-v-state-of-uttar-pradesh/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** Author: Supragya Singh Edited by: Biraj Kumar Sarkar **ABSTRACT / HEADNOTE** The appellants in the case were private bus owners who used to ply their buses on public for passenger service through permits granted under the Motor Vehicles Act of 1939, though the state had an exemption. The state of Uttar Pradesh decided to nationalize the road transport business. It attempted to do so – First, by order \[later held unjustified under Art. 19(6) and violative of Art. 14 & 19(1)(g) by the state High Court\]; later, through passing the U.P. State Road Transport Act, 1950. The Act excluded private bus owners from plying their vehicles on the Bulandshahr-Delhi route. The High Court, this time, did not hold the act violative of either Art. 14, 19(1)(g) or Art. 31. The matter came on appeal before the Supreme Court of India to direct a writ against the state for violation of their rights under Art. 14, 19(1)(g) and 31 of the Constitution. The court held the Act to violate Art. 19(1)(g) and 31 but not Art. 14 in any manner. The Hon’ble Court set aside the judgment of the High Court and directed the state by way of a writ not to implement any part of the U.P. State Road Transport Act against appellants or anyone working under them. ***Keywords*:** ***right, freedom, occupation, property, restriction, violation*** **CASE DETAILS:** ***i)* *Judgement Cause Title / Case Name*** ## Saghir Ahmad vs The State of U. P. ***ii)* *Case Number*** Civil Appeals No. 182 & 183 of 1954 ***iii)* *Judgement Date*** 13th October 1954 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** M.C. Mahajan, B.K. Mukherjea, S.R. Das, Vivian Bose, Ghulam Hasan ***vi)* *Author / Name of Judges*** B.K. Mukherjea ***vii)* *Citation*** A.I.R. 1954 SC 728 ***viii)* *Legal Provisions Involved*** Art. 14, Art. 19(1)(g), Art. 31 \[presently stands omitted\] – The Constitution of India, 1950; The U.P. Road Transport Act, 1951 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The Constitution of India came to be entirely enforced in 1950. At its inception, it laid out specific rights in its territory for its citizens and persons in Part III of the Constitution as Fundamental Rights. With time, the interpretation relating to the rights bestowed in the provisions of Part III has also evolved. Some crucial amendments have also been made to Part III. Article 14 in the Constitution gives the right to equality to all its citizens irrespective of their caste, religion, sex, place of birth, or any other such ground. The duty is thereby bestowed upon the state to treat all equally before the law and protect them equally under the law. Article 19, on the other hand, provides several freedoms that the citizens in India would have. Art. 19(1)(g) specifically gives the citizens the freedom to carry out any occupation or trade. The freedoms in the article are not unrestricted; hence, Art. 19(6) lays certain reasonable restrictions upon Art. 19(1)(g). Laying reasonable restrictions upon freedom means that any restriction cannot be arbitrary, and the court would be fit to decide if it’s arbitrary by considering the context and facts. Article 31 of the constitution, later removed from the fundamental rights by the forty-fourth amendment, initially had its place as a fundamental right, and it bestowed upon citizens the property right. Initially, the Indian state had to juggle balancing the rights of its citizens and the general development and public interest. The state also often sought to nationalize specific industries so disputes concerning fundamental rights would reach the court’s doors to seek justice. 1. **FACTS OF THE CASE** **Procedural Background of the Case** 1. Writ petitions were filed by the appellants, private bus operators, before the Allahabad High Court due to the non-issuing and canceling of the permits granted to them under the Motor Vehicles Act, 1939, as the state attempted to have a monopoly over road transport. The court opined such a procedure is violative of Art. 14 & 19(1)(g) and unjustified under Art.16(6) of the Constitution. The Transport Authorities were directed to deal with the application of permits by private vehicle owners. 2. In 1951, the state passed the U.P. Road Transport Act, which later prohibited private bus operators on the Bulandshahr-Delhi route. Private bus owners again filed several petitions before the Allahabad High Court under Article 226 of the constitution. The court did not find the U.P. Road Transport Act to conflict with Art. 14, 19(1)(g) and 31 of the constitution. As a result, the matter came before the Supreme Court of India as an appeal challenging the Act’s constitutionality, especially its section 3. The different appeals were clubbed on the matter, and the matter was up for hearing before a 5-judge constitutional bench. **Factual Background of the Case** 1. The appellants, private bus owners, and public bus operators carried on the business of plying motor vehicles for passenger service on the Bulandshahr-Delhi route. This was regulated by the Motor Vehicles Act of 1939, under which one could get a permit to run a vehicle by the Transport Authorities. The Motor Vehicles Act also provided an exemption for state vehicles under section 42(3) from getting a compulsory permit unless these vehicles are used concerning the Indian State Railway’s business. 2. After 1947, the Uttar Pradesh government started running public buses alongside private operators. Later, the government ordered a state monopoly over the road transport system, and section 42(3) would allow it to run as many buses as it wanted. However, the permits issued to the private bus operators were stopped, and previously issued permits were canceled. As a result, petitions were filed, and the matter came up before the Allahabad High Court. 3. The court opined that such a procedure conflicts due to section 42(3) contradicting Art. 14 of the constitution and that the state’s order is unjustified under Art.19(6). Following the court’s order, the issuing of permits resumed. 4. The Uttar Pradesh state legislature passed the U.P. Road Transport Act, 1951 to nationalize the road transport business. Subsequently, several other notifications were issued following the notification dated 25th March 1953 that prohibited private operators as passenger service on the Bulandshahr-Delhi highway. 5. The matter came up before the Allahabad High Court, but the private bus owners were provided no relief. As a result, the private operators approached the Supreme Court of India through an appeal, and the matter was up before a 5-judge constitution bench challenging the constitutionality of the U.P. Road Transport Act, specifically its section 3. **LEGAL ISSUES RAISED** 1. Whether the U.P. Road Transport Act, 1951 violated Art. 19(1)(g) of the constitution and is not justified under Art.19(6)? 1. Whether the U.P. Road Transport Act,1951 violate Art. 31 of the constitution? 2. Whether the U.P. Road Transport Act, 1951 violate Art. 14 of the constitution? **APPELLANT’S ARGUMENTS** 1. The counsel for the Appellant submitted that the U.P. Road Transport Act violates Art. 19(1)(g) of the constitution guaranteeing the right to carry on any occupation, trade, or business; the appellants under this right can carry onto their business of plying buses on hire on a public highway. 2. The counsel for the Appellant argued that the U.P. Road Transport Act violates Art. 31 of the constitution as their ‘property,’ i.e., the beneficial interest involved in the business of plying buses on hire is violated without conforming to any requirements of compensation under Art. 31. 3. The counsel for the Appellant also contended that the Act violates Art.14 in making a different classification for the state against ordinary citizens. However, the state stands in the same position as private traders when it engages in some industry. 1. The counsel for the Appellant also put forth that the Act violates Art. 14 by allowing the state to discriminate among citizens by bestowing unregulated discretion upon the state to ‘associate such person as it likes’ in the business of transport with no rules laid upon which this discretion would be based. **RESPONDENT’S ARGUMENTS** - . The counsel for the Respondent submitted that the U.P. State Road Transport Act does not violate Art. 19(1)(g) of the Constitution since the said article gives the right to carry any profession, trade, or business but not to carry it ‘anywhere;’ private operators can’t to use a public highway to ply their vehicle unless permitted by the state. 1. The counsel for the Respondent submitted that in certain instances, a restriction, as given in Art. 19(6) would also include a prohibition on something under which the U.P. State Road Transport Act would be justified. 2. The counsel for the Respondent put forth that the state would choose the routes and portion of it where private owners could operate and the number of persons to be given permits, which is regulated under the Motor Vehicles Act 1939, making the discretion bestowed upon the state-regulated, hence not violative of Art. 14. **RELATED LEGAL PROVISIONS** 1. **Article 14: *“****The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”**[\[1\]](#_ftn1)*** 2. **Article 19(1)(g): All citizens shall have the right- “*to practise any profession, or to carry on any occupation, trade or business.”***[\[2\]](#_ftn2) 3. **Article 31 (*Compulsory acquisition of property[\[3\]](#_ftn3)): Omitted by the Constitution (Forty-fourth Amendment)* Act, 1978.** **JUDGEMENT** **RATIO DECIDENDI** 1. Any public member can use a public route within permissible limits under Art. 19(1)(g). 2. The intangible commercial interest involved in plying buses on hire is property under Art. 31. 3. The different classification of the state against private traders in a monopoly through law is reasonable under Art. 14. **OBITER DICTA** 1. The nature of the long and uninterrupted user of a passage tells the extent of the right to pass over it. The right to passage extends to all usual traffic forms and others that are reasonably similar and incidental. The court drawing from the English Law said the Bulandshahr-Delhi route (part of Grand Trunk Road), being a public highway, does not mean it could be used just as a foot passage, and other uses or users would need permission from the State. The Grand Trunk Road has existed since the 15thcentury and has historically been used by all prevailing vehicles. The passage of modern motor vehicles is incidental to its historical use, though the state can regulate the traffic as per the requirement under Art. 19(6). Hence, it can’t be said that the right of passing of any user over a public route doesn’t exist before some act. A route may vest in the state and have a public nature, but it is meant for the use of members of the public, and it can be restricted only through a reasonable restriction under Art. 19(6). Since members of the public can use their vehicles on a public route within permissible limits, they can also ply their vehicles on a public route for passenger hire. The court emphasized that the Act is not a reasonable restriction under Art. 19(6), as it stated, “*Restrictions would normally pre-suppose the continued existence- no matter even in a very thin and attenuated form- of the thing upon which the restrictions were imposed.*” The court made this observation as it referred to the observations made by the learned judges in A.K. Gopalan v. The State on the interchangeability of the term ‘restriction’ and ‘deprivation.’ The court pointed out that even if the term ‘restriction’ meant ‘prohibition’ in certain instances, it would still have to be a reasonable restriction and not an unreasonable restriction over a trade or occupation that is not perceptually harmful. The court examined whether the restriction was in the public’s general interest. It concluded that it wouldn’t be considered a reasonable restriction and would leave hundreds of private bus owners without a livelihood. The U.P. Road Transport Act, 1951 is not a reasonable restriction under Art. 19(6), hence violates Art. 19(1)(g). 2. The property under Art. 31(2) would include in its ambit the commercial interest involved in plying buses on hire by the appellants. The appellants were deprived of this property, and the state made no compensation. Hence, the Act also violates Art.31. - The legislature can make a classification provided it is not arbitrary, and if it is reasonable, it would not violate the Art. 14. The different classification of the state from that of citizens won’t mean a violation of Art. 14 per se. In creating a monopoly, different classifications of the state are inherent, and the classification would have a rational relation to the sought object. Hence, it would be reasonable. Hence, such would not be considered a violation under Art. 14 per se, though it could be invalid because it violates other crucial constitutional provisions. The court also analyzed and said that the state doesn’t stand in the same position as a private trader when it engages in an industry as the state would still be performing sovereign functions required of it while engaging in it since the functions of the state include more in contemporary times than what has been conventionally included. The Act cannot be said to violate Art. 14 of the Constitution. The court, on the argument of the state having unfettered discretion, expressed that the arguments pertain to how the provision would be implemented. Even if it is assumed that the provision would give the state unfettered discretion, that would make the provision violative of Art. 14 and not the entire act. Considering the argument by the respondent’s counsel, it can be said that in this situation, the state would not have unregulated discretion. Hence, neither the Act nor the provision are violative of the Art. 14. **CONCLUSION & COMMENTS** In its decision, the court set aside the earlier judgment of the Allahabad High Court. It issued a writ of mandamus directing the state not to implement any provision of the U.P. State Road Transport Act, 1951, against the appellant or any person working under them. The court served right in its reasoning, especially on the Art. 19(1)(g) that freedom to occupation or business, etc., would not only include the right to carry that occupation but also to use the public routes, whose benefits are meant for the larger public, for carrying out that occupation or business. Art. 19(1)(g) indeed serves as a crucial fundamental right, as can be seen through the case that the violation of this right can affect one’s livelihood and standard of life. **REFERENCES** **Important Cases Referred** 1. S.S. Motor Services v. The State of Madras 2. Cooverjee v. The Excise Commissioner, 1954 SCR 873 3. West Bengal v. Subodh Gopal Bose, 1954 SCR 587 4. Dwarkadas Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd., 1954 SCR 674 5. Packard v. Banton, 68 LE 596, 264 US 140 6. Frost v. Railroad Commission, 70 LE 1101 7. Stephenson v. Binford, 77 LE 288 8. Motilal v. Uttar Pradesh Government, I.L.R. 1951 All 257 9. Municipal Corporation of the City of Toronto v. Virgo, 1896 AC 88 10. K. Gopalan v. The State, 1950 S.C.R. 88 11. Lokanath Misra v. The State of Orissa, AIR 1952 Orissa 42 12. Commonwealth of Australia and Others v. Bank of New South Wales and Others, 1950 AC 235 13. P&O Steam Navigation Co. v. The Secretary of State, 1861 5 B.H.C.R. Appendix 1 **Important Statutes Referred** 1. The Constitution of India, 1950, Art. 19(1)(g) 2. The Constitution of India, 1950, Art. 31 3. The U.P. Road Transport Act, 1951 4. The Constitution of India, 1950, Art. 14 **ENDNOTES:** [\[1\]](#_ftnref1) Article 14, Constitution of India (1950). [\[2\]](#_ftnref2) Article 19(1)(g), Constitution of India (1950). [\[3\]](#_ftnref3) Article 31, Constitution of India (1950) **Categories:** Case Analysis, Constitutional Law Cases --- ### [Rohtas Bhankar & Ors v. Union of India (2014) 8 SCC 872](https://lawfoyer.in/rohtas-bhankar-ors-v-union-of-india-2014-8-scc-872/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Anchal Saini** **Edited by- Biraj Kumar Sarkar** **ABSTRACT / HEADNOTE** Case analysis on Rohtas Bhankar Ors v. Union of India. In this case applicants seek a direction to declare the instructions issued by O.M as unconstitutional and issue an appropriate order reserving seats for SC/ST, So, the main issue whether reservation for promotion is obligatory or mere discretion of government has been discussed in this case. ***Keywords*:** SC/ST, relaxation of standards, constitution of India, qualifying marks. **CASE DETAILS** Judgment Cause Title / Case NameRohtas Bhankar & Ors Vs. Union Of IndiaCase NumberCivil Appeal No. 6046-6047 of 2024CourtSupreme Court Of IndiaQuorum / Constitution of BenchConstitutional BenchAuthor / Name of JudgesR.M LODHA, CJI ROHINTON FALI NARIMAN, A.K. SIKRI, J. CHELAMESWAR, JAGDISH SINGH KHEHAR Citation( 2006 ) 8 SCC212Legal Provisions InvolvedArticle 16 (4) of Indian constitution. Article-335 of constitution of India. 77th amendment act of constitution of India.1 82nd amendment act of constitution of India. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** This case is just a reiteration of what was already held in the earlier decision in both cases Indra Sawhney2 And Kuldip Singh3. Both the cases have underlined the importance of article 16 as well as article 16(4A). So, the issue whether reservation for promotion is obligatory or just a mere discretion of government has been addressed in this case. The applicants challenges the instructions issued by government on July 22, 1997 “that withdrew the provisions for lower qualifying marks and lesser standard evaluation for SC/ST in departmental competitive exams for promotion”. Applicants argued that the instructions given were unconstitutional and issue an appropriate order for reserving 15% of posts for SC and 7 and 172% of posts for ST in the stenographers (Grade B/Grade I) Limited Departmental Competitive Examination. Applicants prayed to be promoted on the basis of instructions that were issued to them for LDCR, 1996, and also to declare the result of LDCR as illegal, as they relied on the amendment of Indian constitution i.e. Article-16 (4A) which allows reservation in promotions for SC/ST. **FACTS OF THE CASE** Prior to the 1997 instructions, there were provisions regarding reserved category candidates to be promoted with lower qualifying marks as per OM dated 23.12.1970. And 21.1.1971. In 1970, the Department of personnel had issued an office of memorandum relaxing the standards for SC/ST candidates in departmental competitive examination and confirmation examination. This memorandum remained in effect around 17 years. The case challenged the government’s instructions dated 22 July, 1997 that withdrew the policy providing lower qualifying marks and lesser standard evaluation for SC/ST In 1970, the Department of personnel had issued an office of memorandum relaxing the standards for SC/ST candidates in departmental competitive examination and confirmation examination. This memorandum remained in effect around 17 years. In departmental competitive examinations for promotion. The removal of these relaxed standards were based on the judgment of Supreme Court in Vinod Kumar V. Union of India (1996)4, in this case supreme court held that such relaxation in promotion is not permissible under Article355 of Indian Constitution.[\[1\]](#_ftn1) **LEGAL ISSUES RAISED** - Whether the order withdrawing the relaxed standard for SC/ST instructions was constitutional? - Whether order for reserving 15% of posts for SC and 7 and 172% of posts for ST in the can be prescribed for the promotion of the SC/ST candidate? **Arguments from appellant/ petitioner** It was submitted by the counsel for petitioner: 1. “That the relaxation of qualifying standards for SC/ST candidates in departmental competitive and confirmation examinations, as per office memorandum of 1970 was constitutionally valid”. Hence the withdrawal of such relaxation for SC/ST candidates is the violation of the constitutional provision given in Article-16(4A). 2. The “Supreme Court’s earlier judgment in Ram Bhagat Singh vs. State of Haryana (1990) and superintending Engineer Public Health vs. Kuldip Singh (1997) which upheld the provision of lower qualifying marks for reserved category candidates. - Contended that “earlier judgment of Supreme Court rulings in Indra Sawhney vs. Union of India (1992) which recognized the validity of providing concessions to SC/ST candidate in promotions, should take precedence over precedence”. **Arguments from respondent / defendant** It was submitted by the counsel for respondent: 1. That “the government’s instruction dated July 22, 1997, is valid and in line with constitution”. 2. The “Supreme Court’s earlier judgment in Ram Bhagat Singh vs. State of Haryana (1990)5 and superintending Engineer Public Health vs. Kuldip Singh (1997) did not have the benefit of binding Indra Sawhney precedent and hence, should not take precedent”. 3. Pointed out “the judgment of Supreme Court in S. Vinod Kumar vs. Union of India (1996)6. In which court held that relaxation in qualifying marks for reserved category in promotion is not permissible”. **RELATED LEGAL PROVISIONS** **Constitution of India** 1. **Article 16(4): – “***Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.*”7 2. **Article 335 :- “** *The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.*8 3. **77th Amendment Act: – Added article 16(4A)** which states that **“** *Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State”.* **JUDGEMENT** Supreme Court ruled in the favor of Union of India. The court held that government’s instruction was dated July 22, 1997, that withdrew the relaxation in qualifying marks and standards for SC/ST candidates, were in the accordance with the constitution. The court relied on judgment in cases in Indra Sawhney vs. Union of India, S. Vinod Kumar vs. Union of India (1996). Also court noted that Supreme Court ruling cited by the petitioners, such as Ram Bhagat Singh vs. State of Haryana did not have benefit of binding Indra Sawhney precedent and hence could not take precedence. **Conclusion** Supreme Court concluded that the withdrawal of relaxation in qualifying marks and standards for SC/ST candidates in departmental competitive examinations for promotion was valid. **REFERENCES** (1) *Constitution of India (1950)*. (2) *Indra Sawhney vs Union Of India And Others*; 1992. https://indiankanoon.org/doc/1363234/. (3) *Superintending Engineer,Public Health vs Kuldeep Singh & Ors*; 1997. https://indiankanoon.org/doc/1076926/#:~:text=By%20reason%20of%20the%20provisions,Fundamental%20Right%20to%20equality%20of. (4) *S.Vinod Kumar And Anr vs Union Of India And Ors*; 1996. https://indiankanoon.org/doc/151907/. (5) *Ram Bhagat Singh And Anr vs State Of Haryana And Anr On*; 1990. https://indiankanoon.org/doc/144235/. (6) Kumar, S. V. S.Vinod Kumar And Anr vs Union Of India And Ors on 1 October, 1996. **Important Statutes Referred** Constitution of India (1950) [](#_ftnref1) **Categories:** Case Analysis, Constitutional Law Cases --- ### [P.V Narashima Rao vs. State](https://lawfoyer.in/p-v-narashima-rao-vs-state/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Bagya Shree L** **Edited By: Rimin Cherian Reji** **ABSTRACT** In the case of P.V. Narasimha Rao vs. State, the Supreme Court decided whether MP are protected by parliamentary immunity under Article 105 of the Indian Constitution from prosecution for bribery and conspiracy related to their voting behavior. The Court ruled that MPs are not immune from prosecution for bribery and conspiracy if these actions are not directly related to their parliamentary duties. Immunity applies only to activities tied to parliamentary functions, not to illegal actions like accepting bribes. This case highlights the procedure for how criminal prosecution should take place when the offense is committed by a Member of Parliament. The Court admits that Members of Parliament are the public servant under the Prevention of Corruption Act, 1988 even if they are not appointed but elected. This case signifies that even lawmakers are punishable if they are acting against law and order. ***Keywords*:** Bribe, Parliament, Immunity, Article 105 of The Indian Constitution, Public Servant, Corruption. **CASE DETAILS** ***i.* *Judgement Cause Title / Case Name*** ## ## *P.V. Narasimha Rao vs. State* ***ii.* *Case Number*** Appeal (criminal.) 1207 / 1997 ***iii.* *Judgement Date*** 17/04/1998 ***iv.* *Court*** Supreme Court of India ***v.* *Constitution of Bench*** *“S.C.AGRAWAL, G.N.RAY, A.S.ANAND, S.P.BHARUCHA & S. RAJENDRA BABU’’* ***vi.* *Author*** S.C.AGRAWAL ***vii.* *Citation*** (1998) 8 SCC (Jour) 1 ***viii.* *Legal Provisions Involved*** Article 105 of the Indian Constitution **INTRODUCTION AND BACKGROUND OF JUDGEMENT** In the landmark case, P.V. Narasimha Rao vs. State, the Supreme Court of India heard the appeal in 1998. The appellant was one of 21 people accused of bribery and criminal conspiracy. The appellant argued that, as a Member of Parliament, he had immunity under Article 105 of the Indian Constitution. He also states that he is not a public servant under the Prevention of Corruption Act as he is not appointed but elected by the people. This article emphasizes the constitutional and legal issues surrounding parliamentary privileges and corruption. This case plays a major role in understanding the balance between parliamentary immunity and the legal framework governing corruption. It explores whether MPs, under parliamentary immunity, could be protected from prosecution of a criminal nature. Whether Members of Parliament are covered under the provision of public servants under the Prevention of Corruption Act even though they are not elected. **Background:** *PV Narasimha Rao vs. State (1998)* by the prestigious Supreme Court is one of the landmark cases. This verdict highlights how the law prevails even if it is against the former Prime Minister who was involved in bribery and a criminal conspiracy with members of Parliament to defeat the no-confidence motion. This judgment emphasized the supremacy of the law **FACTS OF THE CASE** **Procedural Background of the Case** The accused argued that the court had no jurisdiction under Article 105(2) of the Constitution, as the case involved Members of Parliament (MPs) accepting bribes related to their voting on a ‘No Confidence Motion’. However, the Special Judge rejected this objection, stating that the charges were for illegal acts committed outside Parliament, specifically accepting bribes, rather than for voting actions within Parliament. The accused interpreted that members of parliament are not public servants under the Prevention of Corruption Act, of 1988. Hence, he is not guilty under these provisions, This claim by the accused was dismissed based on the precedent of the Delhi High Court. Furthermore, the accused contented for the prosecution of such case prior sanction from the competent authority of the parliamentary is necessary. The judge ruled this unnecessary, as the accused had stopped holding office by the time the charge sheets were filed and cognizance was taken by the court. The Delhi High Court dismissed the revision petitions filed by the accused about issues of the scope of Article 105 and the title of public servant, and its applicability to MP’s. Then appeals were filed by the appellants, for the interpretation of Articl105 and the scope of public servants under the Prevention of Corruption Act to members of parliament, which were heard by a bench of three judges and subsequently referred to the Constitution Bench. **Factual Background of the Case** There were 21 accused, including the former PM P.V. Narasimha Rao, alleged to have a criminal conspiracy on both offering and accepting bribes by the (MPs) from the Jharkhand Mukti Morcha (JMM) and Janata Dal (Ajit Group) to defeat a ‘No Confidence Motion’ against the Congress (I) Government in July-August 1993. The charges framed against the accused were under Sections 7, 12, 13(2) along with Section 13(1) (d) of the Prevention of Corruption Act and Section 120-B of the IPC. The prosecution argued that the alleged bribe givers paid these amounts to ensure the motion’s defeat. Shailender Mahto of JMM, who later turned approver, was pardoned. The court noted that the alleged conspiracy and bribes had a direct effect on the votes cast against the no-confidence motion, implying that the votes were influenced by the bribes. **LEGAL ISSUES RAISED** 1. Whether Article 105 of the Indian Constitution amounts to immunity for the prosecution of a criminal charge, especially a bribe to the Member of Parliament. 2. Whether the Members of Parliament are under the provision of public servants under the Prevention of Corruption Act, 1986. **APPELLANT’S ARGUMENTS** The counsel for the appellant submitted that Article 105(2) grants Members of Parliament immunity from legal proceedings for anything they said or voted in Parliament or its committees. This provision ensures that MPs can freely speak and act in Parliament without fear of legal repercussions, preserving their independence and effectiveness. The learned counsel contended that this immunity should be interpreted broadly to protect MPs from prosecution related to their legislative duties, including charges of bribery connected to parliamentary activities. The learned counsel referred to the U.S. Supreme Court decision in the Johnson case, where prosecution based on a speech made in the House was deemed a violation of legislative immunity principles. The learned counsel argued that The Prevention of Corruption Act, 1988 defines public servants broadly. MPs are elected representatives who act on behalf of their constituents, and they are not traditional public servants employed by the government. Therefore, the title of public servant does not apply to the Members of Parliament. The counsel also noted that foreign countries’ practices for the classification of legislators do not usually include the title of public servant for anti-corruption laws, maintaining their independence and distinction from government employees. **RESPONDENT’S ARGUMENTS** The counsel for the respondent side submitted that Article 105(2) of the Indian Constitution grants immunity to MPs within the ambit of speeches and votes in Parliament session, to protect legislative activities and ensure parliamentary freedom. This ambit does not extend to criminal liability. Legal precedents, including Brewster, Bunting, White, Boston, and R v. Currie & Ors, support that the fact bribery is not covered by parliamentary immunity. The learned counsel submitted that The Prevention of Corruption Act, 1988 defines public servants broadly, encompassing various government officials and elected representatives, whereas elected representatives include MPs. MP’s fall within the scope of public servants under Section 2(c) of the Act due to their positions of public trust and responsibility. The Act aims to combat corruption among all public officials, including MPs, as supported by judicial interpretations and practices in other jurisdictions. The counsel argued that the doctrine of promissory estoppels does not apply to statutory definitions. Statements by a Minister during the Bill’s introduction do not alter the legal definition of public servant. **RELATED LEGAL PROVISIONS** 1. Article 105 of The Indian Constitution 2. Section 2(c) of The Prevention of Corruption Act **JUDGMENT** **Ratio Decidendi** The court’s reason for such a decision is that Members of Parliament are public servants under the provision of The Prevention of Corruption Act, 1988, and shall be held liable for such an act of accepting and giving bribes. Moreover, for such legal action, permission has to be taken from the competent parliamentary authorities. **Obiter Dicta** Justice Ray agreed with the finding that MPs are public servants and require permission for prosecution. However, he disagreed with the reasoning that MPs do not have immunity under Article 105(2) or 105(3) for bribery related to their duties. He emphasized the importance of providing broad protection for MPs to ensure the effective functioning of parliamentary parliament. **GUIDELINES:** Absolute Freedom of Speech and Vote by Members of Parliament in Parliament under Article 105 of The Indian Constitution. Protection against legal proceedings within the ambit of any speech and vote cast in parliament during the parliament session under Article 105(2) of The Indian Constitution. Interpretation of “In Respect Of”: The phrase “in respect of” in Article 105(2) should be interpreted broadly, covering any action linked to an MP’s parliamentary speech or vote. Sub-Article (3) Privileges: Until defined by Parliament, MPs enjoy the same privileges as those of the House of Commons at the commencement of the Indian Constitution. **CONCLUSION& COMMENTS** In the case of PV Narasimha Rao vs. State (1998), the Supreme Court pronounced that the Members of Parliament are public servants under the Prevention of Corruption Act, 1988; they can be prosecuted for criminal liability during the performance of Parliamentary duties. The Court pronounced that although MPs have certain privileges and immunities under Article 105 of the Constitution, these do not cover bribery. Instead of needing formal sanction from an authority, MPs only need permission from the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha for prosecution. This decision emphasized that law is supreme even before legislators make that law for the people. This ruling was a key moment in Indian legal history, highlighting that even top officials, including the Prime Minister, must follow the law. By limiting parliamentary immunity, the Supreme Court stressed the need for accountability and integrity in government. No matter what happens, the law remains supreme and no one is above it, not even those who make the law. **Important Cases Referred** 1. [L.K. Advani v. Central Bureau of Investigation](https://indiankanoon.org/doc/111334/) 2. United States v. Johnson. **Important Statutes Referred** 1. The Indian Constitution 2. The Indian Penal Code - The Criminal Procedure Code 1. The Prevention Of Corruption Act. **Categories:** Case Analysis, Constitutional Law Cases --- ### [The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt](https://lawfoyer.in/the-commissioner-hindu-religious-endowments-madras-v-sri-lakshmindra-thirtha-swamiar-of-sri-shirur-mutt/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Suhani Bagadia** **Edited By: Sankalp Vashistha** **ABSTRACT / HEADNOTE** In the present case, the respondent who was the Mathadhipati of the Shirur Mutt filed a petition in the High Court of Madras challenging the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 and the High Court issued an order in favour of the Mathadhipati or the Swami and pronounced the act to be ultra vires Arts- 19(1)(f),25,26 and 27 of the Constitution. Thereafter, the appellant- The Commissioner, of Hindu Religious Endowments, Madras approached the Supreme Court to challenge the decision of the High Court. The SC found the High Court judgement to be valid and held that the act encroached upon the fundamental rights of the religious denominations guaranteed under Article 26 of the Constitution as the act tried to interfere with the internal affairs of the religious institutions which was unwarranted and unjustified. The Supreme Court dismissed the appeal. ***Keywords*:** a. Article 26 b. religious denomination c. Supreme Court d. internal affairs e. fundamental rights **CASE DETAILS** ***i)**Judgement Cause Title / Case Name*** The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ***ii)**Case Number*** Civil Appeal No. 38 of 1953 ***iii)**Judgement Date*** 16 March, 1954 ***iv)**Court*** Supreme Court of India ***v)**Quorum / Constitution of Bench*** Justice [Mukherjee](https://indiankanoon.org/search/?formInput=benchid:b-k-mukherjea), Justice [Ghulam Hasan](https://indiankanoon.org/search/?formInput=benchid:g-hasan), Justice [Natwarlal H Bhagwati](https://indiankanoon.org/search/?formInput=benchid:n-h-bhagwati), Justice [Mehar Chand Mahajan](https://indiankanoon.org/search/?formInput=benchid:m-c-mahajan), Justice [Vivian Bose](https://indiankanoon.org/search/?formInput=benchid:v-bose), Justice S.R. Das, Justice Venkatarama Ayyar ***vi)**Author / Name of Judges*** B.K. Mukherjee ***vii)**Citation*** 1954 INSC 26 ***viii)**Legal Provisions Involved*** Madras Hindu Religious and Charitable Endowments Act, 1951 Constitution of India – Arts. 19(1)(f), 25,26,27 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** This present case is a landmark judgement that helped define the scope of the fundamental rights of the religious denomination in India under Article 26 of the constitution. It defined the limits of the state’s power to make regulations or laws to oversee the internal affairs and administration which in turn helped strengthen the autonomy of the religious denominations. This case primarily revolves around Articles 25 and 26 of the Indian Constitution which guarantee freedom of religion to every citizen of India. **Article 25** states that *– “Every person is free to propagate, practice and profess any religion of their choice.”* This means that every person is not only free to practice their religion but they are also free to disseminate the beliefs or practices of their religion. **Article 26** provides for the right of citizens to establish and manage the affairs of any religious or charitable institution. It means that every religious institution is free to conduct its affairs without any interference by the govt unless it affects the public order, morality and health. This case involves a conflict between the Mathadhipati of the Shirur Mutt, a Hindu religious institution located in Madras and the Commissioner of Hindu Religious Endowments, Madras over the enactment of the Madras Hindu Religious and Charitable Endowments Act,1951 which contained provisions that tried to limit the control of the religious institution over its internal affairs and administration. The Act provided for the appointment of a Commissioner, Deputy Commissioner and an Area Committee to oversee the affairs of all religious institutions across the state. Administration of these institutions was to be supervised by the Commissioner including the management of funds which resulted in the reduced role of the Mathadhipati or the head and violated the institution’s right to manage its own affairs. Many provisions of the said act were found invalid or ultra vires to Articles – 19(1)(f) 25,26 and 27 of the Constitution. **FACTS OF THE CASE** - **Procedural Background of the Case** 1. The Mathadhipati or the Swami (respondent) of the Shirur Mutt filed a petition in the High Court of Madras requesting to issue a writ of prohibition in his favour to prohibit the appellant – the Commissioner Hindu Religious Endowments from proceeding further in settlement of a scheme in connection with the Mutt. The High Court issued a writ of prohibition in the favour of the respondent as well as scrutinised the Madras Hindu Religious and Charitable Endowments Act,1951 and found certain provisions of the act to be ultra vires Articles- 19(1)(f), 25, 26 and 27 of the Constitution. As a consequence, an appeal was filed by the appellant in the Supreme Court challenging the decision of the Madras High Court. - **Factual Background of the Case** 1926. The factual matrix of the case is- The Mutt, known as Shirur Mutt, of which the petitioner is the superior or Mathadhipati, is one of the eight Mutts situated at Udipi in the district of South Kanara and they are reputed to have been founded by Shri Madhwacharya, the well-known exponent of dualistic theism in the Hindu Religion. Each Mutt is presided over by a swami. The petitioner became a Mathadhipati in the year 1919 when he was still a minor, and he assumed management in 1926. At that time the Mutt was heavily in debt. Owing to scarcity and the high prices of commodities at that time, the Swami had to borrow money to meet the expenditure and the debts mounted up to nearly a lakh rupees. The Hindu Religious Endowments Board, functioning under the Earlier Act of 1927, intervened at this stage and under section 61-A of the Act called upon the Swami to appoint a competent manager to manage the affairs of the institution. The petitioner claims that the action of the board was instigated by Lakshminarayana Rao, a lawyer in Udupi. It appears that in pursuance of the direction of the Board, one Sripath Achar was appointed an agent on the 24th of December, 1948. This agent, as claimed by the petitioner did not follow the directions of the Mahant and deliberately flouted his authority. In this state of affairs the Swami, on the 26th of September, 1950, served a notice upon the agent terminating his agency. But On the 4th of October, 1950, the petitioner filed a suit against the agent because the agent did not pay heed to this notice and continued to work there. Thereafter the petitioner filed a petition in the Sub-Court of South Kanara for recovery of the account books and other articles belonging to the Math, and also to restrict the agent from interfering in the matters of the Mutt. The said Sripath Achar anticipating this suit filed an application to the Board on the 3rd of October, 1950, complaining against the cancellation of the Power of Attorney and his management of the Math. The Board on the 4th October, 1950, issued a notice to the Swami proposing to inquire into the matter. To this Swami sent a reply on 21st October, 1950, stating that the subject matter of the very enquiry was before the court in the original suit filed by him and therefore, the enquiry should be put off. The Board dropped that enquiry, but initiated proceedings suo motu under section 62 of the Earlier Act and issued a notice upon the Swami on the 6th of November, 1950, stating that it had reason to believe that the endowments of the said Math were being mismanaged and that a scheme should be framed for the administration of its affairs. The notice was served to the Swami and the 8th of December, 1950, was fixed as the date of enquiry. The matter was repeatedly adjourned till 13 January 1951 because the lawyer appearing from Swami’s side was unwell. On the 24th of January, 1951, the Swami received a notice from the Board stating that the Board was satisfied that a scheme was necessary for the proper administration of the Mutt. On the 12th of February, 1951, the petitioner filed the petition, out of which this appeal arises, in the High Court of Madras praying for a writ of prohibition to prohibit the Board from settling a scheme for the administration of the Math. It was alleged that the Board acted with bias against the petitioner and the action taken by it with regard to the settling of a scheme was not a bona fide act at all. On the merits, it was held that the Board did a perverse exercise of its jurisdiction and that it should not be allowed to proceed in regard to the settlement of the scheme. The learned Judges found a number of sections of the New Act to be ultra vires the Constitution by reason of their being in conflict with the fundamental rights of the petitioner guaranteed under articles 19(1) (f), 25, 26 and 27 of the Constitution **LEGAL ISSUES RAISED (***minimum 2 legal issues*) - Whether the respondent as Mathadhipati has a right to property in the legal sense in the religious institution and its endowments, which would enable him to claim protection under Article 19(1)(f) of the Constitution? - Whether the Mutt is a religious denomination under the meaning of Article 26 of the Constitution? - Whether the Act took away the fundamental right of the religious denomination to manage its affairs guaranteed under Article 26 of the Constitution? **PETITIONER / APPELLANT’S ARGUMENTS** - The counsels for Petitioner / Appellant submitted that article 19(1)(f) deals only with the natural or inherent rights of a citizen to acquire, hold and dispose of property in the abstract without reference to rights to any particular property, it can be of no real assistance to the respondent in the present case and article 3l of the Constitution, which deals with deprivation of property, has no application here. - The counsels for Petitioner / Appellant also questioned the claim of the respondent that the Mutt in question is a religious denomination and said that the Mutt was not entitled to the protections available under Article 26. - The counsels for Petitioner / Appellant submitted that the act only intended to manage the affairs of administration and not of religion and this is why the act did not violate any fundamental right of the institution to manage its affairs. - The counsels for Petitioner / Appellant also disputed the High Court’s decision to declare some of the sections of the Madras Hindu Religious and Charitable Endowments Act, 1951 invalid or ultra vires some articles of the constitution. **RESPONDENT’S ARGUMENTS** - The counsels for Respondent submitted that the Shirur Mutt was a religious denomination under Article 26 of the Constitution and it was entitled to all kinds of rights available under this article. - The counsels for Respondent submitted that the Madras Hindu Religious and Charitable Endowments Act, 1951 enacted by the Madras govt. violated the institution’s fundamental rights granted under Article 26 by interfering in its internal affairs and administration and was meant to increase the control of the govt over the religious institutions. - The counsels for Respondent submitted that the Swami was the head of the institution and thereby the Mutt and its endowments were the property of the Swami and he had every right to administer the property in whichever ways he wanted. **RELATED LEGAL PROVISIONS** - **Article 25: –** *“Freedom of conscience and free profession, practice and propagation of religion- guarantees the freedom of conscience, the freedom to profess, practice and propagate religion to all citizens.”* - **Article 26:** – *“Freedom to manage religious affairs – every religious denomination has the following rights, subject to morality, health and public order.* 1. *The right to form and maintain institutions for religious and charitable intents. b. The right to manage its own affairs in the matter of religion.* 2. *The right to acquire immovable and movable property.* 3. *The right to administer such property according to the law.”* - **Article 19(1)(f)**– “*guaranteed the right to acquire, hold and dispose of property*.” - **Article 27**– *“Freedom as to payment of taxes for promotion of any particular religion- there can be no taxes, the proceeds of which are directly used for the promotion and/or maintenance of any particular religion/religious denomination.”* **JUDGEMENT** **RATIO DECIDENDI** - The Supreme Court upheld the major portion of the judgement of the High Court and declared that the judgement of the High Court would remain valid. The SC held that the act brought by the Madras govt. did encroach upon the fundamental rights of the religious[\[i\]](#_edn1) institutions and the act empowered the state to act beyond its powers and thereby enabled it to interfere in the affairs of these institutions. It held that certain provisions of the act were discordant with the fundamental rights guaranteed by the Constitution. - On the question of the Mutt being a religious denomination under Article 26, the SC referred to the definition of “religious denomination” given by the Oxford Dictionary and held that any religious sect or body having a common faith and Organisation and designated by a distinctive name is a religious denomination. Therefore, the Mutt legitimately comes within the purview of this article. - On the question of whether the Mathadhipati holds the legal right to property under article 19(1)(f), the SC referred to multiple cases like – *Ganesh v Lal Behary* and *Bhabatarini v. Ashalata* and decided that duties and personal interest are blended together in the office of Mahantship and the personal and beneficial interest of the Mahant in the endowments attached to an institution invest the office of Mahant with the character of proprietary right, which is a legal right. It also held that the Mahantship is not heritable because it has a peculiar nature and ordinary rules of succession do not apply in such a case. - With regards to the validity of the Madras Hindu Religious and Charitable Endowments Act,1951 enacted by the State Legislature, the SC made the following observations: 1. Sec 20 of the act which empowers the Commissioner to pass any orders for the proper administration of endowments and proper appropriation of funds is not in conflict with the fundamental rights of the Mahant as some sort of supervision is necessary for the due administration of endowments and proper appropriation of funds. 2. Sec 25,26,28 and 29 are also not held bad by the SC as the mere possibility of them being abused is not a ground for a section to be held invalid. The provision for keeping registers and records of the endowments does not infringe upon any kind of fundamental right of the respondent. 3. Sec 30 of the act infringes upon the fundamental rights of the petitioner as it requires the trustee of the institution to consult with the Commissioner on matters of expenditure and if the trustee must abide by the orders of the Commissioner then it constitutes an infringement upon the fundamental rights of the trustee. Sec 31 also suggests that the management of surplus funds is to be supervised by the Deputy Commissioner, which takes away the power of management of funds from the trustee. 4. Sec 55 of the act is also held to be an encroachment upon the fundamental right of the mahant as it provides that all the gifts received by the mahant should be used for the purposes of the Mutt which is unjustified as the gifts received are also a property of the Mahant and he can dispose them on his discretion. 5. Sec 76 of the act is also considered to be void as it goes beyond the powers of the State Legislature. It provides for an annual contribution by the religious institution to the govt. Such a charge is said to be a fee but the Court has held that it is a tax and the State Legislature was not authorised to make any provision for charging tax as this power is in the hands of the Parliament. The grounds upon which such a fee is considered to be a tax are – that there is an essence of compulsion that is only present in taxes, and there is no special benefit conferred upon the person paying the fees. This provision was clearly in contravention of Article 27 of the Constitution. - The court noted that it is the fundamental right of a religious denomination under Article 26(d) to administer its properties in accordance with law and the law can impose reasonable restrictions upon the administration by the religious institutions. Any law that would take away this right of a religious institution and vests it in any other authority created by law would amount to a violation of the fundamental right guaranteed under article 26(d). **CONCLUSION & COMMENTS** This case is a useful precedent for other cases related to the autonomy of religious institutions. The judgement given by the Supreme Court helped define the boundaries of state regulations on religious institutions helped strengthen the autonomy of these institutions and enabled them to assert their fundamental rights. The scope of Article 26 was well-defined through this case as the court thoroughly examined all the possible interpretations of the provisions of the article. In brief, the respondent’s fundamental right guaranteed under Article 26 was violated by the enactment of the Madras Hindu Religious and Charitable Endowments Act,1951 brought by the state govt to regulate the administration of endowments of these institutions. In my opinion, the State govt. went beyond its power by enacting such legislation which tried to take control of the religious institutions from the trustees of those institutions. The act clearly infringed upon the fundamental rights of the respondent and deprived him of his authority to administer the endowments of the institution. **REFERENCES** **Important Cases Referred** - Ganesh v Lal Behary, 63 I.A. 448 - Bhabatarini v. Ashalata, 70, I.A.57 - Vidya Varuthi v. Balusami , 48,I.A.302 - Adelaide Company v. Commonwealth ,67, C.L.R., 116,127 - Minersville School District, Board of Education, etc. v. Gobitis , 310 U.S. 586 **Important Statutes Referred** - Constitution of India – Article – 19(1)(f), 25, 26 and 27 [](#_ednref1) **Categories:** Case Analysis, Constitutional Law Cases --- ### [T. Barai vs Henry Ah Hoe And Another](https://lawfoyer.in/t-barai-vs-henry-ah-hoe-and-another/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Krishang Sharma** **Edited by: Shadrack Chai** **ABSTRACT / HEADNOTE** The case “T. Barai vs Henry Ah Hoe And Another”[\[1\]](#_ftn1) by the Supreme Court of India on 7 December 1982, addresses important issues regarding the relationship between central and state laws in the context of food safety regulations. This case arose from a conflict between the West Bengal Amendment Act, which imposed stricter penalties for food adulteration and the Central Amendment Act which introduced reduced penalties. The Court ruled that the Central Amendment Act superseded the West Bengal Amendment Act due to the principle of repugnancy as outlined in Article 254 of the Indian Constitution. The judgment emphasized the importance of applying laws that favour the accused The Court determined that individuals charged with offences should benefit from the lighter penalties introduced by the Central Amendment Act, even if the offence occurred before the new law was enacted. **CASE DETAILS ***i)* *Judgment Cause Title / Case Name*** T. Barai vs Henry Ah Hoe And Another ***ii)* *Case Number*** Criminal Appeal No. 40 of 1979 ***iii)* *Judgement Date*** 7 December 1982 ***iv)* *Court*** ## The Supreme Court of India ***v)* *Quorum / Constitution of Bench*** A.P. Sen., E.S. Venkataramiah, R.B. Misra ***vi)* *Author / Name of Judges*** A.P. Sen ***vii)* *Citation*** 1983 AIR 150 ***viii)* *Legal Provisions Involved*** Constitution Of India – 254(1) Prevention of Food Adulteration Act, 1954 – sec 16(1)(a), sec 21 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case here deals with the conflict which arose between the two statutes the one which is centrally amended and the one amended by the West Bengal state legislature. These cases are based on the provision of section 16[\[2\]](#_ftn2) of the food and Adulteration Act. And also Article 254 of the Indian constitution. Which talks about the relation between the state and the centre? This case also shows the humane approach of the judicial system of the country and tries to impose less harsh provisions on the accused when there are alternative provisions which are less harsh present. **FACTS OF THE CASE** **Procedural Background of the Case** Initial complaint was made on 24 September 1975, against the respondents in the Court of Senior Municipal Magistrate, Calcutta. The magistrate, following a precedent by Justice Anil Kumar Sen in B. Manna and Ors. v. The State of West Bengal held that the case was triable by the Court of Sessions due to the punishment of life imprisonment under the West Bengal Amendment Act. The case was then taken to the Calcutta High court The High Court held that after the Central Amendment Act came into force on 1 April 1976, all pending proceedings would be governed by the new Act. The High Court set aside the Magistrate’s order and directed him to proceed with the trial under the new provisions. The case was then appealed to the Supreme Court of India. The Supreme Court dismissed the appeal, agreeing with the High Court’s interpretation. The Court ruled that the accused has the right and should be benefited from the reduced punishment provided in the Central Amendment Act. The case was sent back to the previous court to continue the proceedings by the new provisions. **Factual Background of the Case** On 16 August 1975, the appellant, who is a Food Inspector of the Corporation of Calcutta, purchased a sample of Hyacinth’s ground white pepper (compound) with fried rice powder from Chungwa Restaurant which is located in Calcutta. After analysing the sample was found to be adulterated as it contained wheat powder instead of rice powder. A complaint was filed against the owner of the restaurant (respondent) for committing an offence under section 16(1) (a) read with section 7 of the Food Adulteration Act 1954 by the appellant on 24 September 1975. At the time of the commission of the alleged offence, the law in force in West Bengal was the Prevention of Food Adulteration Act as amended by the West Bengal Amendment Act of 1973, which provided for life imprisonment for such offences. The central government enacted the Prevention of Food adulteration Act (amendment) 1976 which reduced the maximum punishment to 3 years imprisonment and introduced summary trial procedures. On 1 April 1976. **LEGAL ISSUES RAISED** Whether the Central Amendment Act (Prevention of Food Adulteration (Amendment) Act, 1976[\[3\]](#_ftn3)) impliedly repeal the West Bengal Amendment Act (Prevention of Adulteration of Food, Drugs and Cosmetics, 1973[\[4\]](#_ftn4)) with effect from April 1, 1976. Should the pending proceedings be governed by the change of procedure brought in by Section 16A[\[5\]](#_ftn5) of the Act as introduced by the Central Amendment Act? **PETITIONER ARGUMENTS** The counsels for Petitioner argued that the punishment for food adulteration offences enhanced to life imprisonment by the West Bengal amendment should stay applicable. The rationale given by the appellant was that the previous operations of a repealed law are preserved by section 8[\[6\]](#_ftn6) of the General Clause Act. The petitioner contended that they must be liable for punishment of life imprisonment enhanced by the West Bengal Amendment Act. It was contended by the petitioner that the West Bengal amendment was not repealed impliedly by the later central amendment where the punishment was reduced to up to 3 years of imprisonment. It was argued that according to article 254(1) of the Indian constitution[\[7\]](#_ftn7), the state amendment should not be considered repealed as two amendments can co-exist **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that the supremacy of the central law (Prevention of Food Adulteration Act, 1976)[\[8\]](#_ftn8) must prevail over the West Bengal Amendment Act, 1973. By taking reliance on the doctrine of repugnancy. Which states that when there is a conflict between state and central legislation, the central law will prevail over any of the state legislation by Article 254[\[9\]](#_ftn9) of the Indian constitution. It was further asserted by the respondent that when the Central Amendment Act[\[10\]](#_ftn10) is present there with more lenient punishments for the accused it must be applied retroactively. This was supported by the idea that the accused must not be punished and tried under harsher provisions when there are more lenient laws present. The respondent improvised on the fact that the new amendment was brought into existence to simplify the procedures and to ease the punishment given under the food adulteration the law intends to provide more humane provisions. It emphasized the principle of beneficial construction of laws. Asserting that the offender should be tried and dealt with the law or provision which is less harsh to them. Further, he advocated the right of fair trial of the accused. They advocated that the amendment of the new provisions in the old ones is to eliminate the faults and thus it should be necessitated over old provisions. **RELATED LEGAL PROVISIONS** **Prevention of Food Adulteration Act, 1954** **Section 16(1) (a) – “***Subject to the provisions of sub-section (1A) if any person—* 1. *a) Whether by himself or by any other person on his behalf, imports into India or manufacturers for sale or stores, sells or distributes any article of food-* *(I) which is adulterated within the meaning of sub-clause (m) of clause (a) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made there under or by an order of the Food (Health) Authority;* *(ii) Other than an article of food referred to in subclause (I), in contravention of any of the provisions of this Act or any rule made there under”[**\[11\]**](#_ftn11)* **Section 16A-** **“***Power of court to try cases summarily* *Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered on this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:* *Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:* *Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.”[**\[12\]**](#_ftn12)* **Constitution of India** **Article 20(1)- “*No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence”***[***\[13\]***](#_ftn13)***.*** **Article 254- “*Inconsistency between laws made by Parliament and laws made by the Legislatures of States.*** ***(1)* *If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of existing law concerning one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void*** ***(2)**Where a law made by the Legislature of a State concerning one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law concerning that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:*** ***Provided that nothing in this clause shall prevent Parliament from enacting at any time any law concerning the same matter including a law adding to, amending, varying, or repealing the law so made by the Legislature of the State.”***[***\[14\]***](#_ftn14) **The Bengal General Clause Act** **Section 8 –**. “*Where this Act, or any Bengal Act ‘\[or West Bengal Act\] repeal. Made after the commencement of this Act, repeals any enactment hi there to made o\_- hereafter to be made, then, unless a different intention appears, the repeal shall not—* *(a) Revive anything not in force or existing at the time at which the repeal t; Ikes effect; or* *(b) Affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or* *(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed; or* *(d) Affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed; or* *(e) Affect any investigation, legal proceeding, or remedy, in respect of any such right privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;* *Any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been. Passed. (General Rules of Construction. —Sea lions SA & 9—13.) ‘8A. Where any Bengal Act \*|or West Bengal Act\] made after (the commencement of this Act repeals any enactment by which the text of any former enactment was amended by the express omission, insertion or subscription of any matter, \[hen, unless a different of 1899.\]* *The intention appears the repeal shall not affect the continuance of any such amendment made by the enactment so repeated and in operation at the time of such repeal.”[**\[15\]**](#_ftn15)* **JUDGEMENT** The Supreme Court of India dismissed this appeal and upheld the decision of the Calcutta High Court. The Supreme Court in its judgment directed that the case against the respondents (owners of Chunghwa Restaurant) should be tried under the provisions of the Central Amendment Act, which provided for a summary trial procedure and a reduced punishment. This decision effectively overruled the initial order which was given by the Magistrate who earlier held that the case was triable by the Court of Sessions due to the life imprisonment provision in the West Bengal Amendment Act. The Court further decided that the accused should have been given the benefit of reduced punishment which is provided in the Central Amendment Act. The maximum punishment was reduced from life imprisonment (under the West Bengal Amendment Act) to three years imprisonment (under the Central Amendment Act). The Court also ruled that the new procedure introduced by Section 16A of the Central Amendment Act should also apply to pending cases. This meant that the offence in question would be tried summarily by a Judicial Magistrate of the First Class or Metropolitan Magistrate, rather than by the Court of Sessions which was previously required under the West Bengal Amendment Act. **CONCLUSION & COMMENTS** The ruling of the case T. Barai vs Henry Ah Hoe and Another[\[16\]](#_ftn16) depicts the relationship between judicial insight and the legislative framework. And also embarks the importance of the basic constitutional provisions which are kept in mind by the judiciary and ensure the right to be treated freely to every accused. The case will be a precedent for many cases as it asserts the legislative supremacy, individual rights, and principled application of law. This case marked the hierarchy of the central legislation over the state legislation in instances of repugnancy, which reinforces the central government’s primacy in legislative matters about subjects in the Concurrent List. This case also reflects the humane approach of the judicial system of India where the less harsh provisions and penalties are applied to the accused. It also highlights the necessity for lawmakers to be mindful of existing legislative frameworks and the implications of their amendments on ongoing cases. **REFERENCES** *Prevention of Adulteration of Food, Drugs and Cosmetics, 1973(West Bengal Amendment Act)* *The Prevention of Food Adulteration Act, 1954* *Bengal General Clauses Act, 1899 (Ben. Act I)* *Prevention of Food Adulteration Act 1976* *Section 16(1) (a), Prevention of Food Adulteration Act, 1954* *Section 16A, Prevention of Food Adulteration Act, 1954.* *Article 20(1), Constitution of Republic of India, 1950.* *Article 254, Constitution of Republic of India, 1950.* [***\[1\]***](#_ftnref1) *1983 Air 150* [***\[2\]***](#_ftnref2) *Prevention Of Food Adulteration Act 1976* [***\[3\]***](#_ftnref3) *Prevention Of Food Adulteration Act 1976(Centrally Amended)* [***\[4\]***](#_ftnref4) *Prevention Of Adulteration Of Food, Drugs And Cosmetics, 1973(West Bengal Amendment)* [***\[5\]***](#_ftnref5) *The Prevention Of Food Adulteration Act, 1954* [***\[6\]***](#_ftnref6) *Bengal General Clauses Act, 1899 (Ben. Act I)* [***\[7\]***](#_ftnref7) *Article 254, Constitution of India.* [***\[8\]***](#_ftnref8) *Prevention of Food Adulteration Act 1976(Centrally Amended)* [***\[9\]***](#_ftnref9) *Article 254, Constitution of India.* [***\[10\]***](#_ftnref10) *Prevention of Food Adulteration Act 1976* [***\[11\]***](#_ftnref11) *Section 16(1)(A), Prevention Of Food Adulteration Act, 1954* [***\[12\]***](#_ftnref12) *Section 16a, Prevention of Food Adulteration Act, 1954.* [***\[13\]***](#_ftnref13) *Article 20(1), Constitution of Republic Of India, 1950.* [***\[14\]***](#_ftnref14) *Article 254, Constitution of Republic Of India, 1950.* [***\[15\]***](#_ftnref15) *Section 8, the Bengal General Clause Act, 1899.* [***\[16\]***](#_ftnref16) *1983 Air 150* **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases --- ### [Anuj Garg v. Hotel Association of India (2008)](https://lawfoyer.in/anuj-garg-v-hotel-association-of-india-2008/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Anisha Parveen** **Edited by: Shadrack Chai** **ABSTRACT / HEADNOTES** This case concerns whether certain laws that treat people differently based on gender and age are fair under India’s Constitution. Specifically, the challenge is to a part of the Punjab Excise Act of 1914, which banned men under 25 and all women from working in places where alcohol and drugs are used publicly. The Court reviewed this old law in light of modern values and the principles of equality outlined in Articles 14 and 15 of the Constitution. They used a strict test to decide if the law was fair and proportionate. Ultimately, the Court found that the law was unfair because it enforced outdated gender roles and limited people’s right to work, which is part of the right to make a living. In making this decision, the Court looked at international examples of women’s rights. They talked about the balance between a woman’s right to make her own choices and the need for safety. They emphasized that while protection is important, it shouldn’t become a form of control. The Court decided that laws that limit personal freedom based on outdated cultural norms should be closely examined and often struck down. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 ***ii)* *Case Number*** Appeal (civil) 5657 of 2007 ***iii)* *Judgement Date*** 06/12/2007 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** 2 ***vi)* *Author / Name of Judges*** S.B. Sinha & Harjit Singh Bedi ***vii)* *Citation*** AIR 2008 SC 663, (2008) 3 SCC 1 ***viii)* *Legal Provisions Involved*** Article 14, Article 15, Article 19, and Article 21 of the Constitution **INTRODUCTION AND BACKGROUND OF JUDGEMENT** “The Hotel Association of India and others filed a case in the Delhi High Court challenging the constitutional validity of section 30 of the Punjab Excise Act, 1914. This section prohibits the employment of men under 25 years old and any women on premises where the public consumes liquor or intoxicating drugs. The Delhi high court ruled that this section was unconstitutional, violating Articles 14, 15, and 19 (1) (g) of the Indian constitution, but only in the part that prohibits women’s employment.”[\[1\]](#_ftn1) **FACTS OF THE CASE** “The NCT of Delhi supports the judgment but also defends the challenged provision as a respondent in the case. The appellants, a group of Delhi citizens, question the validity of the judgment. The Hotel Association of India, as the respondent, has filed a special leave petition. Their members, who run hotels, serve liquor in bars, restaurants, and as room service. They challenged the law regarding the employment of men under 25 in places where liquor or intoxicating drugs are served to the public.”[\[2\]](#_ftn2) **LEGAL ISSUES RAISED (***minimum 2 legal issues*) Section 30 of the Punjab Excise Act, 1914. Articles 14, 15, 16, 19, 21, and 372 of the Constitution, 1950. **PETITIONER / APPELLANT’S ARGUMENTS** “Mr. Rajiv Dutta, the senior counsel for the appellants, argued that since no one has a fundamental right to deal in liquor (consider ‘res extra commercium’), the state has the authority to create or maintain laws that impose reasonable restrictions on employment in such establishments.”[\[3\]](#_ftn3) **RESPONDENT’S ARGUMENTS** “Mr. Arun Jaitley, the senior counsel for the respondents, supported the judgment. He argued that privacy rights grant individuals the autonomy to choose their profession, while security concerns shape how this autonomy is protected. However, measures to safeguard this autonomy should not be so stringent that they undermine the essence of the guarantee. State protection should not become a form of censorship.”[\[4\]](#_ftn4) **RELATED LEGAL PROVISIONS** **Section 30 of the Punjab Excise Act, 1914:- “**No person who is licensed to sell any liquor or intoxicating drug for consumption on his premises shall during the hours in which such premises are kept open for business, employ or permit to be employed either with or without remuneration any man under the age of 25 years or any women in any part of such premises in which such liquor or intoxicating drug is consumed by the public.**”** **Article 14:- “** The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India**.”** **Article 15:- “** forbids discrimination on grounds only of religion, race, caste, gender, or place of birth or any of them**.”** **Article 19:- “**Freedom of Speech and Expression**”** **JUDGEMENT** “The Delhi High Court’s judgment was upheld, with the higher court stating that the legislation in question resulted in invidious discrimination based on gender. The restriction on employing men under 25 in the industry”.[\[5\]](#_ftn5) **Ratio Decidendi** “The court observed that although the Punjab Excise Act is an older law enacted before the Indian constitution and is typically safeguarded by article 372 its legitimacy can still be questioned under articles 14, 15, and 19 of the constitution while the law may have been appropriate at the time it was created significant societal changes both in India and globally mean that it may now be deemed invalid the court also referred to the john vallamattom case emphasizing that the justness of a law should be assessed in light of evolving societal norms and legal interpretations over time”. [**\[6\]**](#_ftn6) The court addressed the difficulty of reconciling the right to employment with the necessity for safety in the context of gender equality it’s essential to uphold the right to make personal decisions however providing safety and protection in a secure environment is also critical to the existing law intended to safeguard women curtails their freedom and increases their reliance on state protection this approach is problematic the court contended that state intervention should be measured and truly protective rather than limiting women’s freedom the focus should be on empowering laws and enforcement practices should ensure safe conditions that enable women to work confidently and independently in their chosen careers. “Regarding the concept of res extra commercium things outside the realm of commerce the court observed that hotel management is a specialized field and it is unjust to prevent young skilled and qualified individuals from pursuing these jobs this principle only applies if the state imposes a total prohibition in the case of Kerala **Samsthana Chethu Thozhilali Union v State of Kerala** the court stated that unless a job is specifically prohibited by law the state should not interfere the extent of the state’s authority to enact such laws is subject to debate the ruling also clarified that article 15 encompasses both direct and indirect forms of discrimination the state should not rely on stereotypes to justify discriminatory legislation although the right to employment is not explicitly listed as a fundamental right article 16 ensures the right to be considered for employment subject to reasonable restrictions thus providing a fundamental basis for this right.”[\[7\]](#_ftn7) The court dismissed the state’s defense of section 30 using the ‘parens patriae’ (parent of the nation) doctrine this doctrine is only acceptable if it’s truly necessary and does not cause undue harm additionally the court noted that this power could be contested on the grounds of the right to privacy young individuals in India should be free to make their own decisions especially given their access to information in the digital age the ruling established a benchmark for laws that aim to protect by imposing discrimination protective discrimination such laws must undergo rigorous judicial scrutiny meaning they should be assessed not only for their intended objectives but also for their actual impact the law in question was criticized for relying on outdated and stereotypical notions of gender roles the court introduced a two-step evaluation process the intervention of the state must be justified by a legitimate purpose and should be proportionate to its objectives. “The court applied the doctrine of proportionality to evaluate the law this principle requires that the means used by the law must be appropriately balanced with its intended objectives the court assessed whether the law effectively protects women’s interests while upholding fundamental values such as personal freedom equal opportunity and privacy.”[\[8\]](#_ftn8) **CONCLUSION & COMMENTS** The case exemplifies how the Constitution’s essence lies in the dynamic and purposive interpretation of its text, allowing constitutional courts to bring it to life. Dynamic interpretation ensures the constitution endures across generations, enabling progressive changes and the realization of rights as societies evolve. The court highlighted that women’s rights, not recognized when the legislation was formed, are now ensured by articles 14, 15, and 16 which aim to guarantee equality. The legislation was discriminatory in the 20th century, it is invalidated on the same grounds. This case advances feminist jurisprudence by challenging long-standing sex stereotypes. **REFERENCE** Bhatia , G. (2014, February 20). Grounding a progressive jurisprudence of sex equality: Anuj Garg v. Hotel Association. Constitutional Law and Philosophy. < > Team, C. (2020a, June 10). case of Anuj Garg and ors v. Hotel Association of India and ors. LAWyersclubindia.< > The Constitution of India [\[1\]](#_ftnref1) Bharwani, A. (2020, November 14). Anuj Garg & ors vs. Hotel Association of India & Ors. 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Law Times Journal. <[https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C\_eDrvnhlbYI&hl=en-US](https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C_eDrvnhlbYI&hl=en-US) > [\[4\]](#_ftnref4) Bharwani, A. (2020, November 14). Anuj Garg & ors vs. Hotel Association of India & Ors. Law Times Journal. <[https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C\_eDrvnhlbYI&hl=en-US](https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C_eDrvnhlbYI&hl=en-US) > [\[5\]](#_ftnref5) Anuj Garg And Others v. Hotel Association Of India And Others, Supreme Court Of India, Judgment, Law, casemine.com. (n.d.). Https://Www.Casemine.Com. Retrieved August 4, 2024, from <[https://www.casemine.com/judgement/in/5609ae5ae4b01497114138c5?utm\_source=amp&target=amp\_summary](https://www.casemine.com/judgement/in/5609ae5ae4b01497114138c5?utm_source=amp&target=amp_summary) > [\[6\]](#_ftnref6)Bharwani, A. (2020, November 14). Anuj Garg & ors vs. Hotel Association of India & Ors. Law Times Journal. <[https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C\_eDrvnhlbYI&hl=en-US](https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C_eDrvnhlbYI&hl=en-US)> [\[7\]](#_ftnref7) Bharwani, A. (2020, November 14). Anuj Garg & ors vs. Hotel Association of India & Ors. Law Times Journal. <[https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C\_eDrvnhlbYI&hl=en-US](https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C_eDrvnhlbYI&hl=en-US)> [\[8\]](#_ftnref8) Bharwani, A. (2020, November 14). Anuj Garg & ors vs. Hotel Association of India & Ors. Law Times Journal. <[https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C\_eDrvnhlbYI&hl=en-US](https://www.google.com/url?q=https://lawtimesjournal.in/anuj-garg-ors-vs-hotel-association-of-india-ors/&usg=AOvVaw3HCiO3QLD3C_eDrvnhlbYI&hl=en-US)> **Categories:** Case Analysis, Constitutional Law Cases --- ### [Ajay Hasia vs Khalid Mujib Sehravardi](https://lawfoyer.in/ajay-hasia-vs-khalid-mujib-sehravardi/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: Apurva Shah** **Edited by: Shadrack Chai** **ABSTRACT / HEADNOTE (not less than 150 words and more than 250 words)** The Supreme Court case of Ajay Hasia vs. Khalid Mujib was centered around the issue of whether the Regional Engineering College comes under the definition of the concept ‘State’ mentioned in Article 12 and thus is subject to the writ jurisdiction. The case raised an important question before the court as to what is included as a state in Article 12 of the Constitution of India. The other issue raised in the case was the inappropriate distribution of marks for the viva voce and qualification examinations and whether the separate admission process for different state students violates the equality clause under Article 14. The court held in its ruling that a body or entity can be considered a state if it fulfills a certain set of tests. The purpose of each test was to examine different aspects of the institution’s relationship with the government. Due to the deep control of the Government on the REC, The court in its final ruling determined that the college is considered a state under Article 12 and therefore is subject to writ jurisdiction**.** ***Keywords* *(Minimum 5)*:** Article 12, equality under Article 14, the definition of state, Article14, instrumentality, viva examination **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Ajay Hasia vs Khalid Mujib Sehravardi ***ii)* *Case Number*** 1 SCC 722 (Supreme Court of India 1981). ***iii)* *Judgement Date*** November 13, 1980 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** P.N.BHAGWATI, Y.V.CHANDRACHUD, V.R. KRISHNA IYER, SYED MURTAZA FAZALALI, A.D.KOSHAL ***vi)* *Author / Name of Judges*** P.N. BHAGWATI ***vii)* *Citation*** 1981 AIR 487, 1981 SCR (2) 79, 1981 SCC (1) 722 ***viii)* *Legal Provisions Involved*** Constitution of India -Article 12 and Article 14 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The writ petition filed under Article 32 challenged the procedure of admission of Regional Engineering College in Srinagar (hereinafter referred to as REC or college), one of the 15 colleges in the Union Territory of Jammu and Kashmir registered as a society under the Jammu & Kashmir Registration of Societies Act, 1898. Also, the case is a landmark judgment related to the interpretation of the definition of the term state. As defined in Article 12 of the Constitution of India, the state includes the union and state governments, the Parliament and state legislature, as well as any local or other authorities in the territory of India or under the control of the Indian government. “The first step towards justice is ensuring that power is accountable.” By specifying the range of entities against which fundamental rights are enforceable, Article 12 of the Indian Constitution helps to understand who is liable when these rights are violated. **FACTS OF THE CASE** **Procedural Background of the Case** The petitioners in the case filed a writ petition under Article 32 directly in the Supreme Court They demanded relief against the unfair admission process of REC **Factual Background of the Case** The issue arose when the authorities of the college issued a notice regarding the vacancies for admission to the first semester of the B.E. course and the petitioners applied for admission The admission process consisted of a qualification test and a viva voce test -A short interview asking formal questions relating to the candidate’s percentage and residence rather than questions related to the subject The petitioners found that despite scoring good marks in the qualification test they were unable to secure admission due to low marks in the viva voce test when admissions were declared They claimed that this process was unjust, as it allowed candidates with lower marks in the qualification test to gain admission based solely on the short viva voce interview. **LEGAL ISSUES RAISED** Whether the college involved comes under the definition of state under Article 12 and thus is amendable to writ jurisdiction Whether the admission procedure of college is violative of the equality clause under Article 14 **PETITIONER / APPELLANT’S ARGUMENTS** The counsels for Petitioner primarily submitted that despite being registered as a society the college acted as a government entity. It was argued that the college’s establishment resulted from government initiatives, and a significant portion of its funding had come from the Governments of India and Jammu and Kashmir. The petitioners pointed out the composition of the Board of Governors as evidence of the government’s control over college The petitioners argued that the true nature and character of the college were governmental making it a state under Article 12 They contended that the formality of registering the college as a society under the Jammu and Kashmir Registration of Societies Act, 1898, did not change the original substance of the institution They urged the court to look beyond legal form and consider the actual operations which they firmly claimed to be within the government’s authority **RESPONDENT’S ARGUMENTS:** The counsels for Respondent contended that the college is a society registered under the Jammu and Kashmir Societies Act, 1898 rather than a corporation created by statute. Thus it is not an authority as the meaning of Art. 12 of the Constitution suggests and therefore no writ petition can be filed against it, nor can any complaint be made that it has acted unjustly in the matter of offering admissions and violated the equality clause of the Constitution. **RELATED LEGAL PROVISIONS** **Article 12:– “***In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”* **Article 14*: – “(****Equality before law) The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”**\[2[\[1\]](#_ftn1)\]*** **JUDGEMENT** The court gave a decision in favor of the petitioners. The court analyzed various clauses in the memorandum of association and rules of conduct. Taking into consideration the case of *R.D Shetty vs. International Airport Authority* and having fulfilled the required condition to be called a State the court held that society was an agency of Government. This conclusion was based on the government’s extensive control over its functioning including the composition which was determined by the representatives of government and the requirement for society to comply with the direction set by the government. The Memorandum of Association of Society and the Rules Act of the Society indicates that the college was owned, controlled, and managed by the Government and hence a State under Article 12 of the Constitution under “Other authorities.” They emphasized that it did not matter whether the corporation was established by legislation or statute for this purpose; what mattered was whether it acted as a government instrumentality or agency. Regarding the second issue Court closely examined the difference between the classification of doctrine and Article 14. The court did not find any solid evidence supporting the petitioners’ claim that the viva voce examination was too short or irrelevant. The court concluded that the possibility for interviews to be manipulated is not a sufficient reason to remove them from the selection procedure However, the court issued guidelines to limit the occurrence of future discrepancies. It advised the college to review the selection procedure with the viva voce examination having a smaller proportion of marks **CONCLUSION & COMMENTS** Delivering its verdict on November 13, 1980, the Court held that if an entity is acting as a body of the government in the functional, structural, and financial matters then it can be categorized as a state under Article 12. The Ajay Hasia vs Khalid Mujib case also included a six-factor test for determining when a corporation can be said to be an instrumentality of government. these tests were previously laid down in the landmark judgment R.D Shetty vs. International Airport Authority “ (1)if Government owns all shares of the company, then it is a high indicator that the firm is an agency of the Government .” (2) “Where the monetary support provided by the state covers the almost total expenditure of the corporation, it highly suggests the Government effect on the organization.” (3) “Another relevant factor that can be considered is the monopoly status of the entity granted or protected by the Government .” (4) “The presence of strong and extensive state control over the corporation can be a proof of it being the state body “ (5) “If the corporation performs functions that are of public importance and if they are closely aligned with government functions then it’ll be a significant factor in classifying the corporation as a government institution “ In my opinion, the Ajay Hasia vs Khalid Mujib case provides important insights into the interpretation of Article 12. It helps to understand which entities can be held liable when there is a fundamental rights violation. **REFERENCES** **Important Cases Referred** R.D Shetty vs. International Airport Authority U.P. Warehousing Corporation v. Vijay Narain [Peeriakaruppan v. State of Tamil Nadu & Ors](https://indiankanoon.org/doc/471474/) [E.P. Royappa v. State of Tamil Nadu](https://indiankanoon.org/doc/1327287/) [\[1\]](#_ftnref1) The Constitution of India, Article. 14,1950 **Categories:** Case Analysis, Constitutional Law Cases --- ### [SARLA MUDGAL AND ORS. VS. U.O.I & ORS](https://lawfoyer.in/sarla-mudgal-and-ors-vs-u-o-i-ors/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author :Beradar Akash** **Edited By: Shadrack Chai** **ABSTRACT** *Sarla Mudgal vs Union of India is a landmark case in the history of India. This case deals with a rather complicated issue of bigamy about apostasy. In this case, a Hindu man remarried under Islam without divorcing his first Hindu wife. Thus, this act of the husband doesn’t meet the provision of Monogamy under Hindu law. The Supreme Court observed whether such a conversion of a man is bona fide and discussed the Fundamental question of UCC under the provision of Article 44 of the Indian constitution, the apex court further stated that a man converting himself by embracing Islamic religion to commit bigamy would render it invalid and it further highlights the need of uniform civil code implementation. Hence in the present case, the Supreme Court highlighted that women’s rights were violated and one cannot use religion as a reason for exploitation. Thus, this Article aims to provide facts, issues, and judgment of the Supreme Court with further observation on an in-depth analysis of this case concerning Bigamy with the provisions of law.* *Keywords: Religious conversions, Bigamy, UCC, Hindu Marriage Act, Sec 494 of IPC* **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Smt. Sarla Mudgal, President, Kalyani & … vs Union of India & Ors 1995 ***ii)* *Case Number*** Writ Petition No. 1079 of 1989 ***iii)* *Judgement Date*** May 10, 1995 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** Kuldip Singh, R.M Sahai ***vi)* *Author / Name of Judges*** Kuldip Singh ***vii)* *Citation*** 1995 AIR 1531, 1995 SCC (3)635 ***viii)* *Legal Provisions Involved*** · Article 44 of the Indian Constitution (DPSP) · Indian Penal Code of 1860, Sec 494& 495 · Hindu Marriage Act, 1955 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Under the Hindu Marriage Act 1955 it states that a person living in a marriage and remarrying someone is an illegal act. The present case discusses mainly the issues of bigamy and religious conversions in the operation of personal laws. Countries like India have allowed for different religious practices but issues arise when one person converts his religion just for the sake of avoiding harsh and stricter personal laws. Hence this issue was scrutinised by the apex court in the present case. Thus, this case highlights the legal effectiveness of any conversion for a second marriage according to the constitution of India and the controversy UCC brings into the picture. **FACTS OF THE CASE** **Procedural Background of the Case** This case primarily consists of 4 petitions that were filed under Article 32 of the Indian constitution. Smt Sarla was a petitioner 1 of “KALYANI” a registered society an organization that was working for the welfare of women and needy families. One day the petitioner was shocked to learn the truth about her husband had solemnized a second marriage with a Muslim lady. Thus, the marriage was solemnized after they converted themselves and adopted the Islamic religion. Later a mandamus writ petition was sought to ban the act of practicing the legislation that allows any Hindu man to convert himself and live in a bigamous marriage **Factual Background of the Case** The petitioners were all Hindu women whose husbands were turned into Muslims for the sake of remarriage without divorcing the first lawful wives and left no legal redress. The counsel for the petitioners has argued that the conversion is not lawful and bona fide in nature and evades the provisions of 494 of IPC 1860, which states bigamy marriages are void in nature and shall be punishable and read with sec 17 of the Hindu Marriage Act,1955. **LEGAL ISSUES RAISED** Whether any husband marries to Hindu woman under Hindu law, can he solemnize the second marriage by accepting the Islamic religion? Whether the first marriage without dissolution under the law can be valid? Whether the husband will be liable for his act of bigamy under sec 494 of IPC 1860? **PETITIONER / APPELLANT’S ARGUMENTS** The counsel for the petitioner submits that the conversion of the husband proves that his purpose for conversion was to solemnize the marriage as polygamy is allowed in the Islamic religion The counsel for the petitioner further contended that the act of the respondent was mala fide in nature, as it was very clear that he converted himself to Islam because he could escape the liability of being punished under sec 494 of IPC 1860 The counsel argued that freedom of religion under Article 25 of the Indian constitution does not extend to getting converted and committing the offense of bigamy which is punishable under the Hindu personal law. Non-implementation of UCC under Article 44 of the Indian constitution is leading to discrimination of women from one religion by another, hence it’s a clear violation of Article 14. **RESPONDENT’S ARGUMENTS** The counsel for the respondent contended that in this case Hindu Marriage Act, 1955 and IPC, 1860 aren’t applicable, because Islam allows polygamy, meanwhile, he can marry four wives even in a case where the first marriage is subsisting. The counsel further argued that under Islamic personal law, if any of the spouses does not accept the same religion then it results in the dissolution of the marriage. The counsel for the respondent also stated that any intervention with personal laws such as marriages would tend to the violation of the freedom of religion. And UCC is just a directive principle that is not enforceable in a court of law. **RELATED LEGAL PROVISIONS** Article 44 of the Indian constitution *“The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”*. However, Article 37 makes it clear that shall not be enforceable before the courts Articles 25& 26 of the Indian constitution *“Freedom of conscience and free profession, practice and propagation of religion”* *“Freedom to manage religious affairs”* Section 420 of the Indian Penal Code 1860 *“Whoever cheats and thereby dishonestly induces the person deceive”* Here it means whoever, a husband or wife is living and re-marring some other person such marriage would be void in nature and shall be punishable here under ### Section 17 of the Hindu Marriage Act, 1955 ### *“Any marriage between two Hindus solemnized after the commencement of this Act is void if, at the date of such marriage, either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.”* Section 494 of IPC, 1860 *“Whoever, having a husband or wife living, marries in any case in which such marriage is void because of it taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”* JUDGEMENT** This case judgment was delivered by the Hon’ble Justice Kuldeep Singh and Hon’ble Justice R.M. Sahai it was held that “*marriages that are celebrated in one personal law cannot be dissolved by the application of other religious personal laws”* thus conversion by any Hindu spouses doesn’t put the first marriage to an end. Hindu husbands married under the Hindu Personal law, by accepting Islam cannot solemnize the second marriage. Thus, the second marriage would be illegal and the first marriage can be only dissolved through a decree of divorce under the governing act. Therefore, the second marriage of the respondent would be in violation of sec 494 of IPC and it would be void, and illegal shall be punishable under the said provision as it fills the required grounds under sec 494 of IPC 1860 **RATIO DECIDENDI** The solemnizing the marriage by way of conversion doesn’t annul the marriage and if the subsequent marriage is bigamous then he or she would be guilty under sec 494 of the penal code. The first marriage would remain legal and binding unless the decree of divorce has been granted by the court, also the court pointed out that India needs a UCC to eliminate the conflicts between personal laws. **OBITER DICTA** Marriage is one of the primary social contracts, it is involved with the public interest and creates certain expectations which bind the spouses with obligations A conversion of a Hindu man to Islam for practicing polygamy is permitted in Islam but not in Hindu law. Conversion to another religion doesn’t put the Hindu marriage to an end, instead, it must have dissolved under the Hindu law. The marriage dissolution must adhere to the original personal laws of the parties The UCC implementation under the provision of Article 44 of the Indian constitution can promote integrity & uniformity in personal law. Justice R.M. Sahai dissented here by stating that, the implementation of UCC could create religious dissatisfaction and it would be arbitrary and unconstitutional because the constitution protects the freedom of religion. Thus, he recommended new legislation on the ‘Conversion of Religion Act’ to prevent the misuse of religion and govern marriages for conversion. **CONCLUSION & COMMENTS** This case was considered a landmark judgment that upheld women’s rights and prevented the misuse of personal laws. The court held the second marriage to be void under Hindu law. Marriage is a sacrament and a universal social institution. A man converting himself with a mala fide intention is considered to be a colourable conversion, one cannot use the mode of religion for his benefit or commit bigamous marriages without divorcing his first legal spouse. **REFERENCES** **Important Cases Referred** The apex court referred many cases in the present case to support its judgment as follows *Robasa Khanum & Anr vs. Khodadad Irani & Ors AIR 1946 BOMBAY 272* In this case, it was held that the conduct of any spouse who converts to a Muslim religion should be judged based on the rule of justice, equity, and good conscience. Thus, the court shall act and decide on this basis. *Attorney General of Ceylon vs. Reid; (1965 A. C. 812)* This case outlines the legal issues while applying penal laws like bigamy in the context of changing personal laws. *Mohd. Ahmed Khan Vs. Shah Bano Begum: (1985 (3) S.C.C. 559) \[reported in 1985 SCC 945\]* This case provided a significant judgment, where it discussed the need and enactment of UCC in India to get rid of discrimination in particular areas of various personal laws. **Important Statutes Referred** India Penal Code, 1860: Sec 494 & 495 Hindu Marriage Act, 1955: Sec 17 Indian Constitution: Articles 14, 25 & 44 **REFERENCES** *Robasa Khanum & Anr vs. Khodadad Irani & Ors* AIR 1946 BOM 272 *Attorney General of Ceylon vs. Reid* (1965) AC 812 *Mohd. Ahmed Khan V Shah Bano Begum* (1985) 3 S.C.C. 559 Kuldip Singh and RM Sahai, “Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union of India & Ors.” “Article 44: Uniform Civil Code for the Citizens – Constitution of India” (*Constitution of India*, July 4, 2023) Geeks for Geeks, “IPC Section 420 of the Indian Penal Code” (*Geeks for Geeks*, May 10, 2024) *Smt Sarla Mudgal, &Ors. V Union of India AIR (1955) SC 531Indian Kanoon* “IPC Section 494 – Marrying Again during Lifetime of Husband or Wife – Punishment and Bail” (*lawrato.com*) **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases --- ### [MANAGING DIRECTOR ECIL HYDERABAD etc. v. B. KARUNAKAR etc.](https://lawfoyer.in/managing-director-ecil-hyderabad-etc-v-b-karunakar-etc/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author: ritika ahari** **Edited by: A I Sugandesh** **ABSTRACT / HEADNOTE** In this case, the question of law arises, through which there is a conflict between the decisions of the Supreme Court. To resolve the conflict the bench of three judges of the Supreme Court convened the Chief Justice to lay before the larger bench. B. Karunakar was the general director in the ECIL, he had worked in various posts in the company, the company occupied the manufacturing unit of electronic products. It was alleged that B. Karunakar was involved in misconduct acts and misuse of the cars of the company without permission after various complaints were received by the managing director, he called a meeting in which an inquiry officer was appointed. The managing director himself was the inquiry officer and declared B. Karunakar and terminated him from the service. Being aggrieved by the decision B. Karunakar appealed to review the decision to the Labour Tribunal, and the tribunal set aside the termination. But the managing director further challenged the decision in the High Court of Andhra Pradesh & later in the Supreme Court. The question of law was whether the report of the inquiry officer had to be furnished to the employee before the decision of the disciplinary authority. Whether the employee has any right to know the findings of the report before the trial so that he may defend or represent himself. Another question was non-disclosure of the inquiry report can be considered a violation of the principles of natural justice and also the punishment given by the authority in the form of termination from the service is justified in the view of the law. ***Keywords* *(Minimum 5)*: Principles of Natural Justice, Disciplinary proceedings, Inquiry officer’s report, Central Administrative Tribunal (CAT), Misconduct, furnishing report, Public Servants (Inquiries) Act, 1850** **CASE DETAILS** i) ***Judgment Cause Title / Case Name*** Managing Director Ecil Hyderabad Etc. … vs B. Karunakar Etc ii) ***Case Number*** Appeal (civil) 3056 of 1991 iii) ***Judgement Date*** 01/10/1993 iv) ***Court*** Supreme court v) ***Quorum / Constitution of Bench*** M.N. Venkatachaliah, P.B. Sawant, K. Ramaswamy, S. Mohan vi) ***Author / Name of Judges*** – vii) ***Citation*** AIR 1994 SUPREME COURT 1074, 1993 (4) SCC 727 viii) ***Legal Provisions Involved*** Industrial Employment (Standing Orders) Act, 1946, Industrial Disputes Act, 1947, Article 226 & Article 136 of the Constitution. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Managing Director Ecil Hyderabad Etc. … vs B. Karunakar Etc is the landmark judgment on principles of natural justice and procedural fairness in disciplinary proceedings against employees. The judgment lays down the disciplinary guidelines regarding the dismissal grounds and inquiry reports which must be furnished to the employee before a decision is made by the disciplinary authority. Guidelines given in this case judgment seek to balance between the rights of the employee and the interest of the employer and the requirements of administrative efficiency. The case arose from a disciplinary action initiated against B. Karunakar was dismissed from the service. The managing director of the ECIL conducted the inquiry and found B. Karunakar guilty of misconduct. B. Karunakar challenged the order before the labor court which set aside the dismissal. The managing director filed a writ petition in the CAT after dismissal, and the High Court of Andhra Pradesh also dismissed the writ petition. The primary question before the Supreme Court was whether, before the decision of the disciplinary authority, the non-furnishing of the inquiry report to the employee was considered a violation of the principles of Natural Justice. After examining the scope of the principles of Natural Justice in the present situation the court gives guidelines to furnish the inquiry report before the employee is mandatory, he has the right to know the grounds on which he was dismissed. **FACTS OF THE CASE** 1. **Procedural Background of the Case** 1. **The decision of disciplinary authority –** Various complaints were received by the managing director regarding the misconduct act of Akar. The inquiry committee was called upon, and an inquiry report found guilty and dismissed Karunakar from his service as a punishment. 2. **Labour Court –** Karunakar challenged the dismissal in the labor court, the court set aside the decision of the authority. 3. **Central Administrative Tribunal (CAT)-** Being aggrieved by the decision of the Labour Court, the managing director filed a writ in the CAT, but the CAT also dismissed the decision. 4. **High Court of Andhra Pradesh – A** Writ petition was filed by the managing director, which was further dismissed. 5. **Supreme court –** Court on special leave petition, look upon the case. The primary question was whether the inquiry report had to be furnished to an employee before the decision of the disciplinary authority, whether it this a violation of the principles of natural justice, and whether the dismissal was right on such grounds. 2. **Factual Background of the Case** The Respondent B. Karunakar was the senior technical Officer of the Company. On December 27, 1986 *“a Memorandum of Charges setting out the misconduct, said to have been committed by him, with details thereof that he had unauthorizedly sold T.V. sets.”* For this purpose, an enquiry officer was appointed, and a reasonable opportunity has been given to B. Karunakar to give his reasoning. Enquiry officer’s report was produced after enquiring the evidences on March 13, 1987, stating that B. Karunakar acted prejudicially with the companies interest, and was found guilty. On its consideration, the disciplinary authority agreeing with the findings, removed B. Karunakar from the services of the Company. The writ petition was dismissed by the single judge of the Andhra Pradesh High court, but the division Court allow the case on appeal on relying on the case of **Union of India v.** **Mohammad Ramzan Khan.** **LEGAL ISSUES RAISED** 1. Whether the employee is entitled to receive a copy of the inquiry officer’s report before any proceeding against him? 2. Whether the scope of the principles of natural justice required to furnish the report of the inquiry officer or non-disclosure may be considered a violation of Natural Justice principles? 3. Whether there is no responsibility on the authority to submit the report if the employee does not demand submission of the report? 4. From what date furnishing of the report come into operation according to law? 5. Whether the decision laid down in Mohd. Ramzan Khan’s case (AIR 1991 SC471) (supra) will be applicable in the sphere of all the establishment – Government, non-government, private & Public undertakings? 6. whether the employee is eligible to claim any relief as the inquiry report was not furnished to him before the order of the punishment? 7. whether the prospective operation of the decision laid down in Ramzan Khan’s case (AIR 1991 SC 471) is applicable to the order of punishment was passed on 20 November? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. It was submitted by the counsel for the petitioner that the inquiry report is an internal document, which consists of confidential and sensitive information, this is the discretion of the disciplinary authority to supply a copy of the inquiry report to the employee or not. They contended that there is no mandatory requirement under Article 311(2) of the Constitution or the relevant service rules to provide the report. Article – 311(2) of the constitution states that – “No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed”. 1. It was argued that the principles of natural justice are adequately satisfied by holding an oral inquiry, examining witnesses, and allowing the delinquent employee to cross-examine the witnesses and present their defense. Providing a copy of the inquiry report was not considered an essential part of natural justice and therefore there is no violation of principles of natural justice. Petitioner referred the previous judgment of the Supreme Court, **Nirmala J. Jhala v. State of Gujarat (1980) and Satyavir Singh v. Union of India (1985),**“which held that supply of the inquiry report to the delinquent employee is not necessary for compliance with the principles of natural justice”. - The petitioner contended that the disciplinary authority is not obliged to supply a copy of the inquiry report suo motu (on its own motion) to the delinquent employee. If the employee does not request the report, the authority can proceed with the disciplinary action without providing the report. The onus lies on the employee to demand a copy of the inquiry report if they wish to have it. The petitioner claimed that if the employee does not exercise this right and remains silent, it can be presumed that they have waived their right to receive the report. The petitioner relied on the principle of “waiver” and argued that if the employee does not request the inquiry report, it amounts to a waiver of their right to receive it. Consequently, the disciplinary authority cannot be held responsible for not supplying the report when no demand was made by the employee. 1. It was argued that a prospective application of the decision would mean that the requirement to furnish the inquiry report would apply only to disciplinary proceedings initiated after the date of the court’s judgment. The petitioner sought to avoid the retroactive application of the decision to already concluded or ongoing disciplinary cases. 2. The petitioner contended that ECIL is a public sector undertaking and “Public sector undertakings have operational flexibility” to frame their own rules, service conditions, and pay scales according to their financial constraints and operational requirements. On applying the Mohd. Ramzan Khan’s case decision, the operational flexibility may be restrained, and also the decision of the said case only applies to sovereign functions of the state and not to commercial activities carried out by public sector undertakings. 3. The petitioner argued that there are no specific statutory provisions regarding the mandate of furnishing the inquiry report to the employee and there is no violation of the principles of natural justice because the employee was given an appropriate opportunity to represent himself and non-furnishing of the report did not deprive him of the reasonable opportunity to be heard. - It was argued that the decision of the Mohd. Ramzan Khan’s case should have a prospective operation and not be applied retrospectively. Applying retrospectively the decision of the said case would disturb vested rights and would be unfair as employers like ECIL did not have prior knowledge and ‘notice to prepare for the implications of the new legal principle’. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that B. Karunakar is entitled to receive a copy of the inquiry report before the disciplinary proceeding. Depriving him from a copy of the inquiry report is a clear violation of the principles of natural justice, which empowers a person to represent himself and be transparent in the disciplinary proceeding. 2. It was argued that the scope of the principles of natural justice requires furnishing the report of the inquiry officer to the employee, and non-disclosure of the report should be considered a violation of these principles. There is also an application of the Latin maxim ‘Audi Alteram Partem’ which means the other side heard’ so that there is a clear violation of the natural principles. - It is the primary duty of the disciplinary authority to provide necessary information and evidence to employees whether employees ask for it or not. This is essential to the employee having full knowledge of the charges against him, and to comply with the natural justice principles, a fair chance to represent himself must be given to the employee. 1. Counsel contended that the date of furnishing of the report should come into operation with immediate effect in compliance with the natural justice principles. 2. The decision given in the Mohd. Ramzan Khan’s case was based on the principles of natural justice, these principles are universal regardless of public, private, government, and nongovernment undertakings. 3. The inquiry officer’s failure to comply with the principles of natural justice and to furnish the inquiry report before the disciplinary proceeding, this violation renders the entire disciplinary process void, and the employee is entitled to relief. - “There is no need for prospective application of the decision in Mohd. Ramzan Khan’s case. The requirement to furnish the inquiry officer’s report is not a new legal principle but rather an integral part of the well-established principles of natural justice. Therefore, it should be applied to all cases, regardless of the date of the order of punishment”. **RELATED LEGAL PROVISIONS** 1. **Industrial Employment (Standing Orders) Act, 1946:** This act provides provisions regarding the procedure for the disciplinary actions against the employee and also protects the interest of the employees by facilitating fair and just disciplinary actions. 2. **Industrial Disputes Act, 1947:** This act states the investigation, settlement, termination of employment, and the payment of compensation to employees. 3. **Various labor laws –** Such as **Factories Act, 1948 & The Slopes and Establishments Act, 1954,** which protect the rights of the welfare of employees and also protect employees from employers’ arbitrary or unjust actions. 6. **Article – 14 of the Constitution –** which provides equal protection to all the people and prohibits the discrimination. 7. **Scope of the Public Servant (Inquiries) Act, 1850:** The Supreme Court of India also examined whether the Public Servant (Inquiries) Act, of 1850 applied to the case. The Act provides for the conduct of inquiries into the conduct of public servants and sets out the procedures to be followed in such inquiries**.** The court held that the Act did not apply in this case because the inquiry was not conducted by a public servant but by the Managing Director of a public company. The court noted that the inquiry was conducted under the rules and regulations of ECIL and that the company had its own procedures for conducting disciplinary proceedings. 8. **Section- 240(3) of the Government of India Act, 1935- states** “that the civil servant shall not be dismissed or reduced in rank until he had been given “reasonable opportunity to show cause against the action proposed to be taken in regard to him”. **JUDGEMENT** 1. **RATIO DECIDENDI** 1. **Furnishing the inquiry officer’s report:** The Supreme Court takes the stand for the right of the employee to receive a copy of the inquiry report, this is the fundamental principle of natural justice that must be followed, and fair opportunity should be given to the employee to defend himself on the findings of the report. 2. **Applicability to all establishments –** The furnishing of the inquiry report before the disciplinary proceeding applies to all the establishments nonetheless of private sector, public sector, and government or non-governmental undertakings. - **Immediate application –** There is a question of law arose that from what date furnishing of the report should come into operation the honorable court held that the inquiry report should be given immediately before the disciplinary proceeding 1. **Relief to the employee –** If the inquiry report is not furnished before the disciplinary proceeding, then the employee is liable to claim relief. 2. **Principle of natural justice –** In this case, all the questions of law raised, come into the sphere of the principles of natural justice, and the court also prioritizes them. 3. **OBITER DICTA** 1. **Role of the disciplinary authority –** The disciplinary authority has the discretion to accept or not the evidence and inquiry report of the officer and such discretionary power must be exercised with reasonable care and in compliance with the natural justice principles. 2. **Importance of cross-examination – Cross-examination** should be done in the disciplinary proceedings and reasonable opportunity must be given to the employee to defend himself. - **Exceptions to the rule of furnishing the report –** In some cases, furnishing the report is undesirable due to confidentiality, and such exceptions should be used rarely and must be justified. 1. **Role of labor courts and tribunals –** Labour courts should prevent disputes between the employees and employees and also harmonize the relationship, in the situation of disputes such courts must complete the natural justice principles. 2. **Importance of fairness and transparency –** Disciplinary proceedings must be fair and transparent and not deprive any person’s rights and interests. **CONCLUSION & COMMENTS-** The decision of this case laid down the basic principle of natural justice and its implications. The judgment also plays an important role in safeguarding the rights of the employees and also harmonizing the relationship between them. It emphasizes the fair and just disciplinary proceedings to be followed and also derecognizes the right of the employee to receive an inquiry report to defend himself, it protects the employees from waiver of their rights. The judgment of this case clarifies the conflicting decisions of the various High courts on the matter of whether the inquiry report should be furnished to the employee before the disciplinary proceeding. “The Court referred to its earlier decision in Mohd. Ramzan Khan v. Ajay Kumar Verma (AIR 1991 SC 471), where it had held that the inquiry officer’s report should be provided to the employee. However, the Court in Karunakar’s case went further and held that this principle would apply to all establishments, not just those governed by specific statutes or rules.” **REFERENCES** 1. **Important Cases Referred** - **Ramzan Khan v. Ajay Kumar Verma (AIR 1991 SC 471):** “*This case dealt with the requirement of furnishing the inquiry officer’s report to the employee in disciplinary proceedings. The Supreme Court held that the report should be provided to the employee to comply with the principles of natural justice”.* - **State of Uttar Pradesh v. Om Prakash Gupta (AIR 1970 SC 679):** This *case dealt with the principles of natural justice in disciplinary proceedings. The Supreme Court held that the principles of natural justice must be followed in disciplinary proceedings to ensure fairness and justice.* - **Suresh Koshy George v. University of Kerala (AIR 1969 SC 198):** This *case dealt with the right of an employee to be heard in disciplinary proceedings. The Supreme Court held that an employee has the right to be heard and to present their case in disciplinary proceeding* - **State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan (AIR 1961 SC 1623):** *This case dealt with the role of the disciplinary authority in disciplinary proceedings. The Supreme Court held that the disciplinary authority has the power to disagree with the findings of the inquiry officer but must exercise this power reasonably and with due care.* - **Associated Cement Companies Ltd. v. Workmen (AIR 1964 SC 1595):** *This case dealt with the importance of cross-examination in disciplinary proceedings. The Supreme Court held that cross-examination is an essential part of the principles of natural justice and should be allowed unless there are compelling reasons to deny it.* - **Khem Chand v. Union of India, 1958 SCR 1080:** (AIR 1958 SC 300) *where two questions squarely fell for consideration, viz., what is meant by the expression “reasonable opportunity of showing cause against the action proposed” and at what stage the notice against the proposed punishment was to be served on the delinquent employee. After referring to the decisions of the Judicial Committee in R. Venkata Rao v. Secretary of State for India, (1937) 64 Ind App 55: (AIR 1937 PC 31) and of* *the Federal Court in Secretary of State for India v. I. M. Lall, 1945 FCR 103 : (AIR 1945 FC the Court held that the reasonable opportunity envisaged by the provisions of Art. 311(2) as originally enacted was at the following stages:* *“(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based.* *(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defense; and finally* *(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the inquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant ……….”* **Important Statutes Referred** 1. 1. **Constitution of India: –** Article 14: Equality before law and equal protection of laws. - Article 21: Protection of life and personal liberty. - Article 311: Dismissal, removal, or reduction in rank of persons employed in civil capacities under the Union or a State. - **Industrial Employment (Standing Orders) Act, 1946:** - This act regulates the conditions of employment in industrial establishments. - It lays down the procedures for disciplinary action against employees and requires that these procedures be fair and just. - **Industrial Disputes Act, 1947:** - This act provides for the investigation and settlement of industrial disputes. - It also lays down the principles for the termination of employment and the payment of compensation to employees. 1. **Factories Act, 1948:** - This act regulates the working conditions in factories and ensures the health, safety, and welfare of workers. - It also provides for the rights of workers and the obligations of employers. **Categories:** Case Analysis, Constitutional Law Cases, Labour Law --- ### [RMDC VS. UNION OF INDIA AIR 1957 SC 628](https://lawfoyer.in/rmdc-vs-union-of-india-air-1957-sc-628/) **Published:** August 31, 2024 **Author:** LawFoyer **Content:** **Author:** **Sadhvika S** **Edited by: A I Sugandesh** ****ABSTRACT / HEADNOTE:**** The R.M.D. Chamarbaugwalla vs. Union of India is a landmark judgement for the doctrine of severability under ART.13. This judgement has a basic ground related to ART.13. In this RMDC case, the wider sense of prize competition definition was interpreted that it includes only gambling activities and not skill based. Thus, the SC held that the Prize Competition Act cannot be completely upheld as unconstitutional where it can be severed. The SC held that parts of unconstitutional provisions can be severed, thus the doctrine of severability was also significantly noted in this case. It was also held that their is a delicate balance between fundamental rights and the societal norms or morality to be maintained. This was considered to be a significant legal precedent in Constitutional law. ****CASE DETAILS**** ***i)* ****Judgement Cause Title / Case Name****** R.M.D. CHAMARBAUGWALLA(RMDC) **vs.** UNION OF INDIA ***ii)* ****Case Number****** AIR 1957 SC 628 ***iii)* ****Judgement Date****** 09/04/1957 ***iv)* ****Court****** SUPREME COURT OF INDIA ***v)* ****Quorum / Constitution of Bench****** FULL BENCH (4) ***vi)* ****Author / Name of Judges****** JUSTICE SUDHI RAJAN DAS (CJI), JUSTICE BHUVANESHWAR P. SINHA, JUSTICE P.B. GAJENDRAGADKAR, JUSTICE T.L VENKATARAMA AIYYAR. ***vii)* ****Citation****** 1957 SCR 930, 1957 AIR 628 ***viii)* ****Legal Provisions Involved****** ARTICLE. 19(1), (6), PRIZE COMPETITION ACT, 1955. ****INTRODUCTION AND BACKGROUND OF JUDGEMENT:**** The R.M.D. Chamarbaugwalla **vs.** Union of India is a landmark judgement for the doctrine of severability under ART. 13. This judgment has a basic ground related to ART.13 and ART.19(1)(g), which guarantees the right to carry on any trade, business or profession. In this RMDC case, the petitioner was conducting prize competitions in Mysore since 1948 under the Mysore Lotteries and Prize Competition Control and Tax Act, 1951. He challenged section 2(d) of the Prize Competition Act, 1955 whether constitutionally valid in sense. Section 2(d), which was broad enough to include competitions of a gambling nature as well as competitions involving skill was involved. The petitioners also claimed that the state’s action behind the enactment of this act constituted colorable legislation. The case was petitioner side was argued by Mr. Palkhivala and respondent side was argued by Mr. Seervai. The SC held that the provisions of this act were severable and struck down those provisions which are related to competition not involving skill. The court also held that where after removing the invalid provisions what remains constitutes a complete code there is no necessity to declare the whole act invalid. The court held that the restrictions imposed by Sections 4 and 5 and Rules 11 and 12 of Section 20 were severable in their application to the two distinct categories of competition. Consequently, the impugned provisions could not be held void in their entirety, at least with respect to gambling competitions. The court also held that gambling does not come under the purview of fundamental rights under ART. 19(1)(g). ****FACTS OF THE CASE:**** 1. **Procedural Background of the Case**** 1. A petition was filed by the petitioner on the grounds of infringement of fundamental rights under ART. 32 challenging the constitutional validity of the provisions in the Prize Competitions Act of 1955, stating that violates the Right to trade, business, or profession under ART. 19(1)(g) of Indian Constitution. 2. Further, It was contented by the respondents that section 2(d) of the act is not wide and it is restricted only tothe view of gambling and does not include success depending upon substantial skill, which was the petitioner’s business. 1. **Factual Background of the Case:**** 1. The petitioner’s fundamental rights were infringed by the enactment of new legislation. Thus the petitioners challenged the prohibition on the operation of certain games mere skill, asserting that such a prohibition would violate their fundamental rights under ART. 19(1)(g) of the Constitution. The petitioner’s interpretation of the act included the knowledge of skill and gambling while the respondent interpreted that it included the knowledge of gambling. ****LEGAL ISSUES RAISED:**** 1. Whether section 2(1)(g) of the Prize competitions act, 1955 applies only to gambling or doesn’t include the knowledge of substantial skill? 2. Whether the sections4,5 and rules 11 and 12 of section 20 are constitutionally valid? ****PETITIONER / APPELLANT’S ARGUMENTS:**** 1. The counsels for Petitioner / Appellant submitted that the interpretation of section 2(d) of the Prize Competitions Act,1955 is not only restricted to the act of gambling but also includes the substantial degree of skill. 2. The counsel also argued by stating their infringement of fundamental rights, notably the petitioner was also involved in the conduct of prize competitions across a few states. They argued that their right to conduct business was infringed as per ART. 19(1)(g) of Indian Constitution. - The petitioner’s counsel further stated that the provisions formed a single inseverable enactment, thus leading to the invalidation of the entire act. ****RESPONDENT’S ARGUMENTS:**** 1. The counsels for Respondent submitted that the definition under section 2(d) of the Prize Competition Act, 1955 is properly constructed and only includes the gambling nature and does not include a substantial degree of skill. 2. Thus, also interpreted that gambling is not considered a trade or business under the Constitution of India. As per ART. 19(1)(g) guarantees that all citizens shall have the right to practice any profession trade or business. However, under ART. 19(6)(a) of the Constitution the right shall be considered with restrictions by the authority of law. The state can make any law imposing reasonable restrictions on this right in the interest of the public. 3. The respondents also contended that some parts of the prize competitions act as invalid and should be removed while valid part should stand valid and the whole act should not be considered as unconstitutional. ****RELATED LEGAL PROVISIONS:**** ****Section 2(d)****– “**prize competition” means any competition (whether called a cross-word prize competition, a missing-word prize competition, a picture prize competition or by any other name) in which prizes are offered for the solution of any puzzle based upon the building up, arrangement, combination or permutation, of letters, words, or figures.”** ****Section 4****– “******No person shall promote or conduct any prize competition or competitions in which the total value of the prize or prizes (whether in cash or otherwise) to be offered in any month exceeds one thousand rupees; and in every prize competition, the number of entries shall not exceed two thousand.”** ****Section 5****– “******Subject to the provisions of section 4, no person shall promote or conduct any prize competition or competitions in which the total value of the prize or prizes (whether in cash or otherwise) to be offered in any month does not exceed one thousand rupees unless he has obtained in this behalf a licence granted in accordance with the provisions of this Act and the rules made thereunder.”** ****ART. 19(1)(g)****–**** **“to practi**c**e any profession, or to carry on any occupation, trade or business******.****” ****ART.13(2)****–**** **“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”** ****ART.32(1)****–**** **“The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”** ****ART. 19(6)(a)****–**** **“Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,-** - *The professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or** - *The carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”** ****JUDGEMENT:**** 1. **RATIO DECIDENDI:**** 1. In this case RMDC UOI, the ratio decidendi is that the Supreme Court held that section 2(d) of the prize competitions Act clearly defines the term ‘prize competitions’ as an act including gambling and no other category. 2. The SC also validated that section 4,5 and rule 11,12 of the act concerning gambling could no longer be considered under the ambit of ART. 19(6) of the constitution. - The court also highlighted that gambling is no longer considered under the ambit of ART.19(6) from the precedent judgment as “**gambling or conducting the business of gambling is extra-commercium and hence not included and hence not included within the meaning of trade, commerce or intercourse.”** 1. **OBITER DICTA:**** 1. The case of RMDC has made a significant judgment regarding to the doctrine of severability as follows: - *“The impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or the structure of the subject of the legislation.** - *“It was held that the provisions which have been declared as void do not affect the entire statue, therefore, there is no necessity for declaring the statue invalid.**”** - *“The court also upheld that the test to be applied is whether the legislature would enact the valid part if it had known that the rest of the statute was invalid. But if what remains on the statute book cannot be enforced without altering the whole act should be declared as void. Severability is the question of substance and not of form. The determination of the intention of the legislation is necessary.”** ****CONCLUSION & COMMENTS**** In this case of RMDC, the appellants challenged the constitutional validity of the provisions of the Prize Competition Act, of 1955 related to gambling. The SC held that gambling is not under the purview of the ART. 19(1)(g) and it was also upheld in the case of the **State of Bombay vs. R.M.D. Chamarbaugwalla**.** Thus, the court also held that the interpretation of the Act specifically applies to gambling competitions and ruled that it does not include skill-based competitions, the violation provisions were severable, valid only for gambling competitions, and not wholly void. ****REFERENCES:**** ****Important reference Referred:**** 1. M.D.C **vs.**UOI (1957) AIR SC 628 2. State of Bombay vs. R.M.D. Chamarbaugwalla (1957) AIR SC 699 3. Kihoto Hallohan vs. zachillhu (1992) SCR (1) 686 4. K. Gopalan vs. State of Madras (1950) AIR SC 27 5. State of Bombay vs. F.N Balsara (1951) AIR SC 318 ****Important Statutes Referred:**** 1. Prize Competitions Act, 1955 2. Constitution of India, 1950 **Categories:** Case Analysis, Constitutional Law Cases --- ### [State of Bombay and Ors. v. F.N. Balsara](https://lawfoyer.in/state-of-bombay-and-ors-v-f-n-balsara/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** **Author: Sonal Rai** **Edited by: Shadrack Chai** **ABSTRACT** ***Judgement Cause Title / Case Name*** State of Bombay and Ors. v. F.N. Balsara ***Case Number*** Civil Appeal No. 182 of 1951 ***Judgement Date*** 25/05/1951 ***Court*** Supreme Court of India ***Quorum / Constitution of Bench*** Saiyid Fazal Ali, M. Patanjali Shastri, B.K. Mukherjea, Sudhi Ranjan Das, Vivian Bose ***Author*** Justice Saiyid Fazal Ali ***Citation*** 1951 AIR 318, 951 SCR 682 ***Legal Provisions Involved*** Article 14, Article 19(1), Article 32, Article 47, and Article 132 of the Constitution of India Bombay Prohibition Act, 1949 Government of India Act, 1935 Seventh Schedule of the Constitution of India This case concerned the rights of the petitioner to practice any profession or occupation of the manufacture, sale, and consumption of alcohol and import and export of alcohol in the state of Bombay. The state legislature enacted an act named the Bombay Prohibition Act, of 1949 which prohibits alcohol and its trade. The petitioner exercised his right to issue a writ of mandamus guaranteed under Article 32 before the High Court of Bombay. The writ highlights the jurisdictional limits of the authority in exercising its powers. The Supreme Court determined the scope of state legislative lists and the importance of a balance between fundamental rights and personal liberties. The ruling undermined the power of the state authority to impose reasonable restrictions to serve the public welfare in the state. The judgement serves as an example of such measures that will take place in future. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case of **State of Bombay and Others v. F.N. Balsara** is a landmark judgment by the Supreme Court of India. It addressed the conflict between the law passed by the state legislation and the fundamental rights guaranteed under the Constitution of India. The main issue was whether the state had the authority to prohibit alcohol and whether such a ban would infringe upon citizens’ fundamental rights. The Bombay Prohibition Act, of 1949, sought a complete ban on the manufacture, sale, and consumption of alcohol in the state of Bombay. The Act was challenged in the court that it violated the fundamental rights guaranteed under Articles 14, 19(1)(g), 19(6), and 21 of the Constitution, which ensures the right to equality, the right to freedom, and the right to life and personal liberty according to the procedure established by law. The respondents argued that the ban violated these fundamental rights. The case mainly addresses the interpretation of the legislative lists of the Seventh Schedule of the Constitution and the fundamental rights of the Indian Constitution. **FACTS OF THE CASE** **Procedural Background of the Case:** The petitioner F.N. Balsara moved to the High Court and invoked the writ of mandamus under Article 32 of the Constitution of India against the State of Bombay and the Prohibition Commissioner to restrain the order of enforcement of the Prohibition Act provisions against him. Then this order was appealed before the Supreme Court of India under Article 132 of the Indian Constitution. **Factual Background of the Case:** The petitioner also prayed for a similar relief under Section 45 of the Specific Relief Act. The High Court declared that some of the provisions of the Bombay Prohibition Act, 1949 are invalid and the rest to be valid. The court agreed with some of the petitioner’s contentions and not all. The Bombay Prohibition Act,1949 was passed by the legislature of the Province of Bombay as it was constituted in 1949. The act was published in the Bombay Government Gazette on 20th May 1949 and the date of enforcement was 16th June 1949. However, the petitioner dissatisfied with the High Court’s decision filed a civil appeal before the Supreme Court under Article 132 of the Constitution challenging the act to be unconstitutional as it violated the fundamental rights of the individuals.[\[1\]](#_ftn1) **LEGAL ISSUES RAISED** 1. Whether the state have the authority to enforce such a prohibition under the legislative lists of the Seventh Schedule of the Indian Constitution? 2. Whether the appeal filed under Article 132 of the Indian Constitution upheld the High Court decision and determined that the impugned Act violated the fundamental rights of individuals and could be declared unconstitutional. [\[2\]](#_ftn2) **PETITIONER / APPELLANT’S ARGUMENTS** Learned counsel for the petitioner contended that the prohibition act fell outside the scope of the state list and encroached upon the subjects reserved for the Union Lists or the Concurrent List, thus questioning the legislative incompetence of the state. It is also contended that the Bombay Prohibition Act, 1949 violated the fundamental rights of the individual guaranteed under the Constitution. Article 19 of the Constitution of India which grants the right to profess, practice and propagate any profession or occupation within the territory of India is violated by the act. They argued that the complete ban on the manufacture, sale and consumption of alcohol is unreasonable and the state has not demonstrated that the prohibition was a necessary and proportionate measure for public health and safety. What is contended is that the law enforced has arbitrarily favoured selected groups of people like military personnel and the distinction between civil population and military personnel cannot be made on any rational ground for the enforcement of the prohibition act. It is further contended by the petitioners to what extent the judgement of the High Court can be upheld about the specific provision of the Act which has been declared by it to be void. **RESPONDENT’S ARGUMENTS** The respondents claimed that the state has the authority to enact such law and the state acted within its jurisdiction and did not infringe on subjects reserved under the Union Lists or Concurrent Lists. They maintained that the act made the classifications reasonably with the purpose and it did not violate Article 14 of the Indian Constitution. The respondents maintained that the restrictions were justified by the aim of public welfare and health and fell within the permissible limits. It was further clarified that Article 21 is not violated by the act as it did not arbitrarily interfere with personal liberties. **Related Provisions** **Constitution of India** **Article 14 (**Equality before law) “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.” **Article 19(1) (g)**: Right to Freedom of Trade, Occupation, and Business **Article 19(6)** implies that “the state may impose reasonable restrictions on this right, as outlined below are: Reasonable restrictions in the interest of the public Prescribe professional or technical qualifications, necessary for practising any profession, or carrying on any occupation, trade or business Enable the state to carry on any trade or business to the exclusion of citizens, wholly or partially.” **Article 21**: Right to Life and Personal Liberty – no person shall be deprived of his right to life and personal liberty. **Article 132** – “An appeal shall lie to the Supreme Court from any judgment, decree, or final order of a High Court in the territory of India if the High Court certifies—(a) that the case involves a substantial question of law as to the interpretation of this Constitution; and (b) that in the opinion of the High Court, the said question is so important that it should be decided by the Supreme Court.” **Article 32 –** has bestowed a power upon the Supreme Court to issue directions or orders or writs including the writs like habeas corpus, mandamus, quo-warranto, prohibition and certiorari whichever may be suitable for the discharge of any of the fundamental rights in a given case. These writs are also known as “Prerogative writs” for the reason of being taken from the English law. **Bombay Prohibition Act, 1949** – an act of the Bombay Legislative Assembly relating to the promotion and enforcement of alcohol was passed which imposed a complete ban on the manufacture, sale and consumption of alcohol in the state of Bombay. **Section 2(7)**: Defines “prohibition” and the scope of the Act, clarifying that it includes a ban on the manufacture, sale, and consumption of alcoholic beverages. **Section 3**: Provides for the imposition and enforcement of prohibition, detailing the powers of the state government to regulate and enforce the Act. **Section 4**: Details penalties for violations of the prohibition, including fines and imprisonment. **Section 5**: Grants the state government the authority to make rules and regulations for implementing the Act. **Section 6**: Outlines the powers of police and other authorities to enforce the prohibition, including the seizure and destruction of prohibited substances. **Government of India Act, 1935** Section 297 (4) – “The provisions of this Act relating to the distribution of powers and functions between the Federal and Provincial Legislatures and Executives and the distribution of such powers and functions between the Provinces and the States and the functions of the Government of India under this Act shall be subject to the provisions of this section and shall have effect accordingly.” **Seventh Schedule of the Constitution of India** – enlists three kinds of lists under which powers are divided between the Union and the State government – Union List, State List and Concurrent List. **JUDGEMENT** **Ratio Decidendi** The Supreme Court in its ruling in the case of the State of Bombay and Others v. F.N. Balsara addressed the constitutionality of the Bombay Prohibition Act, 1949 which imposed a ban on the trade of alcohol and its consumption. The core issues which the Supreme Court dealt with were raised by the petitioner whether the state acted outside its purview by passing such a law in the subjects enlisted under the union list. The Supreme Court upheld the validity of the act and concluded that the act was inside the state’s authority and that the state has the due authority to pass such a law with the measure to ensure public health and welfare. Regarding the fundamental rights, the court upheld that the act does not infringe the fundamental rights as the restrictions were imposed to serve a broader purpose for the public interest to achieve public welfare. The Supreme Court stated that all reasonable restrictions can be imposed on fundamental rights according to Article 19(6) of the Constitution of India. The court further declared that the act did not violate Article 21 of the Constitution of India since the provision was enacted according to the legal procedure established by law. The Supreme Court’s decision reaffirmed that the state has the due authority to enact laws related to serving the broader public interest and strike a balance between individual rights and state regulation for the welfare of all its citizens in the country. **CONCLUSION & COMMENTS** The pronouncement of judgement that such restrictions can be imposed on fundamental rights serves a larger purpose to the general public and the importance of such acts passed by the state legislature to achieve public good. The court concluded in its judgement the reasons and the measures highlighted by the state legislature while enacting such a law. It claims that fundamental rights are rigid yet also flexible enough to reasonable constraints according to the procedure established by law. It highlighted how state laws can limit the personal freedoms of individuals and the individual can move to the court whenever any question of law arises in the enactment of laws. The judgement underscores the importance of ensuring that fundamental rights are not violated while keeping in mind the personal freedoms of individuals aligning with constitutional principles. **REFERENCES** **Important Cases Referred:** Prafull Kumar Mukherjee v. The Bank of Commerce, Khulna (AIR 1947, PC 60) Ralla Ram v. Province of East Punjab (AIR 1949 FC 81) Province of Madras v. Boddu Paidanna and Sons (AIR 1941 MADRAS 913) Chitranjit Lal Chowdhari v. The Union of India and Ors., (1950 SCR 869) Romesh Thapar v. State of Madras, (AIR 1950 SUPREME COURT 124) **Important Statutes Referred:** Constitution of India, 1950 Bombay Prohibition Act, 1949 Government of India Act, 1935 [](#_ftnref1) [](#_ftnref2) **Categories:** Case Analysis, Constitutional Law Cases --- ### [M.P. Sharma v. Satish Chandra](https://lawfoyer.in/m-p-sharma-v-satish-chandra/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** **Author: Happy Kushwah** **Edited by: Shadrack Chai** **ABSTRACT** *M.P. Sharma v. Satish Chandra* is a landmark case in Indian constitutional law that dealt with the interpretation of the right to privacy under Article 21 of the Constitution of India. The case was decided by an eight-judge bench of the Supreme Court of India in 1954. In this case, the Court held that the right to privacy is not guaranteed as a fundamental right under the Constitution. The decision in *M.P. Sharma v. Satish Chandra* has been a subject of criticism and subsequent developments in Indian jurisprudence, particularly with the evolving understanding of privacy rights in the digital age. It laid the foundation for later cases such as *Kharak Singh v. State of Uttar Pradesh* (1962) and *Justice K.S. Puttaswamy (Retd.) v. Union of India* (2017), where the Supreme Court revisited and expanded upon the right to privacy as a fundamental right. ***Keywords(Minimum 5)*: Right to Privacy, Article 21, Search and Seizure, Fundamental Rights, Constitutional Interpretation** **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** M.P. Sharma v. Satish Chandra ***ii)* *Case Number*** AIR 1954 SC 300 ***iii)* *Judgement Date*** 15th March 1954 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** Eight-judge bench of the Supreme Court of India ***vi)* *Author / Name of Judges*** · Chief Justice Mehr Chand Mahajan · Justice B.K. Mukherjee · Justice Vivian Bose · Justice N.H. Bhagwati · Justice T.L. Venkatarama Aiyar · Justice Ghulam Hasan · Justice Sudhi Ranjan Das · Justice B. Jagannadhadas ***vii)* *Citation*** AIR 1954 SC 300 ***viii)* *Legal Provisions Involved*** · The Constitution of India- Articles 19 (1)(f), 20(3), 31,21 · The Code of Criminal Procedure, 1898- Section 96 · The Indian Evidence Act, 1872- Section 25,26,27 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** #### Introduction: *M.P. Sharma v. Satish Chandra* (AIR 1954 SC 300) is a landmark judgment by the Supreme Court of India that dealt with the interpretation of constitutional rights related to search and seizure operations. Delivered on March 15, 1954, by an eight-judge bench, the case addressed the extent to which the right to privacy is protected under the Indian Constitution, particularly in the context of search and seizure procedures carried out by law enforcement authorities. #### Background: The case arose from an investigation into the affairs of Dalmia Jain Airways Ltd. following allegations of fraudulent activities. The District Magistrate issued search warrants under Section 96(1) of the Code of Criminal Procedure, 1898, leading to extensive searches and the seizure of documents from the premises of the company and its officers, including M.P. Sharma. The petitioners, including M.P. Sharma, challenged the legality of these search warrants before the Supreme Court, arguing that the searches and seizures violated their fundamental rights under the Constitution of India. Specifically, they contended that these actions infringed upon their rights under: **Article 19(1)(f)**: The right to acquire, hold, and dispose of property (a right which existed at the time but was later abolished by the 44th Amendment Act, 1978). **Article 20(3)**: The right against self-incrimination. **Article 31**: The right against deprivation of property except by the authority of law. The primary contention was that the search and seizure violated the petitioners’ right to privacy and protection against self-incrimination, thereby infringing on their liberty under Article 21 of the Constitution. **FACTS OF THE CASE** The case revolved around the legality of search and seizure operations conducted under warrants issued by a Magistrate. M.P. Sharma, the petitioner, challenged the validity of the search warrants issued to the police for investigating alleged financial misconduct. The key issues included whether the search and seizure violated constitutional rights, specifically the right to privacy and protection against self-incrimination. **Procedural Background of the Case** **Filing**: The petition was filed challenging the search and seizure conducted by the authorities under the warrants issued by the District Magistrate. **Arguments**: The petitioners argued that the searches violated their right to privacy and the protection against self-incrimination. The respondents defended the legality of the search warrants and the procedures followed. **Factual Background of the Case** **Allegations and Search Warrants**: Dalmia Jain Airways Ltd. faced allegations of fraudulent practices involving financial irregularities. The District Magistrate issued search warrants under Section 96(1) of the Code of Criminal Procedure, 1898, targeting the company’s premises and key personnel, including director M.P. Sharma. Extensive searches were conducted, leading to the seizure of relevant documents and materials. **Legal Challenges and Supreme Court Petition**: M.P. Sharma and others contested the legality of the search and seizure operations, arguing violations of their constitutional rights to privacy and protection against self-incrimination. They petitioned the Supreme Court of India, challenging the constitutionality of the operations and claiming infringement of their rights under Articles 19(1)(f), 20(3), and 31 of the Indian Constitution. **LEGAL ISSUES RAISED(***minimum 2 legal issues*) Whether the search and seizure operations conducted under Section 96 of the Code of Criminal Procedure, 1898, violated the petitioners’ fundamental rights under Articles 19(1)(f), 20(3), and 31 of the Constitution. Whether the right to privacy is protected as a fundamental right under the Indian Constitution. Whether the protection against self-incrimination under Article 20(3) extends to searches and seizures of documents and other evidence. **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioner / Appellant submitted that it was: **Violation of Privacy Rights**: The petitioners contended that the search and seizure infringed upon their privacy. At that time, the right to privacy was not explicitly recognized as a fundamental right, but the petitioners argued it was implied within broader constitutional protections. **Infringement of the Right Against Self-Incrimination**: They argued that the search and seizure could lead to the exposure of incriminating evidence, which would violate their right against self-incrimination under Article 20(3) of the Constitution. **Legality of Search Warrants**: The petitioners challenged the validity of the search warrants, asserting that they were issued without sufficient grounds and that the procedures followed were not in compliance with legal requirements. **Unreasonable Search and Seizure**: They claimed that the searches were excessive and disproportionate, not justified by the objectives of the investigation. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that it was: **Legality of Search and Seizure Operations**: The respondents argued that the search and seizure were conducted by the Code of Criminal Procedure, 1898. The search warrants were issued based on reasonable grounds and followed legal procedures. **No Violation of Privacy Rights**: The respondents contended that the right to privacy was not explicitly protected as a fundamental right at the time. They argued that the searches were conducted within the bounds of legal authority. **No Infringement of the Right Against Self-Incrimination**: They asserted that the search and seizure did not constitute a testimonial act and therefore did not violate the protection against self-incrimination under Article 20(3). **Necessity and Proportionality of the Search**: The respondents argued that the searches were necessary and proportional to the investigation’s objectives and that the extent of the search was justified. **RELATED LEGAL PROVISIONS** **The Constitution of India**: **Article 19(1)(f)**: Right to acquire, hold, and dispose of property (relevant at the time of the case). **Article 20(3)**: Protection against self-incrimination. **Article 31**: Protection against deprivation of property. **Article 21**: Protection of life and personal liberty. **The Code of Criminal Procedure, 1898**: **Section 96**: Authority for issuing search warrants. **Section 98**: Powers to seize property believed to be stolen or obtained through criminal activity. **The Indian Evidence Act, 1872**: **Section 25**: Prohibition of confessions made to a police officer as evidence. **Section 26**: Confessions made in police custody cannot be used against the accused unless in the presence of a Magistrate. **Section 27**: Admissibility of information leading to the discovery of material evidence. **JUDGEMENT** **RATIO DECIDENDI** **Right to Privacy**: The Court did not recognize the right to privacy as a fundamental right under the Constitution at the time. The judgment emphasized that privacy protections were not explicitly provided for in the Constitution. **Legality of Search Warrants**: The Court upheld the legality of the search warrants issued under the Code of Criminal Procedure, affirming that they were valid when issued based on proper grounds and procedures. **No Violation of Self-Incrimination**: The Court held that the search and seizure of documents did not violate Article 20(3) as it did not pertain to testimonial evidence. **Reasonableness and Proportionality**: The search and seizure were deemed reasonable and proportional to the investigation’s needs. **GUIDELINES (IF ANY)** **Legality of Search Warrants**: Search warrants must be based on sufficient grounds and issued following legal procedures. **Scope of Privacy Rights**: While not recognized as a fundamental right at the time, searches should be conducted in a manner that respects individual privacy within legal bounds. **Limits on Self-Incrimination**: Protections against self-incrimination pertain to testimonial evidence and not physical evidence obtained through lawful searches. **Reasonableness and Proportionality**: Searches must be justified and conducted reasonably about the investigation’s objectives. **Procedural Compliance**: Authorities must follow legal procedures for search and seizure to ensure actions are lawful and respectful of rights. **OVERRULING JUDGMENTS (IF ANY)** **Kharak Singh v. State of U.P. (1964)**: Examined privacy in the context of surveillance, acknowledging its importance but not explicitly recognizing it as a fundamental right. **Rajagopal v. State of Tamil Nadu (1994)**: Recognized the right to privacy as a fundamental right under Article 21 of the Constitution. **Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)**: Explicitly recognized the right to privacy as a fundamental right, overruling earlier decisions, including *M.P. Sharma*. **Navtej Singh Johar v. Union of India (2018)**: Reaffirmed the right to privacy and extended its implications, influencing the interpretation of individual liberties. **OBITER DICTA (IF ANY)** **General Observations on Privacy**: The Court acknowledged privacy concerns but did not recognize it as a fundamental right at the time. **Views on Fundamental Rights**: Discussed the scope and limits of fundamental rights, providing context for constitutional protections. **Evolution of Constitutional Protections**: Reflected on how constitutional interpretations might evolve, influencing future cases. **Role of Judicial Review**: Highlighted the importance of judicial review in assessing the legality of state actions and protecting individual rights. **CONCLUSION& COMMENTS** *M.P. Sharma v. Satish Chandra* was a pivotal case in Indian legal history, addressing the legality of search and seizure and the scope of individual rights. The Supreme Court’s judgment established important precedents regarding privacy and legal procedures. Since then, subsequent judgments have expanded the understanding of privacy rights and constitutional protections, reflecting an evolving legal landscape. The case continues to influence discussions on search and seizure operations and the balance between state powers and individual freedoms. **REFERENCES** **Important Cases Referred** **Kharak Singh v. State of U.P. (1964)**: Examined privacy in the context of surveillance, acknowledging its importance but not explicitly recognizing it as a fundamental right. 1. **Rajagopal v. State of Tamil Nadu (1994)**: Recognized the right to privacy as a fundamental right under Article 21 of the Constitution. **Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)**: Explicitly recognized the right to privacy as a fundamental right, overruling earlier decisions, including *M.P. Sharma*. **Navtej Singh Johar v. Union of India (2018)**: Reaffirmed the right to privacy and extended its implications, influencing the interpretation of individual liberties. **Important Statutes Referred** The Constitution of India- Articles 19 (1), (f), 20(3), 31, 21 The Code of Criminal Procedure, 1898- Section 96 The Indian Evidence Act, 1872- Section 25, 26, 27 **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases --- ### [DR. SUBHASH KASHINATH MAHAJAN VS STATE OF MAHARASHTRA (AIR 2018 SC 1498)](https://lawfoyer.in/dr-subhash-kashinath-mahajan-vs-state-of-maharashtra-air-2018-sc-1498/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** **Author: Saurav Kumar** **Edited by: Shadrack Chai** Name Of the case case/case title **DR. SUBHASH KASHINATH MAHAJAN** **VS.** **STATE OF MAHARASTRA (AIR 2018 SC 1490)** Case No **CRIMINAL APPEAL NO. 416 OF 2018** Date of the order **20-03-2018** Citation **Criminal Appeal No. 416 Of 2018 (Arising Out of Special Leave Petition (Crl.) No. 5661 of 2017).** Jurisdiction **Supreme Court of India.** Quorum **Hon “ble Mr. Justice Adarash kumar Goel** **Hon “ble Mr Justice Uday Umesh Lalit** Author of the judgement **Both Hon’ble justice** Appellant **Dr. Subhash kashinath Mahajan** Respondent **State of Maharashtra and Anr.** Counsel for appellant Counsel for Respondent **Advocate V.M Tarkunde** **Advocate Amrendra Sharan** Acts and sections involved · **The constitution of India 1950, Article 21** · **Rules of the procedure of the National Commission for scheduled castes, section 3** · **The schedule castes and schedule tribes (prevention of Atrocities )Act,1989, section 18** · **Code of Criminal Procedure, 1973, section 41** · Abstract** The prevention of mistreatment of scheduled castes and scheduled tribes. The Atrocities Act of 1989 was established to protect against individual belongings of scheduled castes and scheduled tribes. Various forms of discrimination and atrocities along with other types of challenges are encountered within the community. The Supreme Court recently released its verdict. The case of Subhash Kashinath Mahajan against the state of Maharashtra. In this judgement, the court responded to the allegation of misuse of the SC/ST Act and filling false cases by imposing some safeguards. The most important of these was that there would be no absolute bar to the application of anticipatory bail in the case of a person accused of the offence in question. The court also ordered a preliminary investigation before registering a first information report (FIR) and a requirement that the investigating officer obtain further consent before making an arrest. In the case of a civil servant, the court noted that that an arrest can only be made with the consent of the police administration. Dalit communities were widely protesting against the judgement that weakened the act. The ruling was controversial. The central government finally offered to file a writ petition and also amended the SC/ST Act to quash the Judgement. In the meantime, petitions have been filed against the amendment because it violates the right to equality and life under articles 14 and 21 of the Constitution. In October 2019, the Supreme Court accepted the appeals and annulled the decision, made in March 2018, by which the law amending the laws was approved. **KEYWORDS: – scheduled caste and tribes, Supreme Court of India, discrimination and atrocities, Right to life article 14&21, allegation of misuse, Arrest etc..** **Introduction /Background** To stop crimes and hate crimes against the scheduled castes and scheduled tribes, the Indian parliament passed the scheduled castes and scheduled tribes (prevention of Atrocities) in, 1989. It is commonly referred to as the SC/ST ACT, even in legislative discussions and Supreme Court of India rulings. The atrocities act POA, and POA are other names for it. The Indian parliament passed the scheduled castes and scheduled tribes (prevention of atrocities) Act, 1989 in recognition of the ongoing gross injustices and offences against the scheduled castes and scheduled tribes (which are classified as atrocities in section 3 of the act). At that time, the Protection of Civil Rights Act 1955 and the Indian Penal Code 1860 were deemed insufficient in preventing these hate crimes based on caste and ethnicity. The act was notified on January 30, 1990, after it was enacted by the Indian parliament on September 11 1989. It was notified on January 26, 2016, and received extensive amendments in 2015 including rearranging section 3 sub-sections. After that in 2018 and 2019, it was changed. On March 31 1995 notice of the rules was given. On April 14 2016, they were alerted and completely changed. 2018 saw a few changes to regulations and appendices. A 1990 study of atrocities against scheduled castes and scheduled tribes was carried out by the National Commission for SC and STs. The causes and remedies of atrocities were identified as follows; Political factions based on caste lines; refusal to carry out customary tasks like clearing out dead animal carcasses, arranging cremations, bidding burial pits, bond; labour, indebtedness, non-payment of minimum wages, caste prejudice and practices of untouchability. Caste is the deep-rooted cause of these crimes as it encompasses a complete ordering of social groups on the basics of the so-called ritual purity. Until they pass away a person is regarded as a member of the caste into which they were born. Dalits have been denied access to essential resources and services are socially and physically barred from both castes of Hindu society, and face discrimination in all facets of life because they are believed to be ritually impure. They thereby experience dehumanizing customs of untouchability, as well as many kinds of exploitation, abuse and violence. Since they are exempt from the caste system and have their own unique culture and worldview, scheduled tribes are also subject to exploitation. The women from these tribes and castes had to carry two loads of work. In addition to being weak and defenceless against sexual exploitation, they were exploited by gender and caste. The period following independence was characterized by an ongoing number of atrocities occurring all over the nation. A few examples include the 1957 Ramanathapuram riots in Tamil Nadu, which were triggered by the assassination of defying the untouchability-based interdicts on scheduled castes. In the 1968 Kilavenmani massacre in Tamil Nadu, which declared 42 Dalits the terrible 1969 murder of Dalit Kotesu in Kanchikacherla, Andhra Pradesh, and the 1978 killings of ten scheduled tribes. The severity and regularity of atrocities increased over time. For instance, in Bihar there were massacres of Dalits at Belchi and Pipra in 1970 and 1980 in Uttar Pradesh, there was a massacre at Kafalta in 1980 after a Dalit bridegroom rode a horse, in Madhya Pradesh, there were the 1982 killings of Bacchdas in the mandaspur district. **Legislative history** The constitutions foundations The Indian constitutions articles 15 and 17 serve as the foundation for the Act. Discrimination based on caste is forbidden by Article 15. Untouchability is abolished and its practices in any form are forbidden, reads Article 17 of the Indian constitution. Any impairment resulting from untouchability will be enforced as a crime and will be dealt with according to the law. **The Untouchability Offences Act, 1955** The relevant law, the Untouchability (Offenses) Act (UOA) 1955 was passed five years after the Indian constitution was approved. In 1976, it underwent revisions and became the Protection of Civil Rights Act (PCRA). Despite lacking a clear definition of the offences the UOA was a significant advancement with multiple enabling provisions. The UOA acknowledged the concept of wilful negligence and showed initiative by explicitly stating that the defendant had the burden of proving that the offenses were not the result of untouchability, since this would be the assumption of the court. The Act was visionary in that it acknowledged the responsibility of businesses and individual in authority, `such as their directors. **The Protection of Civil Rights Act, 1955** The Untouchability Offences Act of 1955 ultimately was determined to be insufficient to end untouchability and punish those who committed it. Following twenty-one years, the parliament renamed the UOA into the Protection of Civil Rights Act (PCRA), 1955, and made numerous revisions to it on November 19, 1976, the prime minister’s birthday. In 1976 this act (PCRAS4 was revised to include discrimination based on untouchability. The punishment for untouchability stemmed from social and religious infirmities. **The Protection of SCs/ STs Act 1989** An Act to prohibit the commission of atrocities against members of the scheduled castes and scheduled tribes, to establish special courts for the trial of such offences, to provide relief and rehabilitation to victims of such offences, and for other purposes related to or incidental thereto. Section 3(1) (r) of the Prevention of Atrocities Act 1989 criminalizes, among other things, anyone who is not a member of a scheduled caste or scheduled tribe in any place within public view. This act may be known as the scheduled castes and scheduled tribes (prevention of atrocities) Act, 1989. It covers all of India save the state of Jammu and Kashmir. It shall enter into force on such date as the central government may, by notification in the official Gazette, determine. Drives or incites a member of a scheduled caste or scheduled tribes to abandon their home, village or other place of abode faces a minimum sentence of six months, imprisonment a maximum sentence of five years imprisonment and a fine. Recently the Delhi High Court decided that in instances under the scheduled tribes act. 1989, bail cannot be granted until the victims or complainant has had a chance to be heard. There are no other offences that violate the dignity of scheduled caste and scheduled tribe people, like tonsuring of the head shaving one’s moustache, or similar behaviours. Additionally, the penalties have been strengthened there are now provisions for special courts and quick trials. **Facts of the Cases** The complainant, Bhaskar Karbhari Gaikwad, worked at the College of Pharmacy Department. In his quarter confidential Report, his Superiors, Drs. Satish Bhise and Kishor Burade made some disparaging comments. The plaintiff was a predetermined caste member, even though both of the seniors belonged to non-scheduled castes. His integrity and character were considered to be lacking based on the negative entry. The complaint filed a formal complaint with the Karad Police, claiming this as justification number one. However, since the two individuals in question were -1 officers, the officers conducting the investigation applied a penalty under section 197 of the CrPc The accused in this case, the appellant, is charged with violating the Indian penal code of 1860, section 182, 192, 193, and 219 read with 34, as well as section 3(1) (ix), 3(2)(iv), and 3(2)(vii) of the scheduled castes and scheduled tribes (prevention of Atrocities) Act 1989. In the relevant period, he was the state of Maharashtra’s Director of Technical Education. After being granted anticipatory bail, the appellant applied for the proceeding to be quashed with the high court under section 482 crpc, arguing that he had only made a legitimate administrative order in his official. Even if the directives were incorrect, what he did cannot be considered an offence. The appeal was turned down by the High Court. **Legal Issue Raised Before the Court** 1- The question that has come up during the course of this case is whether any unilateral accusations of mala fide can serve as justification for prosecuting officers who handled the case in their official capacities, and if such an accusation is made falsely, what safeguard is in place against such misuse. 2- The matter or questions at hand pertain to the reasonableness of the process in light of Article 21 of the Indian constitution, as well as the possibility of procedural safeguards to prevent the abuse of the scheduled castes and scheduled tribes (prevention of atrocities ) Act, 1989 for non-essential purposes. The notices of return are due on January 10 2018. 3- Whether there is an absolute bar to the grant of anticipatory bail as envisaged in the provision of section 18 of the Atrocities Act. **Arguments from the appellant side** The learned amicus contended that this court has commonly acknowledged the abuse of the power to make an arrest and has mandated that an arrest not be executed mechanically. It has been established that to use the power of arrest, one needs to have a reasonable suspicion that someone is involved as well as that an arrest is necessary. Joginder Kumar versus the state of U.P 6, M.C Abraham versus the state of Maharastra 7, D. Vnkatasubramaniam versus M.K Mohan Krishnamchari 8, Arnesh Kumar versus the State of Bihar 9, and Rini Johar & Ors. Versus state of M.P&Ors. It was argued that under the Atrocities Act, an initial investigation may be required to forbid the use of arbitrary arrest power in the lack of tangible proof to support a version. It ought to be essential to document the reasons why the information was deemed reliable and an arrest was warranted. When dealing with public employees, the approval of the disciplinary authority must be employees, the approval of the disciplinary authority must be acquired, and in other situations, the Assistant Superintendent of police approval must be sought. The authority issuing authorization should be satisfied with the veracity of the information and the necessity of the arrest before granting permission, based on a preliminary investigation. If an arrest takes place while granted remand, the magistrate must issue a spoken order concerning the propriety of the arrest’s motivations. Without compromising the Act’s stated objectives in any way, these criteria will uphold the rights of affected persons as outlined in articles 14 and 21. Arrest specifically related to violation of the POA Act Ought to be made only with the Magistrate’s prior approval. This might not be applicable, nevertheless, if an arrest is required for other IPC offenses. Furthermore, the seriousness of the offence must be considered, as the majority of institutional cases are based only on altercations or actions taken by public employees while they were acting in their official capacities. In addition, the intervener’s attorney argues that the Atrocities Act is Vulnerable to abuse because there is financial reward available for filing a complaint under scheduled castes and scheduled tribes (prevention of Atrocities) Rules 1995 rule 12(4). A financial incentive like this might incentivize not just actual victims, but fake claims could also be filled with no recourse for the harmed parties because there would be no protection against them. Anand Sakharam Jhadav, claiming to be the convenor of the Bahujan Karmachari Kalyan Sangh, has also filed an intervention application. When the law is clear, the court should not issue guidelines, according to the learned senior counsel representing the intervenor, Shri C.u Singh. There is reliance on the state of Jharkhand and Anr. In opposition to Om Prakash Sharma and Ors. Govind Singh 19, Rohitash Kumar and Ors. Twenty it was argued that this court was not authorized to establish rules that would have legislative authority. Ten SCC 437 (19) (2005). The name of the person’s next friend who has been notified of the arrest, as well as the identification and specifics of the police officers holding the arrestee, must be recorded in the notebook kept at the place of detention about the arrest. When an arrestee wants it, he or she should also be evaluated at the scene and any significant or minor injuries that may have occurred should be noted at that time. Both the arrestee and the police officer making the arrest must sign the inspection Memo, and the arrestee must receive a copy of it. **Arguments from the Respondent Side** Thus the argument was made that the aforementioned rulings are only examples of how frequently the rule was abused. A citizen’s reputation both personally and professionally may be unjustly harmed if simple charges are deemed sufficient. The protection of the rights of those who have been the victims of such false accusations must be interests of society and maintaining peace. In each department, the following committee should be established if there are accusations against an employee. An internal committee may be formed by the employer or head of any institution to investigate complaints and specific issues about atrocities against SC/ST members. A written complaint with supporting documentation must be submitted to the institution’s internal committee before filing a formal complaint or a formal police report. This committee may be authorized to hear testimony from both parties and other sources to determine if there is a prima facie case under the POA Act. Yogendra Mohan harsh has requested additional involvement. The intervener’s learned attorney argued that the act will become ineffectual and toothless if amicus submissions are allowed given the rise in crimes against SCs and STs. **Related legal provision** **ARTICLE 14**– discrimination based on caste, race, religion, place of birth, or sex is outlawed under Article 14. This article is broad in scope and applicable to protect the rights of individuals living in India. **Equality before the law; –** According to this section of the text everyone must be treated equally in the eyes of the law. This idea is detrimental since it suggests that no one has any privileges. This section of the article is significant. **Equal safeguard under the law; –** this clause states that everyone in society would be treated equally under the law. This idea is constructive because it anticipates the state taking constructive action. This is a procedural part of Article 14. **Article 21;** – according to Article 21, no one may be taken from their life until the legal process has been followed. This implies that everyone has the right to life and that only the established legal process may be followed to take away someone’s life. The right to a healthy environment, the right to a livelihood, and the right to live with dignity are all included in the right to life. Individuals’ liberties are likewise safeguarded by Article 21. It declares that no one may be deprived of their freedom other than in compliance with the legal process. The freedom to go around freely, to select one’s domicile, and to pursue any legal profession or other activities are all examples of personal liberty. **Judgement** After carefully examining all of the arguments. submissions, and evidence presented by both parties, the court concluded that absent another crime specifically designated as an arrestable offense in place of those listed under the atrocities act, no arrest of a member of the public may be made without the written consent of the hiring authority. It was further stated that if the individual being arrested is not a public employee, they cannot be detained without the senior superintendent of police of the district authorising in writing, as long as they are served with a copy of the written permission and the reasons why before the court. It was said that the magistrate must consider the documented grounds when the arrested person is brought before him or her, and such detention should only be permitted if the accusations are determined to be valid. It was decided that to prevent bogus complaints and FIRs a preliminary investigation be conducted to determine whether the situation is covered by the atrocities act. **Related case laws** 1- Vishakha versus state of Rajasthan (1997) 6 SCC 241 2- Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161 3- Lakshmi Kant Pandey vs. UOI (1983) 2 SCC 244 4- M.C. Mehta vs. State of T.N (1996) 6 SCC 756 27 5- Supreme Court bar lesson vs. UOI (1998) 4 SCC 409 **References** [https://en.wikipedia.org/wiki/Scheduled\_Caste\_and\_Scheduled\_Tribe\_(Prevention\_of\_Atrocities)\_Act,\_1989#:~:text=External%20links-,Scheduled%20Caste%20and%20Scheduled%20Tribe%20(Prevention%20of%20Atrocities)%20Act%2C%201989,-5%20languages](https://en.wikipedia.org/wiki/Scheduled_Caste_and_Scheduled_Tribe_(Prevention_of_Atrocities)_Act,_1989#:~:text=External%20links-,Scheduled%20Caste%20and%20Scheduled%20Tribe%20(Prevention%20of%20Atrocities)%20Act%2C%201989,-5%20languages) **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases --- ### [Madhu Kishwar & ors v. State of Bihar & ors](https://lawfoyer.in/madhu-kishwar-ors-v-state-of-bihar-ors/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** **Author: Rozy Parveen** **Edited by: Shadrack Chai** **ABSTRACT** Writ petitions were filed under Article 32 of the Indian Constitution against the State of Bihar, including a PIL by Smt. Madhu Kishwar, editor of “Manushi,” on behalf of tribal women, and individual petitions by Smt. Sonamuni and Smt. Muki Dui of the Ho tribe. They challenged sections 6, 7, 8, and 76 of the Chhota Nagpur Tenancy Act, 1908, and customary laws excluding tribal women from inheritance, claiming they violated Articles 14 and 21 of the Constitution. These petitions argued for equal inheritance rights for tribal women, emphasizing their equal contributions to agriculture and family management. However, the Supreme Court’s 1996 judgment in Madhu Kishwar v. State of Bihar partially recognized these rights, leaving significant issues to the government. This paper analyzes the tribal women’s right to succession within the framework of Fundamental Rights and Human Rights, examining the Supreme Court’s decision in light of India’s international commitments to equality and dignity. KEYWORDS- Economic justice, tribal women. **CASE DETAILS** *Judgment Cause Title / Case Name***Madhu Kishwar & ors v. State of Bihar & ors. *Case Number***WRIT PETITION (C) NO. 219 OF 1986 *Judgement Date***17/04/1996 *Court***Supreme Court of India *Quorum / Constitution of Bench***K. Ramaswamy, Kuldip Singh, M.M. Punchhi *Author / Name of Judges***K. Ramaswamy *Citation***1996 AIR 1864 1996 SCC (5) 125 JT 1996 (4) 3791996 SCALE (3) ***Legal Provisions Involved***Article 32 of the Constitution, Chotanagpur Tenancy Act, 1908, Hindu Succession Act, Protection of Human Rights Act, 1993, Indian Succession Act, Vienna Convention on the Elimination of all forms of Discrimination Against Women**INTRODUCTION AND BACKGROUND OF JUDGEMENT** The four Hindu Law Acts do not apply to members of the Scheduled Tribes as defined in Article 366, clause 25 of the Constitution of India unless the Central Government extends their application through a notification in the official gazette. Until such a notification is issued, Scheduled Tribes will continue to be governed by their existing law. **FACTS OF THE CASE** The petitioners challenged certain provisions of the Chotanagpur Tenancy Act, of 1908, which provided for male succession to property, arguing that these provisions were discriminatory and unfair to women and therefore violated the equality clause in the Constitution. The State of Bihar had established a Committee to consider possible legislation amendments and examine the issue in detail. The Committee ultimately concluded that the people of the area, particularly those concerned with the question of succession, were not interested in changing the law. They believed that altering the law to allow estates to pass to female heirs would cause significant agitation and unrest among the Scheduled Tribe communities, who have a custom-based way of living **LEGAL ISSUES RAISED** Whether female members of Scheduled Tribes are entitled to equal rights with male members in intestate succession? **RESPONDENT’S ARGUMENTS** The major interests of tribal communities include inheritance of land, forest rights, and social customs such as marriage, divorce, desertion, child support, death, and birth. The Santhals, one of India’s largest tribes, spread across West Bengal, Orissa, Bihar, Assam, and Tripura, exhibit a nuanced approach to succession. Although primarily patrilineal, Santhal succession allows daughters to inherit without sons, followed by other relatives if there are no children. Some Santhals support equal inheritance for sons and daughters. Widows receive a life-estate share upon their husband’s death. Despite ongoing acculturation, Santhals maintain many customs, with slight flexibility towards daughters In contrast, the conservative Saora society strictly prefers sons, and daughters inherit only if there are no sons or close relatives, with widows inheriting their husband’s estate. The 7th Five Year Plan’s working group recommended codifying tribal customary laws. Dr. B.L. Maharde, in his study of Rajasthan’s Girjans, noted the equal division of a deceased father’s property among sons, with the youngest son and grandsons of pre-deceased sons receiving extra shares. Daughters inherit animal wealth, and widows lose property rights upon remarriage. Patrilineal succession is presumed for tribals in Madhya Pradesh, Maharashtra, and Gujarat. **PETITIONER ARGUMENT** The petitioners argued that the existing customary laws of inheritance among tribal communities in Bihar were discriminatory against women, violating their fundamental rights under Articles 14, 15, and 21 of the Constitution of India. They contended that these laws denied women equal rights to inherit property, infringing on their right to equality and dignity, and called for legal reforms to ensure gender equality and justice. The petitioners urged the court to direct the State to amend these discriminatory laws to align with constitutional principles. **JUDGEMENT** The writ petitions were granted, and the rule nisi was confirmed. The Judge ruled that discrimination based on customary inheritance law was unconstitutional, unjust, unfair, and illegal. The Judge emphasized that it was essential for the State to remove obstacles and prohibit all gender-based discrimination as required by Articles 14 and 15 of the Constitution of India. However, the Judge chose not to strike down the provisions under Article 14, as doing so would cause chaos in the current legal system. **CONCLUSION & COMMENTS** While the Hindu Succession Act, of 1956, and the Indian Succession Act, of 1925, do not directly apply to Scheduled Tribes, their principles align with justice and equity. Thus, Scheduled Tribe women inherit their parents’, brothers’, and husbands’ estates equally with male heirs under these Acts’ general principles. However, alienation rights are governed by specific Acts like the Bihar Scheduled Areas Regulation, 1969. A tribal woman wishing to sell land must first offer it to her brother or male descendant. If there is a disagreement on price, a civil court will decide. If no family member buys it, she may sell it to a non-tribal following relevant laws. The writ petitions are allowed, with interim protection for petitioners Nos.2 and 3 continuing until they request otherwise. **REFERENCES** Madhu Kishwar & Ors vs State of Bihar & Ors 1996 SCC (5) 125 Jitmohan Singh Munda v. Ramratan Singh and Another 1958 Bihar Journal Reports 373 Olga Tellis & Ors. v. Bombay Municipal Corporation and Ors. AIR 1986 SC 180 **Categories:** Case Analysis, Constitutional Law Cases --- ### [BANDHUA MUKTI V/S UNION OF INDIA](https://lawfoyer.in/bandhua-mukti-v-s-union-of-india/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** **Author: Ashmit Srivastava, Shri Ramswaroop Memorial University** **Edited by: Madhumita Saha, Lajpat Rai Law College, Sambalpur University** **ABSTRACT** The landmark case Badhua Mukti Morcha v/s. Union of India highlights the crucial and most depraving section of our nation which is the bounded – labour along with the exploitation and the inhumane treatment by the Quarry owners of their labours, collectively the Supreme Court, exercising its power under Article 32 of the Constitution, treated the petition as a writ and appointed a commission to investigate the allegations. The findings of the commission found that the claims of the petitioners revealed a system of oppression where workers were trapped in a cycle of debt and exploitation. The Court’s judgment was a landmark in Indian legal history. It not only provided relief to the affected workers but also expanded the scope of public interest litigation, empowering NGOs to champion the cause of marginalized sections of society. The case emphasized the State’s responsibility to protect fundamental rights, particularly the right to life and liberty enshrined in Article 21 of the Constitution. By declaring bonded labour as a violation of human dignity, the Court reinforced the judiciary’s role as a guardian of constitutional values. The case’s legacy extends beyond the immediate relief provided to the quarry workers. It set a precedent for addressing systemic issues through judicial intervention and has inspired subsequent efforts to combat bonded labour and other forms of human exploitation in India. ***Keywords* *(Minimum 5)*: *Bonded labour, Fundamental Rights, Rehabilitation, State Responsibility, Labour Laws.*** **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Bandhua Mukti Morcha v/s. Union of India ***ii)* *Citation*** (1984) 3 SCC 161 ***iii)* *Judgement Date*** 16th December 1983. ***iv)* *Court*** Hon’ble Supreme Court of India. ***v)* *Quorum / Constitution of Bench*** 3 Bench of Judges. ***vi)* *Author / Name of Judges*** The Hon’ble *1) Justice P.N. Bhagwati* *2) Justice Ranganath Misra* 3\) *Justice D.A. Desai* ***vii)* *Legal Provisions Involved*** Article – 21, 23, 39(e) and 39(f) of The Constitution of India. The enactment of “*The Bonded Labour (Abolition) Act,1976.”.* **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The abhorrent practice, where individuals were subjected to forced labour as a means to repay a debt, often intergenerational, was a stark violation of fundamental human rights. The “*Bandhua Mukti Morcha v. Union of India”* case marked a watershed moment in the nation’s struggle against this insidious evil. [\[1\]](#_ftn1) In this case, the Court talked about the significance of securing children’s Right to Education, well-being, and advancement in guaranteeing India’s advancement as a vote-based system. While perceiving that child labour couldn’t be cancelled promptly due to financial need the court observed that down-to-earth steps could be taken to ensure and advance the rights of children in the destitution-stricken and weak populaces of the country. The Bandhua Mukti Morcha, a non-governmental organization, brought this issue to the forefront by writing to the Supreme Court. The Court, recognizing the gravity of the situation, took Suo- moto cognizance and appointed a commission to investigate the matter. The commission’s report painted a harrowing picture of the lives of these bonded labourers, providing the necessary impetus for the Court to intervene. The court additionally noticed India’s commitments under the Universal Declaration of Human Rights (UDHR) and Convention on the Rights of the Child to give free essential education to all the children in the nation and secure the children against financial abuse. **FACTS OF THE CASE** 1. **Procedural Background of the Case** 1. The Petitioner wrote a letter to Justice P.N. Bhagwati regarding the workplace and marking conditions of the workmen. 2. This letter was further taken as a writ Petition under “*Article-32 of the Constitution of India”* and a commission was made to enquire about the allegations put forth by the petitioner in the posted letter. 3. The commission proved the allegations to be right and there was the infringement of the rights of the labourers. 4. They requested the Supreme Court to issue a writ for proper implementation of the various provisions of the Constitution and statutes to end the misery, suffering and helplessness of those labourers and release them from bonded labour. 5. The Hon’ble Supreme Court treated the said letter as a writ petition and on 26th February 1982 appointed a commission consisting of Mr. Ashok Srivastava & Mr. Askok Panda to enquire further. 2. **Factual Background of the Case** 1. The petitioner Bandhua Mukti Morcha is a non-governmental organisation (NGO) which works for the welfare of the people. While they were conducting a survey and found some stone quarries in Faridabad, Haryana. 2. The workmen were found in exploitative, harsh & inhumane conditions including:- - Long working hours without adequate rest. - Minimal or low wages. - Lack of basic amenities to the labour like food, shelter, and healthcare. - Physical and mental abuse. 1. Quarry owners employed coercive tactics to maintain control over the labourers, including threats, violence, and withholding wages. 2. The prevalence of child labour was also found within these quarries. **LEGAL ISSUES RAISED** 1. WHETHER the PIL under Article 32 of the Indian Constitution was maintainable or not? 2. WHETHER the fundamental rights of labourers infringed in the current case? **PETITIONER’S ARGUMENTS** The counsels for Petitioner (Bandhua Mukti Morcha), representing the victims of bonded labour presented the compelling arguments to highlight the plight of these labourers and to seek legal redress. 1. **Violation of Fundamental Rights:** - **Violation of Fundamental Rights:** - The petitioners argued that the bonded labour constituted a violation of the fundamental rights of citizens guaranteed under the Constitution of India, particularly: - ***Article 21:*** *Right to life and personal liberty.* - ***Article 23:*** *Prohibition of traffic in human beings and forced labour.* - They emphasized the inhuman conditions under which bonded labourers were forced to live and work, depriving them of their basic human dignity. - **Systemic Exploitation:** - The petitioners exposed the systemic nature of bonded labour, highlighting how it was perpetuated by a complex network of intermediaries, creditors, and landowners. - They argued that the government’s inaction in addressing this issue had allowed the practice to flourish. - **Debt Trap:** - The petitioners explained how bonded labourers were often lured into a cycle of debt through false promises of employment or loans. - They detailed the exorbitant interest rates charged and the coercive tactics used to keep labourers trapped in servitude. - **Lack of Enforcement:** - The petitioners criticized the government’s failure to effectively enforce anti-bonded labour laws. - They pointed out the lack of adequate rehabilitation programs for rescued bonded labourers and the absence of measures to prevent re-trafficking. - **Role of State Negligence:** - The petitioners argued that the state had a duty to protect its citizens from exploitation. - They accused the government of negligence in failing to address the root causes of bonded labour, such as poverty, illiteracy, and lack of access to credit. **RESPONDENT’S ARGUMENTS** The respondent, in this case, the Union of India presented a defence against the allegations made by the petitioners, the Bandhua Mukti Morcha, here are some potential arguments: **KEY ARGUMENTS OF THE RESPONDENT** 1. **Lack of Sufficient substantiation** - The replier argued that the pleaders failed to give concrete and substantial substantiation to support their claims of wide-clicked labour. - They also challenged the credibility and trustability of the substantiations and documents presented by the pleaders. 2. **Profitable Constraints** - They also contend that it faced resource limitations and popular constraints in effectively eradicating clicked labour. - Also they argued that the problem was complex and needed a gradational approach, involving colourful stakeholders. 3. **State Intervention and Being Laws** - The replier stressed the colourful laws and regulations formerly in place to combat clicked labour, similar to the Bonded Labour System (Abolition) Act, 1976. - They refocused on the government enterprise and programs aimed at delivering and rehabilitating clicked labourers. 4. **Part of Socio-Economic Factors** - They also argued that poverty, ignorance, and lack of mindfulness were underpinning causes of clicked labour, rather than state negligence. - They emphasized the need for a multi-faceted approach involving education, profitable development, and social reforms. **COUNTERACTING THE PETITIONER’S ARGUMENTS** - To fight the argument of violation of abecedarian rights, the government argued that it was taking way to apply these rights and that the pleaders’ claims were inflated. - To address the issue of systemic exploitation, the replier emphasized the complexity of the problem and the challenges involved in eradicating it. • Regarding the debt trap, the government refocused on sweats to regulate moneylenders and give indispensable sources of credit. - In response to the lack of enforcement allegations, the replier stressed the challenges faced in relating and delivering clicked labourers and the way is taken to ameliorate enforcement mechanisms **RELATED LEGAL PROVISIONS** **ARTICLE 21:** – ***PROTECTION OF LIFE AND PERSONAL LIBERTY*** “*No person shall be deprived of his life or personal liberty except according to procedure established by law”.*[***\[2\]***](#_ftn2) **ARTICLE 23:- *PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR*** *“(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable by law.* *(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.”* [***\[3\]***](#_ftn3) **ARTICLE 24:- *PROHIBITION OF EMPLOYMENT OF CHILDREN In Factories, Etc*** *“No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”*[***\[4\]***](#_ftn4) **ARTICLE 39:- *CERTAIN PRINCIPLES OF POLICY TO BE FOLLOWED BY THE STATE*** **(e )”** *that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength”;*[***\[5\]***](#_ftn5) **ARTICLE 39 (f) “***That children are given opportunities and facilities to develop healthily and conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and material abandonment”.* [***\[6\]***](#_ftn6) **ARTICLE 42:-**. **PROVISION FOR JUST AND HUMANE CONDITIONS OF WORK AND MATERNITY** **“***The State shall make provision for securing just and humane conditions of work and for maternity relief.”*[***\[7\]***](#_ftn7) **JUDGEMENT** **RATIO DECIDENDI** - Bonded labour is a violation of abecedarian rights The court emphasized that forcing individualities into labour against their will through compulsion, intimidation, or debt thrall is a direct violation of Composition 23 of the Indian Constitution (Prohibition of business in mortal beings and forced labour). - State’s obligation to help and annihilate clicked labour The judgment underlined the state’s positive duty to take visionary measures to help and annihilate clicked labour, rather than simply replying to complaints. - Effective enforcement of anti-bonded labour laws. The court stressed the need for strict perpetration of laws against clicked labour, including vittles for deliverance, recuperation, and instalment. - Rehabilitation and reintegration of saved clicked labourers The judgment emphasized the significance of furnishing comprehensive recuperation and reintegration programs for individuals freed from clicked labour to help them from falling back into the same situation. 1. **GUIDELINES** **The Bandhua Mukti Morcha case was instrumental in shaping India’s anti-bonded labour jurisprudence.** The Supreme Court issued a series of guidelines and directives to address the systemic issue of bonded labour. **IDENTIFICATION AND RESCUE OF BONDED LABOURERS** - Establishment of effective mechanisms for identifying bonded labourers. - Setting up special task forces or cells to rescue bonded labourers. - Protection of rescued bonded labourers from intimidation and harassment. **REHABILITATION AND REINTEGRATION** - Providing rehabilitation programs to help bonded labourers rebuild their lives. - Ensuring access to education, vocational training, and healthcare. - Facilitating the return of rescued bonded labourers to their native places. **PREVENTION OF BONDED LABOUR** - Strengthening enforcement of anti-bonded labour laws. - Raising awareness about bonded labour through public campaigns. - Empowering vulnerable communities to resist falling into bonded labour. **ROLE OF STATE GOVERNMENTS** - Imposing strict penalties on those involved in bonded labour. - Monitoring labour conditions in vulnerable sectors. - Collaborating with NGOs and civil society organizations. 1. **OBITER DICTA** Broader societal issues The court made compliances about poverty, ignorance, or the part of profitable development in combating clicked labour, which, while applicable to the case, might not be essential to the core holding. • Policy recommendations The court suggested that the policy changes or reforms are beyond the immediate compass of the case, similar to strengthening law enforcement agencies or furnishing vocational training for saved-clicked labourers. • examines government conduct While the court blamed specific government conduct, some of these exams might not be directly linked to the core legal issues and could be considered obiter dicta. **CONCLUSION & COMMENTS** ***Bandhua Mukti Morcha v. Union of India*** is a seminal Supreme Court judgement ordering the freeing of bonded labour in India. The correct idea of the recognition that, founded on narrowing it down to be an open infringement of basic rights is a defining moment at holding their pride and worth by that crushed area returnee-needed. A present-day comprehensive legal and policy framework directed at the identification, release, rehabilitation as well as prevention of bonded labour would not have been possible but for the directions of the court. The verdict has reinforced the obligation of the state and government to shield citizens from such exploitation. Although a milestone court ruling had been delivered, there were still struggles to be faced. While the guidelines are important, it is essential however that these findings be implemented efficiently. Bonded Labour Is Deeply Entrenched. Given that labour practices are ever-changing, legal frameworks also need to be constantly updated and altered accordingly. New forms of exploitation, including debt bondage and human trafficking require a strong legal response.The Bandhua Mukti Morcha case is a telling example of how the judiciary stands as a vanguard to vindicate human rights and strive for social justice. Yet, the real value of such an exercise is to serve as a trigger that propels all sections – government; civil society and individuals into action towards eliminating bonded labour and creating a fairer order. **ENDNOTES:** [\[1\]](#_ftnref1) [ Debt bondage in India – Wikipedia ](https://en.wikipedia.org/wiki/Debt_bondage_in_India#:~:text=Bonded%20labour%20is%20a%20relic,and%20government%20ineffectiveness%20allow%20this) [\[2\]](#_ftnref2) Article 21 of The Constitution Of India. [\[3\]](#_ftnref3) Article 23 of The Constitution Of India. [\[4\]](#_ftnref4) Article 24 of The Constitution of India. [\[5\]](#_ftnref5) Article 39(e) of The Constitution Of India. [\[6\]](#_ftnref6) Article 39 (f) of The Constitution Of India [\[7\]](#_ftnref7) Article 42 of The Constitution of India. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Vineet Narain v. Union of India (1998) 1 SCC 226](https://lawfoyer.in/vineet-narain-v-union-of-india-1998-1-scc-226/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** **Author:** **Chahat Gugliya** **Edited by: Madhumita Saha** **ABSTRACT** This case is a landmark judgment by the Supreme Court of India highlighting systemic corruption and the independence of investigative agencies. Public Interest Litigation (PIL) filed by journalist Vineet Narain, highlighting the inaction of the Central Bureau of Investigation (CBI) and other agencies in probing corruption allegations against high-ranking politicians and bureaucrats in the Jain Hawala scandal. The Supreme Court emphasized the need for the functional autonomy of the CBI and the Enforcement Directorate (ED) to conduct impartial investigations free from political and bureaucratic influence. The Court directed the appointment of the CBI Director through a transparent process involving a committee and fixed the tenure of the Director to ensure stability and independence. The judgment also recommended making the Central Vigilance Commission (CVC) a statutory body to oversee the CBI’s work in corruption cases thereby enhancing accountability and efficiency. By laying down guidelines for investigative procedures and asserting judicial oversight the Court aimed to ensure diligent and transparent handling of corruption cases. ***Keywords* *(Minimum 5)*:** *corruption, accountability, central bureau of investigation independence, judicial oversight, transparency.* **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Vineet Narain v. Union of India (1998) 1 SCC 226. ***ii)* *Case Number*** Writ Petitions (Criminal) No. 340-343 of 1993. ***iii)* *Judgement Date*** December 18, 1997. ***iv)* *Court*** SUPREME COURT OF INDIA. ***v)* *Quorum / Constitution of Bench*** Division Bench. ***vi)* *Author / Name of Judges*** Justice S.P Bharucha; Justice S.C Sen and Justice N. Santosh Hegde. ***vii)* *Citation*** (1997) 4 SCC 306. ***viii)* *Legal Provisions Involved*** Article 32, 14 & 21 – Constitution of India; Section 6 & 19 – Prevention of Corruption Act (1947); Delhi Special Police Establishment Act; Separation of Powers; Judicial Review; Criminal Procedure Code. **INTRODUCTION AND BACKGROUND OF JUDGEMENT-** Journalist, Vineet Narain along with others, filed a Public Interest Litigation (PIL) seeking directives for the CBI to investigate. CBI, which is responsible for investigating such cases, was often compromised and hindered by political pressures. The case of Vineet Narain & Others vs Union of India & Another is a landmark case that revolves around issues related to the Prevention of Corruption Act & role of the Central Bureau of Investigation (CBI) in investigating corruption cases. The petitioners, led by journalist Vineet Narain, seek the court’s intervention to address serious issues relating to CBI’s compromised efficiency while investigating corruption cases against influential public figures. The issues in this case are questions on law & governance. The right to fair investigation & speedy trials is enshrined in the constitution. This case reinforced principles of accountability & transparency in the investigation process. It has contributed to judicial oversight & the rule of law in the country. **FACTS OF THE CASE** The case involved a writ petition filed by Vineet Narain, an activist along with other petitioners before the Supreme Court. The petitioners alleged that high-profile corruption cases were compromised due to political interference and lack of investigation by the CBI, they proclaimed that the CBI was not functioning properly and was influenced by political pressure. On March 25, 1991, Ashfak Hussain Lone, alleged to be an official of the terrorist organization Hizbul Mujahideen, was arrested in Delhi. Upon his interrogation, the Central Bureau of Investigation (CBI) conducted raids on the premises of Surrender Kumar Jain, his brothers, relations, and businesses. During the raids, the CBI seized two diaries and two notebooks containing detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high-ranking politicians, in power and out of power, and high-ranking bureaucrats. Despite the seizure of these incriminating materials, the CBI and revenue authorities failed to investigate the matter and take it to its logical conclusion by prosecuting the persons involved. The petitioners, Vineet Narain and others filed public interest writ petitions under Article 32 of the Constitution, alleging that the government agencies had failed to perform their duties and legal obligations by not investigating the contents of the “Jain diaries.” The petitioners alleged that the failure to investigate was done with the intention of protecting the influential and powerful persons who were recipients of money from unlawful sources. The petitioners argued that the matter disclosed a nexus between crime and corruption at high places in public life, posing a serious threat to the integrity and security of the country. The case arose from the CBI’s failure to investigate the contents of the “Jain diaries,” which allegedly revealed financial links between politicians, bureaucrats, and criminals, despite the incriminating evidence seized during the raids. **LEGAL ISSUES RAISED** 1. Whether the judiciary intervene and provide a remedy when government investigative agencies like the CBI fail to investigate allegations against high-ranking politicians and bureaucrats? 2. Whether it is within the domain of judicial review and it could be an effective instrument for activating the investigative process that is under the control of the executive? **PETITIONER / APPELLANT’S ARGUMENTS** 1. The counsel for Petitioner submitted that the Central Bureau of Investigation (CBI) investigating high-profile corruption cases was suffering from major issues related to political interference. They argued that this interference compromised the CBI’s ability to function with the necessary independence and impartiality. The petitioners claimed that the CBI’s operations were influenced by political authorities which often led to biased and compromised investigations. 2. The counsels highlighted the inefficiency in the CBI investigative procedure as a major concern. They pointed out various instances where investigations were unreasonably delayed leading to prolonged periods during which corruption cases remained unresolved. This delay was argued to be a strategy to avoid accountability and shield influential people from the legal consequences of their actions. The petitioner’s counsel argued that there was a systemic failure in the prosecution of corruption cases. They provided evidence of several high-profile cases where the CBI failed to pursue prosecutions. This included examples of weak and incomplete legal action that resulted in insufficient consequences. Such failures they argued undermined the effectiveness of anti-corruption measures and eroded public confidence in the legal system. 1. The counsels for the petitioners called for the implementation of procedural reforms within the CBI. They argued that the lack of clear guidelines and time for conducting investigations contributed to inefficiency and lack of transparency. They emphasized the need for structured procedures to ensure that investigations were conducted promptly and effectively thereby enhancing the overall accountability of the CBI. 2. The petitioner’s counsel also underscored the importance of protecting whistleblowers who come forward with information about corruption. They argued that without adequate protection whistleblowers faced significant risks of retaliation which could discourage others from reporting corruption. They urged the Court to recognize the necessity of safeguarding whistleblowers to encourage the reporting of misconduct and ensure the integrity of investigative processes. 3. Finally the counsels argued for the establishment of an independent supervisory mechanism to oversee the CBI functioning. They suggested that a supervisory committee composed of impartial and experienced individuals could provide the necessary oversight to ensure that investigations were conducted without political interference and in adherence to established guidelines. This oversight was deemed crucial for maintaining the credibility and effectiveness of the CBI. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that the Central Bureau of Investigation (CBI) is an autonomous and professional agency equipped to handle high-profile corruption cases with the necessary expertise and resources. They argued that the CBI’s operations are conducted with established protocols and legal standards designed to ensure fairness and impartiality in its investigations. 2. The respondents contended that allegations of political interference are largely unfounded and do not reflect the operational realities of the CBI. They argued that the CBIs decisions and actions are guided by law and are not subject to undue political influence. The respondents maintained that any allegations of interference should be substantiated with specific evidence rather than generalized assertions. Regarding the issue of inefficiency in investigations the counsels for the respondents acknowledged that while the CBI may face challenges it operates under significant procedural and legal constraints. They argued that delays in investigations are often due to the complex nature of the cases and the necessity for thorough evidence collection. They maintained that the CBI works diligently to resolve cases within a reasonable timeframe and delays are not indicative of systemic failures but rather the inherent challenges of complex corruption cases. - On the matter of prosecution failures the respondents asserted that the CBI’s role is limited to investigation and the decision to prosecute rests with the appropriate legal authorities including the prosecution and judicial system. They argued that any shortcomings in the prosecution process are beyond the CBI’s control and are a function of the broader legal framework within which it operates. - The respondents agreed on the importance of protecting whistleblowers but argued that the existing legal and institutional mechanisms adequately address this issue. They contended that there are sufficient safeguards and protections in place for whistleblowers and additional measures may not be necessary or practical given the current framework. - Regarding the call for procedural reforms the respondents acknowledged that procedural improvements can be beneficial but argued that the CBI is already subject to rigorous oversight and legal standards. They maintained that implementing further reforms should be considered carefully to avoid disrupting the existing system which is designed to balance efficiency with thoroughness. Finally the counsels for the respondents objected to the need for an independent supervisory committee. They argued that the CBI is already subject to oversight by various bodies including the judiciary and government authorities which provide adequate checks and balances. They contended that the establishment of a new supervisory mechanism could lead to unnecessary bureaucratic complications and may not necessarily improve the effectiveness of investigations. **RELATED LEGAL PROVISIONS** 1. **Articles of the Constitution of India:** 2. **Article 14: “***Right to Equality, emphasizing that every individual is equal before the law and entitled to equal protection of the laws within the territory of India.”* 3. **Article 21: “***Right to Life and Personal Liberty, which underscores the importance of fair investigation and trial as essential to protect individual rights.”* 4. **Article 32: “***Provides the right to approach the Supreme Court for enforcement of fundamental rights, forming the basis for the Public Interest Litigation in this case.”* **The Prevention of Corruption Act, 1988: “***This act provides the framework for preventing corruption in public offices and outlines the legal penalties for offenses related to corruption.”* **The Criminal Procedure Code (CrPC), 1973***: “Provisions from the CrPC were cited regarding the powers of the police and investigating agencies to conduct inquiries and investigations, ensuring due process in judicial proceedings.”* **Indian Penal Code (IPC), 1860***: “Contains provisions related to offenses, including those about bribery and corruption, that were pertinent in the context of the allegations investigated by the CBI.”[**\[1\]**](#_ftn1)* **JUDGEMENT[\[2\]](#_ftn2)** 1. **RATIO DECIDENDI** The ratio decidendi of Vineet Narain & Others vs. Union Of India & Another revolves around the Supreme Court’s affirmation of the necessity for independence and accountability of the Central Bureau of Investigation (CBI) in the prosecution of high-profile cases. The Court established that the CBI must operate free from political interference emphasizing that governmental directives, such as the Single Directive should not obstruct the investigation of corruption by public officials. The integrity of law enforcement is vital to uphold the rule of law and prevent prosecutorial inertia in cases involving influential individuals. The judgment also mandated the establishment of Special Courts to expedite the trial of criminal cases investigated by the CBI thereby reinforcing the importance of timely justice and accountability in public office. This ruling therefore enhances the framework for investigating corruption and serves as a critical interpretative guideline for the exercise of CBI’s powers in future investigations. 1. **OBITER DICTA** The Supreme Court made several obiter dicta that provided important context and commentary on the subject matter. The Court expressed concern about the systemic issues plaguing the investigative framework, suggesting that public trust in legal institutions is base for democracy. It emphasized that corruption and nepotism in high offices negatively impact governance and the need for rigorous accountability mechanisms. The justices highlighted the importance of a transparent and autonomous investigative body arguing that the CBI’s role is crucial in upholding the principles of justice and public interest. Additionally, the Court reflected on the need for reforms to ensure that investigative agencies operate effectively and without obstruction. The commentary aimed to guide future legislative and administrative actions, underscoring the judiciary’s role in fostering a corruption-free environment within public institutions. **CONCLUSION & COMMENTS** The judgment reinforced the principle that the rule of law must triumph over political influence ensuring that corruption is effectively addressed while preserving individual rights. It set a precedent for future cases, advocating for reforms in the accountability mechanisms of investigative bodies in India. the Vineet Narain case has had a lasting impact on Indian society by fostering a legal environment conducive to accountability, promoting anti-corruption initiatives, and empowering citizens to advocate for integrity in governance. These changes have contributed to a democratic framework and have implications for the overall health of public institutions in India. **ENDNOTES:** 1. **Important Cases Referred** 2. Kehar Singh v. State (NCT of Delhi), (1994) 3. Maneka Gandhi v. Union of India, (1978) 4. Minerva Mills Ltd. v. Union of India, (1980) 5. State of Bihar v. Bihar Rajya Khadi Gramodyog Mandal, (1997) 6. **Important Statutes Referred** 7. Constitution of India, 1950 8. Prevention of Corruption Act, 1988 9. The Criminal Procedure Code, 1973 10. Indian Penal Code, 1860 [\[1\]](#_ftnref1) Article 14; 21 and 32 of Constitution of India [\[2\]](#_ftnref2) The Prevention of Corruption Act, 1988 **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases --- ### [Delhi Development Authority vs Skipper Construction Company (P) Ltd. & Another](https://lawfoyer.in/delhi-development-authority-vs-skipper-construction-company-p-ltd-another/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** **Author: Shraddha Patil** **Edited by: Madhumita Saha** **CASE DETAILS:** Case Name Delhi Development Authority v. Skipper Construction Company (P) Ltd. & AnotherCitation 1996 SCC (4) 622, 1996 AIR 2005, JT 1996 (4) 679 Judgement Date 06.05.1996 Court Supreme Court of India Quorum 2 Judges Author and Judges Author: Justice B.P. Jeevan Reddy Bench: Justice B.P. Jeevan Reddy and Justice K. S. Paripoornan Petitioner Delhi Development AuthorityRespondent Skipper Construction Company (P) Ltd. & Another Legal Provisions Article 142 of the Constitution of India – Supreme Court’s power to do complete justice Company Law – Lifting the corporate veil Article 129 of the Constitution of India – Supreme Court’s power to punish for contempt **ABSTRACT:** The supreme court case of Delhi Development Authority vs Skippers Construction Company Pvt. Ltd. and Another deal with the issue of the said company failing to deposit the consideration as per the conditions of the auction carried over by the Delhi Development Authority (DDA) and entering into agreements for sale and creating interest in the third parties in defiance of the orders of the Court. Moreover, it defrauded investors by selling the spaces in a proposed building against the court orders. The issue in concern was whether the corporate veil of Skipper be lifted to hold its directors, Tejwant Singh and his wife Surinder Kaur, liable for fraudulent activities. The Court issued Suo motu contempt proceedings against Tejwant Singh and Surinder Kaur (wife of Tejwant Singh), Directors of Skipper. This Court held them guilty of contempt under Article 129 and Article 142 and the corporate veil was lifted to treat all the family members and Skipper as one entity. The judgment showcases the court’s will to take strong measures against contempt of court, protecting the interests of innocent victims and preventing the misuse of the corporate form of treating companies as a separate legal entity. **KEYWORDS:** 1. article 142 2. corporate veil 3. article 129 4. supreme court 5. contempt of court **INTRODUCTION:** Article 142 of the constitution of India grants the Supreme Court broad powers to pass any order, which will be enforceable across India, required to ensure the resolution of a case and to do “complete justice” in any matter before it. Another key aspect concerned with the case is the lifting of the corporate veil. The corporate veil is the concept that states that the identity of any corporate firm or a company will be separate from that of its owners or directors. Thus the action of any corporate entity will be separate from that of its shareholders and directors. it protects the shareholders from being liable for the company’s actions. Lifting or piercing the corporate veil is to remove such a barrier between the company and its owners and hold the person who is accountable for the illegal activity conducted under the veil of the company, to discourage the misuse of corporate structure to commit frauds, evade laws, engage in illegal activities for personal gains or to the detriment of stakeholders, creditors, investors, etc. Lastly, Article 129 of the constitution of India gives the supreme court the power to take punitive actions against the contempt of court. Contempt of court refers to disrespecting or disobeying the orders given by a court. In such cases, the court has full powers to punish, which acts as an important tool to maintain the dignity and integrity of the judicial proceedings. **FACTS OF THE CASE:** 1. In October 1980A plot of land was put to auction by the Delhi Development Authority \[D.D.A.\]. Skipper became the highest bidder for purchasing a plot of land. According to the conditions of the auction, Skipper deposited the twenty-five percent but did not deposit the balance within 90 days. 2. It asked for an extension repeatedly and defaulted to pay the balance in spite of seven extensions from January 1981 to April 1982. 3. When proceedings for cancellation of the bid were in the process, Skipper moved the Court obtained a stay order on 29th May 82, and started making representations. 4. DDA appointed a Committee to work out a formula and under the recommendations of the Committee, Skipper was asked to enter into a revised agreement incorporating fresh terms wherein it was permitted to commence construction on the plot subject to the condition that the property in the land would remain with the D.D.A. until the entire consideration is paid. 5. Skipper raised objections to these proposals from 1984 till 1987 but finally, the agreement was entered into on 11th August 1987. 6. Even before permission to enter was granted under the revised agreement, Skipper started selling the space to be built in the proposed structure and started receiving money. 7. Though Skipper paid the 1st installment much beyond the time, it did not pay the second installment but furnished Bank guarantees which were found to be defective. 8. On 19th March 1990, the High Court of Delhi permitted construction by sanctioned plan subject to a deposit of Rs. 20 lakhs in two installments and 1.94 crores within one month. 9. The Delhi High Court passed a directing the payment of Rs.8.12 crores approximately in 30 days and stopped further construction w.e.f. 9th January 1991 till payment was deposited and stated that in default, the revised agreement dated 11th January 1987 would stand canceled and DDA would be entitled to re-enter the plot. 10. Skipper defaulted but approached the SC on 29th January 1991 in Special Leave Petition (SLP) when it passed an interim order for a deposit of Rs.2.5 crores in one month and Rs.2.5 crores before 8th April 1991, and Skipper was expressly prohibited from inducting any person in the building and creating any rights in favour of third parties. 11. It is stated that before 29th Jan, 1991 Skipper collected about Rs.14 crores from various parties to sell space in the proposed building. Even after 29th Jan, 1991, Skipper collected various amounts, about Rs.11 crores. The same space was sold to more than one person and monies were collected. 12. Skipper filed suit against DDA seeking an injunction restraining DDA from interfering with its alleged title and possession over the plot and sought a declaration that the re-entry by DDA was illegal and a declaration that it had validly paid all amounts due to DDA. It obtained a stay of re-auction. Against this order, DDA filed an SLP. 13. This Court issued Suo motu contempt proceedings against Tejwant Singh and Surinder Kaur (wife of Tejwant Singh), Directors of Skipper. This Court held them guilty of contempt under Article 129 and Article 142. 14. The contemners deposited Rs. 2 crores but failed to deposit the balance and also failed to furnish a Bank guarantee. They were committed to prison and they served the sentence. 15. DDA invited fresh tenders and sold the plot with the 14th-floor structure (incomplete) to M/s Banganga Investments (Videocon) for Rs.70 crores. The sale was accepted with the permission of the Court. 16. This Court felt concerned about the buyers to whom space was sold before 29th January 1991 and later. Claims of those who purchased before 29th January 1991 were estimated to amount to Rs.14 crores. DDA was therefore directed to deposit Rs.16.75 crores in this Court. **LEGAL ISSUES RAISED:** 1. Whether the corporate veil of Skipper can be lifted to gold its directors, Tejwant Singh and his wife Surinder Kaur, liable for fraudulent activities. 2. Whether the SC can exercise its powers under Article 142 of the constitution of India to provide complete justice to the defrauded investors, even in the absence of specific statutory provisions. 3. Whether the finality of the earlier orders of the SC, under which the sale proceeds vested with the DDA, can be disturbed in the exercise of the powers under Article 142. **ARGUMENTS FROM THE PETITIONER:** 1. It was submitted by the counsel for the petitioner that the corporate veil should be lifted to hold Tejwant Singh and Surinder Kaur, the directors of Skippers, liable as they were involved in fraudulent activities and had diverted the money collected from investors to their front companies, directors of which were their sons. 2. It argued that the court should exercise its powers under Article 142 to provide complete justice to the investors. 3. It also submitted that the earlier orders of the court, under which the sale proceed vested with the DDA, had attained finality and should not be disturbed in the exercise of powers under Article 142. **ARGUMENTS FROM THE RESPONDENT:** 1. The counsel for the respondent argued that the corporate veil should not be lifted as there was no evidence of the directors having misused it for their personal benefits. 2. It also claimed that the monies for reimbursing the defrauded investors should be borne by DDA from the sale proceeds that were vested with it as per the earlier orders of the court. **RELATED LEGAL PROVISIONS:** 1. Article 142 of the Constitution of India – Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. It provides the Supreme Court with the power to pass any order required to do complete justice in any cause of matter before it. 2. Article 129 of the constitution of India – Supreme Court to be a court of record. It provides all the powers to the court to punish for contempt of itself. **JUDGEMENT:** The court held : 1. That pre-29.1.91 purchasers had to be reimbursed in full, “which means that they should also be paid interest at the appropriate rate”. 2. That the post-29.1.91 purchasers had also to be reimbursed “in full”. 3. That ignoring the corporate veil, the directors of Skipper – Tejwant Singh and Surinder Singh and their sons and unmarried daughters would be treated as one entity. 4. That the Court held them guilty of contempt and under Article 129 and Article 142, sentenced them to imprisonment and fine of Rs.50,000 each. Attachment orders were passed. 5. Later on, the sentence was deferred subject to the condition of their furnishing bank guarantee for Rs.11 crores by 31st March 1995 and a deposit of Rs.11 crores by 30th November 1995. It was also said that the list of properties given by the contemners is to be taken on record. The contemners will also file a list of properties held by their sons and unmarried daughters within one week from that day. 6. The contemners deposited Rs. 2 crores but failed to deposit the balance and also failed to furnish a Bank guarantee. They were committed to prison and they served the sentence. **CONCLUSION AND COMMENTS:** Delhi Development Authority v, Skipper Constructions Company Pvt. Ltd. Case is significant because it demonstrates India’s supreme court’s desire to use its power enshrined in Article 142 of the constitution of India to achieve complete justice. The court’s decision to disregard the corporate veil and treat Skipper, its directors – Tejwant Singh and Surinder Singh, and their sons as a single entity that defrauded investors sends out a strong message against abuse of the corporate form. Overall, this judgment is an important precedent in corporate governance concerning the judiciary’s role in protecting ordinary people. **ENDNOTES:** 1. Delhi Development Authority v. Skipper Constructions Company (P) Ltd., (1996) 2. Constitution of India – Article 129, Article 136 and Article 142. 3. **Categories:** Case Analysis, Company Law, Constitutional Law Cases --- ### [Tata Engineering v. State of Bihar, AIR 1965 SC 40](https://lawfoyer.in/tata-engineering-v-state-of-bihar-air-1965-sc-40/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** ***Author: Anukriti Mathur*** ***Edited By: Aneel Meghani*** **ABSTRACT** British Economist, Hugh Dalton defines tax as a compulsory contribution imposed by public authority, irrespective of services rendered to the taxpayer1. Thus, we can see that the tax can only be levied by Public authority and such levy of tax should have backing by authority of Law.2 Chapter I of Part XI of the Indian Constitution discusses the division of taxing power between the central government and State Government through three lists of the Seventh Schedule of the Indian Constitution. The First List (Union List) empowers the Central Government to levy tax on Income, Customs, Central Excise, and other incomes except from the agricultural sector. The Second List (State List) deauthorizes the taxation on agricultural income, lands, sales, State excise, Stamp duties, and other State level sources. The Concurrent List (Third List) allows both the Central and State Governments to enact laws levying taxes on subjects such as the entry of local goods for consumption, use, or sale. Thus, to avoid overlapping of taxes and proper distribution of taxing power, various Doctrines like Pith and Substance and Territorial nexus comes to play. Additionally, the Central Government through Constitutional framework controls and restrict State’s taxing power and any action of State where tax is a measure to control entry in market or freedom to trade. ***Keywords*:** Tax, Central Government, Constitution of India, Inter-state Trade, Pith and Substance, Territorial Nexus, Fiscal distribution, Bihar Sales Tax **CASE DETAILS** 1. ***Judgement Cause Title / Case Name*** Tata Engineering And Locomotive Co. Ltd vs State Of Bihar And Others 1. ***Case Number*** Writ Petitions Nos.112 and 113 of 1961 1. ***Judgement Date*** 25 February, 1964 1. ***Court*** Supreme Court of India 1. ***Quorum / Constitution of Bench*** Justice P.B. Gajendragadkar, Justice K.N. Wanchoo, Justice J.C. Shah, Justice N. Rajagopala Ayyangar and Justice S.M. Sikri 1. ***Author / Name of Judges*** Justice P.B. Gajendragadkar 1. ***Citation*** 1965 AIR 40, 1964 SCR (6) 885, AIR 1965 Supreme Court 40 1. ***Legal Provisions Involved*** Article 19, 32 and 286(1)(a) of Constitution of India **INTRODUCTION AND BACKGROUND OF JUDGEMENT** - Post independence, the India opted for Fiscal Federalism wherein Central Government and the State Government were provided with autonomy in levying and collection of taxes. The State Government were authorized by Constitutional framework to levy and collect tax including Sales Tax. Excise duties and stamp duties. This distribution of taxing power paved way for concerns like double taxation, hindering free flow of trade commerce and uneven State’s economic growth.4 - The Second half of 20th Century witness rampant industrialization and economic integration. India too witness, rise of corporations like Tata. Such large Corporation operates across various States and so subjected to multiple taxation by various States. - The Indian Constitution provides the safeguard against use of State Taxing power to hinder entry in market and to restrict free trade and commerce. - The following case is landmark in deciding the validity of State Sales tax where the Goods are manufactured in State other than where it is otherwise available for use or consumption.5 **FACTS OF THE CASE** - The Petitioners, Tata Engineering & Locomotive Co. Ltd. (TELCO) was engaged in manufacturing and sale of Diesel Truck, Bus chassis along with their spare parts and accessories. - The petitioner had its Regional Office in Bombay and in order to explore Jamshedpur market, it entered into Dealership Agreements which was subjected to Sales tax imposed by State of Bihar. - The petitioner, citing inter-state trade resist to pay Sales Tax imposed by State of Bihar while the State of Bihar, claimed the tax as trade occurred in Bihar thus, subjected to Sales tax. - The Petitioner, thus Under Article 32 of India, file a writ in name of the Corporation and members of the company on the ground that the said tax violate the provision of Article 286 of the Indian Constitution, imposing a restrictive on the imposition of taxes on the sale or purchase of goods. **LEGAL ISSUES RAISED** 1. Whether TELCO is considered as citizen of India and eligible to file a writ under Article 32, for its rights violated under Article 19(1)(g) of Constitution of India? 2. Whether the Sales Tax imposed by the State of Bihar on goods manufactured by TELCO falls within the scope of Article 286 of the Indian Constitution or not? **PETITIONER ARGUMENTS** 1. The counsels for Petitioner submitted that Tata Engineering & Locomotive Co. Ltd. (TELCO) was incorporated and registered under Indian Companies Act, 1913, making it a citizen of India. Being a citizen of India, they are eligible to claim Fundamental Rights under Article 19.6 2. The Petitioners also submitted that Situs of Sale was not within State of Bihar and the transactions involved inter-state sale where said Sales Tax would not be applicable. 3. The Sales Tax imposed by Bihar Government is merely a restrictive tax and violative under Article 286 4. Relying on Ujjam Bai Case,7the petitioner drew attention towards the Doctrine of Pith and Substance. The Petitioner highlighted that Article 286 is a safeguard against State Taxes imposed merely to restrict freedom of inter-state trade and Freedom to trade guaranteed under Article 19(1)(g) **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that the Corporations do not enjoy Fundamental rights as provided to individual and thus not eligible to file writ under Article 32.8 2. The Respondents submitted that the merely having the registered office in Bombay does not make the sales as inter-state transaction. The Situs of sale is important as it determine the taxability of such sale. 3. The State shall exercise its taxing power on all purchases and sales held in its territory and such taxation is not a restriction under Article 286 **RELATED LEGAL PROVISIONS** 1. **Article 19(1)(g): – “***All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business.*” 2. **Article 32(1): – “***The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.****”*** 3. **Article 286: – “***No law of a State shall impose, or authorize the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place* *(a) outside the State; or* (b) *in the course of the import of the goods into, or export of the goods out of, the territory of India***.”** **JUDGEMENT** **(A)RATIO DECIDENDI** 1. The Apex Court, while disposing the Writ, emphasis on the separate legal entity of the Corporation from that of its members. The corporations are formed for commercial nature and are not eligible to enjoy Fundamental rights under Part III of Indian Constitution. 2. The Hon’ble Supreme Court, after hearing both sides, considered that the Bihar Sales Tax imposed on the goods manufactured by TELCO were in within the purview of Article 286. This created a restriction on imposing taxes on sale or purchase of goods. 3. The Court included the term Manufacture as well as sale or purchase of goods for assessment of tax. Additionally, Court while explaining term Purchase and Sale, in light of Article 286, considered tax effective on purchase of goods by TELCO’s customers. 4. While explaining the Situs of sale, the court considered that it is paramount to see the place of dispatch rather than delivery to determine site to assess taxability and restrictions under Article 286. **(B) OBITER DICTA** 1. The Court ruled that the State of Bihar was misusing it’s taxing power and under Doctrine of Pith and Substance, the said taxation stand in violation of restriction on inter-state trade and commerce. 2. The Court while interpreting the Principles of Constitutional Interpretation relied on harmoniums construction and balancing the fiscal federalism among central and State Governments. **CONCLUSION & COMMENTS** 1. TELCO case was landmark in establishing the State powers in taxation and it’s limitations. 2. The case laid down the principle of Situs of Sale while assessment of Tax. The territorial nexus as a constrain to State’s tax levying powers. The Article 286 aims at avoidance of double taxation on business entities operating inter-states ensuring trading in Indian Market irrespective of State borders. 3. The Court also ensured that the Central Government fiscal power to collect tax in inter-state and power to regulate such activities under Article 286 is not undermined. 4. The case also provided for operational efficiency and profitability for entities operating inter-state by avoiding taxes on multiple level this paved way for landmark cases of Cement Marketing Company of India v. State of Rajasthan9 and Whirlpool Corporation v. Registrar of Trade Marks10. **REFERENCES** **Important Cases Referred** 1. The State Trading Corporation of India v. The Commercial Tax Officer AIR 1963 SC 1811 2. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621 3. Indo-China Steam Navigation Co. Ltd. v. The Additional Collector of Customs and Others AIR 1964 SC 1140 4. Cement Marketing Company of India v. State of Rajasthan AIR 1980 SC 346 5. Whirlpool Corporation v. Registrar of Trade Marks AIR 1999 SC 22 **Important Statutes Referred** 1. Constitution of India 2. The Central Sales Tax Act, 1956 3. The Bihar Sales Tax Act 1947 4. Indian Companies Act, 1913 **Categories:** Case Analysis, Constitutional Law Cases --- ### [SHREYA SINGHAL V. UNION OF INDIA](https://lawfoyer.in/shreya-singhal-v-union-of-india/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** ***Author: Muskan*** ***Edited By: Aneel Meghani*** **ABSTRACT** This case was filed as Public Interest Litigation (PIL) in the Supreme Court regarding section 66A where appellant Shreya Singhal had challenged the constitutionality of Section 66A on the ground that it is violative of fundamental rights guaranteed to the citizens of India by the Constitution, on particular, the right to freedom of speech and expression under Article 19(1)(a). She had contended that vague and overbroad definitions of “offensive” and “menacing” speech pose a substantial threat to free expression. It held that the section was infringing upon article 19(1)(a) and it lacks clear standards and enough safeguards against misuse. The judgment came to be a strong assertion of constitutional freedoms in the digital age, the requirement of a precise and accountable legal framework for regulating online content. Shreya Singhal’s contention rested on the very fact that Section 66A was a wide and vague law with no clear definition of key terms. According to her, this vagueness leaves room for arbitrary and excessive use by authorities. That ambiguity, she argued, permitted law-enforcement officials to apply the rules in capricious ways and silence free expression The Supreme Court accepted these arguments while giving its Judgment on March 24, 2015. The Court found that imprecise language made the law prone to misuse and thus violated constitutional standards. This judgment has had far-reaching consequences for Indian cyber law, further fortifying the protection of free speech and safeguarding against the misuse of provisions in Indian laws about online communication. **Keywords:** Public Interest Litigation (PIL), Section 66A, Constitutionality, Fundamental rights, right to freedom of speech and expression, Vague definitions Offensive speech, Menacing speech **CASE DETAILS** 1. ***Judgement Cause Title / Case Name*** Shreya Singhal v. Union of India 1. ***Case Number*** Writ Petition (Criminal) No. 167 of 2012 1. ***Judgement Date*** 24 MARCH, 2015 1. ***Court*** Supreme Court of India 1. ***Quorum*** 2 judges’ bench 1. ***Name of Judges*** Justice J. S. Khehar Justice R. F. Nariman 1. ***Citation*** AIR 2015 SC 1523 (2015) 5 SCC 1 1. ***Legal Provisions Involved*** Constitution of India, information technology act, The Kerala Police act **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case of Shreya Singhal v. Union of India was decided by the Supreme Court of India in the year 2015, on a petition challenging the constitutional validity of Section 66A of the Information Technology Act, 2000. The said section envisaged punishment for messages sent by any communication service, etc., which was vaguely and sweepingly laid down, resulting in its misuse and infringement of the right of a citizen to freedom of speech. **Fundamental Rights** It represents specific legal guarantees granted by a constitution to protect liberties and establish a fair state. These rights are the foundation of every democratic country and consist of several liberties and safeguards for individuals, as well as groups. **Freedom of Speech and Expression,** is one among such rights under which an individual has the right to express his or her ideas and opinions without much hindrance. This characteristic is essential for democratic societies since it fosters those opinions expression and sharing. **The Information Technology Act of 2000** It formulated under the Indian law deals with matters arising from electronic communication in **section 66**. Precisely, it makes it unlawful to send any messages with a vowed intention of causing annoyance or which amounts to communicating obscene material via electronic medium for instance an email or text. This provides an attempt to reconcile freedom of speech with extremism, particularly, in eradicating oneself or handling cyber bullying and aggressive actions on the Internet. **Background:** Petitioner: Shreya Singhal is a student of law who filed the petition following the arrest of two girls in Mumbai for posting comments on Facebook over a shut-down in Mumbai. The petitioners had contended that the provision in question is in violation of fundamental rights under Article 19(1)(a) relating to freedom of speech and expression and Article 21 relating to right to life and liberty of the Constitution. **Judgement** It struck down Section 66A as unconstitutional and violative of freedom of speech. The bench laid special emphasis on the fact that such a provision is too vague and could be used in an arbitrary manner to suppress legitimate speech. **FACTS OF THE CASE** **Procedural Background of the Case** Prior to the historic verdict delivered by the Supreme Court of India on March 24, 2015, a few hearings and proceedings have taken place. The major hearings and key proceedings which took place before the said judgment are given below :- **Filing of Petition:** **Date**: October 2012 **Event**: A petition by Shreya Singhal, a law student, was made against the constitutionality of Section 66A of the Information Technology Act, 2000. The petition was filed before the Supreme Court of India**.** **Initial Hearings:** **Date:** 2012-2013 **Event:** The Supreme Court began the hearing for arguments in support of petitioner Shreya Singhal. The matter was listed for preliminary consideration of the issue of the maintainability of the petition and also the extent of challenge. **Interim Orders:** **Date: In 2013** **Event:** In the course of the proceedings, the Supreme Court issued interim orders that included directions to the Union of India asking them to respond to the challenge and afford detailed explanations regarding the implementation and impact of Section 66A. **Detailed Hearings:** **Date: 2014** **Event:** Detailed hearings were conducted in 2014, wherein detailed arguments on behalf of the parties were advanced: **Legal Arguments –** The petitioner placed before this Court that Section 66A was unconstitutional and would not stand judicial scrutiny because of its vagueness and thus the potential for misuse. This had no clear definitions, and thus led to suppression of the freedom to speech. Then The Union of India defended Section 66A on the basis that it was for reasons of maintenance of public order and prevention of online harassment. It is the contention of the central government that the law is a reasonable restriction to freedom of speech in the interest of public safety**.** **Expert Opinions and Amicus Curiae:** **Date: 2014** **Event:** The Supreme Court issued a call for amicus curiae, inviting all interested persons to present expert opinions on the implications of Section 66A**.** **Legal Arguments and Submissions:** **Date: Early 2015** **Event:** The final rounds of legal argumentations were heard out in the early part of 2015. Both parties presented their closing submissions, addressing the concerns the Court raised and answering the questions that cropped up during the hearings**.** **Summing Up of Arguments:** **Date: March 2015** **Event:** The Supreme Court did a final summing up of the arguments prior to the delivery of its judgment. This included going through what both parties had presented, amicus curiae opinions, and legal precedents cited. **Delivery of Judgment:** **Date: March 24, 2015** **Judgment :** The judgment was pronounced by the Supreme Court of India whereby Section 66A of the Information Technology Act, 2000, was declared unconstitutional on the grounds of vagueness, misusage, and infringement of the fundamental right to freedom of speech and expression. **Factual Background of the Case** After the demise of Bal Thackeray, founder of Shiv Sena party, in November 2012, two young women, one named Shahen Dhada and the other Renu Srinivasan, posted comments regarding the shutting down of the city at Mumbai due to his death on Facebook. The cops booked the two women under Section 66A of the Information Technology Act, saying their posts were offending and could lead to communal unrest. This incident raised alerts about the possible misuse of the law. The arrests caused a public uproar that included protests for free speech and against excessive state power. The incident thus became an interesting debate on the delicate balance between the retention of public order and protecting individual rights. Subsequently, following the outcry, a PIL challenging the constitutional validity of Section 66A of the Information Technology Act was filed in the Supreme Court by Shreya Singhal, a student of law. Her contention is that the section is vague and infringes the right to freedom of speech. **Supreme Court Proceedings:** The Supreme Court took it up for arguments by all parties about the implications of Section 66A on free expression and how the authorities could misuse it. This factual background explains what happened before the litigation and what it means for freedom of speech in India. **ISSUE RAISED BEFORE THE COURT** 1. Whether section 66A was adequately covered in Article 19(2) of the Indian Constitution that lists allowable limitations to the freedom of speech and expression 2. Whether section 66A of the Information Technology Act, 2000, which made it criminal to send through electronic communication, any information that was grossly offensive, menacing or annoying is constitutionally valid 3. Whether potential misuse of Section 66A by law enforcement agencies to suppress dissent and curb free expression, especially in a democratic society. **ARGUMENTS FROM THE APPELANT SIDE** 1. Learned counsel for the petitioner submitted that Section 66A violated the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India , which are given under part 3 and are available to both the girls here 2. It was submitted by the petitioner that the language used in Section 66A was vague and ambiguous on account of which persons would not be able to understand what constitutes an “offensive” message leading to arbitrary enforcement. This arrest highlighted the law’s broad application and lack of clarity, which led to concerns about its arbitrary enforcement. 3. While bringing out the impact of the existence of Section 66A, the appellant said that the provision was found to have a chilling effect in terms of free speech and everybody was actually being sapped of the nerve to express opinions freely for fear of prosecution. 4. Learned counsel for the appellant argued that it was further posted that this provision was susceptible to misuse by law enforcement agencies for targeting dissenting voices and criticism against the central government and political leaders. 5. Shreya Singhal argued that Section 66A violated international standards on freedom of expression recognized by various human rights treaties and could not survive the criteria for reasonable restrictions. **ARGUMENTS FROM THE RESPONDENT SIDE** 1. The Respondent, The Union of India, defended the constitutionality of Section 66A of the Information Technology Act, 2000. 2. The Union contented that the provision was a necessity for maintaining public order and safety in cyber-space. They instanced various cases of online harassment and threats whereby individuals were targeted with abusive messages or threats of violence and submitted that Section 66A provided a mechanism to deal with such conduct. 3. The counsel pleaded that Section 66A was a reasonable restriction in the freedom of speech and expression under Article 19(2) of the Indian Constitution. It was a law that struck a balance between individual freedom and prevention of grave harm to others or maintenance of public order 4. While claiming that the restrictions under the law were within the permissible restrictions under Article 19(2), he said that it was meant to prevent incitement to violence or hate speech. 5. The respondent then claimed that there were inherent safeguards in Section 66A and that it is always subject to judicial review, on account of which the possibility of arbitrary enforcement and misuse is ruled out. 6. It was urged by the respondent that Section 66A was not as wide or vague as it was made out to be by the appellant. Expressions such as “grossly offensive”, “menacing”, and “annoying” were resorted to, covering clear instances of offending online behavior, and it was susceptible to being construed consistent with constitutional principles. 7. The Union submitted that the provision was applied only in exceptional cases against those who indulged in the most injurious or offensive online behavior. It was contented that the law never intended to suppress any form of legitimate expression but tried to tackle specific online conducts which caused actual harm. 8. The Union argued that Section 66A was an imperative provision to deal with the new problems that were coming before the court due to digital communication and to aid or facilitate the adaptation of the legal framework in order to keep pace with technology. Hence it must be decided by the Supreme court based on the facts adduced if Section 66A is constitutional or not. **Related Provisions** - **Information Technology Act, 2000:** Section 66A: This section prohibited sending of any information via electronic means that was considered “grossly offensive,” “menacing” or “annoying,” and made offenders liable to prosecution that included imprisonment and fines. The section was supposed to regulate conduct on the web but due to its overreaching and ambiguous provisions, there were worries on the right to freedom of speech. - **Constitution of India:** Article 19(1)(a): This article shall uphold right to freedom of speech and expression to the citizens. It preserves freedom of speech and individuals and groups’ freedom to air their opinions as desired. Article 19(2): This article permits lawful limitations to the freedom of speech and expression. Any restriction must be provided by law and may concern, for example, public policy, morality, public order, or the state’s security. However, restrictions which might be placed should accustoming be clear, precise and should not be of general applicability. - **The Code of Criminal Procedure ,1973:** **Section 41:** This section covers the authority of a police officer to effect arrest without warrant. It was relevant in the context of, how Section 66A was upheld in operation, specifically concerning the arrested procedures. **Judgement** The Hon’ble Court in the leading case of **SHREYA SINHAL v UNION OF INDIA,** 2015 resulted in deletion of section 66 A of Information Technology act 2000 as it infringes the Article 19(1)(a) of Indian Constitution that offers the freedom of speech and expression. The Court opined that some of the provisions in the law are too general for instance, ‘grossly offensive,’ menacing,’ and ‘annoy. ’These terms did not give specific definition. The provision was null and void as it violated the constitution by being vague, too broad and at the same time capable of being selectively applied. The court stated that due to the absence of clear definitions the section was open for interpretation by authorities at large This vagueness made the law contradictory with the section that demands that any limitation on fundamental rights should not be vague. The Court said that such vagueness can stifle free speech and other freedom of assembly. The Court made it clear that ought for any law that seek to curtail any facet of fundamental rights such as freedom of speech the limitation must be clearly spelt out. The vagueness in Section 66A was held to violate the constitution with principles that hold that restrictions should be precise to serve concrete legitimate interests. That is, the Supreme Court judgment delivered in Shreya Singhal v. Union of India clarified Section 66A’s unconstitutionality on the basis of being grossly and manifestly arbitrary, and violating the right to freedom of speech and expression. The judgment of this case had a variety of obiter dicta. Obiter dictum refers to what judges say, which is not relevant to the decision, yet provides insight and guidance upon issues related to the subject matter under consideration. - Free speech in a democracy assumes a very significant place as it is **sine qua non** for the working of a democratic institution and for the growth and progress of individuals. The judgment brought out that the Court treated free speech as one of the basic foundations of democratic polity and emphatically reiterated that this right must not be throttled by undue restrictions. - The judgment expressly stated that it was the role of courts to safeguard the fundamental rights of people against arbitrary or excessive actions on the part of the legislature and the executive. The Court further emphasized that it was established to ensure that laws are not offensive to the constitutional norms and do not infringe upon the fundamental freedom. - The Court has observed that laws concerning fundamental rights must be formulated with precision and clarity so as to prevent misuse and to ensure that they do not overshoot or stifle a permissible form of expression. - The judgment observed that, though the right to freedom of speech and expression is a fundamental right under Article 19, it can be legitimately regulated in the interest of public order only if those restrictions are clearly defined and proportionate. - The Court accepted that the way online expression is fast evolving poses a challenge for regulation itself and emphasized the need for legislation to ‘keep pace with technology’ while ensuring that fundamental rights are not compromised. **Conclusion** This judgment in Shreya Singhal v. Union of India has finally laid down an important precedent: this means that freedom of speech cannot be lightly interfered with and new standards will have to be set on how content on the internet can be regulated. Of course, the judgment voiding Section 66A of the Information Technology Act on the grounds that the provision was formulated in ambiguous terms and was confiscatory has driven in the point that laws affecting and involving rights in limine have to be well articulated. The judgment also advanced legislative changes and juridical trends influencing in the legal regulation of electronic communication, which forms the basis of the principles of democracy and the liberty of the person **REFERENCES** 1. 2. 3. 4. 5. 6. THE CONSTITUTION OF INDIA, 1950 SECTION. 13 7. THE CODE OF CRIMINAL PROCEDURE ,1973 SECTION 41 8. THE CONSTITUTION OF INDIA, 1950 SECTION 19(1)a 9. THE CONSTITUTION OF INDIA, 1950 SECTION 19(2) 10. THE INFORMATION TECHNOLOGY ACT, 2000 11. M.P JAIN, THE CONSTITUTIONAL LAW 12. J.N PANDEY, THE CONSTITUTION OF INDIA **Categories:** Case Analysis, Constitutional Law Cases --- ### [Maganbhai Ishwarbhai Patel vs Union of India and Anr](https://lawfoyer.in/maganbhai-ishwarbhai-patel-vs-union-of-india-and-anr/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** ***Author: Dhanavel B*** ***Edited By: Aneel Meghani*** **ABSTRACT** Kutch is the place that exists between India and Pakistan. Due to natural instability of that region, none of valid boundaries had been marked between India and Pakistan in that region. The tribunal was constituted for demarcation of boundaries there. Later, the award was passed. Both governments agreed to the award. The Government of India took action to implement the award. But this present case was presented before the Hon’ble Supreme Court to restrict the implementation because the petitioners plead as the Government of India would transfer the places which belonged to India if it implements the award. It was the infringement of Fundamental rights of them which is guaranteed under Article 19(1)(d), (e) and (f). Further, cession of such Indian territories without constitutional amendment is unconstitutional. By considering the award of the tribunal and all materials placed before the apex court. It held, there was a demarcation of territories between India and Pakistan without cession of Indian territories. Therefore, no constitutional amendment needed for the implementation of the Award. Further, there was no infringement of fundamental rights. ***Keywords*:** India-Pakistan boundary dispute, demarcation of territory, cession of territory, implementation of international agreement, fundamental rights, **CASE DETAILS** 1. ***Judgement Cause Title / Case Name*** Maganbhai Ishwarbhai Patel vs Union of India and Anr. 1. ***Case Number*** Civil Appeal No. 1528 of 1968 1. ***Judgement Date*** January 09, 1969 1. ***Court*** The Hon’ble Supreme Court of India 1. ***Quorum / Constitution of Bench*** 5 Judges Bench (Constitution Bench) 1. ***Name of Judges*** Chief Justice M. Hidayatullah, Justice J.C. Shah, Justice V. Ramaswami, Justice G.K. Mitter and Justice A.N. Grover. 1. ***Author of Judgement*** Chief Justice M. Hidayatullah 1. ***Citation*** AIR 1969 SC 783, 1969 AIR 783, 1969 SCR (3) 254. 1. ***Legal Provisions Involved*** Constitution of India – Article 1, 3, 19(1)(d), 19(1)(e), 19(1)(f), 32, 73 and 253. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Making treaties and implementing treaties are the exclusive powers of the sovereign states. The Constitution of India provides power to the Union to enter into the treaties or agreements and implement such treaties or agreements. Article 73 provides executive power to the Union to act in all matters with respect to power of making law of parliament and it has rights to act by virtue of any treaty or agreement. Therefore, it inherited the power which is provided by Article 253 for parliament for making law for implementing any treaty or agreement. So, it seems the executive branch of government can do any act to implement the treaties without the interference of the parliament. But it’s not the case, allowing the executive to do any acts for the implementation of treaties will cause total crises. Like, it can easily infringe the fundamental right of citizens, it can cede Indian territories to foreign countries, it can act against the constitution and so on. So, the Apex court provided various rulings to curtail the executive powers of the Union. Importantly, In the ruling of Inre Berubari Union and Exchange of Enclaves, any cession of the Indian territories only be done by the constitutional amendments. In the present case, the apex court observed the ruling of First and second Berubari cases. Further, it provided the conditions for implementing treaties by the Union executive. **FACTS OF THE CASE** **Procedural Background of the Case** The present case before the Hon’ble Supreme Court presented by the seven parties. Those seven parties were Mr. Manikant Tiwari, Mr. Shiv Kumar Sharma, Mr. Madhu Limaye, Mr. Gulabshankar Amritlal Dholakia, Mr. Node Sadi Rau, Major Ranjit Singh and Mr. Maganbhai Ishwarbhai Patel were approached the apex court under separate writ petitions, Major Ranjit Singh was approached by appeal from the common judgment of the Delhi High Court and Mr. Maganbhai Ishwarbhai Patel was approached through the appeal by special leave of the apex court from the decision of the Gujarat High Court is in a writ petition filed by him. His writ petition was dismissed by the Gujarat High Court summarily. They sought to restrain the executive act of Government of India to transfer those territories without constitutional amendment and it rendered infringement of fundamental rights guaranteed under Article 19(1)(d), (e) and (f) of the constitution. The apex court delivered its judgement in 1969 after concluding the hearing. **Factual Background of the Case** India and Pakistan were created by the Act of the British Parliament which was the Indian Independence Act 1947. When India and Pakistan were created, different states were allocated to India and Pakistan separately, with separate demarcation lines. Sind province was included in Pakistan meanwhile the presidency of Bombay was becoming the Part of India. The places of Kutch exist between the province of Sind and the Presidency of Bombay. So, it’s the places that exist between India and Pakistan. Naturally, the places of Kutch were covered by water for 4 months of the year. The remaining time it is a place of soft mud or land of grass. No one ordinarily lives there and even there is no possibility of agriculture. But the boundaries of said land are not clear. In July 1948, Diplomatic Notes were exchanged between the governments of India and Pakistan concerning the boundary between the areas of India and Pakistan. Differences between those two governments regarding such boundaries led to direct hostilities. On 30 June 1965, the two governments agreed to cease fire and constitute a tribunal for settling the boundary dispute between them. As per the Agreement, the tribunal was established. During the hearing, about 350 maps were exhibited by India and Pakistan. After the conclusion of the Investigation, the Tribunal awarded the areas of Kanjarkot, Dharabanni Chhadbet, and the two inlets to Pakistan. Both governments had accepted the award of the tribunal. The Indian government was taking steps to implement the award of the tribunal. Before the implementation of the award. This case was brought before the Hon’ble Supreme Court by those seven parties to restrict the implementation of that award. **LEGAL ISSUES RAISED** 1. Whether the implementation of the award was led to cession of the territories of India? 2. Whether the constitutional amendment needed for the implementation of the award? 3. Whether the Implementation of the award would cause infringement of fundamental rights which is guaranteed by Article 19(1)(d), (e) and (f)? **PETITIONER / APPELLANT’S ARGUMENTS** 1. The Petitioners argued the areas of Kanjarkot, Dharabanni, Chhadbet and two inlets on either side of Nagar Parkar are Indian territories. They argued India exercised administrative control over those areas at the time of the creation of two dominions. Therefore, those are the part of Indian territory. 2. They argued cession of those Indian territory is not the executive act of the government. By the ruling of Inre Berubari case, the constitutional amendment needed for cession of those Indian territories. 3. Further, they argued cession of those Indian territories by the government of India was the infringement of fundamental rights which is guaranteed to them by Article 19(1)(d), (e) and (f). **RESPONDENT’S ARGUMENTS** 1. The Respondents argued, the places of the Kutch were unstable due to the changing nature of the sea and land. So, the boundaries were uncertain there. Besides, establishing a police outpost with 171 personnel and polling booths for them was not effective administrative control by India over there. 2. They denoted the award of the tribunal defined the boundaries of India and Pakistan in that particular region. Therefore, true areas of India and Pakistan were demarcated without cession of Indian territories. 3. Further, they argued implementing the Award of the tribunal was not involving cession. Therefore, there is no need for constitutional amendments and it is not an infringement of fundamental rights. **RELATED LEGAL PROVISIONS** - **Constitution of India** - **Article 1:** *– “Name and territory of the Union.* 1. *India, that is Bharat, shall be a Union of States.* 2. *The States and the territories thereof shall be as specified in the First Schedule* 3. *The territory of India shall comprise —* *(a) the territories of the States;* *(b) the Union territories specified in the First Schedule; and* *(c) such other territories as may be acquired”1.* - **Article 3:** *– “Formation of new States and alteration of areas, boundaries or names of existing States. — Parliament may by law — (a) Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State* *(b) Increase the area of any State* *(c) Diminish the area of any State* *(d) Alter the boundaries of any State* *(e) Alter the name of any State* *Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.* ***Explanation I.** — In this article, in clauses (a) to (e), “State” includes a Union territory, but in the proviso, “State” does not include a Union territory.* ***Explanation II.** — The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory”2.* - **Article 19(1)(d):** – “T*o move freely throughout the territory of India”3.* - **Article 19(1)(e):** – “T*o reside and settle in any part of the territory of India”4.* - **Article 19(1)(f):** – “T*o acquire, hold, and dispose of property”5.* - **Article 32:** – “*Remedies for enforcement of rights conferred by this Part.* 1. *The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.* 2. *The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.* 3. *Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).* 4. *The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution”6.* - **Article 73:** – **“***Extent of executive power of the Union.* 1. *Subject to the provisions of this Constitution, the executive power of the Union shall extend.* 2. *to the matters with respect to which Parliament has power to make laws; and* 3. *to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.* 4. *Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution”7.* - **Article 253:** – “*Legislation for giving effect to international agreements.* *Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body”8.* - **Entry 14 of List I:** – “*Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”9.* - **Entry 15 of List I:** – “*War and peace”10.* **JUDGEMENT** **RATIO DECIDENDI** 1. The Hon’ble Supreme Court held due to the instability of nature of the places. India did not have a valid boundary there. As per the materials placed before the tribunal and materials placed before this court did not provide India a de jure claim over those territories. The establishment of a police outpost and polling booth for them was not an administrative control of India over there. Therefore, claims of India over those territories were neither de jure nor de facto. 2. It held, the ruling of Inre Berubari Union and Exchange of Enclaves11, the executive power of government not extend to the cession of Indian territories to foreign countries. It can only be done by constitutional amendments. It still stands. 3. Further, the ruling of Ram Kishore Sen and Ors v. Union of India and Ors12 (The second Berubari case), transferring of territories which are temporarily controlled by India but not legally belonged to India does not require any constitutional amendments. It also still stands. 4. The Hon’ble Supreme Court ruled in this case as, previous rulings of this apex court are valid and still stand. This case is not the kind of those cases. The present case is only a case of demarcation of boundaries between two governments. The places mentioned as part of Indian territories by petitioners were neither de jure nor de facto territories of India. Therefore, it was not a cession of Indian territories because those territories were not belonged to India. So, there was no need for the constitutional amendments for the implementation of awards. 5. The court further observed that the claims of petitioners over those places exercise rights to move freely throughout the territory of India under Article 19(1)(d), to reside and settle in any part of the territory of India under Article 19(1)(e) and to hold, acquire and dispose of property under Article 19(1)(f) cannot arise because those territories were not de jure and de facto territories of India. Therefore, the implementation of the award may not cause the infringement of fundamental rights. **GUIDELINES** The Hon’ble Supreme Court held as: Any Implementation of agreement or treaty by Union under Article 73 which is like cause infringement of fundamental rights of the Indian citizens or modifies any law in force or cession of any Indian territory require the valid law of Parliament which is empowered under article 253, entry 10 and 14 of List I. Further, it held demarcation of territories without the cession of actual territories of India does not require any valid law of parliament. **OBITER DICTA** 1. The Hon’ble Supreme Court observed the background of the award. The award was passed by the tribunal which is mutually established by the two governments. The tribunal awarded the areas of Kanjarkot, Dharabanni, Chhadbet and two inlets on either side of Nagar Parkar to Pakistan. Both governments agreed to implement the award. Therefore, there was no question of validity of the award and it was not an appeal against the award. Further, the petitioners also did not bring those questions before the court. 2. The court further observed the boundary of India over there was uncertain due to changing nature of place, no one resident there and no agriculture or profession carry over there. 3. It pointed out that none of the materials which were placed before the court showed the places which were awarded to Pakistan were owned by India. Therefore, the fundamental rights guaranteed by the constitution of India are not applicable to the places which are not the Indian territories. **CONCLUSION & COMMENTS** This case considered as one of Landmark cases regarding the implementation of the treaties or agreements entered between India and foreign countries. Though the petitioners failed in their case, Court provided mandatory conditions for implementing the foreign treaties to secure the fundamental rights of citizens and Territorial integrity of India in that case. The judgment of this case remains a significant precedent to deal about the executive power of Union in boundary disputes and the implementation of international agreements. **REFERENCES** **Important Cases Referred** 1. Inre Berubari Union and Exchange of Enclaves, \[1960\] 3 S.C.R. 250. 2. Ram Kishore Sen and Ors v. Union of India and Ors, 1966 SCR (1) 430. **Important Statutes Referred** 1. The Constitution of India, 1950, Art. 1. 2. The Constitution of India, 1950, Art. 3. 3. The Constitution of India, 1950, Art. 19(1)(d). 4. The Constitution of India, 1950, Art. 19(1)(e). 5. The Constitution of India, 1950, Art. 19(1)(f). 6. The Constitution of India, 1950, Art. 32. 7. The Constitution of India, 1950, Art. 73. 8. The Constitution of India, 1950, Art. 253 9. The Constitution of India, 1950, Entry 14 of List I, Seventh Schedule. 10. The Constitution of India, 1950, Entry 15 of List I, Seventh Schedule. **Categories:** Case Analysis, Constitutional Law Cases --- ### [SUKHDEV SINGH V. BHAGATRAM](https://lawfoyer.in/sukhdev-singh-v-bhagatram/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** #### *Author: Gupta Aryan Rajesh* #### *Edited By: Aneel Meghani* **ABSTRACT** This is the Landmark case regarding the removal or termination of the employees from the corporations. In this case, three employees named Bhagat Ram, Sunil Kumar Mukherjee, and Sukhdev Singh were allegedly removed from the Industrial Finance Corporation of India (IFC), Life Insurance Corporation of India (LIC), and Oil and Natural Gas Commission (ONGC). They were not allowed to defend themselves nor given a chance to know their wrong or faults in the corporation why they were terminated and on which grounds. The major issue in this case is that the Statutory Corporations were considered a State under Article 12 of the Constitution of India and Employees can claim protection under Articles 14 and 16 of the Constitution of India. It was held that the statutory corporations come under the ambit of ‘Other Authority’ in Article 12 of the Constitution of India and their statutory provisions are binding on law. Therefore, decisions given contravene the statutory provisions that are considered void. Employees are not only allowed to get damages but are also entitled to continuance in service. ***Keywords (Minimum 5)*:** statutory corporations, removal of employees, article 14, article 16 of the constitution of India, ONGC, IFC, LIC, and nature of employment. #### **CASE DETAILS** 1. ***Judgement Cause Title / Case Name*** Sukhdev Singh vs Bhagat Ram 1. ***Case Number*** Civil Appeal No. 2137 of 1972 1. ***Judgement Date*** February 21, 1975 1. ***Court*** Supreme Court of India 1. ***Quorum / Constitution of Bench*** Justice A.N. Ray, Justice K.K.Mathew, Justice Y.V.Chandrachud, Justice A. Alagiriswami, Justice A.C. Gupta 1. ***Author / Name of Judges*** Justice K.K. Mathew 1. ***Citation*** AIR 1975 SC 1331, 1975 (30) FLR 283 1. ***Legal Provisions Involved*** Article 12, Article 14, Article 16, Article 311 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** This landmark judgment was given by the five-judge bench of the Supreme Court of India on 21st February 1975. It addresses important questions that the statutory body comes under the purview of the State under Article 12 of the constitution of India and also discusses the principle of Natural Justice. Employees of different statutory bodies were terminated or removed without reasonable reason nor were they given a chance to rectify or hear the reason for the termination. Therefore, the Principle of Natural Justice is also violated in the termination or removal of employees. **What is the Principle of Natural Justice?** Basically, principle of Natural Justice is the fundamental rule of fairness which evolved through judicial decisions and precedents. Specifically, the principle of Natural Justice is not defined separately in the Act. Key Principles of Natural Justice which is violated in this case are: - **Audi alteram partem –** which says no one can be a judge in their case. Here it means that the person who was giving the decision can’t be a judge in his case. - **Nemo judex in sua causa** – which says No one can be a judge in their case. Here it means that the person who is giving the decision can’t be a judge in his case. This case was first filed through a writ petition in the different High Courts. Two High Courts dismissed the writ petition while one allowed the writ petition and quashed the termination of the employee. The appeal was filed by special leave petition in the Supreme Court of India, where the case was transferred to the five-judge bench of the Supreme Court of India as it involved the substantial question of law relating to the interpretation of the Constitution and it also dealt with the rights of the large section of the public employment. Supreme Court held that the employees are allowed in the service with the full payment of wages from the date of dismissal from employment. The Supreme Court of India in the instant case, i.e., [*Sukhdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi and Another (1975)*](https://indiankanoon.org/doc/426032/), provided clarity about the status of the public sector companies in India under [Article 12](https://indiankanoon.org/doc/609139/) and the validity of delegated legislation under their respective statutes.1 **FACTS OF THE CASE** **Procedural Background of the Case** 1. In this case, employees from different corporations were terminated without giving them a chance for a hearing. The Industrial Finance Corporation of India (IFC) was instituted by the Industrial Finance Corporation Act, of 1948 (IFC Act) as a statutory corporation. Similarly, the Life Insurance Corporation of India (LIC) was established by the Life Insurance Corporation Act, 1956 (LIC Act) and the Oil and Natural Gas Commission (ONGC) governed by the Oil and Natural Gas Commission Act, 1959 (ONGC Act). The first employee is Bhagat Ram employed in the Industrial Finance Corporation of India (IFC), the second one is Sunil Kumar Mukherjee working in the Life Insurance Corporation of India (LIC) and the third employee is Sukhdev Sing employed in the Oil and Natural Gas Commission (ONGC). 2. Bhagat Ram filed a writ petition before the Orissa High Court under section 226 of the constitution of India challenging his removal by IFC which was allowed and quashed the termination order. Similarly, Sunil Kumar Mukherjee and Sukhdev Singh also filed a writ petition before the Patna High Court and Punjab & Haryana High Court under section 226 of the Constitution of India challenging their removal order from LIC and ONGC. Their writ petition was dismissed from both of the High Courts. Statutory corporations and the employees then filed an appeal by way of special leave petition under section 136 of the Constitution of India before the Supreme Court of India. **Factual Background of the Case** 1. Bhagat Ram was appointed as an assistant manager in the Industrial Finance Corporation of India (IFC) in 1963. After a few years of working, he was removed from service in the year 1967 without being heard. 2. Sunil Kumar Mukherjee was joined in the year 1964 by Life Insurance Corporation of India (LIC). He was terminated after four years following the internal departmental inquiry. 3. Sukhdev Singh joined in Oil and Natural Gas Commission (ONGC) in the year 1967 as a field manager. He was also dismissed from service in 1971 without an inquiry as prescribed under the regulations. **LEGAL ISSUES RAISED** 1. Are statutory corporations considered as states under the ambit of Article 12 of the Constitution of India? 2. Whether the regulations framed under the statutory act through delegation have the force of law and are binding on the parties? 3. Whether employees of the statutory corporation claim protection under Article 14 and Article 16 of the Constitution of India? 4. Whether dismissing an employee contrary to the regulation framed under the specific Act would merely entitle damages or a declaration of continuance of service? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. The counsels for Petitioner/ Appellant submitted that any order for the removal contrary to these statutes which having a force of law is void and the employees are not only entitled to damages but also entitled to the continuance of service. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that regulations were not law and contractual in nature as well as it is a matter of internal management of the corporation. Therefore they argued that the breach of these regulations would grant damages not the continuance in service to an employee. 2. The counsels for Respondent also submitted that as per Section 12 of ONGC Act as well as IFC Act and Section 23 of LIC Act, they have the power to appoint employees and regulate their service in the corporations. **RELATED LEGAL PROVISIONS** 1. **Article 12: – “***In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.*” 2. **Article 14 (Equality before law): *“****The State shall not deny to any person* *equality before the law or the equal protection of the laws within the territory of India. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”* 3. **Article 16 (Equality of opportunity in matters of public employment):** “*There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.*” 4. **Article 311 (Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State):** “*No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges*.” **JUDGEMENT** **RATIO DECIDENDI** 1. The Supreme Court of India referred to specific sections of the IFC Act, LIC Act, and ONGC Act to determine the statutory provisions that are violative of the order given by the corporations. Sections 31 and 32 of the ONGC Act, Section 43 of the IFC Act, and Sections 48 and 49 of the LIC Act talk about the Power to Make Rules and Regulations regarding the conditions of service of the employees. Statutory corporations such as IFC, LIC, and ONGC are considered as states under the ambit of Article 12 of the Constitution of India and they are also bound to follow the statutory provisions. Therefore these corporations are responsible for the nonregulation of the provisions of the Statutory Acts and are also bound to follow the provisions of Articles 14 and 16 of the Constitution of India. 2. This case is Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors. (1967) was taken into consideration to determine that the Statutory Corporation falls under Article 12 of the Constitution of India. The Supreme Court in the case held that the authorities created by the constitution or statutes have the power to make rules, laws, and regulations considered as State under the Article 12 of Constitution of India.6 3. Regulations framed under the IFC Act, LIC Act, and ONGC Act have the force of law and hence they are bound under the Constitution of India. Any action taken by these corporations against the compliance of Statutory Acts is enforceable in a court of law. The order was given against the statutory provisions so employees are not only entitled to damages but also required for the continuance in service. **GUIDELINES** 1. In this case In this case court held that the statutory corporations are considered as states under the ambit of Article 12 of the Constitution of India. Therefore in their internal matters, they are bound to follow the Fundamental Rights such as the principle of Natural justice of Natural justice. **OVERRULING JUDGMENTS** No, any past judgment was overruled in this case. **CONCLUSION& COMMENTS** This case was a landmark case in the preview that the statutory corporation is also considered a State under the head of “Other Authorities” in Article 12 of the Constitution of India and they are also bound to follow the rules framed under the Act of that statutory corporation. This case will be taken as a reference in the matter of allegedly removal or termination of the employees from the statutory corporation. The court also ruled that the basic principles of fairness and natural justice must be applied when terminating employees. This case is also important in the point of view that the employee can seek protection under Articles 14, 16, and 311 of the Constitution of India. If any decision taken or order given is non-compliance with the statutory provisions by the corporations then the same decision or order is considered void. **REFERENCES** 1. **Important Cases Referred** 1. Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors. (1967) 1. **Important Statutes Referred** 1. Oil and Natural Gas Commission Act, 1959 (ONGC Act) 1. Industrial Finance Corporation Act, 1948 (IFC Act) 1. Life Insurance Corporation Act, 1956 (LIC Act) 1. 1. Constitution of India, 1950 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Dharam Dutt & Ors vs Union Of India & Ors on 24 November, 2003](https://lawfoyer.in/dharam-dutt-ors-vs-union-of-india-ors-on-24-november-2003/) **Published:** August 30, 2024 **Author:** LawFoyer **Content:** **Author: Shriya Tripathi** **Edited By: Parmar Krishna** **ABSTRACT / HEADNOTE** The Indian President issued Ordinance No. 3 of 2000 on September 1, 2000, which mirrored the provisions of an earlier Ordinance from 1990. The established legitimacy of this statute was tested through C.W.P. No. 5174 of 2000 before the Delhi High Court Following a progression of omissions and recoveries of comparable Statutes, the Bill in the long run passed as a demonstration of Parliament on September 3, 2001. By taking over the Indian Council of World Affairs (ICWA) and its properties, infringing on their freedoms of speech, expression, and association, and depriving them of property without lawful authority, the writ petitioners argued that the disputed Ordinance and subsequent Act violated their rights under Article 19(1) of the Indian Constitution. The Union of India argued that ICWA had global significance for India’s foreign policy and world affairs. However, the Society’s administration has been criticized for poor operations, financial mismanagement, and irregularities in elections. The ICWA’s reputation was damaged as a result of these issues, which prompted the adoption of the Ordinance and subsequent legislation to ensure proper administration. The question of whether the government’s takeover constituted a reasonable restriction on the petitioners’ fundamental rights and whether the legislation flouted prior judicial rulings, thereby challenging its validity, were the primary points of contention. The High Court’s judgment assessed the sensibility of the limitations forced and the authoritative purpose behind the sanctioning, taking into account the harmony between individual freedoms and public premium as outlined by sacred arrangements. ***Keywords*** - Indian Council of World Affairs Ordinance, 2001 - Societies Registration Act, 1860 - Sapru House - Entries 62 and 63 of List I of the Seventh Schedule to the Constitution of India - Writ Petition **CASE DETAILS** ***i)**Judgement Cause Title / Case Name*** Dharam Dutt & Ors vs Union Of India & Ors ***ii)**Case Number*** Writ Petition (Civil) 276 of 2001 ***iii)**Judgement Date*** 24 November 2003 ***iv)**Court*** Supreme Court of India ***v)**Quorum / Constitution of Bench*** A two-judge bench of the Supreme Court comprising Justice R.C. Lahoti and Justice Brijesh Kumar. Justice R.C. Lahoti ***vi)**Author / Name of Judges*** R.C. Lahoti, Brijesh Kumar ***vii)**Citation*** AIR 2004 SUPREME COURT 1295, 2004 (1) SCC 712, 2004 AIR SCW 147, 2004 (3) SLT 267 ***viii)**Legal Provisions Involved*** Articles 14, 19(1)(a), 19(1)(c), 19(2), 19(4) and 300A of the Constitution of India. Entries 62 and 63 of List I of the Seventh Schedule to the Constitution of India. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The Indian Council of World Affairs Ordinance, 2001, and the Indian Council of World Affairs Act, 2001, which followed, are the subject of a challenge to their constitutional validity in the case “Dharam Dutt & Ors vs Union of India & Ors,” which was decided on November 24, 2003. The candidates, Dharam Dutt, and others opposed the mandate, and the demonstration disregarded their major privileges under Articles 14, 19(1)(a), 19(1)(c), and 300A of the Indian Constitution. They argued that the government violated their rights to freedom of speech, association, and property by taking over the Indian Council of World Affairs and its properties. The case shows how Indian constitutional law conflicts with individual rights and governmental authority. **FACTS OF THE CASE** - **Procedural Background of the Case** The Indian Council of World Affairs Ordinance, 2001, which was issued by the President on May 8, 2001, was challenged in WP(C) No.276 of 2001 on June 22, 2001. The Indian Council of World Affairs Act, 2001, which received the President’s assent on September 3, 2001, replaced the Ordinance before this petition could be decided. WP(C) No.543 of 2001 was then filed on October 19, 2001, challenging the Indian Council of World Affairs Act, 2001’s constitutionality. The two petitions were recorded under Article 32 of the Constitution under the steady gaze of the High Court engaging straightforwardly to its purview to implement major privileges. In both writ petitions, the petitioners were the same, namely Dharam Dutt and others. The respondents named were the Association of India and others. During the pendency of the main writ appeal, occasions like the substitution of the mandate by the Demonstration occurred, requiring the second request against the Demonstration. The High Court heard the two petitions together as the grounds raised were indistinguishable testing the takeover of the General public and claiming infringement of crucial privileges. Its errand was to meditate upon the lawfulness of both the reproved Mandate as well as the in this way sanctioned Follow-up based on contentions introduced by the two players**.** - **Factual Background of the Case** To encourage study and research on international issues, the Indian Council of World Affairs (ICWA) was established in 1943 as a non-official, non-political, and non-profit organization. It was established at Sapru House in Delhi, which also housed the organization’s library and other amenities, and was authorized to operate by the Societies Registration Act of 1860. Sapru House was developed on two sections of land rented from the Public Authority of India in 1950-51. Up until 1987, the government gave ICWA grants. In 1990, a law was passed comprising ICWA as a legal body. The Punjab & Haryana High Court upheld this after challenging it. In 1999, the public authority dropped the ceaseless rent on the land and gave reemergence orders, which were tested in the Delhi High Court. In 2000 and 2001, similar ordinances were issued, establishing ICWA as a statutory body. Ownership of Sapru House properties was the subject of contention, as were numerous allegations of financial irregularities and improper administration against ICWA management. An extraordinary review by CAG in 2000 uncovered liabilities of Rs. 132.84 lakh and the possibility of stealing Rs. 1.39 lakhs. The Upbraided 2001 Law and 2001 Demonstration were established, prompting the documenting of the current writ petitions testing their legitimacy on grounds of infringement of basic privileges. **LEGAL ISSUES RAISED** 1. Whether the impugned Indian Council of World Affairs Ordinance, 2001, and the Indian Council of World Affairs Act, 2001 violated the fundamental rights guaranteed under Articles 19(1)(a), 19(1)(c), and 300A of the Constitution? 2. Whether the impugned Ordinance and Act fell within the legislative competence of Parliament under Entries 62 and 63 of List I of the Seventh Schedule to the Constitution declaring ICWA as an institution of national importance. **PETITIONER / APPELLANT’S ARGUMENTS-** The Petitioners’ Counsel made the following affirmation**:** **Issue 1:** Violation of Constitutional Article 19(1)(a): It was submitted by the Counsel for Petitioner that the Government has violated the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution by taking over the ICWA Society through the disputed Ordinance and Act. This means that the Government has limited the Society’s activities and its goal of encouraging discussion and research on international affairs. According to Article 19(2), the takeover amounts to an unreasonable restriction of the aforementioned fundamental right**.** **Issue 2:** Violation of Constitutional Article 19(1)(c): In addition, it was submitted by the Counsel for Petitioner that the citizens who are members of the ICWA Society are arbitrarily denied their fundamental right to freely form associations under **Article** 19(1)(c) because of the Government’s takeover of the Society through the challenged laws. This violates the right to social interaction, which cannot be restricted by Article 19(4) of the Constitution. **Issue 3:** Infringement of Article 300A of the Constitution: It was submitted by the Counsel for Petitioner that the ICWA Society had been illegally and without legal authority deprived of its private properties worth crores of rupees by transferring all of its assets to the statutory body established by the Act. This removes the properties of the general public in repudiation of the central right ensured under Article 300A of the Constitution. Fourth problem: Abuse of power: The learned counsel vigorously argued that the disputed Ordinance and Act were the result of political malice and were maliciously enacted to take control of the reputable ICWA society for unrelated purposes. This was a questionable exercise of power without legislative authority**.** **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that: **Issue 1:** Article 19(1)(a) validity: The Advice presented that the reproved Act doesn’t in any way confine the right to speak freely and articulation of the ICWA Society or its individuals under Article 19(1)(a). The general public keeps on existing as an autonomous substance with practically no limitations on its exercises or targets. Only the organization known as “ICWA” has been taken over and declared to be an organization of national importance; entries 62 and 63 of List I cover this organization in full. **Issue 2:** Legitimacy under Article 19(1)(c): The guidance further presented that the reprimanded Act has not the slightest bit denied the residents who are individuals from the general public of their entitlement to unreservedly frame relationships under Article 19(1)(c). Once more, just the organization “ICWA” has been dominated, not the general public. As a result, the aforementioned fundamental right is not violated. **Issue 3:** Article 300A Validity: The Counsels argued that the majority of the properties, including the “Sapru House” building, were primarily constructed with funds provided by the Government over time. The general public had just leasehold freedoms over the land that stood. As a result, there was no violation of Article 300A when private property was taken away. **Issue 4:** There is no malice: The Counsels vehemently denied the allegations of malicious intent and argued that the takeover was based on the recommendations of parliamentary committees to revive the organization in light of its declining standards and growing mismanagement over time. **RELATED LEGAL PROVISIONS** The Constitution of India 1950 – Article 14,19(1)(a),19(1)(c) and 300A 1. Article 14 – [\[1\]](#_ftn1)The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth 2. Article 19(1)(a) – Guarantees the right to freedom of speech and expression. 3. Article 19(1)(c) – Guarantees the right to form associations or unions.[\[2\]](#_ftn2) 4. Article 300A – States that no person shall be deprived of his property save by the authority of law.[\[3\]](#_ftn3) **JUDGEMENT** **RATIO DECIDENDI-** - The following is a summary of the case’s ratio decidendi, or legal principle, that served as the basis for the decision, based on the issues raised and analysis conducted in the judgment: simple claims of political malevolence or colorable activity of abilities are not significant in deciding the established legitimacy of regulation. - The question is whether the Legislature had the skills necessary to pass the law. According to Article 19(1)(a) and (c), freedom of speech and association does not guarantee that every association’s goal will be achieved. Accomplishing the reason for which an affiliation is framed is certainly not a basic right. - Taking over a foundation by regulation for motivations behind public significance is inside the authoritative ability given by Passages 62 and 63 of Rundown I. - If the society itself continues to function independently and without restrictions, such a takeover of an institution does not violate the fundamental rights of its members. - If the lease is terminated, properties built primarily with government funds cannot be claimed as private property by an association invoking Article 300A. - The authoritative capability of Parliament to order the reproduced regulation was not surpassed. Legislative malice or motives cannot be investigated so long as Parliament acts within its powers. - As a result, the ratio indicates that the ICWA institution’s takeover by the contested Act does not violate any Constitutional provision because it is fully covered by the legislative entries in the Seventh Schedule. **GUIDELINES** - Yes, the Supreme Court has given some guidelines while observing the issues raised in this case: - The test of reasonableness under Article 19 should be applied on a case-to-case basis considering all relevant factors like the nature of the right infringed, the purpose of the restriction, the extent of evil sought to be remedied, etc. - Freedom of association under Article 19(1)(c) does not guarantee the fulfillment of objectives of association. Associations cannot claim rights beyond what citizens enjoy. - The scope of Article 19(1)(a) cannot be expanded to include concomitant or peripheral rights. Only integral and core rights are protected. - Validity of the law restricting the association’s activities is to be tested under Article 19(1)(g) and not Article 19(1)(c) or Article 19(4). - Malafide intent or motives of legislature do not affect the validity of the law. The only test is legislative competence. - Properties constructed with government funds cannot be claimed as private under Article 300A if the lease is terminated as per law. - Takeover of the institution for national importance is valid if covered by legislative entries even if it affects the associated body/trust. - Merely replacing the ordinance with law does not make a challenge to the ordinance infructuous, if the same issues exist in both. - In determining validity, the court must balance individual rights and government interests in smooth administration. - So in summary, the case provides guidelines on the interpretation of the scope of Article 19 rights and principles to examine legislative competency and validity of laws affecting fundamental rights. **OBITER DICTA** There are a few obiter dicta or observations made by the court in the course of the judgment that were not central to the ratio decidendi: While examining the extent of Article 19(1)(a), the court mentioned its past decisions in Maneka Gandhi v Association of India (1978) and the All India Bank Workers Affiliation case (1962) to explain that the opportunity of affiliation does exclude satisfaction of affiliation’s goals as a surefire right. It saw that simple substitution of a statute by regulation doesn’t make the test to the mandate infructuous if similar issues exist in both. The legal merits of the issues must be considered. The court expounded on the twin tests set down in the past to look at legitimacy under Article 19: trial of sensibility and whether the limitation falls in statements 2–6. In applying the test of reasonableness on a case-by-case basis, it noted the significance of factors like the nature of the right, the purpose of the restriction, and the extent of evil. The ratio, on the other hand, is limited to ensuring that Parliament has the authority to take over the relevant institution without affecting the rights or activities of the associated society. During the process, no previous precedents were overturned. The observations helped with the analysis, but they weren’t necessary for the decision. **CONCLUSION & COMMENTS** In Dharam Dutt & Ors. v. Union of India & Ors., the Supreme Court reached the following conclusions: When the Act replaced the Ordinance, the challenge became unsuccessful and was dismissed without merit. The legitimacy of just the demonstration was analyzed. The demonstration falls within the authoritative ability of Parliament given under Sections 62 and 63 of Rundown I, which permits the statement of establishments as of public significance. According to Articles 19(1)(a) and 19(1)(c), the Act’s sole takeover of the ICWA institution does not in any way restrict the freedoms of the ICWA Society or its members. The general public remains unaffected. The Society’s buildings were mostly built with money from the government, so they were not private properties. Subsequently, there was no violation of Article 300A by moving properties to the new body. Legislation’s validity is determined solely by legislative competence, not by allegations of malice or political motives. The Act is subject to the permissible restrictions outlined in Articles 19(2) to 19(6) and does not impose any unreasonable restrictions on any fundamental rights. Parliament acted to the extent of its authoritative capability presented by the Constitution in establishing the upbraided Act. As a result, the petitioners’ writ petitions challenging the Indian Council of World Affairs Act were denied by the Supreme Court, which upheld the Act’s constitutionality. **REFERENCES** **Important Cases Referred-** - Maneka Gandhi v Association of India (1978) - All India Bank Employees case (1962) **Important Statutes Referred** - Constitution of India, 1950 - Entries 62 and 63 of List I in the Seventh Schedule (discussing powers on Parliament about institutions of national importance) - Articles 14, 19(1)(a), 19(1)(c) and 300A (dealing with fundamental rights) **ENDNOTES** [\[1\]](#_ftnref1) The Constitution of India, 1950, Art. 14. [\[2\]](#_ftnref2) The constitution of India ,1950, Art.19. [\[3\]](#_ftnref3) The constitution of India ,1950, Art.300A. **Categories:** Case Analysis --- ### [14th National Quiz on Indian Constitutional Law & Indian Polity by LawFoyer: Register by 14th August](https://lawfoyer.in/14th-national-quiz-on-indian-constitutional-law-indian-polity-by-lawfoyer/) **Published:** July 2, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/07/14th-quiz-poster-Medium-724x1024.png) --- [Final Answer Key](https://lawfoyer.in/wp-content/uploads/2024/08/Final-Answer-Key.pdf) ## **Clarifications in Answer Key (Released)** **Claimed Question Number****Previous Answer Key****Updated Answer Key**Q 46D(A & B both)- No such option present. 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(This includes time for filling the basic details like Name, email, etc.) - **Every question carries 04 marks & there will be no negative marking.** - The Result will be declared on **18th August 2024** ([www.lawfoyer.in](https://lawfoyer.in/)). --- ## Register Now --- --- **Categories:** Events, Quiz --- ### [State of Uttaranchal V. Balwant Singh Chaufal (2010) 3 SCC 402](https://lawfoyer.in/state-of-uttaranchal-v-balwant-singh-chaufal-2010-3-scc-402/) **Published:** August 24, 2024 **Author:** LawFoyer **Content:** **Author: Ishika Goyal** **Edited by: Sulesh Choudhary & Madhumita Saha** **ABSTRACT / HEADNOTE** The case of State of Uttaranchal vs Balwant Singh Chaufal & Ors revolves around the appointment of the advocate L.P Nathani as the Advocate General. The PIL was filed by the state, questioning the decision of the state regarding the qualifications in the appointment of the Advocate General that whether the criteria given is constitutional or not and for this article 165 and Article 217 of the Indian Constitution that was cited in court by petitioner. The case centered on whether Nathani should hold the office and if the age limit for the Advocate General should be adhered to. The age restriction is imposed on High Court justices by Article 217. Whereas, it implies that the age should not apply to the appointment of Advocate General, the Supreme Court said. Furthermore, the case instituted novel protocols for submitting Public Interest Litigations (PILs), resulting in notable modifications to the PIL filing process. This decision encouraged the more responsible and sincere use of PILs by streamlining the procedure for filing them and clarifying the guidelines for the Advocate General’s appointment. ***Keywords* *(Minimum 5)*:** 1. Advocate General 2. High Court - Public Interest Litigation 1. Article 165 2. Article 217 **CASE DETAILS** The case details are as the follows: ***i)* *Judgement Cause Title / Case Name***State of Uttaranchal vs Balwant Singh Chaufal & Ors. ***ii)* *Case Number***Civil Appeal Nos. 1134-1135 of 2002 ***iii)* *Judgement Date***18th January 2010 ***iv)* *Court***Supreme Court of India ***v)* *Quorum / Constitution of Bench***Justices Mukundakam Sharma, Dalveer Bhandari ***vi)* *Author / Name of Judges***Justice Dalveer Bhandari ***vii)* *Citation***AIR 2010 SC 2550, 2010 AIR SCW 1029***viii)* *Legal Provisions Involved***Indian Constitution, article 165, article 217, writ petition**INTRODUCTION AND BACKGROUND OF JUDGEMENT** In this case, the rules governing the high court’s advocate general’s nomination are in question. Even the Government of State Uttaranchal has even lodged a Public Interest Litigation (PIL) to challenge to the decision that was made by the High Court on Nathani’s appointment. The government questioned the qualifications and eligibility standards, especially the maximum age limit for these advocates’ judicial appointments. Numerous of these issues were addressed by the Supreme Court. Article 2017 states that the requirements for High Court judges should not apply to the Advocate General’s age restriction. This ruling made it clear what the Advocate General’s specific responsibilities are, guaranteeing that their appointment procedure is separate from the laws governing High Court justices. Article 165 and 217 of the Indian constitution were the most highlighted which talks about the appointment of the judge of the high court and their term of offices.This case also set guidelines for filing the public interest litigation and bringing a revolution in Pil in India. **FACTS OF THE CASE** **Procedural Background of the Case** The case does not appeal against the decision of the Uttaranchal High Court in form of a public interest litigation (PIL). **Factual Background of the Case** Advocate L.P Nathani was appointed as the Advocate General of Uttaranchal and his decision was challenged by the state in the form of Public Interest Litigation. It has been challenged under Article 165 read with Article 217 of the Constitution of India. They wrote a petition asking whether Nathan should hold the office or not. Additionally, the Article 165 and 217 deals with appointment of the Advocate General in India and it also provides guidelines and qualifications for the same which shall be followed judiciously. It was also argued that whether a person beyond the age of 62 can be the Advocate General or not. The High Court in this matter ordered that the state government shall review their decision again and report to the High Court within the time limit of 15 days. **LEGAL ISSUES RAISED** 1. Whether there is an age limit for a High Court judge to be appointed as an Advocate General? 2. whether L.P Nathani was to hold the office or not as the Advocate General? **PETITIONER’S ARGUMENTS** It was submitted by the petitioner that the Advocate General’s appointment is made at the time when the High Court Judges’ age limit is not applicable. This was debated by citing earlierrulings. Conversely, the appellant emphasized that the Advocate General should be appointed without regard to age. **RESPONDENT’S ARGUMENTS** It was showed that the respondent was not serious in the case. They did not appear for the case in the Supreme Court which resulted in court questioning the same thing regarding the appointment. This portrayed them as the non-serious party through which the case was not much in their favour. **RELATED LEGAL PROVISIONS** **ARTICLE 165: “Advocate General for the State** 1. The Governor of each State will designate an individual to serve as the State’s Advocate-General who meets the requirements to be appointed as a High Court Judge. 2. The Advocate General’s responsibilities include providing the State Government with legal advice on matters of this nature, carrying out other legal tasks as they may be delegated to him by the Governor from time to time. Furthermore, carrying out any furthermore tasks that was assigned to him by the help of the Constitution & any other law currently is in effect. 3. The Governor may decide how much money the Advocate General will get and he or she will serve in that capacity. [\[1\]](#_ftn1) ### **ARTICLE 217: “Appointment and conditions of the office of a Judge of a High Court** 2. To be eligible for appointment as a judge of the Supreme Court, an individual must be an Indian citizen and fulfill one of the following criteria: They must have either (a) held a judicial position inside the boundaries of India for a minimum of ten years or more, or (b) worked as an advocate for a High Court or two or more of these courts in succession for a minimum of ten years. [\[2\]](#_ftn2) ### **JUDGEMENT** **RATIO DECIDENDI** In this case, the Supreme Court decided in the appellant’s favour, holding that the Advocate General’s appointment age should not be limited to the High Court judges’ age limit as stated in Article 217. The Advocate General’s appointment procedures are different from those for High Court justices, the court made clear. Consequently, the Supreme Court determined that the Advocate General is not constrained by the age limitations imposed on justices of the High Court. The decision guarantees that the standards for choosing an Advocate General will remain distinct and unaffected by the laws governing the High Court. This difference acknowledges the special position & responsibilities of the Advocate General and permits more latitude in the appointment process. **OBITER DICTA** The court has also maintained that the employment of private lawsuits (PILs) have burdened the legal system excessively. Whereas, He has also pointed out that even though PILs are supposed to address matters of public interest, a lot of them are filed for frivolous or selfish purposes. This abuse backlogs the courts, causing delays and taking focus away from actual problems that need prompt solution. In order to make sure that PILs actually serve the public interest, the court stressed the need of preserving their integrity and demanded stringent oversight. The primary goal of Public Interest Litigations (PILs), which is to uphold justice in the public interest, is compromised when PILs are misused, in addition to destroying important judicial tools. **CONCLUSION & COMMENTS** The Supreme Court ruled that the duration of the sentence in Article 217 does not apply to the Advocate General. Although, This is because the Law has a specific term of the Attorney General in the third part of Article 165. Nevertheless, this implies that the Attorney General serves at the governor’s leisure. The Court further stated that the Advocate General is exempt from the salary and tenure regulations that govern Supreme Court judges. He clarified that the role of Advocate General is incompatible with the retirement age of Supreme Court judges. The court determined that this request, which surfaced as a public matter, constituted an abuse of the legal system. As a result, the application was denied and the petitioner was had to pay charges of Rs 10,000. In order to prevent judicial system misuse, the Court also suggested non-monetary penalties for PILs filed on other grounds. **REFERENCES** **Important Cases Referred** 1. Ghanshyam Chandra Mathur v. The State of Rajasthan & Ors 2. Dr Chandra Bhan Singh v. State of Rajasthan & Ors 3. M.C Mehta & Another v. Union of India & Others AIR 1987 SC 549 4. Rural Litigation an Entitlement Kendra v. State of U.P., AIR 1985 SC 652 5. Atlas Cycle Industries v. Their Workmen, 1962 Supp. (3) SCR 89 6. G.D Karkare v. T.L. Shevde, AIR 1952 Nagpur 330 **Important Statutes Referred** 1. Constitution of India (Article 165 and Article 217) 2. Public Interest Litigation **Citations:** 1. [**https://bnblegal.com/landmark/state-uttaranchal-vs-balwant-singh-chaufal-others/**](https://bnblegal.com/landmark/state-uttaranchal-vs-balwant-singh-chaufal-others/) 2. [**https://law.asia/court-cracks-down-on-abuse-of-public-interest-litigation/**](https://law.asia/court-cracks-down-on-abuse-of-public-interest-litigation/) **ENDNOTES** [\[1\]](#_ftnref1) [Article 165](https://indiankanoon.org/doc/1673997/), Constitution of India [\[2\]](#_ftnref2) [Article 217](https://indiankanoon.org/doc/1682952/), Constitution of India **Categories:** Case Analysis --- ### [Waman Rao and Ors VS. Union of India](https://lawfoyer.in/waman-rao-and-ors-vs-union-of-india/) **Published:** August 24, 2024 **Author:** LawFoyer **Content:** **Author: Jigyasa Rathore** **Edited by: Sulesh Choudhary & Madhumita Saha** **ABSTRACT / HEADNOTE:** This Judgement Waman Rao and Ors VS. Union of India, addresses the constitutional validity of the Maharashtra Agriculture Lands (Ceiling on holding) Acts, 1961, and its following amendments. The act imposes the ceiling on agricultural landholdings to promote agrarian reforms and reduce land concentration. The Hon’ble High Court, Bombay upheld the Act which asserts that doesn’t contravene the fundamental rights given in the Indian Constitution under Part III, protected under the Ninth schedule. The petitioner Challenged that the amendments created an artificial definition of the “family unit” contravening the 2nd provision of Article 31A(1) and violating Articles 14 and 19. Their argument was based on the damaging of the Fundamental rights by these provisions. On the other side, the respondents claimed that the laws are constitutionally valid, and secured by Articles 31A and 31B. This judgment declared that the legislature’s prerogative in agrarian matters, deciding that the amendments made did not damage the constitution’s basic structure. Consequently, the petition challenging the act’s validity were dismissed, reinforcing the Act’s role in facilitating the equitable land distribution in Maharashtra. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***WAMAN RAO AND ORS VS. U.O.I ***ii)* *Case Number***1156/2010 ***iii)* *Judgement Date***13th November 1981 ***iv)* *Court***Hon’ble Apex Court ***v)* *Quorum / Constitution of Bench***Hon’ble Justice Y Chandrachud, Hon’ble Justice A Sen, Hon’ble Justice P Bhagwati, Hon’ble Justice P Tulzapurkar, Hon’ble Justice Y K Iyer. ***vi)* *Author / Name of Judges***N/A ***vii)* *Citation***Waman Rao vs. U.O.I (1981) 2SCC 362***viii)* *Legal Provisions Involved***Article 14, Article 31A,B, 31C, Article 368, Section 3,4,6,9,10,11,13 of Maharashtra Agriculture Lands Act, 1961**INTRODUCTION AND BACKGROUND OF JUDGEMENT:** The Maharashtra Agricultural Land,1961 is a part of wider agrarian reforms focused on encouraging social justice and land inequalities. The act sought to limit the maximum area of agricultural land that could be owned by persons and families, as a consequence facilitating the redistribution of surplus land to homeless agriculturists. This Act also defines a “family unit” to determine the ceiling which includes the landlords, their spouse, and their children. Over time various amendments have been made to refine these definitions and modify ceiling limits. This Act has faced legal challenges on grounds of infringing fundamental rights enriched in the Indian Constitution specifically Articles 14 and 19. The petitioner argued that the amendments created artificial definitions of “family units” and weakened the basic structure of the Indian constitution. The Hon’ble Bombay High Court was tasked with assessing the constitutionality of the Act and its amendments, particularly in light of Articles 31A and 31B, which protect agrarian reform laws included in the Ninth Schedule of the Constitution. This ruling is significant not merely for its connotation on land reform but also for its simplification of the relationship between legislative actions and constitutional provisions. It reinforces the legislature’s authority to enact laws aimed at social welfare while navigating the complexities of individual rights. **FACTS OF CASE** **Procedural Background of the Case** 1. Initiated: The case was initiated by 2606 petitioners who filed writ petitions on the constitutional validity of the Maharashtra Agricultural Land Act, 1961, and its subsequent Amendments. The petitioners contended that the amendments in the act violated their fundamental rights under the Constitution of India. 1. Filing of Writ Petition: The writ petition, numbered Writ Petition No. 1156/2010, was filed in the Hon’ble Bombay High Court. The petitioners sought comfort against the provisions of the Above-said act that they alleged enforced unreasonable restrictions on their fundamental rights to retain and maintain agricultural land. **Factual Background of the Case** The factual background of the case encircling the Maharashtra Agricultural Lands Act, 1961, centres on the legislative goal to site land inequality in Maharashtra by striking ceilings on agricultural landholdings. Decreed to foster equitable distribution, the Act defines a “family unit” to identify the ownership limits, encompassing the landholder, their spouse, and their dependent children. Over time, several amendments have been presented, particularly altering the definition of the “family unit” and modifying ceiling limits, which incited legal conflicts between individuals and families. The petitioners disputed that these reforms violated their fundamental rights under Articles 14 and Article19 of the Indian Constitution and that the definitions were unbiased and authoritarian. However, the State of Maharashtra shielded the above-mentioned Act as a necessary step for social justice and agrarian reform, highlighting its integration in the Ninth Schedule, which assigns it immunity from judicial oversight. The case was placed before the Hon’ble Bombay High Court, where the court was tasked with evaluating the constitutional review of this Act and its modifications, eventually addressing the critical balance between the state’s role in fostering equitable territorial arrangements and individual owernship rights. **LEGAL ISSUES RAISED** 1. Constitutionality and Rights Violations: Petitioners interrogated the constitutional legitimacy of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, and bickered its provisions, particularly the descriptions of the “family unit,” infringed fundamental rights under Articles 14 (Equality Rights) and 19 (freedom to purchase property/land), leading to authoritarian and unbiasness outcomes. 2. Judicial Inspection and Parliamentary Privilege: The case evoked problems in connection with the Act’s consolidation in the Ninth Schedule, with petitioners resisting that this protection should not protect laws that violate basic human rights, spotlighting the need for judicial inspection to endorse the core structure of the Constitution of India. **PETITIONER / APPELLANT’S ARGUMENTS:** 1. The counsels for Petitioners/Appellants submitted and argued that the amendments created an artificial ‘family unit’ and violated the 2nd provision to Article 31A(1). 2. They asserted that the laws violated their basic human rights under Articles 14 and 19 of the Indian Constitution. 3. The petitioners challenged that Articles 31A and 31B infringe the core structure of the Indian Constitution. **RESPONDENT’S ARGUMENTS** 1. The Respondent’s counsel presented and bickered that the respondents maintained that the impeached statutes were sheltered under Articles 31A and 31B, which safeguard statutes in the 9th Schedule from constitutional dilemmas. 2. They argued that the legislature had the authority to define the policy related to agrarian reforms without judicial interference. 3. The respondents asserted that the amendments aimed to facilitate agrarian reform and did not violate fundamental rights. **RELATED LEGAL PROVISIONS** *Maharashtra Agricultural Lands Act, 1961:* 1. *“**Family Unit**: Includes the landholder, their spouse, and their children for deciding the ceiling.”* 2. *“**Determination of Surplus Land**: Establishes a process for identifying land that exceeds the prescribed ceiling.”* 3. *“**Acquisition of Surplus Land:** Grants the government authority to acquire surplus land and situate it accordingly.”* 4. *“**Compensation:** Outlines the compensation mechanism for acquiring land.”* 5. *“**Penalties:** Specifies penalties for non-compliance with the provision of the Act.”[**\[1\]**](#_ftn1)* ***Articles of the Indian Constitution:*** ***“Article 14:*** *Assures the right to equality before the law and equal defence of the laws”.* ***“Article 19:*** *Safeguards the freedom of speech and expression, assembly, association, movement, residence, and profession”.* ***“Article 31A:*** *Safeguards against the acquisition of property without compensation, specifically for laws aimed at agrarian reform**”**.* ***“Article 31B:*** *Shields laws included in the Ninth Schedule from judicial review, protecting them from challenges based on fundamental rights**”**.[**\[2\]**](#_ftn2)* **JUDGEMENT** **RATIO DECIDENDI** In its judgment regarding the Maharashtra Agricultural Lands Act, 1961, the court upheld the validity of the Act, reaffirming the state’s authority to enact agrarian reform laws aimed at equitable land distribution and promoting social justice. It ruled that while property rights are fundamental and it is subject to reasonable restrictions to the public interest, deeming the definitions and provisions of the Abovementioned Act, including the “family unit,” as necessary for achieving its purpose. The Hon’ble Court verified that the laws included in the Ninth Schedule enjoy immunity from judicial review when serving a legitimate state interest and not infringing on the Constitution’s basic structure. Ultimately, the court emphasized the need to balance personnel property rights with the state’s interest in social welfare, justifying the Act’s restrictive measures in light of broader societal objectives. **OVERRULING JUDGMENTS** 1. *“Indira Gandhi v. Raj Narain (1975)”,* 2. *“Keshavananda Bharati v. State of Kerala (1973)”* [***\[i\]***](#_edn1) **OBITER DICTA** In the judgment concerning the “*Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961*”, the court’s obiter dicta highlighted several important considerations regarding the balance between individual rights and state interests. The court illustrates that while property rights are fundamental, they must be viewed within the context of social justice and the need for equitable land distribution. It emphasized the role of the state in addressing historical inequalities and the necessity of legislative measures to achieve this goal. In addition, the Hon’ble Court remarked on the importance of public welfare in justifying the limitation on property rights, proposing that such measures are essential for encouraging a more equitable society. These observations, while not central to the decision, provide valuable insights into the court’s prospect on the broader implications of agrarian reform and the responsibility of state in promoting social equity. **CONCLUSION & COMMENTS** The judgment on the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, has been widely regarded as a significant affirmation of the state’s role in promoting social justice through agrarian reform. Legal scholars and higher judicial personnel have praised the court for balancing individual property rights with the imperative of equitable land distribution, recognizing the historical context of land ownership in India. Comments from legal experts highlight the judgment’s reinforcement of the principle that [\[ii\]](#_edn2)legislative measures aimed at social welfare are essential for addressing systemic inequalities. Furthermore, the decision has been seen as a vital precedent that underscores the importance of the Ninth Schedule in protecting laws designed for public benefit from judicial scrutiny, thereby enhancing the state’s capacity to implement progressive reforms. Overall, the judgment is viewed as a landmark ruling that reflects a commitment to both constitutional values and the pursuit of social equity. **REFERENCES** **Important Cases Referred** *i.“Indira Gandhi v. Raj Narain (1975)”,* *ii “Keshavananda Bharati v. State of Kerala (1973)”* **Important Statutes Referred** 1. As mentioned above. **ENDNOTES:** [\[1\]](#_ftnref1) *. Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961”* [\[2\]](#_ftnref2) The Indian Constitution. [\[i\]](#_ednref1) https://indiankanoon.org/doc/1124708/ [](#_ednref2) **Categories:** Case Analysis --- ### [Kehar Singh And Another Vs. Union Of India & Another, (1989) AIR 653](https://lawfoyer.in/kehar-singh-and-another-vs-union-of-india-another-1989-air-653/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** **Author:- Shadrack Chai Chivatsi, a law student at University of Nairobi** **Edited by:- Rutvij Vyas, a law student at the Faculty of Law, GLS University** **ABSTRACT / HEADNOTE** - In this case, the Indian Supreme Court clearly discussed the President’s power under Article 72 of the Constitution of India to grant pardons in a Criminal offence (murder). Kehar Singh (plaintiff) was found guilty of participating in the assassination of Prime Minister Indira Gandhi. He was given a death sentence after going through all the valid legal processes. Filed his plea for clemency but it was rejected by the President of India. The main legal issue was whether the President’s denial of the mercy plea could be legally contested and if the President had a responsibility to hold a face-to-face hearing before making a decision. The Court’s ruling confirmed that the President’s authority under Article 72 is a constitutional obligation that courts cannot nullify solely based on the decision unless there is clear evidence of excessively capricious, vindictive, or unlawful behaviour. They stressed that the President has total discretion in this matter and cannot be reviewed by the judiciary. The Court also held that the President does not have to conduct a face-to-face meeting before deciding on a mercy plea. Although there is a common custom in place, it does not result in a legal requirement. In the end, the Court confirmed the President’s choice to deny Kehar Singh’s plea for mercy. This ruling confirmed the extensive and indisputable scope of the President’s pardoning authority as outlined in the Indian Constitution. ***Keywords* *(Minimum 5)*:** Mercy Petition, Mala Fides, Judicial Review, President Power of Pardon**,** Assassination, Death Penalty. - **CASE DETAILS** - ***Judgement Cause Title / Case Name*** **Kehar Singh And Another vs Union Of India And Another**- ***Case Number*** NA- ***Judgement Date*** 16 December, 1988- ***Court*** **Supreme Court of India**- ***Quorum / Constitution of Bench*** R.S. Pathak, E.S. Venkataramiah, Misra Rangnath, N.D. Ojha- ***Author / Name of Judges*** R.S. Pathak- ***Citation*** 1989 AIR 653, 1988 SCR SUPL. (3)1102, AIR 1989 SUPREME COURT 653, 1989 (1) SCC 204, 1988 (4) JT 693, 1989 CURCRIJ 108, 1989 SCC (CRI) 86, (1989) EASTCRIC 304, (1989) PAT LJR 23, (1989) ALLCRIC 142, (1989) BLJ 463, (1989) 1 CRIMES 238, (1989) 37 DLT 171- ***Legal Provisions Involved*** Constitution of India, Indian Penal Code, Case Laws. - **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Presidential Pardon is a constitutional right of India provided under Article 72 of the Indian constitution. However, it is not absolute and it is exercised with caution without interfering with the autonomy of separation of powers doctrine. The issue of separation of power has been in contention for a very long time. Who has more decisive power than who? Lord Acton alluded to, perhaps one of the earliest and most influential statements in political and legal thought. He conceives that power tends to corrupt an absolute power corrupts absolutely. - **FACTS OF THE CASE** - **Procedural Background of the Case** - - - - - Kehar Singh was convicted and sentenced to death by the trial court for his involvement in the assassination of Prime Minister Indira Gandhi. - Kehar Singh appealed his conviction and sentence to the Supreme Court, but the appeal was dismissed. - Kehar Singh then filed a Review Petition in the Supreme Court, which was also dismissed on September 7, 1988. - After the Review Petition was dismissed, Kehar Singh’s son filed a Writ Petition before the Supreme Court, which was also dismissed. - On October 14, 1988, Kehar Singh’s son presented a petition to the President of India seeking a pardon for Kehar Singh under Article 72 of the Constitution. - **Factual Background of the Case** - Kehar Singh was convicted and sentenced to death under Section 120-B (criminal conspiracy) read with Section 302 (murder) of the Indian Penal Code, in connection with the assassination of the then Prime Minister of India, Indira Gandhi. - Kehar Singh’s appeal against the conviction and sentence was dismissed by the Supreme Court. His review petition was also dismissed. - Kehar Singh’s son later filed a petition before the President of India under Article 72 of the Constitution, seeking a pardon for Kehar Singh on the ground that the evidence established his innocence and the court’s verdict was erroneous. - **LEGAL ISSUES RAISED** - Whether the President can enter into the merits of a case decided finally by the Supreme Court? - Whether the petitioner is entitled to an oral hearing from the President in a petition invoking the powers under Art. 72? - **PETITIONER/ APPELLANT’S ARGUMENTS** - The learned counsels for Petitioner submitted that to prevent an arbitrary exercise of power under Art. 72 this Court should draw up a set of guidelines for regulating the exercise of the power. - According to counsel for the petitioner, there was sufficient indication in the terms of Art. 72 and in the history of the power enshrined in that provision as well as existing case laws that were binding, and also specific guidelines needed not be spelled out. - They further argued that, it was not possible to lay down any precise, clearly defined and sufficiently channelized guidelines, and the power under Article 72 was of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. They also agreed to the fact that it is of great significance that the function itself enjoys a high status in the constitutional scheme. - **RESPONDENT’S ARGUMENTS** - The learned counsels for Respondent submitted that the President had not declined to consider the evidence presented during the criminal case. However, the court did not agree with this assertion based on the contents of the petition and the copies of the oral evidence provided. - The counsel’s argument was challenged by the court’s interpretation of the documents, indicating that the President had not effectively considered the evidence from the criminal case in the context of the pardon petition under Article 72 of the Indian Constitution. - **RELATED LEGAL PROVISIONS** **Constitution of India** - **Article 72** , “This Article deals with the President’s power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.” **Case Laws** - ***D. Choudhary v. Union of India, 1991 Supp (1) SCC 600:*** This case is cited for the proposition that the exercise of the President’s power under Article 72 is not open to judicial review on the merits. - ***Maru Ram v. Union of India, (1981) 1 SCC 107***: This case is cited for the principle that no guidelines need to be laid down for the exercise of the President’s power under Article 72. - ***Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161***: This case is cited with regard to the scope of judicial review of the President’s power under Article 72. **Indian Penal Code** - **Section 120-B**: This section deals with criminal conspiracy. It states that “Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, \[imprisonment for life\] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” - **Section 302**: This section deals with the offense of murder. It states that “Punishment for murder.— Whoever commits murder shall be punished with death, or \[imprisonment for life\], and shall also be liable to fine.” - **JUDGEMENT** - **RATIO DECIDENDI** - The Supreme Court held that the President’s power under Article 72 of the Constitution to grant pardons, reprieves, etc. is a constitutional responsibility that cannot be interfered with by the courts on the merits. - The court reiterated that the President’s discretion under Article 72 is unfettered and not subject to judicial review, except on limited grounds of arbitrariness, mala fides, or unconstitutionality. - The Supreme Court rejected the argument that the President should have granted an oral hearing before deciding the mercy petition, stating this was not required by the “well-established practice” regarding such petitions. - The court upheld the President’s decision to reject the mercy petition filed on behalf of Kehar Singh. - - **OBITER DICTA (IF ANY)** - The Supreme Court observed that the President’s power under Article 72 extends to cases where the judicial process has come to an end. - The court noted that the President can take into account several factors, including the nature of the crime, the background of the convicted person, and the circumstances of the case, while deciding on a mercy petition. - The Supreme Court acknowledged the gravity of the crime committed by Kehar Singh in the assassination of the Prime Minister. - **CONCLUSION & COMMENTS** “And it is of great significance that the function itself enjoys high status in the constitutional scheme. The order of the President cannot be subjected to judicial review on its merit”. In Epuru Sudhakar Case the immunity of the pardoning power of governor from judicial review came up. “In every government there are three sorts of power: the legislative; the executive in respect of things dependent on the law of nations; and the executive in regard to matters that depend on civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws and amends or abrogates those that have already been enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.” The President’s dedication to ensuring the law is applied equally deserves acknowledgment. This fundamental legal principle guarantees that every person, regardless of their status or rank in society, undergoes the same legal processes and consequences for their behaviour. This is especially significant in cases of possible human rights violations, which frequently arise from authorities abusing their power. - **REFERENCES** **Categories:** Case Analysis --- ### [COMMUNIST PARTY OF INDIA(M) VS BHARAT KUMAR & ORS AIR (1998) 1 SCC 201](https://lawfoyer.in/communist-party-of-indiam-vs-bharat-kumar-ors-air-1998-1-scc-201/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** Auhtor: Gopika Khatri,UNIVERSITY OF PETROLEUM AND ENERGY STUDIES. Edited By: Pooja, Rayat College Of Law,Railmajra (Affiliated to Panjab University, Chandigarh). **ABSTRACT / HEADNOTE** In the landmark case of the Communist Party of India (Marxist) vs. Bharat Kumar & Ors (1997), the Supreme Court of India addressed the constitutional validity of organizing and enforcing “bandhs” (general strikes). The core issue revolved around whether such actions infringed upon the fundamental rights of citizens, particularly the right to freedom and livelihood. The Court held that bandhs, which forcibly prevent citizens from engaging in their daily activities, violate fundamental rights enshrined in Articles 19(1)(a) and 21 of the Constitution, which guarantee freedom of speech and expression and protection of life and personal liberty, respectively. The judgment emphasized that while peaceful protests are permissible, the coercive nature of bandhs, causing widespread disruption and economic loss, cannot be justified under any circumstances. Consequently, the Court affirmed that state governments have the authority to impose reasonable restrictions to prevent such disruptions and protect public order. This decision marked a significant step in balancing the right to protest with the need to maintain public order and protect individual rights, setting a precedent for the regulation of political activities in India. ***Keywords: –* BANDH, FREEDOM OF SPEECH EXPRESSION, PUBLIC ORDER, RIGHT TO LIFE AND PERSONAL LIBERTY, FREEDOM OF MOVEMENT** **CASE DETAILS** ***Judgement Cause Title / Case Name*** The Communist Party Of India(M) vs Bharat Kumar&Ors ***Case Number*** (1998)1SCC201 ***Judgement Date*** 12/11/1997 ***Court*** THE SUPREME COURT OF INDIA ***Quorum / Constitution of Bench*** Three-judge bench of the S.C. comprising of J.S. Verma, C.J., B.N. Kirpal and V.N. Khare JJ. heard the present case (appeal). ***Author / Name of Judges*** Justice B.N. KIRPAL, Justice V.N. KHARE ***Citation*** \[(1998) 1 SCC 201: AIR 1998 SC 184\] ***Legal Provisions Involved*** Article19(1)(a),Article19(1)(b),Article19(1)(c),Article21,Public order and governance **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Civil disobedience hartals and bandhs are common in India because they are recognized as well well-known method of expressing attention of gov on specific demands made by the community and compelling the government to give in to the demands. **According to this case asking for and enforcing a bandh is illegal, as Striking or Hartal.** **FACTS OF THE CASE** **Procedural Background of the Case** - Initiation of the case: – The legal proceedings were initiated by Bharat Kumar and others who filed a public interest litigation. - High court proceedings: – The legality of the bandh called by political parties in the context of their impact on public life and public property, was before the Kerala High Court. - Judgement by Kerala High Court: – They ruled that bandhs are unconstitutional as they infringe on the fundamental rights of citizens, particularly the right of freedom of movement, and conduct business. - Appeal to the Hon’ble Supreme Court: – CPM and others knocked on the doors of the Supreme Court and challenged the order of Kerala High Court proceedings in the Supreme Court. **Factual Background of the Case** - In this case, the Petitioners were two private individuals and the Chambers of Commerce in the State of Kerala. The State of Kerala, Director General of Police and five registered All India political parties were made respondents. This was on the ground that bandhs should be held unconstitutional as they violate Articles 19 and 21 of the Constitution and also because they are inconsistent with the Directive Principles of State Policy and the Fundamental Duties laid down in the Constitution. The petitioners also prayed that the calling and enforcing of bandhs should be declared a crime under the Indian Penal Code. - The Kerala High Court held that the calling for a bandh by any association, organisation or political party and its enforcement, is illegal and unconstitutional. The court also held that the groups that organize and carry out these bandhs are accountable for paying back the government, the general public, and private citizens for any losses they incur as a result of the destruction of both public and private property. In a decision that was upheld on appeal, the Supreme Court simply stated that the High Court’s reasoning was sound and that their intervention was not required. **LEGAL ISSUES RAISED** - Whether call for a bandh is distinctive from the call for a strike or a Hartal? - Whether there exists a fundamental right of political parties to call or enforce a Bandh under Article 19(1)(a) and (b) of the Constitution? - Whether calling or enforcement of a bandh infringes Articles 19(1)(g), 19(1)(d) and 21 of the citizens? **PETITIONER/ APPELLANT’S ARGUMENTS** - Counsel for the petitioners argued that the calling of a bandh by the political parties must necessarily result in a blanket imposition of various restrictions upon the rights of the citizens under Articles 19(1)(a), 19(1)(d) and 21 of the Constitution. Citizens are equally circumscribed in their right to pursue their avocations. - Bandhs, if observed are a loss of a day of production and hence the economy of the country. They further argued that the political parties cannot assert their right to call bandhs and strikes to protest whatever they want to as their fundamental right under Article 19(1) since it impinges on the fundamental rights of the other citizens on the whole. They further argued that the political parties cannot also seek their right to strike and bandhs under Article 19(1) as fundamental rights while ignoring the fundamental rights of other citizens. However, this right does not give a freeway to political parties to exercise the same in any way, in as much as which renders the fundamental rights of others violated. - Further, they argued that political parties cannot exercise their “right to bandhs and strikes as part of their fundamental rights under Article 19(1) at the expense of the fundamental rights of the other citizens. Related to this there is a corollary: This does not mean the political parties have a freeway to do so, in as much as they do this their fundamental rights are violated consequently. A bandh call curtails the freedom of movement for the general population and thus should be made illegal, they argued. They further submitted that when a bundh is called, it necessarily means that there would be destruction to property, safety of human lives and other things done either impliedly and/or expressly can ensue on the streets which thereby impairs the citizen in the free enjoyment of their Fundamental rights under Article 19(1)(a), (d), and (g) and Article 21. **RESPONDENT’S ARGUMENTS** - The counsel on behalf of the appellant in this case contended that the right to call for or holding of a bandh is a fundamental right protected under Article 19(1)(a) and (b) of the Constitution and any restriction on the same would amount to a violation of the fundamental rights of the political parties or of every citizen comprising that party, in this case. - Moreover, they also disputed and denied the respondent/petitioner’s assumption that all bandhs expressly call for violence as such assumption is general and lacks logical basis. - They contended that the mere calling of a bandh for peaceful purposes cannot be declared unconstitutional or illegal. - Furthermore, they argued that only the State had the authority to restrict the freedoms granted under Article 19 via the imposition of reasonable restrictions. Therefore, the Court has no authority to do the same. - The appellants further contended that Article 19(1)(a) grants to every citizen a fundamental right to strike, protest and the right to civil disobedience. **RELATED LEGAL PROVISIONS** - *“Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.”* - *“Article19(1)(b): All citizens shall have the right to assemble peaceably and without arms.”* - *“Article19(1)(c): All citizens shall have the right to form associations or unions or co-operative societies.”* - *“Article19(3): Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.”* - *“Article19(1)(d): All citizens shall have the right to move freely throughout the territory of India.”* - *Article 19(4): Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.* - *Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.”* **JUDGEMENT** **RATIO DECIDENDI** - The court granted leave to proceed the case and the arguments presented by Mr Harish Soli J. Sorabjee representing the appellant and Mr. Mathai M. Paideday who is the legal counsel for the respondents. - By keeping in view, The Public Order and Governance, Right to Life, Reasonable Restrictions and Natural Justice. The High Court held that bandhs are unconstitutional because they violate the fundamental rights of the citizens. **OBITER DICTA (IF ANY)** - The primary focus of the case was on the legality of bandhs that they are unconstitutional as they violate the fundamental rights of citizens, such as the right to freedom and the right to carry on any trade or business. **CONCLUSION & COMMENTS** The Supreme Court of India’s ruling in the case of the Communist Party of India (Marxist) vs. Bharat Kumar & Others (1997) marked a significant judicial stance on the issue of bandh calls and their impact on public life. The Court concluded that bandhs, which involve the coercion of citizens to stop their activities and result in the shutdown of services, violate fundamental rights, particularly the right to freedom of movement and the right to carry on trade and business. The judgment emphasized that while the right to protest is essential in a democracy, it must not infringe upon the rights of others. The ruling reinforced the need for balancing political expression with public order and individual freedoms. It also highlighted the judiciary’s role in safeguarding constitutional rights against actions that disrupt the societal order and infringe upon personal liberties. This landmark decision has since served as a precedent in addressing similar issues of public disruption caused by political activities in India. **REFERENCES** - https://legalvidhiya.com/the-communist-party-of-india-m-vs-bharat-kumar-ors - https://frontline.thehindu.com/the-nation/article30193253.ece - https://indiankanoon.org/doc/1199182 - https://indiankanoon.org/doc/1218090/ **Important Cases Referred** - Railway Board v. Niranjan Singh 1969 AIR 9667 - Bandhua Mukti Morcha v. Union of India 1984 AIR 8028 - A.K. Gopalan v. State AIR 1950 SC 279 - Saghir Ahamad v. State AIR1961 ALL 507 10 - Maneka Gandhi v. Union of India AIR 1978 SC 59711 **Important Statutes Referred** - CONSTITUTION OF INDIA: – - Article19(1)(a), (b), (c), (d), - Article 21, - Article 32 - Article 226 **Categories:** Case Analysis --- ### [Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746](https://lawfoyer.in/francis-coralie-v-union-territory-of-delhi-air-1981-sc-746/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** **Author: Shalini Dhyani, Law Student at (Vasudev College of Law, Haldwani, Nainital**) **Edited By: Naman Jain, Law Student at Galgotias University** **ABSTRACT** The protection of human rights is one of the core principles of Article 21 of the Constitution of India. Article 21 has been interpreted many times by the judiciary which has increased its scope. It includes the right to life with dignity. The right to life is not about mere animal existence or just physical survival but a life that must be greeted with dignity one cannot arbitrarily take away the right of another person. This case also deals with the prisoner’s right to life with dignity along with their detention. Preventive and punitive detention under article 22 is described in this case helps in identifying the difference between these two detentions and also considers the rights of the detained person. This case maintained the legacy of the Maneka Gandhi vs Union of India case while upholding the golden triangle that articles 14, 19, and 21. The case is again an interpretation of Article 21 and complies that Article 22 must be complied with Article 21. **Keywords:** Article 21, Preventive detention, The Constitution of India, Punitive detention, Rights of detained. **CASE DETAILS** **i) Judgement Cause Title / Case Name**Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746 **ii) Case Number**Writ Petition No. 3402 of 1980 **iii) Judgement Date**13 January 1981 **iv) Court**The Supreme Court of India **v) Quorum / Constitution of Bench**Justice P.N. Bhagwati and Justice S. Murtaza Fazal Ali. **vi) Author / Name of Judges** Justice P.N. Bhagwati **vii) Citation**1981 (1) SCC 608**viii) Legal Provisions Involved**Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, Rule 559A and 550 of the Punjab Manual of the Superintendence and Management of Jails, and the Constitution of India Act 1950.**INTRODUCTION AND BACKGROUND OF JUDGEMENT** *“What are we having this liberty for? We have this liberty to reform our social system, which is full of inequality, discrimination, and other things, which conflict with our fundamental rights”* **B.R. Ambedkar[\[1\]](#_ftn1)** Fundamental rights are the basic human rights that have been incorporated into the Constitution of India. Part III of the Constitution of India deals with the fundamental rights. In the constitution, certain rights are mentioned explicitly. Judicial rulings, however, shaped some rights. Implied fundamental rights describe them. There can be no legislation passed that will handle all the essentials since they might not be enough to deal with what’s to come. On occasion, they even leave a void, which the idea of necessary implications sought to address. Consequently, the Supreme Court has emerged, in response to changing times and circumstances, to uphold these implicit fundamental rights, which are not explicitly stated in the Constitution.[\[2\]](#_ftn2) Article 21 “No person shall be deprived of his right to life and personal liberty except according to procedure established by law”[\[3\]](#_ftn3) The right to life and personal liberty under Article 21 of the Constitution of India is one of the important rights that has been interpreted by the judiciary several times in matters to widen its scope. It not only includes the right to life but also several rights such as the right to sleep, the right to a speedy trial, and the right to health, etc. In **Maneka Gandhi vs Union of India[\[4\]](#_ftn4)** article 21 has been interpreted especially the term ‘personal liberty’. Article 21 does not override Article 19, and the Supreme Court held that Article 21 and other parts of Part III of the Constitution must be applied to any legislation that restricts a person’s freedom. The Court established the Golden Triangle, which states that all rights guaranteed by Part III of the Constitution must be viewed in conjunction with one another and that no legislative act may violate any right guaranteed by Part III. Additionally, the Court granted the discretion to the judiciary to broaden the scope of the right to life as outlined in the Constitution to encompass several unenumerated rights, such as those of inmates, the safeguarding of women and children, and the preservation of the natural environment.[\[5\]](#_ftn5) The right to life and personal liberty does not include mere animal existence rather it incorporates the right to life with human dignity. This case also emphasizes the fundamental rights and legal rights available to detain a prisoner which are not deprived due to his incarceration. **FACTS OF THE CASE:** Francis Coralie, the petitioner was a British national and she was arrested and detained at the Tihar jail (central jail) as she was attempting to smuggle hashish out of the country. She was detained as per an order dated 23rd November 1979 issued under section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (COFEPOSA Act). A criminal was brought against her regard she challenged her detention by issuing the writ of habeas corpus through a petition but her petition was dismissed or rendered by the court through a judgment dated 27th February 1980 and as a result, she remained to be under detention in the central jail Tihar. The petitioner had tremendous hurdles in securing interviews with her attorney and family members while under arrest. Her daughter and sister were only allowed to meet her once a month, and she was not allowed to meet her daughter more frequently. The petitioner was facing a criminal procedure for attempting to transport hashish out of the country. To defend her, she needed to visit her lawyer. However, her lawyer struggled to arrange an interview due to the need for a prior appointment with the District Magistrate, Delhi, and the presence of a Customs Officer nominated by the Collector of Customs. This approach created tremendous hardship and trouble, and even after gaining an appointment, her lawyer could not have an interview with her. The petitioner was essentially denied the option of an interview with her counsel and her daughter.[\[6\]](#_ftn6) This restriction on interviews was established by the Prison Authorities by article 3 (b) sub-clauses (i) and (ii) of the Conditions of Detention handed down by the Delhi Administration under an Order dated 23rd August 1975 issued in exercise of the authority conferred under section 5 of the COFEPOSA Act. Thus, under Article 32 of the Constitution of India she filed a writ petition that challenges the constitutional validity of section 3(b) sub-clauses (i) and (ii) of the conditions of detention order stating that this section is violative of Article 14 and 21 of the constitution of India as it is unreasonable and arbitrary and further, she pleaded before the Administrator of the union territory of Delhi and Superintendent of the central jail, Tihar, to allow her to communicate with her counsel and family members. **LEGAL ISSUES RAISED** 1. Whether clauses 3(b)(i) and 3(b)(ii) of the Conditions of Detention Order constitutionally valid or not as it is violative of articles 14 and 21 of the Constitution of India? 2. Does preventing the detained or arrested person from communicating with his lawyer or family member constitute a violation of Article 22 of the Indian Constitution?[\[7\]](#_ftn7) 3. Whether Preventive detention is different from Punitive Detention? 4. Whether a person preventively confined in a prison have any rights that he can enforce in a Court of law?[\[8\]](#_ftn8) **ARGUMENTS ON THE BEHALF OF THE PETITIONER**: - The petitioner argued that allowing family interviews only once a month was discriminatory and unreasonable, given that under-trial prisoners were permitted to interview with friends and family twice a week under Rule 559A and convicted prisoners were allowed to interview with friends and family once a week under Rule 550 of the Manual for the Superintendence and Management of Jails in the Punjab. Additionally, the petitioner argued that Articles 14 and 21 were violated by the arbitrary and unreasonable necessity of a previous appointment for the interview and the presence of a Customs or Excise Officer at the interview. Article 22 of the Constitution guarantees the detenu the right to choose and be defended by a lawyer of his choosing. Consequently, she was entitled to the opportunity to speak with any attorney he wished to consult or to represent him in court. **ARGUMENTS ON THE BEHALF OF THE RESPONDENT:** Respondent denied the contentions of the petitioner and stated that the restrictions placed on the petitioner were justifiable, fair, and reasonable and also argued that subclauses (i) and (ii) of clause 3 (b) did not violate article 14 and article 21. It was also stated that they would not object if the petitioner was allowed to interview her daughter and sister twice a week, as is the case for prisoners awaiting trial, in place of a monthly interview, and that they would not insist on having a customs or excise officer present during the lawyer-client meeting. **RELATED LEGAL PROVISIONS:** - Section 3 of COFEPOSA Act: The conditions of detention in respect of classification and interviews shall be as under:- (b) Interviews: “Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi as under”:- Clause (i) and (ii): (i) Interview with legal adviser: “Interview with a legal adviser in connection with the defense of a detenu in a criminal case or regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of Customs/Central Excise/ Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who sponsors the case for detention.”[\[9\]](#_ftn9) (ii) Interview with family members: “A monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu “.[\[10\]](#_ftn10) - Article 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.[\[11\]](#_ftn11) - Article 21: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.[\[12\]](#_ftn12) - Article 22: protection against illegal arrest and detention. **JUDGMENT** **Issue 1:** While answering issue one is whether clauses 3(b)(i) and 3(b)(ii) of the Conditions of Detention Order are constitutionally valid or not as it being violative of articles 14 and 21 of the Constitution of India, the court held that these clauses are violative of article 14 and 21 because under clause 3(b)(i) the procedure which is prescribed for having interview with legal adviser were causing great inconvenience as presence of an officer at the time of interview seems to be unreasonable. Thus, subclause (i) is violative of articles 14 and 21 and it was held void and unconstitutional. The court also held sub-clause (ii) violative of articles 14 and 21 as it was unreasonable and arbitrary to restrict the interview with family members to once a month in case of detenu when a detenu stands on a higher pedestal than an under-trial prisoner or a convict. The court also held that at least two interviews with relatives and friends in a week must be permitted while obtaining permission from the superintendent of the jail and the permission from district magistrate Delhi is not mandatory. **While addressing issues 2 and 3 the court held that:** The court relied on the **Maneka Gandhi vs Union of India** case where they relied on article 21 and stated that no person shall be deprived of his right to life and personal liberty except according to procedure established by law and the procedure must be fair, reasonable, nonarbitrary, and justifiable and is should not be based on whims and fancies. Preventive detention law not only passes the test of Article 22 but also of Article 21. It was held that a prisoner has a fundamental and legal right available to a free person to save those who are incapable of enjoyment because of incarceration. To understand the validity of the condition of detention it must be essential to know the difference between Preventive and Punitive Detention. In punitive detention when a person is found guilty of wrongdoing he is detained by way of punishment as a result of a trial where he has full opportunity to defend himself while preventive detention is not a way of punishment at all it is just intended to prevent a person from doing conduct that is harmful to the society, in preventive detention the person has limited power to defend himself. The court also relied on the case **Sampat Prakash vs State of Jammu and Kashmir[\[13\]](#_ftn13)** where it was held that “the restraints placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal.”[\[14\]](#_ftn14) **While addressing issue 3** the court relied on the **Sunil Batra vs Delhi Administration[\[15\]](#_ftn15)** and stated that when someone enters prison, their fundamental rights do not go away, even though their size may decrease due to incarceration. Except for those that they are unable to exercise due to their detention, prisoners, also known as detenus, are entitled to all fundamental rights and other legal protections. Not only in India but also in America the rights of prisoners were also recognized under the case of Eve Pall, where Justice Doughlas gave a humanistic note that “ Unless their liberty has been constitutionally restricted through procedures that meet all due process requirements, prisoners are still persons entitled to all constitutional rights.” In conclusion or summarisation of this case it can be concluded that Regarding the detention law, it was decided that the preventative detention statute needed to meet both the requirements of Article 21 and Article 22. Given the unique qualities that set preventative custody apart from punitive imprisonment, the limitations imposed on a person detained for preventative purposes must be kept to a minimum by the effectiveness of detention. Deprivation protanto of this right to life would also result from any act that violates or diminishes human dignity, and such actions would need to follow a reasonable, equitable, and just process established by law that satisfies the requirements of other fundamental rights.[\[16\]](#_ftn16) **CRITICAL ANALYSIS:** The Court critically examined the importance of ‘life’, they not just only relied on life but instead focused on “life with dignity”, a life that is not just a mere animal existence or just a physical survival. It has been explained that any act that impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be by reasonability, fairness, and justifiability procedure that is established by law. Right to life includes the right to necessities of law and also such rights that constitute the bare minimum expression of the human self. Article 21 is somewhat related to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant of Civil and Political Rights in a matter of the right to protection against torture, and cruel activities. Therefore as an essential component of the right to life with dignity a prisoner would be entitled to have interviews with his family members and no procedure regulating the right to have interviews can be held constitutionally valid unless that process or procedure is reasonably fair and just. The right to life with dignity also includes the right to personal liberty. Therefore it may regulate the right of a detenu to have an interview with a legal adviser in a just, fair, and reasonable manner and hence it has to be reminded that an unreasonable, unfair, arbitrary procedure for regulating such an interview cannot be prescribed and even if does it is violative of article 14 and 21. The court here relied on several case laws which are explained as follows: 21. **Maneka Gandhi vs Union India[\[17\]](#_ftn17):** This case overruled the A.K. Gopalan case and established the new dimension of Article 21 of the Constitution of India. The court ruled that the semblance of a procedure prescribed by the law was insufficient to deprive an individual of their life or personal liberty. The procedure had to be reasonable, fair, and just. If it was not, the law would be deemed void for breaching the guarantee of Article 21. This revised interpretation of Article 21 has aided the Apex Court in its new capacity as India’s institutional Ombudsman for Human Rights.[\[18\]](#_ftn18) This case gave rise to several other cases to interpret Article 21 of the Constitution of India. 22. **H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544[\[19\]](#_ftn19):** in this case, it has been reiterated that “Judicial justice, with its procedural complexities, legal submissions, and critical examination of evidence, depends on professional expertise; and where such supportive skill is absent for one side, a failure of equal justice under the law is imminent.” Gaining access to justice is essential to achieving all other legal and constitutional rights. It was also contended that the prisoners have the right to free legal aid as a fundamental right. 23. **Hussainara Khatoon vs State of Bihar[\[20\]](#_ftn20):** this case is related to the condition of the under-trial prisoners where it has been reiterated that the right to speedy trial is a fundamental right under Article 21 of the Constitution of India. 24. **Kharak Singh vs State of U. P[\[21\]](#_ftn21):** here Justice Subba Rao relied upon the quality of life under article 21 of the Constitution of India by reiterating the judgment from the case **Munn v. Illinois[\[22\]](#_ftn22) it was held that** “The meaning of “life” in this context goes beyond simple animal existence. All the limbs and faculties that enable one to enjoy life are protected from its deprivation. This clause also forbids disfiguring one’s body, amputating a limb, taking out one’s eye, or destroying any other bodily organ that serves as a conduit for communication between the soul and the outside world.”[\[23\]](#_ftn23) The court once again interpreted Article 21 and gave a distinction between preventive and punitive detention. The main question in the case is whether the Constitution protects a petitioner’s right to speak with their family and obtain legal counsel. The same legal rights, including fundamental rights, are accorded to free individuals as well as inmates. **In D.B. Patnaik v. State of Andra Pradesh[\[24\]](#_ftn24)**, the court decided that while a person’s rights may be restricted when detained, they do not always disappear. Articles 21 and 22 of the Indian Constitution were violated by the COFEPOSA Act’s section 3(b) restrictions, and the court’s determination to protect the Constitution was reasonable.[\[25\]](#_ftn25) **CONCLUSION** This case clarified Article 21’s relevance and decided it to be the cornerstone of the Indian Constitution by offering a wide reading of it. It is said that one cannot live by unfair or discriminating ways. The right to life goes beyond simple animal existence; it also relates to a decent life, which should not be subject to arbitrary or illogical intervention. This point of view holds that the state must follow policies that protect the rights and dignity of the person detained even if preventative detention is used. Furthermore, the ruling underlined the point that one’s rights are not revoked by fear. As long as they do not contravene the terms of imprisonment, the fundamental rights of the detained are maintained. Therefore, the Court carefully examined constitutional rights in analysis of limitations on family visits and legal consultations. The Court decided that any restrictions on these liberties should be rigorously followed if we are to maintain the effectiveness of the detention. certify that the application of preventive detention policies conforms to the Constitution and is humane. This emphasizes the court’s duty to protect basic rights against repressive policies implemented by the government, therefore strengthening the ideas of justice, equity, and human dignity inside the Indian legal system. **BIBLIOGRAPHY:** 1. AJ, ‘48 Quotes by B. R. Ambedkar’ (Elevate Society20 July 2023) accessed 2 June 2024 2. COFEPOSA Act, s 3. 3. D.B. Patnaik v. State of Andra Pradesh \[1975\] 2 SCR 24. 4. Deshpande JM, ‘FRANCIS CORALIE v. the ADMINISTRATOR, UNION TERRITORY of DELHI’ (2022) IV Indian Journal of Law and Legal Research 2582 accessed 4 June 2024 5. Fali S Nariman, ‘Fifty Years of Human Rights Protection in India – the Record of 50 Years of Constitutional Practice’ \[2013\] National Law School of India Review 13 accessed 3 June 2024. 6. Francis Coralie Mullin vs The Administrator, Union Territory of Delhi \[1981\] 1 SCC 608. 7. Hussainara Khatoon v. State of Bihar \[1980\] 1 SCC 98. 8. Kharak Singh vs State of U. P. \[1964\] 1 SCR 232. 9. M.H. Hoskot v. State of Maharashtra \[1978\] 3 SCC 544. 10. Maneka Gandhi v Union of India \[1978\] 1 SCC 248 (SC). 11. Munn v. lllinois \[1877\] 94 U.S. 113. 12. Sampat Prakash vs State of Jammu and Kashmir \[1969\] 3 SCR 574. 13. Sunil Batra vs Delhi Administration \[1979\] 1 SCR 392. 14. The Constitution of India 1950, art. 14. 15. The Constitution of India 1950, art. 21 16. The Constitution of India 1950, art.22. 17. The Constitution of India, 1950, art. 21. 18. Vithlani Y and B K, ‘Analysing Preventive Detention Laws and Article 21’ (2018) 4 International Journal of Legal Developments and Allied Issues [\[1\]](#_ftnref1) AJ, ‘48 Quotes by B. R. Ambedkar’ (Elevate Society20 July 2023) accessed 2 June 2024. [\[2\]](#_ftnref2)Jahnavi Madhav Deshpande, ‘FRANCIS CORALIE v. the ADMINISTRATOR, UNION TERRITORY of DELHI’ (2022) IV Indian Journal of Law and Legal Research 2582 accessed 2 June 2024. [\[3\]](#_ftnref3) The Constitution of India 1950, art. 21. [\[4\]](#_ftnref4) Maneka Gandhi v Union of India \[1978\] 1 SCC 248 (SC). [\[5\]](#_ftnref5) Yash Vithlani and Keerthanaa B, ‘Analysing Preventive Detention Laws and Article 21 ’ (2018) 4 International Journal of Legal Developments and Allied Issues . [\[6\]](#_ftnref6) Francis Coralie Mullin vs The Administrator, Union Territory of Delhi \[1981\] 1 SCC 608. [\[7\]](#_ftnref7) Jahnavi Madhav Deshpande, ‘FRANCIS CORALIE v. the ADMINISTRATOR, UNION TERRITORY of DELHI’ (2022) IV Indian Journal of Law and Legal Research 2582 accessed 2 June 2024. [\[8\]](#_ftnref8) Francis Coralie Mullin vs The Administrator, Union Territory of Delhi \[1981\] 1 SCC 608. [\[9\]](#_ftnref9) COFEPOSA Act, s 3. [\[10\]](#_ftnref10) The Constitution of India 1950, art. 14. [\[11\]](#_ftnref11) The Constitution of India 1950, art. 21 [\[12\]](#_ftnref12) The Constitution of India 1950, art.22. [\[13\]](#_ftnref13) \[1969\] 3 SCR 574. [\[14\]](#_ftnref14) Francis Coralie Mullin vs The Administrator, Union Territory of Delhi \[1981\] 1 SCC 608. [\[15\]](#_ftnref15) \[1979\] 1 SCR 392. [\[16\]](#_ftnref16)Yash Vithlani and Keerthanaa B, ‘Analysing Preventive Detention Laws and Article 21 ’ (2018) 4 International Journal of Legal Developments and Allied Issues . [\[17\]](#_ftnref17) \[1978\] 1 SCC 248 (SC). [\[18\]](#_ftnref18) Fali S Nariman, ‘Fifty Years of Human Rights Protection in India – the Record of 50 Years of Constitutional Practice’ \[2013\] National Law School of India Review 13 accessed 3 June 2024. [\[19\]](#_ftnref19) \[1978\] 3 SCC 544. [\[20\]](#_ftnref20) \[1980\] 1 SCC 98. [\[21\]](#_ftnref21) \[1964\] 1 SCR 232. [\[22\]](#_ftnref22) Munn v. lllinois \[1877\] 94 U.S. 113. [\[23\]](#_ftnref23) Francis Coralie Mullin vs The Administrator, Union Territory of Delhi \[1981\] 1 SCC 608. [\[24\]](#_ftnref24) 1975\] 2 SCR 24. [\[25\]](#_ftnref25) Jahnavi Madhav Deshpande, ‘FRANCIS CORALIE v. the ADMINISTRATOR, UNION TERRITORY of DELHI’ (2022) IV Indian Journal of Law and Legal Research 2582 accessed 2 June 2024. **Categories:** Case Analysis --- ### ["IPR Protection of Technological Innovations in India: Provisions, Precedents and Processes"](https://lawfoyer.in/ipr-protection-of-technological-innovations-in-india-provisions-precedents-and-processes/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** **Author: Sankalp Vashistha Law Student at (ICFAI UNIVERSITY)** **Edited By: Naman Jain Law Student at Galgotias University** **Introduction** Intellectual property rights (IPR) provide individuals and organizations with legal protection for their inventive and creative efforts by treating intellectual creations as intangible property for a predetermined period of time. These opportunities assume an urgent part in enabling imaginative work and driving steady improvement by offering makers acknowledgment and monetary prizes. In India, intellectual property rights (IPR) include patents, copyrights, trademarks, trade secrets, geographical indications, plant varieties, and industrial designs. Key guidelines like the Licenses Showing of 1970, the Copyright Exhibition of 1957, and the Brand Name Showing of 1999, nearby critical court choices, spread out the genuine framework for safeguarding these honors. To protect veritable advancements, the procurement of licensed innovation privileges (IPR) requires explicit advances and prerequisites. This makes it simpler to share information, advance innovation, and advance improvement all in all. ***Keywords*:** *Intellectual property rights (IPR), Legal protection, Patent, Copyright, Trademark* **What is IPR?** IPRs are legal rights provided to a person’s intelligence that safeguard the creations of their minds as intangible property for a definite period. If the thoughts and tough work of the creator are not protected, then the concerned originator will not get benefits for their tough work and will grow dissatisfied, which will finally result in the weakening of research and development. If the intellectual property of each member is protected, it will result in knowledge sharing, technology transmission, and cooperation among businesses and organizations, contributing to overall development. To encourage the development of technology in different areas, the government of India has taken many enlightened steps by allowing intellectual property rights to creators. In today’s fast-changing world with high levels of innovative technology competition, IPR plays a crucial role in safeguarding the growth and development of the state. **Kinds of intellectual property rights** Intellectual property rights are a prominent factor in inspiring and encouraging research and development. In India, there are seven (7) types of intellectual property rights granted to individuals to provide acknowledgement for their tough work and inspire new developments. They are as follows: - **Patents:** Protects thoughts and developments and provides the owner with a special right to use and sell the technology for a certain period. - **Copyrights:** Protect the concepts and novel works of authors and creators for their unique work, it includes written works, music, art, etc. The holders of copyright have special rights to display, distribute and reproduce their work. - **Trademarks:** Protect designs and symbols that provide distinctiveness for their goods and services; they distinguish company products from those of their competitors. - **Trade secrets:** Safeguard processes, formulas, and customer lists that give a company a competitive advantage and may be licensed or sold. - **Geographical indications:** Safeguard the titles of the products from particular geographical areas and origins. - **Plant varieties:**safeguard new varieties of plants that are uniform or distinct from others. - **Industrial designs:** Protect the visual presence of the product, like shapes, size, colour, etc. **Key Provision related to IPR in India** **about Technology** - The Patents Act, 1970 This is the foundation of patent law in India, proposed to protect creations and grant exclusive rights to creators. The Act was amended in 2005, to comply with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement. - **Section 3**[**\[1\]**](#_ftn1): This section describes what are not considered as developments under the Act. For example, it excludes mere innovations of scientific principles or the formulation of abstract theories from patentability. However, technological advancements that show major advancements in utility can be patented. - **Section 6**[**\[2\]**](#_ftn2): The true and first inventor, their assignee, or the legal representative of the deceased originator remain among the parties who can file an application for a patent. - **Section 10**[**\[3\]**](#_ftn3): This section defines the requirements for a patent requirement, including the description of the invention in detail and the methods that explain how it will be carried out. - **Section 25**[**\[4\]**](#_ftn4): This section provides a mechanism for opposing the grant of a patent. Opposition can be filed on numerous grounds, some of which can be deficiency of novelty or inventive step, safeguarding that only genuine technological novelties are protected. - The Copyright Act of 1957 It is a law that safeguards different types of works, not just books and paintings. It also covers things like software and digital content. - As per Section 2(o)[\[5\]](#_ftn5), it says that “literary work” includes computer programs, tables, and collections. This means that software is protected under this act. - Section 13[\[6\]](#_ftn6) of this act defines what all protected under the copyright act. It contains original literary, dramatic, musical, and artistic works, as well as films and sound recordings. - Section 14[\[7\]](#_ftn7) provides the list of the rights that are given to owners of the copyright. They can make copies, use, and distribute the work. For software, this includes controlling copying, distribution, and modification. - The Trademark Act, 1999 It is important to protect technical trademarks and assist consumers in identifying various tech products and services. - Section 2(zb)[\[8\]](#_ftn8) defines a trademark as a visual mark that distinguishes one person’s goods or services from others. It may include logos, titles, or even particular shapes associated with technology products. - Section 9[\[9\]](#_ftn9) of the act defines the grounds for rejecting registration. This includes marks that are not novel or innovative characters, as well as those marks that may deceive or confuse the public. - Section 29[\[10\]](#_ftn10) of the act defines trademark protection, which is important for technology-related companies to protect their brand from unlawful usage. **Landmark Cases** - **Novartis AG vs Union of India[\[11\]](#_ftn11):** This case has a major role in the Indian patent system. The Supreme Court of India rejected the patent application for the medicine ‘Glivec’ used in cancer, highlighting the importance of a higher level of originality and the need to avoid patent ‘evergreening’. This decision had significant consequences for the patenting of pharmaceutical and biotech inventions. - **Bajaj Auto Ltd vs. TVS Motor Company Limited[\[12\]](#_ftn12)**: In this case, a dispute arose regarding a patent between two major companies for applying twin-spark-plug engine technology. The Court observed that cases dealing with IP frequently revolved around temporary injunctions, which had been pending for years, irrespective of the lengthy nature of these cases. To speed up the goal of IP debates, the High Court coordinated that hearings on trademarks, patents, and copyrights ought to be led on an everyday premise. In these cases, it required that final judgments be delivered within four months of filing. The Court additionally educated all courts and councils across India to comply rigorously with these rules for quick removal of IP cases. - The **Yahoo**[\[13\]](#_ftn13)! decision of the Delhi High Court, Vs. In India’s intellectual property law, the landmark case of **Akash Arora & Anr** focuses on cybersquatting. The court decided that domain names are just as useful as trademarks and should be protected in the same way. In this situation, the offended party’s area name ‘Hurray!’ and the ‘Yahoo India!’ of the defendant. Were discovered to be nearly identical and phonetically similar, likely causing users of the internet to misunderstand. The court rejected the defendants’ disclaimer because it did not adequately address the nature of the internet and prevent confusion. It also said that, despite being a word in the dictionary, “Yahoo” had become unique because of its connection to the plaintiff. In Rediff Communication vs. Cyber Booth & Anr[\[14\]](#_ftn14), the Bombay High Court echoed this sentiment and emphasized the value of a domain name for businesses. - **Telefonaktiebolaget LM Ericsson vs. Intex Technologies (India) Ltd.[\[15\]](#_ftn15)**: In this case, Standard Essential Patents (SEPs) and FRAND (Fair, Reasonable, and Non- discriminatory) conditions were challenged. The Delhi High Court gave an injunction in favour of Ericsson emphasizing the implementation of SEPs in India, and establishing a precedent for upcoming technology-related matters. - In the case of **Bayer Corporation vs. Union of India[\[16\]](#_ftn16)**, Bayer argued that Cipla’s “SORANIB” infringed on its patent and sought to prevent it from receiving marketing approval under the Drugs Act. Bayer asserted that a mechanism preventing the market approval of patented drugs was established by Sections 2 of the Drugs and Cosmetics Act and 48 of the Indian Patent Act of 1970. Additionally, Bayer classified “SORANIB” as a “spurious drug” in accordance with the 1940 Drugs Act. The Delhi HC excused Bayer’s disputes, confirming there is no medicine patent linkage part in India and that patent infringement ought to be exhibited in court, not accepted. The court emphasized that a link like this would have a negative effect on health policy. It likewise decided that “SORANIB” was not false, as it needed components of impersonation or misdirection, and forced a significant expense of Rs. 6.75 million to Bayer to stop other attempts of this kind. **Process for filling an IPR in India** - Patent - Section 6[\[17\]](#_ftn17) of the Patent Act, expresses that anybody professing to be the valid and first creator of an innovation, his trustee, or the lawful delegate of a departed individual who was qualified to make such an application, is qualified to document a patent application. - Section 7[\[18\]](#_ftn18) examines the strategy and arrangement of the application. It requires the submission of a prescribed application form in addition to a provisional or complete specification. - Section 11A[\[19\]](#_ftn19), the patent application must be published 18 months after the filing date. Unless an early publication request is made, the application is available to the public. - Section 12[\[20\]](#_ftn20) gives an explanation of the sales for an evaluation. In no less than four years of the need date of the application, a solicitation should be made before the considerable assessment can start. - Section 43[\[21\]](#_ftn21) an applicant will be granted a patent once all Act requirements have been met and it will be recorded in the register of patents, as stated in Section 43. - Section 53[\[22\]](#_ftn22) every granted patent lasts twenty years from the filing date of the application. - Trademark - Section 18[\[23\]](#_ftn23) any person who asserts that he or she is the owner of a trademark that he or she uses or proposes to use may submit a formal registration application. - Section 19[\[24\]](#_ftn24) the Enlistment Centre is expected to investigate the application to check whether it consents to the Demonstration’s prerequisites and to decide if the brand name can be enrolled. - Section 20[\[25\]](#_ftn25) mandates the publication of an advertisement for the application in the Trademarks Journal (Sections 20-21). - Anyone who believes that the trademark registration would harm them has three months to file an opposition under Section 21[\[26\]](#_ftn26). - Section 23[\[27\]](#_ftn27) (Registration and Duration) addresses the trademark’s registration after all objections and oppositions have been resolved. - According to Section 25[\[28\]](#_ftn28), trademark registration is valid for ten years but can be renewed indefinitely. - Copyright - Section 45[\[29\]](#_ftn29), copyright registration is voluntary. The Registrar of Copyrights can be contacted with a completed application and the appropriate fee. - Section 22[\[30\]](#_ftn30) states that literary, dramatic, musical, or artistic works are protected for the author’s lifetime plus sixty years. - Depending on the type of work, various durations are defined in other sections, such as Section 26[\[31\]](#_ftn31) for cinematographic films and Section 27[\[32\]](#_ftn32) for sound recordings. **Conclusion** Intellectual Property Rights, or IPRs, are essential for fostering innovation and safeguarding the creative and inventive output of individuals and organizations. By treating these intellectual creations as intangible assets, intellectual property rights (IPR) provide creators with the legal protection they need to gain recognition and financial rewards. India’s comprehensive IPR insurance framework covers licenses, copyrights, brand names, proprietary innovations, topographical signs, plant collections, and contemporary plans. This protection is based on important laws like the Patents Act of 1970, the Copyright Act of 1957, and the Trademark Act of 1999. The in-depth procedure for protecting intellectual property rights ensures that genuine innovations are recognized and protected, encouraging knowledge sharing, technological advancement, and overall development. In addition to supporting individual creators, this legal framework also encourages economic expansion and fosters a culture of continuous improvement and collaboration. **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. Law Relating to Intellectual Property by Dr. B.L. Wadehra (15th edition) 2. Intellectual Property by Elizabeth Verkey (2015 edition) 2. **Online Articles / Sources Referred** 1. [https://blog.ipleaders.in/role-of-ipr-in-securing-growth-of-technology-in-indian-society/#What\_are\_intellectual\_property\_rights](https://blog.ipleaders.in/role-of-ipr-in-securing-growth-of-technology-in-indian-society/#What_are_intellectual_property_rights) 2. 3. [https://www.business-standard.com/article/current-affairs/india-s-overall-ranking-on-ip-protection-improves-says-uscc-report-122022401676\_1.html](https://www.business-standard.com/article/current-affairs/india-s-overall-ranking-on-ip-protection-improves-says-uscc-report-122022401676_1.html) 4. 3. **Cases Referred** 1. Novartis AG vs Union of India 2. Bajaj Auto Ltd vs. TVS Motor Company Limited 3. Vs. Akash Arora & Anr 4. Rediff Communication vs. Cyber Booth & Anr 5. Telefonaktiebolaget LM Ericsson vs. Intex Technologies (India) Ltd. 6. Bayer Corporation vs. Union of India 4. **Statutes Referred** 1. TRADE MARKS ACT, 1999 2. THE COPYRIGHT ACT, 1957 3. THE PATENTS ACT, 1970 [\[1\]](#_ftnref1) THE PATENTS ACT, 1970, § 3, No. 39, Acts of Parliament, 1970 (India). [\[2\]](#_ftnref2) THE PATENTS ACT, 1970, § 6, No. 39, Acts of Parliament, 1970 (India). [\[3\]](#_ftnref3) THE PATENTS ACT, 1970, § 10, No. 39, Acts of Parliament, 1970 (India). [\[4\]](#_ftnref4) THE PATENTS ACT, 1970, § 25, No. 39, Acts of Parliament, 1970 (India). [\[5\]](#_ftnref5) THE COPYRIGHT ACT, 1957, § 2o, No. 14, Acts of Parliament, 1957 (India). [\[6\]](#_ftnref6) THE COPYRIGHT ACT, 1957, § 13, No. 14, Acts of Parliament, 1957 (India). [\[7\]](#_ftnref7) THE COPYRIGHT ACT, 1957, § 14, No. 14, Acts of Parliament, 1957 (India). [\[8\]](#_ftnref8) TRADE MARKS ACT, 1999, § 2zb, No. 47, Acts of Parliament, 1999 (India). [\[9\]](#_ftnref9) TRADE MARKS ACT, 1999, § 9, No. 47, Acts of Parliament, 1999 (India). [\[10\]](#_ftnref10) TRADE MARKS ACT, 1999, § 29, No. 47, Acts of Parliament, 1999 (India). [\[11\]](#_ftnref11) Novartis AG vs Union of India, AIR 2013 SC1311. [\[12\]](#_ftnref12) Bajaj Auto Ltd vs. TVS Motor Company Limited, JT 20019 (12) SC 103. [\[13\]](#_ftnref13) Inc. Vs. Akash Arora & Anr, 1999 (19) PTC 201 (Del). [\[14\]](#_ftnref14) Rediff Communication vs. Cyber Booth & Anr, 2000 PTC 209. [\[15\]](#_ftnref15) Telefonaktiebolaget LM Ericsson vs. Intex Technologies (India) Ltd, MANU/DE/2188/2023. [\[16\]](#_ftnref16) Bayer Corporation vs. Union of India, 162(2009) DLT 371. [\[17\]](#_ftnref17) THE PATENTS ACT, 1970, § 6, No. 39, Acts of Parliament, 1970 (India). [\[18\]](#_ftnref18) THE PATENTS ACT, 1970, § 7, No. 39, Acts of Parliament, 1970 (India). [\[19\]](#_ftnref19) THE PATENTS ACT, 1970, § 11A, No. 39, Acts of Parliament, 1970 (India). [\[20\]](#_ftnref20) THE PATENTS ACT, 1970, § 12, No. 39, Acts of Parliament, 1970 (India). [\[21\]](#_ftnref21) THE PATENTS ACT, 1970, § 43, No. 39, Acts of Parliament, 1970 (India). [\[22\]](#_ftnref22) THE PATENTS ACT, 1970, § 53, No. 39, Acts of Parliament, 1970 (India). [\[23\]](#_ftnref23) TRADE MARKS ACT, 1999, § 18, No. 47, Acts of Parliament, 1999 (India). [\[24\]](#_ftnref24) TRADE MARKS ACT, 1999, § 19, No. 47, Acts of Parliament, 1999 (India). [\[25\]](#_ftnref25) TRADE MARKS ACT, 1999, § 20, No. 47, Acts of Parliament, 1999 (India). [\[26\]](#_ftnref26) TRADE MARKS ACT, 1999, § 21, No. 47, Acts of Parliament, 1999 (India). [\[27\]](#_ftnref27) TRADE MARKS ACT, 1999, § 23, No. 47, Acts of Parliament, 1999 (India). [\[28\]](#_ftnref28) TRADE MARKS ACT, 1999, § 25, No. 47, Acts of Parliament, 1999 (India). [\[29\]](#_ftnref29) THE COPYRIGHT ACT, 1957, § 45, No. 14, Acts of Parliament, 1957 (India). [\[30\]](#_ftnref30) THE COPYRIGHT ACT, 1957, § 22, No. 14, Acts of Parliament, 1957 (India). [\[31\]](#_ftnref31) THE COPYRIGHT ACT, 1957, § 26, No. 14, Acts of Parliament, 1957 (India). [\[32\]](#_ftnref32) THE COPYRIGHT ACT, 1957, § 27, No. 14, Acts of Parliament, 1957 (India). **Categories:** Articles --- ### [Ajit Singh v. State of Punjab, AIR 1999 SC 3471](https://lawfoyer.in/ajit-singh-v-state-of-punjab-air-1999-sc-3471/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** **Name of the author- Mahalakshmi P student Government Law College , Dharmapuri** **Edited By – Anurupa Pal** 1. **ABSTRACT / HEADNOTE** In this case, deals with the important issue of **reservation in employment**. Here, there are three interlocutory applications presented for interpretation by the state of Punjab concerning this case, which dealt with seniority and promotion of received and general category candidates. This case, interpretation of **Article 16 (1), (2), (4) and (4-A)** as well as **Article 14** of the Indian constitution. The main issue of the case was whether the right to be considered for promotion is interpreted as only a Statutory right or a fundamental right. This Case is important as it dealt with the question relating to the interpretation of rules relating to reservation and promotion contained in Article 16 of the Indian constitution. This case made a clear view that the right to be considered for promotion is not only a Statutory right but a fundamental right under Article 16 of the Indian constitution. ***Keywords*:** 1. Indian constitution 2. Article 16(1), (4), (4-A) 3. Article 14 4. Right to promotion 5. Reservation in employment. 1. **CASE DETAILS** ***Judgement Cause Title / Case Name***Ajit Singh v. State of Punjab***Case Number***3792 of 1989***Judgement Date***16.09.1999***Court***The Supreme Court of India.***Quorum / Constitution of Bench*** 5/Full bench***Author / Name of Judges***1. Chief Justice of India: Justice A.S. Anand 2\. Justice. Venatuswami 3\. Justice. G.B. Pattanaik 4\. Justice. K.P. Kurduker 5\. Justice. M. Jagennadha Rao ***Citation***AIR 1999 SC 3471***Legal Provisions Involved***Article 16(1)1. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** In this case, the earlier decisions of these cases, **Ajit Singh Januja vs State of Punjab** (1996), **Union of India vs Virpal Singh Chauhan** (1995) and **Jadish Lal vs State of Haryana** were discussed. The present case was filed by the Punjab government to seek clarification about the judgement in Ajit Singh Januja vs State of Punjab (1996). We have to understand this case to understand the background, and issues in the case of Ajit Singh vs the State of Punjab. 1. **FACTS OF THE CASE** So, the appellant filed a **writ petition before the HC**, filed on their behalf that when the reservation quota was completed the scheduled caste candidates should not further be appointed or promoted. It was said on the behalf that scheduled caste and backward classes candidates who compete on merit, should also be adjusted against the received quota for them. The full-page view on the non-consideration of the scheduled caste against general category posts for appointment or promotion will be hit by **Articles 14,15, and 16** of the Indian constitution. HC said that roster points were seniority points. As a result of full bench overruled the view taken by the High Court. The rule held that the senior general candidates who were promoted after SC/ ST candidates would regain their seniority over general candidates promoted earlier. 1. **LEGAL ISSUES RAISED** - Whether the right to promotion just a statutory right or a fundamental right? - Whether the Virpal Singh Chauhan case, Ajit Singh Januja case and Jagdish Lal case were correctly adjudged or not? - Whether the ‘catch-up principle’ argued by the general category candidates acceptable or not? 1. **PETITIONER ARGUMENTS** 1. The counsels for Petitioner / Appellant submitted that The counsel for the petitioner, submitted before the Hon’ble HC, that is in Ashok Kumar Gupta vs the state of UP (1997) It was stated that the right to promotion is just a “statutory right” whereas right under Art 16(4) & 16(4-A) are fundamental rights. Also, similar cases were taken in Jagdish Lal vs state of Haryana (1997) and some other judgements. The petitioner side took support of paragraph 43 of Ashok Kumar Gupta’s judgement. It said that it defines, the right to promotion as a “statutory right”. It is not a ‘fundamental right’. We contended that this was the correct constitutional position. 1. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that The counsel for appearing on behalf of the state of Punjab as a respondent said that the Jagdish Lal case judgement was, in contrast to, the Virpal Singh Chauhan case and Ajit Singh Januja case, the state was In a ‘quandary’ as to what would be the suitable course of action. In this case, contended that the “roster point promotes” that is reserved candidates cannot demand seniority based on their services. But in the case of Virpal Singh Chauhan’s judgement and released a circular that roster point promotion in railways didn’t vest seniority. So, in the case of Virpal Singh Chauhan’s case and Ajit Singh Januja’s case decisions were incorrect. About cases or accepted the ‘catch up’ principle in favour of general categories. so, the reserved candidates now contended that not only the reserved candidates’ promoter in roasted points cannot be reverted but the seniority against excess promotion was also protected. 1. **RELATED LEGAL PROVISIONS** 1. *“Article 16 equality of opportunity in matters of public employment.* *Article 16 (1), (4), (4-A) this article of Indian constitution relating to promotion, seniority and roasted system for reserved category candidates”.* 1. *“Article 14: Equality before the law and equal protection of the law.* *Article 14 provides everyone is entitled to equality and equality protection of the law. so in this case, right to promotion be treated as a fundamental right.”* 1. Articles 14 and 16 (1) are both individual rights that are closely connected. Article 14 provides equality before the law and equality protection of the law and Article 16 provides equality of opportunity in matters of public employment. It was observed that, ensuring each employee who is suitable for promotion has a fundamental right to be ‘considered ‘ for promotion. The promotion is based on equal opportunity and seniority or dismission of fundamental rights under Article 16 (1). 2. *“Article 16(1): guarantees the equality of opportunity for all citizen in matters of employment or appointment to any office under the state.”* 3. *“Article 16(2): Prohibits discrimination on the grounds of religion, race, caste, sex, descent etc.,”* 4. *“Article 16(3): Exception to clause 2 of the article.”* 5. *“Article 16(4): Empowers that state to make special provision for the reservation of appointments or posts in favour of any backward classes of citizens which in the opinion of the state or not sufficiently represented in the services of the state.”* 6. *“Article 16(4-A): the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”* 1. **JUDGEMENT** Supreme Court disposed of the application presented by the state of Punjab. It was held that Ajit Singh Januja v. State of Punjab and Virpal Singh Chauhan v. the Union of India set out the right law and the law laid down in Jagdish Lal v. State of Haryana was not valid in this respect as it was limited to its specific facts. The Court passed distinct orders in the Punjab, Haryana and Rajasthan cases based on the principles outlined in this case which was named Ajit Singh II. 1. **RATIO DECIDENDI** 1. The right to promotion is considered a fundamental right under Article 16(1) as well as Article 14. So, the right to be considered for promotion is not just a statutory right but a fundamental right within the meaning of Article 16. 2. And also, the supreme court held that the position taken in the Ajit Singh Januja case was correct. However, the court’s view on other cases discussed above was not acceptable. 3. Seniority and promotions; the court views this as that balancing of fundamental rights and articles 14 and 16 (1), (4), and (4-A) on the other. 4. Catch-up rule principle: The “catch-up” rule is a concept that allows reserved category candidates who are promoted later to regain their seniority over general category candidates who were promoted earlier. 1. **CONCLUSION & COMMENTS** The state of Punjab, interpretation of the judgement in Ajit Singh Januja vs State of Punjab (1996), this case also involved the question of seniority. The Supreme Court observed that articles 16(4) &(4-A) must take into account the situation prevalent when this clause was incorporated while contemplating the backwardness and social oppression of certain classes. The court also said article 14 and 16(1) are interrelated. Seniority in service is connected to promotion. In the above discussion, the SC held that the decisions in the Ajit Singh Januja and Virpal Singh Chauhan case were accurate and the view taken in the Jagdish Lal case was improper. - **REFERENCES** - **Important Cases Referred** - *Union of India v. Virpal Singh Chauhan (1995)* - *Ajit Singh Januja v. State of Punjab (1996)* - *R.K Sabharwal & Ors v. Union of India (1995)* - *Indra Sawhney v. Union of India (1993)* - *Jaswant Singh v. The Secretary to Government of Punjab, Education (1989)* - *Jagdish Lal and Ors. v. State of Haryana (1997)* - *Union of India v. Manpreet Singh Poonam (2022)* - *viii.State of Tamil Nadu v. T. Dhanraju (2016)* - *T. Siddharth Reddy v. Rajive Kumar Gupta (2020)* - **Important Statutes Referred** - The constitution of India, 1950. WEBSITES REFERRED: 1[.https://www.legalserviceindia.com](https://www.legalserviceindia.com) 2. [ https://www.manupatra.com](https://www.manupatra.com) 3. [ https://www.indiankanoon.com](https://www.indiankanoon.com) 4. [ https://www.scconline.com](https://www.scconline.com) 5. [ https://www.livelaw.in](https://www.livelaw.in) 6. https://blog.ipleaders.in/ajit-singh-vs-state-of-punjab-1999/ **Categories:** Case Analysis --- ### [All India Adi Saiva Sivacharyargal Seva Sangam vs Dr B. Chandra Mohan](https://lawfoyer.in/all-india-adi-saiva-sivacharyargal-seva-sangam-vs-dr-b-chandra-mohan/) **Published:** June 26, 2024 **Author:** LawFoyer **Content:** **Name of the author – SHAURYA SINGH KARASI, Chandigarh University** **Name of the Editor – Anurupa Pal** **ABSTRACT/HEADNOTE** The All India Adi Saiva Sivacharyargal Seva Sangam (petitioner) filed a contempt petition against Dr. B. Chandra Mohan and Mr. J. Kumaragurubaran (respondents) alleging their disobedience of a court order dated August 5, 2021. This order, issued in a previous case, pertained to the appointment of temple priests (Archakas). The court disposed of the writ petition related to the contempt petition by citing two Supreme Court judgments: Seshammal vs. State of Tamil Nadu and Adi Saiva Sivacharyargal Nala Sangam vs. State of Tamil Nadu. The court upheld the right of individuals to challenge specific Archaka appointments while directing the state and the Hindu Religious and Charitable Endowments Department to adhere to the qualifications and eligibility criteria outlined in the Supreme Court judgments. The court also granted the right to challenge any appointment that violates the law or the Supreme Court’s directives. The respondents’ counsel confirmed that no appointments had been made for a specific temple. Subsequently, the contempt petition was dismissed without any costs. This case highlights the complexities surrounding the appointment of temple priests, emphasizing the intersection of religious practices and legal obligations. The court’s decision emphasizes the importance of adhering to legal mandates while safeguarding the right to challenge unfair appointments. 1. **B) CASE DETAILS** i) Judgment Clause Title All India Adi Saiva Sivacharyargal Seva Sangam vs Dr B. Chandra Mohanii) Case Number Cont.P.No.1272 of 2021.iii) Judgment Date July 18, 2022iv) Court Supreme courtv) Quorum 1vi) Author Anitha Sumanthvii) Citation (2022) 4 MLJ 5871. **C) INTRODUCTION AND BACKGROUND OF THE JUDGMENT** On July 18, 2022, the Madras High Court delivered a judgment in the case of ‘All India Adi Saiva Sivacharyargal Seva vs Dr. B. Chandra Mohan’. This judgment stemmed from a Contempt Petition filed under Section 11 of the Contempt of Courts Act, 1971, by the All India Adi Saiva Sivacharyargal Seva Sangam, represented by its General Secretary B.S.R. Muthukumar. The petition targeted Dr. B. Chandra Mohan, Secretary to the Government of Tamil Nadu, and Mr. Kumaragurubaran, the Commissioner of Hindu Religious and Charitable Endowments, for their alleged disobedience of the court’s August 5, 2021 order in W.M.P.No.17241 of 2021 in W.P.No.16287 of 2021. Mr P. Valliappan represented the petitioner while Mr N.R.R. Arun Natarajan, a Special Government Pleader, represented the respondents. The judgment rested on the disposal of the related writ petition by the First Bench of the Madras High Court on June 27, 2022. This order referenced the Supreme Court judgments in Seshammal Vs. State of Tamil Nadu \[1972 (2) SCC 11\] and Adi Saiva Sivachariyargal Nala Sangam Vs. State of Tamil Nadu \[2016 (2) SCC 725\], emphasizing the specific qualifications and eligibility criteria for appointing Archakas. The court closed the writ petition while preserving the candidates’ right to challenge individual Archaka appointments, if necessary. The court directed the State and the Hindu Religious and Charitable Endowments Department to adhere to the qualifications and eligibility stipulated in the Supreme Court judgments for Archaka appointments. The judgment also allowed any aggrieved party to challenge appointments that contravene the law or the Supreme Court directives. The learned Special Government Pleader, Mr. N.R.R. Arun Natarajan, informed the court that no appointments had been made in the R3 temple. **D) FACTS OF THE CASE** The All India Adi Saiva Sivacharyargal Seva Sangam filed a Contempt Petition against Dr. B. Chandra Mohan and Mr. J. Kumaragurubaran, alleging they disobeyed a Madras High Court order issued on August 5, 2021. This order, stemming from a writ petition (W.P.No.16287 of 2021), dealt with the appointment of Archakas (priests) and referred to Supreme Court rulings in the Seshammal and Adi Saiva Sivacharyargal Nala Sangam cases. The High Court, in its June 27, 2022 judgment, closed the writ petition while preserving the right of candidates to challenge individual appointments. It directed the State and the Hindu Religious and Charitable Endowments Department to adhere to the Supreme Court’s prescribed qualifications for Archakas. Additionally, individuals could legally challenge appointments deemed unlawful. During the contempt proceedings, the respondents’ legal representative confirmed no appointments were made at the Arulmigu Kolanjiappar Thiru Kovil temple. Consequently, the contempt petition was closed without costs. **E) LEGAL ISSUES RAISED** - Whether the respondents’ actions constitute a violation of the court order issued on August 5, 2021? - ​Whether the respondents’ conduct meets the legal definition of contempt of court under Section 11 of the Contempt of Courts Act, 1971? - ​Whether the Supreme Court judgments in Seshammal Vs. State of Tamil Nadu and Adi Saiva Sivachariyargal Nala Sangam Vs. State of Tamil Nadu, cited in the order, relevant and binding in this case? - What actions should the court take regarding the alleged contempt? **F)PETITIONER’S ARGUMENTS** - The petitioners asserted that the respondents, Dr B. Chandra Mohan and Mr J. Kumaragurubaran, had flouted the court’s injunction of August 5, 2021, in W.M.P. No. 17241 of 2021 within W.P. No. 16287 of 2021, by neglecting to adhere to the court’s directives. - The petitioners likely highlighted the legal importance of respondents upholding court orders and directives. They may have argued that noncompliance weakens the authority of the judiciary and creates a damaging precedent for future cases. - The petitioners emphasized the paramount importance of compliance with court orders for maintaining the rule of law and upholding justice. They may have argued that any disregard for court orders must be addressed with appropriate consequences to preserve the integrity of the judicial system. - The petitioners likely urged the court to impose punitive measures on the respondents for their alleged contemptuous actions. These measures could include fines, censure, or any other penalties deemed suitable by the court. **G) RESPONDENT’S ARGUMENTS** - Mr NRR. Arun Natarajan, the Special Government Pleader representing the respondents, asserted that the temple named in the contempt petition (Arulmigu Kolanjiappar Thiru Kovil, Cuddalore District) had made no appointments. This declaration aimed to prove the respondents’ compliance with court directives and to refute the petitioner’s allegation of disobedience. - The respondents potentially argued for the dismissal of the contempt petition due to the lack of any appointments that could be deemed as violating the court’s order. They likely emphasized that since no breaches occurred, there was no justification for further legal action or punishments against them. - The respondents may have further contended against any costs or penalties being imposed on them, given their adherence to the court’s directives. They likely argued that the absence of any wrongdoing warranted the dismissal of the contempt petition without any financial burden being placed upon them. **H) JUDGMENT** On July 18, 2022, the Madras High Court, presided over by Justice Anita Sumanth, delivered a judgment concerning a contempt petition filed under Section 11 of the Contempt of Courts Act, 1971. The petition was brought by the All India Adi Saiva Sivacharyargal Seva against Dr. B. Chandra Mohan, alleging disobedience of a court order passed on August 5, 2021, in a previous case (W.M.P.No.17241 of 2021 in W.P.No.16287 of 2021). Mr P. Valliappan represented the petitioner, while Mr NRR. Arun Natarajan, the Special Government Pleader, represented the respondents. In response, the Hon’ble First Bench of the Madras High Court disposed of the writ petition related to the contempt petition on June 27, 2022, with a detailed order. This order heavily relied on Supreme Court judgments in the cases of Seshammal vs. State of Tamil Nadu \[1972 (2) SCC 11\] and Adi Saiva Sivachariyargal Nala Sangam vs. State of Tamil Nadu \[2016 (2) SCC 725\]. The writ petition was closed, allowing candidates to challenge individual appointments of Archakas if necessary. The State and the Hindu Religious and Charitable Endowments Department were instructed to strictly adhere to the qualifications and eligibility criteria for appointing Archakas, as outlined in the aforementioned Supreme Court judgments. Individuals aggrieved by appointments violating the law or court directives were granted the liberty to challenge them legally. Mr NRR. Arun Natarajan, the Special Government Pleader representing the respondents, informed the court that no appointments had been made at Arulmigu Kolanjiappar Thiru Kovil in Cuddalore District. Consequently, the contempt petition was dismissed without imposing any costs. **CONCLUSION AND COMMENTS** The Madras High Court presided over by Dr. Justice Anita Sumanth, dismissed the contempt petition initiated by All India Adi Saiva Sivacharyargal Seva Sangam against Dr. B. Chandra Mohan and Mr. J. Kumaragurubaran, affirming the candidates’ right to contest specific appointments of Archakas (temple priests). The court instructed the State and the Hindu Religious and Charitable Endowments Department to adhere strictly to the qualifications and eligibility guidelines established by the Supreme Court in the cases of Seshammal vs. State of Tamil Nadu and Adi Saiva Sivachariyargal Nala Sangam vs. State of Tamil Nadu. Any party aggrieved by appointments that contradict the established norms or Supreme Court directives may legally challenge them, as per the court’s ruling. Mr NRR. Arun Natarajan, Special Government Pleader representing the respondents, disclosed to the court that no appointments had occurred at the specific temple in question, Arulmigu Kolanjiappar Thiru Kovil in Cuddalore District. Consequently, the contempt petition was closed without incurring any expenses. This judgment underscores the court’s dedication to upholding legal principles and guaranteeing compliance with the rulings of higher tribunals, while also offering remedies for those impacted by unlawful or inconsistent appointments. **REFERENCES** **Important Cases Referred** 1. Seshammal Vs. State of Tamil Nadu (1972 (2) SCC **Important Statutes Referred** 1. Indian Penal Code (IPC) 2. Contempt of Courts Act, 1971 **Categories:** Case Analysis --- ### [J.P Bansal v. State of Rajasthan, 2003](https://lawfoyer.in/j-p-bansal-v-state-of-rajasthan-2003/) **Published:** June 27, 2024 **Author:** LawFoyer **Content:** **Author: Madhushree Pranesh Malekar, Student, S.T. Wilfred college of Law** **Edited by: Priyanshu Tyagi, Student, Mewar Law Institute, Vasundhra** **A) ABSTRACT / HEADNOTE** The Constitution of India is the Supreme Law of India. The Constitution declares India a sovereign, a socialist, secular, and democratic republic, and assures citizens justice, equality, and liberty. and endeavors to promote fraternity. The Constitution also confers powers on each and every legislature and judicial body, and no one will interfere with each other. This remains a legal issue in the matter of compensation. Compensation means money that is paid to someone in exchange for something that has been lost, damaged, or for some other problem. There are some legal provisions for compensation, but there are also some limitations and criteria for availing of compensation. In this case, the compensation term relates more to the compensation of the appellant on the cessation of his functioning as a chairman in the Taxation Tribunal. Cabinet decisions, the interpretation of constitutional provisions, and the applicability of the principle of legitimate exception are some key legal issues and parts of the below-mentioned case. **Keywords (Minimum 5):** *Compensation, Principle of Legitimate Exception, Compensation, Writ, Cabinet decision, Premature Termination, Division Bench.* **B) CASE DETAILS** **i) Judgement Cause Title / Case Name –** J.P.Bansal vs State of Rajasthan & Anr om 12 March,2003 **ii) Case Number –** Appeal (civil) 5982 of 2001 **iii) Judgement Date –** 12th March 2003 **iv) Court –** Rajasthan High Court **v) Quorum / Constitution of Bench –** .SHIVRAJ V. PATIL & ARJIT PASAYAT **vi) Author / Name of Judges –** Arjit Pasayat **vii) Citation –** Appeal ( Civil) 5982 of 2001 **viii) Legal Provisions Involved –** Article 166 of Constitution, Clause (2) of Article 310 of Constitution, Section 4(b)of Rajasthan Taxation Tribunal(Repeal) Ordinance,1999 **C) INTRODUCTION AND BACKGROUND OF JUDGEMENT:** The judgment concern was filed by an individual who holds the position of chairman of the Tribunal. The Tribunal was demolished by the Rajasthan Taxation Tribunal (Repeal) Ordinance, 1999, leading to premature termination of appellant tenure. The appellant prays for compensation for the remaining period of his tenure. However, the high court dismissed his claim, stating that there was no government order and no application of legitimate exception involved. **D) FACTS OF THE CASE:** **a. Procedural Background of the Case:** i. Appellant appeals against dismissal of his claim for compensation by a single judge of the Rajasthan Court. ii. In his written petition, he argued for compensation based on various grounds, including legitimate exceptions and cabinet decisions. iii. The single judge dismissed the writ petition, stating that the tribunals abolition and pending transfer cases to the High Court rejected the need for compensation. **b. Factual Background of the Case:** A) The appellant was appointed as a judicial member of the tribunal by notification dated September 16, 1995, by the Finance Department (Taxation Division) of the Government of Rajasthan. B) The appellant was appointed to discharge the functions of the Chairman of the Tribunal until the appointment of a regular chairman. This requirement arose due to the previous chairman attaining the age of 65. C) State Government vide notification on dated 27/02/1999 issued ordinance, The same become operative on 27/02/1999. By the above ordinance, matters and proceedings pending before the Tribunal on the date of commencement of the ordinance were automatically transferred to the High Court for disposal. D) Due to the Tribunal being abolished, which resulted in the appellant’s continuance as chairman, he came to an end. E) The appellant claimed compensation of Rs. 5,35,648/- with interest at 15% per annum by filing a Writ Petition on the ground that his tenure appointment was to continue up to September 18, 2000. F) The Writ Petition was filed before the Rajasthan High Court at Jaipur Bench. By judgment dated September 27, 1999, in SB Civil Writ Petition No. 4379 of 1999, the Writ Petition was dismissed by the learned single judge. **G) LEGAL ISSUES RAISED:** A) Whether the appellant is entitled to compensation for the premature termination of his position as Chairman of the Tribunal? B) Whether the principle of legitimate exception has been involved? C) Whether the Cabinet decision regarding compensation constitutes government order under Article 166 of the Constitution? **H) PETITIONER/ APPELLANT’S ARGUMENTS:** 1\. The counsels for the petitioner and appellant submitted that the decision of the cabinet should be enforceable regarding the payment of compensation. 2\. Even though there is no contractual provision for compensation, it should be considered a basic requirement based on clause (2) of Article 310 of the Constitution. 3\. The appellant is also claiming that the state government was bound to pay compensation due to the violation of a legitimate exception to continue until the end of his tenure, and he relied on section 4(b) of the ordinance, which clearly states that any liability arising under the repealed Act should not be affected by the repeal. **I) RESPONDENT’S ARGUMENTS:** 1\. The counsel for the respondent submitted that clause (2) of Article 310 will not apply in the absence of contractual provision for Compensation. 2\. The counsel for the respondent submitted that, according to the facts of the case, there will be no application of a legitimate exception. 3\. The counsel for the respondent submitted that there was no order of government in terms of Article 166 of the Constitution regarding compensation. 4\. The counsel for the respondent submitted that there was no legal provision regarding compensation on the grounds of premature termination of tenure. **B) RELATED LEGAL PROVISIONS** 1\. Article 166 of the Constitution of India: This Article covers the conduct of business by the government in a state. It mentioned that all executive action of the government of the state shall be expressed to be taken in the name of Governor. 2\. Clause (2) of Article 310 of the Constitution of India: This clause empowers the Governor to enter into contracts providing for compensation. 3\. Section 4(b) of the Rajasthan Taxation Tribunal (Repeal) Ordinance, 1999: This section states that the repeal of the Rajasthan Taxation Tribunal Act, 1995, shall not affect any liability incurred under the repealed Act. **H) JUDGEMENT** **a. RATIO DECIDENDI** 1\. The appellant prays for issuing a writ of mandamus to the State of Rajasthan to pay compensation for the termination of his premature tenure as chairman due to the abolishment of the Taxation Tribunal. 2\. The high court dismissed his claim as there is no government order in terms of Article 166 of the Constitution regarding cabinet decisions. 3\. The High Court also found that the principle of legitimate exception did not apply to the facts of the case. 4\. Clause 2 of Article 310 did not apply in the absence of contractual provisions for compensation. **I) CONCLUSION & COMMENTS:** In my opinion, the decision of Rajasthan High Court was very intense, as there are Facts of the case there was no government order in terms of Article 166 of the constitution regarding cabinet decision on compensation and also there is no any application of Principle of legitimate exception did not apply to the facts of the case and also there was no any specific provisions for compensation in relevant statutes govern tribunals abolition. Legal Provision was not Complied. **J) REFERENCES** **a. Important Cases Referred** i. National Building Construction Corporation vs. S. Raghunathan & Ors. (1998 (7) SCC 66). ii. Sri Justice S,K,Ray, vs State of Orissa and Ors. JT 2003(1) SC1660 **b. Important Statutes Referred** i. CONSTITUTION OF INDIA,1950 ii. Rajasthan Taxation Tribunal (Repeal) Ordinance, 1999 **Categories:** Case Analysis --- ### [GOVERENMENT OF NCT OF DELHI V. UNION OF INDIA, 2023 SCC OnLine SC 606](https://lawfoyer.in/goverenment-of-nct-of-delhi-v-union-of-india-2023-scc-online-sc-606/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Krishna Parmar, Law Student at Marwadi University Edited By: Manik Tindwani** **ABSTRACT / HEADNOTE** The present case deals with the issue that arises from the partial statehood given to Union Terriority, Delhi \[The National Capital Territory of Delhi\]. There is a power struggle between the state government \[Aam Admi Party led by Arvid Kejriwal\] and the Union Government of India. The main issue in the case is who would have control over the “service” and the civil servant of the NCTD. State government or Union government? In the judgment, the Supreme Court interpreted Article 239AA [\[1\]](#_ftn1)of the Indian Constitution as interpreted in the year 2018. The bench held that legislative and executive power is with the National Capital Territory of Delhi except for public order, police, and land. It was further stated that the Delhi government shall bind the lieutenant governor excluding the order relating to public order, police, and land. ***Keywords* *(Minimum 5)*:** Article 239AA, Article 239AA (3) (a), Union territory, state, NCTD, State list, Concurrent list, Entry no. 1,2, and 18 of List II. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Government of NCT of Delhi v. Union of India. ***ii)* *Case Number***Civil Appeal No 2357 of 2017 ***iii)* *Judgement Date***11th May, 2023. ***iv)* *Court***Supreme Court ***v)* *Quorum / Constitution of Bench***Pamidighantam Sri Narasimha, Hima Kohli, Krishna Murari, Dhananjaya Y Chandrachud. ***vi)* *Author / Name of Judges***Dhananjaya Y Chandrachud. ***vii)* *Citation***2023 SCC OnLine SC 606.***viii)* *Legal Provisions Involved***Article 239 AA (3)(a),**INTRODUCTION AND BACKGROUND OF JUDGEMENT** In the said judgment decision was held by a five-judge constitutional bench because of split judgment was held by the general bench of the Supreme Court and in this judgment, the bench has given the clarity of those matters or that area which is not interpreted in the previous case. Further, it held the partially same thing that was held by the previous bench but with more clarity and reference. **FACTS OF THE CASE** **i) Procedural Background of the Case** 1. 1. *The issues arose after the notification passed by the Union Ministry of Home Affairs on 21-05-2015 “to the extent delegated to him from time to time by the President” over “services”, in addition to “public order”, “police”, and “land.” The LG may seek the views of the Chief Minister of NCTD at his “discretion”.[**\[2\]**](#_ftn2)* In which the “services” were excluded from the scope of power of state government. 2. Delhi High Court held that Delhi government has neither legislative nor executive powers in matters related to service. 3. In 2018 [\[3\]](#_ftn3)Supreme Court held that the Delhi government has the power to enact laws enumerated in List-1 and list-2 of the constitution*. “Further, it was held the phrase “insofar as any such matter applies to Union Territories” is an inclusive term, and “not one of exclusion”. and cannot be used to restrict the legislative power of the Legislative Assembly of Delhi.[**\[4\]**](#_ftn4)”* 4. In 2019 bench gave a split judgment and differed on whether services are excluded or not. **ii) Factual Background of the Case** The same appeal was again referred by the Supreme Court of India because of the split verdict given in the year 2019. **LEGAL ISSUES RAISED** 1. Whether the Government of Delhi or the Lieutenant Governor acting on behalf of the Union Government would control the “services” in the National Capital Territory of Delhi? 2. Whether the control of Delhi’s civil servants with the Union Government of Delhi Government? - Whether the phrase “***insofar as such matter applies to Union Territories***” in Article 239AA is inclusionary or exclusionary. **APPELLANT’S ARGUMENTS** - The counsel Appellant submitted that the power to enact laws under Entry 41 of List II of the Legislative Assembly of NCTD cannot be excluded just because the term used is “state public services” and not “Union Territory Public Service”. Except for entries 1,2, and 18 NCTD has executive and legislative power. - The phrase “insofar as such matter applies to Union Territories” in Article 239AA is inclusionary and not exclusionary. The term “state” is used in the multiple entries in List II and III. The phrase “insofar as such matter applies to Union Territories” is a phrase that is the reason why such entries are to be made available to NCTD without an amendment. **RESPONDENT’S ARGUMENTS** - The counsels for Respondent submitted that the 2018 Constitution bench didn’t decide whether NCTD has legislative power to enact the law on Entry 41 of List II. Another reason why NCTD has no power over Entry 41 of List II is that Delhi is a union territory and it can’t have the State Public Service or a State Public Service Commission. - The phrase “in so far as any such matter applies to Union Territories” under Article 239AA means that the entries which are given under List II are available to the extent which are available to UTs. For the matters that are ‘applicable’ to Union Territories to that extent, only NCTD has the power to legislate and only on the Entry which applies to Union Territories. - The Union of India’s control over “services” hasn’t caused any problems for the NCTD’s governance, and The Transaction of Business Rules 1993 gives Ministers of GNCTD sufficient authority to guarantee functional and supervisory control over the civil services to guarantee their proper operation; the regulations about the civil services indicate that the Union has administrative control. **RELATED LEGAL PROVISIONS** **Article 239AA (3) (a).[\[5\]](#_ftn5)–** “*Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such mailer is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2, and 18”.* **JUDGEMENT (RATIO DECIDENDI)** A Constitution Bench included Chief Justice DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hime Kohli, and Justice PS Narasimha held that the Delhi Government has legislative and executive authority over administrative services except the matters related to public order, law enforcement, and land. **CONCLUSION & COMMENTS** In the case of Government of NCT Delhi v. Union of India court has broadly interpreted the meaning and scope of Article 239AA concerning previous cases and resolved the conflict between the state and Union and also stated the concept of state and partial statehood which Delhi has despite of the fact that it is a Union territory and said that NCTD is not similar with the other UTs. **REFERENCES** - **Important Cases Referred** - - Government of National Capital Territory of Delhi v. Union of India, (2016) 232 DLT 196. - State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 - **Important Statutes Referred** - Constitution of India, 1950. [\[1\]](#_ftnref1) INDIA CONST. art. 239AA. [\[2\]](#_ftnref2)Explaine SCC Times, https://www.scconline.com/blog/post/2023/05/13/explained-supreme-court-judgment-settling-tussle-between-delhi-govt-and-centre-legal-news/ (last visited Jun 4, 2024) [\[3\]](#_ftnref3) State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501. [\[4\]](#_ftnref4) *Supra* note 02. [\[5\]](#_ftnref5)INDIA CONST. art. 239AA, cl. 3. **Categories:** Case Analysis --- ### [Babulal Parate vs The State of Bombay](https://lawfoyer.in/babulal-parate-vs-the-state-of-bombay/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Aneel Meghani, Law Student, Sindh Mehran Institute of Law, Jamshoro** **Edited By: Aman Tyagi, Law Student, University Five Year Law College, Jaipur** 1. **ABSTRACT / HEADNOTE** The Supreme Court of India held the validity of the States Reorganisation Act 1956, which formed a composite separate State of Bombay. The appellant challenged the Act, alleging that it contravened Article 03 of the Indian Constitution, as the State Legislature had no opportunity to express its views on the formation of the separate state. The Supreme Court of India interpreted Article 03 of the Indian Constitution, that the reference of the President of India to the State Legislature is only for subsequent amendments. The composition of the State of Bombay was deemed an amendment of the original proposal, not the new proposal. The appeal was dismissed with costs and validated the States of Reorganisation Act 1956 and the formation of a completely separate composite State of Bombay as we all know the constitution of every country is considered as the backbone of all the laws. Whenever any dispute arises regarding the statutory interpretation, the judiciary always takes charge of handling the dispute. In this case, we will study in what manner the constitutional validity of section 08 under the State Reorganisation Act was determined by the Superior Court when the matter concerned the separate State of Bombay instead of the formation of three unitary states as already proposed in the original bill before becoming the Act. ***Keywords* *(Minimum 5)*:** Supreme Court of India, Constitution, Composition of State of Bombay, Interpretation of Article 03, State of Reorganisation Act, 1956 1. **CASE DETAILS** **i) Judgement Cause Title / Case Name** Babulal Parate vs The State of Bombay and Another **ii) Case Number** Civil Appeal No. 342 of 1956 **iii) Judgement Date** 28/08/1959 **iv) Court** The Supreme Court of India **v) Quorum / Constitution of Bench** S.K. Das, A.K. Sarkar, K.N. Wenchoo, M. Hidayatullah **vi) Author / Name of Judges** S.K. DAS **vii) Citation** 1960 AIR 51, 1960 SCR (1) 605, AIR 1960 SUPREME COURT 51, 1960 (1) SCR 605, 1960 SCJ107, 1959 MPLJ 1037, 1959 62 BOM LR 58 **viii) Legal Provisions Involved** Article 01 of the Constitution of India, Article 226 of the Indian Constitution, Article 132 of the Indian Constitution, Article 122 (1) of the Indian Constitution, State Reorganisation Act 1956 1. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** This case is one of the most famous cases in the history of India, in this case, the petitioner made an argument before the Supreme Court of India that the State Reorganisation Act 1956 contravened article 03 of the Constitution of India and questioned the validity of States Reorganisation Act 1956. Before passing the act, the President of India recommended the States Reorganisation Act before the Parliament and Legislatures to give their views and opinions on the matter of the formation of three units as per the original proposal: 1. The Union Territory of Bombay 2. The State of Gujrat 3. The State of Maharashtra The new amendment related to the matter in which only one separate State of Bombay was made rather than three different unitary states and the bill was passed with the assent of the President and the President did not refer to the Parliament or Legislature for the modification. Later, in this regard, the petitioner filed a petition before the High Court of Bombay under Article 226 of the Constitution of India and alleged that the formation of the State of Bombay contravened Article 03 of the Constitution of India instead of three separate states as proposed in the original bill. This writ petition was heard by the High Court of Bombay on September 14, 1956, and the High Court dismissed the petition and expressed that there was no violation of Article 03 of the Constitution. The appellant then obtained the certificate under article 132 (1) and filed an appeal in the Supreme Court of India on behalf of that certificate. **2. FACTS OF THE CASE** **i) Procedural Background of the Case** A bill was introduced in the Parliament on the report of the States Reorganisation Commission and as recommended by the President of India under the proviso of Article 03 of the Constitution of India The Bill was proposed to make three unitary separate States- - Union Territory of Bombay - Maharashtra, including Marathawada & Vidarbha - Gujarat, including Saurashtra & Cutch The Bill was sent by the President in the State Legislature for their views. The bill was considered by the House of the People & Council of States and made a report. The Parliament amended the bill which came to be known as the States Reorganisation Act, of 1956. The appellant Babulal Parate filed a petition challenging the Act under Article 226 of the Constitution of India The High Court of Bombay dismissed the petition and the appellant obtained the certificate and filed an appeal before the Supreme Court of India. The Supreme Court held that the Act was not against the Constitution of India and dismissed the appeal with cost **ii) Factual Background of the Case** - The Prime Minister of India in December 1953, announced the formation of a States Reorganisation Commission to examine the Reorganisation of the States and submit the report within a given time - The Commission made a report and on the basis of that report a Bill was introduced in the Parliament in April 1956 to make three separate States/Units - The Bill was sent to the three States Legislatures for the views as required by the article 03 of the Constitution of India - The State Legislatures expressed their views and then the Bill was sent to the Joint Select Committee of Parliament - The Committee of Parliament made its report and made some amendments to the Bill - The amendment included the formation of a unitary state instead of three separate units - The States Reorganisation Act received the assent of the President of India on 31st August 1956 - The appellant filed a petition before the High Court of Bombay arguing that the Act contravenes the Article 03 of the Constitution - The High Court of Bombay dismissed the petition leading to the appeal in the Supreme Court **3. LEGAL ISSUES RAISED** The issues raised in this case: 1. Whether the formation of a composite State of Bombay as one unitary state instead of three separate states as proposed in the original bill 2. Whether the provision to Article 03 of the Constitution requires a fresh reference to the State Legislature or any modification 3. Whether the word Bill in the provision includes amendments or substantial amendments to the original proposal 4. Whether the formation of the State of Bombay was a new proposal or a modification of the originally proposed bill **4. PETITIONER/ APPELLANT’S ARGUMENTS** *The counsels for Petitioner / Appellant submitted that:* - The appellant argued that, according to article 03 of the constitution, the State does not include only the geographical entity but also people living in that region are part of the State, the Parliament should hear them and give them a chance to give their opinions on the changes to the proposal and include any amendments to the original bill. - The term Bill should include any substantial amendment and should hear the views of State Legislatures - The Legislature of the State of Bombay did not have the opportunity to express their views about the changes that have been made - The formation of the State of Bombay is different from the original proposed bill. The counsels for Respondent submitted that - The term “State” refers to the geographical entity specified in the Constitution of India - The term “Bill” shouldn’t be interpreted to every amendment. It emphasized that a broad interpretation of the “Bill” to include any amendment could nullify the effect of Article 122 (1) - The Respondent Council emphasized that the formation of the State of Bombay was a valid formation. There was no need for fresh reference to the State Legislature 1. **RELATED LEGAL PROVISIONS** - **The Constitution of India** 1. Article 03 of the Constitution of India: i) It empowers the Parliament to form a new State by separation of territory or uniting two or more states or part of states ii) Increase or decrease the area of any State iii) Alter the name or boundaries of any State 2. Article 226 of the Constitution of India: i) According to Article 226, every High Court shall have powers, throughout the territories in relation to which it exercises the jurisdiction to any person or territory 3. Article 132 of the Constitution of India: i) According to this, an appeal shall lie from any judgment or decree that has been passed by the High Court to the Supreme Court of India whether in civil criminal or other proceedings 4.Article 122(1) of the Constitution of India: i) Article 122 (1) protects the validation of legislative proceedings and challenges - ***State Reorganisation Act, 1956*** 1. Section 8(1) of the State Reorganisation Act: i) Formed a new State of Bombay, comprising of specified territories 1. **JUDGEMENT** **RATIO DECIDENDI-** There were two conditions:- 1\. The key factor was on the proviso to Article 03, that if the bill is affecting the area, boundary, or name of any state, the President shall send the bill to the State Legislature for their opinions or views 2\. The second condition was that the President shall send the proposal contained in the bill to the State Legislature only but not for any subsequent amendment made by the Parliament. The petitioners argued that to apply a broader interpretation of the State, they should include its people and consider any significant modification as required in the fresh bill. As per the second condition of Article 03 of the Constitution of India, for the formation of the State of Bombay under section 8(1) of the State Reorganisation Act 1956, the President must refer the proposal from the bull to the State Legislature within the specified time for their views - **OBITER DICTA (IF ANY)-**The Supreme Court of India believed that there would be potential challenges and difficulties if an interpretation applied to Article 03. It noted that such an interpretation could lead to conflict and negative views from the different State Legislatures. 1. **CONCLUSION & COMMENTS** In conclusion of the Judgment, the Supreme Court of India stated that the proviso to Article 03 of the Constitution of India does not require a fresh reference to the State Legislature if the Parliament subsequently modifies the proposal. The judgment reflects the historical context of the State reorganization, provides insights into the challenges and considerations faced by the framers of the Constitution, and highlights the significance of constitutional provisions in protecting the rights and interests of the State and citizens. The Court clarifies that the requirement of referring a proposal to the State Legislature is fulfilled when the President of India refers the proposal for the expression of its views by the State Legislatures and there is no need for fresh reference and composition of the State of Bombay was not the violation of article 03 of the constitution. The judgment clarifies the State Reorganisation, reinforcing the federal structure, promoting state autonomy, setting a legal precedent offering historical insights, and enhancing the public awareness of constitutional principles. 1. **REFERENCES** 1. **Important Cases Referred** 1. *https://indiankanoon.org/doc/1905293/* 2. **Important Statutes Referred** 1. *The Constitution of India* 2. *State Reorganisation Act, 1956* 3. *The American Constitution* **Categories:** Case Analysis --- ### [K.S. Puttaswamy v. Union of India](https://lawfoyer.in/k-s-puttaswamy-v-union-of-india/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: I Sharan, Student, CHRIST (DEEMED TO BE) UNIVERSITY, BANGALORE** **Edited By: Aman Tyagi, Student, University Five Year Law College, Jaipur** 1. **ABSTRACT / HEADNOTE** The modern world is technology-based. Unlike the olden times when people were isolated from the world, modern people are all connected through the internet. The technological improvements pose a great threat as they have access to the individual’s information which is accessible through their electronic devices. One such technological advancement was the Aadhar Scheme which required the collection of biometric information of individuals and storing it. K S Puttaswamy filed a case opposing this scheme stating that this scheme violates the right to privacy. Questions were raised on whether the right to privacy is present as a fundamental right in the Constitution. After several discussions and going through various case laws, the meeting of the Constitutional Assembly, the origins of privacy, the articles of various scholars like J S Mill and the changing social order the Supreme Court declared that the right to privacy is a fundamental right which falls under Article 21 and is protected by Part III of the Constitution. The Judgment also served as a basis for the Union Government to take steps to introduce the Data Protection Bill in the Parliament. The Judgement as a whole is considered a landmark judgment which emphasized the importance of privacy regarding an individual. ***Keywords*:** Privacy, K S Puttaswamy, Aadhar case, Article 21, Fundamental right, right to privacy. 1. **CASE DETAILS** ***i)* *Judgment Cause Title / Case Name*** K.S. Puttaswamy v. Union of India ***ii)* *Case Number*** Writ Petitions (C) No. 494 of 2012 ***iii)* *Judgment Date*** August 24, 2017 ***iv)* *Court*** Honourable Supreme Court of India ***v)* *Quorum / Constitution of Bench*** 9 Judges Bench ***vi)* *Author / Name of Judges*** Justice D Y Chandrachud authored the opinions of Justice J.S Khehar (CJI), Justice R K Agarwal, Justice A Nazeer, and himself. Justices SA Bobde, A M Sapre, Jasti Chalameswar, R Nariman, S K Kaul gave their differing opinions. ***vii)* *Citation*** K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1 ***viii)* *Legal Provisions Involved*** Article 21 **1.INTRODUCTION AND BACKGROUND OF JUDGMENT** K S Puttaswamy (retired justice), filed a writ petition in the Supreme Court of India challenging the Aadhar card scheme introduced by the Central Government in 2009. The UIDAI gives citizens of India Unique Identification Numbers (UNI) through Aadhar cards. The main problem he brought up was that this scheme intrudes on an individual’s right to privacy. Whether privacy is a fundamental right and if it is protected by the Constitution were also asked. Privacy is a right under Article 21 according to the Court which took into consideration what was said by both sides before making their decision; they further held that Part III of our constitution protects this right too. **2. FACTS OF THE CASE** **i) Procedural Background of the Case** The Case was first referred to a three-judge bench in the Supreme Court, which stated that a larger bench is required to decide on this case as there is a question of the Constitution. Thus, a nine-judge bench decided the case. ii) Factual Background of the Case** In 2009, the Central Government launched the UIDAI scheme which provides Unique Identification numbers in the form of Aadhar cards to its citizens. These cards are necessary for people to avail themselves of benefits under various other government schemes which can be received through linking their Aadhar card with respective bank accounts. The UIDAI was to collect the biometric information of the individuals and store this information to identify the individual. Questioning this data collection procedure of the UIDAI; K S Puttaswamy, a retired judge filed a case in the Supreme Court stating that the collection of biometric data and storing of this information can be considered as an infringement of the right to privacy of an individual. **3. LEGAL ISSUES RAISED** 1. Whether Privacy is Constitutionally protected 2. Whether the Indian Constitution protects privacy as an essential principle 3. Whether the decisions of the Supreme Court in *M.P. Sharma and Ors. vs. Satish Chandra* and *Kharak Singh* are valid 4. Whether privacy as a right is protected under Part III of the Constitution 5. Whether the right to privacy exists as a separate right or whether it should be considered as a part of the right to life and liberty **4. PETITIONER/ APPELLANT’S ARGUMENTS** The petitioners said that even trivial issues on invasion of privacy attract the right to privacy. They also claimed that the decisions in the cases of M P Sharma and Kharak Singh failed to reflect the legal position and therefore, have been overruled in the cases of Rustom Cavasji Cooper v Union of India and Maneka Gandhi v Union of India. The right to privacy according to them is a fundamental right that is connected with personal liberty as well as dignity; they drew Court’s attention towards Articles 14,19,20,21 and 25. Moreover, it was claimed that privacy should be considered essential by all means apart from being recognised domestically; internationally also various forums have recognised it under human rights law. The counsels relied on many authorities touching upon this subject matter to establish naturalness or “presumed presence” under our Constitution Advocate Kabil Sibil supporting the petitioners said that privacy is to be recognised as a fundamental right and *State action that violates the fundamental right to privacy must contain at least four elements, namely: “The action must be sanctioned by law; the proposed action must be necessary in a democratic society for a legitimate aim; The extent of such interference must be proportionate to the need for such interference; There must be procedural guarantees against abuse of such interference.”[**\[1\]**](#_ftn1)* **5.RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that the Constitution does not mention the right to privacy. The Attorney General of India appearing on behalf of the Union of India stated that the existence of fundamental rights is in doubt when regarding the previous two judgments in *MP Sharma* and *Kharak Singh.* They submitted that the decision in MP Sharma was given by an eight-judge bench and the decision in Kharak Singh was delivered by a six-judge bench. The respondents also mentioned that based on the observations of these cases; it can be concluded that the Constitution does not specifically protect the right to privacy. It was also said that ‘there is no fundamental or general right to privacy; Part III of the Constitution covers some facets of privacy there is no right to privacy present in the Constitution as a blanket right which contains all these facets under it; though Part III of the Constitution protects certain aspects of privacy, they are subject to certain restrictions by the state in case of public interest; also privacy has not been defined clearly and that the framers of the Constitution have not put much thought into it.’ The respondents wanted the Court to consider the right to privacy as an elicit construct. The Attorney General wanted the Court to stand with its decisions in MP Sharma and Kharak Singh’s case. The Additional Solicitor General of India appearing for the UIDAI, supporting the Attorney General said privacy is a vague and subjective concept. The attorney general asked the Court to use the US Court’s standard to test whether the petitioner satisfies the “reasonable expectation of privacy” for such an infraction of privacy to be considered a fundamental right. It was submitted by the counsels supporting the respondents that life and personal liberty have been included in Article 21 and that even the US doesn’t use the right to privacy to test the laws which were earlier tested on its basis. The Attorney General said that the right to privacy at best can be considered only as a common right and not as a fundamental right. **6.RELATED LEGAL PROVISIONS** The main legal provision that was referred to while discussing this case in the court was Article 21. Article 21 states “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[\[2\]](#_ftn2) Discussions were made on whether the right to privacy is part of Article 21 as it deals with personal liberty and the right to life. There were also discussions regarding Part III of the Constitution which deals with fundamental rights on whether it implicitly mentions the right to privacy. **7. JUDGMENT** The Judges declared their decision supporting the presence of the right to privacy under Article 21 and that it is protected by Part III of the Constitution. They gave three rules on how to test for privacy. The first rule is to consider the opposite. Accordingly, Privacy is to be deemed as a synonym of publicity. A person can decide what he wants to be kept private and what he needs to be kept as public. Privacy is directly and indirectly connected to the actions performed to protect it from interference. To check if an actionable claim is available against an action regarding privacy, two essentials are to be present. The two essentials required to establish an act as a private act are intent to choose and specify. An individual can choose whom he wants to share information or property with and specify who these other people are. The Court also stated that privacy is not limited to property and places. Also, it held that private information is inaccessible to others. The Judges also stated that any violation of the right to privacy by any authority mentioned under Article 12 must satisfy tests applicable to the rights mentioned under Part III of the Constitution. The Judges stated that the Court’s decision in the *MP Sharma* and *Kharak Singh* cases are overruled and their decision in this case will prevail over it. **8.CONCLUSION & COMMENTS** The K S Puttaswamy case is considered a landmark judgment which paved way for new rules and guidelines regarding privacy in India. The counsels appearing for the petitioners and the respondents referred to various national and international case laws to present their side of the argument in the Supreme Court. Several references were also made to the international declarations on privacy. After analysing and hearing both parties the judges declared that privacy is a right protected under Part III and Article 21 of the Constitution. This judgment serves as an important guiding framework in the modern world where the issues related to privacy are on the rise. It is considerable of the court to do a detailed analysis of the law and case laws in India and outside India to take this decision. They also took into consideration the changing social situations which require the protection of private life and information of individuals. The Judgement also influenced several future cases like the Navtej Singh Johar v Union of India 2018, a landmark judgement relating to same-sex relationships. - **REFERENCES** 1. Justice K.S.Puttaswamy(Retd) And Anr. vs Union Of India And Ors. 2017 (10) SCC ( ) 2. MP Sharma v. Satish Chandra, (1954) SCR 1077 ( ) 3. Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR 332 4. ( ) 5. R.C. Cooper v. Union of India, (1970) 1 SCC 248 6. ( ) 7. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 8. ( ) 9. Article 21 ( ) 10. Article 12 ( ) 11. Article 19 ( ) 12. Article 20 ( ) 13. [\[1\]](#_ftnref1) JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 2017 SCC 10 14. [\[2\]](#_ftnref2) *Article 21: Protection of Life and Personal Liberty* (2023) *Constitution of India*. Available at: [https://www.Constitutionofindia.net/articles/article-21-protection-of-life-and-personal-liberty/](https://www.constitutionofindia.net/articles/article-21-protection-of-life-and-personal-liberty/) (Accessed: 05 June 2024). **Categories:** Case Analysis --- ### [SILENT FEATURES OF NEW CRIMINAL LAWS OF BHARAT](https://lawfoyer.in/silent-features-of-new-criminal-laws-of-bharat/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: SANJAY KANNAN B, Student, BHARATH UNIVERSITY, CHENNAI** **Edited By: Aman Tyagi, Student, University Five Year Law College, Jaipur** 1. **INTRODUCTION** In this research article, the author just analyzed the silent features of **New criminal laws in Bharat**. As well as to analyze the distinction between new and old criminal laws (amended), According to the British rule in India chief commending governor of India framed an ***Indian penal code in 1860[\[1\]](#_ftn1)****.* That is only to punish the Indian people and not to render justice. The government of India made the procedure and forwarded the matter to the official committee to follow the legality and rule of law and justice of the *Indian Penal Code 1860, Criminal Procedure Code, and Civil Procedure Code.* *Bharatiya Nyaya Sanhita (BNS)*, 2023, *Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and Bharatiya Sakshya Bill (BSB), 2023[**\[2\]**](#_ftn2)* ***Keywords*: *(Bharat, criminal, justice, Government).*** 1. **SUB-HEADINGS** 1. **Meaning, Definition & Explanation** - **The word “criminal” – is** when anything is a person that has to be punished under local law or special law with or without imprisonment or with or without fine. - **IPC** – Indian Penal Code 1860 - **CRPC-** Criminal Procedure Code - **CPC**– Civil procedure code. - **BNS** – Bharatiya Nyaya Sanhita (BNS), 2023 - **BNSS**– Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 - **BSB-** Bharatiya Sakshya Bill, 2023 2. **Historical Background / Evolution** The committee was formed under the head of Professor Ranveer Singh who is a ***vice chancellor of National Law University Delhi***, according to the committee’s recommendation The Honourable Prime Minister and Home Minister Government of India, formed a new drafting committee[\[3\]](#_ftn3). Regarding the new criminal law amendment according to the Parliament regulations, the ***Honourable Home Minister of India*** introduced the bill at both the Parliamentary House and process successfully passed and according to the procedure established by law instead of IPC, CRPC, and CPC.As per the notification from Home Ministry and legal Affairs new criminal law amendment goes into force at *1 July-2024[**\[4\]**](#_ftn4).* 3. **Types / Kinds (if any)** - **BNS** – Bharatiya Nyaya Sanhita (BNS), 2023 - **BNSS**– Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 - **BSA-** Bharatiya Sakshya Adinayam, 2023 **PARTICULARS****Bharatiya Nyaya Sanhita (BNS), 2023****Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023****Bharatiya Sakshya Bill, 2023****NEW SECTIONS***8 SECTIONS**9 SECTIONS**1 SECTIONS***CHANGED LAWS***175 SECTIONS**160 SECTIONS**23 SECTIONS***REMOVED SECTION***22 SECTIONS**9 SECTIONS**5 SECTIONS***TOTAL*****356- SECTIONS****Instead of 511 sections* ***533- SECTIONS*** *Instead of 478 sections****170 -SECTIONS*** *Instead of 167 sections***4.Exceptions/ explanation** 1. ***INDIAN PENAL CODE, 1860 (511 to 358) SECTIONS-*** According *to section 2 of BNS* – definition the Defend in the name of *citizen, terrorism, offence against to the children’s and women’s* is fully codified under a new criminal law. As per the interpretation clause the words *document, gender, movable property, public, theft of data, theft of intangible assets* are clearly explained. Next Section 11 of **Bharatiya Nyaya Sanhita (BNS), 2023** is solitary confinement- there is no change between old and new criminal laws, Sec 2 (21) is include a corporate before the word property only movable property now also with data theft.[\[5\]](#_ftn5) *Section* 124 and 124a of wrong full resident- during the British government period Raj droha is on force, after the republic of India law amended to desa groha, the word sedation omitted and the act of against sovereignty unity and integrity of India is added in the particular act. Section 133 of **Bharatiya Nyaya Sanhita (BNS), 2023** was unlawful activity against to the government of India and foreign state at the peace with the Government of India. 2. **Legal Provisions-** Important provision of a Bharatiya Nyaya Sanhita (BNS), 2023 is section 106 is nothing but, causing death by negligence and hidden Run case is causing death by negligence the punishment was increased up to 2 years to 5 years. The medical practice causing a death of negligence is the punishment is less than 10 years. According to the BNS *the Delhi Road report* causing 555 cases as per **the Census of government 46%** in the year of 2021. For example, car accident accident is happened in the particular road and suspect is escaping for the spot that results in their crime report. And the punishment for hid and run is increased up to 2 years to 5 years. In the form of medical negligence during the practice of causing a death of negligence is the punishment is less than 10 years because, **the National crime report data 2020,** First information report is fully fake and major case had no *prima facia* I evidence in the medical report. *Hon’ble Supreme Court of India* [\[6\]](#_ftn6) observed in Limited of the view of increasing a vehicle accident and victim sufferings, but the critical golden horse in the team of motor vehicle acts 1988 is not followed and limited. IPC Section *307 attempt murder is punishment* if decrease from dead penalty to life sentence because of more numbers of false cases. Section 111 is new provision of **Bharatiya Nyaya Sanhita (BNS), 2023** contacts unlawful activity is *kidnaping, robbery vehicle, theft extraordinary, land gathering, contract killing and economic offences, Cybercrimes trafficking of a person and drugs weapons* on the illegal goods and securities illegal goods and services human trafficking are added by the drafting committee.[\[7\]](#_ftn7) New 107 old – insane person / idiot, change it to the person of unsound mind. The section is amended to better definition of particular clause. Section 13 **of Bharatiya Nyaya Sanhita (BNS), 2023** sub class one the word terrorist was defined, however does any act with the intern to do lying of tender of Unity integrated and the sovereignty and security of economic security of India with the internets of taking terror in a peace are also defined under **UAPA** act[\[8\]](#_ftn8). 3. **BHARATIYA NAGARIK SURAKSHA SANHITA (BNSS), 2023 –** BNSS – section 2 defined about the new interpretation regarding the word’s audio, video elements with a mail and electronic Communications for the police and lawful investigation boards and pressure used to the legislation, but not defined out the bail Bond and Bond. As per the norms and regulations of **Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023** Criminal Court and officers from the section 6 from 20 of BNSS to procedure of making of legal regulations and court proceedings. COURT POWER section -21 -29 of *Bharatiya Nagarik Suraksha Sanhita (BNSS), Sub* clause of act fine amount for punishment 10 thousand rupees to 50 thousand rupees of act, 2023. 2nd clause 5 thousand rupees to 10 thousand rupees. Section -35 of BNSS amended as to maintain legal process of arrest without warrant and Section 51 of *Bharatiya Nagarik Suraksha Sanhita BNSS* is medical examination by registered medical practise nor by registered to buy National medical Commission act 2019. Section 105 Bharatiya Nagarik Suraksha Sanhita *recording of screening of sensing through the audio video effective evidence* to the court process, Section 173 Bharatiya Nagarik Suraksha Sanhita BNSS, Cognizable offence and preliminary enquiry, online first information report and ***zero First Information Report*** with any jurisdiction with valid legal matter[\[9\]](#_ftn9). Section 174 police information to the airpower information as to *non- Cognizable* cases and investigation of such particular case with valid court proceeding. 4. **EVIDENCE ACT – BHARTIYA SAKSHI ADHINIYAM 2023-** Section 2 of ***Bharatiya Sakshya Adinayam*, 2023** comparison provisions between old evidence act and new Sakshya Adinayam is not more amended and only 1 section has been added with 170 inserts of 167. The word definitions from the documents evidence words of Impressions also explain in *Information Technology Act 2000*. According to the Section 32 of **BSA *Bharatiya Sakshya Adinayam*** relevance of statement as to any law container in the law books and industry or electronic or Digital form to maintain the rule of law and justice to today’s technological driven world. Related to the above provision is Section 73 the proof of a verification of digital signatures is newly added. 5. ***Bharatiya Sakshya Adinayam-*** Under Section 61 is a new section is to maintain the nothing in Athena shall apply to the Electronic on the grounds that it is an electronic or Digital record such as subject of a sub section of 66 BSA that the cycle legal effort validity as other document. The electronic documents like WhatsApp chats, screen shots, digital signature is usally to find a suspected person in the particular case. 6. **NOTIFICATIONS –** Notification given by the home ministry government of India, new criminal laws of Bharat come into force from the date of gazette notification by the official authority of India – section officer to govt. of India. 7. **CASE LAWS-** The Hon’ble Supreme Court of India dismissed a Public Interest Litigation challenging India’s new criminal law, with the contact of “***defects and discrepancies*.” *Justices Bela M Trivedi and Pankaj Mithal dismissed the petition stating that laws are not in force.* Advocate Vishal Tiwari said that the new criminal laws are claimed, laws be amended without proper debate. 8. **INTERPRETATIONS-** *Section 111* of BNS is a new provision of *Bharatiya Nyaya Sanhita (BNS),* 2023 contacts unlawful activity is *kidnaping, robbery of vehicle, theft extraordinary, land gathering, contract killing, and economic offenses, Cybercrimes trafficking of a person and drugs weapons* on the illegal goods and securities illegal goods and services human trafficking are added by the drafting committee. *Bharatiya Sakshya Adinayam* under Section 61 is a new section to maintain that nothing in Athena shall apply to the Electronic because it is an electronic or Digital record. 9. **Doctrines / Theories –** “*Overhaul the Indian criminal justice system” is a basic doctrine of the legal system stating the removal of colonial laws made by British law.* 10. **Amendments –** - **BNS** – Bharatiya Nyaya Sanhita (BNS), 2023 - **BNSS**– Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 - **BSA-** Bharatiya Sakshya Adinayam, 2023. Above, bills are passed in both the house of Indian parliament – Lok Sabha (house of people) and upper house Rajya Sabha – house of state procedure established by law. 11. **Statistical Analysis-** - The critical golden horse in the team of Motor Vehicle Acts 1988. - Delhi road accidents **46%** by *Delhi government* in the year **2019[\[10\]](#_ftn10).** - Committee was formed in the head of Professor Ranveer Singh who is a vice chancellor of *National Law University Delhi*, according to the committee’s recommendation. **CONCLUSION & COMMENTS** *Hon’ble Supreme Court of India* observed in Limited of the view of increasing a vehicle accident and victim sufferings, but the critical golden horse in the team of Motor Vehicle Acts **1988** is not followed and limited. IPC Section 307 attempted murder is the punishment if decreased from dead penalty to a life sentence because of more numbers of false cases. And to amend of evidence act to maintain the rule of law – to accept new electronic evidence in the procedure of court. CRPC – Section -35 of BNSS amended to maintain the legal process of arrest without warrant and Section 51 of **Bharatiya Nagarik Suraksha Sanhita BNSS** is a medical examination by registered medical practice nor by registered to buy National Medical Commission act 2019. criminal procedure code is amended into new procedure of *FIR, Investigation, ZERO FIR.* 1. **REFERENCES** - Books / Commentaries / Journals Referred 1. BNS – Bharatiya Nyaya Sanhita (BNS), 2023 *P.JAIN* 2. BNSS- Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 3. BSA- Bharatiya Sakshya Adinayam, 2023. 4. The criminal law amendment 2023 *criminal law Manual* - **Sources Referred** 1. Official website of parliamentary affairs . 2. Web site of home ministry Government of India 3. [\[1\]](#_ftnref1) Indian penal code 1860 – criminal law in India . [\[2\]](#_ftnref2) Bharatiya Nyaya Sanhita (BNS), 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and Bharatiya Sakshya Bill (BSB), 2023 – criminal law amendment in the year 2023. [https://www.mha.gov.in/en/about-us/meet-the-minister/union-home-minister last access – 10/06/2024](https://www.mha.gov.in/en/about-us/meet-the-minister/union-home-minister%20%20last%20access%20-%2010/06/2024). 10 .00 am. [\[3\]](#_ftnref3) [www.nludelhi.com](http://www.nludelhi.com) – National Law University Delhi official website- last access 11/06/2024- 5.00 pm [\[4\]](#_ftnref4) [https://www.mha.gov.in/en/about-us/meet-the-minister/union-home-minister last access – 10/06/2024](https://www.mha.gov.in/en/about-us/meet-the-minister/union-home-minister%20%20last%20access%20-%2010/06/2024) [\[5\]](#_ftnref5) Official web site of parliamentary affairs government of India last access – 12/06/2024 – 11.00 pm. [\[6\]](#_ftnref6)[www.supremecourtofindia.com](http://www.supremecourtofindia.com) last access – 13-06- 2024. [\[7\]](#_ftnref7) Official web site of parliamentary affairs government of India last access – 12/06/2024 –12.20 pm. [\[8\]](#_ftnref8) [www.nia.gov.in](http://www.nia.gov.in) last access 12-06-2024 (UAPA ACT). [\[9\]](#_ftnref9) [www.tnpolice.gov.in](http://www.tnpolice.gov.in) last access 13-06-2024 (first information report). [\[10\]](#_ftnref10) Web site of home ministry Government of India last access 13-06-2024 time 4.00 pm **Categories:** Articles --- ### [Analyzing the Role of Plea Bargaining in Indian Criminal Justice System](https://lawfoyer.in/analyzing-the-role-of-plea-bargaining-in-indian-criminal-justice-system/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Biraj Kumar Sarkar, Student, (Surendranath Law College / University of Calcutta)** **Edited By: Aman Tyagi, Student, University Five Year Law College, Jaipur** 1. **Introduction-** The right to a speedy trial is a fundamental right guaranteed under Article 21 of the Indian constitution but in reality, more than 4 crore cases are pending in district and taluk levels alone. Overall 5.1 crore cases (2024) are pending all over India with 1.8 crore cases pending for the last 30 years. Not only that more than 70% of inmates of our Indian prisons are under trial. Lack of judiciary infrastructure, a huge number of court cases, and a lack of recruitment of judges are the main reasons for delay in our justice system. When an individual is detained by police for the allegation of some offense, that time the common man loses his respect in society, and due to the delay in trial, sometimes it leads to committing suicide or the real accused not being detained. To give some relief to courts, victims, or to the accused the lawmakers of India inserted a special chapter in the Code of Criminal Procedure 1973 in 2006 named “Plea bargaining” under chapter XXI A. Although this is not a new concept, around 90 countries have adopted this provision so far. Under this procedure, the person who is accused or the defendant can negotiate with the prosecution for a lesser punishment than what is provided by the law, by pleading guilty to a lesser serious offense. It is a legal agreement set up between the victim and the defendant which has some limitations and exceptions where this concept cannot be used. ***Keywords*:** Plea Bargaining, Crpc, Negotiation, Prosecution, Chapter XXIA, Defendant, Sentence bargaining, Trial. - **Meaning** Plea bargaining is the process that aims to reduce delays in the criminal justice system. The term plea bargaining is based on the principle of “nolo contendere” which means “I do not wish to contend”[\[1\]](#_ftn1). If we split the term “Plea Bargaining” into two words, the first word “plea” here refers to request and the second-word bargaining defines negotiation. Therefore we can say that plea bargaining involves requesting the victim to negotiate for a lesser punishment to avoid the rough sentence established by the law. “Plea bargaining literature predicts that party strike plea bargains in the shadow of expected trial outcome”[\[2\]](#_ftn2) – this implies that after predicting the sentence after the trial, the probability of the acquittal can be reduced by overlooking structural distortions. In a criminal case, under this concept, the victim and the defendant come to an agreement that after pleading guilty the prosecution will make some concession to the defendant’s punishment in return. The whole process of negotiation and agreement should be done under the supervision of the judge. 2. **Historical Background** The practice of plea bargaining was effective in the late 19th century in the United States but the origin of plea bargaining can be traced back to the 18th century in England where it was used to mitigate house sentences for capital offenses. In the 19th century[\[3\]](#_ftn3), the United States adopted it as an efficient process to tackle the growing number of cases in the USA. By the end of the 20th century plea bargaining became an effective solution for overburdened courts in the world. Many proponents argue that the plea bargaining system not only reduces the burden on the judiciary but is also beneficial for both defendants and victims. For the defendant, it is beneficial as they do not have to face harsh punishment and the victims also get justice in a reasonable time. It alleviates the burden of caseloads of the courts and reduces the time and resources required for court trials. However, the critics argue that plea bargaining can affect both the victim and the defendant as victims can be pressurized to accept the negotiation on the other side the innocent defendants can be pressurized to plead guilty. 3. **Evolution in India:** In ancient and medieval India, arbitration and mediation were the common methods for dispute resolution[\[4\]](#_ftn4). The Law Commission of India in 1991 had proposed concessional treatment for those who plead guilty on their own. Most of the legal communities supported this concept. The Law Commission of India in 2001, in its 177th report suggested the need for the concept of plea bargaining in India, which was later supported by the Justice Malimath committee[\[5\]](#_ftn5) in 2003. After that in 2006, the amendment to the Criminal Procedure Code brought legitimacy and constitutionality of plea bargaining in India by adopting Chapter XXIA. 4. **Types / Kinds:** The concept of plea bargaining depends on various factors. As every case has its factual circumstances we cannot choose any specific concept for any case. We can categorize various types of plea bargaining which can be utilized after concerning the nature and condition of the cases. Some of the most common types are[\[6\]](#_ftn6)– - **Charge bargaining:** Charge bargaining means being ready to plead guilty to a less serious charge in exchange for a reduction of the punishment established by the law. For example, a defendant charged with theft may plead guilty to trespass only. - **Sentence bargaining:** Sentence bargaining means the charge is the same but the sentence is lighter. For example, a defendant charged with kidnapping can plead guilty and reduce his sentence by cooperating with law enforcement. - **Fact bargaining:** Fact bargaining should not be used in the court as it violates the ethics of fair trial. It involves an agreement between the prosecution and the defendant that the specific facts or evidence will be present or omitted at the time of trial and the other will not present before the court. For instance, a person who committed robbery may reduce his sentence by pleading guilty and the prosecution presents the fact in trial that the defendant had snatched the victim’s watch only but did not apply any force to the victim. - **Count bargaining:** In this form of bargaining the defendant pleads guilty to some charges in exchange for the dismissal of other charges. For example, a defendant is facing many charges and agrees to admit only some of them and have others dismissed for a lesser sentence. - **Sentence recommendation bargaining:** In this type of negotiation the prosecution bargains a specific punishment to the judge in exchange for the conviction of the defendant. For instance, the prosecution requested the court to give six-month imprisonment or a fine for conviction of theft. 5. **Legal Provisions / Procedure** The legal provision of plea bargaining is mentioned under chapter XXIA which was inserted in 2006 as an act. In this chapter, there are a total of 12 provisions that explain and cover the whole process of plea bargaining. The processes of plea bargaining in general are – - **Applicability of this chapter (Section 265A[\[7\]](#_ftn7)):** To begin the concept of Plea bargaining a report has to be made before the officer in charge of the police station under section 173[\[8\]](#_ftn8) or a magistrate has to issue a complaint of offense. The magistrate’s power to examine the complaint and witness is mentioned under section 200[\[9\]](#_ftn9), and under section 204[\[10\]](#_ftn10) of the Crpc he will issue further process. - **Application for plea bargaining (265B[\[11\]](#_ftn11)):** - The application should be filed by the accused before the court in which the trial is pending. - In the application the defendant has to make brief details about the case accompanied by an affidavit, in which he has to mention that he has filed the application voluntarily with the understanding of all legal consequences as well as the punishment of the same and he has not previously been convicted for any offense by a court of law. - After receiving the application the court can issue a notice to the public prosecutor or the complainant and to the accused regarding the plea to appear on a given date which is fixed for the case. 1. When the public prosecutor or the complainant and the defendant appear on the given date, the court will examine the accused on camera in the absence of the other party as the court wants to satisfy itself that the accused has filed the plea voluntarily without any pressure upon him. Such statements or facts stated by the accused will not be used for any other purpose except the need of this section. 2. If the court is satisfied by the application the court will provide time to the public prosecutor or the complainant to go for a negotiation where the victim may be given compensation by the accused and other expenses. After that, the court will give another date for a further hearing of the case. 3. In case the court finds that the application was filed involuntarily or the applicant was convicted by a court of law in which he was charged with the same offense, the court will dismiss the application and start the trial from the stage from which the application was filed, following the criminal procedure code. - **Guideline for mutually satisfactory disposition (Section 265C[\[12\]](#_ftn12)):** If the court is satisfied that the application was made voluntarily without any pressure on the defendant the court will follow the guidelines under section 265C When the case is filed on a police report or anywhere else other than the police report (cognizance of the magistrate), the court will issue a notice to the public prosecutor, the investigating police officer, the accused, and the victim of the case for a meeting to mutual satisfactory disposition. It is also mentioned that the court must conduct the whole process voluntarily. Following the same the accused or the victim (otherwise than on the police report) can participate in the meeting along with their pleader, if any. - **Report of the mutually satisfactory disposition position (Section 265D[\[13\]](#_ftn13)):** If the disposition is completed successfully the court will prepare a report of such disposition which will be signed by the presiding officer of the court along with the persons who participated in the meeting. But if the mutually satisfactory disposal did not work out in that case after recording its observation, the court has to proceed from the stage where the application of the plea was filed. - **Disposal of the case (Section 265E[\[14\]](#_ftn14)):** After signing the disposition report the court will continue the further process of disposal. - The court will award compensation to the victim according to section 265D and hear the parties about the quantum of the punishment. - If the accused falls under section 360 of CrPC or the Probation of Offenders Act 1958 or any other law, he may be released on probation of good conduct or by any such law to punish the accused. - If the court finds the minimum punishment provided by law, the court can sentence the accused the half of the minimum punishment. - If the court did not find anything according to the provisions of sections 265 B and C, then the court can sentence 1/4th of the punishment provided by law as the case may be. - **Judgment (Section 265F[\[15\]](#_ftn15) and Section 265G):** The court has to deliver its judgment in an open court and the judgment should be signed by the presiding officer. It is mentioned under section 265G[\[16\]](#_ftn16), that the judgment of the court will be a final judgment and no appeal should be made against the judgment unless the exception is mentioned under articles 226 to 227 and 136. 6. **Exceptions:** There are certain exceptions to this provision. The concept of plea bargaining shall not be applicable- 1. If the punishment for the reported or cognizance offense is life imprisonment or punishment of death sentence or exceeding 7 years of imprisonment. 2. If the offense affects the socio-economic condition of the country. It’s it is to be noted that the central government has the authority to determine the offenses under the law by issuing notification regarding this. - If the offence has been committed against a woman or a child below the age of 14 years. 1. If the application was filed involuntarily or under any pressure. 2. If the applicant was convicted by a court of law in which he was charged with the same 7. **Case Laws / Overruling :** 8. Brady v. United States (1970): In the case of Brady v. United States (1970)[\[17\]](#_ftn17), the court upheld the constitutionality of the pre-bargaining as it does not violate a defendant’s constitutional right as long as they are doing such plead voluntarily. State Of Gujarat v. Natwar Harchandji Thakor (2005): The realization of the importance of plea bargaining in the Indian judiciary comes after the famous case of Harchandji Thakor in 2005[\[18\]](#_ftn18). The Gujarat High Court observed that plea bargaining is a factual examination in each case based on facts and circumstances. 1. Joseph v State of Kerala (2013): In the case of P. Joseph v State of Kerala[\[19\]](#_ftn19), the Kerala high court declares that an illegal and ultra vires plea bargaining process violates the law. Such a trial process will proceed from the stage where it had reached prayer to the commencement of the Plea bargaining process. Air Customs v. Begaim Akynova (2022) In the case of Air Customs v. Begaim Akynova[\[20\]](#_ftn20), the honorable Delhi High Court stated that plea bargaining applies to offenses under sections 132 and 135 of the Customs Act 1862, if they are astutely followed by chapter XXIA of CRPC. 8. **Benefits and Drawbacks:** Plea bargaining is beneficial for the 1. Victim: The Indian judicial process is very time-consuming as a consequence the victims have to face many difficulties to get justice. But in the case of plea bargaining, the victims can get justice in a reasonable time. 2. Accused: The accused or the defendant got the benefit of being charged with lesser sentences rather than harsh punishment. 3. Judiciary: It is also beneficial for the judiciary as the case resolves in the meantime and the court does not have to hold a case for years to years. 4. Expenses and time: A speedy judiciary trial reduces the expenses and time of all victims, defendants, judges, and attorneys. Drawbacks of the Plea Bargaining: 1. The defendant may escape from harsh sentences by accepting a lesser charge and the defendant can become a habitant offender as he got the lesser punishment that he deserves. 2. Victims may feel cheated as the accused avoids the proper trial and procedure to escape from the complete punishment that he deserves. 3. Innocent defendants can be forced by the powerful complainant to plead guilty for offenses which he has not committed. On the other hand, the victims can also face the vice versa. 4. The motive of the judiciary is to serve complete justice which is infringed in this procedure. 5. **C) CONCLUSION & COMMENTS** The Plea bargaining system in India plays a crucial role in the justice system with its pros and cons. This system offers a way to efficiently resolve cases and manage court caseloads. It offers a mutually beneficial agreement between the prosecution and the defendant which presents an alternative resolution to criminal cases. But it can be a major drawback for innocent and poor people as they can be influenced or pressured by the powerful people of society. However, the judges need to exercise their discretion and judicial power wisely and effectively when approving any plea bargaining after considering relevant facts and the needs of the case. Thus, this tool has to be used carefully to serve fair justice in society. 1. **D) REFERENCES** 2. **Books / Commentaries / Journals Referred** 1. The Code of Criminal Procedure,1973, S.N. Mishra, Nineteenth Edition 2. The Code of Criminal Procedure,1973\[ Act of 1973\],Bare Act 3. **Online Articles / Sources Referred** 1. Ipleaders, [All about plea bargaining – iPleaders](https://blog.ipleaders.in/plea-bargaining-practice-india/) 2. Lexpeeps, 3. Legal Service India, [Concept Of Plea Bargaining: Under Indian Legal System (legalserviceindia.com)](https://www.legalserviceindia.com/legal/article-10747-concept-of-plea-bargaining-under-indian-legal-system.html#:~:text=Provision%20Of%20Plea%20Bargaining%20In%20Indian%20Legal%20System,Procedure%20for%20plea%20bargaining%3A%205%20Appeal%20and%20revision%3A), 4. Latestlaws,, 4. **Cases Referred** 1. Brady v. United States, 397 U.S. 742 (1970) 2. State Of Gujarat v. Natwar Harchandji Thakor, 2005CRILJ2957, (2005)1GLR709 3. Joseph v. State of Kerala, (2013) 7 SCC 569 4. Air Customs v. Begaim Akynova, 2022 SCC Online SC 1263 5. **Statutes Referred** 1. Chapter XXIA of Crpc 2. Probation of Offenders Act 1958 [\[1\]](#_ftnref1) Ipleaders, [All about plea bargaining – iPleaders](https://blog.ipleaders.in/plea-bargaining-practice-india/), (Last visited jun.10, 2024) [\[2\]](#_ftnref2) Vogel, M. E.,Coercion to compromise: the federal courts and the origins of plea bargaining, Law and History Review, 25(2), 309-378, (2007). [\[3\]](#_ftnref3) Bibas, Stephanos, Plea Bargaining Outside the Shadow of Trial”, All Faculty Scholarship,924,(2004) [\[4\]](#_ftnref4) Ipleaders, [All about plea bargaining – iPleaders](https://blog.ipleaders.in/plea-bargaining-practice-india/), (Last visited jun.10, 2024) [\[5\]](#_ftnref5)Latestlaws,, (last visited jun. 10, 2024) [\[6\]](#_ftnref6)Legal Service India, [Concept Of Plea Bargaining: Under Indian legal System (legalserviceindia.com)](https://www.legalserviceindia.com/legal/article-10747-concept-of-plea-bargaining-under-indian-legal-system.html#:~:text=Provision%20Of%20Plea%20Bargaining%20In%20Indian%20Legal%20System,Procedure%20for%20plea%20bargaining%3A%205%20Appeal%20and%20revision%3A), (last visited jun. 10, 2024) [\[7\]](#_ftnref7) Code of Criminal Procedure, 1973, § 265A, No.2, Acts of Parliament 1974(India). [\[8\]](#_ftnref8) Code of Criminal Procedure, 1973, § 173, No.2, Acts of Parliament 1974(India). [\[9\]](#_ftnref9) Code of Criminal Procedure, 1973, § 200, No.2, Acts of Parliament 1974(India). [\[10\]](#_ftnref10) Code of Criminal Procedure, 1973, § 204, No.2, Acts of Parliament 1974(India). [\[11\]](#_ftnref11) Code of Criminal Procedure, 1973, § 265B, No.2, Acts of Parliament 1974(India). [\[12\]](#_ftnref12) Code of Criminal Procedure, 1973, § 265C, No.2, Acts of Parliament 1974(India). [\[13\]](#_ftnref13) Code of Criminal Procedure, 1973, § 265D, No.2, Acts of Parliament 1974(India). [\[14\]](#_ftnref14) Code of Criminal Procedure, 1973, § 265E, No.2, Acts of Parliament 1974(India). [\[15\]](#_ftnref15) Code of Criminal Procedure, 1973, § 265F, No.2, Acts of Parliament 1974(India). [\[16\]](#_ftnref16) Code of Criminal Procedure, 1973, § 265G, No.2, Acts of Parliament 1974(India). [\[17\]](#_ftnref17) Brady v. United States, 397 U.S. 742 (1970) [\[18\]](#_ftnref18) State Of Gujarat v. Natwar Harchandji Thakor, 2005CRILJ2957, (2005)1GLR709 [\[19\]](#_ftnref19) P. Joseph v. State of Kerala, (2013) 7 SCC 569 [\[20\]](#_ftnref20) Air Customs v. Begaim Akynova, 2022 SCC Online SC 1263 **Categories:** Articles --- ### [Krishna Kumar Singh & Anr. vs State of Bihar & Ors. (2017) 3 Supreme Court Cases (SCC) 1.](https://lawfoyer.in/krishna-kumar-singh-anr-vs-state-of-bihar-ors-2017-3-supreme-court-cases-scc-1/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author- Mayra Kumar, student, MIT World Peace University** **Edited by- Sushree Sangita Panda, student, Birla Global University.** **ABSTRACT / HEADNOTE *(not less than 150 words and more than 250 words)*** The constitutionality of the State of Bihar government’s 1989 “State of Bihar Non-Government Sanskrit Educational Institutions (Taking Over of Administration and Control) Ordinance” was issued in the Krishna Kumar Singh v. State of Bihar (2017) case. This law aimed to regulate professional hiring practices in 429 private Sanskrit educational institutions and place them under governmental supervision. Legal objections about administrative law, education policy, and constitutional law surfaced, casting doubt on the ordinance’s legality and application. Important concerns included the governor’s constitutional jurisdiction to adopt ordinances, the steps involved in putting such laws into effect, and how these actions might affect educational institutions. The case comprised multiple legal hearings that resulted in a Supreme legal decision made by a seven-judge panel. After much deliberation, the judiciary declared that re-promulgating ordinances without parliamentary consent was illegal. This historic ruling highlighted the significance of upholding constitutional principles in legislative activities and had a substantial impact on the management and supervision of private educational institutions in Bihar. ***Keywords* *(Minimum 5)*:** *Constitutionality, Supervision, Ordinances, Re-promulgating, Educational institutions.* **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name******Krishna Kumar Singh & Anr. vs State of Bihar & Ors.*** ***ii)* *Case Number******AIR 579*** ***iii)* *Judgement Date******January 2, 2017*** ***iv)* *Court******Supreme Court*** ***v)* *Quorum / Constitution of Bench******7-judge bench of the Supreme Court*** ***vi)* *Author / Name of Judges******Justice Dr T.S. Thakur, C.J. (Concurring); Justice Madan B: Lokur (Dissenting); Justice S.A. Bobde (Majority);******Justice Adarsh Kumar Goel (Majority);*** ***Justice Uday U. Lalit (Majority);*** ***vii)* *Citation******(2017) 3 Supreme Court Cases (SCC) 1******viii)* *Legal Provisions Involved******Articles 123, 133, 213, and 356 of the Indian Constitution*****INTRODUCTION AND BACKGROUND OF JUDGEMENT** The President of India is empowered to enact laws through ordinances, which he may do on the advice of Union ministers. Ordinances have the same legal force as laws, although the house must not be in session before they can be enacted. The main purpose of ordinances is to provide emergency legislation or action when the country needs it and the parliament is not in session. This is the most significant aspect of ordinances. It is significant to remember that an ordinance will expire six weeks after the start of a new parliament session if it is not passed. The Constitution’s Articles 123 and 213 address the authority to make ordinances. The President of India may only promulgate an ordinance while neither of the two Houses of Parliament is in session, according to Article 123 of the Indian Constitution. Plus, it specifies that an ordinance can only possess the same legal force and effect as legislation of Parliament if it is presented to both chambers of Parliament. It is significant to remember that Article 213 grants the governor the authority to promulgate ordinances. An ordinance may be enacted on any matter over which Parliament has authority, provided that it is promulgated with consideration for the division of powers outlined in the concurrent, union, and state lists. Understanding the primary issue of what happens to activities taken under an ordinance that subsequently stops being in effect is the primary goal and objective of this essay. The important ruling in the Krishna Kumar Singh case provided clarification on the matter. Thus, let’s first examine the case’s facts before evaluating the questions in it. **FACTS OF THE CASE** **Procedural Background of the Case** - Ordinance Passage (1989) – The Bihar Non-Governmental Sanskrit Schools (Taking over Management and Control) Ordinance was passed by the Bihar government in 1989. The purpose of this legislation was to give the government management and control over 429 private Sanskrit institutions. - Re-issuing the Ordinance – The ordinance was repeatedly promulgated without being introduced in the state assembly for consideration of becoming a law. During the time this ordinance was in effect, no laws were passed pertaining to it. - Appeal to the High Court of Patna – The Patna High Court received a petition for pay and other obligations from teachers and staff at the impacted schools. - High Court Decision – The petition was dismissed by the Patna High Court. It was decided that re-promulgations without good cause in succession go against the fundamental principles of constitutionalism. It ruled that the re-promulgation was invalid, citing the D.C. Wadhwa v. State of Bihar decision. The High Court mandated that 305 legitimate school employees get their salaries through April 30, 1992. - Appeal to the Supreme Court – The Supreme Court received an appeal challenging the ruling of the High Court. - Judgment of the Apex Court (two judges) – The ruling of the High Court was upheld by the Supreme Court. It declared that the ordinance’s re-promulgation violated fundamental constitutional rights. - Linking to a Broader Bench – Regarding the initial ordinance’s legitimacy, there were differing opinions. Because of the constitutional relevance of the case, it was first referred to a 3-judge bench and subsequently to a 5-judge bench. - Final Judgment in the Krishna Kumar Case, 2017, 7 Judge Bench – The ultimate ruling was rendered by a 7-judge Supreme Court bench on January 2, 2017. It came to the conclusion that the ordinance’s entire enactment was a fraud on the authority granted by Article 213 of the Constitution. Factual Background of the Case** - The Bihar Non-Governmental Sanskrit Schools Ordinance of 1989 – Granted authorization by the government of Bihar to assume control of 429 private Sanskrit schools. This led to the hiring of staff members and educators from the private sector by the government. - Re-issuing the Ordinance – The ordinance was often promulgated but never made into law. Legal challenges concerning its constitutionality resulted from this. - High Court Decision – Citing violations of fundamental principles, the Patna High Court ruled that the re-promulgation was unlawful. Stipulated that salaries be paid to staff members of legitimate schools through April 30, 1992. - Appeal to the Supreme Court – Appeals against the ruling of the High Court brought before the Supreme Court. Although the Supreme Court disagreed with the High Court’s decision, it upheld the initial ordinance’s legality. - Referral and Concluding Statement – The constitutional gravity of the subject led to its referral to larger benches. The final ruling in the Krishna Kumar case from 2017 reaffirmed that the ordinance’s promulgation was illegal. **LEGAL ISSUES RAISED** - Do any rights, obligations, or liabilities imposed by an ordinance continue to exist once it is no longer in effect? - Was the nature of the government regulations in Bihar legally valid? - Is it required for the executive branch to present the ordinance to the State Legislature and Parliament, respectively, under Article 123 or 213? - Is it not in opposition to the fundamental principles of constitutionalism to re-promulgate an Ordinance? **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioner – In this particular case, the petitioners sought relief based on the ordinances. Citing the aforementioned ordinance’s designation of them as “government employees,” they brought to the Hon’ble Court’s attention their entitlement to receive wages and other benefits from the government. They also came to the conclusion that they should continue to profit from the government’s salary and benefits, which they were entitled to from the moment the first ordinance was enacted until the last law’s expiration. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that the respondent brought up the question of whether activities made under an ordinance that are taken before the date that the legislative assembly disapproves of it are lawful and have repercussions. The argument went that they were under no obligation to provide teachers and other staff members of the aforementioned schools with salaries or benefits because the ordinances were invalid. **RELATED LEGAL PROVISIONS** Article 123 of the Constitution – It outlines the President’s authority to issue proclamations while Parliament is in recess. When Parliament is not in session, the President may promulgate ordinances to deal with critical issues. The President’s authority to enact ordinances is coextensive with Parliament’s legislative authority, meaning it can be applied to any topic on which Parliament is authorized to enact laws and is constrained by the same constitutional provisions as enacted by Parliament. According to Article 133 of the Indian Constitution, the Supreme Court has the authority to hear appeals from the High Court in civil cases. According to this Article, any judgment, decree, or final order rendered in a civil case by a High Court operating within the borders of India may be appealed to the Supreme Court, provided that the High Court certifies under Article 134A – that the matter concerns an important legal issue of public concern, one that the High Court believes should be decided by the Supreme Court. Article 213 of the Indian Constitution – It explains the governor’s authority to enact ordinances while the legislature is in recess. In the event that the Governor determines that there are circumstances that necessitate his taking immediate action, he may promulgate such ordinances as he deems necessary, provided that the circumstances do not occur during the sessions of the State’s legislative assembly or legislative council, or during the sessions of both Houses of the Legislature. According to Article 356 of the Indian Constitution, the President may issue a proclamation in the event that the state government is unable to carry out its constitutional duties as a result of a breakdown in the state’s constitutional machinery. The President may also make this determination without consulting the Governor of the State. **JUDGEMENT** - **RATIO DECIDENDI** The Supreme Court’s ruling’s main ratio decidendi is that it is unlawful to reissue regulations without restrictions. This indicates that the President’s and the Governor’s powers under Articles 123 and 213 respectively are subject to judicial review. Although the Constitution gives the executive the right to enact ordinances, the court stressed that this is a conditional legislative power that can only be used when the Legislature is not in session. The ruling emphasizes the idea that repeatedly promulgating ordinances against the letter and spirit of the Constitution compromises the legislative process. - **OBITER DICTA (IF ANY)** The court might have talked about the relevance of its previous ruling in D.C. Wadhwa v. State of Bihar (1986) in this instance. Although it may not directly relate to the main matter at hand, this could be regarded as obiter dictum because it offers further context or guidance. The court determined that the re-promulgation of ordinances was unconstitutional in the D.C. Wadhwa case. Citing this earlier ruling could support the court’s position that re-promulgating ordinances are unlawful. **CONCLUSION & COMMENTS** In Krishna Kumar Singh v. State of Bihar (2017), the court struck a significant balance with the order issued by Justice Chandrachud, which made it very clear that the executive branch could not misuse its authority and that the ordinance must be promulgated in the event that the Parliament is not in session. The majority of opinions supported the judgment, and even while there is still disagreement over how to assess rights and obligations once the ordinance expires, this does not lessen the strength of the ruling. In his concurring opinion, the Chief Justice at the time said that there is still room for interpretation on this issue. **REFERENCES** **Important Cases Referred** - - - C. Wadhwa vs. State of Bihar (1986) - State of Orissa vs. Bhupendra Kumar Bose (1962) - Venkata Reddy vs. State of Andhra Pradesh (1985) - R. Bommai vs. Union of India (1994) - Kameshwar Singh vs, State of Bihar (1952) - K. Roy vs Union of India (1982) - Ramesh vs Gendalal Motilal Patni (1966) **Important Statutes Referred** The “doctrine of colorable legislation” is a legal doctrine that attempts to stop the government from using its legislative power in an unconstitutional way. If the legislature is not allowed to do something, it should not be done under any circumstances or under the appearance that the conduct is still legitimate. The adage “what cannot be done directly, cannot be done indirectly” is the source of the principle. Nonetheless, a legislature may enact legislation in a fashion that lends it a constitutional appearance even while the legislation actually seeks to accomplish an objective that the legislature was unable to accomplish. Such laws are deemed invalid and are referred to as “colorable” laws. **Categories:** Case Analysis --- ### [D. S. Nakara V. Union of India, AIR 1983 SUPREME COURT 130](https://lawfoyer.in/d-s-nakara-v-union-of-india-air-1983-supreme-court-130/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author-Bhawna Chandrakar, student, Kalinga University** **Edited by- Sushree Sangita Panda, student, Birla Global University** **ABSTRACT** This case is about the difference in pension of Central Employees, the employees were differentiated based on the date of retirement and pension was given accordingly which also created a class of pensioners, formed against the law. Three petitioners were retired and paid differently according to the date of retirement every month. This violates Article 14 of the Indian Constitution which says equality before the law every person should be treated equally, and there should not be any difference. The Pay Commission along with ARC recommended some increase in pension and the age of retirement to be 58 years. The petitioner argued that all the persons should be paid equally for doing the same work. The doctrine of Severability is discussed. The court gave their judgement that it is against the law and it is violating Article 14 of the Indian Constitution. This should be stopped or struck down. On infringement of any rights of the people of India, they can appeal or file a writ petition. In High Court as well as directly in the Supreme Court this is discussed in Articles 32 and 226 of the Indian Constitution. ***Keywords* *:*** *Pension, Retirement, Constitution of India, Article 14, Writ petition, Severability, Union of India.* 1. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***D.S. Nakara V. Union Of India ***ii)* *Case Number***AIR 1983 SUPREME COURT 130 ***iii)* *Judgement Date***17/12/ 1982 ***iv)* *Court***Supreme court ***v)* *Quorum / Constitution of Bench***D.A. Desai, Y.V. Chandrachud, V.D. Tulzapurkar, O. Chinnappa Reddy, Baharul Islam ***vi)* *Author / Name of Judges***D.A. Desai, ***vii)* *Citation***ABHINAV MOHAN GOEL ( Case Analysis on D. S. Nakara Vs. Union of India***viii)* *Legal Provisions Involved***Constitution of India Article 14 Article 32 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Pension is paid to the Central Employees who have been retired or not active employees. It is paid on the basis of past work contributions. It depends on the work done and the time given as an employee. Articles 14 & 32 are discussed in the Indian Constitution which talks about the rights and equality before the law, no discrimination The doctrine of Severability is discussed with states that when a particular provision is unconstitutional and not the whole provision then only part should be declared void not the entire provision. The difference in pension is discussed in this case and the difference in the amount of pension is on the basis of the date of retirement on which the court held that it violates Article 14 and is unconstitutional so it should be struck down. **FACTS OF THE CASE** Factual Matrix of the case there are 3 petitioners, the first is a Civil Servant, the second is a member of the Armed forces and the third is the society registered under “The Societies Registration Act,1860, it was formed to resolve public problems and objectives was to support the cause of pensioners. It’s “*local standard”* was in question. The first petitioner was retired in 1972 with a monthly pension of Rs. 935/- & dearness allowances. The second petitioner with monthly pension of Rs. 981/- with allowances. The UNION OF INDIA revised & liberalises the pension scheme within a period of time, some important changes were:- - The First Pay Commission recommended the age of retirement to 58 years for all services and the pension should be Rs. 8000 per year for 35 years of service. - The Second Pay Commission reaffirmed the retirement age but recommended increasing the retirement benefits & pension. - The Administrative Reform Commission (ARC) set up by the Government of India in 1956, suggested that the cost of living is increasing day by day and the pension is not sufficient, the expenses have increased saving, are decreased. Further ARC recommended that the ceiling should be raised to 1000 p.m But before the government can look at this recommendation the Third Pay Commission was set up *on the reference to the term* *“ Death -cum – retirement benefits of Central Government Employees “*. The third Pay Commission recommended that the maximum pension be raised from Rs. 675 to Rs. 1000 pm and gratuity should be raised from 24000 to 30000. Thus, the liberalised pension formula shall be applicable to those who retired on or after March 31, 1997. Those who retire on or after April 1, 1979, or a specified date would not be entitled to the liberalised pension. **LEGAL ISSUE RAISED** Whether the classification of the pension is valid under Article 14 of the Constitution or not? **PETITIONER ARGUMENTS** *Anil B. Divan, Mrs Vineeta Sen Gupta and P.H. Parekh for the Petitioners L.N.Sinha, Attorney General, M.M. Abdul Khader, N. Nettar and Miss A. Subhashini for Union of India.* Petitioner argued *that the Pension is paid for past satisfactory service rendered, and to avoid destitution in old age as well as a social welfare or socio-economic justice measure, the differential treatment* in providing a pension for the person retiring before or after the specified date is arbitrary. This is violative of Article 14 of the Constitution. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that the scheme should be implicated as a whole or rejected as a whole. The date from which the scheme came into force it became indivisible integral. Further, the court has no right to make the financial implications retroactive and *this Court cannot grant any relief to the pensioners who retired prior to a specified date because if more persons divide the available cake, the residue falling into the share of each, especially to those who are likely to be benefited by the scheme will be comparatively smaller and as they are not before the Court, no relief can be given to the pensioners.* **RELATED LEGAL PROVISIONS** - - Article 14 – It states that every person should be treated equally. The equality before the law should not be denied to any person. There shall not be any discrimination based on race, caste, gender etc - Article 32 – It states the remedies provided to the general public for infringement of the rights - The person has the right to move to the Supreme Court for the infringement of rights, the appropriate proceedings should be followed for enforcement of rights. - Doctrine of Severability – it means that if in the provision any particular part is unconstitutional then only one part should be declared void not the whole provision. **JUDGEMENT** The Hon’ble court held that all the pensioners for a class and it cannot be further classified. The difference made on the basis of retirement date is arbitrary, it creates a difference between the pensioners even though they have done the same work at the same time therefore they should get equal pay irrespective of the date of retirement. This scheme/ law is violative of Article 14. Hence it is unconstitutional and VOID thus it should become ineffective. **CONCLUSION & COMMENTS** The scheme was against socio-economic justice and social welfare. The pension was differentiated on the basis of the date of retirement even though the work is the same for all. This also raises the problem of the cost of living because as the cost of living increases and the savings are decreased it creates financial problems for many people/ for the class of people. The difference in pension is against the rule of equal pay for equal work. It violated Article 14 and was unconstitutional thus resulting in struck down. **REFERENCES** **Important Cases Referred** - - Menaka Gandhi V. Union Of India, AIR 1978SC 597 - Ramana Dayaram Shetty V. The International Airport Authority of India & Ors, 1979AIR 1628 - Deoki Nandan Prasad V. State of Bihar & Ors,1971 SCC(2) 330 - . State of Punjab & Anr V. Iqbal Singh, 1991 AIR 1532 - S.P.Gupta V. Union Of India, **Categories:** Case Analysis --- ### [DILIP B. JIWRAJKA VS UNION OF INDIA,2023 SC 1530.](https://lawfoyer.in/dilip-b-jiwrajka-vs-union-of-india2023-sc-1530/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Jaskeerat Singh, Law student at Christ University, Bangalore** **Edited by: Jahnvi Goel, Law student at Amity University.** 1. **ABSTRACT / HEADNOTE** In the landmark case of Dilip B. Jiwrajka vs Union of India[\[1\]](#_ftn1), the Supreme Court of India affirmed the constitutional validity of Sections 95 through 100 of the Insolvency and Bankruptcy Code (IBC), 2016. This ruling addressed legal challenges regarding the constitutionality of these sections under Articles 14 and 21 of the Indian Constitution, specifically concerning the commencement of insolvency procedures, the function of the resolution professional, and the handling of debtors during the process. The petitioners argued against the necessity of insolvency resolution procedures specifically for individuals, contending that existing procedures for corporations were sufficient and constitutionally sound. They also raised issues regarding the resolution professional’s broad powers to access information and the automatic imposition of a moratorium upon filing an insolvency application, suggesting these measures could harm the debtor’s creditworthiness and infringe upon natural justice. The respondents, however, defended the IBC’s structure, emphasizing its efficiency and the facilitative role of the resolution professional, who is not bound by their recommendations. They also highlighted the distinction between the moratorium under Section 96 and similar provisions, asserting it protects the debtor from legal actions but not the debt itself. The Supreme Court’s decision reaffirmed the constitutionality of the IBC’s provisions, noting that the process under Sections 95-99 involves no judicial adjudication and that the resolution professional acts in a facilitative capacity. It clarified that the adjudicatory authority, while not bound by the resolution professional’s recommendations, must adhere to the principles of natural justice when deciding on the application. The court also underscored the interim moratorium’s purpose to safeguard the debtor from further legal proceedings. This judgment is crucial for the insolvency regime, aiming to clear a backlog of pending applications against guarantors, thereby facilitating debt recovery for creditors and enhancing their trust in the system. However, critics argue that the judgment overlooks potential violations of natural justice and could hinder credit flow if personal guarantors’ rights are insufficiently protected, posing risks to Indian corporations. 1. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Dilip B. Jiwrajka v. Union of India and Ors. ***ii)* *Case Number***Writ Petition (Civil) No 1281 of 2021 ***iii)* *Judgement Date***November 9, 2023 ***iv)* *Court***Supreme Court of India ***v)* *Quorum / Constitution of Bench***Division Bench- three-judge bench ***vi)* *Author / Name of Judges***Justice Dr. D.Y. Chandrachud, Justice J.B Pardiwala, and Justice Manoj Mishra ***vii)* *Citation***Dilip B. Jiwrajka v. Union of India, 2023 SC 1530.***viii)* *Legal Provisions Involved***Constitution of India, Arts.21, Arts. 14, Arts. 32, Insolvency and Bankruptcy Code, 2016, S. 95, S. 96, S.97, S.98, S.99, S.100.1. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Introduced in 2016, the Insolvency and Bankruptcy Code (IBC) of India revolutionized the way insolvencies among businesses, corporations, and individuals are handled by establishing clear deadlines and integrating various existing laws into a single, modern framework. This legislative overhaul replaced outdated practices that often resulted in prolonged procedures. Specifically, Part III of the IBC deals with insolvency resolution and bankruptcy processes for individuals and partnerships, with Chapter III titled “Insolvency Resolution Process” covering Sections 94 through 120. Prior to the IBC, the management of individual insolvencies was governed by the Presidency Towns Insolvency Act of 1909 and the Provincial Insolvency Act of 1920, both of which have since been repealed. Under the IBC, the insolvency process starts with a creditor submitting an application to the National Company Law Tribunal (NCLT), specifying the amount of unpaid debt under Section 95. Once filed, a moratorium is placed on legal proceedings related to debt under Section 96. Debtors cannot be heard at this stage. Under Section 97,NCLT appoints a resolution professional nominated by the Insolvency and Bankruptcy Board of India (IBBI) to examine the application. The resolution professionals prepare a report recommending accepting or rejecting the application as authorized under Section 99. Debtors are not involved in this process. Based on the report, Under Section 100 NCLT formally accepts or rejects the application. In this scenario, individuals invoking Article 32 of the Indian Constitution submitted a total of 384 petitions. Despite this, the Supreme Court maintained that the regulations pertaining to the Insolvency Resolution Process were neither capricious nor violated the fundamental rights to natural justice as outlined in Article 21, according to Article 14 of the Constitution. 1. **FACTS OF THE CASE** The Union Government implemented the provisions of Part III of the IBC (excluding those related to the “Fresh Start Process” for specific individuals. IBC extends its provisions to personal guarantors of corporate debtors. Following the authority granted under Section 1(3), the Union Government’s Ministry of Corporate Affairs issued a notification on November 15, 2019, activating several sections including Section 2(e), Section 78 (excluding aspects related to the fresh start process), Section 79, Section 94 through 187, Sections 239(2)(g), (h), and (i), Sections 239(2)(m) to (zc), Section 239(2)(zn) to (zs), and Section 249. This notification faced legal challenges in the case of *Lalit Kumar Jain v Union of India*[\[2\]](#_ftn2), where a two-judge panel clarified that the release of a corporate debtor does not automatically absolve a guarantor of their obligations. Through the enactment of Amendment Act 26 of 2018, Parliament made changes that expanded the jurisdiction of the National Company Law Tribunal (NCLT) under Section 60. These modifications empower the National Company Law Tribunal (NCLT) to manage situations involving the insolvency of either a corporate guarantor or a personal guarantor linked to a corporate debtor. Concurrently, several Writ Petitions have been submitted to the Supreme Court questioning the constitutionality of specific clauses based on allegations that they violate the principles outlined in Articles 14 and 21 of the Indian Constitution. 1. **LEGAL ISSUES RAISED** i)Does Section 95 through Section 100 of the Insolvency and Bankruptcy Code (IBC), which outlines the procedure for initiating the insolvency resolution process against an individual debtor by a creditor, constitute an arbitrary action in violation of Article 14 of the Indian Constitution? 1. ii) Are the principles of natural justice, as enshrined in Article 21 of the Indian Constitution, applicable to the proceedings governed by Sections 95 to 100 of the IBC? 1. **PETITIONER/ APPELLANT’S ARGUMENTS** The Petitioner challenged the validity of Section 95 to 100 under Part III of IBC on the following grounds: - The counsel for Petitioner argued before this esteemed court that the Insolvency and Bankruptcy Code (IBC) requires the Adjudicating Authority to first establish the existence of a debt before initiating insolvency procedures, such as filing for insolvency, designating a resolution professional, or authorizing any actions by the resolution professional. Neglecting to perform this preliminary assessment would contravene the principles of natural justice. It is imperative for the adjudicating authority to verify, at the outset, both the validity of the asserted debt and its potential discharge before advancing with further steps. - The counsel for Petitioner submitted that separate insolvency resolution procedures for individuals under IBC are unnecessary as procedures for corporations are already well-established and constitutionally valid. - The counsel for Petitioner submitted that the resolution professional’s powers to access information from guarantors and third parties are unfettered and can adversely impact the creditworthiness of the debtor. - The counsel for petitioner argued against the immediate imposition of an automatic stay and provisional measures such as designating a resolution professional and permitting them to present a report simply upon the submission of an insolvency petition. They advocated for these steps to be delayed until the court confirms the presence of a genuine debt and debtor-creditor relationship. 1. **RESPONDENT’S ARGUMENTS** - The counsel for the respondent argued that incorporating an adjudicative phase to verify the presence of debt upon the appointment of the Resolution Professional (RP) could compromise the efficiency of the insolvency resolution process, which is fundamentally aimed at being time-sensitive according to the Insolvency and Bankruptcy Code (IBC). - Additionally, they contended that the protective period granted under Section 96 of the Code differs substantially from those outlined in Sections 14 and 101, implying varying practical effects. - The counsel for Respondent submitted that Under Section 101(2), the debtor gets an opportunity to be heard before the adjudicating authority while it considers the RP’s report. - The counsel for Respondent submitted thatthe RP’s job during the interim phase is merely facilitative and not adjudicatory.The adjudicating authority is not bound to follow the RP’s recommendations. - The counsel for Respondent submitted that The RP’s inspection powers under Section 99(4) are limited and only “in connection with the application”, narrowing its scope of inquiry. 1. **RELATED LEGAL PROVISIONS** - **Constitution of India** - **Article 21:-“***Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law”*.[\[3\]](#_ftn3) - **Article 14**:-“*Equality before the law, The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth”.[**\[4\]**](#_ftn4)* - **Article 32***:-“ Remedies for enforcement of rights conferred by this Part.The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.* *The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.* *Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)”*. *The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution*.[\[5\]](#_ftn5) - **Insolvency and Bankruptcy Code, 2016** - **Section 95-** “Application by a creditor to initiate insolvency resolution process”.[\[6\]](#_ftn6) - **Section 96-** “Interim moratorium”.[\[7\]](#_ftn7) - **Section 97-** “Appointment of resolution professional”.[\[8\]](#_ftn8) - **Section 98-** “Replacement of resolution professional”.[\[9\]](#_ftn9) - **Section 99-** “Submission of report by resolution professional”.[\[10\]](#_ftn10) - **Section 100-** “Admission or rejection of application”.[\[11\]](#_ftn11) 1. **JUDGEMENT** The Supreme Court’s judgment can be summed up in the following sub-points: **Nature of the Process under Sections 95-99 IBC** - No judicial adjudication is involved at the stages under Sections 95-99 of the Insolvency and Bankruptcy Code (IBC). - The resolution professional plays a facilitative role in collating facts and submitting a recommendation report to the adjudicatory authority. **Role of the Adjudicatory Authority** - No need for the adjudicatory authority to conduct a hearing to determine “jurisdictional facts” when appointing a resolution professional under Section 97(5). - The adjudicatory body has the ultimate say on decisions made under Section 100, regardless of the recommendations presented by the resolution professional. Additionally, when deliberating on accepting or rejecting applications under Section 100, the adjudicatory authority must adhere to the principles of natural justice. **Powers of the Resolution Professional** - The resolution professional can exercise powers under Section 99(4) to examine the application and gather relevant information for the recommendation report. **Participation of the Debtor** - No violation of natural justice as the debtor can participate in the examination process by the resolution professional. **Purpose of Interim Moratorium** - The purpose of the interim moratorium under Section 96 is to protect the debtor from further legal proceedings. **Constitutionality** - The provisions in Sections 95-100 of the IBC are constitutional and do not violate Articles 14 and 21 of the Indian Constitution 1. **CONCLUSION & COMMENTs** The Supreme Court judgment on the insolvency regime for personal guarantors is significant for all stakeholders, as it aims to facilitate the disposal of a large number of pending applications against guarantors, aiding creditors’ debt recovery and boosting their confidence in the system. However, I argue that the judgment fails to address the logical flaws in the Scheme under Part III of the Insolvency and Bankruptcy Code and its potential violation of the principle of natural justice, which could pose a serious hindrance to the flow of credit in the future if the rights of personal guarantors are not sufficiently protected, as this may prove detrimental to Indian corporates. 1. **REFERENCES** - Lalit Kumar Jain v Union of India, (2021) 9 SCC 321. - Insolvency and Bankruptcy Code, 2016. [\[1\]](#_ftnref1) Dilip B. Jiwrajka v. Union of India, 2023 SC 1530. [\[2\]](#_ftnref2) Lalit Kumar Jain v Union of India, (2021) 9 SCC 321. [\[3\]](#_ftnref3) INDIA CONST. art. 21. [\[4\]](#_ftnref4) INDIA CONST. art. 14. [\[5\]](#_ftnref5) INDIA CONST. art. 32. [\[6\]](#_ftnref6) Insolvency and Bankruptcy Code, 2016, §95, No. 31, Acts of Parliament, 2016(India). [\[7\]](#_ftnref7) Insolvency and Bankruptcy Code, 2016, §96, No. 31, Acts of Parliament, 2016(India). [\[8\]](#_ftnref8) Insolvency and Bankruptcy Code, 2016, §97, No. 31, Acts of Parliament, 2016(India). [\[9\]](#_ftnref9) Insolvency and Bankruptcy Code, 2016, §98, No. 31, Acts of Parliament, 2016(India). [\[10\]](#_ftnref10) Insolvency and Bankruptcy Code, 2016, §99, No. 31, Acts of Parliament, 2016(India). [\[11\]](#_ftnref11) Insolvency and Bankruptcy Code, 2016, §100, No. 31, Acts of Parliament, 2016(India). **Categories:** Case Analysis --- ### [EPURU SUDHAKAR Vs. GOVT. OF AP, AIR 2006 SUPREME COURT 3385](https://lawfoyer.in/epuru-sudhakar-vs-govt-of-ap-air-2006-supreme-court-3385/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Gaganpreet kaur gill, Law student at Chandigarh University.** **Editor: Jahnvi goel, Law student at Amity University.** 1. **ABSTRACT** In India , the pardoning power has been given in order to correct potential injustices and to provide clemency. Thus, in a simple words pardon means to ‘Releases a convict from further punishment for the crime’ and‘to erase the conviction itself’ (in the case of a Governor’s pardon).The pardon power under the Indian Constitution, enshrined in Articles 72 and 161, empowers the President and Governors to act as a safeguard against potential injustices within the legal system. Similarly, the above mentioned case mentions that can Governor’s pardon power be challenged in court if it’s seen as unfair or influenced by improper motive. Where the Supreme Court ruled that the Governor’s power to grant pardons under Article 161 of the Constitution is subject to judicial review under certain circumstances. The court held that while the power itself is discretionary, it cannot be exercised arbitrarily or based on irrelevant factors like religion, caste, or political affiliation. The rule of law and fairness should guide the decision. This case established that the Governor’s pardon power isn’t absolute and can be reviewed by courts if misused. It set guidelines for the exercise of this power to ensure fairness and prevent its misuse for political or other extraneous reasons. ***Keywords:-*** *pardon power, governor , murder, death sentence, judicial review.* 1. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Epuru Sudhakar vs. Govt of AP ***ii)* *Case Number***Writ Petition ( crl.) 284-285 of 2005 ***iii)* *Judgement Date***11 October 2006 ***iv)* *Court***Supreme Court of India ***v)* *Quorum / Constitution of Bench***Single bench(Arijit Pasayat) ***vi)* *Author / Name of Judges***Arijit Pasayat ***vii)* *Citation***AIR 2006 SUPREME COURT 3385***viii)* *Legal Provisions Involved***Article-72 and 161 of the Indian Constitution &Section-109 and 302 of the Indian Penal Code.1. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The concept of pardon, a vestige of the British Crown’s prerogative, empowers the President under Article 72 and Governors under Article 161 of the Indian Constitution to correct potential injustices arising from harsh laws or erroneous judgments. A pardon relieves a convicted individual from further punishment. Notably, the Governor’s pardon can erase both the conviction and sentence, effectively absolving the individual. The process In India typically involves a mercy petition submitted to the President. Governors, appointed by the President, hold various constitutional powers, including judicial powers like granting pardons. This power, given to the President’s under Article 72, is a constitutional duty, not a discretionary privilege.However, the Governor’s scope is narrower. Only the President can pardon court-martial convictions or death sentences. Additionally, the Governor exercises the State government’s sovereign power under Article 161, not his own independent authority. While Article 21 guarantees the right to life, no codified procedure governs mercy petitions. In practice, after exhausting legal avenues, a convict or their representative submits a written petition to the President’s secretariat. The petition is then forwarded to the Ministry of Home Affairs for evaluation and recommendations. Importantly, a pardon is not a right; it’s an act of clemency based on factors like the convict’s health, family circumstances, or sole breadwinner status. Thus the case involves the matter of a capital punishment conviction, the Respondent (accused) was sentenced to death by the High Court of Andhra Pradesh for the willful homicide or murder of a political rival. Subsequently, the Governor granted the Respondent a pardon. However, the Supreme Court of India intervened and quashed the Governor’s exercise of the pardoning power. The Court established a legal principle, holding that any invocation of the pardoning power by the Governor is subject to judicial review and can be set aside if motivated by extraneous considerations such as caste, religion, or political affiliation. Furthermore, the Court clarified the scope of judicial review over the President’s or Governor’s pardoning power. The decision to grant a pardon can be challenged if it is deemed arbitrary, lacking due process, influenced by improper motives (mala fide), or based on irrelevant factors unrelated to the merits of the case. 1. **FACTS OF THE CASE** - Petitioner No. 1 is the son of the late Shri Epuru China Ramasubbaiah, who was murdered along with another person on 19.10.1995. Petitioner No. 2 claims to be the son of the late Shri Tirupati Reddy, who was allegedly murdered by Respondent No. 2 while Respondent No. 2 was on bail in the murder case of the father of Petitioner No. 1. - In the case related to the murder of the late Shri Epuru China Ramasubbaiah and one Ambi Reddy, Respondent No. 2 faced trial, and the matter ultimately reached the Supreme Court in Criminal Appeal Nos. 519-521 of 2003. The Supreme Court, in its judgment dated 19.11.2003, altered the conviction of Respondent No. 2 from one under Section 302 of the Indian Penal Code, 1860 (IPC) to one under Section 304(1) read with Section 109 of the IPC, and imposed a custodial sentence of 10 years’ rigorous imprisonment. The conviction relating to some other sentences was maintained. - On 28.5.2003, Respondent No. 3, the wife of Respondent No. 2, submitted a representation for the grant of parole to Respondent No. 2. Parole was granted on 18.10.2003 for a period of 15 days, but the same was later cancelled on 30.10.2003 by the State Government due to the likelihood of a breach of peace and law and order if Respondent No. 2 visited the Nandikotkur Assembly Constituency, as per the report by the Superintendent of Police, Kurnool. - Respondent No. 3 contested and won the Andhra Pradesh Assembly election on 12.5.2004. On 14.5.2004, she made a representation for the grant of parole to Respondent No. 2, which was granted on 19.5.2004 and subsequently extended from time to time. On 18.7.2004, a fourth extension of 15 days was granted. - On 10.10.2004, Respondent No. 3 made a representation to Respondent No. 1 (the Governor of Andhra Pradesh) seeking a pardon for Respondent No. 2, alleging that he had been implicated in false cases due to political rivalry. During the pendency of the petition for pardon, one-month parole was granted to Respondent No. 2 on 18.10.2004. - On 11.8.2005, the Governor of Andhra Pradesh purportedly exercised the power under Article 161 of the Constitution and granted remission of the unexpired sentence of Respondent No. 2. The Director General and Inspector General of Police (Correction Services), Andhra Pradesh, were directed to take action for the release of Respondent No. 2, and on 12.8.2005, the Superintendent of Central Prison, Cherlapally, R.R. District, directed the release of Respondent No. 2. Thus ,”*the writ petition has been filed, alleging, inter alia, that the grant of remission (described in the writ petition as the grant of pardon) was illegal, relevant materials were not placed before the Governor, and the impugned order was passed without the application of mind.* *The recommendations made for the grant of remission were based on irrelevant and extraneous materials. The factual scenario has not been placed before the Governor in the proper perspective. The sole basis on which Respondent No. 3 asked for a pardon was the alleged implication in false cases due to political rivalry. In view of this Court’s judgment holding Respondent No. 2 guilty, the said plea could not have been even considered as a basis for the grant of pardon.* *Since the grant of pardon is based on the consideration of irrelevant materials and the non-consideration of relevant materials, the same is liable to be set aside.”[**\[1\]**](#_ftn1)* 1. **LEGAL ISSUES RAISED** 1. Whether judicial review can be exercised to supersede the presidential pardon? 2. What is the extent of the power of governor or president, as far as their pardoning power is concerned, is it an absolute power? 3. What are the limitations that can be imposed on this power? 4. What are the responsibilities of the governor or president while exercising this pardoning power under Indian constitution? 1. **PETITIONER/ APPELLANT’S ARGUMENTS** 2. The counsels for Petitioner / Appellant submitted that the petitioner’s learned counsel argued that the congressional activist who was convicted by the then-Andhra Pradesh governor, Sushil Kumar Shinde’s “sentence immunity was illegal because the relevant materials were not submitted to the governor and the controversial order was adopted under consideration.”[\[2\]](#_ftn2) 1. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted thatthe “respondent Nos.2 and 3 has strenuously contended that the petition is the outcome of a political vendetta. All relevant materials have been taken into account by the Governor, a high constitutional authority who passed the order granting remission. It is submitted that the petitioner has confused between pardon and remission of sentence. It is a case where materials existed which warranted the grant of remission and this Court should not interfere in the matter. Considering the limited scope for judicial review the writ petition deserves to be dismissed.”[\[3\]](#_ftn3) 1. **RELATED LEGAL PROVISIONS** This case completelyrevolve around the provisions to grant pardon under the Indian Constitution and are as follows:- **Article-72:-**“***Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases*** *(1)The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence—* *(a)In all cases where the punishment or sentence is by a Court Martial;* *(b)In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;* *(c)In all cases where the sentence is a sentence of death.* *(2)Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed forces of the Union to suspend, remit or commute a sentence by a court martial.* *(3)Nothing in sub-clause © of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.[**\[4\]**](#_ftn4)”* **Article -161 :-“*Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases-*** *The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”[**\[5\]**](#_ftn5)* 1. **JUDGEMENT** The Court of Criminal Appeals overturned the judgment of preliminary examination by Respondent No. 2, and the conviction was modified from one under Section 203 of the Indian Penal Code to Section 304(1) read with Section 109. A custodial sentence of 10 years’ rigorous imprisonment was imposed. Respondent No. 3 filed an application for parole, which was granted for 15 days. However, the equivalent was revoked by the State Government considering the report sent by the Superintendent of Police. Due to the pendency of the request for parole, a one-month parole was subsequently granted. The Governor of Andhra Pradesh exercised power under Article 161 and granted a reduction of the unexpired sentence of Respondent No. 2, and his request for release was accordingly directed. A writ appeal was filed challenging the lawfulness of the reduction of the sentence by the Governor, alleging that the material facts were not taken into consideration. The said petition could not have even been considered as a ground for the grant of pardon. This is a situation where materials existed which justified the grant of abatement, and the Court ought not to interfere in the present matter. The learned counsel for the respondents argued that while in the case of Maru Ram v. Union of India[\[6\]](#_ftn6),this Court had laid down advisory guidelines, the same did not find recognition in the case of Kehar Singh v. Union of India[\[7\]](#_ftn7). Later, in the case of Ashok Kumar v. Association of India and Ors.[\[8\]](#_ftn8), the alleged apparent irregularities within the view were highlighted, and the Court held that the laying down of guidelines may be inappropriate. The relevant constitutional provisions regarding the grant of pardon, reductions, suspension of sentence, and others were considered. Examining the precedents, in the case of Maru Ram, it was held that all public power, including constitutional power, will be exercised arbitrarily, mala fide, and in violation of the principles of fairness and equal treatment. Considerations of religion, caste, color, or political allegiance are entirely irrelevant and discriminatory. In the Kehar Singh case, it was held that the order of the President cannot be subjected to judicial review on its merits, except within the strict limitations explained in the Maru Ram case. The Court held that the domain of the President’s power under Article 72 falls within the judicial domain and can be examined by the Court through the process of judicial review. The Court then considered the rulings in the case of Swaran Singh v. State of U.P[\[9\]](#_ftn9). The Court held that if the pardon power was exercised arbitrarily, mala fide, or in total disregard of the higher principles of constitutionalism, the resultant order cannot receive the imprimatur of law, and in such cases, the judicial hand should be extended to it. It further observed that the order of the Governor impugned is subject to judicial review within the strict boundaries set down in the Maru Ram and Kehar Singh cases and left it open for the Governor of U.P. to pass new orders. It was also held that the High Court can quash the Governor’s pardoning power if it was exercised on political, caste, or religious grounds. The grant of clemency by the President or Governor can be challenged if the order has been passed without the application of mind, mala fide, or irrelevant or wholly unnecessary considerations, based on falsehood, and relevant material has been kept out of consideration. In the case of Tata Cellular v. The Federal Court of India[\[10\]](#_ftn10), it was held that when conducting a judicial review of the executive pardon, the court does not act as an appellate court since it lacks expertise in correcting administrative decisions, but rather examines the manner in which decisions are made. Thus, in the cases cited, it can be demonstrated that the court can conduct a judicial review of the executive pardon to address unfair and arbitrary decisions. However, the scope is limited. The convict was not Involved but due to political reasons, his name was implicated in the case by producing false witnesses and sent to prison. In earlier times, there was a basic principle that if the king is deceived, the pardon is void. The discretion must be exercised on public considerations alone. The principle of exclusive knowledge would not apply when and if the decision impugned is in derogation of constitutional provisions. The Rule of Law principle contains a requirement of government according to law. The power of executive clemency is not only to benefit the convict, but while exercising such a power, the President or the Governor must, in all cases, bear in mind the impact of their decision on the victim’s family, the society at large. 1. **CONCLUSION** Mercy petitions are complex process but also offer potential benefits and sometimes cause hardship when delays occur in processing them. These delays impact both the convicted and the victims, unintentionally hindering justice and prolonging the victim’s suffering. To ensure a more efficient legal system, clear time limits and policies are needed to prevent unnecessary delays in both filing and granting mercy petitions. In this case, **t**he order granting remission which is impugned in the petition is clearly unsustainable and is set aside. However, it is open to the respondent No.1 to treat the petition as a pending one for the purpose of re-consideration. It shall be open to the Governor to take note of materials placed before him by the functionaries of the State, and also to make such enquiries as considered necessary and relevant for the purpose of ascertaining the relevant factors otherwise. 1. **REFERENCES** 1. **Important Cases Referred** - Maru Ram vs Union of India,1981 1SCC 107 - Kehar Singh v. Union of India, 1989 1SCC 204 - Ashok Kumar v. Association of India and Ors., 1991 SCR(2) 858 - Swaran Singh v. State of U.P, 1998 4SCC 75 - Tata Cellular v. The Federal Court of India, 1996 AIR 11. 1. **Important Statutes Referred** - **72 , Indian Constitution** - **161, Indian Constitution** - **Section-109 , Indian Penal Code,1860** - **Section-302, Indian Penal Code,1860** [\[1\]](#_ftnref1)Arijit pasayat, Epuru Sudhakar vs. Govt of India, 2006 , ( last visited on June 3 , 2024) [\[2\]](#_ftnref2)Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors , 2006 , [https://legalvidhiya.com/epuru-sudhakar-anr-vs-govt-of-a-p-ors/#\_ftn7](https://legalvidhiya.com/epuru-sudhakar-anr-vs-govt-of-a-p-ors/#_ftn7) ( last visited on June 3 , 2024) . [\[3\]](#_ftnref3)Arijit Pasayat, Epuru Sudhakar vs. Govt of India, 2006 , ( last visited on June 3 , 2024) [\[4\]](#_ftnref4) The Constitution of India, art.72 [\[5\]](#_ftnref5)The Constitution of India, art.161. [\[6\]](#_ftnref6)Maru Ram vs Union of India,1981 1SCC 107 [\[7\]](#_ftnref7)Kehar Singh v. Union of India, 1989 1SCC 204 [\[8\]](#_ftnref8)Ashok Kumar v. Association of India and Ors., 1991 SCR(2) 858 [\[9\]](#_ftnref9)Swaran Singh v. State of U.P, 1998 4SCC 75 [\[10\]](#_ftnref10)Tata Cellular v. The Federal Court of India, 1996 AIR 11. **Categories:** Case Analysis --- ### [Bhanwaroo Khan & ors vs Union of India & ors AIR 2002 SC 1614](https://lawfoyer.in/bhanwaroo-khan-ors-vs-union-of-india-ors-air-2002-sc-1614/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author- Farsana A S, Student, School of Legal Studies, CUSAT** **Edited by- Masooma Naqvi, Student, Amity University, Lucknow** 1. **ABSTRACT / HEADNOTE** A Writ Petition was made before the Hon’ble Supreme Court of India challenging an order of the Central Govt. in determining the citizenship of petitioners under the Indian Citizenship Act, 1955. The appellants voluntarily migrated to Pakistan after the partition and obtained Pakistan nationality. They came to India using a Pakistan passport and a visa obtained from the Indian Authority. Upon the expiry date of the visa period they illegally stayed in India. When detected, they filed a Writ Petition to claim Indian Nationality, fearing arrest. The Supreme Court on appeal directed the petitioners to approach the concerned govt. authorities under the Citizenship Act to decide on the matter. the Indian Govt. passed an order under the Act rejecting the petitioner’s claim to Indian citizenship. The court upon evaluating the evidence and the factual circumstances found the order factually correct and in accordance with the law and in turn dismissed the petition. ***Keywords*** Indian citizenship Act,1955- Section 9(2)- Rule 3 of Schedule III- Pakistani passport- Partition- Migration- Visa expiry-Rule of Evidence- Deportation- Supreme Court 1. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Bhanwaroo Khan & Ors vs Union Of India & Ors, ***ii)* *Case Number***Writ Petition (Civil) 737 of 1995 ***iii)* *Judgement Date***2nd April of 2002 ***iv)* *Court***Supreme Court of India ***v)* *Quorum / Constitution of Bench***Division Bench ***vi)* *Author / Name of Judges***Doraiswamy Raju & Ashok Bhan ***vii)* *Citation***AIR 2002 SC 1614***viii)* *Legal Provisions Involved***Section 9(2) of Indian Citizenship Act, 1955 Rule 3 of Schedule III of the Citizenship Rules, 1956 1. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Partition of India and Pakistan caused massive population changes and numerous complications in citizenship determination. To sort out these complications the Govt. of India passed several laws on citizenship apart from the guiding provisions in the constitution. The Indian Citizenship Act 1955, is one of the prominent statutes that provides the framework for the acquisition and loss of Indian citizenship post constitution period. It also provides that Indian citizenship for a person terminates on acquiring citizenship of another country.[\[1\]](#_ftn1) The Indian Citizenship Rules, 1956 provides detailed guidelines and procedures for implementation of the Citizenship Act. The Citizenship Act provides a scope for implementation of Govt. discretion for the determination of citizenship status from the factual circumstances and evidence. The case exemplifies the judicial review over the government’s assessment of citizenship when illegal immigrants claimed entitlement to Indian Nationality. 1. **FACTS OF THE CASE** 2. **i) Procedural Background of the Case** - The appellants were migrants from Pakistan into India, filed a civil writ petition dated 10th July, 1987 before the High Court of Rajasthan under the allegation that they were Indian citizens and the police were unnecessarily harassing them to deport to Pakistan. The single civil bench dismissed the case and aggrieved by the decision a special appeal was filed which was dismissed by an impugned judgement. The appellants thereafter filed a Civil Appeal before the Supreme Court against the same and the court directed them to file an application before the concerned authorities under the Citizenship Act,1955 to decide on the matter. The order of the Indian Government on 21st July, 1995 passed under Section 9 (2) of the Citizenship Act rejected their claim to be Indian citizens and the appellants filed a Writ Petition before the Supreme Court against the same. 3. **ii) Factual Background of the Case** - The appellant No. 1, Bhanwaroo Khan and the appellant No. 2, wife of the appellant No. 1, claimed to be the residents of Village Hammoosar, Tehsil Ratangarh, in the State of Rajasthan and currently residing at Sardar Sahar, District Churu of Rajasthan had left India after partition of the country and acquired the citizenship of Pakistan. With the passport obtained from Pakistan as a Pakistani citizen and visa obtained from the Indian High Commissioner, the appellants entered Indian territory via Atari Check Post, Border of Punjab on 12th February 1955. Upon registering with the District Superintendent of Police, Churu on 14th February 1955 the appellants stayed in India till 7th May and reported about their departure with the same authority on the same day. However, the appellants had not left India, but remained in the country illegally until they decided to file a Civil Writ Petition to determine their citizenship when encountered with the fear of getting arrested. 4. **LEGAL ISSUES RAISED** - Whether the order made by the Government of India, dated 21st July, 1995 determining the national status of the petitioners under Section 9 (2) of the Citizenship Act, 1955 pertains to be valid? - Whether the appellants are liable to be deported to Pakistan as illegal immigrants? 1. **PETITIONER/ APPELLANT’S ARGUMENTS** - The counsels for Petitioner / Appellant submitted that: The appellants were born to Indian parents, both their siblings and children are Indians and are living in the country. They are senior citizens and shall not be deported to Pakistan as they require the support of their children in their old age. The authorities made a mistake in the determination of their citizenship as the mere existence of the fact that they have a passport from Pakistan could not be a ground to reject the citizenship they acquired naturally from India. 1. **RESPONDENT’S ARGUMENTS** - The counsels for Respondent submitted that: The fact the appellants had migrated to Pakistan after the partition and their obtainment of Passports from the Govt. of Pakistan raises a presumption against their status as citizens of India. The appellants also made a declaration of being Pakistan citizens to obtain visas from the Indian High Commissioner. On the expiry of the visa period they could have either returned to Pakistan or applied for an extension of the visa. But they allegedly remained in the country and lived underground which amounted to liability of getting deported to Pakistan. A passport obtained by a person from a foreign country is relevant evidence in the determination of that person’s citizenship. Hence the presumption of the appellants to be citizens of Pakistan stands to be valid. 1. **RELATED LEGAL PROVISIONS** - Section 9 (2) of the Citizenship Act, 1955 - Rule 3 of Schedule III of the Citizenship Rules, 1956 2. **JUDGEMENT** 1. **RATIO DECIDENDI** Sub-section (2) of Section 9 of the Citizenship Act provides that if any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf. Rule 3 of Schedule III of the Citizenship Rules, 1956 (for short ‘the Rules’) provides: “3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.” The Indian Govt. relied upon this rule to determine the citizenship of the appellants. The court also cited the judgement from Izhar Ahmad Khan & Ors. Vs. Union of India & Ors[\[2\]](#_ftn2)., wherein this court had considered the validity of Rule 3 of Schedule III of the Citizenship Rules and an order passed under Section 9 (2) of the Citizenship Act to determine the citizenship of one who had obtained a passport from Pakistan. Relying upon its decision the court observed that to evaluate the practical aspect of the Rule one needs to look into the procedures followed in obtaining a passport from the Pakistan Govt. for travel into another country. As per the laws that existed in Pakistan, one could not apply for a passport unless he is a citizen under its Citizenship Act. The application form also requires that the applicant should make a declaration that he is a citizen of Pakistan and the declaration has to be verified by the Pakistan Officials before the passport being issued. Under these circumstances if a passport is issued by the Pakistani Govt. the citizen would be estopped from claiming against the citizenship of Pakistan. if the impugned rule prescribes that the obtainment of a passport from the Pakistani Govt. by an Indian national conclusively proves the voluntary acquisition of Pakistani citizenship , it would be difficult to consider that the rule is ‘not a rule of evidence’. The Central Govt. in its order declared that the appellants failed to produce relevant materials as evidence to show that they had obtained the citizenship under compulsion. This would raise a presumption that they had obtained the Pakistan citizenship voluntarily. The appellants failed to adduce any documents in support of their claim and the court pointed out that if the appellants had an intention of returning to Pakistan on expiry of their visa period efforts would have been made way back in the year 1955 to acquire the citizenship of India. The court passed the verdict that they don’t find any infirmity on the order passed by govt. nor the judgement made by the High court. 1. **OBITER DICTA** - Long stay in the country and enrolment in the voters’ list would not confer any right to an alien to continue to stay in the country. 2. **CONCLUSION & COMMENTS** The case gives guidance on how to determine the citizenship of people that migrated during the partition period using the rule of evidence. The judgement signifies that citizenship of people should be presumed from their voluntary action to acquire citizenship. Obtaining a foreign passport and using illegal ways to stay in the country could raise presumptions against one’s Indian citizenship. So, one must show the evidence to establish citizenship in the country. If a foreign passport has been acquired by any person, then evidences should be made to establish that it had been acquired under compelling circumstances to attain the rights of natural citizenship in India. 1. **REFERENCES** 1. **Important Cases Referred** - Izhar Ahmad Khan & Ors v. Union of India & Ors. (AIR 1962 SC 1052) 2. **Important Statutes Referred** - Evidence Act, 1872 (Act No. I of 1872) [\[1\]](#_ftnref1) Indian Citizenship Act, 1955, § 9(1), No. 57, Acts of Parliament, 1955 (India). [\[2\]](#_ftnref2) Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052 **Categories:** Case Analysis --- ### [B & T AG vs Ministry of Defence , 2023 SCC Online SC 657](https://lawfoyer.in/b-t-ag-vs-ministry-of-defence-2023-scc-online-sc-657/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Pratyush Mahapatra, Law Student at L.R. Law College, Sambalpur University** **Edited by: Sushmana Pandey, Law Student at Amity University** 1. **ABSTRACT** The B & T AG vs Ministry of Defence case was a contractual disagreement over the purchase of 1,568 submachine guns. After signing the contract in 2012, problems emerged in 2016 with the Ministry’s encashment of the warranty bond and liquidated damages. B & T AG disputed these actions and requested arbitration under Section 11(6) of the Arbitration and Conciliation Act of 1996. On May 18, 2023, the Hon’ble Supreme Court held that such an agreement does not extend the limitation period, which is controlled by Article 137 of the Limitation Act of 1963, which establishes a three-year time limitation from the cause of action. The court emphasized the respect of procedural time frames and rejected B & T AG’s petition. ***Keywords*: Arbitration, Limitation Period, Contractual Dispute, Pre-arbitral Negotiations, Liquidated Damages** 1. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***B & T AG vs Ministry of Defence ***ii)* *Case Number***Arbitration Petition (C) No. 13 of 2023 ***iii)* *Judgement Date***18th May 2023 ***iv)* *Court***Hon’ble Supreme Court ***v)* *Quorum / Constitution of Bench***Division Bench ***vi)* *Author / Name of Judges***CJI Dr. D Y Chandrachud & J. J.B Pardiwala ***vii)* *Citation***2023 SCC Online SC 657***viii)* *Legal Provisions Involved***Section 11(6) of the Arbitration and Conciliation Act 1996, Article 137 of the Limitation Act of 19631. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case of B & T Ag versus Ministry of Defence centred around a contractual disagreement over a deal to buy 1,568 Sub Machine Guns via the Ministry of Defence’s Fast Track Procedure. The dispute arose when B & T AG filed arbitration procedures under Section 11(6) of the Arbitration and Conciliation Act of 1996. The Hon’ble Supreme Court’s primary concern in this case was the application of the limitation period for choosing an arbitrator and whether time spent in obligatory pre-arbitral consultations should be omitted from this period. The court decided on May 18, 2023, noting that such conversations do not toll the limitation period, emphasizing the need for rigorous respect to procedural timetables in arbitration procedures. 1. **FACTS OF THE CASE** - The respondent i.e. Ministry of Defence issued a tender for the urgent procurement of 1,568 Sub Machine Guns under a Fast Track Procedure in 2009. After due negotiations the petitioner i.e. B & T AG signed the contract in 2012. - In 2016 the parties’ disagreement originated from the respondent’s claimed unlawful encashment of the warranty bond. In consequence, the respondent took action of encashing the Liquidated Damages for the requisite amount i.e. Euro 201,793.75. - The respondent also received the sanction from the President of India to deduct the amount of Euro 197,230.35 as recovery of LDs from the petitioner. - Despite all this, both the petitioner and respondent continued to engage in bilateral discussions with the goal of settling the dispute. However, the respondent notified the petitioner that the action taken by the respondent was according to the terms & conditions of the contract. Despite that, the petitioner requested the respondent to reconsider the matter and to allow the petitioner to submit its case. - On November 8, 2021, the petitioner appointed an arbitrator and requested the respondent to appoint the same. However, the respondent refused to do so. In consequence, on February 3, 2023, the petitioner filed an arbitration petition before the Supreme Court. 1. **LEGAL ISSUES RAISED** 2. Whether time-barred claims or claims barred by limitation can be said to be live claims, which can be referred to arbitration. 3. **PETITIONER/ APPELLANT’S ARGUMENTS** - The counsels for Petitioner / Appellant submitted that counsels for Petitioner / Appellant submitted that the claims made by them are not time-barred. - The counsel contended that the respondent wrongfully deducted the LDs. - The parties were trying to amicably address the problems by way of bilateral discussions. - The court specifically may consider Article 21.1 of the contract which reads as; all disputes or differences arising out of or in connection with the present Contract, including the one connected with the validity of the present Contract or any part thereof, shall be settled by bilateral discussions.” - The respondent notified the petitioner for the first time on 22.09.2017, that the petitioner’s proposal to revisit the decision of improper deduction of LD had been refused. - By referring to the Geo Miller case it was submitted that once the parties get involved in the bilateral discussions, the time does not play any role. - The refusal to review the claimed improper deduction of the liquidated damages via letter dated 22.09.2017 might be deemed to be the breaking point. - By excluding the COVID period, the date of notice of arbitration which is 08.11.2021 comes within the limitation period of three years. - It is urged that the petition filed under Section 11(6) of the Act to form an Arbitral Tribunal be granted and formed. 1. **RESPONDENT’S ARGUMENTS** - The counsels for Respondent submitted that the counsels for Respondent submitted that the petition filed by the petitioner is time-barred. - Since the petitioner’s concern centres on the deduction of the LDs, the last such deduction was made on 26.09.2016, hence this matter might be the cause of action. - However, the notice for the arbitration was sent on 08.11.2021, which is significantly more than two years over the period of limitation of three years. - It is contended that the time of limitation for issuing a notification requesting arbitration which is not particularly stipulated in the Schedule to the Limitation Act 1963, shall be covered by the residuary Article, i.e. Article 137 of the said Schedule. - The petitioner’s claim is ex-facie time-barred, hence the current petition under Section 11(6) of the Act 1996 should be rejected. 2. **RELATED LEGAL PROVISIONS** - **Arbitration and Conciliation Act 1996** Section 11(6) Inter alia the appointment of an arbitrator in the event of the parties failing to make such an appointment. It outlines the steps the parties may take to appoint an arbitrator in a dispute. - **Limitation Act 1963** Article 137 A residuary provision provides for a limitation period of three years from the date when the right to apply accrues, for any application for which no period of limitation is provided in any of the Articles in the Schedule to the Act. 1. **JUDGEMENT** 1. **RATIO DECIDENDI** After a thorough review of the relevant statutes, this court ruled that in circumstances where claims are time-barred, it may decline to issue a referral under Section 11 of the 1996 Act. The Act is intended to accelerate dispute settlement by including provisions for time-bound arbitral processes. Because the Act does not establish a time restriction for making an application under Section 11(6), recourse is made to the 1963 Act, as per Section 43 which applies the Limitation Act to arbitrations, similar to court procedures. In the lack of a particular Article in the Limitation Act, the residual provision of Article 137 applies with a three-year limitation term beginning with the accrual of the right to apply. This Court’s decision, consistent with previous decisions and relevant High Court rulings, confirms that the application under Section 11 must be filed in a court of law, subject to a three-year limitation period beginning with the date of refusal to appoint the arbitrator or the expiration of 30 days, whichever comes first. In the same decision, the Hon’ble Supreme Court refers to Justice Bachawat’s book, Law of Arbitration, Chapter 37, p. 549, which notes that like actions, claims in arbitrations must be presented within a specific time once they arise. The cause of arbitration arises when the claimant has the right to seek arbitration and the limitation period begins at the moment. The timely beginning is critical for justice and equity and the defaulting party should pay the penalties rather than transferring them to the other side. - Three Year window for Section 11 application: The Supreme Court clarified that the three-year window for submitting a Section 11 application begins on the day the initial cause of action arose. This means that the parties have a specific time within which to bring their claims under Section 11. - Statute of Limitations and Negotiations: The cause of action will not be postponed due to further negotiations between the parties. Even if negotiations are ongoing, the clock for the three-year limitation period starts ticking from the date of the initial cause of action. - Determining the Breaking Point: In cases where parties engage in serious negotiations, the court must establish the breaking point. The breaking point refers to the moment when serious attempts to resolve the dispute peacefully would have been abandoned. - Exclusion of Negotiation Period: The Geo Miller case ruled on excluding the negotiation from the computation of the limitation period for reference to arbitration. However, the Supreme Court two-judge bench decision in this case appears to have diluted the Geo Miller ruling. The B & T case acknowledges the Geo Miller observations but lacks specific details on the conditions for excluding the negotiation period from the limitation calculation. 1. **OBITER DICTUM** In this case, the court highlighted the lack of a stated limitation term under Section 11 of the 1996 Act, prompting the application of Article 137 of the 1963 Limitation Act, which provides three years from the accrual of the right to apply. However, this court found it to be too lengthy and contrary to the Act’s goal of rapid dispute settlement. Amendments in 2015 and 2019 imposed time constraints, such as an 18-month deadline for completing procedures under Section 29A. Given the legislative objective and structure of the Act, this court encouraged parliament to modify Section 11 to create a precise restriction time for filing petitions for arbitrator appointments. 1. **CONCLUSION & COMMENTS** The Supreme Court’s decision in the B & T AG vs Ministry of Defence case underscores the critical importance of adhering to contractually mandated pre-arbitral negotiation processes. The court’s ruling that mere negotiations do not extend the limitation period highlights the necessity for clear and timely initiation of arbitration proceedings. This decision serves as a pivotal reminder for the parties involved in contracts to meticulously follow procedural requirements to avoid forfeiting their right to arbitration. 1. **REFERENCES** 1. **Important Cases Referred** - Geo Miller and Company Private Limited vs Chairman, Rajasthan Vidyut Utpadan Nigam Limited (2020 14 SCC 643) - Bharat Sanchar Nigam Limited & Another vs Nortel Networks India Private Limited (2021 5 SCC 738) 2. **Important Statutes Referred** - Arbitration and Conciliation Act 1996 - Limitation Act 1963 **Categories:** Case Analysis --- ### [Bennett Coleman & Co. & Ors vs Union Of India & Ors 1973 AIR 106](https://lawfoyer.in/bennett-coleman-co-ors-vs-union-of-india-ors-1973-air-106/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Aditya Shaw, Law Student at Heritage Law College.** **Edited By: Rituparna Panda, Law Student at Birla Global University.** **ABSTRACT** The case Bennett Coleman & Co. Challenged the constitutionality of the Newspaper Control Policy. This policy imposed tight restrictions on importing and using newsprint (newsprint is described as white printing paper), significantly impacting the media industry. The applicant argued that these restrictions imposed by the Newspaper Policy infringe the right of freedom of speech and expression guaranteed in Article 19(1)(a) and the right to equality under Article 14 of the Indian Constitution. According to the Petitioners, the page limits and newsprint quotas imposed by the policy unduly restricted the freedom of publication for larger newspapers. The Supreme Court examined the claims of the petitioner and determined that the policy indeed violated the petitioner’s constitutional rights. The Court found that the policy’s provisions discriminated against the larger publications and reduced the freedom of speech and expression, thus violating Articles 19(1)(a) and 14. ***Keywords:*** Freedom of Speech, Newsprint Policy, Article 19(1)(a), Article 14, Emergency Provisions **CASE DETAILS** i) ***Judgement Cause Title / Case Name*** Bennett Colemen & Co. & Ors vs Union of India & Ors ii) ***Case Number*** Original Jurisdiction Writ Petitions Nos. 334 of 1971, 175,186 and 264 of 1972 iii) ***Judgement Date*** 30th of October 1972 iv) ***Court*** The Supreme Court of India v) ***Quorum / Constitution of Bench*** S.M. Sikri, A.N. Ray, P. Jaganmohan Reddy, Kuttyil Kurien Mathew, M. Hameedullah Beg vi) ***Author / Name of Judges*** S.M. Sikri vii) ***Citation*** 1973 AIR 106, 1973 SCR (2) 757, AIR SC 106, 1972 2 SCC 788, 1973 (1) SCJ 177, 1973 2 SCR 757 viii) ***Legal Provisions Involved*** Articles 14, 19(1)(a), 32, 358 of the Constitution of India, Imports and Exports Control Act 1947, Essential Commodities Act 1955, Newsprint Control Order 1962 **INTRODUCTION AND BACKGROUND OF JUDGMENT** The Indian government’s new regulations and control over the distribution and use of newsprint which is a raw material for newspaper industries was the key background to the Bennett Coleman & Co. Vs Union of India lawsuit. Through a number of statutory orders and policy measures by the government, the newsprint was strictly regulated because it was deemed an essential commodity. Newsprint import, and distribution which were used by newspaper publishers and other users were restricted by the Indian Government in 1972 when it announced the Newsprint Policy for 1972- 1973. This policy was implemented in the larger framework of the Emergency declared in June 1971 by Indra Gandhi, who was the Prime Minister at the time. Article 358 (Suspension of provisions of article 19 during emergencies)[\[1\]](#_ftn1) of the Constitution, which permitted the temporary suspension of some fundamental rights gave the government broad authority to act during the Emergency. The petitioner, Bennett Coleman & Co. filed writ petition before the Supreme Court against this policy. The Petitioner claims that the Newsprint Policy and some sections of the Newsprint Control Order 1962 were infringed upon their fundamental rights guaranteed in Article 19(1)(a) (to practice any profession, or to carry on any occupation, trade or business)[\[2\]](#_ftn2)and Article 14 (Equality before law)[\[3\]](#_ftn3) of the Constitution, which the right to freedom of speech and expression and the right to equality. The validity of the government’s newsprint regulation laws was a topic of discussion for the Supreme Court. The majority ruling, led by Justice Ray concluded that the Newsprint Policy’s quantitative controls from 1972- 1973 amounted to inappropriate limitations on the media’s basic right to free speech. The court determined that direct or indirect intervention through policies like page limit was unjustified as they restrict the freedom of the press, even though it recognized the necessity of addressing the shortage of newsprint. On the other hand, Justice Mathew contended in his dissenting opinion that the policy did not directly regulate the content of the press but rather was required to guarantee the effective use of scarce resources. **FACT OF THE CASE** The case started with Bennett Coleman & Co. Arguing against the constitutionality of the Newsprint Control Policy for the years 1971- 1972 and 1972- 1973 through a writ petition filed under Article 32 (Remedies for enforcement of rights conferred by this Part)[\[4\]](#_ftn4) of the Indian Constitution. Later the challenge against the 1972- 1973 policy was added to the original petition. The petitioner claimed that by limiting the distribution and page count of their newspapers, the policy violated their fundamental rights under Articles 14 and 19(1)(a) of the Constitution. The Indian government introduced the Newsprint Control Policy to control newsprint distribution as the material of the newspaper which is newsprint was becoming scarce. According to the policy, a maximum page count for newspapers was established and newsprint quotas were distributed based on historical circulation data. Prior to 1972- 1973, newsprint was allotted based on 1961- 1962 circulation and page counts. The larger newspapers contended that the policy’s 10-page cap was insufficient and would affect their freedom of the press. The government asserted that the newsprint policy was covered by Article 358 of the Constitution, which suspends the provision of Article 19 (Protection of certain rights regarding freedom of speech, etc)[\[5\]](#_ftn5) in times of emergency and thus make the petition nonmaintainable during the emergency declared in 1971. Despite the emergency, the petitioner argued that the newsprint policy could still be challenged because it was a continuation of earlier policies. The Supreme Court heard arguments from both parties, setting the way for a landmark decision on the relationship between constitutional rights and government policy. **LEGAL ISSUES RAISED** **i)** Whether the petitioner companies were able to use Article 19(1)(a) and 14 of the Constitution to defend their fundamental rights. **ii)** Whether the Newsprint Policy amounted to “newsprint control” or “newspaper control”. **iii)** Whether the petitioners’ attempt to challenge the Newsprint Policy on the grounds of its violation of fundamental rights was prohibited by the proclamation of emergency under Article 358. **iv)** Whether the terms of the Import Control Order, 1955 applied to the 1972- 1973 Newsprint policy. **v)** Whether the Newsprint Control Order, 1962’s clauses 3 and 3A violated the Constitution’s Articles 19(1)(a) and 14. **PETITIONER ARGUMENTS** **i)** The counsels for the petitioner argued that their fundamental rights under Article 19(1)(a) (freedom of speech and expression) and Article 14 (right to equality) were infringed by the Newsprint Control Policy of 1972- 1973. The court made several observations in the Express Newspaper case to support the petitioner companies’ right to invoke fundamental rights in aid of freedom of speech and expression enshrined in the freedom of the press. The petitioner highlighted that relief was given to editors and shareholders of newspaper companies in cases like Sakal Papers (P) Ltd. & Ors vs The Union of India[\[6\]](#_ftn6) and Express Newspapers (Private) Ltd. & Anr vs Union of India[\[7\]](#_ftn7). The court in Express Newspaper (1959) held that any legislation that directly affects press freedom would be overturned if it violates Article 19(1)(a). The court recognized that press freedom is a vital part of freedom of speech. Similar to this case Sakal Papers (1962) overturned the Daily Newspapers (Price and Page) Order, 1960 and Newspaper (Price and Page) Act 1956, for violating Article 19(1)(a), pointing out how laws directly affect free speech and expression. **ii)** The counsels of the petitioner also argued that the Newsprint Policy was not merely about regulating the supply of newsprint due to scarcity but effectively amounted to controlling the content and growth of newspapers. They criticized aspects of the policy, such as Remak VII(c) and Remark VIII, which allowed for a 20% increase in pages but within a cap of 10 pages. They argued that by favoring smaller publications and prohibiting larger ones from expanding their circulation, this policy discriminated against larger publications thus controlling the content of the newspaper. **iii)** Counsels for the petitioner argued that Article 358 is inapplicable as it has no application to the law or executive action taken prior to the emergency. The petitioner claimed that the Newsprint Policy was an extension of the previous newsprint policy which had originated earlier and continued from year to year for a decade till the proclamation of emergency in 1971. The restrictions on newsprint policy were imposed before the proclamation of emergency. **iv)** The counsels for the petitioners submit that the terms of the Import Control Order 1955, should not apply to the 1972- 1973 Newsprint Policy as the latter was implemented under different situations and with different objectives. They emphasized that the new policy imposed more stringent restrictions that specifically targeted big newspapers, thus creating an unequal and discriminatory environment in the press industry, violating Articles 14 and 19(1)(a). **v)** The counsels for the petitioner contended that clauses 3 and 3A of the Newsprint Control Order 1962, infringed upon their constitutional rights under Articles 19(1)(a) and 14. The amount of newsprint that could be imported and distributed to newspaper publishers was limited by these clauses, which had an immediate impact on the freedom and reach of newspapers in publishing. They maintained that these limitations created an unfair and discriminatory environment, were not justified on the basis of reasonableness, and disproportionately affected larger newspapers. Citing precedents from Sakal Papers and Express Newspaper, they backed their claims with the emphasis that any law or policy that directly restricts the right to free speech or creates unequal conditions for citizens and entities should be declared unconstitutional. **RESPONDENT’S ARGUMENTS** **i)** The counsel for the respondent argued that the petitioner companies could not invoke Articles 19(1)(a) and 14 to defend their fundamental rights because companies are separate legal entities, do not enjoy the fundamental rights guaranteed under Article 19(1)(a) as these rights are intended for individuals, not corporations. The company and its shareholders though connected are different entities legally and constitutionally. The Newsprint Policy regulates the import and usage of newsprint, which falls under reasonable restrictions in the interest of the general public. **ii)** The counsels for the respondent argued that the primary objective of the Newsprint Policy was to regulate the import and distribution of newsprint, a scarce resource, to ensure equitable distribution among various newspaper companies based on their needs and circulation. The main focus of the policy was on the physical aspect of newsprint allocation and usage, there was no motive of interference with the editorial content or freedom of expression of the newspapers. **iii)** The counsel for the respondent also argued that the petitioner’s challenge is indeed barred by the proclamation of emergency under Article 358 as during the emergency Article 358 suspends the rights conferred by Article 19. Thus, any law or executive action taken during this period cannot be challenged on the grounds that it violates Article 19. Although the petitioners claim that the 1972- 1973 Newspaper Policy is a continuation of the previous policies, the enforcement and application during the emergency period fall within the ambit of Article 358, making the challenge untenable. The response have cited a precedent District Collector of Hyderabad vs M/s Ibrahim & Co[\[8\]](#_ftn8), in this case, the court upheld that executive actions taken during an emergency are immune from challenges based on Article 19. **iv)** The counsel for the respondent claims that the 1972- 1973 Newsprint Policy was directly governed by the provisions of the Import Control Order 1955. They highlighted that the Newsprint Policy was a continuation and essential component of the larger regulatory framework set by earlier orders, such as the 1955 Import Control Order. It was not intended to be an independent directive. **v)** The counsels for the respondent argued that Articles 19(1)(a) and 14 of the Constitution were not violated by clauses 3 and 3A of the Newsprint Control Order 1962. These clauses were necessary to prevent monopolistic practices in the newspaper industry and to guarantee the fair distribution of newsprint, a limited resource. The respondent contended that these limitations regulated the limited newsprint in a way that benefited both the public and the press. **JUDGMENT** - RATIO DECIDENDI **i)** The Court ruled that the petitioner companies could use Articles 19(1)(a) and 14 of the Constitution because they were legal entities. It confirmed that corporations had the right to free speech and expression because it directly affects press freedom, which is crucial for a democratic country. Thus, this right was violated by the newsprint policy’s restriction which made it more difficult for newspapers to circulate and publish their opinion freely and without undue interference from the government. **ii)** The Court decided that the petitioners were able to challenge the Newsprint Polic despite the proclamation of emergency under Article 358. The Court pointed out that while Article 358 suspends the application of Article 19 in an emergency, Article 14 fundamental right to object to executive action on the grounds of discrimination is unaffected. Therefore, the petitioner may still challenge the policy’s constitutionality. **iii)** After a thorough analysis, the Court concluded that the 1972- 1973 Newsprint Policy was covered by the provisions of the Import Control Order 1955. However, the Court found that the application of these provisions must be in conformity with constitutional mandates, including the protection of fundamental rights. **iv)** The Court held that Articles 19(1)(a) and 14 of the Constitution were violated by clauses 3 and 3A of the Newsprint Control Order 1962, which limited the distribution and allocation of newsprint. It was determined that these provisions were discriminatory in their application that disproportionately harmed press freedom. They were therefore declared unconstitutional and overturned. **CONCLUSION & COMMENTS** The Bennett Coleman case marked a significant turning point in the legal analysis of press freedom and the government’s authority to regulate essential commodities. While the Court upheld the validity of the Newsprint Policy, it struck down specific provisions that were unconstitutional and violated freedom of speech and expression. Even during times of national emergency, the courts must carefully balance protecting civil liberties with the state’s regulatory powers. The case had a long-lasting effect on the evolution of Indian media law and the boundaries of governmental control over the media. **REFERENCES** **Important Cases Referred** - Sakal Papers (P) Ltd. V. Union of India, 1962 AIR 305 - Express Newspaper (P) Ltd. V. Union of India, 1959 AIR 578 **Important Statutes Referred** - Constitution of India, 1950 - Imports and Exports Control Act, 1947 - Essential Commodities Act, 1955 - Newsprint Control Order, 1962 [\[1\]](#_ftnref1) Article 358, Constitution of India (1950). [\[2\]](#_ftnref2) Article 19(1)(a), Constitution of India (1950). [\[3\]](#_ftnref3) Article 14, Constitution of India (1950). [\[4\]](#_ftnref4) Article 32, Constitution of India (1950). [\[5\]](#_ftnref5) Article 19, Constitution of India (1950). [\[6\]](#_ftnref6) Sakal Papers (P) Ltd. & Ors vs The Union of India AIR 1962 SC 305 [\[7\]](#_ftnref7) Express Newspapers (Private) Ltd. & Anr vs Union of India AIR 1986 SC 872 [\[8\]](#_ftnref8) District Collector of Hyderabad vs M/s Ibrahim & Co AIR 1970 SC 1275 **Categories:** Case Analysis, Constitutional Law Cases --- ### [FREEDOM OF TRADE, COMMERCE & INERCOURSE UNDER ARTICLE 301 R/W Article 19(1) g OF THE INDIAN CONSTITUTION](https://lawfoyer.in/freedom-of-trade-commerce-inercourse-under-article-301-r-w-article-191-g-of-the-indian-constitution/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Rimin Cherian Reji, New Law College, Bvdu** **Edited by : Naveena K , Chettinad School of Law** **INTRODUCTION** Article 301, read with Article 19(1)(g) of the Indian Constitution, encompasses the concepts of “freedom of trade, commerce, and intercourse” and is critical in ensuring the free movement and exchange of goods throughout the country. Article 301 prioritizes territoriality over individual rights by ensuring unrestricted trade, commerce, and intercourse inside India’s territory. Article 19(1)(g) of the Constitution, which emphasizes individual liberty by ensuring citizens’ fundamental right to practice any profession, business, trade, or occupation, supplements this constitutional right. The aforementioned rules are critical to developing economic integration and ensuring the free flow of products and services throughout the country, ultimately cultivating a unified national market. In order to sustain the smooth flow of people, products, and services—which is essential for both economic progress and national unity—territorial freedom under Article 301 is very important. In order to promote a coherent economic environment, Article 301 tries to prohibit states from enacting limitations that can obstruct interstate commerce by concentrating on territorial issues. Article 301 deals with the territorial and structural aspects of economic integration, whereas Article 19(1)(g) focuses on personal freedom and the right of individuals to pursue economic opportunities. The interaction between these two articles illustrates a dual approach to economic freedom. **KEYWORDS**: Article 301, Article 19(1) g, free trade, reasonable restrictions, economic unity. **Meaning, Definition & Explanation** Trade It is a very old word and the meaning of it varies accordingly. In general, it can be defined as the engagement in the business of exchange, sale, or purchase of goods.[\[1\]](#_ftn1) It is not only the exchange of goods but something valuable in return for some other thing. The idea of value differs from person to person. Commerce It is the transportation of things that are meant to trade from one place to another. The commodities are of large scale.[\[2\]](#_ftn2) Intercourse The word has almost the same meaning and is supposed to be read along with commerce[\[3\]](#_ftn3). Historical Background** The concept of freedom of trade, commerce, and intercourse was borrowed from Section 92 of the Constitution of Australia which states that trade within the Commonwealth is free.[\[4\]](#_ftn4) When the concept comes to the Indian scenario, free trade is defined as trade within inter-state and intra-state should be without any restrictions but the parliament or any state legislature can impose reasonable restrictions on public interest. The concept was first introduced in the drafting constitution in draft Article 274A proposed by Dr. B.R. Ambedkar, the chairman of the drafting committee. His idea was to include a new part X-A, focusing on trade, commerce, and intercourse within the territory of India, consisting of Articles 274A, 274B, 274C, 274D, and 274E. He propounded the idea of free trade with reasonable restrictions and the restrictions could be made by the parliament or any state legislature.[\[5\]](#_ftn5) The additional restrictions introduced in Part X-A weakened the draft Article 16[\[6\]](#_ftn6) which states the freedom of trade, commerce, and intercourse as a fundamental right.[\[7\]](#_ftn7) A member proposed to amend the draft Article 274A but it was rejected. After various discussions and corrections, the draft Article 274 A was accepted on September 8, 1949, as the present Article 301.[\[8\]](#_ftn8) **Comparison with other Countries** The makers of the Constitution referred to many laws that existed in different countries to codify the concept of freedom to trade, commerce, and intercourse, and the idea is adopted in a way more similar to that of the Australian Constitution. Section 92 in Chapter IV of the Australian Constitution states that trade within the Commonwealth shall be free.[\[9\]](#_ftn9) In Atiabari Tea Co. vs. State of Assam (1961), the Court, by referring to the Australian Constitution, held that the scope of Article 301 is not limited to inter-state but extends to intra-state trade.[\[10\]](#_ftn10) Article 302 gives Parliament to impose restrictions related to trade, commerce, and intercourse.[\[11\]](#_ftn11) Comparably, Australia’s Parliament has the authority to enact rules governing commerce between the States and foreign nations under Section 51(1) of the Australian Constitution.[\[12\]](#_ftn12) The US Constitution’s Article 1, Section 8(3) gives Congress the authority to control interstate and international trade.[\[13\]](#_ftn13) **Freedom of Trade, Commerce, and Intercourse as a Constitutional and Fundamental Right Article 19(1) g identifies the freedom of trade as a fundamental right, while Article 301 lists it as a constitutional right.[\[14\]](#_ftn14) Article 19(6) and Articles 302-305 of the Constitution, respectively, grant the government the power to impose reasonable restrictions in the public interest in both situations, indicating that the right is not unqualified. Only Indian citizens are eligible to profit from Article 19(1) g, however, anyone conducting trade, commerce, and intercourse within India’s borders is entitled to rights under Article 301.[\[15\]](#_ftn15) Article 301 states that trade, commerce, and intercourse throughout the territory of India shall be free. It focuses mainly on the place rather than the individual interest and it sees the whole country as an economic unit.[\[16\]](#_ftn16) The Supreme Court in Atiabari Tea Co. vs. State of Assam interpreted the Article and held that both inter-state and intra-state trade should be free in India. The “free trade” does not mean the right is absolute. The government can impose regulations and reasonable restrictions in the public interest. Regulations and restrictions imposed are not the same. Regulations do not create a burden on the free flow of trade but are imposed for the smooth functioning of trade and commerce activities. It includes compensatory taxes, like road tax, collected for building trade infrastructure.[\[17\]](#_ftn17) Restrictions create a burden in the free flow of trade and unreasonable restrictions imposed on trade are unconstitutional. Both Parliament and State Legislature can impose restrictions in the public interest but the latter requires the previous sanction of the President for introducing such a bill in the House.[\[18\]](#_ftn18) The imposed restrictions shall not discriminate the interests of any state or shall not favor any one state over the other. Article 19(1) g, which guarantees the right to trade, is a fundamental right and this makes clear that the right is guaranteed by the Constitution of India only to the citizens of India. The Article focuses on individual interest rather than the place. A citizen can take part in any kind of trade of his choice but it should be legal in nature. The Article guarantees a citizen the right to choose the kind of trade that he wants to engage with. Similar to Article 301 this is also not an absolute right and the State has the power to impose reasonable restrictions under Article 19(6) in public interest.[\[19\]](#_ftn19) “Free Trade”- not an absolute right** The concept of freedom of trade, commerce, and intercourse was borrowed from the Constitution of Australia.[\[20\]](#_ftn20) Section 92 of the Constitution guarantees that the trade within the commonwealth is free but at the same time, it gives the Parliament of Australia to make laws on trade-related matters.[\[21\]](#_ftn21) This implies that there is no such thing as absolute freedom of trade. There shall be regulations for the smooth and efficient functioning of trade without implying any burden on the flow of trade. In Atiabari Tea Co. vs. State of Assam (1961) the court held by interpreting Article 301 that trade and commerce activities shall be free from tax burdens and other impediments.[\[22\]](#_ftn22) The interpretation was later modified in Automobile Transport (Rajasthan) Ltd vs. State of Rajasthan (1962) [\[23\]](#_ftn23)which held that freedom under Article 301 does not imply that it is free from regulations which is for the smooth functioning of trade activities. Regulations include compensatory taxes which are in the nature of compensation for the service provided such as road taxes.[\[24\]](#_ftn24) The State of Mysore vs. H. Sanjeeviah (1967) decision distinguished between prohibitory and regulatory rules. Prohibitory laws stymie the free flow of trade, whereas regulatory norms help those engaged in trade, commerce, and intercourse. Restrictions that directly limit the freedom of trade, commerce, and intercourse are unconstitutional.[\[25\]](#_ftn25) **LEGAL PROVISIONS** **Article 19(1)g** “*to practice any profession, or to carry on any occupation, trade or business.”* **Article 19(6)** *“Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 1\[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—* *(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or* *(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.\]”* **Article 301** *“Freedom of trade, commerce, and intercourse.—Subject to the other provisions of this Part, trade, commerce, and intercourse throughout the territory of India shall be free.”* **Article 302** *“Power of Parliament to impose restrictions on trade, commerce, and intercourse.—Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest.”* **Article 303** *“Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce.—(1) Notwithstanding anything in article 302, neither Parliament nor the Legislature of a State shall have the power to make any law giving, or authorizing the giving of, any preference to one State over another, or making, or authorizing the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule.* *(2) Nothing in clause (1) shall prevent Parliament from making any law giving, or authorizing the giving of, any preference or making, or authorizing the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India.”* **Article 304** *“Restrictions on trade, commerce, and intercourse among States.—Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law—* *(a) impose on goods imported from other States 1\[or the Union territories\] any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and* *(b) impose such reasonable restrictions on the freedom of trade, commerce, or intercourse with or within that State as may be required in the public interest:* *Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.”* **Section 92 of the Australian Constitution** “*Trade within the Commonwealth to be free:* *On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.* *But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.”* **Section 51(1) of the Australian Constitution** “*The Parliament shall, subject to this Constitution, have power12 to make laws for the peace, order, and good government of the Commonwealth with respect to:* *trade and commerce with other countries, and among the States;”* **Article 1 Section 8(3) of US Constitution** “*The Congress shall have the Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;* *To regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes”* **Important Case Laws** **Atiabari Tea Co. vs. State of Assam (1961)** The Judgment highlights the scope of Article 301 of the Indian Constitution. The Court held that “freedom” in the Article also means free from taxes and other burdens but is not an absolute freedom.[\[26\]](#_ftn26) Article 302 states that the Legislative body has the authority to make reasonable restrictions on public interest and such restrictions must have previous sanction of the President especially if it is made by any state legislature. The main point is the restrictions should be reasonable and in the public interest. The court referred to the Australian and the U.S. Constitutions and highlighted the scope of Article 301 of the Indian Constitution which is not limited to inter-state trade but extends to intra-state trade.[\[27\]](#_ftn27) Automobile Transport (Rajasthan) Ltd vs. The State of Rajasthan (1962) modified the concept of free commerce that was initially defined in this case.[\[28\]](#_ftn28) **Automobile Transport (Rajasthan) Ltd vs. State of Rajasthan** The decision centered on interpreting Article 301 of the Indian Constitution and changed the notion of “free trade” established in Atiabari Tea Co. vs the State of Assam (1961). Article 301 states, “Trade, commerce, and intercourse throughout the territory of India shall be free.” “Freedom” does not imply that there will be no regulations. Regulatory measures are for the smooth functioning of trade and it is for the benefit of those who engage in legal trade activities like compensatory taxes in the nature of compensation for the service provided. Restrictions imply direct barriers to taking part in trade which are unconstitutional.[\[29\]](#_ftn29) **State of Mysore vs. H. Sanjeeviah (1967)** The Court distinguished “Prohibitory” and “Regulatory” rules. Prohibitory rules restrict or prohibit trade and commerce activities and thus put a barrier to the freedom of trade, commerce, and intercourse but Regulatory rules are for the benefit of the public. The Court ruled that the prohibitory rules are not permissible but the regulatory rules are permissible only if they are reasonable.[\[30\]](#_ftn30) **G.K. Krishna vs. State of Tamil Nadu (1975)** The Judgment defined compensatory taxes which come under the regulatory rules of trade, commerce, and intercourse activities. It is a tax that is compensatory and cannot function as a restriction to the freedom of trade, commerce, and intercourse. The tax should be for providing service to the people, from whom the tax is collected, like for the betterment of infrastructure. It should be fair and reasonable. The Court ruled that since a compensatory tax does not restrict trade activities previous sanction of the President is not required as per Article 304b.[\[31\]](#_ftn31) **Khyerbari Tea Co. Ltd. & Anr vs. The State of Assam (1964):** The Judgment gives a clear idea about “freedom to trade, commerce and intercourse” which is not freedom from regulations that support trade but freedom from restrictions that directly hinder the flow of trade. If it is proven that any restrictions imposed by a statute invade the fundamental right under Article 19(1) g then the burden of proving the reasonability of the statute lies with the State.[\[32\]](#_ftn32) **CONCLUSION** The concept of freedom of trade, commerce, and intercourse was borrowed from the Constitution of Australia and the purpose of enactment was to ensure trade in a free and liberal way throughout the territory of India. It is introduced in the Constitution in two ways: first, as a fundamental right under Article 19(1) g, and second in Article 301 as a constitutional right. The fundamental right focuses on the right of a citizen to engage in trade activities of his choice. The constitutional right sees the whole country as an economic unit and enables inter-state trade as well as intra-state trade. In a “National Emergency” like situation a citizen cannot enjoy the benefits of freedom of trade as a fundamental right but as a constitutional right. The Government has the authority to impose restrictions on these rights but they should be reasonable and in the public interest. **REFERENCES** - - - - [https://www.aph.gov.au/About\_Parliament/Senate/Powers\_practice\_n\_procedures/Constitution/chapter4#chapter-04\_92](https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter4#chapter-04_92) - - - - - - - - [https://lawcolumn.in/freedom-of-trade-commerce-and-intercourse-article-301-307/#Atiabari\_Tea\_Company\_v\_the\_State\_of\_Assam](https://lawcolumn.in/freedom-of-trade-commerce-and-intercourse-article-301-307/#Atiabari_Tea_Company_v_the_State_of_Assam) - [https://lawcolumn.in/freedom-of-trade-commerce-and-intercourse-article-301-307/#Automobile\_Transport\_Ltd\_Vs\_State\_of\_Rajasthan](https://lawcolumn.in/freedom-of-trade-commerce-and-intercourse-article-301-307/#Automobile_Transport_Ltd_Vs_State_of_Rajasthan) - - - [https://constitution.congress.gov/browse/essay/artI-S8-C3-1/ALDE\_00013403/](https://constitution.congress.gov/browse/essay/artI-S8-C3-1/ALDE_00013403/)\[”\] - [https://www.aph.gov.au/About\_Parliament/Senate/Powers\_practice\_n\_procedures/Constitution/chapter1/Part\_V\_-\_Powers\_of\_the\_Parliament](https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter1/Part_V_-_Powers_of_the_Parliament) - - - - - [\[1\]](#_ftnref1) (‘Trade Definition & Meaning – Merriam-Webster’, n.d.) [\[2\]](#_ftnref2) (‘Commerce Definition & Meaning – Merriam-Webster’, n.d.) [\[3\]](#_ftnref3) (‘Intercourse Definition & Meaning – Merriam-Webster’, n.d.) [\[4\]](#_ftnref4) (‘Chapter IV. Finance And Trade. – Parliament of Australia’, n.d.) [\[5\]](#_ftnref5) (‘08 Sep 1949 Archives – Constitution of India’, n.d.) [\[6\]](#_ftnref6) (‘Draft Constitution of India 1948 Archives – Constitution of India’, n.d.) [\[7\]](#_ftnref7) (‘Article 301: Freedom of Trade, Commerce and Intercourse. – Constitution of India’, n.d.) [\[8\]](#_ftnref8) (‘Article 301: Freedom of Trade, Commerce and Intercourse. – Constitution of India’, n.d.) [\[9\]](#_ftnref9) (‘Chapter IV. Finance And Trade. – Parliament of Australia’, n.d.) [\[10\]](#_ftnref10) (‘Atiabari Tea Co., Ltd. vs The State Of Assam And Ors. on 26 September, 1960’, n.d.) [\[11\]](#_ftnref11) (‘Article 302: Power of Parliament to Impose Restrictions on Trade, Commerce and Intercourse. – Constitution of India’, n.d.) [\[12\]](#_ftnref12) (‘Part V – Powers of the Parliament – Parliament of Australia’, n.d.) [\[13\]](#_ftnref13) (‘Overview of Commerce Clause | Constitution Annotated | Congress.Gov | Library of Congress’, n.d.) [\[14\]](#_ftnref14) (‘INTER-RELATION BETWEEN ARTICLE. 301 AND ARTICLE. 19(1)(G)’, n.d.) [\[15\]](#_ftnref15) (‘INTER-RELATION BETWEEN ARTICLE. 301 AND ARTICLE. 19(1)(G)’, n.d.) [\[16\]](#_ftnref16) (‘Freedom of Profession, Occupation, Trade or Business under Article 19’, n.d.) [\[17\]](#_ftnref17) (‘The Automobile Transport(Rajasthan) … vs The State Of Rajasthan And Others(And … on 9 April, 1962’, n.d.-a) [\[18\]](#_ftnref18) (‘Freedom of Trade, Commerce and Intercourse: Articles 301 – 307 of the Indian Constitution’, n.d.-a) [\[19\]](#_ftnref19) (‘Constitution of India: Fundamental Rights- All About Article 19 (1)’, n.d.) [\[20\]](#_ftnref20) (‘Freedom of Trade, Commerce and Intercourse: Articles 301 – 307 of the Indian Constitution’, n.d.-b) [\[21\]](#_ftnref21) (‘Chapter IV. Finance And Trade. – Parliament of Australia’, n.d.) [\[22\]](#_ftnref22) (‘Atiabari Tea Co., Ltd. vs The State Of Assam And Ors. on 26 September, 1960’, n.d.) [\[23\]](#_ftnref23) (‘Freedom of Trade, Commerce and Intercourse Article 301 – 307 | Law Column’ 2021) [\[24\]](#_ftnref24) (‘The Automobile Transport(Rajasthan) … vs The State Of Rajasthan And Others(And … on 9 April, 1962’, n.d.-b) [\[25\]](#_ftnref25) (‘State Of Mysore vs H. Sanjeeviah on 16 January, 1967’, n.d.) [\[26\]](#_ftnref26) (‘Atiabari Tea Co., Ltd. vs The State Of Assam And Ors. on 26 September, 1960’, n.d.) [\[27\]](#_ftnref27) (‘Atiabari Tea Co., Ltd. vs The State Of Assam And Ors. on 26 September, 1960’, n.d.) [\[28\]](#_ftnref28) (‘The Automobile Transport(Rajasthan) … vs The State Of Rajasthan And Others(And … on 9 April, 1962’, n.d.-b) [\[29\]](#_ftnref29) (‘The Automobile Transport(Rajasthan) … vs The State Of Rajasthan And Others(And … on 9 April, 1962’, n.d.-a) [\[30\]](#_ftnref30) (‘State Of Mysore vs H. Sanjeeviah on 16 January, 1967’, n.d.) [\[31\]](#_ftnref31) (‘G. K. Krishnan Etc. Etc vs The State Of Tamil Nadu & Anr. Etc on 12 November, 1974’, n.d.) [\[32\]](#_ftnref32) (‘Khyerbari Tea Co. Ltd. & Anr vs The State Of Assam on 13 December, 1963’, n.d.) **Categories:** Articles, Constitutional Law --- ### [CHINTAMAN RAO V/S STATE OF MADHYA PRADESH 1951 AIR 118](https://lawfoyer.in/chintaman-rao-v-s-state-of-madhya-pradesh-1951-air-118/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Marisha Pal** **Edited By: Rituparna Panda, Law student at Birla Global University.** **ABSTRACT / HEADNOTE** This is one of the important landmark judgments that protect the fundamental right to practice any profession without any interference of the legislative policy, which is against the Constitution. The petitioners were the bidi makers and workers which was prohibited during agricultural season in certain districts of Madhya Pradesh. The court held that the order by the commission to prohibit bidi manufacturing is illegal. **NAME OF THE CASE** Chintaman Rao v/s State of Madhya Pradesh **CITATION** 1951 AIR 118 **DATE OF THE CASE** 08.11.1950 **PETITIONER** Chintaman Rao **RESPONDENT** State of Madhya Pradesh **BENCH/JUDGE** Mahajan, Mehr Chand Kania, Hiralal J. (CJ) Mukherjea, B. K. Das, Sudhi Ranjan Aiyar, N. Chandrasekhara **STATUTES / CONSTITUTION INVOLVED** Fundamental Right **IMPORTANT SECTIONS / ARTICLES** Article 19 **FACTS OF THE CASE** The petitioners were the manufacturers and workers of bidi making in the district of Sagar of Madhya Pradesh. In the year 1950, the commissioner of the district issued an order under “The Central Province and Berar Regulation of Manufacturer of Bidis (Agricultural Purposes) Act,1948” which prohibited the persons of some villages from engaging in the manufacturing process of bidi. This act empowers the commissioner to determine the agriculture season and enforce penalties, which may include imprisonment. The aim was to ensure sufficient laborers for agriculture in specific seasons of the year to maintain sufficient food production. Two petitions were presented before the court under article 32 of the constitution which “*grants every individual the right to move the Supreme Court for the enforcement of their fundamental rights”* for the writ of mandamus and challenging the order as it affected their fundamental right of freedom of occupation and business mentioned under Article 19 (1)(g) of the constitution. **LEGAL ISSUE** Whether the prohibition of carrying on the business of manufacturing bidis only in certain villages during the agricultural season may amount to restriction under article 19 (1)(g) of the constitution. **PETITIONER ARGUMENT** - The counsel for Petitioner argued that the act of the Deputy Commissioner is against the public interest. - The counsel for Petitioner argued the fundamental right of the bidi worker is violated under Article 19 (1)(g) of the constitution. - The counsel for Petitioner argued that these restrictions were unreasonable. **RESPONDENT ARGUMENTS** - The counsel for the respondent submitted that the act was applied with the aim to increase and promote food production. - The counsel for the respondent stated that the state legislative is well aware of the social and economic condition of the state. - The counsel for the respondent stated that the act taken by the Deputy Commissioner was for public good and welfare. **JUDGEMENT** The Supreme Court held that the order passed by the Deputy Commissioner on certain districts was against the right mentioned under Article 19 of the constitution. The Hon’ble Court stated that the word “proper ban” was against the public interest and any act which is against the provisions of the constitution needed to be repealed. The court held the act intervenes under the profession of the people by imposing a ban on manufacturers of the bidi making and not in accordance with Article 19(1)(g) of the constitution. The court held that the order passed by the Deputy Commissioner was illegal and the petitioner had to pay the full cost as compensation **CONCLUSION** To understand that the impugned act is against the rights of the people, the court understands the provisions of Article 19(1)(g) and Article 19(6). The reasonable restriction mentioned should not be arbitrary or of an excessive nature which is required for the public good. In this case, the ban was not only on the manufacturers of the bidis but also they were not allowed to employ labor from neighboring villages. The conventions of the respondent were against the provision of the constitution, as the restriction made by the legislation is not final and conclusive. The word reasonable requires intelligent care and good reason is required to make the decision. Certain restrictions have been mentioned under Article 19 (6), used to interpret the law as well as understand its nature and extend to protect the rights of the people. **Categories:** Case Analysis --- ### [D.C. WADHWA & Ors vs STATE OF BIHAR & Ors (1986)1987 AIR 579;](https://lawfoyer.in/d-c-wadhwa-ors-vs-state-of-bihar-ors-19861987-air-579/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author :Rimin Cherian Reji , Law student at New Law College, BVDU.** **Edited by : Shruti Mayur , Law student at Amity University.** CONTENTS [*CASE ANALYSIS ON*.. 1](#_Toc169190159) [\_\_\_\_\_\_\_\_\_\[D.C. Wadhwa & Ors vs State of Bihar & Ors (1986)\]\_\_\_\_\_\_\_\_\_\_. 1](#_Toc169190160) [CONTENTS. 2](#_Toc169190161) [ABSTRACT. 3](#_Toc169190162) [CASE DETAILS: 4](#_Toc169190163) [INTRODUCTION AND BACKGROUND OF JUDGEMENT. 4](#_Toc169190164) [FACTS OF THE CASE. 5](#_Toc169190165) [LEGAL ISSUES RAISED.. 7](#_Toc169190166) [PETITIONERS’ ARGUMENTS. 8](#_Toc169190167) [RESPONDENT’S ARGUMENTS. 10](#_Toc169190168) [RELATED LEGAL PROVISIONS. 12](#_Toc169190169) [Article 32: 12](#_Toc169190170) [Article 123. 12](#_Toc169190171) [Article 213. 13](#_Toc169190172) [JUDGEMENT. 15](#_Toc169190173) [Ratio Decidendi 15](#_Toc169190174) [Obiter Dictum.. 15](#_Toc169190175) [REFERENCES. 17](#_Toc169190176) #### **ABSTRACT** It was common for the state of Bihar to routinely re-promulgate ordinances having similar clauses, without bothering to present them to the assembly. The Bihar Forest Produce (Regulation of Trade) Third Ordinance 1983, the Bihar Bricks Supply (Control) Third Ordinance 1983, and the Bihar Intermediate Education Council Third Ordinance 1983 were the three ordinances that the petitioners challenged being re-promulgated after years of the practice continuing. As a representative of the public worried about the practice’s infringement of constitutional norms, Petitioner No. 1, an Economics professor, investigated the practice of re-promulgation by the State of Bihar’s governor and challenged it. Article 213 of the Constitution states that the Governor has the power to promulgate an ordinance in emergencies when both the houses of State Legislature are not in session so that the recession of the Legislature would not affect the forerunning of the society but the Ordinance should be laid before the Legislature if the State Government wants to continue the ordinance. It will expire six weeks from the reassembly of the Legislature or if the Legislative Assembly passes and the Legislative Council agrees to a resolution disapproving it. The Court ruled that the Governor was not authorized to re-promulgate the ordinance without first consulting the Legislature and with the same conditions. **Keywords**: emergency power, legislature, Article 213, re-promulgation of ordinances **CASE DETAILS:** ***i)* *Case Name*** Dr. D.C. Wadhwa & Ors vs. State of Bihar & Ors (1987) ***ii)* *Case Number***1987 AIR 579; 1987 SCR (1) 798; 1987 (1) SCC 378; (1987) IJR (SC); 1987 BBCJ 46; (1987) 1 JT 70 (SC); (1986) 4 SUPREME 465 ***iii)* *Judgement Date***20 December 1986 ***iv)* *Court***Honourable Supreme Court of India ***v)* *Constitution of Bench***Honourable Justice P.N Bhagwati (then CJI), Honourable Justice Ranganath Misra, Honourable Justice G.L. Oza, Honourable Justice M.M. Dutt, Honourable Justice K.N. Singh ***vi)* *Author***Justice P.N. Bhagwati ***vii)* *Equivalent Citation***1987 AIR 579; 1987 SCR (1) 798; 1987 (1) SCC 378; (1987) IJR (SC); 1987 BBCJ 46; (1987) 1 JT 70 (SC); (1986) 4 SUPREME 465***viii)* *Legal Provisions Involved***Article 32, Article 123, and Article 213 **INTRODUCTION** A government consists of three branches: legislative, executive, and judicial. Although a divide of powers exists between these departments to ensure the proper administration of the government, it is not absolute in India.[\[1\]](#_ftn1) The legislature is the primary body responsible for enacting laws, but under specific conditions, the other organs may also do so. When the legislature is not in session, the executive can adopt laws in the form of ordinances, utilizing the powers assigned to the President and Governor by Articles 123 and 213 of the Constitution.[\[2\]](#_ftn2) The Constitution’s definition of law, included in Article 13(3), also states that an ordinance is a law. According to Articles 123 and 213, an ordinance has the same legal effect as a legislative act.[\[3\]](#_ftn3) An Ordinance is issued at the core to defend the public’s interests even when the legislature is not in session. In D.C. Wadhwa vs. the State of Bihar (1987), the Court examines the Governor’s authority and restrictions in promulgating ordinances. It also determines the constitutionality of re-promulgating ordinances. #### FACTS OF THE CASE The State of Bihar routinely issued new ordinances with identical provisions, and it never bothered to change the ordinances’ legal form into acts that the assembly could eventually adopt.[\[4\]](#_ftn4) The Governor issued new ordinances with the same provisions even though the legislature was not in session.[\[5\]](#_ftn5) This continued until the petitioners contested three particular ordinances, after which the governor re-promulgated them. The three laws were the Bihar Intermediate Education Council Third Ordinance of 1983, the Bihar Forest Produce (Regulation of Trade) Third Ordinance of 1983, and the Bihar Bricks Supply (Control) Third Ordinance of 1983. These ordinances were re-promulgated by the Governor with the same wording, but they were not brought before the legislature for adoption. The Governor of Bihar’s re-promulgation of ordinances was the subject of intense investigation by Economics Professor D.C. Wadhwa, who published his findings in a book titled “Repromulgation of Ordinances: Fraud on the Constitution of India.” His research indicates that the Governor of Bihar enacted 256 ordinances between 1967 and 1981, 69 of which were repeatedly promulgated and kept in force with the permission of the Indian President.[\[6\]](#_ftn6) The three challenged Ordinances likewise operated according to the same protocol. [\[7\]](#_ftn7) First published in 1977, the Bihar Forest Produce (Regulation of Trade) Third Ordinance has since been republished numerous times. First published in 1979, the Bihar Bricks Supply (Control) Third Ordinance has since been repeated multiple times.[\[8\]](#_ftn8) In a similar vein, the 1982 Bihar Intermediate Education Council Third Ordinance was re-promulgated prior to facing legal challenges. Until the petitioners objected to them through a writ petition filed under Article 32, these three ordinances were in force. Petitioner No. 1 contested the ordinances as a responsible citizen because he was worried about maintaining the constitutional framework.[\[9\]](#_ftn9) To create rules governing the sale and commerce of forest products, the governor passed the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983.[\[10\]](#_ftn10) Clauses 5 and 7 of the ordinance violated Petitioner No. 2’s right to sell forest produce to the extent of his interest, causing harm to the petitioner.[\[11\]](#_ftn11) This led the petitioner to challenge the ordinance in a writ petition. To regulate the course of study of Bihar students, the government established the Bihar Intermediate Education Council Third Ordinance, 1983. It interfered with petitioner No. 3, an intermediate student’s right to choose a course of his choosing, so the petitioner filed a writ petition contesting the ordinance.[\[12\]](#_ftn12) The Bihar Bricks Supply (Control) Third Ordinance, 1983 was issued by the state government, directing the governor to regulate and control brick trade and commerce, including pricing.[\[13\]](#_ftn13) Petitioner No. 4, who owns South Bihari Agency, a brick production company, was impacted by this and filed a writ case challenging the ordinance as a result.[\[14\]](#_ftn14) Two of the ordinances, the Bihar Forest Produce (Regulation of Trade) Third Ordinance and the Bihar Bricks Supply Third Ordinance, were passed by the State Legislature of Bihar while the petitioners’ writ petitions challenging the three ordinances were pending. The Third Ordinance of the Bihar Intermediate Education Council remained in force while it was undergoing enactment before the state assembly.[\[15\]](#_ftn15) #### LEGAL ISSUES RAISED - Whether the petitioners have locus standi to maintain writ petitions? - Whether the questions raised in the writ petitions merely academic in nature with no constitutional importance? - Whether the Governor could continue re-promulgating ordinances for an indefinite period, thereby bypassing the legislative process? 1. Whether the scope and limitation of the Governor’s power to promulgate ordinances is defined under Article 213 of the Constitution? 2. Whether the practice of the Bihar government of systematically re-promulgating ordinances without enacting them into law considered a colourable exercise of power and violated the constitutional scheme? #### PETITIONER’S ARGUMENTS It was submitted that the petitioners have the locus standi to file the writ petitions. Petitioner No. 2 was directly affected by clauses 5 and 7 of the Bihar Forest Produce (Regulation of deal) Third Ordinance, 1983, which banned the sale of specific products and required him to deal only with those allowed by the state government, against his own interests.[\[16\]](#_ftn16) The ordinance enhances the state monopoly[\[17\]](#_ftn17) and it strengthens the “ordinance raj” of the executive by bypassing the Legislature as it was not enacted as an Act by the Legislature. Petitioner No. 3 was an intermediate student at A.N. College and the Bihar Intermediate Education Council Third Ordinance, 1983 which regulates the course of study in the state affected the interest of the petitioner as a student.[\[18\]](#_ftn18) Petitioner No. 4, a proprietor of a brick manufacturing concern, was affected by the Bihar Bricks Supply (Control) Third Ordinance, 1983 which gives the Government of Bihar the sole authority to regulate and control every trade-related matter of bricks including the price.[\[19\]](#_ftn19) Petitioner No. 1 was not directly affected by any of the challenged ordinances but got the right to question the executive, which bypassed the legislature by re-promulgating ordinances and functioned beyond its limitations, in the public interest.[\[20\]](#_ftn20) Two of the three ordinances namely the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983, and the Bihar Bricks Supply (Control) Third Ordinance, 1983 were enacted into acts only during the pendency of the writ petition and the Bihar Intermediate Education Council was still in operation even though it was introduced before the legislature for the enactment purpose.[\[21\]](#_ftn21) These reasons make the writ petition maintainable. It was submitted that the practice of re-promulgating ordinances shows the colourable exercise of power by the executive over the legislature by functioning beyond the constitutional limitations.[\[22\]](#_ftn22) The main and important feature of federalism is the separation of powers but a quasi-federal country like India follows some exceptions and one such exception is the ordinance issuing power given to the executive but it has limitations and the authorities are bound to behave accordingly. The practice of re-promulgating ordinances with the same provisions by the Governor without considering the legislature can be interpreted as an effort to bypass the legislature and thus pave the way for “ordinance raj”[\[23\]](#_ftn23)[\[24\]](#_ftn24) It was submitted that the petitions were in the interest of the constitution and not academic. Petitioner No.1 conducted research on the re-promulgation of ordinances by the Governor over a period of time and he published his findings which helped the public understand the misuse of power by the Governor of Bihar as well as the executive.[\[25\]](#_ftn25) The public has the right to question the government’s unjust practices. The people elect members of the legislature to establish laws for the people, and the goal is the core line of the concept of democracy, which is “for the people, by the people, and for the people.” The Governor’s practice violates constitutional provisions and harms the public interest.[\[26\]](#_ftn26) Petitioners Nos. 2, 3, and 4 were directly harmed by the ordinance provisions [\[27\]](#_ftn27)and represent the people who were exploited by the executive’s non-democratic and unlawful conduct that bypassed the legislature. It was submitted by the petitioners that the Governor of Bihar’s practice violated the constitutional system. The very purpose of the ordinance issuing power given to the President or Governor of each state is to protect the interest of the public in the recession of the legislative body. Articles 123 and 213 of the Constitution clearly state that the promulgating power of the President or the Governor is an emergency power and it should be used when the legislature is not in session. It also states that the issued ordinance will expire six weeks after the legislature’s reassembly or if the legislature passes an ordinance disapproving the ordinance,[\[28\]](#_ftn28) but the Governor of Bihar repeatedly re-promulgates ordinances without changing their provisions or presenting them to the legislature for approval[\[29\]](#_ftn29), which has primary law-making authority. #### RESPONDENT’S ARGUMENTS It was submitted that the petitioners lacked locus standi to maintain the writs. They maintained that the petitioners were outsiders with no legal stake in challenging the Governor’s promulgating power.[\[30\]](#_ftn30) The ordinances were not challenged out of any legal interest like for the development of the law or protecting the established law. Two out of the three challenged ordinances namely the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983, and the Bihar Bricks Supply (Control) Third Ordinance, 1983 were enacted into Acts by the State Legislature of Bihar, and the third challenged Ordinance, the Bihar Intermediate Education Council was pending before the legislature for the enactment purpose. The main question raised by the petitioners was whether the executive bypassed the legislature by not considering it for enacting ordinances but the challenged ordinances were already enacted into Acts or pending before the legislature[\[31\]](#_ftn31) and this makes the petition invalid. It was submitted that the petitions were academic in nature and there were no constitutional interests. Petitioner No.1, a professor was conducting research and he challenged the ordinances for the research purpose and is merely academic in nature. The petitioner was a professor of economics and the remaining petitioners are from outside the legal field and thus have no legal interests.[\[32\]](#_ftn32) It was submitted that the Court lacks the authority to question the satisfaction of the criteria precedent for the exercise of power. The Governor has the authority to make ordinances under Article 213.[\[33\]](#_ftn33) The Governor’s responsibility is to act in the interests of the ruling government. He was exercising his executive authority by issuing an ordinance protected by the Constitution. It is the Governor’s legal responsibility to promulgate an ordinance in an emergency when the House is not in session. To defend the public’s interests, the Governor must adopt ordinances when society demands them. The petition questions his executive power to issue an ordinance. It was argued that the practice of re-promulgating ordinances is not a colorable exercise of power. Article 213 of the Constitution stipulates that the Governor has the authority to make ordinances during the legislative recess. The Governor has legislative support in issuing ordinances. His actions were based on the constitutional provisions. #### RELATED LEGAL PROVISIONS #### Article 32: “*Remedies for enforcement of rights conferred by this Part.—* *(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.* *(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.* *(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).* *(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”* #### Article 123 “*Power of President to promulgate Ordinances during recess of Parliament.—(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.* *(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—* *(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and* *(b) maybe withdrawn at any time by the President.* *Explanation.- Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.* *(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.”* #### Article 213 “*Power of Governor to promulgate Ordinances during recess of Legislature.—(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:* *Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if—* *(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or* *(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or* *(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless having been reserved for the consideration of the President, it had received the assent of the President.* *(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance—* *(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and* *(b) may be withdrawn at any time by the Governor.* *Explanation. —Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.* *(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:* *Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.”* **JUDGEMENT** #### Ratio Decidendi The Court ruled that the Governor cannot re-promulgate ordinances with the same provisions without first putting them before the legislature. Article 213 explicitly specifies that an ordinance has a six-week validity period and must be filed in the legislature so that it can determine whether to implement it as an Act or reject it by passing a resolution if the administration wishes to maintain the ordinance for future use.[\[34\]](#_ftn34) The legislative is the government’s principal lawmaking organ, and the executive’s role is to carry out approved laws. Article 174 of the constitution mentions the sessions held by a state legislature.[\[35\]](#_ftn35) It cannot hold sessions throughout the year but at least twice a year.[\[36\]](#_ftn36) There might be a situation in which the legislature is not in session and the requirement of enacting a law with immediate purpose. For this kind of emergency situation, the constitution-makers included Articles 123 & 213 in the Constitution which enable the President and Governor to issue ordinances in the absence of the primary lawmaking authority. The Governor of a state can utilize this scope of Article 213 and he also has the responsibility to act within the limitations of his power. By re-promulgating an ordinance with the same provisions and without considering the legislature the Governor is acting beyond his limitation and such an act is unconstitutional. #### Obiter Dictum The Court stated that the practice of re-promulgating ordinances without incorporating them into an Act on a regular basis is a colorable exercise of power and is unconstitutional. Separation of powers is a key component of a federal country. The fundamental concept of the rule of law is the separation of powers. Power is separated between different organs of the government so that they can function independently and it avoids the invasion of power by the other organs.[\[37\]](#_ftn37) The practice of the Governor, who represents the executive, of re-promulgating ordinances with the same provisions and without considering the legislature on a repeat basis, can be seen as an invasion of the power of the Legislature. This may lead to the rise of an “ordinance raj” thus the executive government can make any law as per their choice and will no longer be responsible to the legislature as they took over the power of the legislature. The practice of re-promulgating ordinances can be seen as an effort to bypass the legislature and it is unconstitutional. #### CONCLUSION The Bihar government continued to re-promulgate ordinances with the same clauses without regard for the state legislature. The matter to consider is that the practice took place for almost 14 years and no one challenged it. It may be because of any lack of evidence against the government i.e. the executive but the issue was somewhat sorted out because of the research conducted by Petitioner No. 1, Dr. D.C. Wadhwa, and the publication of his findings as a book under the title “Repromulgation of Ordinances: Fraud on the Constitution of India”. The study claims that between 1967 and 1981, the governor of Bihar issued 256 ordinances, of which 69 were repeatedly issued and maintained in effect with the prior approval of the Indian president. A.K. Roy v. Union of India (1982), S.P. Gupta & Ors. vs. Union of India & Ors. (1982), and other cases addressed the goal of promulgating an ordinance, as well as its scope and limitations. However, the topic of re-promulgating ordinances has not received as much attention as it should have. Issuing an ordinance is an emergency power of the Governor and the validity of an ordinance is six weeks. When the Governor re-promulgated ordinances, as a common practice, he violated the constitutional scheme, and such an act can be seen as a measure to bypass the state legislature. The judgment clearly states that the Governor does not have the authority to re-promulgate ordinances with the same provisions without considering the legislature and it is a landmark judgment. #### **REFERENCES** - - - - - - - - - [https://manupatracademy.com/LegalPost/MANU\_SC\_0072\_1986](https://manupatracademy.com/LegalPost/MANU_SC_0072_1986) - - - - - - R.C. Cooper vs. Union of India (1970) - A.K. Roy vs. Union of India (1982) - S.P. Gupta & Ors vs. Union of India & Ors. (1982) - - - - [\[1\]](#_ftnref1) (‘Separation of Powers’, n.d.) - [\[2\]](#_ftnref2) (‘Understanding Re-Promulgation of Ordinances under Articles 123 and 213 of the Indian Constitution and Its Direct Challenge to Parliament’s Supremacy in the Area of Law Making – International Journal of Law Management & Humanities’, n.d.) - [\[3\]](#_ftnref3) (‘Promulgation and Re-Promulgation of Ordinances’, n.d.-a) - [\[4\]](#_ftnref4) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[5\]](#_ftnref5) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[6\]](#_ftnref6) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[7\]](#_ftnref7) (‘D.C Wadhwa Dr And Others v. State Of Bihar And Others | Supreme Court Of India | Judgment | Law | CaseMine’, n.d.) - [\[8\]](#_ftnref8) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[9\]](#_ftnref9) (‘D.C. Wadhwa v. State of Bihar \[1987 SC\] – Delhi Law Academy’, n.d.) - [\[10\]](#_ftnref10) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[11\]](#_ftnref11) (‘MANU\_SC\_0072\_1986’, n.d.) - [\[12\]](#_ftnref12) (‘DC WADHWA vs STATE OF BIHAR’, n.d.) - [\[13\]](#_ftnref13) (‘MANU\_SC\_0072\_1986’, n.d.) - [\[14\]](#_ftnref14) (‘Dr. D. C. Wadhwa & Ors. vs. State of Bihar (1986)’, n.d.) - [\[15\]](#_ftnref15) (‘Dr. D. C. Wadhwa & Ors. vs. State of Bihar (1986)’, n.d.) - [\[16\]](#_ftnref16) (‘D.C Wadhwa Dr And Others v. State Of Bihar And Others | Supreme Court Of India | Judgment | Law | CaseMine’, n.d.) - [\[17\]](#_ftnref17) (‘DC WADHWA vs STATE OF BIHAR’, n.d.) - [\[18\]](#_ftnref18) (‘Dr. D. C. Wadhwa & Ors. vs. State of Bihar (1986)’, n.d.) - [\[19\]](#_ftnref19) (‘Dr. D. C. Wadhwa & Ors. vs. State of Bihar (1986)’, n.d.) - [\[20\]](#_ftnref20) (‘D.C. Wadhwa v. State of Bihar \[1987 SC\] – Delhi Law Academy’, n.d.) - [\[21\]](#_ftnref21) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[22\]](#_ftnref22) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[23\]](#_ftnref23) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[24\]](#_ftnref24) (‘(8) D.C WADHWAvs. STATE OF BIHAR | LinkedIn’, n.d.) - [\[25\]](#_ftnref25) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[26\]](#_ftnref26) (‘MANU\_SC\_0072\_1986’, n.d.) - [\[27\]](#_ftnref27) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[28\]](#_ftnref28) (‘Ordinance Making Power of the President & Governor’, n.d.) - [\[29\]](#_ftnref29) (‘Promulgation and Re-Promulgation of Ordinances’, n.d.-b) - [\[30\]](#_ftnref30) (‘Dr. D. C. Wadhwa and Othersvs. State of Bihar and Others (1986) – Examining the Constitutionality of Re-Promulgation | UPSC’, n.d.) - [\[31\]](#_ftnref31) (‘Dr. D. C. Wadhwa and Othersvs. State of Bihar and Others (1986) – Examining the Constitutionality of Re-Promulgation | UPSC’, n.d.) - [\[32\]](#_ftnref32) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-b) - [\[33\]](#_ftnref33) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[34\]](#_ftnref34) (‘Dr. D.C. Wadhwa & Ors vs State Of Bihar & Ors on 20 December, 1986’, n.d.-a) - [\[35\]](#_ftnref35) (‘Article 174: Sessions of the State Legislature, Prorogation and Dissolution – Constitution of India’, n.d.) - [\[36\]](#_ftnref36) (‘State Legislature – Powers & Functions of Legislative Assembly & Legislative Council’, n.d.) - [\[37\]](#_ftnref37) (‘Separation of Powers’, n.d.) **Categories:** Case Analysis --- ### [Chiranjit Lal Chowdhuri v. Union of India & Ors, 1951 AIR 41](https://lawfoyer.in/chiranjit-lal-chowdhuri-v-union-of-india-ors-1951-air-41/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author:** **Madhumita Saha, Student, Lajpat Rai Law College, Sambalpur University, Odisha** **Edited by: Gaurav Katiyar, Student, University of Lucknow** **TABLE OF CONTENTS** 1. CASE DETAILS…………………………………………………………………..4 2. INTRODUCTION AND BACKGROUND OF JUDGEMENT………………….4 3. FACTS OF THE CASE…………………………………………………………5-6 4. LEGAL ISSUES RAISED………………………………………………………6-7 5. PETITIONER/APPELLANT’S ARGUMENTS…………………………………7 6. RESPONDENT’S ARGUMENTS………………………………………………7-8 7. RELATED LEGAL PROVISIONS……………………………………………..8-9 8. JUDGEMENT………………………………………………………………….9-11 9. Ratio decidendi…………………………………………………………….10-11 10. Obiter dicta…………………………………………………………………..11 11. REFERENCES…………………………………………………………………..12 12. Important cases referred……………………………………………………..12 13. Important statutes referred………………………………………………….12 14. ABSTRACT……………………………………………………………………..13 15. ABOUT THE AUTHOR……………………………………………………..….13 **TABLE OF CASES** 1. McCabe Vs Atchison, 235 U.S. 151 2. Barbier Vs Connally, 113 U.S. 27 3. Gulf C. & S. F.R. Co. Vs Ellis, 163 U.S. 150 at 159 4. Southern Railway Co. Vs Greene, 216 U.S. 400 5. Radics Vs New York, 264 U.S. 6. Minister for State for the Army Vs Datziel, 1944 68 CLR 261 7. Pennsylvania Coal Company Vs Mahon, 260 U.S. 393 8. Kesavananda Bharati Vs State of Kerala AIR 1973 SC 1461 9. Minerva Mills Vs Union of India AIR 1980 SC 1789 10. Golaknath Vs State of Punjab AIR 1967 SCR (2) 762 **1.CASE DETAILS** A) Judgement Cause title/ Case nameChiranjit Lal Chowdhuri v. Union Of IndiaB) Case Number72 of 1950C) Judgement Date4/12/1950D) CourtSupreme Court of IndiaE) Quorum/ Constitution of BenchBench of five judges (Constitutional Bench)F) Name of JudgesHon’ble Justice H.J. Kania Hon’ble Justice Saiyid Fazal Ali Hon’ble Justice M. Patanjali Sastri Hon’ble Justice B.K. Mukherjee Hon’ble Justice S.R. Dass G) CitationChiranjit Lal Chowdhuri Vs Union of India and Others, 1951 AIR 41H) Legal Provisions InvolvedConstitution of India 1950; Articles-14, Article19(1)(f), Article 19(5), Article 31, Article 32 Indian Companies (Amendment) Act of 1930 Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 **2.INTRODUCTION AND BACKGROUND OF JUDGEMENT** The question related to the violation of Article 19(1)(f) and Article 31 of the Constitution. The constitutional bench opined that there has been no curtailment of the rights of the petitioner. On the question relating to the infringement of Article 14 of the Constitution, the five-judge bench or the constitutional bench held the judgment in the ratio of 3:2. The majority judgment was given by Hon’ble Chief Justice H. J. Kania, Justice Saiyid Fazal Ali, and Justice B. K. Mukherjee while Justice M. Patanjali Sastri and Justice S. R. Dass was dissented from the majority. Hence, The Hon’ble Court held that, the Sholapur and Weaving Company (Emergency Provisions) Act does not deprive the petitioner (shareholder) of enjoyment of his basic rights. Also, the Act enacted does not aim for the acquisition of property of the company. There is a mere denial of the voting rights of the shareholders while the petitioner still has the Right to hold and earn income from his shares. Also, there is no infringement with the rights provided under Article 14 and Article 19(1)(f) of the Constitution as per the majority. **3.FACTS OF THE CASE** - In the instant case, the petition is filed by Chiranjit Lal Chowdhuri1, a shareholder of Sholapur Spinning and Weaving Company Limited governed under the provisions of the Indian Companies Act. He was the holder of three ordinary shares and eight preference shares pledged under the Bank of Baroda. - In August 1949, mills of the company were shut down and the reason specified in the ordinance laid that it was due to the mismanagement & the need to produce essential commodities. Later a Central Act named, Sholapur and Weaving Company (Emergency Provisions) Act2 was enacted for the regulation of the Company’s affairs. - This Act empowered the government to interfere in the functioning of the mill, appoint new directors, curtail voting rights of the shareholders and modify the Indian Companies Act concerning the company. - The Act somewhere recreated and validated the provisions of the Ordinance and was questioned by the Petitioner (Shareholder). The petitioner challenged the constitutional validity of both the Ordinance & the Act as violative of Article 14, 19(1)(f) and 31 of the Constitution of the shareholder as well as the Company. Further, the petitioner prayed for the writ of mandamus3 against the Central Government, Government of Bombay & Directors restraining them from interfering with the management of the Company and to declare the Ordinance and Act as unconstitutional. - ***PROCEDURAL BACKGROUND OF THE CASE:*** A company in Sholapur known as the Sholapur Spinning and Weaving Company Limited. The company was engaged in the production of an essential commodity and also it had huge number of employees and workers. But, the Company was not working well or malfunctioning amiss during the post-independence era in 1950 and huge number of employees and workers had been left jobless and unemployed and are not paid remunerations. At the present time, Then Government of India was trying to overtake the industry and was trying to nationalize them, so as to secure the workers and give them financial support and concomitantly support the economy. In such a situation, The Governor General of India found that it is in the hands of maladministration and a situation has arisen in the affairs of the company which has affected the production of an essential commodity and also caused serious joblessness among certain section of the community. Therefore, he promulgated an ordinance which was later on reenacted by an act of the parliament and this act was known as the Sholapur Spinning and Weaving Company (Emergency) Provisions Act 1950. Based on this Act, the directors of the company who were the core management of the company were dismissed and the government was given permission to appoint new directors and the rights of the shareholders of the company were diminished. Also, the Government modified the Indian Companies Act so as to bring it in accordance with the provision of the ordinance and based on that, new directors were appointed by the government. Chiranjit Lal Chowdhury who was the shareholder of the company filed a petition challenging Article 14, 19(1)(f) & 31 of the Constitution. - ***FACTUAL BACKGROUND OF THE CASE:*** The Sholapur Spinning and Weaving Company Ltd. Was not working well. The Government of India trying to overtake the Industry. Hence, an ordinance was enacted by the parliament known as Sholapur Spinning and Weaving Company (Emergency) Provisions Act 1950. The Government was authorized to appoint new directors and rights of the Shareholders of the company. A writ petition filed by Chiranjit Lal Chowdhury (the shareholder of the company). 4. **LEGAL ISSUES RAISED** HERE THREE LEGAL ISSUES ARE RAISED- 1. Whether the Sholapur and Weaving Company (Emergency Provisions) Act is in contravention to Article 14, 19(1)(f) & 31 of the Constitution? 2. Whether the impugned Act imposed any restriction on the petitioner’s right of acquisition of private property of the Company or the shareholder? 3. Whether the impugned Act amounts to the acquisition or possession of the private property within the meaning of Article 31 of the Constitution? 5. **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioner or Appellant submitted that, - The Acts made applicable to only this company and not to other companies. Further, the Act also denies the provision of equality and equal protection of the law as guaranteed under Article 14 of the Constitution. Thus, this is violative of Article 14 of the Constitution of India. Challenging the Constitutional validity of Sholapur and Weaving Company (Emergency Provisions) Act. - This act is harming the Right to Management of the company. Government has targeted only one particular company instead of others violating the Right to Equality. - The foremost and primary purpose of the Sholapur and Weaving Company (Emergency Provisions) Act is to control and take over the possession of the mill of the Sholapur Spinning and Weaving Company limited. This action is beyond the power of the legislative body. - Hence, The Act restricts the rights of the shareholders thereby causing unreasonable interference with the rights provided under Article 19(1)(f) of the Constitution of India. - The petitioner also claimed violation of Article 31 of the Constitution of India caused as a result of the control of the Government on the company’s property. The possession was unjustified, without any compensation. - Further, the legislation is beyond the competence of the Parliament as it was not covered under the central list under the seventh schedule. 6. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that, - The condition of the Company was unusual and the inquiry revealed that there was mismanagement within the company. Thus, to control the situation, to protect the future inconvenience and for smooth functioning of the Company, the Central Government laid the Ordinance first and further this Act. - The classification made was reasonable and thus there was no violation of Article 14 of the Constitution of India. - The power defined under Article 31(1) of the Constitution is different from those rights mentioned under Article 31(2) of the Constitution. The appointment of Directors in the management of the Company by the Government does not lead to dispossession of property. Single person legislation can be made if there is reasonable ground and circumstances. **7.RELATED LEGAL PROVISIONS** Constitution of India 1950; Articles-14, 19(1)(f), 19(5), 31, 32. 1. Article 14 speaks that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 2. Article 19(1)(f) dealt with the Right to acquire, hold and dispose of the property. As it was one of the fundamental rights which was enshrined under the Indian constitution, but The 44th Amendment act of 1978 of the Indian Constitution removed this right from the list of Fundamental Rights and enshrined it under article 300A as a constitutional right. 3. Article 19(5) says “*Nothing in the sub-clauses and of the said cause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the Interests of any scheduled tribe.”* 4. Article 31 of the Constitution was replaced and repealed by the 44th Constitutional Amendment Act in 1978. Clause (1) states, a person should not be deprived of hisher property. Clause (2) states, A property should not be acquired compulsorily. 5. Article 32 of the Indian Constitution which is the Right to Constitutional Remedies is a Fundamental Right, which says that Individuals have their Exclusive Right to approach to the Supreme Court of India and they can seek the enforcement or fulfilment of other Fundamental rights guaranteed or provided by the Indian Constitution. 6. Indian Companies (Amendment) Act, 1930 *“This Act shall came into force on such date 2 as the Central Government may, by notification in the Official Gazette, appoint”.* 1950. Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950. *“This Act deals with dismissing managing agents of a company, removing its directors, authorising the Government to appoint new Directors and curtailing Rights of Shareholders in the matter of voting, etc.”.* **8.JUDGEMENT** The bench of five judges opined that there has been no curtailment of the rights of the petitioner. - The majority judgment was given by Hon’ble Chief Justice H. J. Kania, Justice Saiyid Fazal Ali, and Justice B. K. Mukherjee while Justice M. Patanjali Sastri and Justice S. R. Dass dissented from the majority oner. - The Judges held that, a single person Legislation can be made unless there is reasonable ground and circumstances. - To protect the future Inconvenience the Sholapur Spinning and Weaving Company (Emergency) Provisions Act was enacted. - The facts in relation with the industry were “Extraordinary” in nature. Hence, the court held that, the government has restricted the rights but not taken away. - The Hon’ble Court held that the Sholapur and Weaving Company (Emergency Provisions) Act does not deprive the petitioner (shareholder) of enjoyment of his basic rights. Also, the Act enacted does not aim for the acquisition of property of the company. - There is a mere denial of the voting rights of the shareholders while the petitioner still has the right to hold and earn income from his shares. Also, there is no infringement with the rights provided under Article 14 and Article 19(1)(f) of the Constitution as per the majority. 1. ***RATIO DECIDENDI*** *“The Constitution of India under Article 32 empowers the citizens to approach the Supreme Court for the enforcement of individual rights in case it is violated. These rights are not only available to the natural person but also the companies.* *In order to establish the maintainability of this case, the onus lies on the petitioner to prove that the law in question is beyond the legislative competence of a particular legislature and that this Act in itself contravenes the constitutional guarantees of the petitioner as provided in Part III of the Constitution.* *In a question related to violation of Article 31 of the Constitution, the court opined that the sovereign has an inherent right to acquire private property in good faith for public use.”* However, this Act does not usually acquire the property of the petitioner and the legal as well beneficial interest arising out of the share the petitioner holds remains intact. Furthermore, there is no curtailment on the petitioner to hold, buy, sell or dispose of his property. Besides, the shareholder entitlement to the dividend remains unaffected. The disabilities provided in the legislation impose reasonable restraint that is sought for public interest i.e. to ensure regular supply of essential commodities or materials to the people and prevent the issue of unemployment. Hence, the Act is not considered to be violative of Article 19(1)(f) and the legislation falls within the exception of Article 19 (5) of the Constitution. *“Concerning the violation of Article 14 of the Constitution, the court observed that ‘the guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India.’ In the instant matter, the classification made is reasonable, keeping in view the mismanagement of the Company leading to serious unemployment and non-availability of essential commodities.* *The court referred to the case of Middleton v. Texas Power and Light Company4,* *where the Supreme Court of America observed that the legislative body correctly* *assess the need of people, and the enacted laws are made to address the problems of people and discrimination if any is done on adequate grounds.* *Moreover, the burden is on the petitioner to establish that the classification or distinction so made by the enacted legislation is improper and arbitrary. The petitioner failed to discharge the prima-facie burden either by a claim or by placing any material records in this regard.* *Court also observed that the petitioner’s argument on the validity of the law based on the claim that the Act in question not placed in the Central List lacks substance. This Sholapur and Weaving Company (Emergency Provisions) Act comes under Item No. 43 of the Union List named as ‘incorporation, regulation and winding up of trading corporations.’”* 1. ***OBITER DICTA****:* *“Article 14 of the Constitution, as already stated, lays down an important fundamental right, which should be closely and vigilantly guarded, but in construing it, we should not adopt a doctrinaire approach which might choke all beneficial legislation.”* *“If a law is made applicable to a class of persons or things and the classification is based upon differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing.”* **9.CONCLUSIONS AND COMMENTS** In the instant case of Chiranjit Lal Chowdhuri Vs Union of India, the petitioner claims for the infringement of his fundamental rights that later turns out not to be infringed. Hence, The legislative competence of the Parliament to enact the legislation was the primary question before the Hon’ble Court. **Therefore, the appeal stands dismissed with costs.** **10.REFERENCES** 1. ***i) IMPORTANT CASES REFERRED:*** 2. A) McCabe Vs Atchison, 235 U.S. 151 3. B) Barbier Vs Connally, 113 U.S. 27 4. C) Radics Vs New York, 264 U.S. 5. D) Minister for State for the Army Vs Datziel, 1944 68 CLR 261 6. E) Pennsylvania Coal Company Vs Mahon, 260 U.S. 393 7. F) Gulf C. & S. F.R. Co. Vs Ellis, 163 U.S. 150 at 159 8. G) Southern Railway Co. Vs Greene, 216 U.S. 400 ***ii)IMPORTANT STATUTES REFERRED:*** 32. Constitution of India 1950; Articles-14, 19(1)(f), 19(5), 31, 32. 33. Indian Companies (Amendment) Act, 1930. 34. Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950. [\[1\]](#_ftnref1) Chiranjit Lal Chowdhury V. Union Of India, AIR 1951 SC 41. 2. Sholapur Spinning and Weaving Company (Emergency) Provisions Act (XXVIII of 1950). 3.Writ of Mandamus for infringement of the Fundamental Rights (writ petition). 4. [](#_ftnref2) Middleton V. Texas Power and Light Co., 249 U.S. 152 (1919). **Categories:** Case Analysis --- ### [Campaign for Judicial Accountability and Reforms V. Union of India and Another](https://lawfoyer.in/campaign-for-judicial-accountability-and-reforms-v-union-of-india-and-another/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Aamish Priyam, Student, SS Jain Subodh Law College, Jaipur** **Edited by: Gaurav Katiyar, Student, University of Lucknow** 1. **ABSTRACT / HEADNOTE *(not less than 150 words and more than 250 words)*** In the case of Campaign for Judicial Accountability and Reforms V. Union of India and Another, the supreme court clarified the power and authority of the Chief Justice of India in constituting benches, allocating cases and maintaining the roster within the Supreme Court. This Judgement is significant as it clarifies the power and authority of Chief Justice of India as the master of roster. He alone has the power to constitute benches of the court and allocate cases to those benches. Neither a two-Judge Bench nor a three-Judge Bench can allocate the cases to themselves or direct the composition for constitution of a Bench. There cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench. ***Keywords*:** Authority, Constitutional Bench, Chief Justice, Power, Roster 1. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Campaign for Judicial Accountability and Reforms V. Union of India and Another ***ii)* *Case Number*** Writ Petition (Crl.) 169/2017 ***iii)* *Judgement Date*** 10/11/2017 ***iv)* *Court*** Supreme Court of India ***v)* *Quorum / Constitution of Bench*** Dipak Misra, R. K. Agrawal, Arun Mishra, Amitava Roy, A.M. Khanwilkar ***vi)* *Author / Name of Judges*** Dipak Misra ***vii)* *Citation*** WRIT PETITION (CRL.) NO.169 OF 2017 ***viii)* *Legal Provisions Involved*** Article 145 (2) (3) of Constitution of India, Order VI Rule 2 of the Supreme Court Rules, 2013 1. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The Judgement arise from the confusion of the power of Chief Justice to constituting benches, allocating cases and maintaining the roster within the Supreme Court. The “roster of court” refers to list that the judges will be handling in which court. It is a way to organize and assign cases to different judges, ensuring that the workload is distributed properly and that each case is heard by the appropriate judge or panel of judges. 1. **FACTS OF THE CASE** 2. **i) Procedural Background of the Case** Earlier the case was before a two-Judge Bench comprising Hon’ble Mr. Justice A.K. Sikri and Hon’ble Mr. Justice Ashok Bhushan. During the hearing, Mr. Prashant Bhushan, learned counsel, brought to the attention of the Bench an order dated 09.11.2017 passed in another case (W.P(Crl.) No.176/2017) referring the matter to a Constitutional Bench. The Supreme Court Bar Association (SCBA) also expressed its desire to be included as a party respondent in the case, which was allowed by the Court. The Bench directed that the matter be placed before the Hon’ble Chief Justice for appropriate orders to list the case. Subsequently, the Chief Justice of India constituted a Constitutional Bench comprising of Chief Justice, R.K. Agrawal, Arun Mishra, Amitava Roy and A.M. Khanwilkar to hear the case. 1. **ii) Factual Background of the Case** 1. N/A 2. **LEGAL ISSUES RAISED** 3. What is the power and authority of the Chief Justice of India in constituting benches, allocating cases and maintaining the roster within the Supreme Court? 4. **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioner submitted that (N/A) 1. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that as per the judgment rendered by the three-Judge Bench in State of Rajasthan v. Prakash Chand and Others (1998) 1 SCC 1, the Chief Justice of the High Court is the master of the roster and there is no justification not to treat the Chief Justice of India, who is the Chief Justice of the Apex Court, to have the same power. If the same principles are not followed, the institution cannot function. Respondents also stated the Order VI Rule 2 of the Supreme Court Rules, 2013, which says while hearing any cause, appeal or other proceedings, if the judges think that the matter should be heard by a larger group of judges, they will refer it to the Chief Justice. The Chief Justice will then form a larger group of judges to hear the case. Respondent also drawn the court attention to the authority in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1, wherein it has been held that if two judge bench disagree with a decision made by three judges bench. They will sent the matter to a group of five judges bench. Normally, two judges bench should follow the decision made by three judges bench. But if two judges believe that the earlier decision by three judges is wrong then they should first send the matter to another group of three judges bench explaining why they disagree with the judgement given. If this new bench of three judges also thinks the earlier decision is wrong, then it can be sent to a group of five judges bench. 1. **JUDGEMENT** 1. **RATIO DECIDENDI** The Chief Justice of India is the master of roster. He alone has the power to constitute benches of the court and allocate cases to those benches. Neither a two-Judge Bench nor a three-Judge Bench can allocate the cases to themselves or direct the composition for constitution of a Bench. There cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench. 1. **OBITER DICTA (IF ANY)** 1. 2. **CONCLUSION & COMMENTS** The Judgement highlights the importance of power of chief justice of India as a master of roster, his power to constitute benches and allocating cases to those benches. The power of Chief Justice is ultimate constituting benches, allocating cases and maintaining the roster within the Supreme Court if not then it will give rise to utter confusion. 1. **REFERENCES** 1. **Important Cases Referred** 1. State of Rajasthan v. Prakash Chand and Others 2. Official Liquidator v. Dayanand and Others 2. **Important Statutes Referred** **Categories:** Case Analysis --- ### [Maru Ram & Ors V. Union of India & Anr AIR 1980 SC](https://lawfoyer.in/maru-ram-ors-v-union-of-india-anr-air-1980-sc/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Mahaswetaa R, Student, Chettinad School of Law Kelambakkam** **Edited by: Priyanshu Tyagi, Student, Mewar Law Institue Vasundhra** **ABSTRACT :** The petitioner in this case questioned the constitutional validity of Section 433A of the criminal procedure code. The pardoning powers of the president and government provided under Article 72 and 161 of the Constitution of India was also discussed in this case. The power of remittance and commutation is given to the president and governor, which shall be taken after taking advice from the council of ministers, while restriction is imposed on certain class of prisoners, for them to serve in the prison for minimum 14 years. But section 433A is constitutionally valid, and it does not violate article 14 or article 20(1). Also, it does not affect the pardoning powers of the president and governor, which is seen as a separate provision which is distinguished from the statutory powers of section 432 & 433. ***Keywords:** pardoning powers, prospective, prisoners, constitutional validity, remittance, president & governor.* **CASE DETAILS:** NAME OF THE CASE Maru Ram etc. vs. Union of India & Anr CASE NUMBER ### 1980 AIR 2147 DATE OF JUDGEMENT 11/11/1980 COURT Supreme Court of India QUOROM/ CONSTITUTION OF BENCH Krishna Iyer, V R, Chandrachud Y V (CJ), Bhagwati, P.N., Fazal Ali, Syed Murtaza, Koshal A D. NAME OF THE JUDGES/ AUTHOR V.R., Krishna Iyer CITATION 1980 AIR 2147 LEGAL PROVISIONS INVOLVED Criminal procedure code, 1973 – Section 433A ; Constitution of India – Article 72 & Article 161 **INTRODUCTION & BACKGROUND OF JUDGEMENT:** - Section 433A of the criminal procedure code provides that, if any person is sentenced to imprisonment for life in which death is one of the punishments provided by law, or where a sentence of death is changed into imprisonment for life, such person should serve in jail for at least fourteen years, and he can be remitted only after 14 years. This case also talks about the pardoning power of the president and governor provided under articles 72 and 161 of the Indian constitution. It says about remission and commutation of sentences where the order of the government is necessary. And it also highlights the main objects of punishment. - Here, the main concern of the case is whether section 433A is affecting the pardoning powers of the president that are provided under sections 72 and 161 of the Indian Constitution. - The Background of the Judgement of the Supreme Court can be understood by these 4 points: - Constitutionality of Section 433A - Relationship with Short-Sentencing Laws and Remission Rules - Effect on Articles 72 and 161’s Pardoning Powers - Application of Section 433A Prospectively **FACTS OF THE CASE:** - A group of prisoners serving life sentences filed the lawsuit, arguing that Section 433A of the Code of Criminal Procedure is unconstitutional. - With effect from December 18, 1978, Section 433A imposed a minimum of 14 years of real detention for two categories of life-sentence offenders: - Individuals found guilty of a crime for which the death penalty is one of the available penalties. - Those found guilty under any other statute where the death penalty is the worst. Before 433A, life imprisonment was understood to indicate imprisonment for the balance of the offender’s natural life, subject to certain remission clauses found in prison legislation and regulations. **LEGAL ISSUES RAISED:** 1. Whether Section 433A is constitutionally valid? 2. Whether the pardoning powers of the president and governor affected by section 433A? 3. Whether parliament have no legislative competency to enact the impugned provision? 4. Whether this provision apply prospectively? 5. Whether section 433A violate Article 20(1) and Article 14 of the Indian constitution? **PETITIONERS ARGUMENTS:** The main argument here is that Section 433A of the criminal procedure code is against the constitution of India. - While Section 432 and Section 433 of the Code of Criminal Procedure give the power of remittance and commuting sentences, section 433A places restrictions on a certain class of prisoners. This confinement is not fair and just where the hopes of the prisoners are lost, and they are unable to reform themselves because of this restriction. This provision is against the pardoning powers of the president provided under articles 72 and 161 of the Indian constitution. It is stated that it is a harsh behavior of the law and provisions to not consider the prisoner’s feelings and helplessness. - The petitioners are arguing that the reformation must be the main essential of punishment and it must be given priority among the other objects of punishment i.e., prevention, retribution and deterrence where these objects deserve secondary importance. - The interpretation of statutes must be plain where the provisions are easily understood and interpreted without any complications. - It is also said that section 433A is against Article 14 of the Indian constitution on 2 grounds. It treats unequal situations equally, where the circumstances and variation of crime are not taken into consideration. On the other hand, it says that section 433A is inhumane and anti-reformative in nature. - Therefore, section 433A provides constraints that lead to the dissatisfaction of the prisoners which puts them in a difficult position and the interpretation of statutes must be clear and plain which provides a more straightforward approach instead of being chaos in understanding those interpretations. **RESPONDENTS ARGUMENTS:** - The main argument is that section 433A of the Criminal Procedure Code is constitutionally valid where it is not affected by the constitution of India. - While section 433A poses restrictions on certain classes of prisoners, it does not violate the pardoning powers of the Constitution. the pardoning powers are not entirely enjoyed by the president and governor, the advice of the central and state government is taken, and their decision is binding on the head of the state. Also, the reduction in sentence does not arise unless the president or governor chooses to use those powers which is also according to the fair principle. Remission only affects the execution of the sentence, and it does not wipe out the offence. - The four main objects of punishment must be balanced to provide a fair criminal justice system. All four objects must be given equal importance. Just focusing on one objective (reformation) will cause chaos to other objects. For example, if we focus on reformative alone, preventive theory cannot be established, which is providing protection to the public where the offender might cause problems. - They argued that by prohibiting the early release of inmates found guilty of major crimes, Section 433A was passed to serve the justifiable purposes of maintaining public order and security. **RELATED LEGAL PROVISIONS:** **Code of criminal procedure**: - Section 432: “Power to suspend or remit sentences. —(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. - Section 433: Power to commute sentence.—The appropriate Government may, without the consent of the person sentenced, commute— (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for a fine. (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for a fine. (d) a sentence of simple imprisonment, for a fine**.** - Section 433A: Restriction on powers of remission or commutation in certain cases.—Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.” **Constitution of India:** - Article 72: (1) “The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence— (*a*) in all cases where the punishment or sentence is by a Court Martial; (*b*) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; (*c*) in all cases where the sentence is a sentence of death. - Article 161: The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.” **JUDGEMENT:** 1. Ratio decidendi: - The court upheld the constitutional validity of section 433A of the criminal procedure code. - Dismissed the writ petition but partly allowed the case. - Section 433A does not violate the pardoning powers which are provided under Articles 72 and 161. This provision is constitutionally valid. Section 433A of the Criminal Procedure Code is a separate provision given as a restriction for section 432 and section 433 and it acts separately from the power of pardoning given under Articles 72 and 161 of the Indian Constitution. - The pardoning powers such as remission, reprieves etc are granted to the president and governor under Article 72 and Article 161 of the Indian Constitution are limited. They must act on advice provided by the council of ministers. The central and state government’s decision is binding on the head of the state. - Section 433A of Criminal Procedure Code do not violate Article 20(1) and Article 14 of Indian Constitution. - Section 433A of the criminal procedure code is prospective. It won’t apply to cases decided before December 18, 1978. 2. Obiter Dicta: - The court quoted a difference between the statutory powers of sections 432 & 433 of the criminal procedure code and the pardoning power provided under Articles 72 and 161 of the Constitution of India. - Life imprisonment should be served by the offender till his last breath, and it can be remitted only by the order of government. - The pardoning powers of the president and governor under Articles 72 and 161 of the Indian Constitution are with the central or state government and the court will intervene only in the rare case of irrationality, unfairness or irrelevance. **CONCLUSION & COMMENTS:** - The restriction imposed on certain classes of prisoners through section 433A of the criminal procedure code does not seem to be right. This provision is constitutionally valid but not in all circumstances. Decisions of remittance and reduction in time period of life imprisonment must be taken after considering the situation of the prisoner. The time period of 14 years is huge. - The pardoning power of the president & governor and statutory power of section 432 and 433 should be read separately. And the pardoning powers are not just with the head of the state, but it is with the respective government. - In the recent Supreme Court case, it has been held that the governor cannot say no to the state’s recommendation, and it can also pass a pardon for prisoners even if they have not served a minimum of 14 years of time in jail. - I would like to say that this can be done in special circumstances after considering all the facts and situation of the prisoner. **REFERENCES:** 1. **Important Cases Referred** · *Sambha Ji Krishan Ji vs State Of Maharashtra AIR 1976* · *State Of Madhya Pradesh vs Ratan Singh & Ors AIR 1973 SC* · *Maneka Gandhi vs Union Of India AIR 1968 SC* · *E. P. Royappa vs State Of Tamil Nadu & Anr AIR 1982 SC* · *V. Punnen Thomas vs State Of Kerala AIR 1968 SC* · *Bachan Singh & Ors vs State Of Punjab & Ors AIR 1980 SC* 1. b. **Important Statutes Referred** - *Constitution Of India, 1950* - *Criminal Procedure Code,1973* **Categories:** Case Analysis --- ### [Legal Remedies for Trespass to Person](https://lawfoyer.in/law-of-torts-legal-remedies-for-trespass-to-person/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Arsh Singh, Law Student at University of Petroleum and Energy Studies, Dehradun.** **Edited by: Shruti Mayur, Law student at Amity University.** **INTRODUCTION** Trespass to a person is considered to be a direct interference with a person’s body or liberty without any lawful justification. It is tried under tort which is civil law. Such torts are committed nowadays frequently in everyday life so this article aims to be aware of its stringent punishment and consequences in depth so they do not take it as a light medium and treat it seriously and abide it like every law so that the number of cases of trespass reduces. It is essentially defined as unjustified interference with a person’s body, which can be done by inflicting physical damage or by raising the fear of force. In this article we will be studying its background from where it is derived, we will be focusing on what rights a person can exercise to prevent trespass to himself keeping in light its difference with nuisance which people often confuse it with, also we would be focusing on the types of trespass to persons understanding with some famous case laws. We will also be comparing the legal remedies of trespass, whether they are flexible more in India or more in foreign countries or helping in an in-depth analysis. My Main reason for writing this article is to reduce the number of cases of trespass by making people aware of its value and its consequences. **KEYWORDS: Trespass to person, tort, unlawful interference, physical damage, force.** 1. Meaning, Definition & Explanation** Trespass to a person is an unreasonable interference with bad intention which is committed either by causing physical force or by creating an apprehension of fear in the mind. It comes under tort law. Law of tort is a branch of law of obligations where the law obliges to refrain from harm to another and if harm is done then to repair it or compensate it which are imposed not by agreement but independently of agreement by force of general law. Trespass to a person can be further divided into assault, battery, and false imprisonment. Assault and battery under trespass can be tried under civil as well as also under criminal depending upon the severity. The foremost condition for trespass to a person is that the force used should be without any lawful justification or confinement should be unlawful. Trespass includes not only to persons but also to goods and to land. Legal remedies have become a must to oust such trespassers and create fear amongst them such that they do not commit trespass. **2. Historical Background / Evolution** This concept has a long historical background in English common law which influenced tort law. The development of legal remedies is traceable only through the early common law system. In medieval England, this concept was applied to all heinous acts involving land and property. Its definition was earlier only limited to land however with development in time legal principles evolved and this concept started including actions that affected a person’s body or his/her personal belongings leading to the proper difference between assault battery and unlawful imprisonment becoming more defined after which judicial decision started to refine elements of trespass to the person establishing a clear standard for liability and defenses. This concept was later adapted into Indian tort law leading India to develop its own jurisprudence while considering local customs and practices In recent times legal remedies for trespass to a person are shaped by historical influences and modern development. Henceforth, the protection of individual rights against physical interference has remained a fundamental concept within tort law. 3. **Comparison with other Countries** In India the main remedy for trespass to a person under tort law is damages. These damages may include physical injury, pain and suffering, medical earnings, loss of earning capacity, etc, however, the court has also granted exemplary damages in some cases. Although these torts are also governed under the Indian penal code such as assault (Section 351), criminal force (Section 350), wrongful restraint (Section 339), and wrongful confinement (Section 340). If prosecutors are found guilty under criminal trial they may face penalties such as imprisonment or fines as prescribed by law. However, when remedies are compared with other countries we see some variations such as countries like Australia, Canada, United States following principles derived from English common law precedent. This includes countries like Australia, and Canada where elements of battery and assault form part of their tort laws, and France or Germany which have codified laws that govern torts which include those that relate to the injury caused by others’ conduct towards another’s body/persons. Some countries like Ireland have a mixed legal system that is not only derived from English Common Law but also incorporates certain statutory provisions. For Islamic countries to address liability for personal injuries they incorporate Shariah principles. **4. How trespass is different from nuisance** Many people are confused between them thus it is important to state the difference between them. Nuisance is an unlawful interference with a person’s use or enjoyment of land or some right in connection with it. In trespass, physical interference is direct however in nuisance it is consequential. Planting trees on another land is trespassing but when a person plants in his land and it projects into another land it amounts to nuisance. In trespass, interference is with the plaintiff’s possession of land whereas in nuisance it is with the plaintiff’s enjoyment of land. **5. Types / Kind** The following are the types of trespass to a person- - Assault- is an act of the defendant which causes to plaintiff reasonable apprehension of infliction of battery upon him by the defendant. If the apprehension of infliction of battery is created upon the plaintiff which is intentional by the defendant and has the prima facie ability of being performed. For eg, if a person advances in a threatening manner to use force this is assault. - Battery- it is an intentional application to another person without any lawful justification. There should be use of force without any lawful justification however it is pertinent to note that mere passive obstruction is no force. Unintentional harm or harm caused by a pure accident is no battery. - False imprisonment- it is the imposition of total restraint for some period however short upon the liberty of another without sufficient lawful justification. When a person is deprived of his liberty whether by being confined over the four walls or by leaving the place from where he is false imprisonment is constituted if one is deprived of his personal liberty. Under criminal law, whether the restraint is total or partial both are punishable under IPC however position in tort law is only false imprisonment when the restraint is total. - It is pertinent to note that if there are means of escape restraint can’t be considered a total and there is no false imprisonment. This means, however, that it is intelligible or reasonable to the person detained. Knowledge of the person being falsely imprisoned is not required in false imprisonment. 6. **Forms of trespass** - Trespass to person – It is essentially defined as unjustified interference with a person’s body, which can be done by inflicting physical damage or by raising the fear of force - Trespass to goods- It is direct physical interference with goods that are in the plaintiff’s possession without any lawful justification. - Trespass to land- It means interference with the land without a lawful justification. 7. **Essentials** **Battery** - There should be the use of force irrespective of whether it causes harm or not the wrong is still constituted. It is not mandated there should be physical hurt. For eg least touching another is the battery. - Use of force should be intentional and without any lawful justification. It is pertinent to note that harm voluntarily suffered is no battery. Also, harm is unintentional and caused by pure accident. **Assault** - Assault can be determined if reasonable apprehension is committed in the mind of the plaintiff that battery is going to be committed against him provided the defendant had the intention to cause reasonable fear in the mind of the plaintiff. Eg pointing a loaded gun at another. - The second essential is that there should be prima facie ability to do harm which means that the act should be such that it is capable of creating apprehension in the mind of the plaintiff for eg showing a fist from a distance would not amount to assault since it is not capable enough to create an apprehension. **False imprisonment** - There should be total restraint on the liberty of the person. Whether the restraint is total or partial both are punishable under criminal law however under tort law false imprisonment is constituted only when there is a total restraint i.e when a person is completely deprived of his/ her liberty in which time is of no essence. - It should be without any lawful justification. 8. **Defences** **Defences of assault and battery: –** - Statutory Authority: When an individual with legal authority tries to obstruct them while they are performing their duties, they may be stopped by using force. - Lawful Correction: When used to modify someone’s behavior, assault and battery are occasionally acceptable. For instance: correcting a child or learner. But the remedial action shouldn’t be overly harsh or unjustified. - Maintaining the peace: Reasonable force may be used to halt someone who is stirring up disorder at a public house of worship if they are doing so. - Kicking someone off your property: You have the right to use as much force as necessary to eject someone who enters another person’s property without authorization and doesn’t leave when asked. It is appropriate to use force in this circumstance. - Retaking of goods: The rightful owner or a person designated to look after the owner’s property may request the return of any items that have been wrongfully taken. Depending on the circumstances, the legitimate owner and authorized person may use reasonable force to reclaim it if the wrongdoer refuses. . **Defences of false imprisonment** - Consent to Restraint: – A person cannot argue they are a victim of imprisonment if they voluntarily consent to be confined without using any deceit or trickery. - Valid arrest: – It is not deemed false imprisonment when someone is detained for an unlawful act and there is a good reason for the detention - Probable Cause: – In order to prevent wrongful imprisonment, it is essential to establish probable cause through acts. It is crucial to remember that the criteria used to determine probable cause is centered on objective proof of a person’s wrongdoing rather than on an actual crime. **9. Remedies for Trespass to Person** - Action for damages: – If someone’s body has been trespassed, they have the right to bring a legal action and claim damages. These damages aren’t just for physical injuries but also for any harm to their personal freedom. So, when someone’s body is violated, they can seek monetary compensation for both the physical and emotional impact it has caused. - Self-help: – It is the remedy available to a person who has wrongfully restrained. The person can be free himself instead of waiting for a legal action. - Habeas Corpus: – The Supreme Court under Article 32 and the High Court under Article 226 can issue writs for a person who is wrongfully detained by this individual who is detaining is required to produce the detained person before the court and rationalize his detention. The person would release immediately if the court finds the reason for detention unreasonable. **Case Laws / Precedents (if any)** **ASSAULT** - **Stephen v Myers**, the plaintiff was chairman at the Paris meeting, the defendant sat at the same table but there were 6-7 between them. A very large meeting decided that the defendant be expelled from the meeting. The defendant moved towards the plaintiff with a clenched fist saying he would rather pull the chairman out of the chair however he was stopped by the churchwarden. He was held liable for assault. - **Stanley v Powell**, Powell who was a member of the shooting party fired at a pheasant but a pellet from his gun glanced off the tree and accidentally wounded Stanley who was another member of the party. Powell was not held to be liable since the act was not wilful. **BATTERY** - **Kader v. K. A. Alagarswami** court held that putting handcuff on an undertrial prisoner and then chaining him like a dangerous animal with a neighboring window is unjustifiable use of force and the police officer imposing such force is liable for trespass to the person. **FALSE IMPRISONMENT** - **Bird v Jones** a part of a public footway as opposed to a carriageway was wrongfully enclosed by the defendant. Seats were put there and entry to the enclosure was allowed only to those who made the payment to watch rowing there. The plaintiff assented his right to use the footway and climbed over the fence but was prevented from going further he was there for half an hour and brought an action for false imprisonment. The court held there was no false imprisonment as restraint was not total. - **Mee v Cruikshank**, after the acquittal of the plaintiff he was taken to a cell and was detained there for a few minutes while some questions were put to him by warders it was held to be false imprisonment. - **Bhim Singh v State of J. & K** where the petitioner an MLA of the jk assembly was wrongfully detained by police in order to prevent him from attending assembly session. It was held to be unjustifiable detention and exemplary damages were granted. - In **Rudal Sah v. State of Bihar** Supreme Court granted such compensation in writs of habeas Corpus where the petitioner was acquitted by the court in 1968 but was released from jail in 1982, i.e., 14 years thereafter. The State tried to justify the detention by pleading that the detention was for the medical treatment of the petitioner for his mental imbalance. The plea was rejected. **Doctrines / Theories** - The **Doctrine of Directness** states that the defendant’s actions must directly result in the interference. - The **Doctrine of Illegal Restraint**: In order for a person to be falsely imprisoned, their freedom must be unlawfully and unconsentedly restricted. - **The principle of proportionality in self-defense**: Self-defense actions must be appropriate for the threat being faced. - **Doctrine of Intent**: Even when the defendant did not intend the precise harm, they must have intended the act that caused the interference. **Maxims / Principles** - **Volenti nonfit injuria**:- To a willing person, no harm is done. - **Injuria sine damno**: – Injury without damage This principle holds that a legal wrong (injuria) can be actionable even if no physical damage(damno) occurs. - **Damnum sine injuria**: – Damages without legal injury this tells that not all harm results in a legal claim there must be a violation of the right. **CONCLUSION & COMMENTS** The origins of trespass, including trespass to the person, are still a bit of a mystery despite all the research done on the subject. Even though there have been theories proposed, like the idea that trespass actions evolved from the jurisdiction of the old popular courts, there’s not enough surviving evidence from those times to back up these claims. So, we can’t say for sure if they’re true or not. We do have a better understanding of how trespass actions developed over time thanks to the rise of the king’s courts and the increase in documented legal proceedings. But when it comes to the very earliest origins of trespass to the person, we still have limited information. In the end, the historical background of this tort remains elusive. The action of trespass, in its different forms, seems to have slowly taken shape within the common law system, drawing from various earlier legal traditions. But we can’t definitively pinpoint where the idea of trespass to the person first came from. The fact that there’s no clear, undisputed origin story shows us that the common law is an organic and evolving system. Trespass to the person, like many other important legal concepts, emerged through a complex historical process that can’t be boiled down to just one event or influence. As legal scholars, we need to be aware of the limitations of the historical record and not jump to firm conclusions about these murky origins. **REFERENCES** 1. **Books / Commentaries / Journals Referred** - Law of torts RK Bangia - Harvard Law Review - Law of Torts by Ratanlal and Dhirajlal 2. **Online Articles / Sources Referred** - Law of Trespass to a Person” – This resource provides a comprehensive overview of trespass to person, 3. **Cases Referred** - Stephen v. Myers - Stanley v. Powell - Kader v. K.A. Alagarswami - Bird v. Jones - Mee v. Cruikshank - Bhim Singh v State of J. & K - Rudal Sah v. State of Bihar **Categories:** Articles, Law of Torts --- ### [The Concept of Consideration in Indian Contract Law](https://lawfoyer.in/the-concept-of-consideration-in-indian-contract-law/) **Published:** July 1, 2024 **Author:** LawFoyer **Content:** **Author: Disha Vadwana, Student, KES’Shri Jayantilal H. Patel Law College** **Edited by: Gaurav Katiyar, Student, University of Lucknow** **INTRODUCTION** Consideration is part of a valid contract in Indian contract law 1872, The word Consideration arise from Latin term quid pro quo,” which means “something for something.” When a person to an agreement promises to do something or not to do something, he must get something in return. The reason for the need of Consideration in Indian contract law is that it builds Mutuality, Legal Enforceability, Economic value, Fairness, Reciprocity and legal protection between parties. Without consideration, an agreement is void in Indian contract law 1872. Section 2(d) and Section 25 of Indian contract law defines consideration in detail and there are certain exceptions to consideration also which is Natural love and affection, promise to compensate for past voluntary services and promise to pay time-barred debt. Consideration may be past, present, or future. Consideration simply means ” *When parties to the agreement agree to give upon something to get something in return is called the consideration.”* ***Keywords* *(Minimum 5)*: *Indian Contract Law 1872, Consideration, Section 2(d), Valid contract, Section 25.*** **Definition of Consideration** **“Section 2(d) of the Indian Contract Act defines ‘Consideration’ as under:** *“When at the desire of the promisor, the promisee or any other person has done or abstains from doing or does or abstains from doing or promises to do or abstains from doing something, such act or abstinence or promise is called consideration for that promise.”* **Definitions of Consideration by famous Scholars:** ***Blackstone:*** *“Consideration is the recompense given by the party contracting to the other”.* ***Pollock:*** *“Consideration is the price for which the promise of the other is brought, and the promise thus given for value is enforceable.”* ***Patterson:*** *“Consideration means something, which is of some value in the eye of the law. It may be some benefit to the plaintiff or some detriment to the defendant.”* ***Cheshire and Fifoot:*** *“The expression consideration has to be understood as a price paid for a promise has been commended.”* **Essentials elements of Consideration:** **Consideration must be given at the desire of the Promisor.** If the action of promisee does not fulfil the consideration, by the desire of promisor then it is not fall into the definition of consideration. A promisee must fulfil the desire of the promisor for valid consideration. ***Consideration may be given by the promisee or any other person:*** In the agreement between the promisee and promisor, consideration may be given to the promisor by the promisee or any person. A person can sue as long as he/she is part of the contract. Section 2(d) of consideration also defines that the consideration may proceed from the promisee or any other person. ***Consideration must have some value in the eyes of law:*** Consideration should not be unreal. It must be of some value in the eyes of law. An act that is impossible to perform in the contract cannot be called a valid consideration. ***Consideration must not be unlawful, immoral, or opposed to public policy*:** Section 23 of the Indian Contract Act states that every agreement or consideration that is unlawful is void. **Section 23 of ICA 1872**: “23. What considerations and objects are lawful and what not. – the consideration or object of an agreement is lawful, unless- – it is forbidden by law; or – is of such nature that, if permitted, it would defeat the provisions of any law; or – is fraudulent; or – involves or implies injury to the person or property of another or; – the Court regards it as immoral, or opposed to public policy.” **Types of Consideration** 1. **Past consideration** Past consideration is a consideration that is already done by the promisee at the desire of the promisor before the promise is given by the promisor. 2. **Present Consideration** Consideration, which is done by the promisee at the time of making a promise. When both parties agree to perform obligations on their part, this is known as present or executed consideration. 3. **Future Consideration** Consideration that is promised to pay at the future date or render service at the future date is known as future consideration. Future Consideration is also called executory or prospective consideration. **Exception to Consideration** Section 25 of the Indian Contract act 1872 states about the exception to consideration that is no contract without the consideration. 1. **Natural love and affection:** An agreement without consideration is valid consideration if it is made on account of love and affection and shall be enforceable only if such agreement is in writing and registered. Illustration: A, out of natural love and affection, promises to give his grandson, C Rs. 2000/-. A put his promise to C into writing and registers it. This is a contract. 2. **Promise to compensate for past voluntary services:** An agreement without consideration is valid when it’s promised to compensate a person who has formerly done something for the promisor. Illustration: 1. A finds B’s Bag and give it to him. B promises to give A Rs 100/- this is a contract. 2. A support B’s for treatment of his son. B promises to pay expenses to A This is a Contract. 3. **Promise to pay time-barred debt:** A time barred agreement is an agreement where debt may be given in certain time. Section 25 of the Indian contract act states, a time barred debt is valid if, the debt is time barred, promised to pay debt, signed by debtor and if the promise is written. Illustration: A owes D to Rs. 10,000/- but the debt is forbidden by the Indian limitation Act. A sign a written promise to pay D Rs 5,000/- on account of debt. This is a contract. **Landmark Case and Judgment:** **Chinnaya v. Rammaya (1882):** The case is about a gift deed agreement where a plaintiff transferred her property to her daughter by a registered deed of gift. One of the conditions of the agreement was to pay Rs. 653/- to plaintiff’s sister. For the desire of the plaintiff, defended made an agreement in favour of the plaintiff to make a promise to pay sum of annual amount to plaintiff’s sister. Issue of the case: Whether the plaintiff can file a suit against the defendant for the money promised in an agreement when the consideration of that promise was actually provided by third party, the defendant’s mother who was plaintiff’s sister? Judgement of the case: The Madras High Court states that the agreement between the plaintiff and defendant, consideration was on the behalf of the plaintiff’s sister, even a plaintiff was stranger to consideration, plaintiff can file a suit because the plaintiff was the part of a contract. The court held that section 2(d) of Indian Contract Act 1872 defines, a stranger to consideration can pay the amount on behalf of promise because he/she becomes the part of a contract. Lastly, the court states that the plaintiff’s sister was entitled to a decree of the payment of money. ## **Conclusion** The concept of Consideration is a part of valid contract and ensuring that the agreements are backed by reciprocal and mutual benefits in agreement. Section 2(d) of the Indian Contract Act, 1872, transforms the promises into enforceable contracts by each party to receive something in return. It upholds the integrity and fairness in the agreement by the both side of parties. Consideration is essential part of contract for maintaining the balance, trust and enforceability of contracts within the Indian legal framework. **REFERENCES** **Books / Commentaries / Journals Referred** *Law of Contract (a Study of the Contract Act, 1872) and Specific Relief* (2018) **Online Articles / Sources Referred** “Consideration in Indian Contract Law – Drishti Judiciary” “Consideration in Contract Law – iPleaders” “Chinnaya vs. Ramayya : An Analysis – iPleaders” **Cases Referred** *Chinnaya v Rammaya (1882)* **Statutes Referred** *The Indian Contract Act, 1872* **Categories:** Case Analysis --- ### [Parshottam Lal Dhingra v. Union of India 1958 AIR 36](https://lawfoyer.in/parshottam-lal-dhingra-v-union-of-india-1958-air-36/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author:- Sonam Chahar is a law student at the Army Institute of Law** **Edited by:- Rutvij Vyas is a law student at the faculty of law, GLS University** **A)ABSTRACT / HEADNOTE** In this case, the appellant Parshottam was appointed as an officiating chief controller(class II level post) in 1951. Before this, he was in class III post. But in 1953, he was reduced from his current post to a previous class. In the meantime, he appealed before authorities to reconsider their decisions. But he later filed writ petition in the High Court against the railway authority for the reduction of his rank without giving him a chance of being heard. The court gave judgment in favour of the petitioner and said that a fair chance was not given to the petitioner as per provisions of Article 311. Later, against the decision of the High Court, railway authorities(respondent) appealed to the divisional bench and they gave a decision in favour of the authorities. So, to resolve the whole case and to reach a conclusion, the case was appealed to the Supreme Court. The majority opinion was in favour of authorities and mentioned that there is no violation of Article 311. **B)CASE DETAILS** **i)Judgement Cause Title / Case** **Name –** Parshottam Lal Dhingra v. Union of India,1957 **ii)Case** **Number –** AIR 36 **iii)Judgement Date –** 1 Nov, 1957 **iv)Court –** Supreme Court of India **v)Quorum / Constitution of Bench –** Division Bench **vi)Author / Name of** **Judges –** Das, Sudhiranjan, Aiyyar, T.L. Venkataram ,S.K. Sarkar ,A.K Bose, Vivian **vii)Citation –** AIR 1958 AIR36 **viii)Legal Provisions** **Involved –** Article 310,311 of the Constitution of India **C)INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case is related to services law in India. It talks about the articles included in part 14 of the constitution i.e. 310 and 311. The case is about the reduction of the rank of civil servants who were serving in the Indian Railway service. His rank was reduced from an upper (officiating) position to a lower one. He claimed that his dismissal from the officiating post was not valid as it violated Article 311 of the Indian Constitution. Article 310 talks about the tenure of office of persons serving the union or a state. Article 311 of the Indian Constitution talks about the reduction, removal or dismissal in rank of persons employed in civil capacities under union or state. Exceptions of this article are defence personnel or persons holding military posts. The majority judgement is that Article 311 is applied to persons holding permanent, temporary or officiating posts. The article talks about when the removal or reduction of the post of a person is done as a punishment. In the current case, it is an administrative action to remove the current post of the appellant, not a punishment. But on the other side, the minority judgement is that Bose that the reduction in the rank of the appellant is not by article 311 as he should be given a reasonable opportunity to be heard. **D)FACTS OF THE CASE** ***i)Procedural Background of the Case*** a. The appellant on 9 February 1955 filed a writ petition in the High court under article 226. Justice Harnam Singh gave judgment in favour of the appellant that the reduction in his post without giving him the opportunity of showing the cause against action is invalid as per article 311(2). b. Then, an appeal filed by the Union of India against the decision of the High Court in the Divisional Bench of Chief Justice Bhandari and Justice Falshaw. They overruled the decision of the High Court. c. The case was then appealed in front of the Supreme Court of India. ***ii)Factual Background of the Case*** a. The appellant name Parshottam Lal Dhingra joined the Railway service as a Signaller. After his promotion in 1942, he was appointed as Section Controller, in1947 as Deputy Chief Controller and in1950 as Chief Controller. All these posts came under class III service. b. In July 1951, he was appointed as officiate which is class II service as post of assistant Superintendent of railway telegraphs. c. But after some time,in 1953 it was noticed that some adverse remarks were made on him and stated by seniors that he was reverted to the subordinate posts **E)LEGAL ISSUES RAISED** - Whether the removal of the appellant is by provisions of Article 311 of the Constitution of India? - Whether the provision of article 311 is include temporary or officiating post of central services? **F)PETITIONER/ APPELLANT’S ARGUMENTS** - The counsel of Petitioner argued that he was appointed to the higher post but eventually revert to the lower post on grounds claimed by the authorities. He was not even given any reasonable opportunity to be heard and it subsequently violates principle of natural justice. Every person should be equally given chance to present his argument before the actions taken. - After his reduction in post, he initially went to General Manager for reconsideration of the action taken but nothing was improved. - The petitioner argued that article 311(2) is violated here as it talks about giving fair chance for person to show cause against action. He was not given that opportunity. **G)RESPONDENT’S ARGUMENT** - The counsels for Respondent submitted that the petitioner was appointed only for the temporary purpose i.e. officiating. The removal of him from that post is not any arbitrary action. - The grounds on which his rank was revert was justified as the reports were made about his work and his relations with his colleagues but they all went against him. Reports said that he was not good at his work on higher post and not eligible for that. - The provisions of article 311 were not violated as his removal was a administrative action and article includes the provisions of punitive action for removal or reduction in post. **RELATED LEGAL PROVISIONS** Article 310 talks about the tenure of the persons under union or a state - *Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State* - *Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor 1 of the State, any contract under which a person, not being a member of a defence service or of anal-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor 2 as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.* ii.Article 311 talks about the dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a state - *No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.* - *No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges .* **JUDGEMENT** **RATIO DECIDENDI** - The majority judgments are passed by CJ Das, Venkatarama Aiyyar, S.K.Das and A.K. Sarkar in favour of respondents that the removal of appellant from his position is not the violation of article 311. - The reduction in the post of parshottam is not an punitive action or punishment with accordance to the article 341. - Judgement says that it is the administrative action which was taken by railway authorities. - The minority judgement was given by justice Vivian that the provisions of article 311(2) says that reasonable opportunity should be given to the persons to the cause against action. In this case, the parshottam was not given reasonable opportunity to present his side, voilates article 311(2) **REFERENCES** ***Important Cases Referred*** - State of Bihar v. Abdul Majid, AIR 1954 SC 245 - Jayanti Prasad v. The State of Uttar Pradesh AIR1951 ALL 793 - Gopi Kishan Prasad v. The state of Bihar AIR 1955 pat 372 - Shrinivas Ganesh v. Union of India Air 1956 **Categories:** Case Analysis --- ### [Legal Framework for Carbon Trading in India](https://lawfoyer.in/legal-framework-for-carbon-trading-in-india/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: Shadrack Chai Chivatsi, University of Nairobi** **Edited By: Team LawFoyer** **INTRODUCTION** *“Clean air and water and a viable climate are inalienable human rights and solving this crisis is not a question of politics. It is a moral obligation- if, admittedly, a daunting one.” –* Quote by Leonardo DiCaprio, American actor and film producer. The Earth is a planet that contains human beings, animals, and plants as fauna and flora respectively. For a very long time, these living organisms have been interrelated with water, air, soil, and other physical properties. This symbiotic relationship has enabled a harmonious ecosystem between them. Humans have been at the forefront of coming up with incentives and innovations, from agrarian to industrialization systems. All these human activities done for the betterment of economies have partly or wholly contributed to climate change by the emission of greenhouse gases, CO2 included. This Carbon IV oxide and other greenhouse gas levels in the atmosphere have been rising very alarmingly. Climate change is now a contemporary issue in the society today. The bitter pill to swallow is that we have very limited carbon technocrats globally to address and advocate this ongoing crisis. It’s even sad that most of the human population is still ignorant about climate change despite nature constantly communicating that we are in trouble and need us to restore it. Communication has been through prolonged droughts, global warming, bushfires, floods, and many other effects. Carbon trading is among other mechanisms to leverage and decarbonize the planet as a path towards restoring the net zero emission target. This policy enabled the EU emission transmission system (ETS) as a market for carbon credits and emissions. Carbon credits are the acceptable volume of carbon dioxide that can be released by a certified climate action project. The conceptualization of carbon credit and offsets is taking momentum as the world faces the ever-growing threat of climate change.[\[i\]](#_edn1) India is also no exception to this, and a robust legal framework is emerging to ensure that the nation is truly net zero emissions. ***Keywords*:** carbon trading, carbon offsets, carbon credits, emissions, climate change, global warming, Kyoto Protocol, Paris Agreement, decarbonization, European Union (EU), emission transmission system (ETS), Greenhouse Gases (GHG). **Meaning, Definition & Explanation** Carbon trading is the buying and selling of carbon IV oxide emissions by producing it or by exchanging it from one’s limit fixed according to the Kyoto Protocol.[\[ii\]](#_edn2) Carbon credits and emissions trading can put a value on forests’ standing that preserves them as carbon sinks, a refuge for animals and plants, and a source of sustainable jobs for Indigenous peoples and others. Imagine a resident in India who often more than not plants trees and preserves trees to prevent soil erosion, acting as windbreakers or to some even a source of food can now use forests as an economic capital thanks to climate change restoration. This will in turn encourage sustainable trading practices and invest in green initiatives in India. Emerging economies are beginning to monetize their forest cover and GHG emission reductions through carbon credits and emissions trading. Carbon credits and carbon taxes offer opportunities to control GHG emissions.[\[iii\]](#_edn3) Consequentially, in such a market, a country which is carrying out initiatives that clearly reduce emissions may earn carbon credits and trade in the open market these emissions reductions. This is also known as an Emissions Trading System (ETS). **Types of carbon markets** These markets can either be mandatory, where participating organizations are required by law to participate in the market and to meet certain carbon reduction targets, or voluntary, where companies, governments, and other organizations can offset their carbon emissions voluntarily—either to meet their own sustainability goals or to demonstrate their commitment to reducing their carbon footprint.[\[iv\]](#_edn4) This is a compliant carbon market, EU’s ETS — that is to say, companies of a certain size who emit exhaust gases must every year also not forget to buy large transfers themselves. The Gold Standard is a stop-gap standard to help facilitate trading of carbon in the voluntary carbon market (VCM). Carbon taxes or carbon pricing for the price of the carbon owed to the Government by Society in general. **Legal Provisions Invoked** **“Energy Conservation Act, 2001.”** The ministry introduced a carbon trading scheme. It established a National Steering Committee to oversee the market and the Bureau of Energy Efficiency will be responsible for implementing the scheme including formulating rules, setting emission targets, issuing carbon credits, and developing guidelines for trading. The Central Electricity Regulatory Commission has been mandated as the authority regulator to ensure market integrity and safeguard stakeholders’ interests. **Air (Prevention and Control of Pollution) Act, 1981** Pursuant to this legislation, the [standards for emission](https://cpcb.nic.in/displaypdf.php?id=aG9tZS9haXItcG9sbHV0aW9uL1JlY3ZlZC1OYXRpb25hbC5wZGY=) have been set, these only include “Carbon Monoxide (CO) and not Carbon dioxide (CO2) or any other GHG emissions.”[\[v\]](#_edn5) **Electricity Amendment Act (2023)** It has made efforts to integrate climate action by promoting renewable energy.[\[vi\]](#_edn6) However, these laws are largely focused on improving regulation and sectoral efficiencies, and **the discourse on climate action and emission reduction is largely ‘incidental and peripheral’**[\[vii\]](#_edn7) **Constitution of India** According to *Article 48A,*[\[viii\]](#_edn8) “the State is responsible for protecting and improving the environment, as well as safeguarding forests and wildlife. The Indian government is legally obligated to put in significant effort to preserve and defend the environment, forests, and all their diversity.”[\[ix\]](#_edn9) **International laws and regulations which India has ratified.** - **Kyoto protocol** **Article 17[\[x\]](#_edn10)** is being used for carbon trading. Article 17 clearly states that “The Conference of the Parties shall define the relevant principles, modalities, rules, and guidelines, in particular for verification, reporting, and accountability for emissions trading. The Parties included in Annex B may participate in emissions trading to fulfil their commitments under Article 3. Any such trading shall be supplemental to domestic actions to meet quantified emission limitation and reduction commitments under that Article”.[\[xi\]](#_edn11) In detail, Article 3[\[xii\]](#_edn12) states that “The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated according to their quantified emission limitation and reduction commitments inscribed in Annex B and under the provisions of this Article, to reduce their overall emissions of such gases by at least 5 percent below 1990 levels in the commitment period 2008 to 2012”. And each party included in Annex I shall, by 2005, have made demonstrable progress in achieving its commitments under this Protocol.[\[xiii\]](#_edn13) “Any emission reduction units, or any part of an assigned amount, which a Party acquires from another Party following the provisions of Article 6 or of Article 17 shall be added to the assigned amount for the acquiring Party. Any emission reduction units, or any part of an assigned amount, which a Party transfers to another Party per the provisions of Article 6 or of Article 17 shall be subtracted from the assigned amount for the transferring Party. If the emissions of a Party included in Annex I in a commitment period are less than its assigned amount under this Article, this difference shall, on request of that Party, be added to the assigned amount for that Party for subsequent commitment periods.”[\[xiv\]](#_edn14) - **The Paris Agreement, 2015** Article 2[\[xv\]](#_edn15) of the Paris Agreement aim was to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius. Additionally, the agreement aimed to strengthen the ability of countries to deal with the impacts of climate change. **Relevant Case Laws** In ***Ridhima Pandey v. Union of India (OA no 187 of 2017)*** the orders given to this petition were “This application seeks direction to assess the climate related issues while appraising projects for grant of environmental clearance. Further direction is to prepare targets or a carbon budget for the total amount of CO2 emissions that can be released until 2050 ensuring that India shares its responsibility as member of the global community to achieve global climate stabilization and reduce atmospheric CO2 to below 350 ppm by 2100, limiting the long-term average global temperature increase to no more than 1°C and direct that a time bound national climate recovery plan be prepared within the existing legal framework that includes interim CO2 reduction targets and mitigation actions tiered to achieving India’s carbon budget. the case was brought to the National Green Tribunal of India pursuant to section 2 (m) of the National Green Tribunal Act, 2010 which authorizes claims that raise “a substantial question relating to the environment” and the issue to be determined was the adequacy of India’s climate change mitigation effort vis a vis public trust doctrine and other legal obligations. However on January 15, 2019, the National Green Tribunal dismissed the case, reasoning that climate change is already covered in the process of impact assessments under the Environment Protection Act of 1986, and therefore, “There is no reason to presume that Paris Agreement and other international protocols are not reflected in the policies of the Government of India or are not taken into consideration in granting environment clearances.”[\[xvi\]](#_edn16) In ***Re Court on its own motion v. State of Himachal Pradesh and others[\[xvii\]](#_edn17)*** February 2014, India’s National Green Tribunal issued a ruling on its motion imposing several restrictions on activity around the Rohtang Pass, an environmentally sensitive area in the Himalayan state of Himachal Pradesh. The National Green Tribunal has jurisdiction under a 2010 statute “over all civil cases where a substantial question relating to the environment … is involved and such question arises out of \[one or more of seven environmental protection statutes enacted between 1974 and 2002\].” “The court may initiate cases and impose remedies. In February 2014, on its own motion, the court found that Black Carbon, which can be produced through vehicle use, is a major causative factor for the rapid melting of glaciers in the Himalayan region.” The court cited a study suggesting that 40% of the glacial retreat could be attributed to Black Carbon impact and concluded that, therefore, Black Carbon emission reduction can address glacial melting. The court concluded that Indian citizens have the right to a wholesome, clean, and decent environment, derived from **Article 48A** of the Constitution (which requires the state to protect and improve the environment), **Article 51A** (requiring a citizen to protect and improve the natural environment) and **Article 21** (protecting the right to life as a fundamental right). **Comparative Analysis with other countries** **Canada,** for example, “has one of the world’s most ambitious carbon pricing policies—it taxes oil, gas, and coal use at $15–$38 per ton of carbon dioxide emitted.”[\[xviii\]](#_edn18) The revenues from carbon credits and carbon taxes can then be used for development activities or low-emission practices, thereby creating a virtuous cycle in which emissions reduction payments finance further emissions reduction—protecting and improving the environment and safeguarding forests and wildlife.[\[xix\]](#_edn19) **In Kenya,** carbon trading operated in a legal lacuna. However, in September 2023, the Climate Change Act, No. 11 of 2016 was amended to provide express regulation of carbon markets in Kenya.[\[xx\]](#_edn20) The Climate Act was amended in particular to guide the development and implementation of carbon markets in compliance with international obligations, to provide policy direction on carbon markets, and to develop benefit-sharing mechanisms in carbon markets.[\[xxi\]](#_edn21) The amended Climate Act now provides for the establishment of a national carbon registry in Kenya and regulates trade in carbon credits.[\[xxii\]](#_edn22) Carbon trading projects are now required to undergo mandatory environmental and social impact assessment under Kenya’s environmental laws.[\[xxiii\]](#_edn23) **CONCLUSION** ***“****Climate change is no longer some far-off problem, it is happening here, it happening now”* Barack Obama, former President, USA. Indeed India should access and evaluate the policies that have been put in place to ensure that they are more efficacious and that environmental justice is implemented. The youth, most of the time are left behind by many bureaucracies in economy building, this crisis on climate change is an opportunity to showcase our innovation towards green solutions and even employment opportunities. **ENDNOTES / REFERENCES** [\[i\]](#_ednref1) Chai Shadrack, ‘The Inception of Carbon Credits and Offsets in the Climate Action Agenda of the United Nation’ accessed 10 June 2024. [\[ii\]](#_ednref2) Mahesh Chander says, ‘Blog 201-Carbon Trading: Addressing Concerns on Why, What & How | Welcome to AESA’ (24 June 2023) accessed 10 June 2024. [\[iii\]](#_ednref3) ‘What Is Carbon Trading ? | 4 Answers from Research Papers’ accessed 10 June 2024. [\[iv\]](#_ednref4) Montgomery, W.D.”Markets in Licenses and Efficient Pollution Control Programs”.Journal of Economic Theory 5 (December 1972) :395-418 [\[v\]](#_ednref5) Air prevention and control act, 1981 [\[vi\]](#_ednref6)\[vi\] Electricity Amendment Act, 2023 [\[vii\]](#_ednref7) Bhushan C, Gopalakrishnan T. 2021. Environmental laws and climate action: A case for enacting a Climate Legislation in India [\[viii\]](#_ednref8) Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 10 (w.e.f. 3-1-1977). [\[ix\]](#_ednref9) Constitution of India, 1950 [\[x\]](#_ednref10) Kyoto Protocol, 2005 [\[xi\]](#_ednref11) Article 17, Kyoto Protocol, 2005 [\[xii\]](#_ednref12) Kyoto Protocal, 2005 [\[xiii\]](#_ednref13) Rashid Mamunur MD “Carbon Trading,” Page 4 [\[xiv\]](#_ednref14) ibid [\[xv\]](#_ednref15) Paris Agreement, 2015 [\[xvi\]](#_ednref16) Ridhima Pandey v. Union of India [\[xvii\]](#_ednref17) Re Court on its own motion v. State of Himachal Pradesh and other [\[xviii\]](#_ednref18) Gaurav Aggarwal, ‘Carbon Trading: How It Works, Importance, & More’ (*Internshala Trainings Blog*, 31 May 2023) accessed 11 June 2024. [\[xix\]](#_ednref19) ‘What Is Carbon Trading? – ESG | The Report’ accessed 11 June 2024. [\[xx\]](#_ednref20)‘Lenku Quashes “Opaque” Deals on Carbon Credits | Nation’ accessed 11 June 2024. [\[xxi\]](#_ednref21)‘Kenya’s Carbon Markets: The Goose That Lays the Gold…’ accessed 11 June 2024. [\[xxii\]](#_ednref22) Wangari Ndiragu, “Unlocking full potential of floriculture industry”,2024 [\[xxiii\]](#_ednref23) Miriri Duncan, ‘Saudi Companies Buy 2.2 Million Tonnes of Carbon Credits in Kenya Auction | Reuters’ accessed 11 June 2024. **Categories:** Articles, Environmental Law --- ### [JUDICIAL ACTISVISM IN INDIA: AN ANALYSIS](https://lawfoyer.in/judicial-actisvism-in-india-an-analysis/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author:- Devi Prasad Mishra is a law student at Lajpat Rai Law College, Sambalpur University.** **Edited by Rutvij Vyas, a Law Student at the Faculty of Law, GLS University.** **INTRODUCTION:** Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and the promotion of justice in society. Judicial activism is the procedure to evolve new principles, concepts, maxims, formulae, and relief to do justice or to open doors of court for the needy or to litigation affecting the entire society or a section of it. Although judicial activism plays a crucial role in social justice, however, there is a constant fear of judicial overreaching so it must be done judiciously ***Keywords*:** *Judicial activism, Constitution, separation of power, Supreme Court, Social justice* **ORIGIN & MEANING:** The concept of judicial activism finds its origin in the USA. Arthur Schlesinger Jr., who was an American historian and educator coined the term ‘Judicial activism’. Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and promotion of justice in society. Black’s law dictionary defines judicial activism as a way of exercising judicial power that motivates judges to apply judicial precedent in favour of new and progressive policies. V.G. Palishikar in his journal Judicial Activism as the process of law-making by judges. “*It means an active interpretation of existing legislation by a judge, made to enhance the utility of that legislation for social betterment*” Thus judicial activism is the procedure to evolve new principles, concepts, maxims, formulae, and relief to do justice or to open doors of court for the needy or to litigation affecting the entire society or a section of it. **DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA:** Judicial activism is often mixed with judicial review. However former is part of the latter in which judges participate in law-making policies. They not only uphold or strike down the law but also play their policy preferences. Traces of judicial activism can be found way before independence when Justice Mahmood delivered a dissenting judgement in Allahabad high court in 1893 and held that the precondition of a case being heard will be fulfilled when only somebody speaks. In modern times judicial activism gained momentum after a dark period of national emergency. Later on, the concept of public interest litigation introduced by Justice Bhagawati and Justice Krishna Iyer laid the foundation of judicial activism. Judicial activism in India can be discussed under three headings. - **Pre–emergency period** Since this time marks the early year of independence judiciary played a limited role. The court upholds principled and doctrinally approach. It was limited to interpreting laws and safeguarding constitutional rights. Even during that period, the land mark case of *Kesvananda Bharti vs State of Kerala* introduced the doctrine of basic structure in the Indian judiciary. - **Post–emergency period** This indicates the period of the end of the emergency. After the 44th amendment it was made harder to impose an emergency and guaranteed the right under articles 20 and 21 even during an emergency. Post emergency era set a more progressive and open-minded approach to judiciary. In the case of *Maneka Gandhi vs Union of India* of india, the apex court expanded the scope of Article 21. - **Public interest litigation to present** One of the main factors contributing expansion of judicial activism is the introduction of public interest litigation, which allows the court to offer direction for public benefit. Landmark cases such as Hussainara Khatoon, vishaka vs the state of Rajasthan, oleum gas leak show judicial activism in the way PILs. **CONSTITUTIONAL POWERS OF THE SUPREME COURT AND HIGH COURTS** The Constitution of India which the is the supreme law in the state empowers the supreme court and high courts to exercise their power to protect the rights of the citizens and provide justice. There are some key provisions that allow the court to take part in judicial activism. They are as follows. - *“Article 32: This provision empowers the supreme court to issue necessary orders, directions, prerogative writs to enforce the fundamental rights of the citizen.”* - *“Article 226 of the Constitution empowers the High Court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo warranto. These tools are essential tools for enforcing fundamental rights and ensuring justice.”* - *“Article 142 of the Constitution provides extraordinary power to the Supreme Court . It allows the court to pass suitable decree or orders for complete justice in any pending matter before it.”* **JUSTIFICATION OF JUDICIAL ACTIVISM :** There is a near collapse of responsible government when the legislature and executive fail to discharge their respective functions. This results in erosion of confidence in the Constitution and justice system. In that case, expectations do arise from the judiciary for the protection rights. According to Dr B.L. Wadehra judicial activism fills up the vacuum where there is no legislation present. Also, there are so many activators which activate judicial activism such as civil rights activists, consumer rights activists, women’s rights groups etc. According to Dr. Vandana the concept of judicial activism can be seen to reflecting from following trends, - Expansion of rights of hearing in administrative process - Excessive delegation without limitation - Expansion of judicial control over discretionary power - Promotion of open government - Passing of orders that are per se unworkable **IMPORTANCE OF JUDICIAL ACTIVISM** Judicial activism in India has played a crucial role in shaping constitutional law and upholding principles of justice. It can be summarized as follows. - **Expanding Fundamental Rights**: Judicial activism has expanded the scope of fundamental rights. For instance, in the Right to Education case, the Supreme Court interpreted the right to education as a fundamental right under Article 21A of the Constitution in *Unnikrishnan v/s Andhra Pradesh*. Similarly, in the *Naz Foundation v. Government NCT of Delhi* case, the court decriminalized homosexuality, recognizing the right to privacy and personal autonomy. - **Upholding Public Interest Litigation (PIL)**: PIL allows citizens to seek justice irrespective of locus standi. The judiciary actively encourages PIL petitions to address public grievances. Notable examples include cases related to environmental protection like *M.C. Mehta vs UOI*, child labour, and bonded labour like *Bandhua Mukti Morcha* *vs Union of India & ors* - **Promoting Social Justice**: Judicial activism has provided social justice by addressing discrimination and inequality such as in *Indra Sawhney etc v. Union of India and ors.* Case, the court upheld reservations for socially and economically backward classes. - **Protecting Human Rights**: The judiciary steps in when human rights are violated for example, in the *Vishaka and Ors. v. State of Rajasthan & Ors.* Case, the court laid down guidelines to prevent sexual harassment at workplaces which led to new legislation. **APPREHENSIONS** As every coin has two sides judicial activism has also its own flaws. As the constitution of India provides for separation of power no organ amongst the three organs of government i.e. judiciary, legislative and executive, should overreach their power and step into another’s sphere. Following are some of the fears : - Ideological fear that may not represent the popular will and go against society - Epistemic fear, which means the judges may not have expertise over the matter that they are dealing with. - Management fears, this may add a burden over the court to exercise its fundamental duty. **CONCLUSION** The role of judicial activism is of great significance in upholding constitutional rights and the rule of law. The court brings social reforms which erode discrimination and inequality by being active. By time judicial activism has gained the confidence of the people as recently in the Manipur violence case the supreme court took suo moto cognizance and intervened in the matte rof violating human rights during the violence. Lastly it may be concluded by quoting the lines of former CJI N.V. Ramana which tells the court to be mindful of Lakshman Rekha provided by the constitution. **REFERENCES** **Books** - 1. Indian Polity, M Laxmikanth , Third Reprint, MC Graw Hill 2022 - 2. Public Interest Litigation, Wadehra Dr. BL, A Handbook, Second Edition , Universal Law Publishing Co), 2009 - 3. Dimensions Of Judicial Activism In India, Dr. Vandana (Raj Publication , New Delhi), 2016 - 4. Shukla VN and singh M pal, V.N. Shukla’s Constitution of India, 13th edn, Eastern book company), 2017 - Online Articles - 1. Palishikar VG, “Judicial Activism” (2010) 8 Journal 201 - Cases Referred - 1. Kesvananda bharti vs State of Kerala - 2. Maneka Gandhi vs union - 3. Maneka Gandhi vs union of India - 4. Unnikrishnan v/s Andhra Pradesh - 5. Naz Foundation v. Government - 6. M.C. Mehta vs UOI - 7. Bandhua Mukti Morcha vs Union of India & ors - 8. Indra Sawhney etc etc v. Union of India and ors. - 9. Vishaka and Ors. v. State of Rajasthan & Ors - Statutes Referred - 1. Constitution of india, 1947 **Categories:** Articles, Constitutional Law --- ### [M/S ALPINE HOUSING DEVELOPMENT CORPORATION PVT LTD VS ASHOK S DHARIWAL AND OTHERS](https://lawfoyer.in/m-s-alpine-housing-development-corporation-pvt-ltd-vs-ashok-s-dhariwal-and-others/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author: KOWSALYA K, Student,** **GOVERNMENT LAW COLLEGE DHARMAPURI AFFILIATED TO DR. AMBEDKAR LAW UNIVERSITY CHENNAI** **Edited by: Gaurav Katiyar, Student, University of Lucknow** - **ABSTRACT** Disputes emerged between Alpine Housing Development Corporation Pvt. Ltd. and Ashok S. Dhariwal, and the parties sought arbitrator. The arbitral panel issued an ex-parte award on March 12, 1998. Dhariwal did not present any evidence to the arbitral panel. Dhariwal submitted a petition under Section 34 of the Arbitration Act. Dhariwal filed a writ appeal before the Honorable High Court of Karnataka, citing his dissatisfaction with the order rejecting his application for more papers. The Karnataka High Court granted the writ petition and overturned the ruling denying the appeal for additional documents. Dhariwal was allowed to present further materials. Alpine Housing has petitioned the Supreme Court in the current proceedings. ***Keywords* :** *Arbitral panel, Supreme Court, Ex-Parte, Section 34* - **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***# M/S Alpine Housing Development corporation pvt ltd vs Ashok S Dhariwal and others ***ii)* *Case Number***Civil Appeal NO. 73 OF 2023 ***iii)* *Judgement Date***19/01/2023 ***iv)* *Court***The Supreme Court Of India ***v)* *Quorum / Constitution of Bench***C.T. Ravikumar, M.R. Shah ***vi)* *Author / Name of Judges***M.R. Shah ***vii)* *Citation***2023 SCC Online SC 55***viii)* *Legal Provisions Involved***Section 34 in the Arbitration and Conciliation Act 1996- **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The respondents filed an application under Section 34 of the Arbitration And Conciliation Act, 1996, in Arbitration Case No. 38/1998, against the award issued by the learned arbitrators on March 12, 1998. The respondents submitted an interim application (IA No. 4 in the section 34 application) to present further evidence. At this point, it is important to remember that the decision passed by the learned arbitrators was an ex-party ruling, and no evidence was presented by the respondents herein, who later challenged the award via a section 34 application. - **FACTS OF THE CASE i) Procedural Background of the Case** - The respondents filed an application under section 34 of the Act in response to an arbitral ruling against them. The respondent submitted an interim application under Section 34 to present more evidence. At this point, it should be emphasized that the award passed by the learned arbitrators was ex-parte, and no evidence was presented by the respondents herein, who later challenged the award under section 34. - The appellant objected to the interim application to adduce evidence, claiming that it was not maintainable under the Arbitration Act of 1996. The grounds on which the respondents submitted an application to allow them to present evidence will be dealt with and examined. As a result, the court dealing with the section 34 application ruled that the amendment intended to limit the scope of judicial review under section 34 of the Act only in exceptional circumstances enumerated in the grounds urged, which relate to section 34(2)(b) of the Act, and that the applicants do not have the right to produce additional evidence. - **ii) Factual Background of the Case** Disputes emerged between Alpine Housing Development Corporation Pvt. Ltd. and Ashok S. Dhariwal, and the parties sought arbitration. The arbitral panel issued an ex-parte award on March 12, 1998. Dhariwal did not provide any evidence before the arbitral tribunal; instead, he filed a petition under Section 34 of the Arbitration Act. The tribunal’s award was for particular performance of the agreement, and liberty was granted to apply for the merger of khata. The award required Alpine Housing to apply for a khata amalgamation. However, because Alpine Housing did not file for merger, Dhariwal had to apply twice for it. The applications were, however, dismissed. During the section 34 proceedings, Dhariwal submitted an application to present supplementary papers. As the petitions for amalgamation had been refused, Dhariwal filed an application for further papers in order to “produce the final endorsement dated 17.03.2003 by which the prayer for amalgamation of khatas to plots were rejected”. Dhariwal sought to rely on the document to claim that the award was incapable of being carried out, was contrary to Indian public policy, and was therefore entitled to be set aside. - **LEGAL ISSUES RAISED** Can an applicant use evidence to establish public policy grounds in an application under section 34 of the Arbitration and Conciliation Act of 1996? - **APPELLANT’S ARGUMENTS** - The appellant’s counsel argued that the High Court made a serious error in allowing respondents to present evidence in an application under section 34 of the Act. If submitting an application under Section 34 of the Act. If an applicant who is aggrieved by the arbitral tribunal’s award is allowed to adduce evidence in an application under section 34 of the act, the object and purpose of amending section 34(2)(a) of the act, which substituted the expression ‘furnishes proof’ with the expression establish on the basis of the arbitral tribunal’s record, would be defeated. The intention and objective of altering Section 34(2)(a) of the Act is to resolve arbitration procedures as soon as possible and to avoid delays. The counsel also contended that section 34 of the Act prior to amendment Amending section 34(2)(a) shall be applicable, that the said concession is not binding because it would be against the law, and that any concession contrary to the law is not binding. - **RESPONDENT’S ARGUMENTS** - Respondent’s Advocate argued that they did not engage in the arbitration procedures due to their first challenge to the proceedings and the constitutional tribunal. The Arbitral Tribunal then proceeded with the hearing ex parte. As a result, respondents did not present any evidence to the arbitral panel. - **RELATED LEGAL PROVISIONS** - ***“Section 34 in the Arbitration And Conciliation Act, 1996*** ### ***Application for setting aside arbitral award.*** [(1)](https://indiankanoon.org/doc/1553165/)*Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).*[(2)](https://indiankanoon.org/doc/439304/)*An arbitral award may be set aside by the Court only if*[(a)](https://indiankanoon.org/doc/1831758/)*the party making the application \[establishes on the basis of the record of the arbitral tribunal that:\] \[Substituted ‘furnishes proof that’ by Act No. 33 of 2019, dated 9.8.2019.\](i)a party was under some incapacity; or(ii)the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or(iii)the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or(iv)the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or*[(v)](https://indiankanoon.org/doc/98290235/)*the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or*[(b)](https://indiankanoon.org/doc/549389/)*the Court finds that*[(i)](https://indiankanoon.org/doc/176895297/)*the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or*[(ii)](https://indiankanoon.org/doc/181124763/)*the arbitral award is in conflict with the public policy of India.”* - - **JUDGEMENT** - **RATIO DECIDENDI** - The Supreme Court ruled that Act 2019’s revision to Section 34(2)(a) represents a significant alteration. Prior to the revision to section 34(2)(a), an arbitral award could be set aside by the court if the party filing the application “furnishes proof” and the grounds outlined in sections 34(2)(a) and 34(2)(b) are met. However, if the terms “furnishes proof” and the grounds set out in sections 34(2)(a) and 34(2)(b) are satisfied after the amendment, the pre-amendment section 34(2)(a) will apply, and the appellant may also be permitted to cross-examine and provide contradictory evidence. - **CONCLUSION & COMMENTS** In an exceptional case, if it is brought to the court on matters not containing the arbitrator’s record that are relevant to the determination of the issues that arise under section 34(2)(a), the party who has challenged the award on the grounds outlined in section 34(2)(a) may be permitted to file an affidavit in the form of evidence. However, this is permitted until absolutely essential. The affidavit so discloses a specific document, and the evidence must be supplied. In that regard, the respondents have shown a strong special case that allows them to file affidavits/present further evidence. However, the appellant may also be permitted to cross-examine and/or provide contradictory evidence. - **REFERENCES** - **Important Cases Referred** - Emkay Global Financial services Limited V. Gridhar sondhi, (2018) 9 SCC 49. - Canara Nidhi Limited V. M. Shashikala, (2019) 9 SCC 462. - Gemini bay transcription private Ltd v. Intagrated sales service Limited, (2022) 1 SCC 753. - S.P. Singla construction Pvt Ltd v. State of Himachal Pradesh, (2019) 2 SCC 488 - Punjab SIDC Ltd v. K. Kansal, 2012 SCC P&H 19641. - **Important Statutes Referred** - Section 34(2) of the Arbitration and Conciliation Act, 1996. ii. Section 48 (1) of the 1996 Arbitration and Conciliation Act. iii. Section 48(2) of the 1996 Arbitration and Conciliation Act. iv. Order 14 Rule 1 Civil Procedure Code v. Section 5 Arbitration And Conciliation Act of 1996. **Categories:** Arbitration and Conciliation Law, Case Analysis --- ### [LEGAL PROVISIONS ON RAPE IN INDIAN PENAL CODE](https://lawfoyer.in/legal-provisions-on-rape-in-indian-penal-code/) **Published:** July 1, 2024 **Author:** LawFoyer **Content:** **Author: MOMINA SAEED, Student, Student, *INTERNATIONAL ISLAMIC UNIVERSITY ISLAMABAD*** **Edited By: Gaurav Katiyar, Student, University of Lucknow** ***INTRODUCTION:*** Rape is a serious violation of a person’s physical and emotional boundaries, involving sexual intercourse or other forms of sexual penetration without their consent. Historically, the definition and understanding of rape have evolved significantly, influenced by the feminist movement and changes in societal attitudes towards gender and sexuality. The concept of rape has expanded to include any gender of victim and perpetrator, and the definition of consent has become stricter, recognizing that victims may be incapacitated by drugs, alcohol, or other factors. The consequences of rape are devastating, leading to physical and psychological trauma, including post-traumatic stress disorder, depression, and other long-lasting effects. Understanding the complexities of rape and its effects is crucial for addressing this serious crime and providing support to its victims. **Keywords:** - Rape - Consent - Perpetrator - Trauma - PTSD - Depression ***DEFINITION:*** In India, rape is defined under Section 375 of the Indian Penal Code (IPC) as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age**.** ***HISTORICAL BACKGROUND:*** Rape has been recognized as a criminal act since ancient times, with early legal codes such as the Code of Hammurabi (1700 BC) and Jewish law addressing the issue. However, in ancient Greece and Rome, rape was often viewed more as a crime against the victim’s family or owner, rather than the victim themselves. The attitudes and definitions surrounding rape continued to evolve over the centuries. During the Middle Ages in Europe, rape was sometimes punished harshly, with penalties like execution or mutilation, though actual prosecutions were quite rare, especially for rapes of lower-class women or wives. Rape was often seen more as a property crime against the victim’s father or husband. The common law definition in England eventually came to define rape as unlawful intercourse with a woman over the age of 10 without her consent, though this definition shifted and expanded over time. Tragically, rape has also been used as a weapon of war throughout history, from ancient conquests to more recent conflicts like World War II, where it was often seen as a spoil of war or used to terrorize and subjugate populations. Overall, the history shows that while rape has long been recognized as a serious crime, attitudes and legal definitions have evolved significantly, often failing to adequately protect victims, especially those of lower social status or during times of war. ***COMPARISON WITH OTHER PAKISTAN:*** Rape is a serious issue in both India and Pakistan, with significant differences in the reporting and conviction rates between the two countries. According to available data, India reported 31,677 rape cases in 2021, with a rape rate per 100,000 population of 4.9 in 2019. In contrast, Pakistan does not have official data available on the number of rape cases. The crime index and safety scale for both countries are relatively similar, with India having a crime index of 44.33 and a safety scale of 55.67, while Pakistan has a crime index of 43.41 and a safety scale of 56.59. However, India has a higher reporting rate for rape, with a significant number of cases registered annually. On the other hand, Pakistan’s conviction rates for rape are not publicly available, making it difficult to compare the two countries. Overall, while both countries struggle with the issue of rape, there are significant differences in the reporting and conviction rates between India and Pakistan**.** ***KINDS OF RAPE:*** - **Statutory rape:** Sexual intercourse with a minor below the age of consent, outside of marriage. - **Marital rape:** Non-consensual sexual intercourse between a husband and wife. - **Force-only rape:** Rape where the husband uses enough force to coerce his wife into intercourse. - **Battering rape:** Rape where the wife is beaten, slapped, pushed and shoved, involving both physical and sexual violence. - **Custodial rape:** Sexual intercourse committed by a person in a position of authority, such as a police officer, doctor, or staff member of a jail or institution. - **Mass rape:** Rape committed as part of ethnic cleansing or to dishonor a community. - **Rape by family members:** Rape committed by a family member like a father, brother, grandfather or uncle. ***ESSENTIALS ELEMENTS:*** - **Penetration:** The defendant must have intentionally penetrated the vagina, anus, or mouth of the complainant with their penis. - **Lack of Consent:** The complainant must not have consented to the penetration, and the defendant must not have reasonably believed that the complainant consented. - **Intentionality:** The penetration must have been intentional. - **Age:** The complainant must be below the age of consent, which varies by jurisdiction. ***DEFENSES:*** - **Innocence:** The defendant can claim that they did not commit the alleged rape, and present evidence to support their alibi, such as witnesses, surveillance footage, or vehicle GPS data. - **Consent:** The defendant can argue that the sexual act was consensual, and that the complainant did not object at the time. However, consent is not a defense if the complainant is a minor or has a mental illness. - **Insanity:** The defendant can claim that they were suffering from a mental illness at the time of the alleged rape, which impaired their ability to understand the nature and consequences of their actions. ***LEGAL PROVISION IN INDIAN PENAL CODE:*** The legal provisions on rape cases in the Indian Penal Code (IPC) are outlined in Sections 375 and 376. - **Section 375 IPC:** **Definition of Rape:** A man is said to commit “rape” if he penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him.The definition of rape under Section 375 of the Indian Penal Code was expanded in 2013 to include various forms of sexual assault, such as penetration by penis, any object, or any part of the body into the vagina, urethra, anus, or mouth, or making another person do so without consent. **Medical Examination:** Sexual intercourse with a woman for medical purposes is not considered rape. **Sexual Intercourse with Wife:** Sexual intercourse with a wife who is above 15 years of age is not considered rape. **Punishment:** The punishment for rape includes imprisonment for a term of not less than 7 years, which may extend to imprisonment for life, and a fine. In aggravated situations, the punishment is rigorous imprisonment for a term of not less than 10 years, which may extend to imprisonment for life, and a fine. - **Section 376 IPC:** **Punishment:** The punishment for rape includes imprisonment for a term of not less than 7 years, which may extend to imprisonment for life, and a fine. **Exceptions:** The punishment is less severe if the woman is the wife of the accused and is above 18 years of age, in which case the punishment is imprisonment for a term which may extend to two years with fine or with both. - **Amendments to the IPC:** **Criminal Law (Amendment) Act, 1983:** This Act introduced new sections to the IPC, including Section 376A, which punishes sexual intercourse with a wife without her consent by a judicially separated husband. **Criminal Law (Amendment) Act, 2006:** This Act introduced changes to the IPC, including the definition of sexual assault and the punishment for such crimes. ***GUIDELINES OR RULES AGAINST RAPE:*** **Supreme Court Guidelines:** The Supreme Court has laid down the following guidelines for the trial of rape cases: - Complaints of sexual assault cases should be dealt with utmost sensitivity. - Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. - Employers must provide a Complaints Committee headed by a woman, with at least half the members being women. - The Complaints Committee should include an NGO or other organization familiar with sexual harassment. - The complaints procedure should be time-bound and maintain confidentiality. - Complainants or witnesses should not be victimized or discriminated against. **Preventive Steps:** Employers are required to take preventive steps, such as: - Expressly prohibiting sexual harassment and circulating the prohibition. - Including the prohibition in the rules, regulations, and standing orders. - Providing appropriate work conditions for women. **Reporting and Compensation:** The law mandates that no private or government hospital can charge fees for the treatment of rape victims. Victims also have the right to compensation under Section 357A of the Code of Criminal Procedure. **Prohibition of Two-Finger Test:** The law prohibits doctors from conducting the “two-finger test” during the medical examination of rape victims, as it is considered unscientific and violates the victim’s privacy. ***TRADITIONAL-BASED LAW:*** Traditional based law about rape refers to the laws that were in place before the modern era of feminist activism and legal reforms. These laws were often rooted in patriarchal societies and reflected the societal norms and values of the time. In ancient societies, rape was often viewed as a crime against the victim’s family or owner rather than the victim herself. For example, in ancient Babylon, the Code of Hammurabi dictated that if a man forces sex upon another man’s wife or a virgin woman, he should be put to death. In the United States, the traditional law defined rape as the act of a man forcing a woman to have sexual intercourse against her will. The law was based on the concept of “carnal knowledge” and required proof of force and lack of consent. The traditional law also reflected the societal norms of the time, which often viewed women as property and viewed rape as a crime against the man’s honor rather than the woman’s rights. For example, in the United States, the law did not apply to black women, and the term “rape” was often used to describe consensual sex between a black man and a white woman. The traditional law also did not recognize the concept of marital rape, and it was not until the 1970s and 1980s that laws were passed to criminalize marital rape. Overall, traditional based law about rape reflects the societal norms and values of the time, which often viewed women as property and viewed rape as a crime against the man’s honor rather than the woman’s rights. ***CASE LAWS:*** - **Mathura Rape Case (1972):** This case involved the custodial rape of a young tribal girl named Mathura by two policemen. The Supreme Court acquitted the accused, leading to widespread protests and eventually leading to amendments in the Indian rape law via The Criminal Law Amendment Act 1983 (No. 43). - **Vishakha Guidelines (1997):** The Supreme Court laid down guidelines for the prevention of sexual harassment at the workplace in the Vishakha case. The guidelines include the establishment of a Complaints Committee, the provision of a confidential procedure for filing complaints, and the prohibition of sexual harassment. - **Farooqui v State (2014):** In this case, the Delhi High Court acquitted the accused of rape, holding that a “feeble no” did not signify lack of consent. The Supreme Court refused to overturn the decision, setting a dangerous precedent for interpreting consent in rape cases. - **Ms X v Mahmood Farooqi (2014):** The Supreme Court refused to admit a Special Leave Petition (SLP) challenging the Delhi High Court’s decision in Farooqui v State, which set a precedent for interpreting consent in rape cases. The decision was criticized for introducing a higher threshold for consent where the survivor is acquainted with the accused. - **K. Chopra v Apparel Export Promotion Council (1999):** The Supreme Court upheld the dismissal of a man who was accused of sexual harassment at the workplace. The case is significant because it applied the Vishakha guidelines and upheld the dismissal of the accused. These case laws and precedents have shaped the legal framework for rape in India, including the definition of rape, the burden of proof, and the procedures for filing complaints and conducting trials. ***INTERPRETATION:*** The interpretation and explanation of rape laws in India are complex and multifaceted. Here are some key points to consider: - **Definition of Rape:** The definition of rape in the Indian Penal Code (IPC) is based on the concept of penetration, which includes any act of penetration, whether by penis, object, or body part, into the vagina, mouth, urethra, or anus of a woman without her consent. - **Consent:** Consent is a crucial element in determining whether a sexual act is considered rape. The Supreme Court has held that consent must be given freely and voluntarily, without coercion, force, or fraud. - **Burden of Proof:** The burden of proof in rape cases is on the accused to prove that the sexual act was consensual. If the accused fails to prove consent, the court will presume that the sexual act was non-consensual. - **Punishment:** The punishment for rape is severe, with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life, and a fine. - **Gender Stereotyping:** The interpretation of rape cases in India has been criticized for perpetuating gender stereotypes. For example, the Delhi High Court’s decision in Farooqui v State, which held that a “feeble no” did not signify lack of consent, has been criticized for introducing a higher threshold for consent where the survivor is acquainted with the accused. - **Male Rape:** The definition of rape in the IPC only applies to women, and there is no specific law to protect male survivors of sexual assault. - **Investigation and Prosecution:** The investigation and prosecution of rape cases in India have been criticized for being inadequate and biased. The police often fail to collect evidence, and the prosecution often relies on weak evidence and witnesses. - **Prevention:** The prevention of rape requires a multifaceted approach that includes education, awareness, and legal reforms. The Supreme Court has emphasized the need for a change in societal attitudes towards women and the importance of protecting their rights. - **Legal Reforms:** The legal framework for rape in India has undergone several changes over the years. The 2013 amendment to the IPC expanded the definition of rape to include any act of penetration, whether by penis, object, or body part, into the vagina, mouth, urethra, or anus of a woman without her consent. - **Challenges:** The interpretation and explanation of rape laws in India are challenging due to the complex and multifaceted nature of the issue. The legal framework is constantly evolving, and there is a need for ongoing education, awareness, and legal reforms to ensure that the rights of survivors are protected. ***MAXIMS:*** - ***Nemo dat quod non habet:*** No one can give what they do not have. This maxim emphasizes the importance of ownership and the need for a person to have a valid title to property before they can transfer it to someone else. - ***Aut non servare aut servare:*** Either not to preserve or to preserve. This maxim highlights the importance of preserving evidence and ensuring that it is not tampered with or destroyed. - ***Nemo tenetur prodere seipsum:*** No one is bound to betray themselves. This maxim emphasizes the right of individuals to refuse to incriminate themselves and the importance of protecting their own interests. - ***Nemo est supra legem:*** No one is above the law. This maxim emphasizes the importance of equality before the law and the need for everyone to be held accountable for their actions. - ***Veritas odium parit:*** Truth begets hatred. This maxim highlights the challenges that can arise when seeking truth and the potential for opposition and hostility that can come with it. ***Amendments:*** - ***Criminal Law Amendment Act 2006:*** This act aimed to address the inadequacies in the existing laws and provide a more comprehensive definition of sexual assault. It introduced the concept of “sexual assault” and expanded the scope of the offense to include various forms of sexual violence. - ***Bharatiya Nyaya Sanhita (BNS):*** The BNS, which replaced the Indian Penal Code (IPC), includes a dedicated chapter on “Offences Against Women and Children.” It defines rape as an act of sexual assault against a woman and criminalises the disclosure of the identity of the victim. Other added offenses include sexual harassment, voyeurism, stalking, and criminal intimidation. - ***Section 69 of BNS:*** This section criminalises rape on false promise of marriage. However, there have been concerns about its misuse and potential for false accusations. Critics argue that the law lacks checks and balances to protect innocent individuals from being subjected to lengthy trials without fault. - ***Punishment for Rape:*** Section 376 of the IPC provides for imprisonment, which shall not be less than seven years but can extend up to life imprisonment or even death in extreme cases. The punishment is intended to be severe to deter such heinous crimes. ***CONCLUSION:*** The conclusions on rape from the provided sources are multifaceted and emphasize the need for a comprehensive approach to address this complex issue. Firstly, it is essential to examine the factors that promote sexual violence and develop a strategy that includes various projects to render people less vulnerable, education and re-education of children and adults to combat sexism, and the criminal justice system must bear the burden of regulating rape. Additionally, research on campus rape highlights the significance of known perpetrators, lack of faith in authorities, and the role of money and alcohol use in perpetuating this crime. Furthermore, the National Crime Victimization Survey (NCVS) is subject to underestimation of rape and sexual assault due to various errors and potential errors in the survey. Finally, the mental health consequences of rape are severe and long-lasting, including post-traumatic stress disorder (PTSD), depression, anxiety, and suicidal thoughts, emphasizing the need for effective interventions to address these consequences. ***REFERENCES:*** [https://senate.gov.pk/uploads/documents/1618295043\_506.pdf](https://senate.gov.pk/uploads/documents/1618295043_506.pdf) **Categories:** Articles --- ### [India’s Extradition Policy: Legal challenges and Developments](https://lawfoyer.in/indias-extradition-policy-legal-challenges-and-developments/) **Published:** June 30, 2024 **Author:** LawFoyer **Content:** **Author- I Sharan, Christ deemed to be University, Bangalore** **Edited by- Masooma Naqvi, Amity University, Lucknow** 1. **INTRODUCTION** Extradition means the process of handing over a fugitive criminal to the requesting state for the offences they have committed in that Country. Extradition is based on the bilateral relationship between two countries. The countries enter into a treaty or agreement for the extradition of criminals. Extradition process is initiated by the requesting state through its diplomat or the representative of the other state in the country. Countries try their best to maintain good relations with other nations in order to extradite fugitives back to their nation. Extradition can be affected by other factors like human rights, diplomacy etc… The nations sometimes try to maintain their reputation and refuse to hand out their nationals to other countries. This article tries to analyse in detail what extradition means, the extradition process in India, the nations with which India has extradition agreements and treaties, the challenges faced by the Government in the smooth functioning of these procedures and the developments required in this field. The article also discusses how India faces issues in extraditing fugitives to India due to human rights issues. The article discusses how bilateral agreements, clauses of agreements and delays in investigation serve as the main challenges for extraditing a fugitive to India. After analysing these aspects the article concludes by stating how India needs to improve its stance in relation to extradition treaties and agreements as the number of fugitives who have being returned to India are comparatively less. ***Keywords* *(Minimum 5)*:** *Extradition, treaty, Bilateral relationship, External Affairs, Foreign state.* 1. **Meaning, Definition & Explanation** The Black’s Law Dictionary explains extradition as *“The surrender by one state to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender.”[**\[1\]**](#_ftn1)* The Extradition Act 1962 explains the extradition treaty as a treaty signed by India with a foreign nation relating to the extradition of fugitive criminals. 2. **Types / Kinds** There are two types of extradition policies. A nation can either have an extradition treaty or an agreement with other countries. A treaty is binding, unlike an agreement. A treaty creates a legal obligation on the other party while an agreement does not legally bind the other party to perform their duties and responsibilities. 3. **Comparison with other Countries** India as a developing country has an exceptional number of extradition treaties with foreign nations. India has extradition treaties with 48 world nations. They are Australia, Azerbaijan, Afghanistan, Bahrain, Bangladesh, Belarus, Belgium, Bhutan, Brazil, Bulgaria, Canada, Chile, Egypt, France, Germany, Hong Kong, Indonesia, Iran, Israel, Kuwait, Lithuania, Malaysia, Malawi, Mauritius, Mexico, Mongolia, Nepal, Netherlands, Oman, Philippines, Poland, Portugal, Russia, Saudi Arabia, South Africa, South Korea, Spain, Switzerland, Tajikistan, Thailand, Tunisia, Turkey, UAE, UK, Ukraine, USA, Uzbekistan, Vietnam. India also has extradition treaties with 12 world nations like Antigua & Barbuda, Armenia, Croatia, Fiji, Italy, Papua New Guinea, Peru, Singapore, Sri Lanka, Sweden, Tanzania and New Zealand.[\[2\]](#_ftn2) 4. **Legal Provisions and Procedures to extradite a person under the Extradition Act, 1962** The Extradition Act of 1962 governs the procedure for the extradition of a fugitive offender. Consequently, the Diplomat of a Foreign State or its State Government shall request the Central Government through its International Representative in that State or may make any other contact which suits the requirements of both parties. After the request is made, the Central Government shall examine it. If it finds the request fit, the Central Government shall issue an order to the Magistrate having jurisdiction to inquire into the case under his authority. The Magistrate on receiving an order from the Central Government, shall issue a warrant for the arrest of the fugitive. When the fugitive appears or is produced before the Court, the Magistrate shall also inquire into the case and shall have power and quantity of jurisdiction to inquire into the case as it is to be heard in the Sessions or High Court. The magistrate shall without prejudice look into the matter and the evidence produced by the requesting State and the fugitive criminal. If the magistrate believes that a prima facie case is not made in support of the requesting foreign state, he shall discharge the fugitive criminal. If the magistrate believes that the case is made in support of the requesting foreign state, he shall commit the fugitive to prison and await the orders of the Central Government.[\[3\]](#_ftn3) The Central Government after receiving the report of the magistrate, thinks that the fugitive is to be surrendered to the foreign state, it shall issue a warrant for the custody of the criminal and for his delivery at a place and to a person as mentioned in the warrant. [\[4\]](#_ftn4) To request the surrender and return of convicted persons to India from foreign states, the Central Government shall request the diplomatic representative of the State or to the Government of that State through the diplomatic representative of India.[\[5\]](#_ftn5) 5. **Challenges** - **Clauses of the agreements:** The agreements entered into by India with other nations often become a challenge in the process of extradition for India. The old treaties which India had with Chile, Netherlands, Chile and Switzerland were list-based which means that a person can be surrendered for the offences mentioned in this list. Later on, the dual criminalisation approach was followed, according to which a fugitive criminal would be surrendered if the offence committed is a crime in both countries. Dual criminality is most convenient as the Nations are not to renegotiate their lists of crimes as a new offence emerges. However, dual criminality has its own disadvantages as India’s social and cultural practices are different from other countries. For example, a person who has taken refuge in another nation cannot be brought to trial for offences relating to dowry harassment. Extraditions are not provided to persons accused of political crimes, where the death penalty might be imposed or where there are chances of double jeopardy. Challenges to extradition can be raised even outside the treaty terms. These challenges are mostly related to human rights. In Soering v United Kingdom, the European Court of Human Rights gave a landmark judgement, equating poor prison conditions to torture and inhuman or degrading treatment. Many extradition requests of India have been rejected because the prisons in India are in poor condition. [**\[6\]**](#_ftn6) - **Delay in investigation and related procedures:** To initiate an extradition process, a request is to be sent through the diplomats. The reports regarding the investigation conducted by the State/Central Government, translation if required along with the charges filed, witness testimonies, arrest warrants and other documents are sent to the foreign state. There are chances of fabrication of documents, delays in investigation, and incorrect format of affidavit which can affect the process of extradition. [\[7\]](#_ftn7) - **Diplomacy and bilateral relations:** Extradition also depends on the relationship India maintains with other nations. When a request is made for extradition, the foreign state is supposed to look into it and take the necessary procedures required and, also appear on behalf of the Indian government in the Court. If there is no good relationship between the nations, they will not put enough effort to look into the matter, a consequence of which the case will remain pending. [\[8\]](#_ftn8) This shows how important it is for a nation to maintain good relations with other nations. 6. **Developments:** India has come a long way since extradition was introduced in India by the British in 1880. India, which followed the list-based approach of the extradition treaty has now started following the dual criminality approach of the extradition treaty which is much more convenient and takes into consideration a large number of offences. India has also tried to maintain good relationships with foreign states and has great credibility among other nations. This would serve as leverage for India to get extradition procedures done in a short period. India is also trying to create extradition treaties with many more nations. **7.CONCLUSION & COMMENTS** India, though a respected and highly credible nation faces a lot of issues in bringing back the fugitive criminals who have escaped trial from India. India has faced a lot of criticism regarding the poor condition of prisons, custodial deaths and tortures; which have been a great obstacle in getting back fugitives back to India. India has a weak extradition system. It has to strengthen its relationship with foreign states and create extradition treaties which help the government to bring back fugitive criminals. [\[1\]](#_ftnref1) BLACK’S LAW DICTIONARY Page 689 ( accessed on 12th June 2024) [\[2\]](#_ftnref2) (Accessed on 12th June 2024) [\[3\]](#_ftnref3) Extradition Act, 1962 § 7 [\[4\]](#_ftnref4) Extradition Act, 1962 § 8 [\[5\]](#_ftnref5) Extradition Act, 1962 § 11 [\[6\]](#_ftnref6) Aarshi Tirkey, “India’s Challenges in Extraditing Fugitives from Foreign Countries”, Issue Brief No. 270, November 2018, Observer Research Foundation. [\[7\]](#_ftnref7) Aarshi Tirkey, “India’s Challenges in Extraditing Fugitives from Foreign Countries”, Issue Brief No. 270, November 2018, Observer Research Foundation. [\[8\]](#_ftnref8) Aarshi Tirkey, “India’s Challenges in Extraditing Fugitives from Foreign Countries”, Issue Brief No. 270, November 2018, Observer Research Foundation. **8. REFERENCES** 1. 1. 2. Extradition Act, 1962 3. Aarshi Tirkey, “India’s Challenges in Extraditing Fugitives from Foreign Countries”, Issue Brief No. 270, November 2018, Observer Research Foundation. 1. 2. 3. BLACK’S LAW DICTIONARY [https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law Dictionery.pdf#pagemode=thumbs](https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law%20Dictionery.pdf#pagemode=thumbs) **Categories:** Articles --- ### [PRASHANT KUMAR SAHOO V. CHARULATA SAHU, 2023 SCC ONLINE SC 36](https://lawfoyer.in/prashant-kumar-sahoo-v-charulata-sahu-2023-scc-online-sc-36/) **Published:** July 1, 2024 **Author:** LawFoyer **Content:** **Author: Riya Singh, Law student at Amity Law school, Amity University Lucknow** **Edited by: Sushmana Pandey Law student at Amity University Lucknow** **ABSTRACT / HEADNOTE** In a succinct yet thorough analysis, this document aims to simplify the essential points addressed within the Supreme Court’s recent 68-page judgment related to the legal validity of including daughters in the right to share in the property under section 6 of the Hindu Succession Act. The petition was filed by Charulata Sahu (Original plaintiff) d/o of the Late Shree Kumar Sahoo. This case involves a petition filed before the Supreme Court of India under section 6 of the Hindu Succession Act,1956 seeking equal rights of a daughter in the ancestral property of the father demanding a 1/3rd share in the properties. Also seeing the sustainability of cross-appeal and challenging the settlement agreement. However, the SC in its final judgement held that daughters have the right to share equal to sons in the ancestral as well as the self-acquired property under the amendment of the 2005 Act. ***Keywords*:** Ancestral property, Cross-appeal, Supreme Court of India, Settlement agreement, Amendment of 2005. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name******Prashant Kumar Sahoo vs. Charulata Sahu, 2023 SCC online SC 36[\[1\]](#_ftn1)*** ***ii)* *Case Number******C.A NO. – 002913-002915/2018*** ***iii)* *Judgement Date******March 29, 2023*** ***iv)* *Court******The Supreme Court of India*** ***v)* *Quorum / Constitution of Bench******Two*** ***vi)* *Author / Name of Judges******Justice A.S. BOPANNA and Justice J.B. Pardiwala*** ***vii)* *Citation******2023 SCC online SC 36******viii)* *Legal Provisions Involved******“Hindu Succession Act Amendment Act 2005,”******“Section 6 Hindu Succession Act 1956.”*** ***“Order XXIII, Rule 3 under the Code of Civil Procedure, 1908.”*** ***“Order XLI, Rule 22, and Order XLIII, Rule 1-A (2) of the CPC.”*** **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Legal case regarding Section 6 of Hindu Succession Act, 1956 and Partition suit. Supreme Court’s analysis of cross-appeal sustainability and settlement agreements’ viability. Plaintiff Charulata Sahu suing defendants Prafulla Sahoo and Santilata for ancestral property share. Interpretation of Hindu Succession Act, 1956 in the context of partition suit examined in the case. Amendment to the Hindu Succession Act in 2005 was considered in the legal proceedings. Petition filed in 1980 for equal share in ancestral properties under the Hindu Succession Act. According to the petition, the case delves around the partition of ancestral properties between one son and two daughters for claiming a 1/3rd share equally. However, defendant no.1 and defendant no. 2 in the absence of the plaintiff came into a settlement agreement and defendant no .2 (daughter) was ready to relinquish her right to property. **FACTS OF THE CASE** This case concerns siblings, the plaintiff and defendant, who are the children of the Late Shree Kumar Sahoo. Mr. Sahoo possessed ancestral property and the daughters (the original plaintiff(s)) are seeking an equal share in the properties. In 1980, Charulata Sahu (the plaintiff) filed a suit for partition of property, claiming 1/3rd property share. But defendant no.1 and defendant no. 2 came to a settlement agreement without the written consent of the plaintiff which was later overturned by the cross-appeal by the plaintiff. During the pendency of the suit, the amendment of 2005 in the Hindu Succession Act came into force, granting daughters equal inheritors rights. **LEGAL ISSUES RAISED** - Whether the settlement deed was valid or not? - Whether the benefit from the amendment of 2005 should be provided to the daughters? - Whether the daughters authorized to 1/3rd part in both the properties i.e. the ancestral and self-acquired **PETITIONER/ APPELLANT’S ARGUMENTS** - The counsels for Petitioner / Appellant submitted that the properties in the schedule ‘J’ were self-acquired properties of Late Shree Kumar Sahoo. According to the counsels, all the properties devolved to the plaintiff and defendant are ancestral properties. - applying the 2005 amendment retroactively to property transactions between 1965 and 2005 could cause significant disruption (desolation). - The counsel further submitted that as per section 6 of the Act 1956, no disposition or rupture including the partition of property which took place before 2004 shall not be given validation of the 2005 amendment. - The counsel also contended that the cross-appeal is maintainable under Order XLI Rule 22 of the CPC on the ground of challenging the compromise and should be considered the same as the first appeal. - The learned Senior Counsel states that there being no merit in the appeals the same may be dismissed and the shares of the parties be determined under the 2005 Amendment. - The Counsel further supports his arguments that the settlement agreement between both defendants was lawful, he relied on the following previous decision of the courts: - *“Bai Chanchal and Ors v. Syed Jalaluddin and others, 1970.”* - *“Byram Pestonji Gariwala v. Union Bank of India, 1992.”* - *“D.S Lakshmaiah and Another v. L. Bal Subramanyam and Another, 2003.”* - *“Jineshwar Das (dead) by LR.s. and others v. Jagrani (Smt) and Another, 2003”* - *“Pushpa Devi Bhagat (Dead) through LR. Sadhna Rai (Smt) v. Rajender Singh and Others, 2006.”* **RESPONDENT’S ARGUMENTS** - The counsels for Respondent submitted that there is no error of law made by the High Court in its judgment. Also, she mentioned that as per Vineeta Sharma v. Rakesh Sharma,2020, the plaintiff has the right to the 1/3rd share in her father’s properties. - The counsel further submitted that the amendment of 2005 to section 6 of the Hindu Succession Act, 1956, and the verdict given in Vineeta Sharma’s case, the daughter has equal rights in the ancestral property. The plaintiff should get a large share of the property, the order needs modification. - The counsel further states that the plaintiff and defendant are equally entitled to 1/3rd share in both self-acquired and ancestral properties of their father Late Shree Kumar Sahoo. She elucidates that alienation before 20.12.2004 is allowed, but if not necessary, it goes to the co-parcener. The trial court decides that defendant No. 1 owns the sold property. Sales after the suit are affected by the pending litigation. - The counsel further contended that of 4,408 acres, 3.762 acres are available for division. Also, the property in *schedules C, D, E, and F* are available for division. - The counsel further submitted that in the settlement between defendant No. 1 and defendant No. 2, the plaintiff was never involved in the agreement. No notice was issued to her, nor did she sign the agreement or give consent to any compromise. Regarding the disbursement of the receivership amount, the plaintiff is 84 years of age, has filled multiple interim applications (IA), and has no source of income or medical expenses. - The counsel submitted that defendant No. 2 must be removed as the receiver and the plaintiff should be assigned as the receiver of the properties. **RELATED LEGAL PROVISIONS** - *“Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act 2005.”[**\[2\]**](#_ftn2)* - *“Order XXIII, Rule 3 of the Code of Civil Procedure,1908(concerning settlement agreements).”[**\[3\]**](#_ftn3)* - *“Order XLI, Rule 22 and Order XLIII, Rule 1-A (2) of the CPC (concerning cross-appeals*)”. [\[4\]](#_ftn4) **JUDGEMENT (RATIO DECIDENDI)** Supreme Court changed the settlement agreement based on the Vineeta Sharma vs Rakesh Sharma case, 2020. Plaintiff and defendant no. 2 get 1/3 share of father’s properties under the Hindu Succession Act. Includes ancestral and self-acquired properties of Late Shree Kumar Sahoo **CONCLUSION & COMMENTS** Honourable Supreme Court of India has held that – - The SC of India in its final verdict states that Daughters get 1/3 share under the Hindu Succession Act, 2005. - Settlement agreement was invalid as it was held without the consent of the plaintiff under the Code of Civil Procedure. - SC decision: Defendant 1 and Defendant 2 settlement is invalid. - Daughters are entitled to 1/3 share of both the properties i.e. ancestral as well as self-acquired under the Hindu Succession Act, 2005. - Defendant 1 and Defendant 2 settlement agreement is void under CPC rules. **REFERENCES** **Important Cases Referred** - - *“Vineeta Sharma vs. Rakesh Sharma, 2020[**\[5\]**](#_ftn5).”* - *“Bai Chanchal and others v. Syed Jalaluddin and others, 1970[**\[6\]**](#_ftn6).”* - *“Byram Pestonji Gariwala v. Union Bank of India, 1992[**\[7\]**](#_ftn7).”* - *“D.S Lakshmaiah and Another v. L. Bal Subramanyam and Another, 2003.”[**\[8\]**](#_ftn8)* - *“Jineshwar Das (dead) by LR.s. and others v. Jagrani (Smt) and Another, 2003[**\[9\]**](#_ftn9).”* - *“Pushpa Devi Bhagat (Dead) through LR. Sadhna Rai (Smt) v. Rajender Singh and Others, 2006.[**\[10\]**](#_ftn10)”* **Important Statutes Referred** - Code of Civil Procedure,1980 - Hindu Succession Act,1956 - Hindu Succession (Amendment) Act,2005 [\[1\]](#_ftnref1) (2023) SCC 36 [\[2\]](#_ftnref2) PK Das, *Hindu Succession* (Universal Law Publishing). [\[3\]](#_ftnref3) CK Thakker and MC Thakker, *Code of Civil Procedure, 1908* (2014). [\[4\]](#_ftnref4) Thakker CK and Thakker MC, *Code of Civil Procedure, 1908* (2014) [\[5\]](#_ftnref5) Reported in 2020 SCC [\[6\]](#_ftnref6) Reported in 1970 3 SCC 124 at para 8. [\[7\]](#_ftnref7) Reported in 1992, 1 SCC 31 at para 38-41. [\[8\]](#_ftnref8) Reported in 2003, 10 SCC 310 para at 18. [\[9\]](#_ftnref9) Reported in 2003, 11 SCC 372 at para 7-8. [\[10\]](#_ftnref10) Reported in 2006, 5 SCC 566 at para 18,19,23-25. **Categories:** Case Analysis, Civil Law Cases, Family Law Cases --- ### [Fast Track Arbitration in India](https://lawfoyer.in/fast-track-arbitration-in-india/) **Published:** July 1, 2024 **Author:** LawFoyer **Content:** **Author: Karan Pratap Singh, University Five Year Law College, University of Rajasthan** ## Introduction The growing importance of arbitration in India has led to a need for expedited arbitration proceedings to resolve disputes efficiently.\[1\] Fast track arbitration under Section 29B of the Arbitration and Conciliation Act, 1996 (the “Act”) is a key development in this regard, but it has scope for improvement.\[2\] Fast track arbitration is a streamlined process where parties agree to resolve their dispute within a fixed time frame, usually 6 months, with a sole arbitrator and primarily through written submissions.\[3\] ## Legal Framework for Fast Track Arbitration in India Section 29B was introduced by the Arbitration and Conciliation (Amendment) Act, 2015 (the “2015 Amendment”) and allows parties to opt for fast track arbitration before the constitution of the arbitral tribunal.\[4\] The provision mandates a sole arbitrator, no oral hearings unless requested by parties or deemed necessary by the tribunal, and an award within 6 months.\[5\] This expedited timeline can be extended by the court only in exceptional circumstances.\[6\] The Supreme Court in Board of Control for Cricket in India v. Kochi Cricket Private Limited (2018) held that Section 29B applies only to arbitrations commenced after the 2015 Amendment came into force on October 23, 2015.\[7\] ## Institutional Expedited Procedure Rules in India Leading arbitral institutions in India have also incorporated expedited procedure rules.\[8\] The Indian Council of Arbitration provides for fast track arbitration in Rule 44 of its Rules of Domestic Commercial Arbitration, where parties can request the tribunal to decide the case within 3-6 months based on written pleadings.\[9\] Similarly, the Mumbai Centre for International Arbitration has introduced expedited arbitration rules with strict timelines and limited oral hearings.\[10\] ## Comparative Analysis with Other Jurisdictions Compared to other jurisdictions, India’s fast track arbitration regime has some unique features and challenges.\[11\] The International Chamber of Commerce (ICC) Expedited Procedure Rules 2017 automatically apply to disputes below US$ 2 million with an opt-out provision, while the Singapore International Arbitration Centre (SIAC) Expedited Procedure has a higher monetary threshold of S$ 6 million and allows summary reasoning in the award.\[12\] The Hong Kong International Arbitration Centre (HKIAC) and the Stockholm Chamber of Commerce (SCC) also have well-established expedited procedures.\[13\] ## Suitability and Challenges of Fast Track Arbitration Fast track arbitration is particularly suitable for low value and less complex disputes that require urgent relief.\[14\] However, it raises procedural fairness concerns regarding due process, equal treatment of parties, and assessing credibility without oral hearings.\[15\] Enforceability challenges may also arise if the expedited process is seen as compromising on natural justice principles.\[16\] Parties should carefully consider these factors and adopt best practices such as comprehensive written submissions and using technology for virtual hearings.\[17\] ## Scope for Legislative Reform in India There is scope for legislative reform to optimize the potential of fast track arbitration in India.\[18\] Introducing a monetary threshold for automatic application, expanding availability beyond the pre-constitution stage, allowing reasoned awards, and clarifying the interplay with expedited enforcement under the 2015 Amendment are some suggestions.\[19\] The Law Commission of India in its 246th Report recommended a 6-month time limit for fast track arbitrations, which was incorporated in the 2015 Amendment.\[20\] ## Role of Arbitral Institutions in Promoting Fast Track Arbitration Promoting institutional expedited procedures is key to the success of fast track arbitration in India.\[21\] Arbitral institutions can play a vital role in administering expedited cases, appointing experienced arbitrators, and ensuring quality and efficiency.\[22\] The 2019 Amendment to the Act recognized the importance of institutional arbitration by establishing the Arbitration Council of India to grade arbitral institutions and accredit arbitrators.\[23\] ## Balancing Efficiency and Fairness in Fast Track Arbitration Fast track arbitration is a step in the right direction to address the problem of delays and high costs in arbitration.\[24\] It offers a speedy and cost-effective alternative to traditional arbitration, especially for disputes that require quick resolution.\[25\] However, further legislative refinement and institutional support are needed to balance efficiency with due process and to optimize its potential in the Indian context.\[26\] ## Conclusion A fortiori, fast track arbitration is a welcome development in India’s evolving arbitration landscape.\[27\] It aligns with the government’s efforts to promote India as a hub for international arbitration and to improve its ranking in the Ease of Doing Business index.\[28\] As more parties opt for expedited proceedings and more cases are decided under this mechanism, fast track arbitration is likely to become a mainstream dispute resolution option in India.\[29\] However, it is important to strike a balance between speed and fairness, and to ensure that the quality of justice is not compromised in the pursuit of efficiency.\[30\] ## References: \[1\] Nishith Desai Associates, ‘International Commercial Arbitration: Law and Recent Developments in India’ (2022) \[2\] Arbitration and Conciliation Act 1996, s 29B \[3\] Anubhav Pandey, ‘Fast Track Arbitrtaion’ (iPleaders, 18 March 2024) \[4\] Arbitration and Conciliation (Amendment) Act 2015, s 15 \[5\] Arbitration and Conciliation Act 1996, s 29B(2)-(4) \[6\] Arbitration and Conciliation Act 1996, s 29B(4) proviso \[7\] Board of Control for Cricket in India v Kochi Cricket Private Limited (2018) 6 SCC 287 \[8\] Bhavana Sunder, ‘Expedited Procedures in Arbitral Institutions: Emerging Trends in India and Abroad’ (2021) 6(1) Indian Journal of Arbitration Law 84 \[9\] Indian Council of Arbitration, ‘Rules of Domestic Commercial Arbitration’ (2016) r 44 \[10\] Mumbai Centre for International Arbitration, ‘Expedited Arbitration Rules’ (2016) \[11\] Gunawan Widjaja, ‘Fast Track Arbitration: Comparative Analysis’ (2019) 472 Advances in Social Science, Education and Humanities Research 43 \[12\] International Chamber of Commerce, ‘Arbitration Rules’ (2017) app VI; Singapore International Arbitration Centre, ‘Arbitration Rules’ (2016) r 5 \[13\] Hong Kong International Arbitration Centre, ‘Administered Arbitration Rules’ (2018) art 42; Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (2017) art 39 \[14\] David JA Cairns, Florencia Villaggi, ‘Expedited Arbitration: Reducing Time and Cost Without Sacrificing Due Process’ (2019) 5 Indonesian Journal of International & Comparative Law 625 \[15\] Irene Welser, Giovanni De Berti, ‘Fast Track Arbitration: Just fast or something different?’ (2019) Austrian Yearbook on International Arbitration 259 \[16\] Moin Ghani, ‘The Pitfalls of Fast Track Arbitration’ (Kluwer Arbitration Blog, 14 September 2016) \[17\] Sue Hyun Lim, Lars Markert, ‘Expedited Procedure Under the 2017 ICC Rules – New Options for Resolving Disputes’ (2018) 18(1) Revista Brasileira de Arbitragem 59 \[18\] Rishi Shroff, ‘Fast Track Arbitrations in India: The Road Ahead’ (Kluwer Arbitration Blog, 12 January 2022) \[19\] Binsy Susan, Aashna Sheth, ‘Expedited Procedures in Indian Arbitration Law: A Race to the Finish Line?’ (Nishith Desai Associates, 10 March 2021) \[20\] Law Commission of India, ‘Amendments to the Arbitration and Conciliation Act 1996’ (Law Com No 246, 2014) para 63 \[21\] Pratyush Panjwani, Harshad Pathak, ‘Institutional Arbitration in India: A Work in Progress?’ (2020) 11(2) Journal of International Dispute Settlement 252 \[22\] Ekta Nair, ‘Role of Arbitral Institutions in Promoting Arbitration in India’ (2020) 33(2) Arbitration International 331 \[23\] Arbitration and Conciliation (Amendment) Act 2019, ss 10-11 \[24\] Ajay Thomas, ‘Making a Case for Fast Track Arbitrations in India’ (2017) 3 Indian Journal of Arbitration Law 1 \[25\] Hazel Genn, ‘What is Civil Justice For? Reform, ADR and Access to Justice’ (2012) 24(1) Yale Journal of Law & the Humanities 397 \[26\] Sachin Mandlik, Vanita Bhargava, ‘The Case for Expedited Arbitrations in India’ (Kluwer Arbitration Blog, 10 August 2020) \[27\] Nishith Desai Associates, ‘Arbitration in India: The Impact of the 2015 and 2019 Amendments’ (2020) \[28\] Ministry of Law and Justice, ‘Initiatives to Promote Arbitration in India’ (Press Information Bureau, 6 February 2020) \[29\] Kshama A Loya, Vyapak Desai, ‘Changing Landscape of Arbitration in India’ (2019) 36(4) Journal of International Arbitration 493 \[30\] Amelia Keene, ‘Due Process Paranoia in International Arbitration: Balancing Efficiency and Enforceability’ (2020) 36(1) Arbitration International 111 **Categories:** ADR Law, Arbitration Law, Articles --- ### [Bishwanath Prasad And Others vs Dwarka Prasad (Dead) And Others on 30 October, 1973](https://lawfoyer.in/bishwanath-prasad-and-others-vs-dwarka-prasad-dead-and-others-on-30-october-1973/) **Published:** July 1, 2024 **Author:** LawFoyer **Content:** **Author**: **Karan Pratap Singh, University Five Year Law College, University of Rajasthan** ## A) ABSTRACT / HEADNOTE The Supreme Court of India, in this partition suit, upheld the concurrent findings of the trial court and the High Court which relied on admissions made by the plaintiffs and their father (8th defendant) in an earlier suit to hold that certain disputed properties belonged exclusively to the first defendant and not to the joint family. The Court held that admissions by a party are substantive evidence under Section 21 of the Indian Evidence Act, 1872 and can be relied upon irrespective of whether the maker has appeared as a witness or has been confronted with the same. The Court distinguished party admissions from prior inconsistent statements used to impeach a witness’s credibility under Section 145 of the Evidence Act. The appeal was accordingly dismissed.\[1\] **Keywords:** Partition suit, Admissions, Substantive evidence, Prior inconsistent statements, Joint family property, Exclusive property, Indian Evidence Act ## B) CASE DETAILS iii) Judgement Date: 30 October, 1973 vii) Citation: 1974 AIR 117, 1974 SCR (2) 124, 1974 SCC (1) 78 viii) Legal Provisions Involved: Sections 17, 21 and 145 of the Indian Evidence Act, 1872 ## C) INTRODUCTION AND BACKGROUND OF JUDGEMENT This appeal emanated from a partition suit where the plaintiffs claimed that certain properties were joint family properties liable to partition. The first defendant disputed the plaintiffs’ claim and asserted that some of the properties, including three properties covered by four usufructuary mortgage deeds and a shop room, belonged to him exclusively in his own right and not to the joint family. The Trial Court and the High Court concurrently accepted the first defendant’s contention by placing reliance on certain admissions made by the plaintiffs and their father (8th defendant) in their pleadings and depositions in an earlier suit.\[2\] ## D) FACTS OF THE CASE The plaintiffs instituted a partition suit in respect of certain properties claiming them to be joint family properties that were liable to be partitioned among the family members. The first defendant contested the suit asserting that some of the properties, particularly three items covered by four usufructuary mortgage deeds (Exhibits B1 to B4) as well as a shop room situated in the north-west corner of Plot No. 1238, belonged to him exclusively in his individual capacity and did not constitute joint family properties. To substantiate his claim, the first defendant relied on admissions made by the plaintiffs and their father (who was impleaded as the 8th defendant) in an earlier title suit being Title Suit No. 61 of 1945. In that suit, the present plaintiffs and their father (who was the first defendant in that suit) had filed a joint written statement wherein they had admitted the first defendant’s exclusive right over the presently disputed items of property. Similar admissions were made by the present first plaintiff and his father (8th defendant) in their depositions in that earlier suit.\[3\] ## E) LEGAL ISSUES RAISED i. Whether the lower courts were justified in relying on admissions made by the plaintiffs and their father in an earlier suit to determine the nature of the disputed properties? ii. Whether the disputed shop room and other properties were joint family properties subject to partition or belonged exclusively to the first defendant? iii. Whether party admissions can be relied upon even if the maker of the admissions has not been confronted with the same in evidence? ## F) PETITIONER/ APPELLANT’S ARGUMENTS i. The plaintiffs (appellants) contended that the lower courts erred in placing reliance on their admissions made in the earlier Title Suit No. 61 of 1945 as the first defendant had not pleaded or raised any alternative case based on these admissions. They argued that the first defendant’s case in his written statement was that he was the exclusive owner of the disputed properties as the heir of his father Narain Sah and not on the basis of any admissions.\[4\] ii. It was further argued that the impugned admissions were not put to the first plaintiff when he appeared as a witness in the present suit. The 8th defendant had also not been summoned by the first defendant to confront him with his previous admissions. Hence, it was contended that the plaintiffs were seriously prejudiced by the reliance placed on these admissions without giving them any opportunity to explain the same.\[5\] ## G) RESPONDENT’S ARGUMENTS i. The first defendant (respondent) supported the findings of the lower courts and contended that the admissions made by the plaintiffs and their father in the earlier Title Suit No. 61 of 1945, both in their joint written statement and depositions, clearly showed that the disputed properties were allotted to the first defendant in a family partition that had taken place in 1938 itself. Hence, he argued that the plaintiffs were rightly not granted any relief in respect of these properties on the basis of their own previous admissions.\[6\] H) RELATED LEGAL PROVISIONS i. Sections 17 and 21 of the Indian Evidence Act, 1872 deal with admissions as substantive evidence. Section 17 defines an admission as a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact. Section 21 provides that admissions are relevant and may be proved as against the person who makes them.\[7\] ii. Section 145 of the Indian Evidence Act, 1872 deals with prior inconsistent statements of witnesses. It provides that a witness may be cross-examined as to his previous statements made in writing or reduced into writing, and such writing may be proved to contradict him.\[8\] ## I) JUDGEMENT **a. RATIO DECIDENDI** i. The Supreme Court fully concurred with the findings of the courts below which had relied on the previous admissions of the plaintiffs and their father to arrive at the conclusion that the disputed properties belonged exclusively to the first defendant. The Court noted that if the admissions made by the plaintiffs and their father in the earlier suit were reliable, then the plaintiffs’ case stood damaged by their own admissions.\[9\] ii. The Court observed that at the trial stage itself, the admissions contained in Exhibits G, G2 and H (which were the previous written statement and depositions of the plaintiffs and their father in Title Suit No. 61 of 1945) had been considered and acted upon while decreeing the first defendant’s exclusive rights in the disputed properties. Even before the High Court, the plaintiffs had not raised any contention that they were prejudiced by the reliance placed on their previous admissions without giving them an opportunity to explain the same.\[10\] iii. It was held that there is a crucial distinction between a party who is the author of a prior statement and a witness whose previous inconsistent statement is used to discredit him. In the former case, admissions by a party are substantive evidence under Section 21 of the Evidence Act if they fulfill the requirements of Section 17. In contrast, prior inconsistent statements of a witness do not become substantive evidence and are only used to impeach his credibility under Section 145.\[11\] iv. The Court clarified that there is no requirement for party admissions to be put to the maker in evidence, as they are substantive evidence by themselves. On the other hand, a witness cannot be discredited using his prior inconsistent statement unless it has been put to him in cross-examination as per Section 145.\[12\] v. Following the principles laid down in Bharat Singh & Anr. v. Bhagirathi\[13\], the Supreme Court held that admissions duly proved are admissible evidence irrespective of whether the party making them has appeared as a witness or not, and regardless of whether the party has been confronted with those admissions if he deposes to the contrary.\[14\] **b. OBITER DICTA** The Court opined that the first defendant had consistently set up a case denying the joint family character of the properties in his pleadings. His reliance on the plaintiffs’ admissions to advance an alternative defense was raised only at the evidence stage. Balancing the equities, the Court directed the plaintiffs to pay only half the costs of the appeal to the first defendant.\[15\] ## J) CONCLUSION & COMMENTS The Supreme Court’s judgment provides crucial clarity on the distinction between party admissions under Section 21 and witness statements under Section 145 of the Indian Evidence Act. Admissions have a higher evidentiary value as substantive evidence and can be relied upon even without confronting the maker with the same. The Court rightly noted that the plaintiffs’ admissions in the earlier suit, if reliable, dealt a serious blow to their own case in the present suit. It was also observed that the plaintiffs had not raised any objection before the High Court regarding the reliance placed on their admissions without giving them an opportunity to explain. The Court’s approach in this case highlights the importance of uniformity and consistency in pleadings and evidence. However, the Court was also cognizant of the fact that the first defendant had developed his case based on admissions only at the evidence stage, as contrasted with his exclusive reliance on inheritance in the pleadings. The Court adopted a balanced approach by making the plaintiffs liable for only half the costs, while dismissing their appeal on merits. Overall, this judgment is a significant precedent on the interpretation of the Indian Evidence Act and the evidentiary value of party admissions. It underscores the importance of caution and consistency for litigants in making any statements or admissions, whether in pleadings or evidence, as they can decisively influence the outcome of a case. ## K) REFERENCES **a. Important Cases Referred** i. Bharat Singh & Anr. v. Bhagirathi, \[1966\] 1 S.C.R. 606\[16\] – This judgment laid down the principle that admissions duly proved are admissible as substantive evidence regardless of whether the maker has appeared as a witness or has been confronted with the admissions. The Supreme Court distinguished admissions from prior inconsistent statements used to impeach witness credibility. **b. Important Statutes Referred** Indian Evidence Act, 1872 - Section 17 – Definition of admission\[17\] - Section 21 – Relevancy of admissions against persons making them, and by or on their behalf\[18\] - Section 145 – Cross examination as to previous statements in writing\[19\] **ENDNOTES** \[1\] Paras 9-10, Page 5 of the judgment \[2\] Para 1, Page 1 of the judgment \[3\] Paras 1-2, Pages 1-2 of the judgment \[4\] Paras 7-8, Page 4 of the judgment \[5\] Para 8, Page 4 of the judgment \[6\] Para 3, Page 2 of the judgment \[7\] Sections 17 and 21 of the Indian Evidence Act, 1872 \[8\] Section 145 of the Indian Evidence Act, 1872 \[9\] Para 3, Page 2 of the judgment \[10\] Paras 7-8, Page 4 of the judgment \[11\] Para 10, Page 5 of the judgment \[12\] Para 10, Page 5 of the judgment \[13\] \[1966\] 1 SCR 606 \[14\] Para 10, Page 5 of the judgment \[15\] Paras 12-13, Page 6 of the judgment \[16\] Bharat Singh & Anr. v. Bhagirathi, \[1966\] 1 SCR 606 \[17\] Section 17 of the Indian Evidence Act, 1872 \[18\] Section 21 of the Indian Evidence Act, 1872 \[19\] Section 145 of the Indian Evidence Act, 1872 **Categories:** Case Analysis, Civil Law Cases, Evidence Law Cases, Family Law Cases --- ### [Keshavan Madhava Menon vs The State Of Bombay](https://lawfoyer.in/keshavan-madhava-menon-vs-the-state-of-bombay/) **Published:** July 4, 2024 **Author:** LawFoyer **Content:** **Author: Sankalp Vashistha, Law Student at ICFAI University** **Edited By: Aman Tyagi, Student at UFYLC, Jaipur, Rajasthan** - **ABSTRACT / HEADNOTE** The Indian Press (Emergency Powers) Act, 1931, was used to prosecute the petitioner who was Secretary of People’s Publishing Houses India Ltd., in 1949 for the distribution of a pamphlet. He was arrested in December 1949 before the Indian Constitution came into effect which secured fundamental rights, including freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, he contested that the Act’s provisions were in violation of the constitution. The petitioner attempted to set aside the criminal charges against him because the pre-constitutional legislation infringed upon fundamental rights. However, the Bombay High Court held—applying Section 6 of the General Clauses Act, 1897—that the word “void” in Article 13(1) meant “repealed,” indicating the repeal’s prospective impact. As a result, it was decided that the adoption of the Constitution had no bearing on existing proceedings. The Supreme Court ruled on appeal that Article 13 does not confer retrospective effect to fundamental rights. The Court stated that laws become void only when they clash with the Constitution after it has been adopted. The Indian Press (Emergency Powers) Act, of 1931, was considered to apply to the proceedings started before the Constitution. The Court also maintained that the fundamental rights guaranteed by the Constitution do not automatically declare pre-constitutional legislation unconstitutional in the past. As a result, the appeal was dismissed. ***Keywords*:** Freedom of speech and Expression, Constitution, Article 13(1), Article 19 (1) (a), Pre-constitutional, Void - **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Keshavan Madhava Menon vs The State Of Bombay ***ii)* *Case Number***I X of 1950. A.S.R. Chari ***iii)* *Judgement Date***22 January, 1951 ***iv)* *Court***The Supreme Court of India ***v)* *Quorum / Constitution of Bench***Chief Justice Hiralal J. Kania., Justice Sudhi Ranjan Das, Justice Sayyad Fazal Ali, Justice M. Patanjali Shastri. Justice Mehr Chand Mahajan, Justice N. Chandrashekhara Aiyar, Justice B.K. Mukherjea ***vi)* *Author / Name of Judges***Chief Justice Hiralal J. Kania., Justice Sudhi Ranjan Das, Justice Sayyad Fazal Ali, Justice M. Patanjali Shastri. Justice Mehr Chand Mahajan, Justice N. Chandrashekhara Aiyar, Justice B.K. Mukherjea ***vii)* *Citation***1951 AIR 128, 1951 SCR 228***viii)* *Legal Provisions Involved***Section 15(1), 18 (1) of Indian Press (Emergency powers) Act, 1931. Article 13(1), 19(1)(a) of the Constitution, Section 6 of General Clauses Act, 1897- **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The Indian Press (Emergency Powers) Act, 1931, was used to prosecute the petitioner who was Secretary of People’s Publishing Houses India Ltd., in 1949 for the distribution of a pamphlet. He was arrested in December 1949 before the Indian Constitution came into effect which secured fundamental rights, including freedom of speech and expression under Article 19 (1) (a) of the Indian Constitution, he contested that the Act’s provisions were in violation of the constitution. The petitioner attempted to set aside the criminal charges against him because the pre-constitutional legislation infringed upon fundamental rights. However, the Bombay High Court held—applying Section 6 of the General Clauses Act, 1897—that the word “void” in Article 13(1) meant “repealed,” indicating the repeal’s prospective impact. As a result, it was decided that the adoption of the Constitution had no bearing on existing proceedings. - **FACTS OF THE CASE** - The petitioner, who was Secretary at People’s Publishing Houses India Ltd., was prosecuted for dissemination of a pamphlet entitled *“Railway mazdooron ke khilaaf nai Zazish”* in Bombay on September 1949. On 9th December 1949, he was arrested on the contravention of section 15(1) and 18 (1) of the Indian Press (Emergency Powers) Act, 1931. - On 26th January 1950, The Constitution of India came into force, which provided various fundamental rights to citizens under part III, including Article 19 (1) (a) right to freedom of speech and expression. - On 3rd March 1950 petitioner submitted a written statement stating that sections 2(6), 15, and 18 of the act are ultra vires and void as they violate Article 19 (1) (a). He asked for a suspension of the legal proceeding until H.C. adjudicated the matter of law. - On 7th March 1950, Petitioner filed a petition in the High Court of Bombay under Article 228 seeking that the criminal proceedings against him be void as the charging section on him violate Article 19 (1) (a) read with Article 13 (1). - On 23rd March 1950 High Court held that the word ‘Void’ used in Article 13 (1) meant ‘repealed’, thus applying section 6 of the General Clauses Act, 1897, which states that repeal has prospective effect unless stated otherwise. So, the court held that proceedings under the 1931 Act pending as the constitution’s commencement would not be affected. - On 12th April 1950 petitioner filed an appeal in the Supreme Court based on a certificate granted by the High Court under Article 132(1) - **LEGAL ISSUES RAISED** - Whether provisions of the Indian Press Emergency Powers Act, 1931 in violation of Article 19 (1) (a) read with Article 13 of the Indian Constitution? - Whether pending proceedings have any impact on the enforcement of the Constitution? - Whether there is any retrospective effect of Article 13? - **PETITIONER/ APPELLANT’S ARGUMENTS** - The counsels for Petitioner submitted that the Indian Press (Emergency Powers) Act, 1931, was a repressive law passed by an external government to restrict the freedom of the Indian press and stifle the freedom of its subjects. - The counsels for Petitioner submitted that after India gained its freedom, its citizens were able to live freely. In a democratic republic, the Constitution guarantees fundamental rights to citizens. Article 13(1) of the Constitution declared all pre-constitutional laws incompatible with fundamental rights to be null and void, to eradicate all traces of servitude imposed by foreign rulers. - The counsels for Petitioner submitted that persecuting citizens under an antiquated legislation that violates their fundamental rights is against the spirit of the Constitution. - The counsels for Petitioner submitted that no law passed after the Constitution’s adoption and declared unconstitutional by Article 13 may be examined for any reason, including accusing or penalizing individuals. - The counsels for Petitioner submitted that any pre-constitutional law that is declared unconstitutional by the Constitution has its effectiveness extended. - The counsels for Petitioner submitted that the High Court made a mistake in applying Section 6 of the General Clauses Act, 1897, to interpret Article 13(1) because the Article does not intend to repeal the current law; rather, it gives the court the authority to declare a statute unconstitutional if it violates fundamental rights, which gives the court the authority to immediately repeal the entire statute. - **RESPONDENT’S ARGUMENTS** - The counsels for Respondent submitted that the laws that violate Article 13(1) shall be subject to Section 6 of the General Clauses Act, 1897, as the phrase “void” in that clause is to be interpreted as “repealed,” not as “void ab into.” this is because the basic rights are new rights granted to people as on 26.01.1950; as such, it is not reasonable to expect them to supersede any rights and obligations that existed before to that day. - The counsels for the Respondent submitted that the respondent concludes that, as the appellant did not have any fundamental rights at the time of the proceedings, the appellant should be prosecuted by the procedures started on December 9, 1949. - **RELATED LEGAL PROVISIONS** - **Article 13 (1) of the Indian Constitution**: *“All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”* - **Article 19 (1) (a) of the Indian Constitution:** *“All citizens shall have the right to freedom of speech and expression;”* - **Section 6 of General Clauses Act 1897 –** *“Effect of repeal”* - **Section 15 (1) of Indian Press (Emergency Powers) Act, 1931:** *“A certified copy of the order confirming of the alteration, together with a printed copy of the memorandum as altered, shall, within three months from the date of the order, be filed by the company with the registrar, and he shall register the same and shall certify the registration under his hand, and the certificate shall be conclusive evidence that all the requirements of this Act concerning the alteration and the confirmation thereof have been complied with, and thenceforth the memorandum so altered shall be the memorandum of the company.”* - **Section 18 (1) of Indian Press (Emergency Powers) Act, 1931:** *“In the case of a company limited by shares and registered after the commencement of this Act, if articles are not registered, or, if articles are registered, in so far as the articles do not exclude or modify the regulations in Table A in the First Schedule, those regulations shall, so far as an applicable, be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles.”* - **JUDGEMENT** 1. **RATIO DECIDENDI** 2. 1. 1. Constitution should be interpreted by its language, not through sentiments or emotions. 2. The power to repeal or modify a law, such as The Indian Press Emergency Powers Act, of 1931 is with the President under Article 372(2). 3. Since the Constitution protects inchoate rights and ongoing proceedings, the court rejected the argument that persecution under current legislation is against its spirit. 4. A statute is only considered invalid as per Article 13 if it is inconsistent with fundamental rights. It does not always make the legislation null and void from the start. 5. The discrepancies with the laws in place only occur after the adoption of the constitution. As fundamental rights came into force after the adoption of the Constitution 6. Existing laws are void only till they are in conflict with fundamental rights and do not affect any past transactions or rights and liabilities accrued before the Constitution’s adoption. 7. As with temporary laws, unless a statute or other saving laws are used, no further procedures are permitted. 8. The rights specified in Article 19 were not available to the appellant before the Constitution. Article 13 applies to Article 19 (1) (a) when it is in effect. So in the given case Article 13 does not have any application. 9. The appellant is unable to claim protection to avoid the consequences of his action or rely on rules of statutory interpretation 10. Because Article 13 does not contain wording that gives fundamental rights retroactive force, it does not require any accompanying legislation, such as the General Clauses Act or the Interpretation Act of England, or saving clauses. **2. OBITER DICTA (IF ANY)** 1. Retaining people in jail who were previously found guilty under oppressive legislation before the enforcement of the Constitution is against its spirit. 2. Any ongoing prosecution cannot continue after the expiry of such temporary statute if the offender has not been charged with a crime and sentenced before the statute’s expiration and it does not contain a saving provision. 3. The power to amend the law lies with the legislature, not with the courts. The court can provide relief for existing claims with inchoate rights and liabilities. 4. The idea of “qua repeal” is fictitious and it originates from the English Parliament and Courts rather than the principle of justice - **CONCLUSION & COMMENTS** The court stated in its decision that because fundamental rights are interpreted with a future perspective, allowing them to be applied retroactively would conflict with the operation of the current statute. Notably, the legislation does not immediately become unconstitutional just because the statute was passed before the Constitution. The court must review the statute before declaring it invalid, court must take into account the legislative intent underlying it and its prospective effects. A statute shall only be declared unconstitutional when such statute is in contradiction with the Constitution, according to Article 13, which grants constitutional courts the authority of judicial review. It was emphasized that although criminal laws may have provisions that provide benefits to criminals through retrospective effect fundamental rights did not exist at the time when the prior legislation was in force. Consequently, the court determined that the appellant’s prosecution was correct, concentrating on the inchoate rights, duties, and punishment specified in the Indian Press (Emergency Powers) Act. - **REFERENCES** 1. 1. **Important Statutes Referred** 1. Constitution of India, 1950 – Article 13(1), Article 19 (1) (a), Article 132(1), Article 228 2. General Clauses Act, 1897 – Section 6 3. Indian Press (Emergency Powers) Act, 1931 – Section 15(1), Section 18 (1) **Categories:** Case Analysis, Constitutional Law Cases --- ### [INTRODUCTION TO INTERNATIONAL CRIMINAL LAW](https://lawfoyer.in/introduction-to-international-criminal-law/) **Published:** July 4, 2024 **Author:** LawFoyer **Content:** **Author: A I SUGANDESH, Law student at Government Law College, Dharmapuri.** **Edited By: Aman Tyagi, Law Student at UFYLC, Jaipur, Rajasthan** 1. **INTRODUCTION** We know that the highest jurisdiction of the Indian judiciary system is the Supreme Court but, in case of an international crime take place where it should be adjudicated. These are the questions that arise in our minds when an international issue takes place. But there is an international body that deals with the international problems and issues. They have categorized different public bodies to deal with. The International organization has its own body for the act of adjudication of international crimes and issues. And that is the International Criminal Court (ICC). International Criminal Law is an international public body of law that prosecutes and adjudicates the serious and heinous crimes that take place at the international level. International criminal law simply governs international crimes and dissolves the conflict that arises between the state’s law system. ***Keywords* *(Minimum 5)*: *United Nations, International Criminal Court, international jurisdiction, International Organization, War crimes, The Rome Statues and International Humanitarian Law*** **SUB-HEADINGS** 1. **Meaning, Definition & Explanation** International Criminal Law is a public body of law that was governed by the United Nations. This body of law suppresses international crimes and the agreement of the government. It allows the norms to adjudicate, prosecute, and punish which are treated as international crimes. International criminal law is an extended developed body that deals the international crimes. International Law includes laws for the procedure and principles of mode for international crimes. It often encompasses the offenses related to international crimes in society. 2. **Historical Background** The origin of the international criminal law came from the Hague Convention in 1899[\[1\]](#_ftn1) and 1907.[\[2\]](#_ftn2) This convention was about the rules making for the conduct of war and the protection of civilians. International criminal law was efficiently active after World War II which established the Nuremberg and Tokyo Tribunals for the prosecution of the Nazi and Japanese leaders for the conduct of crimes against humanity. In 1946 United Nations General Assembly recommended a permanent international criminal court. And drafted the principles for the International Criminal Court by the International Law Commission in the 1960s. In 1998 the United Nations Diplomatic Conference adopted the Rome Statutes for the establishment of the International Criminal Court.[\[3\]](#_ftn3) In 2002 United Nations established the permanent International Criminal Court (ICC). 3. **Sources of International Criminal Law** International criminal law emerged due to the cause of World War II which made the world and humanity suppressed. The UN made the International Criminal Court the adjudication of offenses related to international crimes. There are five primary sources for international criminal law which was enlisted by Article 38(1) of the International Court of Justice statutes. The sources of the international criminal law are, 1. Treaties 2. Customary International law - General principles of law 1. Judicial decisions 2. Writing of eminent jurists Article 38 of the International Court of Justice Statue which enlisted the source of international criminal law that related to the nation’s sovereign. 1. *“International conventions, whether general or particular, establishing rules are expressly recognized by the contesting states;* 2. *International customs, as evidence of a general practice accepted as law;* 3. *The general principles of law recognized by the civilized nations;* 4. *Subject to the provisions of Article 59, judicial decisions and the teachings of most highly qualified publicists of the various nations, as subsidiary means of the determination of rules of law.”[**\[4\]**](#_ftn4)* The Rome Statutes (1988) act as the rules and norms of the international criminal court even though it is not identical. The procedure and the principles of the international criminal court involved in the evidence, liability, defense, penalty, victim participation, witness protection, mutual legal assistance, and cooperation. 1. **Treaties** The Treaties are the primary sources for the implementation of the international criminal law in the society. The treaties act as the emerging sources of international criminal law where the rules and procedures were primarily adopted. Such conventions and treaties are the treaty-based agreement for the formation of international criminal law. The treaties such as the Hauge Convention (1907), Geneva Convention (1949), Genocide Convention (1949), and the Torture Convention (1984) provided for the formation of the international criminal court. The statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY)[\[5\]](#_ftn5) and the International Criminal Tribunal for Rwanda (ICTR)[\[6\]](#_ftn6) were formed by the resolution of the UN Security Council which is also known as the source of international criminal law. 1. **Customary International Law** Customary international law is described in Article 38(1) of the International Court of Justice statute. The important components for customary law are that of practice and the *opinio juris*. Those components were described in *the* *North Sea continental Shelf Judgement (1969).* *“The idea of Opinio Juris Sive Necessitaties itself implies the demand of such belief, i.e., the presence of subjective elements. As a result, the participating nations must think they performing a legal obligation.”* Even customary law acts as the supportive and not as the whole basis of the. criminal prosecution. It represents the principles used for the codification of law. - **General Principles of law** The General principle of law in international criminal law is the standard source of law. The necessity of the general principle works when there is a failure in the conduct of treaty or convention to provide the remedy. The general principle of international law becomes complicated when there is an addition of extraterritorial elements with it. It is important to balance the other rules of a nation and the addition of extraterritorial rules by the general principle of criminal international law. The general principle of international criminal law includes the concept of basic jurisdiction, statutory limitation*, Nullum Crimen*, *Nulla Poena Sine Lege, Ne Bis in Idem,* and Immunity. The *Nullum Crimen, Nulla Poena Lege* states that *“no one may be convicted or punished for an act or omission that does not constitute a criminal offense.”[**\[7\]**](#_ftn7)* The Latin maxim of *Ne Bis in Idem* states that *no person should be prosecuted or punished more than once for the same offense,* which ensures protection against the arbitrary nature of procedure at both national and international levels. 1. **Judicial decision** As the judicial decision is also a source of international criminal law, it was considered in two ways 1. The first is that the court recog the precedent and the precedent of *Opinio Juris.* 2. The court strives through the norms as the customary principle in the judgments. 1. **Writings of eminent jurists** The Eminent jurists are part of the International Commission of Jurists (ICJ) including the lawyers and human rights defenders that are united by the rule of principles of the Eminent Jurists Panel 2004. The piece of work by eminent jurists was also considered as the source of international criminal law. In the drafting of the Law of Treaties (1969) the International Law Commission had collectively considered according to the obligation of the non-parties to the treaty. *“The general rule regarding third states”*[\[8\]](#_ftn8). This rule is a *“corollary of the principle of consent and of the sovereignty and independence of states”* (*Brownlie 627*). 4. **International crimes** The International Criminal Law is the system that deals with international crimes. It is responsible for the committing of most heinous crimes such as genocide, war crimes, and crimes against humanity. Heinous most crime such as genocide is considered among the three forms of crimes in the Rome Statue International Criminal Court. Even though in the present era the offenses that international criminal law considers the most heinous offenses are war crimes, genocide, and crimes against humanity. **War crimes** War crimes were defined in the Geneva Convention (1949) and in the Additional Protocols of the Geneva Convention (1977) which state that war crimes as a violation of the norms and conventions. The norms of war crimes are applicable when there is a conflict with the armed forces between the nations or armed organization groups. The offenses of war crimes caused by the violation of the international humanitarian were dealt with by the International Criminal Tribunal for former Yugoslavia and Rwanda. **Genocide** The term Genocide was coined by Raphael Lemkin in 1944 in his book[\[9\]](#_ftn9). Genocide was originally described after World War II which states as the international killing and cause of the destruction of people or groups of organizations. The term Genocide was defined in the Genocide Convention (1948) which intends to cause destruction or eradicate race, nation, religious group, ethnic or whole. Genocide is the most heinous crime or aggravated crime which is also known as *“the crimes of crimes”* among international crimes. The Genocide was described under Articles II and III of the Genocide Convention which has the exact to Article 2 of International Criminal Tribunal Rwanda Statue and Article 4 of the International Criminal Tribunal for Former Yugoslavia Statue. **Crimes against humanity** The term crimes against humanity was defined as the *“murder extermination, enslavement, deportation and other inhumane acts committed against the civilian population, before or during the war, or persecutions of political, racial, or religious grounds in the execution of or in connection any crim with the Tribunal’s jurisdiction, whether or not a violation in the domestic law of the country where perpetrated.”[**\[10\]**](#_ftn10)* 5. **Significance of the International Criminal Law system** They are some significant aspects of the procedure in the International Criminal law system 1. No person under the age of 18 shall be prosecuted by the ICC 2. The prosecutor should obtain both incriminating and exoneration of evidence during the conduct of inquiry. - The defendant is considered to be innocent until the guilt is proven. 1. The prosecutor should take the preliminary investigation. 2. In the event of a pre-trial the court issue an arrest warrant and they ensure sufficient evidence of the arrest. 3. If new evidence is produced after the verdict of a case without the guilty the prosecutor may reopen the case. 6. **International Criminal Court** The International Criminal Court was based in the Hauge, Netherlands. The court is composed of eighteen judges each nominated by the member countries and representing different nations. This composition is based on the gender balance of judges. The court has its president and vice-president in charge who are elected among the judges for the court administration. The judges and prosecutors were chosen for a period of nine years as non-renewable. The court has jurisdiction over the offenses they are, genocide, war crimes, crimes against humanity and crimes of aggression. 7. **CONCLUSION & COMMENTS** The scope of International Criminal law has a wider view which deals with the protection of human rights from international offenses. Crimes like the war crimes and genocide are still considered to be a heinous off against humanity. Even though there are treaties and conventions regarding international crimes it is a common duty to have a standard ideology of common human behavior in society. Those cause of the crime shows the differences from animals. 8. **REFERENCES** 9. **Books / Commentaries / Journals Referred** 1. *Journal of International Criminal Law by Heybatollah Najandimanesh Anna Oriolo* 10. **Online Articles / Sources Referred** 1. [*legalservices.com*](http://www.legalservices.com) 2. [*blogipleagers.com*](http://www.blogipleagers.com) 3. [*diakonia.com*](http://www.diakonia.com) 4. [*law.cornell.edu*](http://www.law.cornell.edu) 5. [*un.org*](http://www.un.org) 3. **Statutes Referred** 1. *International Criminal Court* 2. *Fi Hague Peace Conference (1899)* 3. *Second International Peace Conference (1907)* 4. *United Nations Diplomatic Conference (1998)* 5. *International Court of Justice Statue* 6. *Geneva Convention (1949)* 7. *Genocide Convention (1949)* 8. *Torture Convention (1984)* 9. *International Criminal Tribunal for Former Yugoslavia Statue* 10. *International Criminal Tribunal for Rwanda* 11. *UN Security Council Resolution* 12. *The Rome Statues (1988)* 13. *International Military Tribunal Charter* [*\[1\]*](#_ftnref1) *First Hague Peace Conference (1899)* [*\[2\]*](#_ftnref2) *Second International Peace Conference (1907)* [\[3\]](#_ftnref3) *United Nations Diplomatic Conference (1998)* [\[4\]](#_ftnref4) *Article 38 of the International Court of Justice statute* [*\[5\]*](#_ftnref5) *UN Security Council Resolution 827* [*\[6\]*](#_ftnref6) *UN Security Council Resolution 955* [*\[7\]*](#_ftnref7) *Article 15 of the International Covenant on Civil and Political Rights* [\[8\]](#_ftnref8) *Article 34 of the Vienna Convention* [\[9\]](#_ftnref9) *Axis Rule Occupied in Europe: laws of Occupation, Analysis of Government, Proposal of Redress.* [\[10\]](#_ftnref10) *International Military Tribunal Charter.* **Categories:** Articles, Criminal Law, International Law --- ### [JOGINDER KUMAR V. STATE OF U.P. (1994)](https://lawfoyer.in/joginder-kumar-v-state-of-u-p-1994/) **Published:** July 4, 2024 **Author:** LawFoyer **Content:** **Author: A I Sugandesh, Government Law College, Dharmapuri** **Edited By: Gyanu Patel, Law Student at Amity University, Lucknow, Uttar Pradesh** **ABSTRACT / HEADNOTE** This case Joginder Kumar v. State of U.P. (1994) deals with the unlawful detention of an enrolled Advocate who was called by the Senior Superintendent of Police, Ghaziabad for making some enquiry related to the abduction case. But there no inquiry had taken place. The petitioner’s location was disclosed by the respondent. So, a writ petition was filed by the petitioner’s brother before the Supreme Court under Article 32 of the Indian Constitution. The argument of the petition is to release the petitioner who was detained illegally. However, the respondent argued that the petitioner had not been detained. So, the court directed the learned District Judge of Ghaziabad to make a detailed inquiry within four weeks of the receipt of the order. The inquiry had the report of the National Police Commission report that nearly 60% of arrests were unjustified. And that unjustified action of the police accounted for nearly 43.2% of the expenditure of the jails. The court also noted the Royal Commission’s report of England on the objectives of the principles of the police in the act of arrest. The court considered the contravenes between the balance of the violation of human rights because of the indiscrimination arrests and increasing crime rate in the society. The Supreme Court bench led by the Chief Justice of India M.N. Venkatachalliah laid down the guidelines for the arrest of a person to protect the fundamental right of the person. And the arrest should not be arbitrary. ***Keywords*:** *Indian Constitution*, *Article 21, Article 22(1), Article 32, Unlawful detention, Police custody, Personal liberty, Individual rights, Legal obligation, National Police Commission and Law enforcement.* **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name*** Joginder Kumar v. State of U. P ***ii)* *Case Number***WRIT PETITION (CRL) NO. 9/1994 ***iii)* *Judgement Date***25 April 1994 ***iv)* *Court***Supreme Court of India ***v)* *Quorum / Constitution of Bench***3/Division bench ***vi)* *Author / Name of Judges***i) Chief Justice of India: Justice. M.N. Venkatachalliah ii) Justice. S. Mohan iii) Justice. A. S. Aanad ***vii)* *Citation***1994 SCC (4) 260, 1994 AIR 1349***viii)* *Legal Provisions Involved***Constitution of India Article 32, Article 21, Article 22(1), section 58 of CrPC, section 19(a) of Children Act and the rule 229 of procedural and conduct of business in Lok Sabha.**INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case Joginder Kumar vs State of Uttar Pradesh (1994) was held in the Supreme Court of India. This petition was filed by a young man aged 28, who was enrolled as an Advocate. As the petitioner alleged the illegal detention by the SSP of Ghaziabad, the court acknowledged the unlawful detention of the petitioner. In which the court had made an observation in the balance between the individual rights of a person and the increased rate of crimes in society. To understand the key concept of the case and the act of the petitioner we should understand the background of the case. **FACTS OF THE CASE** **Procedural Background of the Case** In this case, the petitioner filed a writ petition under Article 32 of the Constitution of India. The petitioner was a young man age 28, who was enrolled as an Advocate. The present petitioner in this case was the brother of the petitioner. The Senior Superintendent of Police (SSP) of Ghaziabad (respondent 4) called the petitioner in his office to make an inquiry in some cases. **Factual Background of the Case** On 7.1.1994 about 10 o’clock the petitioner and his brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh, and others were before Respondent 4. And Respondent 4 kept the petitioner in his custody. When the brother of the petitioner enquired the custody of the petitioner, lie was told that the petitioner would be set free in the evening after making some inquiries in connection with a case. On 7.1.1994 at about 12:55 pm., the brother of the petitioner being apprehensive of the intentions of respondent 4, sent a telegram to the Chief Minister of U.P. apprehending his brother’s implication in some criminal cases and also further apprehending the petitioner being shot dead in a fake encounter. The frequent inquiries, and the whereabouts of the petitioner could not be located. On the evening of 7.1.1994, it came to know that the petitioner was detained in illegal custody of the 5th respondent, SHO, P.S. Mussoorie. On 8.1.1994, it was informed that the respondent was keeping the petitioner in detention to make further inquiries in some cases. The petitioner has not been produced before the Magistrate concerned. Instead, the 5th respondent directed the relatives of the petitioner to approach the 4th respondent SSP, Ghaziabad, for the release of the petitioner. On 9.1.1994, In the evening the brother of the petitioner along with relatives went to P.S. Mussoorie to enquire about the well-being of his brother, it was found that the petitioner had been taken to some undisclosed destination. The court on 11.1.1994 ordered notice to the State of U.P. as well as SSP, Ghaziabad. **LEGAL ISSUES RAISED** - Whether the court can entertain this petition? - Does the arrest is violation of human rights? - Whether the power of police to arrest a person is arbitrary? **PETITIONER ARGUMENTS** The counsels for Petitioner submitted that the petitioner was detained illegally by the 4th respondent. And they argued that if there was any specific reason for the detention. The present petitioner had a suspicion in the intention of the 4th respondent so, they sent a telegram to the Chief Minister of U.P. apprehending the petitioner being shot dead in a fake encounter. They argued that why the petitioner had been detained for 5 days. And they stated that why the location of the petitioner was disclosed. They also argued that why the petitioner had not been produced before the Magistrate concerned. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that the petitioner had not been detained at all, the respondent had no intention of detaining the petitioner. They argued that the petitioner was helping us for detecting in some cases related to the abduction. The respondent also argued that there was no reason for the detention of the petitioner. The respondent does not want this petition to be entertained as a writ petition in this court. **RELATED LEGAL PROVISIONS** **Constitution of India, 1950** ***“Article 32: Remedies for enforcement of rights conferred by this part.*** - *The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.* - *The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.* - *Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).* - *The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”*[***\[1\]***](#_ftn1) ***“Article 21: Protection of life and Personal liberty.”*** *“No person shall be deprived of his life or personal liberty except according to procedure established by law.”*[***\[2\]***](#_ftn2) *“Article 22(1): No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the rights to consult, and to be defend by, a legal practitioner of his choice.”[**\[3\]**](#_ftn3)* **Criminal Procedure Code, 1973** ***“Section 58: Police to report apprehensions.*** *Officers-in-charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.”*[***\[4\]***](#_ftn4) **Children Act, 1960** ***“Section 19(a):*** *The parent or guardian of the child, if he can be found, of such arrest and direct him to present at the children’s court before which the child will appear.”[**\[5\]**](#_ftn5)* **Rule 229 of the Procedure and Conduct of Business in Lok Sabha** *“When a member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is affected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/Chairman of the Legislative Assembly/Council/Lok Sabha/Rajya Sabha. This should be sent through telegrams and also by post and the intimation should not be on the ground of holiday.”* **JUDGEMENT** The Supreme Court ordered to release of the petitioner and the court acknowledged that the arrest of the petitioner was an unlawful detention. The Honourable Supreme Court directs the learned District Judge Ghaziabad, to make a detailed inquiry and submit a report within four weeks from the date of receipt of the order. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction, that the law of arrest is one of balancing individual rights, liberties, and privileges, on the one hand, and individual duties, obligations, and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis. That on deciding whether the society or criminal. Society should first and the criminal should not go free on the constable blundered. In ***People v. Defore Justice Cardozo*** observed: *“The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adams case (People v. Adams) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.”[**\[6\]**](#_ftn6)* The statement by Judge Learned Hand, in Fried Re: *“The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.”[**\[7\]**](#_ftn7)* The Court observed that in the case ***Nandini Satpathy v. P.L. Dani***[***\[8\]***](#_ftn8), quoting ***Lewis Mayers*** stated: *“The paradox has been put sharply by **Lewis Mayers**:* *‘To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right’.”[**\[9\]**](#_ftn9)* The National Police Commission in its Third report referring to the quality of arrest by the police. The report suggests that nearly 60% were neither unnecessary or unjustified, that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus: *“It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in ‘ail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that* ***43.2%*** *of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.”[**\[10\]**](#_ftn10)* Third Report of the National Police Commission at p. 32 also suggested: *“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:* - *The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.* - *The accused is likely to abscond and evade the processes of law.* - *The accused is given to violent behaviour and is likely to commit further offenses unless his movements are brought under restraint.* - *The accused is a habitual offender and unless kept in custody he is likely to commit similar offenses* *It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.”[**\[11\]**](#_ftn11)* The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. When a public servant is arrested that matter should be intimated to the superior officers, if possible, before the arrest and in any case, immediately after the arrest.[\[12\]](#_ftn12) In cases of members of the Armed Forces, Army, Navy, or Air Force, intimation should be sent to the Officer commanding the unit to which the member belongs. It should be done immediately after the arrest is affected. *Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, when a member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is affected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/Chairman of the Legislative Assembly/Council/Lok Sabha/* *Rajya Sabha. This should be sent through telegrams and also by post and the intimation should not be on the ground of holiday.*[\[13\]](#_ftn13) Concerning the apprehension of juvenile offenders Section 58 of the Code of Criminal Procedure lays down as under: *“Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.”*[\[14\]](#_ftn14) *Section 19(a) of the Children Act* makes the following provision: *“*The parent or guardian of the child, if he can be found, of such arrest and direct him to be present at the Children’s Court before which the child will appear;*”*[\[15\]](#_ftn15) In England, the police powers of arrest, detention and interrogation have been streamlined by the Police and Criminal Evidence Act, 1984 based on the report of Sir Cyril Philips Committee.[\[16\]](#_ftn16) The Royal Commission suggested restrictions on the power of arrest based on the “Necessity of (sic) principle”. The two main objectives of this principle are that police can exercise powers only in those cases in which it is genuinely necessary to enable them to execute their duty to prevent the commission of offence, and to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. In England, there is the right to have someone informed. The right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognized by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England. That section provides: *“Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.”[**\[17\]**](#_ftn17)* **RATIO DECIDENDI** The ration decidendi of the case was held that arrest should not be in every cognizable offense and they ordered the following guideline. The rights that are inherent in *Articles 21* and *22(1)* of the Constitution and required to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, the court made the following guidelines as the requirements: - An arrested person being held in custody is entitled, if he so requests to have one friend, relative, or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained. - The police officer shall inform the arrested person when he is brought to the police station of this right. - An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from *Articles 21* and *22(1)* and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made on this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest. The court ordered to release of the petitioner immediately. **OBITER DICTUM** The court considered the emphasis on the right of arrest of a person. The court had made several observations in the case. - The court observed the misuse of the power. The court acknowledged the power of the police that they were misused against the people of the society. - The court observed the horizon of human rights was expanding in the society, where the balance between the individuals’ rights and crimes in the society should be justified. - The arrest of a person should not be routine, it should be justified based on reasonable grounds or evidence. **CONCLUSION & COMMENTS** The Supreme Court concluded that the arrest should be used sparingly and by mere allegation or suspicion against a person. In our society, the power provided to the police is to safeguard the law and order and to ensure the protection of the civilians. In my opinion if the police were abusing their power, then how the society be safeguarded? So, the imposition of the limitation of power with strict regulations and guidelines are the tools that ensure the protection of society even if there is an abuse of the power in the society. **REFERENCES** **Important Cases Referred** - *People v. Defore 242 N.Y. 13 (1926)* - *Nandini Satpathy v. P.L. Dani AIR 1025 (1978)* - *People v. Adams 59 Cal.App.3d 559 (1976)* - *In Fried. 161 F.2d 453 (1947)* **Important Statutes Referred** - *Constitution of India (1950)* - *Criminal Procedure Code (1973)* - *Children Act (1960)* - *The Rule of Procedure and Conduct of Business in Lok Sabha (1956)* - *WEBSITE REFERRED* - [*Indian Kanoon – Search engine for Indian Law*](https://indiankanoon.org/) - *[iblogpleader.com](http://www.iblogpleader.com)* - [*Online Legal Research Platform for India Laws | Free Legal Advice Online (courtkutchehry.com)*](https://www.courtkutchehry.com/) - [*http://www.scconline.com*](http://www.scconline.com) - [*https://www.livelaw.in*](https://www.livelaw.in) [***\[1\]***](#_ftnref1) *Article 32 of Constitution of India* [***\[2\]***](#_ftnref2) *Article 21 of Constitution of India* [***\[3\]***](#_ftnref3) *Article 22(1) of Constitution of India* [***\[4\]***](#_ftnref4) *Section 58 of Criminal Procedure Code* [***\[5\]***](#_ftnref5) *Section 19(a) of Children Act of 1960* [\[6\]](#_ftnref6) *New York Court of Appeals 242 N.Y. 13* [\[7\]](#_ftnref7) *Circuit Court of Appeals, Second Circuit* *161 F.2d 453* [\[8\]](#_ftnref8) *1978 AIR 1025 at p. 1032* [\[9\]](#_ftnref9) *SCC p. 433, para 15* [\[10\]](#_ftnref10) *SCC p. 433, para 15* [\[11\]](#_ftnref11) *Third Report of the National Police Commission at p. 32* [\[12\]](#_ftnref12) *The Central Civil Service (Classification, Control & Appeal) Rules, 1965* [\[13\]](#_ftnref13) *Rule 229 of the Procedure and Conduct of Business in Lok Sabha* [\[14\]](#_ftnref14) *Section 58 of the Code of Criminal Procedure, 1973* [\[15\]](#_ftnref15) *Section 19(a) of the Children Act, 1960* [\[16\]](#_ftnref16) *Report of a Royal Commission on Criminal Procedure, Command-papers 8092 1981 1* [\[17\]](#_ftnref17) *Civil Actions Against the Police Richard Clayton and Hugh Tomlinson; p. 313* **Categories:** Case Analysis, Constitutional Law Cases --- ### [INDIBILITY CREATIVE PVT. LTD. AND ORS. V. GOVT. OF WEST BENGAL & ORS](https://lawfoyer.in/indibility-creative-pvt-ltd-and-ors-v-govt-of-west-bengal-ors/) **Published:** July 4, 2024 **Author:** LawFoyer **Content:** **Author: Sakshi Yadav, Amity University Lucknow** **Edited By: Gyanu Patel, Student at Amity University, Lucknow Campus** **ABSTRACT / HEADNOTE** *The Supreme Court of India declared an unofficial ban imposed by the West Bengal Government on a satirical film to be unconstitutional*. They were producers of a Bengali film, Bhobishyoter Bhoot. The film was a satire on the political conditions in contemporary India, about Glass who san to God’s silence through arsenic the margins and the obsolete people. The film was scheduled to ease in Kolkata and some districts of West Bengal on 15th February and received the certificate for public exhibition on 10 November 2015.[\[1\]](#_ftn1) However, a few days preceding the release, Petitioner No. 1 and 2 (producer) received a plane call from the Kolkata police on 11 February 2019 and after that, a letter, asking for an advance screening of the film for senior officials. The communication declared that the police had received some intelligence reports that the first hand could cause “political law and order issues.” **Keywords**: Film, court, preceding, Article, law. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Indibility Creative Pvt. Ltd. and Ors. v. Govt. of West Bengal & Ors. ***ii)* *Case Number***306/2019 ***iii)* *Judgement Date***11/04/2019 ***iv)* *Court***Supreme Court ***v)* *Constitution of Bench***Hemant Gupta , Dhananjaya Y Chandrachud) ***vi)* *Author*** Dhananjaya Y Chandrachud ***vii)* *Citation***2019 SSC Online SC 520***viii)* *Legal Provisions Involved*** Article 19**INTRODUCTION AND BACKGROUND OF JUDGEMENT ;** They contradicted that the extra-constitutional method adopted by the state and its agencies blatantly violates the fundamental sights of the petitioners under Article 19 (1)(a), 19 (1)(g) and Article 21 of the Indian Constitution. **FACTS OF THE CASE ;** - The film in question was a satirical take on the current political landscape in India. It revolves around Glass, a character who, confronted with the silence of the divine, resorts to toxic means, navigating through societal fringes and interacting with marginalized individuals. The film was originally set for release in Kolkata and various districts of West Bengal on 15th February. It obtained certification for public exhibition on 10th November 2015. - However, just days before its release, Petitioner No. 2, the producer, received a call from the Kolkata police on 11th February 2019, followed by a letter requesting an advanced screening of the film for senior officials. The communication specified that the police had received intelligence suggesting that the film had the potential to lead to “political law and order issues.” - In response, the Petitioner, through a letter dated 12th February 2019, argued that the film had already been duly certified and that, according to established law, no other authority could obstruct the screening of the film once approved by the Central Board of Film Certification. - Despite the film’s release on 15th February 2019, it was abruptly pulled from theatres on 16th February 2019 by numerous exhibitors, with ticket refunds issued. Apparently, this action was taken based on directives from “higher authorities.”Subsequently, the Petitioners filed a writ petition with the Supreme Court, alleging rights violations. - When the petition was filed, only two exhibitors had presented the film. One exhibitor eventually informed the producers that they were “directed by the authorities to cease the screening of the film.” As a result, the Petitioners argued that the State had attempted to ban the film through indirect means, circumventing the rule of law. **LEGAL ISSUES RAISED** 1. Whether the attempt by the functionaries of the state to interfere with the exhalation of the film is destructive of the freedom of speech and expression? 2. Whether CBFC is an expert body entrusted with the statutory power under the Cinematograph Act to determine whether a film should be certified for public viewing and in the sole repository of that prowess? **PETITIONER/ APPELLANT’S ARGUMENTS** *The Petitioners therefore filed a writ petition before the Supreme Court alleging violation of the nights*. Only two exhibitors had displayed their film when the petitioners filed a writ. One exhibitor eventually informed the producers that they were “directed by the infirmities to lamination arsenal” of the film “keeping in mind the interest of the guest”. The Petitioners, therefore, contended that the authority of the law State had d sought to ban the film through indirect means and without the rule of law. **RESPONDENT’S ARGUMENTS** “Dr. Abhishek Manu Singhvi, senior counsel for the respondents, informed the Court on 25 March 2019.” The Additional Director General and Inspector General of Police in West Bengal sent letters to various law enforcement authorities, including District Superintendents of Police, about a court order for compliance[\[2\]](#_ftn2). The State of West Bengal confirmed that the film had not been banned, and it was running in theatres outside Kolkata. The court noted that the Joint Commissioner of Police had acted beyond his authority by directing the film’s producer to arrange a private screening for senior officials. The court emphasized that the State of West Bengal must protect the fundamental right to free speech and expression, ensuring viewers can watch the film without unconstitutional restrictions. The court directed the police to withdraw a communication to the film producer and ordered the state authorities to inform all theatres that there was no ban on the film. The court required compliance affidavits from the authorities to ensure their accountability. The court then assessed the grievance related to the release of the film “Bhobishyoter Bhoot” in theatres in West Bengal, following concerns raised by the police[\[3\]](#_ftn3). The text then discusses the social purpose of art, quoting Chinua Achebe and Albert Camus to illustrate the connection between art, society, and freedom. **RELATED LEGAL PROVISIONS** 1. Article 19 [\[4\]](#_ftn4) of the Indian Constitution which guarantees the Right to Freedom of Speech and Expression. 2. Article 21[\[5\]](#_ftn5) of the Indian Constitution which guarantees the Right to Life and Personal Liberty. **JUDGEMENT** **RATIO DECIDENDI** The Court’s ruling stated that there was a deliberate and coordinated effort to violate the fundamental rights of the producers, actors, and audience. Additionally, the Court noted that this attempt was aimed at suppressing criticism and critique. Considering the State’s historical actions and inactions regarding freedom of speech and expression, the Court concluded that the Petitioners’ rights under Article 19(1)(s) [\[6\]](#_ftn6)of the Constitution had been violated. The Court also emphasized the need for a public law remedy to ensure proper compensation for this violation of fundamental rights. As a result, the Respondents were instructed to pay Rs. 20 lakhs in compensation, along with Rs. 1 lakh in legal costs. **CONCLUSION & COMMENTS** The petitioners argued that the State had misused its police powers to wrongfully block the screening of the film. Moreover, the Court took into account the State’s failure to fulfil its obligations in safeguarding freedom of speech and expression. Consequently, it was determined that the State had infringed upon the petitioners’ right to freedom of expression as outlined in Article 19(1)(a) of the Constitution. It was also deemed essential to address the issue of compensation as a remedy in public law for the violation of this fundamental right. In a landmark ruling concerning film censorship cases, the Court granted Rs. 20 lakhs as compensation and an additional Rs. 1 lakh to cover legal costs. **REFERENCES** **Important Cases Referred** - Rangarajan v. P. Jagjivan Ram to establish that if the film is “*If the film is known non-objectionable[**\[7\]**](#_ftn7) and cannot be constitutionally restricted under Article 19 (2) freedom of expression cannot be suppressed on account of threat of demonstration of processing of threat of violence.”* - *It Further explained that once the film board or tribunal had cleared a film*, the Central government did not have the power to REVIEW decisions based on concerns about potential *PUBLIC RESENTMENT* towards the film and that it was the Government’s responsibility to ensure law and order is maintained. - Considering the social contest, the Court expressed a concern that “contemporary events reveal that there is a growing intolerance which is unaccepting of the rights of others in society to freely espouse their views and to portray them celluloid media” print, in the theatre. **ENDNOTES** [\[1\]](#_ftnref1) https://articles.manupatra.com/article-details/Case-Commentary-on-Indibility-Creative-Pvt-Ltd-V-Govt-Of-West-Bengal-2019 [\[2\]](#_ftnref2) https://www.sci.gov.in/ [\[3\]](#_ftnref3) https://www.sci.gov.in/[](#_ftnref4) [\[5\]](#_ftnref5)https://www.scconline.com/blog/post/tag/article1/#:~:text=It%20is%20a%20personal%20choice,by%20a%20Court%20of%20law. [\[6\]](#_ftnref6) https://www.scconline.com/blog/post/tag/article-19/ [\[7\]](#_ftnref7) https://indiankanoon.org/doc/341773/ **Categories:** Case Analysis, Constitutional Law Cases --- ### [ARTICLE 20 OF INDIAN CONSTITUTION](https://lawfoyer.in/article-20-of-indian-constitution/) **Published:** July 7, 2024 **Author:** LawFoyer **Content:** **Author: Ajay Pratap Singh, Law student at Amity University.** **Edited by: Shruti Mayur, Law student at Amity University.** **INTRODUCTION** There are three aspects to the protection provided by Article 20: Firstly, it affords one protection against ex-post fact laws as it holds that no one can be deprived of life, liberty, or property, or be subjected to any penalty, as these are referred to as a punishment before an act which at that time was not unlawful is declared to have been illegal. By this it also precludes the aggravation of the penalty to an extent higher than what the law applicable at the time of the offense provided for; Secondly, it affords protection to persons from self-crimination, it means the person cannot be made to say things that incriminate him /her, the right to silence also emanates from this protection; and Finally, it protects persons in the form of protection from double jeopardy that means that an individual cannot be punished for the same act done by him twice. ***Keywords:*** Ex Post Facto Laws, Self-incrimination, Double jeopardy, Protection, Punishment, Penalty, Confessions, Right to remain silent **MEANING** - For situations where no one shall be guilty of any offense if the acts that amount to the offense are prohibited under the laws in existence at the time of the commission of the act for which one is charged; And no such person shall be liable for a penalty which at the time of the commission of the offense was not discernibly proper. - No natural person can be again tried or punished for the same offense. - No person who stands accused of some offense cannot be compelled to act as a witness for his case. **COMPARISON WITH OTHER COUNTRIES** It can be safely said that today over a hundred countries have an Article in their Constitution or other legal concerns that somehow resemble Article 20 of the Indian Constitution. They mostly aim at strengthening the general prevention of torture in one’s treatment, fair trials without undue delays, and non-consensual settlements as well as reiterations of similar charges. Here are a few examples from various countries: The following is a list of basics from different countries: **United States** *Ex Post Facto Law:* Ex post facto laws were banned by the U. S Constitution through Article I Section 9 in the case of federal laws together with Article I Section 10 in the case of state laws. This means that laws cannot be applied back in time to main criminals concerning unlawful acts that were legal at the time they were perpetrated. *Double Jeopardy:* The provision as regards double jeopardy is as provided in the Constitution of The United States Of America under the Fifth Amendment and this provision makes it unlawful to put the life or the limb of any person in danger for the same offense twice. *Self-incrimination:* The Fifth Amendment also contains ‘the self-incrimination clause where it states… ‘nor shall any person… be compelled in any criminal case to be a witness against himself’. **United Kingdom** The UK does not have a written constitution, but similar protections are provided through common law and statutory provisions: For similar protections in the UK, there is no written constitution although there are constitutional laws under the common law system and the statutes passed by the Parliament. *Ex Post Facto Law:* The normal legal system and the ECHR’s Article 7 which was adopted by the United Kingdom and passed into the nation’s laws through Section 7 of the Human Rights Act 1998 also protect against the creation of criminal laws whose effects began prior to their passage. *Double Jeopardy:* The rule of double jeopardy was a part of common law which prohibited the trial of a person for the same offense once acquitted. Originally, it meant that an individual could not be re-tried for the same offense, a principle that was altered by the Criminal Justice Act 2003. *Self-incrimination:* The right against ‘be called to incriminate a self’ is among the rights stipulated under the common law and under Article 6 of ECHR on the right to fair treatment. **Canada** *Ex Post Facto Law:* Section 11(g) incorporates the principle of this provision that a person cannot be convicted of an offense if it was not a crime under either Canadian or international law at the time of commission of the act. *Double Jeopardy:* In the Charter, Section 11(h) bars any individual from being tried or punished for the same offense if that person has either been acquitted or convicted before. *Self-incrimination:* Under the Charter of the Federal Republic of Nigeria, the right against self-incrimination is captured under Section 11(c) of the Charter which states that a person shall not be compelled to be a witness in any proceedings against him in respect of the offense alleged against him. **Australia** *Ex Post Facto Law:* Currently, there is no ex post facto clause in the Australian Constitution; however, a right can be implied from the Constitution, and so this principle is protected under the Australian legal system. *Double Jeopardy:* The principle of double jeopardy is also recognized in Australia as part of the common law and is also reflected in several of the state codes. Recent changes provide for a review in instances of grave circumstances when new evidence is made available. *Self-incrimination:* This right commonly referred to as the privilege against self-incrimination is enshrined both under the common law and the act, more specifically the Evidence Act 1995. EXPLANATION** **Article 20: Protection against the conviction of offenses** Article 20 of the Constitution of India is a fundamental right that safeguards the rights of an accused/convict. It lays down three concepts: Article 20(1): Ex-post-facto law Article 20(2): Double Jeopardy Article 20(3): Right against self-incrimination Article 20(1): Ex-post-facto law **Every law has two natures:** 1. Prospective and 2. Retrospective A law is prospective in nature if legislation is made in the area or within the sphere of future acts. In this case, a retrospective law regulates the past activities of the convicts. The offense is other than a violation of a law in force at the time when the act charged as an offense was committed; nor shall any person be deprived of the benefit of the law in force at the time when the offense criminals, but they are passed after a crime had been committed making what previously was legal a crime. Concerning speaking, it is a law that turns such previously legal behavior into an illegality. For instance, let “A” steal, and this took place on the 17th of November, which was not an unlawful act on that particular day. The legislature passed a measure making theft an offense on November, 20th. The Ex Post Facto laws pointed to A as liable for whatever punishment the legislature had set as was the case with the new laws; thereby, demanded that A accept the punishment under the set new laws even though he had no knowledge of the effects of his actions at the time that they were committing the crimes. Article 20(1) provides: It shall be invalid for any person to be convicted of any offense other than a violation of a law in force at the time when the act charged as an offense was committed; nor shall any person be deprived of the benefit of the law in force at the time when the offense was committed; and penal laws shall be prospective only. **There are two aspects in Article 20 (1).** According to the first aspect, no one may be found guilty of a crime unless they committed an illegal or forbidden act when the relevant law was passed. Any law that is in effect when the act is performed must be implemented, and violators must be punished and brought to justice for their actions. This justifies using the phrase “law in force” in Article 20 (1). A law passed after an act has been committed indicates that an act that was lawful before the legislation’s enactment may now be considered unlawful. However, Article 20 (1) will protect the act’s interests and prevent the perpetrator from being held accountable for the law’s violations. Any individual is shielded from a punishment more than that which was imposed for their act at the time they committed it under the second clause of Article 20 (1). Due to an ex post facto law, no one shall be exposed to a harsher penalty than what he would have already faced for the previous act at that specific time. **Article 20(2): Double Jeopardy** **“Nemo debet bis vexari pro una et eadem causa”** Article 20(2) is based on the above maxim which means, “No one ought to be vexed twice for the same offense.” This maxim embodies the protection against double jeopardy. Another significant privilege is protected by this clause, which states that “no individual shall be prosecuted and punished for the same offense more than once.” This means that once an offense is committed, a person cannot face further legal action or punishment for that offense. It protects the accused from being subjected to additional penalties or subsequent legal actions for the same criminal offense. Any law that imposes two penalties for the same offense is void if it does so. It should be underlined that only when the accused has already been “prosecuted” and “punished” once does Article 20 offer protection from double punishment. Even if the two offenses share a trait, this rule does not bar further trials and convictions for a different crime. **Ingredients of Double Jeopardy** - The person should be already accused of an offense - The prosecution for that offense must be going on - The result of that prosecution must be punishment **Article 20(3): Right against self-incrimination** **“nemon tenetur seipsum accusare”** Article 20(3) is based on the abovementioned maxim which means that “no person is obliged to accuse himself”. The right against self-incrimination has existed since medieval times but gained importance in modern times as well since its development in common law countries. This right was started to be considered an essential right and one of the important facets of the principles of natural justice. Another question that strikes our mind is, what is Article 20(3) of the Constitution? Under Article 20(3), the accused cannot be made to testify against himself. At all times, including during the trial stage, the protection is accessible against physical and mental compulsion. It is important to remember that protection only applies to personal knowledge. Things that can be physically manifested, such as my watch, my thumbprint, or a blood sample, are not included. Ingredients: If the following requirements are met, Article 20(3) protection is available. - The person must be “accused of an offense” to qualify for protection under Clause 3 of Article 20. - The prohibition is on being forced to testify. He is required to testify, and the requirement is that he testify “against himself.” **CASE LAWS-** - *Sharma v. Satish Chandra (1954) :M. P. Sharma v. Satish Chandra (1954) :* Issue: This case was concerned with the extent to which Articles 20(3) applied in relation to the search and seizure of documents. Explanation: On this aspect, the Supreme Court was unyielding in its ruling indicating that the protection against having to incriminate one’s self cannot be tantamount to the search and seizure of documents. In the matter, it held that the search and seizure of documents from the accused do not make the process a testimonial compulsion and hence do not fall under Article 20(3). - *State of Bombay v. Kathirullingghad (1962) :\[1979-1980\] 96 BOMLR 414-* In this case, they decided to strike down the provision of the Bombay Police Act which was challenged by the state of Bombay was State of Bombay v. Kathi Kalu Oghad (1962). Issue: This case also discussed Article 20 (2) whereby explains the aspect of double jeopardy. Explanation: The Supreme Court considered that without having his case tried and arraigned in one jurisdiction, and punished, one cannot be again arraigned, tried or punished in another jurisdiction for the same offense. In this one, it was held that prosecution of an individual for an offense for which he has already served his prosecution amounts to violating Article 20(2). - *State of Bombay v. Narasu Appa Mali (1952) : State of Bombay vs. Narasu Appa Mali 1952* was a case dealing with the interpretation of the newly adopted written Constitution of India on the abrogation of the ‘Doctrine of Lapse’. Issue: Effectively, when a law makes an act an offense, it is retroactive; this violates Article 20(1). Explanation: As held by the Supreme Court interpreting Article 20(1) it observed no law shall be retrospective in the sense that its effect is to be given from the past in any penal matters. This case held that no offender should be made to suffer the consequence for an act that was legally deemed criminal when it was performed. - *Nandini Satpathy v. P. L. Dani (1978) : Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1361 :* Issue: This right to be not held responsible for one’s action is vast where one is. Explanation: In this regard, the Supreme Court stated more, that the right against self-incrimination relates to search and seizure as well. This ruling went further to expound this by stating that, it is unlawful to compel a person to give information that will incriminate him or her, as this is inapposite to Article 20(3). - *S. Paripoornan v. State of Kerala (1994) :K. S. Paripoornan v. State of Kerala (1994) :S. Paripoornan v. State of Kerala (1994) :* Issue: Whether this was a violation of Article 20(3) of the constitution was the act of the police to force a person to provide a handwriting sample. Explanation: The Supreme Court concluded that a threat to compel the handwriting of the suspect is not an infringement of Article 20(3). It was also concluded that the request for a handwriting sample does not amount to testimonial compulsion. - *Selvi & Ors. v. State of Karnataka (2010):100. State of Karnataka (2010): State of Karnataka (2010) :* Issue: Criminalistics, especially aspects of Drug evidence received under the exercise of the Narco-Analysis test. Explanation: As per the judgment it is held that the application of the narco-analysis on an accused is a violation of Article 20(3) which says protection against self-incrimination. It continued holding that the evidence obtained from such tests is inadmissible as it violates the right against testimonial compulsion. **DOCTRINES** **The doctrine of Double Jeopardy:** This is a legal maxim that no one shall be held liable to be punished for the same offense twice. It is kept safe by Article 20(2) of the Indian constitution. Double jeopardy safeguards society from subjecting a particular person to trial as well as punishment for an identical violation with the intention of doing it again. **Doctrine of Self-Incrimination:** This doctrine protects people out there from being compelled to give statements that can lead to their imprisonment. It finds its reflection in the provision under Article 20(3) of the Constitution of India. It also safeguards one’s entitlement not to testify to facts that may harm him/her during the course of a case. **Doctrine of Ex Post Facto Laws: Doctrine of Ex Post Facto Laws:** This doctrine banished the idea of applying a penal law in the past especially when the law was implemented after the event took place. Under section 87-A of the Indian Penal Code, Article 20(1) of the Indian Constitution prohibits the state from making any law that suddenly offers a punishment for an act that was not unlawful at the time the act was committed. The doctrine makes sure that people are not put to jail for things that were not legally wrongful at the time when they were committed. **The doctrine of Testimonial Compulsion:** This doctrine concerns Article 20(3) of the Charter and prevents persons not to giving testimonial evidence which leads to self-incrimination. It also embraces both; oral and written procedures. The doctrine establishes a principle that people cannot be compelled to give evidence that will be admissible in criminal prosecution against them. **The doctrine of Reasonable Restriction:** However, Article 20 sets some basic rights for an individual while reasonable restriction of the provisions of this article allows for limitations of these rights, especially in the case of public order, morality, etc. These restrictions must be reasonable under the constitution. **Doctrine of Legal Necessity:** This doctrine emphasizes the importance of protecting individual rights even in situations where it might seem necessary for the state to encroach upon them. It ensures that legal procedures and safeguards are followed, even in exceptional circumstances. **The doctrine of Due Process:** Though not explicitly mentioned in Article 20, this doctrine ensures fair treatment and procedural safeguards during legal proceedings. It emphasizes that legal proceedings must be fair, and just, and follow established procedures, protecting the rights of the accused. **INTERPRETATIONS** Interpretations of Article 20’s clauses have evolved through judicial decisions and legislative actions to ensure its application in contemporary legal contexts: **Protection from Ex Post Facto Laws (Article 20(1)):** Evolution: Judicial interpretation has clarified that ex post facto laws not only include criminalizing an act retroactively but also increasing the punishment for an act after it has been committed. Courts have expanded the scope of what constitutes ex post facto laws to protect individuals from retrospective criminal laws. Example: Courts have held that enhancing the punishment for an offense retrospectively would violate Article 20(1) as it would expose individuals to a greater punishment than what was applicable when the offense was committed. **Protection from Double Jeopardy (Article 20(2)):** Evolution: Courts have clarified that “same offense” under double jeopardy means the same set of facts and not necessarily the same legal provisions. It prevents successive prosecutions for the same offense, whether under the same law or different laws. Example: If an individual is acquitted of murder, they cannot be tried again for the same murder, even if new evidence emerges. **Protection against Self-Incrimination (Article 20(3)):** Evolution: Courts have expanded the scope of protection against self-incrimination to cover not only testimonial evidence but also documentary and other forms of evidence. Example: Courts have ruled that compelling an accused to give voice samples or undergo narco-analysis tests without consent violates the protection against self-incrimination. Interpretation in Contemporary Contexts: Technology and Privacy: With advancements in technology, courts have extended Article 20 protections to digital communications and data, ensuring individuals’ privacy rights are upheld. Terrorism Laws: Courts have balanced Article 20 protections with the need for stringent laws to combat terrorism, ensuring that accused persons are not unfairly targeted or subjected to arbitrary prosecutions. Legislative Safeguards: Criminal Procedure Code Amendments: Legislative actions have been taken to align procedural laws with Article 20 protections, ensuring fair trial rights and preventing abuse of legal processes. Data Protection Laws: New legislation is being framed to protect individuals’ rights against self-incrimination concerning digital data, ensuring these rights are upheld in contemporary digital contexts. **Judicial Review:** Landmark Judgments: Courts have delivered numerous judgments interpreting Article 20 in various contexts, ensuring its relevance and applicability in contemporary legal scenarios. Balancing Rights: Courts consistently balance individual rights under Article 20 with the state’s interest in maintaining law and order, ensuring a fair balance between individual liberties and societal interests. **FUTURE IMPLICATIONS** Article 20 of the Indian Constitution, with its safeguards against double jeopardy, self-incrimination, and retrospective laws, plays a crucial role in protecting the rights of individuals within the legal system. Some potential future implications related to Article 20 could include: Continued protection of individual rights: Article 20 ensures that individuals are safeguarded against certain legal injustices and arbitrary actions. Its continued application and interpretation by the judiciary will be essential in upholding fundamental rights in the future. Evolving legal challenges: As society changes and new legal challenges emerge, the principles enshrined in Article 20 may face new interpretations and applications. Courts may need to address novel situations to ensure that the essence of these protections is maintained. Balancing individual rights and societal interests: There may be cases where the strict application of Article 20 protections conflicts with the broader interests of society, such as in cases of national security or public safety. Balancing individual rights with societal needs will be an ongoing consideration. **CONCLUSION & COMMENTS** Article 20 of the Indian Constitution, is evident that the protections it provides against double jeopardy, self-incrimination, and retrospective laws are fundamental pillars in upholding individual rights within the legal system. These safeguards serve as a cornerstone in ensuring fairness, justice, and human dignity for all individuals. Looking towards the future, the implications of Article 20 continue to be significant. The evolving legal landscape will require continuous interpretation and application of these principles to address new challenges that may arise. Upholding the essence of these protections will be crucial in maintaining a balance between individual rights and societal interests, especially in cases involving national security or public safety. As we navigate the complexities of the legal system, Article 20 stands as a beacon of protection, safeguarding individuals from unjust convictions, and excessive punishments, and ensuring fair treatment in the eyes of the law. By upholding these principles, we reinforce the values of justice, equality, and respect for every individual within our legal framework. **REFERENCES** - Books / Commentaries / Journals Referred - LAW Commentary On The Constitution Of India - Online Articles / Sources Referred - **Categories:** Articles --- ### [Basheshar Nath v. Commissioner of Income Tax, 1959 AIR 149](https://lawfoyer.in/basheshar-nath-v-commissioner-of-income-tax-1959-air-149/) **Published:** July 7, 2024 **Author:** LawFoyer **Content:** **Author:** Icchanshi Srivastava, Law Student at Mahatma Gandhi Kashi Vidhyapith, Varanasi. **Edited by:** Peuli Chakraborty, Final Year Law Student, University of Burdwan, West Bengal. **ABSTRACT / HEADNOTE** Part 3 of the Constitution provides **Fundamental Rights** to citizens. The Indian Constitution does not provide any provisions for waiving fundamental rights because it guarantees and protects the rights of individuals. These rights were given for the enjoyment of or to safeguard the individual. The U.S. Constitution has this **doctrine of waiver**. In this case, the appellant approached the **Supreme Court** by way of a special leave petition under Article 13 of the constitution because the settlement under Section 8A of the Taxation of Income \[Commission and Investigation\] Act, 1947, between the **Commissioner of Income-Tax** \[the respondent\] and Basheshar Nath \[the appellant\] was invalid. After all, the Supreme Court in the case of **Muthiah v. Commission of Income Tax,** 1955, held that Section 5(1) of the Taxation of Income was an infringement of **Article14** The Commissioner of Income Tax contended that Basheshar has already waived off his fundamental rights; now he has no right to sue us. The Supreme Court held in the Basheshar Nath case that fundamental rights are mandatory rights and no citizen can relinquish his rights even through settlement. The Constitution doesn’t provide any provision for waivers of fundamental rights. Article 13 of the Constitution has judicial review power. This Article declares any law or provision void that is an infringement of fundamental rights, and the doctrine of waiver is also declared void under Article 13. ***Keywords*:** Fundamental Rights, Supreme Court, Doctrine Of waiver, Article 14, Commissioner Of Income Tax. **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Basheshar Nath v. The Commissioner Of Income-Tax ***ii)* *Case Number***Civil Appeal No. 208 Of 1958 ***iii)* *Judgement Date***19 November, 1958 ***iv)* *Court***The Supreme Court Of India ***v)* *Quorum / Constitution of Bench***5 Judges Bench ***vi)* *Author / Name of Judges***SUDHI RANJAN DAS (CJ), J.L.KAPUR, N.H. BHAGWATI, SUBBA RAO, S.K. DAS, JJ. ***vii)* *Citation***1959 AIR 149, 1959 SCR SUPL. (1) 528 ***viii)* *Legal Provisions Involved***Section 5, 8A. Article 13, 14,136 Of Indian Constitution. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The doctrine of waiver means voluntary relinquishment of rights. These rights can be granted by the constitution or by any statute; the rights provided by the statute can be relinquished, but the rights provided by the Constitution of India cannot be relinquished in any circumstances because these fundamental rights are not merely for an individual benefit but as a matter of public policy. Rights that are part of public policy cannot be waived. However, the U.S.A. supports this doctrine of waiver, but the Constitution of India doesn’t support this doctrine, even though the Indian Constitution borrowed the concept of fundamental rights from the U.S.A. In the recent case of BashesherNath v. C.I.T., the petitioner escaped the income tax. The Central Government ordered the Commissioner of Income Tax Authorities to examine the account of the petitioner under Section 5(1) of the Income Tax Act. After examining the account of the petitioner, the petitioner was found guilty of tax evasion the Commissioner of Income Tax made a settlement under Section 8A with the petitioner, and in the settlement agreement, the Commissioner of Income Tax authority made the petitioner write that he would not sue the Government of India and the Commission of Income Tax. The question arose as to whether the petitioner waived his right and whether **Section 5(1)** violated **Article 14**. The Supreme Court in this case held that no individual can waive his right. **FACTS OF THE CASE** The fact of the case was that the appellant (Basheshar) had escaped from income tax liability. When the Commission of Income Tax Authorities got to know about his evasion of tax, the central government ordered the income tax authorities under Section 5 of the Taxation of Income Act to establish a commission for examining or investigating the accounts of Besheshar (the appellant). After examining the accounts of the appellant, they submitted the report to the Central Government, and the income tax authorities found that Bashesher concealed his income from paying tax. At the direction of the Central Government of India, the Commission of Income Tax made a settlement agreement under 8A of the Act. Then Basheshar agreed to make the settlement with the commission of income tax on May 19, 1954, and the appellant agreed to pay his income tax by way of penalties in an instalment of Rs. 5,000. The authorities also attached the B properties. They also made a settlement that, in the future, he would not sue the Government of India or the Commission of Income Tax. Bashesher agreed to settle these conditions with the Commission of Income Tax. Later in 1955, the Supreme Court, in the case of Muthiah v. Commission of Income Tax, declared Section 5(1) of the Act, which is an ultraviolet of Article 14 of the Constitution. On this basis, the appellant challenged the validity of the settlement made under Section 8A of the Income Tax Act and claimed they should release his property from attachment and refund his money. The Commission of Income Tax denied the appellant’s claim and held that the settlement was valid. After the decision of the Commissioner of Income Tax, the appellant approached the Supreme Court by special leave under Article 136 of the Constitution and challenged the decision of the Commissioner of Income Tax.The respondent \[the Commission of Income Tax\] contended that the appellant has waived his right to sue against the Central Government and the Commissioner of Income Tax in the settlement agreement. LEGAL ISSUES RAISED** - Can an individual waive his fundamental rights? - Whether a settlement made under Section 8 is valid or not? - Whether Section 5 of the Act on Ultraviolent Article 14? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. The Commissioner of Income Tax has violated the appellant’s rights by attaching his property and making payment of taxes in instalments through settlement under Section 8 because Section 5(1) was declared void in the case of **Muthiah V Commissioner of Income Tax**. 2. The appellant claimed that his attached property must be released and the payment he made must be refunded to him. 3. Seizing the rights of someone through settlement is not valid, even though it was made by the order of the Indian government. **RESPONDENT’S ARGUMENTS** 1. The income tax officer is allowed under sec 5 of the Act to review the records and accounts of the assessee, and it is not a violation of Art. 14 of the appellant. 2. Attaching the property and the instalment payment of taxes are not invalid because Section 8A renders authority for the settlement. 3. During the settlement agreement, the appellant himself waived his right. **RELATED LEGAL PROVISIONS** 1. 1. *“Section 5(1) and Section 8A of the Taxation of Income \[Investigation and Commission\] Act, 1947”.* 2. *“Article 14 and Article 136 of the Constitution”.* **JUDGEMENT** The court held that Article 14 cannot be waived off because rights are a matter of public policy to ensure equality and a large majority of people in India are economically poor and educationally backward. They are not aware of their rights; it is the duty of the judiciary to protect their rights against themselves. Although Article 13 of the Constitution declares a law void if it is an infringement of fundamental rights, Other honourable judges stated fundamental rights can be waived if it is for his benefit. Now that it is an established law that an individual cannot waive off any of his fundamental rights, the court has applied this law in many other cases. such as, in the case of **Yousuf Ali v. M.S. Kasbekar, AIR 1982,** along with in **Nar Singh Pal v. Union of India AIR 2000.** **CONCLUSION & COMMENTS** Fundamental rights cannot be waived off in any condition unless and until individuals waive their rights if it is in their interest, and we should also appreciate that our constitution has no such provision for the waiver of fundamental mental rights. **REFERENCES** - - - - **Categories:** Case Analysis --- ### [Prem Chand Garg vs Excise Commissioner, U. P., Allahabad, 1963 AIR 996, 1963 SCR SUPL. (1) 885](https://lawfoyer.in/prem-chand-garg-vs-excise-commissioner-u-p-allahabad-1963-air-996-1963-scr-supl-1-885/) **Published:** July 7, 2024 **Author:** LawFoyer **Content:** **Author:** B.Eeshmitha Ranjani, Dr. B.R. Ambedkar college of law, Andhra University **Edited by:** Mansi, University Five Year Law College, University of Rajasthan, Jaipur ## **A) ABSTRACT / HEADNOTE** Fundamental rights ensure the protection of the people’s interests. Our constitutional makers had adopted fundamental rights from the American Constitution. The constitutional remedies under Article 32 act as a shield for the proper functioning of these fundamental rights. People can directly approach the Supreme Court when their rights under part-III are encroached upon. In this case, the petitioner filed a plea that his fundamental right was breached by a theme the Supreme Court with the power of Article 142. By the said rule, the court has issued orders to furnish him security costs which barred his right to move to the Supreme Court under Article 32. The judges had made keen observations on petitioners’ and respondents’ arguments. So, the court thought that any rule that is contrary to fundamental rights should be held void. Below there was an in-depth explanation of this case. ***Keywords:*** Article 32(1 ), Security for costs, Writ petition, Fundamental rights ## **B) CASE DETAILS** **i) Judgement Cause Title / Case Name**: PREMA CHAND GARG V. EXCISE COMMISSIONER, U.P. ALLAHABAD **ii) Case Number**: PETITION NO.52 OF 1962 **iii) Judgement Date**: 6 November 1962 **iv) Court:** THE SUPREME COURT OF INDIA **v) Quorum / Constitution of Bench:** FIVE JUDGE BENCH **vi) Author / Name of Judges:** P.B. GANJENDRA GADKAR JUSTICE, SINHA JUSTICE, P. BHUVESHWAR CHIEF JUSTICE, K.N. WANCHOOJUSTICE, K.C. GUPTAJUSTICE, J.C. SHAH JUSTICE. **vii) Citation:** 1963 AIR 996 **viii) Legal Provisions Involved:** ARTICLE 19, 32, 142 (1) AND 145 OF THE INDIAN CONSTITUTION; ORDER 25 RULE 1&2, ORDER 41 RULE 1 OF THE CIVIL PROCEDURE CODE. ## **C) INTRODUCTION AND BACKGROUND OF JUDGEMENT** Article 32 explains the concept of constitutional remedies, this right is to protect and preserve the fundamental rights of any citizen in India. When any individual rights are violated or misused, then this right comes into the picture. Through these constitutional remedies, one can directly approach the Supreme Court. Along with that under Article 226 a writ petition can placed before the high court too. **HEART AND SOUL OF THE CONSTITUTION-** Dr. B.R. Ambedkar has stated that Article 32 is the **“Heart & Soul”** of the Constitution. It gives power to every person in India, to question in Supreme Court when there is a violation of anybody’s fundamental rights. There are many Landmark cases such as“Kesvananda Bharati sripadagalvaru Vs. State of Kerala AndAnr, M.C.MehtaAndAnr Vs. Union of India &Ors. (1986), Maneka Gandhi Vs. Union of India (1978)” where writ petitions were filed when fundamental rights of the petitioner are infringed so on. In all these cases supreme Supreme Court’s judgment protects the fundamental rights of Individuals. If any rules violated these rights they were declared by the court as void or invalid. Even Article 13 (2) states that the state should not have any rules or laws in violation of part III of the constitution if made that will be void. Here in this case, the petitioner stated that his fundamental right to appear in the Supreme Court was violated when the court ordered through the impugned rule to pay security costs. This rule was made with the power vested in the court under Article 142 & Article 145 (f) of the constitution, which explains that the court can impose security costs on the case it is considered necessary. However, the honorable court has given judgment interpreting the significance of preserving the fundamental rights over any other rules even though made with the authority under Article 142. Thus, a petition was allowed by the four judges on the bench, whereas Justice Shahveven had a separate judgment stating tonetoners contention and held that the rule was not void. ## **D) FACTS OF THE CASE** Prem Chand Garg and 8 Anr., partners of M/s. Industrial Chemical Corporation, Ghaziabad laid down a petition under Article 32 on the matter that orders passed by the excise commissioner, U.P. to furnish payment of security in the sum of Rs. 2,500/- in cash within six weeks. Unable to collect the essential amount, the present petition was filed on March 16, 1962. Here, the petitioner contended that the O.XXXV r.12 Supreme Court Rules, which stated for the payment of security costs was invalid because it opposed the fundamental right to move to the Supreme Court t under article 32(1) of the constitution. ## **E) LEGAL ISSUES RAISED** - Whether the petitioner’s fundamental right to move to Supreme Court under Article 32 infringed based on the r.12 or not? - Can any rule made with the power of Article 142 have such an authority to violate fundamental rights? - Whether the impugned rule retards the assertion or vindication of the fundamental rights of the petitioner? ## **F) PETITIONER/ APPELLANT’S ARGUMENTS** i) The learned petitioner’s counsel contended that the impugned rule which was subject to furnish the security costs was ultra vires as it curtails the petitioner’s right to move to the supreme court under Article 32(1) of the Indian constitution. ii) Mr Pathakak representing the petitioner’s counsel, stated the fundamental right Article 32 was an “absolutely absolute” right not having any exceptions unlike the rights guaranteed by Article 19. iii) To support his contentions, he mentioned the decisions of cases such as Ramesh Thappar v. The State of Madras (1), Chintaman Rao v. The State of Madhya Pradesh, and Kameshwar Prasad v. State of Bihar, explaining the fundamental right to file a writ petition under Article 32 (1) should not be violated using any other rules. iv) He further stated that, even in the cases where O.25 r. 1 and 2 and O.41 r.10 of c.p.c provisions may commonly apply,the court cannot issue any orders for security costs. And through a test, it should decide by questioning whether the rule assists the assertion or vindication of the fundamental right or does it retard or obstructs it? If it does retard or obstruct the fundamental right of the petitioner by implementing monetary chargers on the petitioner then the rules are said to be bad and, in this case, also this will apply, so the court has no power to make such orders under Article 145 and no jurisdiction make these orders under 142. ## **G) RESPONDENT’S ARGUMENTS** i. The learned counsel for Respondent has stated that the rule challenged before this court by the petitioner was not invalid as it did not infringe the petitioner’s right. Because the said rule was discretionary. So, according to the circumstances of the case court will impose security costs in those cases where they think it is necessary. ii. Solicitor general appearing on behalf of the respondent argues that in certain cases security costs can be charged to the petitioner as per the normal rule under O.25 r.1& 2 and O.41 r.10 of the civil procedure code. Same with all the other court courts in this case also the court should treat both the parties in a fair and just manner. If the court decides to impose pecuniary obligation, then the security costs should be paid by the petitioner. iii. He also suggested adopting the rule of harmonious construction to restore the powers with Article 32 and to determine the broad affection of the provisions Aof rticle 142 & Article 145. iv. Respondent counsel asked the court to make a comparison between Article 142(1) and Article 194 (3) and interpreted that the powers, privileges and immunities specified by the latter article were not subject to the provision in respect of fundamental rights, same in article 142 also the power specified were subjected to the aforesaid rights and in favor his argument he had relied on the case named Pandit M.SM Sharma vs, Shri Krishna Sina ## **H) RELATED LEGAL PROVISIONS** ### **“ Constitution of India,1950** #### **Article 32- Remedies for enforcement of rights conferred by this Part** (1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (4)The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.” #### “**Article 142- Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc** (1)The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2)Subject to the provisions of any law made on this behalf by Parliament, the Supreme Court shall, as respect the whole of the territory of India, have all and every power to make any order to secure the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself”. #### “**Article 145-Rules of court, etc.** (1) Subject to the provisions of any law made by Parliament, the Supreme Court may from ltimeto time, (2) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein. ” ### **Civil Procedure Code,1908** #### **“Order 25 of CPC-** Rule 1: When security for costs may be required from plaintiff (1)At any stage of a suit, the Court may, either of its motion or on the application of any defendant, Order the plaintiff, for reasons to be recorded to give within the time fixed by it security for the payment of all costs incurred and likely to be incurred by any defendant: Provided that such an Order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property with India other than the property in suit. (2) Whoever leaves India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule (1). ” “Rule 2: Effect of failure to furnish security (1) In the event of such security not being furnished within the time fixed, the Court shall make an Order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom. (2) Where a suit is dismissed under this rule, the plaintiff may apply for an Order to set the dismissal aside and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to the security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (3) The dismissal shall not be set aside unless notice of such application has been served on the defendant ” #### “**Order 41 of CPC** Rule 10: Appellate Court may require the appellant to furnish security for costs (1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterward on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or both ” ## **I) JUDGEMENT** ### **RATIO DECIDENDI** The judgment of Sinha ( C.J.), Gajendragadkar, Wanchoo and das Gupta JJ., was held as follows when the petitioner filed a petition for impeaching the validity of the order passed by the excise commissioner refusing permission to distillery supply of power alcohol to the petitioner the court considered this petition and rule was ordered by the court to be issued to the respondents. When the rule was issued, the court directed to deposit a security of 2,500/- in cash within six weeks. Since 1959, this order treated as a condition for passing rule Nisi to charge the respondent in the court. But the petitioner unable to collect the requisite amount, then filed the present petition contending the impugned rule to furnish the security costs was ‘ultra vires’ as it violated the fundamental right i.e., the right to move to the Supreme Court under Article 32(1). This right has a very pivotal role that (4) in Article 32 mentioned that this right shall not be suspended except as provided by the constitution. It is a guaranteed right to the citizens of India. The right to move the Supreme Court is such a right that it cannot be circumscribed or impaired on any ground. In the case Vide state of Madras Vs. V.G. Row it was held that the court must act in the role “Of a sentinel on the quit vive” and in Vide Daryao Vs. The State of U.P., the court must regard its dignified duty to safeguard fundamental rights zealously and vigilantly. As said by the petitioner even though in the case where there court can implement O.25 r. 1&2 and O.41 r.1 of the civil procedure code it was contended that the court should figure out in which case security costs can be furnished from the petitioner, a test was proposed by petitioner which was, to question whether the rule aid or assist the assertion or vindication of the fundamental right or does retard or obstructs it? It was figured out that if that particular rule was placing a pecuniary obligation on the person, then the following rule should be considered to be invalid, here in this statement court observed that the impugned rule didn’t aid or assist the assertion or vindication of the fundamental right of the petitioner under article 32, keeping in view these points the court had said that the impugned rule is declared to be void in the present petition. In support petitioner’s oner argument, he relied on the case Cape of Kavalappara Kottarathil KochunniMoopil Nayar V. The State of Madras to explain the wide scope and effect of Article 32. Although the court has the discretionary power to impose security costs in the cases as it may deem fit, it cannot issue security costs infringing the fundamental rights under Article 32 of the Constitution. Articles 142(1) and 145 have given the Supreme Court power to pass any order to do justice to both parties to the case. However, the apex court cannot make rules or orders contrary to the Fundamental right guaranteed under Article 32. Also, the court observed the past decade’s statistical data of the petitions filed by the people under Article 32, mostly when their fundamental right under Article 19 (1) (f)& (g) was violated. The respondent represented by the solicitor general had argued that the court under Article 142 has very wide and discretionary power to do justice to both parties. The court can impose security costs on the parties which, it thinks is necessary. And to view Articles 142 and 194 with the rule of harmonious construction. He relied on cases such as Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha and others &K.M. Nanavati vs. State of Bombay. But the court observed if any rule imposing financial liability thresholding the petitioner and benefiting the respondent, such rule should be struck down so, keeping this view, the court has declared Rule 12 to be invalid. Setting aside the order to furnish the security costs of 2,500/- on the petition was allowed at last. Now a separate judgement was declared Shah J,held thats contended by the petitioner counsel the court order to furnish the security costs under the impugned rule does oppose his right to approach the Supreme Court under Article 32 (1) when there was encroachment of his fundamental right. Besides, Article 142 confers the power to issue any decree or order and make rules in certain cases where court believes it was necessary to do proper justice for both the parties. As said before;to do justice, court has power to imposed security costs, this will not amount to violation of the fundamental rights of the petitioner. According to case refer Pandit M.SM Sharma vs, Shri Krishna Sinha it was that article 142 and Article 32 should be read with harmony. ## **J) CONCLUSION& COMMENTS** The constitutional remedies were providing protection for the people to a major extent when their fundamental rights were curtailed. Article 32 is really an “Absolutely absolute” right as stated by the petitioner. Whereas, in the judgment of Justice Shah, we can observe he held that the impugned rule was not void , because the honourable court having discretionary power under Article 142, it will impose security costs only when the court thinks it was necessary. ## **K) REFERENCES** ### **a.Important Cases Referred** i) ‘Ramesh Thappar vs The State Of Madras (1950) AIR 124’. ii) Shri Chintaman Rao & Another vs The State Of Madhya Pradesh (1958) AIR 118. iii) Kameshwar Prasad And Others vs The State Of Bihar And Another (1962) AIR 1166. iv)State Of Madras vs V.G. Row.Union Of India & State (1952) AIR 196 . v)Daryao And Others vs The State Of U. P. And Others (1961) AIR 1457. vi)Kavalappara Kottarathil Kochuni And … vs The State Of Madras And Others (1960) AIR 1080. vii)Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha And Others AIR 1166. ### **b. Important Statutes Referred** i) The Constitution Of India ii) Civil procedure code,1908 \[ONLY FOR OFFICIAL USE BY LAWFOYER’S EDITORIAL TEAM – NO INTERN SHOULD REMOVE OR MAKE CHANGES TO THIS SEGMENT IN ANY CASE\] PLAGIARISM REPORT: \[if no plag enter N A\] AI PLAG REPORT: \[if no plag enter NA\] FORMAT/ FLUENCY REPORT: \[if no fluency/format error enter NA\] **Categories:** Case Analysis --- ### [The Concept of Trespass to Person in Indian Tort Law](https://lawfoyer.in/the-concept-of-trespass-to-person-in-indian-tort-law/) **Published:** July 7, 2024 **Author:** LawFoyer **Content:** **Author: Gopika Khatri, University of Petroleum and Energy Studies** **Edited By: Mansi, University Five Year Law College, University of Rajasthan, Jaipur** ## **A) INTRODUCTION** This article aims to cover the following aspects related to Trespass to a person under Tort Law: **1. Definition:**– An explanation and legal definition of trespass to a person. **2. Types of Trespass to person:-** Detailed explanation of assault battery and false imprisonment. **3. Elements:-** Essential elements that must be proven for a successful claim of trespass to the person. **4. Defences:-** defenses that may be employed to counter the claims of trespass to a person. **5. Legal Remedies:-** an overview of remedies available to victims of trespass to person. **6. Relevant case law:-** cases that shaped the understanding and application of this topic. **7. Conclusion:-** A summary of key points discussed. Keywords:- Apprehension, Causation, Redress, Imminent, Intent ## B) SUB-HEADINGS ### 1. Meaning, Definition & Explanation **Trespass:**– It is derived from the lLatiLatin wordnsgression” meaning thereby to go beyond the law. An unlawful act committed on the person, or property rights of another especially a wrongful entry on real property. **Trespass to person:**– It is a tort that is frequently committed in everyday life. It is an unreasonable interference with the body of a person that can be committed either by causing actual harm or by just causing an apprehension of force which is further divided into assault, batteranand d y, false imprisonment. Ex:- the act of going onto a person’s land without his permission. ## Historical Background / Evolution **1. Medieval England:-** This concept first came in the medieval English common law as a way to deal with direct harm caused by wrongdoing. It was a means for people to seek justice when someone has caused them injury. **2. Refinement of Torts:-** During this period diff b/w assault, battery and false imprisonment became more defined. Judicial decisions started to refine the elements of trespass to persons and establish clear standards for liability adefensesces. **3. Development in courts:-** They focused on establishing intent, consent, and the reasonableness of actions as key factors in determining liability. **4. Modern Application:-** Trespass to the person is still a crucial part of tort law. It deals with various types of personal harm and manages to stay relevant by adapting to new contexts and the values of society. The goal of this combination of system and user prompts is to help the assistant enhance the text and make it sound more like something a native English speaker would write. The aim is to maintain a casual yet informative tone while ensuring that the information provided remains accurate and true. **2. Comparison with other Countries** **COMPARISON OF TRESPASS TO PERSON B/W INDIA AND USA** Both India and the USA recognize trespass to person legal concept that protects individuals from unwanted physical contact and interference with their liberty. **DIFFERENCES IN BOTH OF THEM** Intent:- In India generally there is a requirement for intention or knowledge that the act would likely cause physical contact. On the other hand, in the USA, some states follow a similar approach while others have a more relaxed standard They focus on whether a reasonable person would foresee the offensive contact. **DEFENCES:-** Both India and the USA recognize self-defense and consent as defenses. However, in India, there might be specific provisions for defenses like mistakes of fact. In the USA, the specific legal justifications for defense can vary by state. In the USA, each state has its laws regarding trespass to a person so specific details can vary depending on the jurisdiction. In India, criminal trespass falls under the Indian Penal Code (IPC) Section 441 I while trespass to a person is governed by tort law. **3. Types / Kinds** It is divided into 3 types of tort law • **Assault** (The threat or attempt that harms another person like slapping, punching and pushing) • **Battery** (An intentional tort that deals with creating unconsented harm to another person like touching, spitting or even kissing) • **False imprisonment** (The intentional act of restricting someone’s physical freedom without lawful justification for example A person locking another person in a room without his permission) **4. Essentials / Elements / Pre-requisites** **Essentials of Assault** **• Intent:-** It plays an important role in assault cases it’s necessary to prove that the defendant had the intention to cause reasonable fear if there is no evidence to harm there can be no assault The burden of proof lies on the plaintiff to show that the defendant acted with malicious intent. **• Apparent ability to carry the threat:-** The defendant needs to have the power to carry out the threat for it to be considered valid. Eg:- a train moving train makes a gesture towards someone outside the train, In this case, it wouldn’t be considered assault because the person on the train can’t physically harm the other person they can’t hit them while on a moving train. The threat needs to be immediate and possible for it to be taken seriously. **• Apprehension:-** It is required that the act of the defendant creates a reasonable apprehension in the mind of the plaintiff the plaintiff should be able to apprehend that there is the possibility of some damage. **• Knowledge of threat:-** It is required the hat plaintiff should know the threat if a person puts a gun from behind but never pulls the trigger, it cannot be assaulted because the plaintiff does not know of it. **Essentials of Battery** **• Use of force:-** Battery requires that there should be the use of some force or physical force it can be direct or indirect it is also irrelevant when force is created by any injury or damage. **• Without lawful justification:-** The use of batteries should be without lawful justification for ex if a policeman touches another person in performing his duty it cannot be said battery. But if a policeman touches another person unlawfully, it will constitute a battery. **Essentials of False Imprisonment** False Imprisonment total Restraint:-In order for something to be considered as false imprisonment, a person must be completely restricted from moving beyond certain limits. If someone is prevented from going in one direction but is still allowed to go back, then it does not qualify as false imprisonment. So, to sum it up, false imprisonment occurs when there is total restraint on a person’s freedom of movement beyond specific boundaries. **• Knowledge of plaintiff:-** Detaining someone else would have been unjust. It’s not necessary for the person accusing another of false imprisonment to have known about thethefringement on their freedom at the time of the confinement. **5. Defences** **Defenses of assault and battery** **• Kicking someone off your property:-** If someone enters someone else’s property without permission and refuses to leave even after being asked, you can kick them out using as much as force necessary. In this situation using force is justified. **• Lawful Correction:-** Assault and Battery can sometimes be justified if they are used as a way to correct someone’s behavior. For eg:- correcting a student or a child. However, the corrective measures shouldn’t be unreasonable or excessive. **• Retaking of goods:-** If someone wrongfully takes someone else’s property, the rightful owner or someone authorized to take care of the owner’s property can ask for it back. If the wrongdoer refuses, the rightful owner and authorized person can use reasonable force to get it back depending on the situation. **• Keeping the peace:-** If someone is causing trouble at a public place of worship, they can be stopped from doing so using reasonable force to maintain public peace. **• Satutory Authority:-** If a person with legal authority is carrying out their duty and someone tries to obstruct them, the person can be stopped with the use of force. **Defenses of false imprisonment** **• Probable Cause:-** Establishing probable cause through actions is crucial to avoid false imprisonment. It is important to note that the test of determining probable cause isn’t based on an actual crime bit it instead focuses on objective evidence of wrongdoing by an individual. **• Valid arrest:-** If someone gets arrested because they’ve done something illegal and there’s a legitimate reason for the arrest, it’s not considered false imprisonment. **• Consent to Restraint:-** If someone willingly agrees to be confined without deceit or trickery involved, they can’t claim they’re a victim of imprisonment. **6. Legal Remedies of Trespass to person** - **Action for damages:-** If someone’s body has been trespassed, they have the right to bring a legal action and claim damages. These damages aren’t just for physical injuries but also for any harm to their freedom. So, when someone’s body is violated, they can seek monetary compensation for both the physical and emotional impact it has caused. - **Self help:-** It is the remedy available to a person who has wrongfully restrained. The person can be free himself instead of waiting for a legal action. - **Habeas Corpus:-** Supreme Court under Article 32 and High Court under Article 226 can issue writ for a person who is wrongfully detained by this individual who is detained to produce the detained person before the court and rationalize his detention. The person would released immediately if court finds the reason for detention unreasonable. **7. Tradition based laws** Tradition-based law and religious principles are imperative to the resolution of personal disputes, including trespass. Concepts of justice, restitution, and forgiveness play central roles. **Hindu Law:** Traditional Hindu legal principles, drawn from texts like the Manu smriti, influence personal conduct and dispute resolution, emphasizing dharma (duty) and karma (action). **Example:** In rural India, local customs based on Hindu traditions may guide the resolution of personal disputes, including trespass, through community councils. **8. Case Laws / Precedents / Overrulings** **Bird v. Jones (1845):** So, in this case, the court said that if someone touches you without your permission, even if it doesn’t hurt, it’s still considered trespass to person. This was a big deal because it established the idea that intentionally messing with someone’s body is a trespass. **Fisher v. Carrousel Motor Hotel, Inc. (1967):** Now, this case made it clear that trespass to person covers both direct and indirect physical contact. It even includes stuff like putting something on someone’s body without their consent. In this case, a waitress put a piece of paper on a customer’s shoulder, and that counted as trespass to person. **Wainwright v. Home Office (2003):** In this more recent case, the court expanded the idea of trespass to person to include acts that mess with your head. They said that unlawful detention and false imprisonment can also be considered trespass to person. So now, it’s not just about physical harm, but also about psychological harm. **Stanley v. Powell (1891):-** The court held that unwanted touching, even if it doesn’t result in injury, constitutes trespass to person. The case established that a plaintiff can claim damages for the indignity suffered from the unwanted contact, reinforcing the principle that bodily integrity is protected under the law. **9. Doctrines** - **Doctrine of Directness:-** The interference must be direct result of defendant’s action. For eg;- If a person throws a stone at another person and it hits them directly, it qualifies as trespass. - **Doctrine of Unlawful Restraint:-** For false imprisonment, the restraint of person’s freedom must be unlawful and without consent. For eg:- Locking someone in a room without their permission is false imprisonment. - **Doctrine of proportionality in self-defence:-** Action taken in self-defense must be proportional to the threat faced. For eg:- If someone is attacked, they can use reasonable force to defend themselves without committing trespass. - **Doctrine of intent:-** The Defendant must have intended the act that cause the interference, even if they have not intend the specific harm. For eg:- If S tries to punch J but misses hitting R instead S can be held liable for hitting R even though she didn’t intend to hit R. **10. Maxims / Principles** - **Volenti non fit injuria:-** To willing person, no harm is done. - **Injuria sine damno:-** Injury without damage this principle holds that a legal wrong (injuria) can be actionable even if no physical damage(damno) occurs. For eg:- In case of assault the mere act of causing apprehension of harm is sufficient for a claim even if no physical injury occurs. - **Damnum sine injuria:-** Damages without legal injury this tells that not all harm results in a legal claim there must be violation of right. For eg:- emotional distress alone without wrongful act may not constitute trespass. - **Qui facit per alium facit per se:-** This principle means that a person can be held liable for the actions of another if they directed those actions. In case of trespass if someone directs another to commit an assault, they can also be held responsible. - **Ex turpi causa non oritur actio:-** This maxim prevents a person from pursuing a legal remedy if it arises from their own illegal act. For eg:- if someone is injured while committing a crime, they may be barred from claiming for that injury. **11. Future Implications** **Wearable Technology:-** Devices like smartwatches and fitness tracker that monitor health metrics might raise concerns about unautorized data collection leading to new forms of trespass claims. **Increased awareness of Rights:-** Greater public awareness of rights may lead to more claim of trespass to person education efforts can empower individuals to seek justice for personal violations. **Pandemic Responses:-** Experiences from COVID-19 may lead to new regulations around like physical interactions, and public health measures influencing how trespass to person is addressed in contexts of health emergencies. ## C) CONCLUSION & COMMENTS The whole idea of trespassing on someone’s personal space is a big deal in tort law. It’s all about protecting people from intentional and illegal intrusions that mess with their physical well-being and freedom. We’re talking about things like assault, battery, and false imprisonment – each one dealing with a different kind of personal violation. As time goes on and society changes, we’ve got to adapt these principles to fit new challenges like fancy technology, shifting social norms, and incorporating traditional practices. Our legal system tries to find a balance between keeping people safe and letting them have control over their own lives. That means recognizing things like consent, self-defence, and other defences to make sure we’re being fair and just in the end. ## D) REFERENCES **1. Books / Commentaries / Journals Referred** a. Harvard Law Review” b. Law of Torts by RK Bangia c. Law of torts ratanlal and dhirajlal 2\. Online Articles / Sources Referred a. https://www.lawyersnjurists.com/article/law-of-trespass-to-a-person/ Law of Trespass to a Person” – This resource provides a comprehensive overview of trespass to person, **3. Cases Referred** a. Bird v. Jones (1845) b. Stanley v. Powell (1891) c. Wainwright v. Home Office (2003) d. Fisher v. Carrousel Motor Hotel, Inc. (1967) **Categories:** Articles, Law of Torts --- ### [Bhikaji Narain Dhakras v. State of Madhya Pradesh and Another,1955 AIR 781, 1955 SCR (2) 58](https://lawfoyer.in/bhikaji-narain-dhakras-v-state-of-madhya-pradesh-and-another1955-air-781-1955-scr-2-58/) **Published:** July 7, 2024 **Author:** LawFoyer **Content:** **Author- Aryaman Arora, University Five Year Law College, University of Rajasthan, Jaipur** **Edited By- Mansi, University Five Year Law College, University of Rajasthan, Jaipur** ### A) ABSTRACT / HEADNOTE This case analysis examines the detailed issues related to pre and post-constitution laws. This case includes the parties CP Transport Service Servicing Transport company, these two big players are greatly affected by the newly enacted 1947 amendment act which gave the provincial government power to create a monopoly and acquire trade routes for themselves, even though the plaintiffs have a permit to trade, they are denied of so. The key issue that went to court was an interpretation of Articles 13(relating to inconsistent laws), 19(relating to trade freedom) and 31(2). Along with the constitutionality of the alleged 1947 Act concerning the violation of fundamental Rights. This proved to be a landmark judgment in which the court used the Doctrine of Eclipse and indulged in interpretations of word like ‘void’ and ‘dormant’ and ultimately dismissed the writ petitions filed by the motor operators on the ground that subsequent amendments to the constitution namely (4th and the 5th constitutional amendments), rectified the inconsistencies in 1947 Act and revalidated it once again making it operable. ### B) CASE DETAILS - **Judgement Cause Title / Case Name:** Bhikaji Narain Dhakras And Others vs The State Of Madhya Pradesh - **Case Number:** Petitions No. 189 to 193 of 1955 - **Judgement Date:** 29 September 1955 - **Court:** Supreme Court of India - **Quorum / Constitution of Bench:** Sudhi Ranjan Das, N.H. Bhagwati, T.L.Venkatarama Aiyyar, Syed Jaffer Imam, N. Chandrasekhara Aiyar - **Author / Name of Judges:** Acting Chief Justice S.R. Das - **Citation:** 1955 AIR 781, 1955 SCR (2) 589 - **Legal Provisions Involved Constitution of India** – (Article 13, 19, 31,32), Motor Vehicles Act, 1939, C.P & Berar Motor Vehicles (Amendment) Act, 1947 ### **C) INTRODUCTION AND BACKGROUND OF JUDGEMENT** This particular case in point delves into the concept of Doctrine of the eclipse:- This doctrine as enshrined in Article 13(1) – “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void.”, which simply means that any law which came into force even before the enactment of the Constitution of India in 1950, if found in violation of the fundamental rights as promised to the citizens of India does not instantaneously null and void, but simply remains dormant or unenforceable till the extent of the inconsistency. The law can once again become fully operable when by way of an amendment it attifies the inconsistency in that specific law such that it no longer commits the said breach of fundamental rights. This doctrine is one of the most prominent doctrines and also finds its applications not just in this particular case but in many of the landmark cases decided by the Indian Judiciary ### D) FACTS OF THE CASE The Factual Matrix, The petitioners were carriage operators in Madhya Pradesh and for a long time had been carrying their business as per permits given under the Motor Vehicle Act. The core problem arose when a new amendment, increased the powers given to the government of the province, essentially giving them the power to create a monopoly in the transport business, which it exercised on 4th February 1955 by taking over certain routes that drastically affected the petitioners economically. 27th May 1955, The Petitioners filed a writ petition in Supreme Court, that aimed to challenge the constitutional validity of the 1947 amendment. They contended that their right to do trade as given in Article 19 was being infringed by the said amendment and asserted it became void as per provisions of Article 13(1). After due consideration and deliberation, on 29th September 1955, the Hon’ble Supreme Court in this landmark judgment dismissed the petitions and upheld the validity of the act based on the doctrine of eclipse. ### E) LEGAL ISSUES RAISED i. Whether C.P & Berar Motor Vehicle (Amendment) Act, 1947 became void after the Constitution of India 1950 came into force, owing to its inconsistencies with Article 19(1)(g) {Freedom to Trade} ii. Whether a law, once rendered void under Article 13(1) of the Constitution, can be revived by later amendments without the need for re-enactment. iii. Whether the amendments to the Constitution (expressly the 1st Amendment, 1951 and 4th Amendment, 155), removed the inconsistencies of the disputed CP & Berar Act, hence restoring its validity. ### F) PETITIONER/ APPELLANT’S ARGUMENTS 1\. The counsels for Petitioner submitted that the said Amendment Act conferred substantial powers to the Provincial Government, allowing them to create a monopoly in the transport business . They asserted that such an act was violative of fundamental rights enshrined in part III of the constitution (especially Article 19’s Right to Carry Trade). –Moreover cited violation of Article 31 (2) “No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned….”, which relates to the acquisition of property by the state only under certain conditions. 2\. The petitioners also relied on the case of Shagir Ahmad v. State of U.P to substantiate their argument that the CP & Berar Act became upon enactment of the Constitution under Article 13(1) {relating to laws inconsistent with fundamental rights}, that the contested act applied a total prohibition on carrying out trade by transport operators and was no manner ‘reasonable restriction’ as laid in Article 19(6). 3\. The learned counsel on behalf of petitioner contended that the contested amendment act was rendered void under article 13(1) and bolstered this argument by citing Professor Cooley’s work on Constitutional limitations (also cited in the aforementioned Shagir Ahmad case) which argues that laws which are void owing to their unconstitutionality remain ‘dead’ and cannot be revived by later amendments. 4\. The learned counsel for the petitioner contended that the First and the Fourth Constitutional Amendments (1951 and 1955 respectively) did not restore the said contested act. They agreed, that these amendments were to address certain irregularities in the Part III of the constitution but also affirmed that they explicitly did not mention nor revalidate the act in question. They firmly maintained without a special re-enactment through the legislative process, the Berar Act couldn’t be restored to validity. ### **G) RESPONDENT’S ARGUMENTS** i. The counsels for Respondent submitted that the act in question did not become void in entirety upon the Constitution’s enactment in 1950 . They cited article 13(1)- “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void” , emphasizing on the term ‘void’ and argued it meant only ‘till the extent of inconsistency’ , and didn’t imply the entire act to be obliterated/wiped out. ii. They also relied on Keshavan Madhava Menon v. State of Bombay to bolster their argument that the Act was not dead but only dormant . They further used this case to argue that after the First amendment’s rectification , the CP & Berar Act ceased to be inconsistent and once again became operational. iii. The respondents counsel argued that the Fourth Amendment, 1955 had retrospective effect and had been explicitly applied at the CP & Berar Act and made it constitutional . Therefore , the petitioners now couldn’t challenge it under Article 31(2) {conditional acquisition of property}. ### B) RELATED LEGAL PROVISIONS #### **Constitution of India –** i. Article 13(1) – “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void.” . ii. Article 19(1)(g) – “All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business.” iii. Article 31(2) – “No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.” #### Motor Vehicle sections involved: Section 58 of Motor Vehicles Act, 1939 – Related to grant and renewal of permits. Section 43 of Motor Vehicles Act, 1939 – Conferred powers on provincial government. #### **Other provisions involved:** Section 299 of Government of India Act, 1935 Constitution (First Amendment) Act, 1951 – Amended Article 19(6). Constitution (Fourth Amendment) Act, 1955 – Amended Article 31(2). C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948) – Amended Motor Vehicles Act for Central Provinces and Berar region. ### H) JUDGEMENT The Supreme Court in its final Judgment on 29 September, 1951 , dismissed the petitions filed by Bhikaji Narain Dhakras and others , ultimately upholding the validity of CP & Berar Act . The court upheld the notification of the state government in taking over transport routes . Furthermore , the court restored the validity of the 1947 Act , taking into account the First Amendment 1951 and Fourth in 1955 , that rectified the inconsistencies of the contested act with respect to Article 19(1)(g) and 31(2) . The Hon’ble court affirmed that the 1947 Act was merely ineffective until its rectification by constitutional amendments rather than being completely ‘void’ , owing to Doctrine of Eclipse . ### I) CONCLUSION & COMMENTS The case being a landmark judgment of the apex court, is definitely a one of its kind precedent than delves into the intricacies and analysing the interplay between pre-constitutional and post-constitutional laws. The deep deliberation and analysis of all the smallest aspects of laws involving Articles 13, 19(1)(g) and 31(2) along with considering their retrospective nature is definitely evident in the greatly formulated judgment . I believe the apex court did justice in this case by upholding constitutionality of the 1947 Act. Moreover I believe the petitioner’s arguments were way less convincing and lacked in terms of legal quality. ### J) REFERENCES **Cases Referred:** i. Saghir Ahmad v. The State of U.P. & Others, 1954 AIR 728- This case was cited by the petitioners to argue that laws inconsistent with fundamental rights are rendered void and cannot be revived without re-enactment. ii. Deep Chand v. State of Uttar Pradesh (1959 AIR 648) – This case was likely referenced to discuss the implications of Article 13(1) on pre-constitutional laws. iii. Keshavan Madhava Menon vs The State Of Bombay, 1951 AIR 128, 1951 SCR 228- used to bolstered respondent’s argument that the act was merely dormant and not ‘dead’ **Important Statutes Referred**: The Constitution of India: 1\. Article 13(1) – Laws inconsistent with or in derogation of the fundamental rights. 2\. Article 19(1)(g) – Protection of certain rights regarding freedom of speech, etc. (right to practice any profession, or to carry on any occupation, trade, or business). 3\. Article 31(2) – Right to property and the conditions under which the state can acquire property. **Motor Vehicles Act, 1939**: i. Section 58 – Permits for stage carriages and other transport vehicles. ii. C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948) – Amended the Motor Vehicles Act, 1939, granting the Provincial Government the power to monopolize the motor transport business. **Constitutional Amendments:** i. First Amendment Act, 1951 – Introduced changes to address inconsistencies with fundamental rights. ii. Fourth Amendment Act, 1955 – Further amendments to harmonize laws with the Constitution. **Categories:** Case Analysis --- ### [Defamation under Indian Penal Code and Bhartiya Nyay Sanhita: Provisions, Exceptions, Types, and Cases](https://lawfoyer.in/defamation-under-indian-penal-code-and-bhartiya-nyay-sanhita-provisions-exceptions-types-and-cases/) **Published:** July 7, 2024 **Author:** LawFoyer **Content:** **Author: Pratyush Mahapatra, Lajpat Rai Law College, Sambalpur University** **Edited By: Gyanu Patel, Law Student at Amity University, Lucknow, Uttar Pradesh** **INTRODUCTION** When someone injures the reputation of other by words or by any other act, it is called as defamation. Defamation in India is both a civil and criminal wrong. Treating defamation as a civil wrong amount to compensation paid by the wrongdoer on the other hand as a criminal wrong the wrongdoer needs to be punished according to law. However there are certain exceptions to this provisions in the code itself. ***Keywords*:** *Defamation, freedom of speech and expression, reputation, Section 499 of IPC, Sedition, Supreme Court* **Meaning** Next to life, man cares and loves most for his reputation. If any injury causes to his reputation, he psychologically suffers to a great extent. Some persons may commit suicide due to defamation. We learnt in history, Rajput women and men committed suicides when they were defeated in the wars. In such circumstances, they felt it would be better to end their lives than falling into the hands of their enemies, and being compelled to live in shame and slavery. ‘‘*Defamation is an injury to the reputation of a person. Rightly law gives protection to his reputation as it gives protection his life and property.*’’ Freedom of speech and expression are the cornerstones upon which all the democratic societies are constructed. Everyone should be able practice it as it is a fundamental human right, regardless of their upbringing or beliefs about politics, religion, ethics, culture and other topics. The maintenance of social harmony and the repair of social connections depend on freedom of expression, plurality and the media. “*Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression for identical reasons. But freedom comes with a price, and that price is someone’s ‘reputation’.*” **Historical Background** Although the defamation laws in India were first proposed as part of Indian Penal Code in 1837, they were not codified until 1860, and Lord Macaulay is credited with their conception and implementation[\[1\]](#_ftn1). Defamation was prosecuted in the same manner as it was at the time under English Law. The goal of making defamation illegal in British India was clearly linked to maintaining public order, state security and the protection of British Raj’s commercial and territorial interest. Consequently, Indian Penal Code 1860 was passed, resulting in Section 499, which has stayed the same for 158 years. **Definition** According to Section 499 of Indian Penal Code, 1860 and Section 354 of the Bharatiya Nyay Sanhita, 2023 defamation includes, *“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.* *Explanation 1.— It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.* *Explanation 2.— It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.* *Explanation 3.— An imputation in the form of an alternative or expressed ironically, may amount to defamation.* *Explanation 4.— No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful”* This extends beyond only an individual; Section 124A (Sedition) of IPC, 1860 governs the protection of defamation against the state. **Essentials** - A person intends to defame another person. - He makes or publishes any imputation intending that another person**–** 1. By words, either spoken or intended to be heard 2. By signs, or 3. By Visible representations - The person making any imputation, intends to harm to that another person, or knowing or having reason to believe that such imputation will harm, the reputation of such person. - If the imputation comes within anyone of the ten exceptions the person making imputations is not held liable. **Exceptions:** The Indian Penal Code, 1860 prescribes the defences that can be claimed by the offender in case of defamation. If the act of such offender comes within the defences, then he/she will be exempted from criminal liability. Those exceptions are: **Imputation of Truth** *“It is not defamation to impute anything which is true concerning any person, if it to be for the public good that imputation should be made of published. Whether or not it is for the public good is question of fact.”* Illustration:”A” wrote an article stating that public agency “B” is suspected of embezzling public money. If “A” can prove with evidence that “B” has engaged in such behavior, then A’s words will not be considered defamed, even if they damage B’s reputation because they are slanderous. **Public Conduct of Public Servants** *“It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public function, or respecting his character, so far as his character appears, in that conduct and no further.”* **Illustration:** In C, a journalist publishes a report criticizing government leader D’s behavior in dealing with public health problems. If C can prove that the criticism was made in good faith and was intended to promote the public welfare rather than damage D’s reputation, this will not be a defamation. **Conduct of any person touching any public question:** *“It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character appears in that conduct, and no further.”* **Illustration:** Political commentator E spoke out against politician F over alleged corruption in F’s political campaign. If E can prove that the statement was made to highlight the problem of political corruption for reasons of justice and public interest, then it is not libel. **Publication of Reports of Proceedings of Court** *“It is not defamation to publish a substantially true report of the proceedings of court of justice or of the result of any such proceeding.”* **Merits of Case Decided in Court or Conduct of Witnesses and Others Concerned** ***“****It is not defamation to express in good way any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as fas as his character appears in that conduct and no further.”* **Illustration:** A legal analyst wrote an article evaluating the verdict in a major criminal case and discussing the conduct of the witnesses and prosecutors involved. Decision Opinions expressed in good faith are not considered defamation. **Merits of Public Performance** ***“****It is not defamation to express in good faith any opinion respecting the merits of any performance which it’s author has submitted to the judgement of the public, or respecting the character of the author so far as his character appears in such performance, and no further.”* **Illustration** A film critic reviews the new film and offers a negative perspective on the director’s work. Since the video is presented to the public and the comments are fair criticism, there is no defamation. **Censure passed in good faith by person having lawful authority over another** ***“****It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.”* **Illustration:** Employers write performance reviews for employees, pointing out their weaknesses. The review was made in good faith and is within the employer’s rights and does not constitute defamation. **Accusation preferred in Good Faith to Authorized Person** ***“****It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.”* **Illustration:** A tenant reported to his landlord that his neighbor was causing a disturbance by playing music late at night. Since the complaint in this regard is made within the person’s right, it does no constitute defamation. **Imputation made in good faith by person for protection of his or other’s interest** ***“****It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of interest of the person making it, or of any other person, or for the public good.”* **Illustration:** The store owner notifies the other store owner that an employee was caught stealing. These warnings are issued in good faith to protect all store owners and are not malicious. **Caution intended for good of person to whom conveyed or for public good** ***“****It is not defamation to convey a caution, in good faith to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.”* **Illustration:** Doctors warned patients not to use it, saying that some emotions returned due to side effects. These warnings are made in good faith for the benefit of the patient and are not considered as defamation. **Punishment:** Section 500 of the Indian Penal Code, 1860 provides for the punishment of the offence of criminal defamation. The section reads as follows; *“Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”* **Forms of Defamation:** **There are two types of defamation.** - **Libel:** Libel is a type of defamation that involves the publication of false statement about an individual or entity in written, printed, or visual forms. Libelous statements are typically communicated through mediums like newspaper, magazines, books, online articles etc. **For Example-** A magazine publishes a false article on Mr.A that the dishes he is serving in his restaurant is not up to quality. In consequence, Mr.A faced a severe loss in his business. As the defamation was published in written form, it is a libel. - **Slander:** On the other hand, Slander is a form of defamation that involves making false spoken statements about an individual or entity. Unlike libel, these statements are not permanently recorded and are more temporary in nature[\[2\]](#_ftn2). **For example-** At a community event someone falsely tells all the attendees that one of their teacher called Mrs.X was caught cheating in the certification exam. This false statement damages the reputation of Mrs.X. Since the false statement was spoken, this comes under Slander. **Case Laws:** ***Harbhajan Singh vs. State of Punjab[\[3\]](#_ftn3)* –** In this case, certain Urdu papers of Punjab published news of smuggling in Punjab, suggesting that there were the hands of political and ruling parties. The State of Punjab issued a Public Notice dated 22-07-1957 stating that the State Government took severe and serious steps to prevent smuggling and no officer or his relatives were involved in smuggling. It also invited the public to name the persons involved in smuggling. The appellant/Harbhajan Singh was the State Secretary of Punjab Praja Socialist Party issued a press note alleging that S. Surinder Singh Kairon(S/O S. Pratap Singh Kairon, the then Chief Minister of Punjab) was the leader of the smuggling and also was involved in several criminal activities. The appellant also stated that he was prepared to face any consequences thereof. He demanded to conduct an inquiry by the judges of High Court, other than Punjab and Haryana High Court. This was published in Tribune on 25-07-1957. ‘‘Surinder Singh Kairon/the complainant sued the appellant under Section 500 IPC for defamation stating that he passed M.A. and worked as Lecturer and was the Managing Director of Amritsar Coperative Cold Storage. He stated that he enjoyed good reputation amongst friends and relatives. He filed the case before First Class Magistrate. The accused filed a petition to the Supreme Court for transfer the case apprehending political influence of the complainant. The Supreme Court transferred the case to the Additional Sessions Judge, New Delhi. The accused contended that he made the statement with “good faith” and in the “interests of public”. He contended that he was protected by ninth exception of Section 499 IPC. The trial court convicted the accused with one year imprisonment. The accused appealed to the Supreme Court.’’ *The Hon’ble Supreme Court altered the conviction from one year to three months and also imposed Rs.2000/- as fine.* ***Kartar Singh and Others vs. State of Punjab[\[4\]](#_ftn4)* –** The appellants were the members of the “Amritsar District Motor Union”. The then Chief Minister was Bhim Sen Sachar and the Motor Transport Minister was Jagat Narain. The state government nationalized the Motor Transport under the Punjab Motor Transport Act, 1954. Aggrieved by it, the appellants and other hundreds of motor workers took up a procession in Amritsar against the Nationalization. In the procession, they uttered “Jaggu Mama ahi hai”(Jaggu maternal uncle be dead) and “Khachar Khota ha”(Mule-cum-donkey be dead). The first slogan was alleged to have been directed against Jagat Narain, Motor Transport Minister and the Second slogan against the Chief Minister. ‘‘The CM and the Minister initiated criminal proceedings against the appellants under Section 499 IPC and under Section 9 of the Punjab Security Act, 1953. The First Class Magistrate held that the slogans were abuses hurled at the CM and the Minister and passed the conviction against the appellants. On the appeal to Additional Session Judge, Amritsar the appeal was dismissed. The Punjab and Haryana High Court also dismissed the appeal, and in consequence the appellants moved to the Supreme Court.’’ *The Supreme Court set aside the conviction, and stated that it would be an eye-opener to the appellants and they should behave themselves better in the future.* ***Muppala Ranganayakamma vs. K. Venugopala Rao and Yandamoori Veerendra Nath***[**\[5\]**](#_ftn5) **–** Yandamoori Veerendranath is a famous Telugu novel writer. He wrote “Tulasi Dalam” mixing science and devils. It made sensation throughout Andhra Pradesh and had become best seller. Dr. K. Venogopala Rao wrote foreword to the said book. Muppala Ranganayakamma is also a famous novel writer and critic. She severely criticized by imputing words to the complainants, which lacked good faith and showed malice. The trial court found her guilty. On appeal, the Andhra Pradesh High Court confirmed the judgement of the trial court. ***Subramanian Swamy vs. Union of India[\[6\]](#_ftn6)***– ‘‘In this case, the Supreme Court of India upheld the constitutional validity of criminal defamation laws. The petitioner, Subramanian Swamy argued that these laws violated the fundamental right to freedom of speech and expression. The court ruled that criminal defamation serves as a reasonable restriction on free speech to protect an individual’s reputation.’’ **CONCLUSION:** A person’s reputation and public image are things they have earned during their life and they are valuable assets. Defamation is the opposite of these things. The balance between Freedom of Speech and Expression is perfectly balanced by the defamation laws in India. The New Criminal Law Bill has been passed and in this new Bill the IPC has been renamed as Bharatiya Nyay Sanhita including some changes in the provisions. In the newly passed BNS the provisions of defamation has been described under Section 354. **REFERENCES** **Cases Referred** - **Harbhajan Singh vs State of Punjab** - **Kartar Singh & Ors. Vs State of Punjab** - **Muppala Ranganayakamma vs. K. Venugopala Rao and Yandamoori Veerendra Nath** - **Subramanian Swamy vs. Union of India** **Statutes Referred** - **Indian Penal Code, 1860** - **Bharatiya Nyay Sanhita, 2023** **ENDNOTES** [\[1\]](#_ftnref1) Prep BE, “BYJU’S Exam Prep” (*BYJU’S Exam Prep*, October 17, 2023) accessed June 14, 2024 [\[2\]](#_ftnref2) *Defamation law in India: IPC Section 499 and 500*. (n.d.). Defamation Law in India: IPC Section 499 and 500. Retrieved June 14, 2024, from [\[3\]](#_ftnref3) AIR 1961 SC 215 [\[4\]](#_ftnref4) AIR 1956 SC 541 [\[5\]](#_ftnref5) 1987 Cr LJ 2000 AP [\[6\]](#_ftnref6) WRIT PETITION (CRIMINAL) NO. 184 OF 2014 **Categories:** Articles, Criminal Law --- ### [Principles of Natural Justice and Implementation in Criminal Justice of India](https://lawfoyer.in/principles-of-natural-justice-and-implementation-in-criminal-justice-of-india/) **Published:** July 7, 2024 **Author:** LawFoyer **Content:** **Author: Shalini Dhyani, Law Student at Vasudev College of Law, Haldwani, Nainital** **Edited By: Gyanu Patel, Law Student at Amity University, Lucknow, Uttar Pradesh** **ABSTRACT** The principle of natural justice is not a new concept in the criminal justice system in India. The natural justice system is the procedure of fairness. One of the most prestigious courts of the country is the Supreme Court of India which deals with legal cases and proceedings daily that cover different parts or branches of the legal sphere while keeping in mind the principles of natural justice to meet transparency and fairness in the criminal justice system. This article covers the historical background of the natural justice system with its jurisprudential essence, also it deals with the incorporation of the natural justice system in the Indian legal system. Furthermore, it focuses on the judicial interpretation helps in shaping the concept of natural justice in India. Natural justice is one of the fundamental factors that helps in administrative and legal processes, with our comprehensive research this article focuses on the crucial role of the natural justice system in protecting basic human rights and advocating a fair judicial system in India. **Keywords:** natural justice, criminal justice system, Fairness, India, Supreme Court, legal, justice. ### INTRODUCTION: **Lord Esher M.R** defined Natural Justice as “*the natural sense of what is wrong and what is right also he explained natural justice as fundamental justice*”[\[1\]](#_ftn1) The term Natural Justice is taken from the Latin word that is “Jus Naturale” which means natural law or natural right. To prevent injustice or arbitrary decisions made by those in positions of authority, it is a philosophical system of moral principles based on human nature and moralistic notions of good and evil. Natural justice principles have been developed by courts to keep order, stop power abuse, and guarantee the efficient administration of justice.[\[2\]](#_ftn2) Justice has come from the Latin word ‘jus’ which means right. Justice is located into the several conceptions like morality, righteousness, rationality etc. Need, Equality are the main core principles of justice. Justice should not only be done but it should seen to be done. Ensurance of justice is not only the purpose of the principle but maintaining the transparency and fairness of the process is also important. It is a concept that is essential in order to maintain the trust of the public in the legal system. ### ORIGIN AND HISTORICAL BACKGROUND OF NATURAL JUSTICE: The notion of natural justice, which has its origins in ancient times, was acknowledged by both the Greeks and Romans. The concept of divine prohibition is illustrated in the biblical narratives of Kautilya, Arthashastra, and Adam, where Eve and Adam were explicitly forbidden from consuming the fruit of knowledge. The notion originating from the Roman phrases ‘jus-naturale’ and ‘lex-naturale’, which encompass principles of natural justice, natural law, and equity, was later acknowledged by English jurists. Natural justice refers to an innate understanding of moral correctness and ethical principles.[\[3\]](#_ftn3) In the matter of electoral disputes the case upheld the principle of Audi alteram partem. It was held that the natural justice principle is applicable to those administrative actions which are not quasi-judicial in nature. It highlights the significance of granting a just, fair or impartial hearing prior implementation of unfavorable measures.[\[4\]](#_ftn4) The concept of justice is not a static one it is a very complex and it should be noted that the changes don’t come overnight, it came gradually and similarly, this concept has been developed over centuries among various nations and still in the phase of change. It must be noted that human fairness be first priority.[\[5\]](#_ftn5) ### AIMS OF THE PRINCIPLE OF NATURAL JUSTICE: The principle of natural justice has certain aims from giving the opportunity of a fair hearing to protecting the justice from miscarriage. The following are the main aims of the principle of natural justice: - The first aim of the principle of natural justice is to provide the opportunity of fair hearing or to give an equal opportunity to be heard in a case. - It is one of the aims of the principle of natural justice is to adhere to the principle of equality and to provide fairness in the proceedings. - Another aim of the principle of natural justice is to remove all the vulnerabilities of the legislature and to protect fundamental rights from further loopholes or flaws. - The main purpose of the principle is to provide fair justice and to make sure that the justice should not face any kind of miscarriage in any case or in any field. It is to be noted that the justice should not be compromised at any cost. ### THREE IMPORTANT PRINCIPLES OF NATURAL JUSTICE: Justice is an essential element that should not be compromised or there should not be any place for injustice. There are the three principles of natural justice which are as follows: - Nemo in propria causa judex, esse debet - Audi alteram partem, and - Speaking orders or reasoned decisions. **Nemo in propria causa judex, esse debet:** it is a rule against bias or a doctrine of bias that states that no one can be judged in his case. The principle mandates that decision-makers should remain neutral and unbiased in resolving disagreements. This principle requires no personal or financial stake in the outcome and no preconceived assumptions about the parties involved or the subject. Bias refers to any operating predisposition held by the judge, whether conscious or unconscious. This principle is fundamental to any administrative action, ensuring that administrators have no personal or private interest in the outcome and no reasonable grounds to believe the decision was biased.[\[6\]](#_ftn6) This rule of bias consists of three kinds of biases those are: - **Personal bias**: Personal bias occurs when an individual has a connection, professional animosity, or enmity towards the other parties involved in a judgment. It is vital to assess if there is a valid basis to presume bias. For example, if a judge has a personal contact with either party in a legal issue, it is vital for the judge to recuse himself from the case.[\[7\]](#_ftn7)This bias undergoes two kinds of tests mainly (Reasonable Suspicion of Bias and Real Likelihood of Bias). - **Pecuniary bias:** The smallest financial interest in a litigation matter is regarded as disqualifying from sitting as a judge, and any financial involvement in the dispute is presumed to prohibit a person from serving as a judge.[\[8\]](#_ftn8) Pecunious bias is the state in which a judicial body or authority stands to receive any kind of financial advantage, no matter how little, which could cause biassed decision-making.[\[9\]](#_ftn9) - **Subject-matter bias:** Mere involvement does not invalidate the administrative decision in circumstances when a deciding officer is either directly or indirectly involved in the matter unless there is a clear chance of prejudice. Magistrates in R v. Deal Justices Exparte Curling were not disqualified to try a case of cruelty to an animal because of their royal society membership for animal control.[\[10\]](#_ftn10) Along with it, there are departmental biases, policy notion biases, and bias on account of obstinacy. **AUDI ALTERAM PARTEM**: it means let both the parties be heard. It is a rule of hearing that there should not be any injustice to any other party by not giving them proper time to hear them. Natural justice principles are critical in legal procedures because they ensure that no one is condemned without being heard, and both sides must be heard before any order is issued. These principles are universally applicable and can invalidate the exercise of power in situations where an authority has the right to issue orders affecting an individual’s liberty or property without a prior hearing provision. They supplement land law and apply to quasi-judicial and administrative tribunals. However, these principles are adaptable and may not be required in all cases.[\[11\]](#_ftn11) This rule of hearing has some components which are essential for acknowledging this doctrine. - There must be issuance of notice. - There should right to present the case and evidence as well as. - There must be cross-examinational rights. - Legal representative rights must be present. **JURISPRUDENTIAL ESSENCE OF NATURAL JUSTICE:** The concepts of natural justice are not only significant in the administration of justice but also in administrative and regulatory decision-making. Administrative authorities, such as regulatory agencies and tribunals, are expected to respect the principles of natural justice when making judgments that may affect individuals or corporations. This entails allowing parties to be heard and providing an impartial and unbiased decision-maker.[\[12\]](#_ftn12) **WEDNESBURY PRINCIPLE**: This principle came into force in 1948 as it is a European concept and it has came from a landmark case named **Associated Provincial Picture Houses Ltd v Wednesbury Corporatio**n[\[13\]](#_ftn13), Wednesbury’s principle is based on the rationality of the decision, it states that whenever a decision is taken by the public authority and that decision is so irrational or unreasonable that no person acting reasonably would agree to do it. This means that it is so absurd to find such a decision irrational or unreasonable. Generally, it is based on the concept of testing the reasonability of the decision made by the public authorities. **DOCTRINE OF PROPORTIONALITY:** it is a similar concept that of Wednesbury principle but it is a more nuanced concept. This doctrine defines that any decision that is taken by a public authority must have a proportionate relation to the aim it seeks to achieve. The decision should not be restrictive to the goal that is used to be achieved. It not only focuses on rationality but also on fairness, reasonability, equitability, and a balanced view of judgment or decision. ### INCORPORATION OF NATURAL JUSTICE SYSTEM IN INDIA: The Constitution of India has the following components of the natural justice system although it is not explicitly mentioned there there are some article that holds the essence of the principle of natural justice: Preamble, Articles 14, 19, 21, and 22 of the Constitution of India. ### NATURAL JUSTICE UNDER THE CRIMINAL PROCEDURE CODE The Code of Criminal Procedure (CrPC) that reflects these values at several points has underlined the natural justice concepts. These provisions and values guarantee the accused gets equitable treatment. Under the Criminal Procedure Code, the three natural justice values are combined and underlined under a division. 1. **Right to a Fair Hearing** The CrPC highlights in certain provisions that the accused shall have a right to a fair hearing. Section 207 mandates that the accused receive a copy of police report and other documentation including the FIR filed under section 154, the statements recorded under section 161 or any other documentation the prosecutions rely on and have sent to the magistrate under section 173(5). The provision ensures that the accused fully understands the charges and proof against them, so enabling a fair possibility for the development of a defence. Under Chapter 24 Section 303 the CrPC grant a Right of Person against Whichever Proceeding is Instituted to be Defended. It assures that a pleader of inclination has the right to defend anyone against whom proceedings are started under the CrPC. This part ensures that the accused could have legal counsel, therefore safeguarding his right to a fair trial. Further Section 311 of the Code addresses the ability to call upon material witness or examine person present. It permits the court call any person as a witness or recall and re-examine any person should their evidence seem essential for the just decision of the case. This power ensures that all relevant data is considered, therefore supporting a fair hearing. 2. **Rule Against Bias** The Judges and Magistrates are forbidden under Section 479 of the Code not to try cases in which they personally are interested. Judges and magistrates are not allowed to try or commit from a case in which they have a personal interest or to which they are a party. This guarantees objectivity and hence helps to avoid any possible prejudice in court processes. 3. **Doctrine of Reasoned Decisions** The principle is clearly expressed in Section 354 of the Code, which defines the language and subjects of a ruling. This section clearly states that every ruling has to be recorded in the court’s official language. It has to include the particular problem or conflicts to be fixed, the related resolution, and a thorough justification of the decision. This encourages responsibility and openness in court decisions so that the engaged parties may understand the reasoning behind them. 4. **Other Relevant Provisions** **Section 235: Decision on Either Conviction or Acquittal** After a trial ends, this part calls for the judge to render an acquittal or conviction judgement together with reasons for their decision. This guarantees that the judgement is grounded on a careful and equitable review of the facts and conforms with the idea of rational decisions. **Section 313: Power to investigate the accused** After the evidence of the prosecution has been given, this part lets the court probe the accused generally on the case. It guarantees that the accused has the chance to clarify any situation that the evidence seems to point against them, so supporting a fair trial procedure. These and other provisions are included into the CrPC to support the natural justice values inside the criminal justice system. These values are basic guarantees of fair, objective, transparent administration of justice, therefore protecting of individual rights engaged in criminal procedures. ### JUDICIAL INTERPRETATIONS IN MATTER OF NATURAL JUSTICE: 1. **Maneka Gandhi vs Union of India[\[14\]](#_ftn14)**: This case plays an important role in the growth of the principle of Natural Justice in India. Here the honorable court held that there must be reasonability, justiciability, and fairness be present in the procedure that established by the law. Any kind of arbitrariness will not be practiced in the law. In this case the Supreme court emphasised on the one of the principle of natural justice that is Audi alterem partem which is the opportunity of being heard or fair hearing along with opportunity to defend oneself before any arbitrary decision of the court. Here the Court held that denial of one’s right to life and liberty is a severe violation of principal of natural justice. 2. **Chairman Mining Board v. Ramjee**[\[15\]](#_ftn15): In this case, the court interpreted the concept of natural justice and defined that natural justice is a fundamental principle that guarantees equity in judicial proceedings, taking into account the specific details and conditions of each individual case. It is a pivotal procedural principle that ensures fairness in court. The principle of natural justice can be aggravating if it has been expanded without administrative realities. Courts cannot view law abstractly or natural justice as a mere artifact. If the totality of facts satisfies the court that the party visited with adverse order has not suffered from denial of fair opportunity, they will not be punctilious or fanatical, as if the standards of natural justice were hallowed scriptures.[\[16\]](#_ftn16) 3. **Ridge vs Baldwin:** This case is one of the most crucial case in the field of administrative law which focuses on the principles of natural justice and also focuses on the right of fair hearing. Here Mr Ridge did not get proper opportunity to be heard, he was unable to defend himself against the allegations of conspiracy so court here held that right to fair hearing is one the basic principle of natural justice and court also ensured that there should not be biasness while making the decisions in simple terms there should not be arbitrariness in decision of administrative authorities**.** ### CONCLUSION: It can be concluded that with time the judiciary has relied upon the importance of natural justice through its judicial precedents. The principle of justice is not only applied to solely courts of law it has been extended to tribunals and statutory and administrative authorities who have the responsibility of determining the rights and duties of the people. It is well said that justice must not only be done but it must also be done. The main purpose of this principle is to protect public rights against the arbitrariness of administrative authorities. Fairness is the main component that can be seen to be alive. Any decision that violates or infringes this principle may be declared null and void. For a valid administrative settlement, one should keep in mind that there is a need for the principle of natural justice. ### **ENDNOTES** [\[1\]](#_ftnref1) ‘Audi Alteram Partem and Nemo Judex In Causa Sua: The Two Pillars of Natural Justice’ Surbhi Jindal and Anunay Pandey, ‘Audi Alteram Partem and Nemo Judex in Causa Sua: The Two Pillars of Natural Justice’ (*articles.manupatra.com*December 2023) <>. accessed 11 June 2024. [\[2\]](#_ftnref2) Sneha Mahawar, ‘Application of Principles of Natural Justice’ (*iPleaders*, 13 August 2023) accessed 11 June 2024. [\[3\]](#_ftnref3) Sahithi reddy, ‘Principles of Natural Justice’ (lawyersclubindia4 May 2023) accessed 3 July 2024. [\[4\]](#_ftnref4) Ruchika Mohapatra, ‘Detailed Notes on the Principles of Natural Justice’ (CLATalogue18 November 2023) accessed 3 July 2024. [\[5\]](#_ftnref5) Siddharth R and A Sreelatha, ‘Principle of Natural Justice and Its Application in Indian Legal System’ (2018) 120 International Journal of Pure and Applied Mathematics. [\[6\]](#_ftnref6) ‘Audi Alteram Partem and Nemo J Siddharth R and A Sreelatha, ‘Principle of Natural Justice and Its Application in Indian Legal System ’ (2018) 120 International Journal of Pure and Applied Mathematics. [\[7\]](#_ftnref7)‘Principles of Natural Justice’ (Unacademy) accessed 3 July 2024. [\[8\]](#_ftnref8)Ramachandra Mcrhrdit, ‘Principles of Natural Justice’ accessed 11 June 2024. [\[9\]](#_ftnref9) LawBhoomi, ‘Rule against Bias’ (LawBhoomi5 August 2023) accessed 3 July 2024. [\[10\]](#_ftnref10) Umashankar Dhakar, ‘Rule against Bias’ (2022) 10 International Journal of Creative Research Thoughts 2320 accessed 3 July 2024. [\[11\]](#_ftnref11)Ram Dutt Sharma, ‘Updates\_Concept\_Principle\_Natural\_Justice’ (*cavinaymittal.com*) <[https://cavinaymittal.com/resource/Updates\_Concept\_Principle\_Natural\_Justice.aspx](https://cavinaymittal.com/resource/Updates_Concept_Principle_Natural_Justice.aspx)> accessed 13 June 2024. [\[12\]](#_ftnref12) Aishwarya Sandeep, ‘Important Role of Doctrine of Natural Justice and the Support of Constitution – Aishwarya Sandeep- Parenting and Law’ (26 February 2023) accessed 11 June 2024. [\[13\]](#_ftnref13) \[1948\] 1 KB 223 [\[14\]](#_ftnref14) \[1978\] 1 SCC 248 (SC). [\[15\]](#_ftnref15) 1977 AIR 965 SC. [\[16\]](#_ftnref16) Ram Dutt Sharma, ‘Updates\_Concept\_Principle\_Natural\_Justice’ (cavinaymittal.com) accessed 3 July 2024. **Categories:** Articles --- ### [Om Prakash v. State of U.P., AIR 2004 SC 1896](https://lawfoyer.in/om-prakash-v-state-of-u-p-air-2004-sc-1896/) **Published:** July 7, 2024 **Author:** LawFoyer **Content:** **Author: Arsh Singh, Law Student at UPES Dehradun** **Edited By: Gyanu Patel, Law Student at Amity University, Lucknow, Uttar Pradesh** **ABSTRACT / HEADNOTE** In the landmark case of Om Prakash vs. State of Uttar Pradesh \[2004\] which was about the rule of banning the sale of non-vegetarian food, even eggs, in three specific towns which were considered to be religious and important pilgrim centers with a vast majority of vegetarian people and where tourist use to visit pilgrim. Due to the judgment passed by the Hon’ble Supreme Court stating the prohibition of non-vegetarian foods in the 3 towns keeping the interest of the public at large, shopkeepers, including Om Prakash, were not happy with this rule which stated that they couldn’t sell non-veg food in certain towns in Uttar Pradesh. The Supreme Court looked at the cultural and religious makeup of these towns and it turned out that many of the people there were vegetarian. Considering the majority the court also considered the impact it would have on the local economy, especially because these towns attract many tourists and pilgrims. The court believed the ban made sense and stated that since the residents were mostly vegetarian and the towns relied on vegetarian tourism, it was fair and justified to restrict non-veg food. However, it is pertinent to note that the court also mentioned that they can still get their non-veg fix in nearby areas. The court thought it reasonable to ban non-vegetarian cuisine because the majority of the population was vegetarian and the towns depended on vegetarian tourism. Still, they said they could satisfy their cravings for non-vegetarian food in the surrounding locations. ***Keywords***– prohibition, culture, religion, supreme court, majority, non-vegetarian. **CASE DETAILS** *Judgement Cause Title / Case Name****OM PRAKASH V STATE OF UTTAR PRADESH**Case Number***3270 OF 1998*Judgement Date***9 March 2004 *Court***SUPREME COURT *Quorum / Constitution of Bench***SINGLE JUDGE BENCH*Author / Name of Judges***D.M. DHARMADHIKARI*Citation***AIR 2004 SC 1896*Legal Provisions Involved***1- CONSTITUTION OF INDIA- Article 19\[1\], Article 51-\[A\] \[E\], \[F\] 2-MUNICIPALITIIES ACT 1916- Section 241, 298**INTRODUCTION AND BACKGROUND OF JUDGEMENT** This case resulted from an appeal filed by Om Prakash challenging the power of the municipal board seeking whether it has the power to amend the law itself within its reach. The 3 specific towns in the region were considered the main pilgrim centers, the demand for the ban was supported by several vegetarians after which the Municipal authority justified the ban on the sale of eggs based on representations from citizens, religious organizations, and institutions operating in the area. The center’s purpose was to create and uphold a vegetarian atmosphere for the people of religious towns. The main issue revolved around whether the municipal made bye-laws itself which was considered to be in the affirmative. Keeping in the interest of the public at large the restriction was considered to be reasonable and power was within the limit. **FACTS OF THE CASE** **Procedural Background of the Case** In the trial court, the prosecution presented its case, calling witnesses and presenting evidence. Om Prakash was allowed to defend himself, which included cross-examining witnesses and presenting his evidence. The trial court found Om Prakash guilty of the charges against him and sentenced him accordingly. Unsatisfied with the trial court’s decision, Om Prakash appealed the conviction and sentence. The case was taken to the Allahabad High Court, where Om Prakash challenged the trial court’s decision. After reviewing the case, the High Court upheld the conviction and sentence, dismissing the appeal. Om Prakash then appealed to the Supreme Court of India. The Supreme Court admitted the appeal, and both sides presented their arguments. The Supreme Court reviewed the evidence, the legal arguments, and the judgments of the lower courts. The Supreme Court delivered its judgment in 2004, reported as AIR 2004 SC 1896. The court examined the procedural and substantive aspects of the case, including the handling of evidence and adherence to legal principles. **Factual Background of the Case** In this case, Om Prakash and the other shopkeepers were not pleased with the regulation/gazette notification that prohibited them from selling non-vegetarian cuisine in specific Uttar Pradesh towns. The court examined the religious and cultural composition of these settlements. It turned out that there were a lot of vegetarians there. Additionally, they took into account the effect on the regional economy, particularly given how many pilgrims and tourists come to these places. It concerned a law that forbade the selling of any non-vegetarian food in three certain municipalities, including eggs. The court found that the ban was reasonable. **LEGAL ISSUES RAISED** **I\]** Whether the Municipal Board of Rishikesh has the power to amend its bye-laws and impose a prohibition on the sale of eggs within the municipal limit **II\]** Whether the complete prohibition imposed on the trade of eggs within the municipal limits of Rishikesh can be held to be reasonable under Article 19\[6\] and violates the fundamental right of practicing trade guaranteed under Article 19\[1\]g **PETITIONER/ APPELLANT’S ARGUMENTS** **1\]** The counsel for the Appellant submitted that Egg trading is not undesirable or harmful to society, and it significantly impairs the appellants’ ability to engage in commerce as permitted by Article 19(1)(g) of the Constitution. In actuality, eating eggs is recommended as a way to boost public health since doctors see them as a nutrient-rich addition to other foods. Certain eggs are acceptable to various segments of society, including vegetarians, because they don’t contain any chicks and therefore, they are acceptable to every section of society. The counsel for the appellant also stated that complete prohibition is arbitrary and irrational as Eggs cannot – be interpreted as being part of “meat” or “fish” because the eggs the appellants are selling do not hatch and give birth to chicks. **2\] The counsel for the appellant submitted that through Section 298(2) List I Heading F and Section 241 of the Act, the respondent Board was not permitted to create a bylaw about “eggs” under Section 298 of the Act. It also submits that it does not appear that a special procedure was adopted by Section 298(1), which requires the adoption of a special resolution. As a result, the modified bylaw is unsustainable. **RESPONDENT’S ARGUMENTS** - The counsel for the respondent submitted that these three specific towns are important pilgrim centers supported by the vast majority of vegetarians and tourists on auspicious days. A vast majority is in support of promoting vegetarianism throughout the region due to their worship and religion. The council also stated that there were earlier bans that faced no challenges and were accepted by the people thus the ban was considered to be reasonable. - The counsel for the respondent submitted that the Municipal Board has general authority under Section 298(1) of the Act to create bylaws to administer municipal affairs under the Act and for the promotion or maintenance of the president’s health, safety, and convenience; this general authority of the Municipality even extends to those subjects that have not been specifically listed under Section 298(2) List I Heading F of the Act. - The counsel for Respondent submitted that Section 241 of the Act deals with the requirement of obtaining a license to use any place as a market or shop for the sale of animals, meat, or fish intended for human food, or as a market for the sale of fruits or vegetables and such right shall be subject to the bye-laws made under Section 298(2) List I Heading F of the Act; the words used in this section as to “animals”, “meat” or “fish” are not followed with the word “only”, which means that for other similar articles also there may be a requirement for license; none of the provisions of the Act including Sections 241 and 298 provides that the Municipality cannot make bye-laws for imposing a ban on the sale of eggs within municipal limits. **RELATED LEGAL PROVISIONS** **SECTION 241 OF MUNICIPALITIES ACT 1916***:‘’ Licensing of markets and shops for sale of certain articles.—(1) The right of any person to use any place, within the limits of a municipal area, other than a municipal market, as a market or shop for the sale of animals, meat, or fish intended for human food, or as a market for the sale of fruit or vegetables, shall be subject to bye-laws (if any) made under Heading F of Section 298.’’[**\[1\]**](#_ftn1)* **SECTION 298 OF MUNICIPALITIES ACT 1916**: “*Power of municipality to make bye-laws- A municipality by special resolution may, and where required by the State Government shall, make bye-laws applicable to the whole or any part of the municipal area, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipal area and for the furtherance of municipal administration under this Act.”* *“In particular, and without prejudice to the generality of the power conferred by sub-section (1), the municipality, wherever situated, may in the exercise of the said power, make any bye-law described in List I below and the municipality, wholly, or in part situated in a hilly tract may further make, in the exercise of the said power, any bye-law described in List II below.’’* “*Prohibiting, subject to the provision of Section 241, the use of any place as a slaughterhouse, or as a market or shop for the sale of animals intended for human food or of meat or fish, or as a market for the sale of fruit or vegetables, in default of a license granted by the municipality or otherwise than in accordance with the conditions of a license so granted;”[**\[2\]**](#_ftn2)* Article **19***:* “*All citizens shall have the right to* *(1) freedom of speech and expression.”[**\[3\]**](#_ftn3)* ARTICLE **51\[A\]***:* “*It shall be the duty of every citizen of India-* *(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities; to renounce practices derogatory to the dignity of women;* *(f) to, value and preserve the rich heritage of our composite culture”[**\[4\]**](#_ftn4)* **JUDGEMENT** **RATIO DECIDENDI** - The Hon’ble Supreme Court upheld the validity of the law prohibiting the sale of eggs finding it to be a reasonable restriction on fundamental rights guaranteed under article 19\[1\] read with 19\[6\] of the Indian Constitution. - The court noted the nature and the purpose of the right and of the restriction along with the urgency of evil which sought to be remedied and passed that all the present conditions must be considered in deciding the reasonableness of a restriction since these all 3 towns were major pilgrim centers with a ton of devotees and religious institution and therefore the prohibition of non-veg was justified in nature. - The Supreme Court in its judgment held that an absolute prohibition on the sale of eggs was considered to be reasonable as it maintained the fundamental right to carry on trade along with large public interest and thus was not violative of the act and because similar restrictions were there in 2 towns since 1976 without any challenge thus it was justified and in the public interest. **OBITER DICTA** - The Hon’ble Supreme Court in this case acknowledged the right to practice any profession or carry out any trade or occupation as a fundamental right which is secured under article 19\[1\] of the Indian constitution. - The Hon’ble Supreme Court stated that reasonable restriction on certain trades such as alcohol or things that are harmful to public health can even amount to an absolute prohibition andviewed that consuming eggs is often advised due to their nutritious benefits and that vegetarians can choose eggs that are suitable for vegetarians and do not contain chicks. **CONCLUSION & COMMENTS** The judgment of the Hon’ble Supreme Court is moral in the public interest which is not only supported by a handful of the majority but is also reasonable and religious which will ensure the faith of the people in the judicial system and, at the same time will give a promising message to people to worship and to practice their religion. Compromises and cooperation are what can benefit the nation in moving ahead and abiding by the law of conflicting interests. Rishikesh is devoted to rigorous vegetarianism as a kind of worship and lifestyle. It is well known that people in several Indian groups abstain from all animal products, including meat, fish, and eggs. These individuals go on pilgrimages to Haridwar, Rishikesh, and Muni ki Rete in large numbers on a regular and irregular basis. People primarily congregate in the three towns for religious rituals and spiritual advancement. Respecting one another’s faith is a necessary way for all citizens to “promote harmony and spirit of common brotherhood” in a diversified society like India. The three towns’ unique cultures and geographic location justify a complete ban on trade because tourists and pilgrims are the main sources of income for the local government and the residents of the three towns. The country can advance and uphold the law by cooperating and making compromises. **REFERENCES** **Important Cases Referred** - ***Afzal Ullah v. State of U.P***[\[5\]](#_ftn5) - ***H.C. SUMAN v. Rehabilitation Ministry Employees’ Coop. House Building Society Ltd[**\[6\]**](#_ftn6)*** - ***Chintamanrao v. State of M.P*** [\[7\]](#_ftn7) - ***State Of Madras v. V.G Row***.[\[8\]](#_ftn8) - ***State of Maharashtra v. Himmatbhai Narbheram Rao*** [\[9\]](#_ftn9) - ***State of A.P v. McDowell & Co***[*****\[10\]*****](#_ftn10)***.*** - ***Mohd. Hanif Quareshi v. State Of Bihar*** [*****\[11\]*****](#_ftn11) - *Hashmattullah v. State of M.P***[\[12\]](#_ftn12) **Important Statutes Referred** - CONSTITUTION OF INDIA- ARTICLE 19\[1\], ARTICLE 51-\[A\] \[E\], \[F\] MUNICIPALITIIES ACT 1916- SECTION 241, 298 --- [\[1\]](#_ftnref1) Municipalities Act 1916 (Act 02 of 1916), s. 241 [\[2\]](#_ftnref2) Municipalities Act 1916 (Act 02 of 1916), s. 298 [\[3\]](#_ftnref3) The Constitution of India, art. 19 [\[4\]](#_ftnref4) The Constitution of India, art. 51 [\[5\]](#_ftnref5) Afzal Ullah V State of U.P, AIR 1964 SC 264 [\[6\]](#_ftnref6) H.C.Suman v. Rehabilitation Ministry Employees’ Coop. House Building Society Ltd, (1991) 4 SCC 485 [\[7\]](#_ftnref7) Chintamanrao v. State of M.P, AIR 1951 SC 118 [\[8\]](#_ftnref8) State Of Madras v. V.G Row, AIR 1952 SC 196 [\[9\]](#_ftnref9) State of Maharashtra v. Himmatbhai Narbheram Rao, AIR 1970 SC 1157 [\[10\]](#_ftnref10) State of A.P v. McDowell & Co, (1996) 3 SCC 709 [\[11\]](#_ftnref11) Mohd. Hanif Quareshi v. State Of Bihar, AIR 1958 SC 731 [\[12\]](#_ftnref12) Hashmattullah v. State of M.P, (1996) 4 SCC 391) **Categories:** Case Analysis --- ### [Indian Enviro Legal Council v. Union Of India](https://lawfoyer.in/indian-enviro-legal-council-v-union-of-india/) **Published:** July 8, 2024 **Author:** LawFoyer **Content:** **Authored By – Anchita Srivastava, Amity Law School, Amity University Lucknow Edited By – Rajarshi Tripathi** **ABSTRACT / HEADNOTE** India is working on the cases through which it can establish strong environmental laws. However, In the case of “Indian Council for Enviro Legal Action v. Union Of India”, the SC issued a significant judgement on 8th March 1999 related to environmental pollution arising from chemical industrial plants in India. The court emphasised the non-compliance with legal and environmental regulations by certain industrialists, resulting in severe pollution in the villages. The judgement underscored the “Polluter Pay Principle” and “Strict/Absolute Liability” in Environmental matters. The court mandated the closure of the offending plants and directed them (respondents) to bear the losses create by the plants also bear the costs of remedial measures. This case set a precedent for holding industries accountable for environmental harm and ensuring adherence to environmental laws. ***Keywords*** – **Environmental Pollution, Absolute/Strict Liability, Polluter Pays Principle, Remedial Measures, Water Pollution**. **CASE DETAILS** *Judgement Cause Title / Case Name****Indian Council for Enviro Legal Action v. Union Of India**Case Number****SCC 293 : 1999**Judgement Date***08-03-1999*Court***Supreme court*Quorum / Constitution of Bench***2*Author / Name of Judges***Jeevan Reddy And Kirpal B.N.*Citation***1996 AIR 1446*Legal Provisions Involved***Environment (protection ) Act 1986; Water(prevention and control of pollution) act 1974; Air (prevention and control of pollution) act 1981**INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case of the Indian Council For Enviro Legal Action v. Union of India addressed severe environmental pollution caused by chemical industry plants in *Bichhri* village. The petition highlighted the negligence of certain industrial establishments in complying with environmental regulations, leading to the contamination of soil, water and air pollution, the entire environmental ecosystem. The judgement aimed to address the environmental damage caused by the respondents and enforce the principles of environmental protection and accountability. **FACTS OF THE CASE** 1. **Procedural Background of the Case** The case involved a writ petition filed by the Indian Council for Enviro Legal Action Against the Union of India and other respondents concerning environmental pollution caused by chemical industrial plants in *Bichhri* Village. 1. **Factual background of the case** The respondents, including Hindustan Agro Chemicals Limited And Silver Chemicals, were accused of Producing toxic chemicals without proper clearance, resulting in pollution of the surrounding areas. **LEGAL ISSUES RAISED** The primary legal issue raised in the case was the responsibility of the industrial establishments for environmental pollution and the appropriate legal measures to address the damages caused. **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioner / Appellant submitted that the respondents were accountable for the environmental devastation in Bichhri village and should bear the costs of remedial measures. They emphasized the repeated violations of environmental laws by respondents **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that the sole responsibility for the pollution and objected to the actions of regulatory authorities. They opposed the closure of their plants and the imposition of the costs for remedial measures. **RELATED LEGAL PROVISIONS** - *“Stockholm Declaration”* - *“Environmental (Protection) Act, 1986”,* - *“The Water (Prevention and Control of Pollution) Act, 1974”,* - *“The Air (Prevention and Control of Pollution) Act, 1981”.* **JUDGEMENT** **RATIO DECIDENDI** Supreme Court held that the respondents were liable for the environmental damage caused and ordered the closure of their plants. The court emphasized the “polluter pays principle” and “strict/absolute liability” in environmental matters. **CONCLUSION & COMMENTS** The decision sets a crucial precedent in enforcing the principles of environmental protection and upholding the doctrine of polluter pays and strict liability and absolute liability in cases of environmental harm caused by industrial activities. The delivery of such judgements by SC is commendable and exemplifies a significant step towards ensuring environmental accountability through protection. By imposing absolute liability on the respondents and ordering the closure of their plants, the court sends a strong message about the importance of compliance with environmental laws. This decision must strengthen the environmental law and surrounding communities. The case also highlighted the importance and duty of individuals to enforcement of environmental regulations to safeguard the well-being of the public and the ecosystem. **REFERENCES** **Important Cases Referred** 1. M.C. Mehta v. Union Of India (Oleum Gas Leak Case) **Important Statutes Referred** 1. *“Environmental (Protection) Act, 1986”* 2. *The Water (Prevention and Control of Pollution) Act, 1974”,* 3. *“The Air (Prevention and Control of Pollution) Act, 1981”.* **Categories:** Case Analysis, Environmental Law --- ### [Commissioner of Police vs Acharya Jagadishwarananda Avadhuta(2004) 12 SCC 770](https://lawfoyer.in/commissioner-of-police-vs-acharya-jagadishwarananda-avadhuta2004-12-scc-770/) **Published:** July 8, 2024 **Author:** LawFoyer **Content:** **Authored By – Kajal Yadav, BIRLA GLOBAL UNIVERSITY Edited By – Rajarshi Tripathi** **CASE DETAILS** *Judgement Cause Title / Case Name*** Commissioner of Police vs Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770*Case Number***Civil Appeal No. 6230 Of 1990*Judgement Date***11 March, 2004*Court***Supreme Court of India*Quorum / Constitution of Bench***3 Judge’s Bench*Author / Name of Judges***Justice DR. A.R. Lakshmanam, Justice G.P. Mathur, Justice S. Rajendra Babu*Citation***AIR 2004 SUPREME COURT 2984, 2004 (12) SCC 770*Legal Provisions Involved***Constitution of India, Art 25, 26 and 32, sec 144 of CRPC.**INTRODUCTION AND BACKGROUND OF JUDGEMENT** India is a secular country where the state always maintains peace. State cannot interfere in the religious aspect of any individuals. The case “Commissioner of police vs Acharya Jagadishwarananda Avadhuta” is popularly known as “Tandava Dance case”. It is a quorum of three judges bench the case appeal arises from Calcutta High Court and gives the order to perform Tandava dance in public street with skulls, tridents or live snakes. Police department did not agree with the order because it can harm the public in large. The main issue arises in this case whether Tandava dance is an essential practice of Ananda Margis under art 25 of Indian constitution. Under Art 25 it is clearly stated that any practice which can held in the name of religion abrogates morality, health and public in large. **FACTS OF THE CASE** 1. **Procedural Background of the Case** - The case of Commissioner of police vs Acharya Jagadishwarananda Avadhuta is a civil writ petition before the Hon’ble Supreme court of India against the order passed by Calcutta High court. - Ananda Margi sect is founded in 1955 and founder of Ananda Margi sect published in his book in the year 1986 that Tandava Dance is an essential practice since 1966. - Based on this information; the petitioner seek permission for the Tandava Dance performance in public from the police. Commissioner of police prohibited the use of live snakes, trident, knives etc. - Under Art 32 of Indian Constitution, Civil writ petition no. 1317-18 of 1987 was filled in supreme court by respondent challenging those police refused the order of High court to perform the Tandava Dance with essential ingredients. e. It was alleged that commissioner of police and police department infringed the right of petitioner under Art 25 and Art 26. **ii) Factual Background of the Case** - The founder of Ananda Marga sect has stated that Tandava Dance is an essential practice of the Ananda Margi faith. - The petitioner is the member of Ananda Marga sect, that asked for the permission to the commissioner of police for performing Tandava Dance in public street including live snakes, knives, trident or skulls. Tandava is a symbol of death and life. Here skull represents the death and knife represents life. - The commissioner of police allowed them to perform the dance, but they not allowed the procession with knives, live snakes or tridents. Then department of police issued certain order under sec 144 of CRPC, which declared this against the public moral. Under Art 226, the petition filed writ petition in High court. Hon’ble High court said respondent to not to interrupt n the matter of Tandava Dance and allowed the petition to precession with knives, snakes or skulls. - Then, under Art 32 commissioner of police appealed before Hon’ble Supreme Court on the decision of the High Court. **LEGAL ISSUES RAISED** - Whether Tandava dance is a religious denomination? - Whether Tandava dance in public is an essential practice of Ananda Margi faith? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. The counsels for Petitioner / Appellant submitted that Ananda Margis did not have any scope under Art 25 because they do not have any well-established practices of festivals like others religion have. 2. If Ananda Margis did not carry any knife, live snakes or tridents, commissioner of police gives the permission to perform Tandava dance in public. Commissioner of police did not allow the Tandava dance with weapon because it disturbs peace and tranquillity. 3. Tandava dance is not an essential practice of Ananda Margis and did not have any scope under Art 25 and Art 26 of the Indian Constitution. Ananda Margis is coming under Hindu religious it has no separate denomination or institution. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that `Tandava dance is an essential practice of Ananda Margis under Art 25 and Art 26 of the Indian Constitution, then they plead that they have the complete rights to perform the dance in public as well. 2. Ananda Margis submitted that Art 26 of constitution stated that state can not interfere in the administrative matters and claims it as a separate religious denomination. **RELATED LEGAL PROVISIONS** 1. Art 25 of Indian Constitution stated that Freedom of conscience and free profession practice and propagation of religion, which provides the freedom related to public order, health and morality. 2. Art 26 of Indian Constitution stated that freedom to manage religious affair, which provides every religious denomination to perform their own religious and charitable intent. 3. Art 32 of Indian Constitution stated that right to constitutional remedies, it gives a Fundamental right to every individual to approach for enforcement of other fundamental rights which is recognized by Constitution. 4. Sec 144 of CRPC, stated that the Executive Magistrate of any state or territory can issue an order to prohibits the assembly by four or more people in an area **JUDGEMENT** **RATIO DECIDENDI** 1. After hearing both the parties, court held that Tandava Dance is an essential practice of Ananda Margis. It is itself a part of Hindu religion and did not have any separate denomination. 2. According to fact Ananda Margis was founded in 1955 and Tandava dance is started from 1966 so it cannot be considered as an essential practice of the religion. But performance of Tandava Dance in public cannot be an essential practice of Ananda Margis. **CONCLUSION & COMMENTS** The case Commissioner of Police vs Acharya Jagadishwarananda Avadhuta is a civil writ petition before Hon’ble supreme court of India. It involves the Art 25 and Art 26 of Indian constitution. I agree with the judgement that Ananda Margis is come under Hindu religion and did not have any religious denomination and held that performance of Tandava dance in public is not an essential part of it. I agree with the fact that after establishing the Ananda Margi sect, founder added the Tandava dance in their book after 10 years. So, it cannot be an part of basic structure. **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases --- ### [Dr. Pradeep Jain vs. Union of India and Ors.](https://lawfoyer.in/dr-pradeep-jain-vs-union-of-india-and-ors/) **Published:** July 8, 2024 **Author:** LawFoyer **Content:** **Authored By – RIKTIKA, ASIAN LAW COLLEGE Edited By – Rajarshi Tripathi** **ABSTRACT / HEADNOTE** This case concerned admission in U.G and P.G courses in medical courses where every state and Union territory followed the uniform and consistent decision for giving preferences to those students who have domicile or permanent residents of a State for a very long period from 3 to 20 years and also to those students who have studied in any educational institutional of a particular from long years between 4 to 10 years. But the situation arises that the applicant has the domicile when taking an admission. In this case, the Petitioner appealed before the Supreme Court to challenge the order of the Delhi High Court who wanted to take admission in the MBBS and MDS courses in distinct universities of different States and also the Union Territory of Delhi and challenged the domicile and institutional choice requirements as it is violated the rights guaranteed by the Constitution. The issue that arises is whether admission to medical courses in the institutions of a State is only restricted to those students who have a residence or domicile for a specific number of years. Also, any reservation can be made to them over those who do not have domicile or residents of a State except of merit. ***Keywords*** – Constitution, States, Union Territory of Delhi, Supreme Court, Delhi High Court, Domicile **CASE DETAILS** *Judgement Cause Title / Case Name***Dr. Pradeep Jain vs. Union of India and ors.*Case Number***Civil Appeal No. 6392 of 1983*Judgement Date***22/06/1984*Court***Supreme Court of India*Quorum / Constitution of Bench***Bhagwati, P.N., Sen, Amarendra Nath (J), Mishra Rangnath*Author / Name of Judges***Bhagwati, P.N.*Citation***AIR 1984 SC 1420, 1984 SCR (3) 942*Legal Provisions Involved***Article 5, Article 14, Article 15, Article 16(2), Article 19(1), Article 301, and Article 141 of Constitution of India**INTRODUCTION AND BACKGROUND OF JUDGEMENT** The judgment involves that INDIA is a nation where unity is exists among the citizens. The decision was given based on there is only one domicile in the nation. The legal fraternity of the nation works in one chain and does not vary from State to State. The Court pronounced that admission in the P.G. medical courses is not desired to any such reservation based on domicile or requirement of the State and if State wants to make a reservation to those students of a particular State that should not exceed 50 percent of the total seats available. The said judgement also instructed that implementation from the academic session 1985-1986 does not create any binding effect over the State of Jammu and Kashmir and Andhra Pradesh. **FACTS OF THE CASE** 1. **Procedural Background of the Case** The petitioner challenged the order and judgement of the Delhi High Court and appealed Under Article 32 of the Constitution of India before the Supreme Court of India 2. **Factual Background of the Case** The factual matrix of the case is that the petitioner desired to take admission in the U.G. and P.G. medical courses in distinct universities of different States and the Union Territory of Delhi. He was not able to take it because of the reservation made for those students who have the domicile or residence of a State. He felt that it was a violation of Articles 15, 16, 19(1) and 301. He filed a petition before the Delhi High Court as aggrieved by the order then appealed to the Supreme Court. **LEGAL ISSUES RAISED** 1. Whether the admission to medical colleges or any other institutions in a State can be confined to those students who have a domicile or residence for a very long period of years? 2. Can the State make any reservation in admissions to those with domicile or residence over to them who only possess the merit apart from domicile or resident to meet the requirements of admission? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. It is contended that the consistent and united decision of the States to take admission on the required domicile or residence violated the equality provision mentioned under Articles 14, 15, and 16 of the Indian Constitution. 2. The State restricted the petitioner to move freely within the territory of India under Articles 19(1) and 301 of the Indian Constitution. **RESPONDENT’S ARGUMENTS** 1. It is contended that the taking admission to medical colleges or any other institution was relevant but Article 16(2) was not applied. The requirement of domicile or residence for admission to a medical in a State cannot be declared unconstitutional based on the violation of Articles 15(1) and (2). 2. Article 16(2) cannot take as a ground for discrimination because it is based on place of birth and not based on residence. The contention placed reliance on ***D.P Joshi v. State of Madhya Bharat*** where it stated that residence and place of birth are two different concepts in law and fact both. **RELATED LEGAL PROVISIONS** 1. **Article 14 –** It states that *“The State shall not deny to any persons equality before the law or the equal protection of the laws within the territory of India.”* 2. **Article 15(1) –** *“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth of any of them.* *(2) – No citizen shall on grounds only of religion, race, caste. sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-* *(a) access to shops, public restaurants, hotels and places of public entertainment; or* *(b) the use of wells, tanks, bathing ghats, roads and places so public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.* *(3) – Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”* c. **Article 16(2) –** *“No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”* **JUDGEMENT** **RATIO DECIDENDI** The Apex Court held that admission to MBBS course based on the All India Examination then preference made to the selected candidates. It was held that admission takes in P.G. courses like M.S, M.D would be given not based on domicile or residence within the State. Certain percent of seats to be reserved to those who have domicile or residence upto 50% of the total seats available and not more than that. The same instructions would be revised by the Indian Medical Council. The Court also directed that there are super specializations as neurosurgery and cardiology then no reservation would be made and admission will take based on merit on the national level. **CONCLUSION & COMMENTS** The pronouncement of judgment that reservation will not be done at P. G. courses in medical and if States wants to give preferences to their own State’s residence or having their domicile that would not exceed the 50% in overall seats in India. The petitioners claimed or alleged the violation of Articles 15 and 16 but it is based on place of birth and not based on residence. Both are different concepts seen in various judgments. The decision with reasoning was appropriate where the State can also take admission and other States students can also get admission in the left 50%. **REFERENCES** **Important Cases Referred** 1. Ramana Dayaram Shetty v. International Airport Authority of India & Ors., \[1979\] 3 S.C.R. 1014 2. D.P. Joshi v. State of Madhya Bharat, \[1955\] 1 SCR 1215 3. Vasundro v. State of Mysore, \[1971\] Suppl. SCR 381 4. Jagdish Saran v Union of India, \[1980\] 2 SCR 831 5. Rajendran v. State of Madras. \[1968\] 2 SCR 786 6. Periakaruppan v. State of Tamil Nadu, \[1971\]2 SCR 430 7. Ahmedabad St. Xavier’s College Society and Anr. v State of Gujarat. \[1974\]1 SCR 717 **Important Statutes Referred** 1. Constitution of India, 1950 **Categories:** Case Analysis, Constitutional Law Cases --- ### [LEGAL ASPECTS OF CORPORATE FRAUD IN INDIA](https://lawfoyer.in/legal-aspects-of-corporate-fraud-in-india/) **Published:** July 8, 2024 **Author:** LawFoyer **Content:** **Authored By – GAGANPREET KAUR GILL, CHANDIGARH UNIVERSITY Edited By – Rajarshi Tripathi** **INTRODUCTION** In the corporate sphere, the issue of corporate fraud poses a pervasive and intricate challenge, casting a shadow over the integrity of businesses worldwide. The web of illicit financial transactions represents a significant threat to corporations and their stakeholders. This ultimately erodes shareholder trust, depletes investment capital, and damages the company’s brand reputation. This article provides a comprehensive analysis of corporate fraud within the Indian context. It delves into the nuances of corporate fraud, including its evolution, types, indicators, and categories. Furthermore, the discussion encompasses past notable examples of fraud that have occurred in India, as well as the evolving regulatory landscape with respect to such practices. ***Keywords*:-** **Corporate law, fraud , Whistle blower protection , offence , company** **MEANING OF FRAUD** The term “Fraud “ is defined under Section-17[\[1\]](#_ftn1) which means means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:— (1)” the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent”. ***Illustration***– “A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A”. Moreover,according to the Contract Act, a contract obtained through fraudulent means is considered voidable at the option of the party whose consent was obtained by fraud. Section- 19 of the Contract Act establishes that if a party enters into a contract due to fraudulent misrepresentation, the contract is deemed voidable and the non-fraudulent party can choose to void the agreement. The concept of fraud goes beyond just deceit, as was established in the case of Dr. Vimla v. Delhi Administration (1962). The court held that the notion of fraud encompasses more than just deception and can include other unfair means used to obtain consent. **MEANING OF CORPORATE FRAUD** Corporate fraud refers to intentional acts of deception committed by a company or its representatives for the purpose of financial or personal gain. These fraudulent activities undermine the trust and integrity of the corporation and can have serious legal and financial consequences. Some common examples of corporate fraud include: Financial statement fraud, Misappropriation of assets, Insider trading. At its core, corporate fraud involves the willful misuse of a company’s resources or the breach of fiduciary duties for illicit personal or organizational gain. Combating such fraud is crucial for maintaining public trust and the integrity of the corporate system. **EVOLUTION OF CORPORATE FRAUD** India has a long history of grappling with corporate fraud, dating back to the surge of companies and financial dealings that accompanied the country’s industrialization and economic reforms after independence. This growth, unfortunately, created fertile ground for deceitful activities. One of the earliest and most infamous scandals was the Harshad Mehta securities scam of the early 1990s. This intricate scheme involving banks, brokers, and financial instruments ultimately triggered the collapse of the Indian stock market and severely damaged the nation’s financial system. The Mehta case exposed glaring weaknesses in India’s regulatory framework, making the need for stricter oversight and enforcement painfully clear. Subsequent years saw a string of high-profile corporate fraud cases in India, including the Satyam Computer Services scandal, the Kingfisher Airlines debacle, and more recent incidents involving companies like IL&FS and DHFL. These cases revealed deep-seated problems: inadequate corporate governance, feeble internal controls, and troubling collusion between businesses, financial institutions, and regulators. The Indian government and regulatory bodies like the Securities and Exchange Board of India (SEBI) and the Ministry of Corporate Affairs have taken action in response to these challenges. They have enacted and strengthened various laws, regulations, and enforcement mechanisms. The Companies Act, 2013, the Prevention of Corruption Act, and the Insolvency and Bankruptcy Code all aim to establish a more robust legal framework to combat corporate fraud and promote greater transparency and accountability within the corporate sector. However, recent cases serve as a stark reminder that the fight against corporate fraud in India is far from over. Continued vigilance, more vigorous enforcement, and a holistic approach that tackles the underlying systemic issues are all essential. As India’s corporate landscape continues to transform, its legal and regulatory framework must also adapt to ensure the integrity and stability of the nation’s business environment. **TYPES OF CORPORATE FRAUD** Corporate fraud, a pervasive threat, manifests through diverse methods, each posing distinct challenges for organizations and stakeholders. Let’s delve into the key categories and tactics employed by perpetrators: **1.Misappropriation of Asset** This encompasses a range of deceptive activities, including: **Payment Fraud:** Dishonestly diverting funds through unauthorized transactions. **Accounting Fraud:** Manipulating financial records to create a false impression of an entity’s financial health**.** **Schemes to Inflate Share Prices:** Employing misleading tactics to artificially boost a company’s stock value, often to deceive investors. **2.Unauthorized Asset Acquisition:** This involves the illegal appropriation of various assets, including: **Physical Goods:** Theft of tangible assets belonging to an organization. **Intellectual Property:** Misappropriation of intellectual property rights such as copyrights or patents. **Exploiting Assets Through Dummy Payments:** Utilizing fictitious payments to gain unauthorized access to an entity’s assets for personal gain. **3.Corruption:** Corruption encompasses a web of deceitful practices, including: **Fraudulent Payments:** Making or receiving illicit payments to achieve an unlawful objective. **Bribery:** Offering or accepting bribes to public officials or private individuals to influence their actions. **Aiding and Abetting:** Assisting others in committing fraudulent activities. **Politically-Motivated Fraud:**Utilizing political influence to shield fraudulent activities. **4. Dominant Forms of Corporate Fraud:** While corporate fraud encompasses a vast array of tactics, some forms are more prevalent than others. These include: **Financial Fraud:** Deception involving the manipulation of financial records or the misappropriation of funds. **Asset Misappropriation:** The unauthorized seizure of an organization’s assets for personal gain. **Employee Fraud:** Dishonest activities perpetrated by employees within an organization. **Vendor Fraud:** Deception committed by a supplier or vendor in a business transaction. **Customer Fraud:** Deceitful actions by customers aimed at gaining an unfair advantage. **Investment Fraud:** Misrepresentation of information or fraudulent practices related to investments. **These prevalent forms of corporate fraud often involve a combination of deceptive practices such as:** - Theft of various assets, including money, tangible property, or sensitive information. - Misuse of accounts for personal gain. - Procurement fraud involving manipulation of procurement processes. - Payroll fraud involving the manipulation of employee payroll records. - Misrepresentation of financial data through accounting manipulation. - Inappropriate journal entries used to conceal fraudulent activity. - Suspense account fraud involving the misuse of suspense accounts for fraudulent purposes. - Submission of false expense claims for personal gain. - Fabrication of employment credentials to gain unauthorized employment. - Bribery and corruption to influence business decisions or gain an unfair advantage**.** By maintaining vigilance and implementing robust internal controls, organizations can significantly mitigate the risks associated with these prevalent forms of corporate fraud. **LEGISLATIONS THAT DEALS WITH THE CORPORATE FRAUD IN INDIA** 1. **THE COMPANIES ACT, 2013** provides laws for punishment related to an individual who commits fraud against the company. [\[1\]](#_ftn1) **SECTION OF COMPANY ACT DEALS WITH CORPORATE FRAUD** ***Section 447: Punishment for Fraud[**\[1\]**](#_ftn1)*** Where the offense of fraud, as established under Section 447 of the Companies Act 2013, has been carried out. The person who has been found guilty of committing such fraud shall be: Imprisoned for a period that may extend to ten years but not less than six months, and Shall be liable to pay a fine that may extend to three times the amount involved in the fraud but not less than the amount involved in the fraud. ***Forgery (Sections 448, 449, & 450)*** These sections address forgery offenses committed against a company. Section 448 specifically deals with creating or altering company documents to contain false or misleading information. Those found guilty of such forgery can be imprisoned for up to seven years and fined ₹5,000. In some cases, the fine may be tripled the amount involved in the fraud. ***Liability for Fraudulent Conduct (Section 542)*** Section 542 deals with the consequences of fraudulent business practices during company liquidation. This section holds those managing the company personally liable for any debts or liabilities arising from such fraudulent conduct. - Thus, Companies Act aims to ensure the accuracy of information submitted and deter fraudulent activities. - Penalties for false statements and forgery can include imprisonment and fines. - Company managers can be held personally liable for debts resulting from fraudulent business practices during liquidation. **2.** **PMLA TARGETS CORPORATE FRAUD AS MONEY LAUNDERING** **THE PREVENTION OF MONEY LAUNDERING ACT (PMLA)** treats corporate fraud as a serious offense. It applies when fraud is committed to conceal criminal proceeds or gain benefits from them. PMLA’s Section 3 defines money laundering broadly, encompassing acquisition, possession, or any act that disguises criminal proceeds. Section 4 prescribes penalties for money laundering, including imprisonment for 3 to 7 years and a fine. **3.SEBI: SAFEGUARDING INDIA’S SECURITIES MARKET** Established in 1992, **THE SECURITIES AND EXCHANGE BOARD OF INDIA (SEBI) A**cts as a watchdog, vigilantly monitoring fraud in the securities market. SEBI’s key functions include: \* Protecting investors \* Educating investors about the market \* Overseeing intermediaries \* Facilitating the smooth operation of the market \* Regulating business practices SEBI enforces various regulations to deter fraudulent activities. For instance, Section 12A prohibits manipulative practices and insider trading, while Section 15E penalizes asset management companies for non-compliance with regulations. These measures promote a fair and transparent securities market in India. 4.**INDIAN PENAL CODE** ***Section 409: Criminal Breach of Trust by Public Servant or by Banker, Merchant or Agent*** This section applies when someone entrusted with property, like a public servant, banker, merchant, or agent, dishonestly disposes of it for themselves or someone else. In the context of corporate fraud, this can be relevant in cases where: Company Directors or Employees Embezzle Funds or Assets: “If directors or employees entrusted with company funds or assets misuse them for personal gain, it can be considered a criminal breach of trust under Section 409.” ***Section 420: Cheating*** This section deals with deceiving another person by fraudulent means and inducing them to deliver property or take an action that results in a disadvantage. In the context of corporate fraud, Section 420 can be applied in cases where: False Financial Statements Mislead Investors: “If a company publishes misleading financial statements to attract investors, causing them to invest in the company and suffer losses, it can be considered cheating under Section 420.” - Both sections address fraudulent acts involving entrusted property or deception for wrongful gain. - They can be applied in various corporate fraud scenarios depending on the specific nature of the deception or misuse of property. For a more comprehensive legal framework on corporate fraud, other laws like the Companies Act, 2013, and the Prevention of Corruption Act play a crucial role. These establish stricter oversight and penalties specifically targeting corporate wrongdoings. **CASE LAWS** **M/S. Satyam Computer Services Limited vs Directorate Of Enforcement(2009)** This case involves the high-profile Satyam Computer Services fraud, which was one of the largest corporate scams in India’s history. - **KEY FACTS:** – Satyam Computer Services Limited was an Indian IT services company that was found to have engaged in massive financial fraud, including inflating revenues, profits, and assets, as well as fabricating bank statements and invoices. – The fraud came to light in 2009 when the company’s founder, B. Ramalinga Raju, confessed to the scam in a letter to the company’s board of directors. – The Directorate of Enforcement (ED), the law enforcement agency responsible for investigating financial crimes, initiated proceedings against Satyam and its executives for various offenses under the Prevention of Money Laundering Act (PMLA). - **KEY ISSUES ADDRESSED:** 1**. Applicability of PMLA**: The Supreme Court had to determine whether the Satyam fraud case was covered under the PMLA, even though the predicate offense (i.e., the original crime that generated the laundered proceeds) occurred before the PMLA came into effect. 2\. **Scope of ED’s Powers:** The court examined the scope of the ED’s powers in investigating and prosecuting cases of corporate fraud, especially in relation to tracing the proceeds of crime. 3. Burden of Proof: The court deliberated on the burden of proof in PMLA cases, particularly regarding the ED’s responsibility to establish a direct link between the predicate offense and the proceeds of crime. - **JUDGMENT**: – The Supreme Court held that the Satyam fraud case was indeed covered under the PMLA, as the offense of money laundering continued even after the PMLA’s enactment. – The court upheld the ED’s powers to investigate and prosecute the Satyam case, emphasizing the need for effective enforcement mechanisms to tackle corporate fraud. – Regarding the burden of proof, the court ruled that the ED must establish a direct nexus between the predicate offense and the proceeds of crime, rather than relying on presumptions. Thus, Satyam case highlighted the importance of robust legal and regulatory frameworks in addressing corporate fraud and the critical role of enforcement agencies in investigating and prosecuting such financial crimes in India. **Punjab National Bank vs. Union of India Thr. Its Secretary (2022**) This case is a follow-up to the previous landmark judgment by the Supreme Court in the Punjab National Bank (PNB) fraud case, which involved the issuance of fraudulent Letters of Undertaking (LoUs) to the diamond merchant Nirav Modi. - **KEY FACTS:** – After the initial PNB fraud case, the bank filed a fresh petition seeking further directions from the court regarding the role and accountability of the Reserve Bank of India (RBI) as the banking regulator. – PNB argued that the RBI’s failure to put in place adequate supervisory mechanisms and internal controls contributed to the massive fraud that led to a loss of over ₹13,000 crore for the bank. - **KEY ISSUES ADDRESSED:** **1. Regulatory Oversight and Accountability:** – The court examined the extent of the RBI’s responsibility in ensuring the integrity and stability of the banking system. – It scrutinized the RBI’s role in monitoring and supervising the operations of banks, particularly in relation to the issuance of LoUs. **2. Duty of Regulatory Authorities:** – The court reiterated its earlier stance that regulatory authorities like the RBI have a fundamental duty to safeguard the financial system and cannot absolve themselves of responsibility. – It emphasized the need for robust regulatory frameworks and effective oversight mechanisms to prevent the recurrence of such large-scale frauds. **3. Remedial Measures and Reforms:** – The court directed the RBI and the Union of India to consider implementing comprehensive reforms in the banking and financial sector to address the underlying issues that enable corporate fraud. – It suggested measures such as enhancing the RBI’s regulatory powers, strengthening internal controls within banks, and improving coordination between various enforcement agencies. - **JUDGMENT:** – The Supreme Court upheld its earlier position and held the RBI accountable for its failure to discharge its statutory duties effectively. – The court directed the RBI and the Union of India to take immediate steps to implement the necessary reforms and strengthen the regulatory framework to prevent and address corporate fraud in the banking sector. Thus, this case reinforces the Supreme Court’s emphasis on the critical role of regulatory authorities in ensuring the integrity and stability of the financial system, and their responsibility in preventing and addressing corporate fraud in India. **EFFECT OF CORPORATE FRAUD ON BUSINESSES IN INDIA** Corporate fraud can have extensive and wide-ranging impacts on businesses, including: - **Financial Losses:** Fraudulent activities can result in direct monetary losses through the “theft of funds, misappropriation of assets, and revenue manipulation”. These losses can “undermine profitability, impair liquidity, and jeopardize the financial health of the organization”. - **Reputation Damages**: Corporate fraud “tarnishes the reputation of the company, eroding trust and credibility among customers, investors, suppliers, and other stakeholders”. Once a company’s reputation is compromised, it may struggle to “regain trust and loyalty, leading to loss of business opportunities and market share”. - **Legal Consequences:** Fraudulent actions often “lead to legal investigations, regulatory penalties, and litigation, resulting in significant legal expenses, fines, and settlements”. These “legal battles can drain resources, distract management focus, and damage the company’s standing in the eyes of regulators and the public”. - **Operational Disruption:** Fraudulent schemes can “disrupt normal business operations, causing chaos, confusion, and inefficiency within the organization”. “Investigations, audits, and remediation efforts may divert resources away from core business activities, leading to productivity losses and operational setbacks”. - **Employee Morale:** Corporate fraud “undermines employee morale and trust in the organization’s leadership”. Employees may feel “demoralized, disillusioned, and disengaged, leading to increased turnover, decreased productivity, and a toxic work environment”. **RECENT AMENDMENT IN REGARD TO CORPORATE FRAUD IN INDIA** The Securities Exchange Board of India has introduced new provisions in the Listing Obligations and Disclosure Requirements Regulations, 2021. These amendments aim to “enforce higher disclosure and standards of corporate governance in public listed companies”. The key change In this amendment is the mandatory “disclosure of fraud, default and arrests”. Listed entities are now obligated to report any “fraud or defaults by the company or subsidiary and any fraudulent activity, default, or arrest of its promoter, director, key managers or any senior management”, regardless of whether these incidents occurred in India or abroad. This new compliance mandate is intended to “increase international security requirements”. **According to Regulation 30(6)**, a listed company must “disclose to the exchange all the material information at the earliest and should not take more than 24 hours from the occurrence of the event or information”. If the information is not disclosed within this timeframe, the company must provide an explanation for the delay. These disclosures must be made within specific timelines, depending on the nature and origin of the event[\[1\]](#_ftn1) – “Within 30 minutes the decision from the board of directors meeting with respect to the event should be disclosed.” – “Within the next 12 hours after the event or information occurred should disclose from which listed entity it originated.” – “Within 24 hours from the occurrence of the event, in cases when it did not originate from within the listed company.” **CONCLUSION & COMMENTS** Corporate fraud remains a pervasive challenge in India, despite the nation’s evolving legal and regulatory framework. While recent amendments like the mandatory disclosure of fraud by listed companies are a positive step towards greater transparency, a holistic approach is needed to effectively combat this menace. This multifaceted approach should encompass:1.Strengthening Regulatory Oversight: Regulatory bodies like SEBI and the RBI must enhance their supervisory mechanisms and enforcement capabilities to deter fraudulent activities. 2.**Promoting Robust Corporate Governance:** Companies must prioritize robust corporate governance practices, including strong internal controls, ethical leadership, and a culture of compliance. 3.**Enhancing Whistle-blower Protection:** Robust whistle-blower protection mechanisms are crucial to encourage internal reporting of suspected misconduct. 4.**Public Awareness Campaigns**: Educating the public about the red flags of corporate fraud can empower them to make informed investment decisions and hold companies accountable. 5.By implementing these comprehensive measures, India can create a more robust and ethical business environment, fostering trust and confidence among stakeholders and ensuring the long-term stability and growth of its corporate sector. **REFERENCES** **Books / Commentaries / Journals Referred** Company law book by Avatar Singh **Online Articles / Sources Referred** - - - - **Cases Referred** M/S Satyam Computers Services vs. Directorate of Enforcement(2011). Kingfisher Airlines Ltd vs. Union of India (2015). Union of India vs. Infrastructure Leasing & Financial Services Ltd (2022). **Statutes Referred** 1. Sec- 447,448,449,450,542 of Companies Act,2013 2. Sec-409,420 of Indian Penal Code,1860 3. Sec- 3, 4 of Prevention of money laundering act --- [\[1\]](#_ftnref1) Indian Contract Act 1872, sec-17. **Categories:** Company Law, Contract Law --- ### [LEGAL PROTECTION OF GEOGRAPHICAL INDICATIONS IN INDIA](https://lawfoyer.in/legal-protection-of-geographical-indications-in-india/) **Published:** July 8, 2024 **Author:** LawFoyer **Content:** **Authored By – NAMITHASRI.S, CHETTINAD SCHOOL OF LAW Edited By – Rajarshi Tripathi** **INTRODUCTION** A product is said to as having a geographic indication if it has distinctive qualities that come from its original location and make it stand out from other similar products. The protection of goods using GI tags was greatly aided by the TRIPS and Lisbon agreements. In India, there are two legal frameworks implemented by the Indian government to establish proper legal protection for the products that are registered under Geographical Indications. They are, 1. Geographical indications of goods (registration and protection) Act, 1999. 2. Geographical indications of goods (registration and protection) rules, 2002. According to the GI Act of 1999 and the GI Rules of 2002, products that have a GI tag and the users who have authorization to use them are granted protection and certain privileges ***Keywords*:** Geographical Indications, GI Act, GI Rules, TRIPS agreement, Lisbon agreement **CONCEPT AND SIGNIFICANCE** Geographical indicators are distinctive labels applied to goods that are made in a certain area and have certain qualities, reputations, and traits that are exclusive to that location. It helps to identify the goods of a specific geographical place ensures the specific features of those GI-tagged products and also promotes the products of that particular geographical place and its producers. **ORIGIN AND EVOLUTION** The geographical indication protection was first initiated in France by the system called the Appellation Origin system which existed in the early 20th century. This system’s goal is to protect the particular region’s product and its unique features, heritage, and production method and also enhance the same. In those times Geographical Indications were called as Appellation of Origin. Then later on the Lisbon Agreement of 1958 aimed to ensure the legal framework for protecting appellations of origin. The registered member states gain from this agreement by having their products recognized as coming from their nations, and it also defines the phrase “Appellation of Origin”. Appellations of origin are the geographical name of a country, region, or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.[\[1\]](#_ftn1) The agreement TRIPS restricts GI tag usage which will amount to misleading the public about the place where the product has originated and it also aimed at the additional protection regarding wines and spirits. Concerning this agreement, India implemented certain rules and acts. **GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999** The TRIPS agreement exerted pressure on the Indian government to enact this act, which provides a suitable legal framework for the protection of items bearing the Geographical Indication mark. Protecting the goods that are registered under geographic indications is the primary goal of this act. This act establishes a clear registration procedure for GI product registration, places limitations on who is eligible to apply for GI tags, and gives authorized users additional rights. This legislation penalizes unauthorized users and provides civil and criminal remedies to persons who have been violated in the event of infringement. **GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) RULES, 2002** The government of India enacted these rules to offer guidelines for the execution of the GI Act of 1999. These rules establish specific requirements for the registration, administration, and management of GI-tagged goods protection. **FACTORS TO BE CONSIDERED BEFORE REGISTRATION** **ELIGIBILITY FOR REGISTRATION** - Any person, organization, manufacturer, or authority can register for the GI tag of the product. - Interest of the producers should be shown by the applicant. - Application must have been made in the prescribed form and should contain all details about the product. - Application must be made to the registrar of GI with the registration fee. **PRODUCT DOES NOT AMOUNT TO REGISTRATION** - When the product use deceives or is contrary to the law or - When the products consist of obscene content or cause hurt to any religious people. - When the product has been falsely represented which is originated in any other region. **REGISTRATION PROCEDURE** **IDENTIFICATION OF GI** The first step is to pick out a product that is to be registered for a GI tag. The products can be agricultural, industrial, handicrafts, or can also be natural resources but those products should possess unique features and qualities towards the geographical place from where it is been originated, and that product should have some reputation because of its geographical origin. While identifying the product it should ensure the geographical place from where it originated and enough documents should be given to prove the unique quality of the product and its link to the place of origin. **PROCESS RELATED TO APPLICATION FORM: (SECTION 11 OF GI ACT)CONTENTS NEEDED FOR FILING THE APPLICATION** First, the application should be obtained from the concerned authority and the applicant should fill the application with all the necessary information related to the product like its unique quality, features, and place of origin with sufficient documents that stand as evidence for the originality of the product. After filing all these details, the applicant should sign the application, and a statement consisting of all his details should be specified in the application. Later on, the application should be given to the concerned authority. **INSPECTION OF APPLICATION** Once the application is submitted, the authorities scrutinize it, ensuring that it meets all of the necessary standards and thoroughly reviewing it. Authorities assess the product description, quality, features, and place of origin to ensure compliance with all legal norms and regulations. The authorities examine all these with experts’ help and state the specifications’ authenticity and correctness. **NOTICE TO SHOW CAUSE: (SECTION 12 OF GI ACT)** Authority after examination if have any clarifications or objections then he can issue the applicant a notice and ask him to show cause the reason for the same. He should also state the grounds for issuing the notice in detail. The applicant on receiving the notice should respond to the notice within 2 months or else the application may also be rejected. Once the register hears the reasons from the applicant then he can decide either to approve or reject the application. Then the applicant can also file for an appeal within 1 month if aggrieved. **PUBLICATION: (SECTION 13 OF GI ACT)** Upon approval of the application, the GI-tagged product should be published in journals, newspapers, or any other online platform. Upon acceptance of the application, the publication should take place within three months. All details regarding the product and its origin should be accurately stated in the advertisement. **OPPOSITION AFTER PUBLICATION: (SECTION 14 OF GI ACT)** Once the application is published, anyone who believes the product is ineligible for the GI tag may file an opposition against it with the register. The register then delivers the applicant a copy of the notification and asks him to respond within two months or the application will be abandoned. If the applicant files the counter-statement then the register should give a copy of the counter-statement to the person who filed the opposition. Then the register should allow to show cause for both sides and can conclude either to accept or reject the application based on the statements and evidence given. **CORRECTIONS AND AMENDMENTS: (SECTION 15 OF CI ACT)** If the applicant found some specifications that need a correction or amendment then he can by stating the grounds apply to the register and then on sufficient reason he may permit the applicant to make certain corrections. The amendments or corrections can be permitted either before or after the acceptance of the application. **REGISTRATION: (SECTION 16 OF GI ACT)** Once the examination and publication are over, then the register after hearing the opposition, if satisfied accepts the application and registers it and the date on which it is registered is called the registration date. After this process, the register gives the authorized user a certificate of the registration and if the registration is not completed within 12 months, on notice to the applicant the register can abandon the application. The register can also make corrections in the certificate in case of any clerical errors. **DURATION, RENEWAL, AND RESTORATION: (SECTION 18 OF GI ACT**) Once the product gets its GI tag then the protection of that product under GI is valid for 10 years. If the applicant needs to continue with the duration of the protection then he can renew it by paying the fee for the renewal before the validity period ends or else the protection gets terminated and the terminated protection can also be restored by paying the fees within the period of 1 year. **APPEAL TO THE APPELLATE BOARDS: (SECTION 31 OF GI ACT)** If the applicant feels that the decision made by the register is wrong then he can appeal against the decision within 3 months. The applicant should state the reasons for the appeal and should give notice with all the essential documents. Then the court allows both sides to show cause and derive the conclusion based on the facts and the evidence given. **RIGHTS OBTAINED AFTER REGISTRATION** - The authorized user on registration enjoys an unlimited right over that particular product and also has the right to restrict the unauthorized user who infringes the GI-tagged products. - The users also have the right to get remedies in case of any unauthorized use and also restrict the imitation of the product. **INFRINGEMENT AND ITS REMEDIES** **INFRINGEMENT: (SECTION 22 OF GI ACT)** If any person who is not an authorized user uses the registered GI tag for goods which is not produced in that specific geographical area and misleads the public or makes any imitation of the product which is registered under GI or else the act done by that person damages the reputation of the product then that leads to the infringement under GI. However, the infringement does not include a person who is not an authorized person but obtains that Gi-tagged product for the further process or packaging of the good. **REMEDIES** - Remedies include civil, criminal, and administrative remedies. - Under civil remedies the aggrieved party claims for the damages with an injunction that can either be temporary or permanent or stop the production or sale of infringing goods. - Under criminal remedies the aggrieved party claims for the fines and imprisonment for infringing the GI-tagged goods. - Under administrative remedies exercised by the register of GI by cancelling the registration of infringing goods. **IMPORTANT CASES AND DISPUTES RELATED TO GI** 1. **Tea Board, India vs. ITC Limited** This case is popularly known as the Darjeeling tea case. **FACTS:** Darjeeling tea has a distinct taste and quality due to its West Bengal origin. The petitioner oversaw the production of Darjeeling tea and obtained protection under Geographical indications for tea produced in Darjeeling, as well as the GI tag Darjeeling tea. The defendant, ITC Limited used the name Darjeeling for the longue services in the hotel which is in Calcutta. So, the petitioner filed a suit against the defendant for using the name Darjeeling for their longue services for the infringement of misleading the public by using GI tagged name. **JUDGEMENT:** The court held that the GI protection is only given for the goods which is registered and not for the services. Here the petitioner has got a GI tag only for the tea produced in Darjeeling but the defendant has used the Darjeeling for his longue services. So there is no passing off occurred and hence the defendant is not liable for the infringement under GI. 2\. **India -us basmati rice dispute** This case is popularly known as the Basmati case. **FACTS:** Basmati is the name given to the rice variety which means the fragrance or the flavor which is widely grown in India and Pakistan. In 1997, the Rice tech company obtained a patent for the rice named basmati which is grown outside India and Pakistan. So, India objected to the patent given to a rice tech company because the name Basmati is known for the rice grown in India and Pakistan and stated that if rice tech uses the Basmati name for other region-grown rice then it will mislead the consumers buying the Basmati Rice from India. **OUTCOME:** As a result of this objection, the rice tech has withdrawn many patent claims in which Basmati is also one and India got a GI tag over Basmati rice. 3\. **Tirupati Laddu controversy** **FACTS:** Laddu which is made in Tirupati Perumal temple is know for its unique taste which is widely spread among the people. So, Tirupati Devasthanam registered and got GI protection for the Tirupati Laddu. But many were against this and filed cases against this as it is widely spread no need for protection under the Geographical indications and also stated that it can’t be restricted by GI protection as it is given to the public domain as prasad. **OUTCOME:** As a result, the court held that the GI registration for Tirupati Laddu can’t be cancelled due to its popularity and public domain issues. **CONCLUSION & COMMENTS** There were no specific laws for GI protection initially in India. Later by the influence of the TRIPS agreement, the government of India came up with a legal framework for the protection of GI in India which includes the GI Act and GI Rules. The provisions in these acts and rules paves the way for the proper registration of GI and also for the regulation and protection of the rights of the authorized users under GI. Thus India protects GI-tagged products with a proper legal framework established in 1999. **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. Law Relating To Intellectual Property Rights: V.K. Ahuja 2. **Online Articles / Sources Referred** 1. 1. 1. - **Cases Referred:** - Tea Board, India vs. ITC Limited - India -us basmati rice dispute - Tirupati Laddu controversy - **Statutes Referred** - Geographical indications of goods (registration and protection) Act, 1999. - Geographical indications of goods (registration and protection) rules, 2002. **Categories:** Articles, Intellectual Property Law --- ### [An Informed Insight: UAPA, 1967](https://lawfoyer.in/an-informed-insight-uapa-1967/) **Published:** July 11, 2024 **Author:** LawFoyer **Content:** **Author: Srishti Srivastav, Law Student at City Academy Law College, an affiliated college of University of Lucknow, Lucknow, Uttar Pradesh** **Introduction** The Unlawful Activities Prevention Act of 1967, also called the UAP Act or UAPA, is an act to prevent anti-terrorism activities across the territory of, the Union of India or, any part India has acquired. The National Investigation Agency, the central counter-terrorism agency, is this act’s enforcement body. The act presents itself as a more effective means of dealing with terrorist activities and other related problems, as well as the prohibition of certain illicit activities carried out by individuals or associations. The UAPA, 1967’s Section 1 Subsection (2) states that the act is applicable throughout the entirety of India and that anyone found to have violated any of its provisions may face legal repercussions. The act also has provisions for every person who commits an offense or omission under this act (Section 1 sub-section (3) of UAPA,1967). Any person who has committed an offense or omission outside India shall be punished as if the act or omission had been committed in India (Section 1 sub-section (4) of UAPA,1967). Any individual, company, firm, organization, association of persons, or body of individuals, whether or not incorporated, as well as any artificial juridical person and any agency, office, or branch owned or controlled by any of the aforementioned individuals, are all considered “persons” under the definition of “person” provided by Section 2 sub-section (ec) of this act. If it is discovered that any person or group is engaged in any terrorist activity as defined by this act, the Indian government has the authority to label them as terrorists or terrorist organizations. Any individual can be detained by the authorities under this act for ninety days which can be extended up to one hundred and eighty days if the investigation has not been completed even without a chargesheet being filed or without the exhibition of evidence. Within the duration of detention, either 90 days or 180 days, the right to bail does not arise. The accused cannot be freed even after the specified period of custody has passed unless the court finds that there are good reasons to believe the charges against them are true in the first place. **The History of UAPA,1967** In 1962, CN Annadurai, founder of the Dravida Munnetra Kazagham (DMK), proposed a separate Tamil nation in his Rajya Sabha speech. But later, due to the Indo-China War of 1962, he let go of this proposal. During this period, the government believed that India already had provisions to deal with external aggression in the form of emergency granted by Article 352 of the constitution but the nation had no law to deal with the domestic crisis. The Unlawful Activities Prevention Act was created in 1967 as a result of the need for an anti-domestic crisis statute. It was formed by setting up a committee by the National Integration Council for national integration and regionalization. On the recommendation of this committee, in 1963, the 16th Constitutional Amendment was made which added the words “sovereignty and integrity of India” as a reasonable restriction in Article 19(2), (3), (4) of the Indian Constitution. Certain fundamental rights granted to people by Article 19(1) were curtailed by this amendment: the freedom of speech and expression, the right to peaceful assembly without the use of force, and the right to organize into cooperative organizations, unions, or associations. UAPA,1967 is the successor of a few anti-terrorism laws of the independent India. After India became a liberal democratic the nation witnessed many domestic crises such as large-scale communal violence, displacement, and internal disturbance as a consequence of partition. Intending to secure the territory of India, its constitution, and the rights of its citizens the Prevention Detention Act of 1950 was formulated. According, to this act the government had the power to detain individuals for 1 year without any charge. The act had a “sunset clause”, i.e., it was made for a temporary period and a specific purpose. Thus, in 1969 the Parliament believed that the purpose of this law was complete and as a consequence, it was lapsed. In the year 1958, the Armed Forces Special Power Act was passed which is still enforced. The Maintenance of Internal Security Act of 1971 was passed two years after the Preventive Detention Act of 1950 expired. The Maintenance of Internal Security Act of 1971 inherited much of the 1950’s Preventive Detention Act’s provisions. It was revoked in 1977 as a result of widespread abuse by Smt. Indira Gandhi’s administration during the emergency in 1975. Additionally, another security measure that is still in effect, the National Security measure of 1980, was created in essentially the same amount of time. In response to the unrest brought about by the Punjab Terror Acts, the Terrorist and Disruptive Activities (Prevention) Act was created in 1985. It was repealed in 1995 because of its wide misuse. In 2001, after the deadly terrorist attack on the Parliament, Mr. Vajpayee led the NDA government passed the Prevention of Terrorism Act, 2001. It was a draconian law that was being widely misused and hence, was repealed by the UPA government in 2004. **Amendments in UAPA** **1. Amendment of 2004** Repealing the Prevention of Terrorism Act of 2001, the system experienced a vacuum that the Amendment of 2004 fulfilled. The majority provisions of the POTA,2001 were shoved into the Unlawful Activities Prevention Act of 1967. This was the first amendment that enhanced the extent of the act and added anti-terrorism provisions to it. Definitions like terrorist acts, terrorist gangs, and terrorist organizations were added. With the amendment, the state might designate any organization as a “terrorist organization” and place them in a schedule without following the proper legal procedures. The amendment included new chapters specifically for the punishment of acts of terrorism. **2. Amendment of 2008** Following the horrific 26/11 assaults in Mumbai, Maharashtra, the UAPA, 1967 underwent its second modification to take action against international terrorism. This amendment can constitute a “Special Court” under the National Investigation Agency Act,2008. The amendment also added the definition of “property” in the act. It enhanced penalties for terrorism-related offenses. The amendment enlarged police custody and jail time for the accused and developed a stricter bail procedure without any chargesheet being filed. **3. Amendment of 2012** This amendment added a few definitions to Section 2 of the act such as economic security, person, and proceeds of terrorism. The amendment altered the duration of the notification from which an organization could be designated as a terrorist organization from two years to five years which means now an organization would be banned for five years instead of two years before judicial review. The government by this amendment is empowered to forfeit the property of the individuals if they are convicted under this act. **4. Amendment of 2019 The most recent amendment in the UAPA Act is the amendment of 2019. It gave the National Investigation Agency the authority to investigate cases under this act. Under this recent amendment, the government can designate any organization as a terrorist organization if it commits, participates, prepares, promotes, or is otherwise involved in any of them. The amendment altered the maximum period of detention from 90 days to 180 days or longer without the right of bail being raised. In general laws, the right to bail is raised after the expiration of the period of 90 days. The new 4thSchedule was added through this amendment wherein the government can brand any individual as a terrorist which will have no designated due process. The individual branded as a terrorist under this Schedule can appeal to such government to de-notify his/her name from the 4th Schedule. **Arguments either for or against** **Arguments in support:** **1. Security of the State-** A nation must preserve its unity and integrity by taking effective measures for safeguarding its security. The act gives authority to the agencies to take preventive actions against the person or organization that is involved or supports the activities that threaten the nation’s integrity. For example- The government, in the Second Schedule of the UAPA has designated several organizations as terrorist organizations such as the People Liberation Army, National Democratic Fund Bodoland, Kanglei Yaol Kanba Lup, etc. **2. International Commitment**– To prevent international terrorism, the United Nations urges in its Charter that all governments adopt the necessary steps. As mandated by the DPSP of Article 51, the supporters of the legislation assert that India’s efforts to counter international terrorism are demonstrated by the UAPA. **3. Preventive Measures-** The Unlawful Activities Prevention Act (UAPA) empowers the government and law enforcement agencies to proactively target persons and groups that they suspect of engaging in illicit activities before they become apparent. **4. Effectivity against terrorism-** The strict provisions of the act discourage individuals and organizations from engaging in or supporting any act threatening the nation’s security. **5. To counter terrorism activities-** The legislation of UAPA provides the law to the agencies to combat anti-terrorism activities in the nation. It gives authority to designate an individual as a terrorist or an organization as a terrorist organization if they are found to be involved in a terrorist act under this act and make the investigation and prosecution smooth. **Arguments against-** **1. Abrogates Fundamental Rights-** The fundamental rights guaranteed to citizens by the Constitution are compromised by the act. A few Article 19 rights, including the freedoms of speech and expression, assembly without the use of force, and formation of unions and associations, are reasonably restricted by the act. Additionally, it infringes upon the fundamental rights guaranteed by Articles 14 and 21, including the rights to equality, life, and personal liberty. **2. Low Conviction Rate-** According to the Ministry of Home Affairs, in 2018 the number of arrested persons across India was 1,421 out of which 35 were convicted while in 2019, it rose to 1,948 out of which only 34 got convicted. In the year 2020, out of 1,321, the number of convicted persons was 80. Hence, on average, only 3% of the arrested persons were convicted under this act. **3. Rigorous Bail Procedure-** According to the statute, an arrested individual cannot be released on bail for a period of 90 days, although this can be extended to 180 days or more if the court is satisfied with the Public Prosecutor’s report, which states that the investigation into the matter is not yet finished even in the absence of a chargesheet.It is unnecessary to immediately signify the cause of arrest to the person arrested or detained. **4. Centralised Power-** Through this act, the power is centralized in the hands of the central government or the agencies of the central government (National Investigating Agency) to declare any individual as a terrorist if it believes the involvement of such person in any unlawful activity. Any individual may be designated as a terrorist by the government through the Official Gazette. **5. Against the Federal Structure-** The liability of maintaining law and order in a state lies upon the government of such state but the UAPA law encroaches upon such power of the state government. **6. Political Misuse-** Due to the lengthened period of imprisonment even without a chargesheet being filed this counter-terrorism act is misused by the ruling political party or government to suppress the non-consent of the individuals against them. **Judiciary’s View** **1.** In the recent case of **Prabir Purkayastha (2024)** the court decided that the investigative agencies had to notify the person who was arrested under the UAPA of the reasons for their arrest. This way, the person could use the information to effectively consult with his attorney, challenge the police custody remand, and request bail. **2.** In the **Union of India vs. K.A. Najeeb (2021)** the UAPA’s rules, according to the Supreme Court, do not restrict constitutional courts’ authority to issue bail where they determine that the accused person’s fundamental rights have been violated. **3.** In **Arup Bhuyan vs State of Assam (2011),** the Supreme Court ruled that an individual is not automatically guilty just for belonging to a prohibited group. It can be applied when someone uses violence, encourages others to use violence, or engages in any other behavior meant to cause chaos. **4.** In **Mazdoor Kisan Shakti Sangathan v. Union of India (2018**), the court held that an insurrection or protest against parliamentary and governmental measures cannot be deemed illegitimate if it is conducted peacefully and without violence. **Conclusion** Historically, the colonizers used to suppress the dissent of the citizens as they didn’t want them to be opinionated against the rule of the government or the crown. Even after 75 years of independence and separation from colonial governance, the state still finds the urge to stifle the non-consent of the citizens towards the regime. India is a democratic nation and by definition, a democracy is a system in which a varied group of people with a range of viewpoints and the freedom to pursue their own interests and speak for themselves elect leaders. Every nation must have laws to counter terrorism activities to protect the security of the state. Still, while doing so it shall not persistently impact or abrogate the basic fundamental rights of its citizens. The rampant and inconvertible political imprisonment raises the question of why there is such opposition to dissent in a democracy. For the nation’s security, such a bargain of the fundamental rights of the citizens is unjust. By carefully crafting amendments, security and civil liberties must coexist in harmony. **Categories:** Articles --- ### [E-Contracts and Digital Signatures: Legal Challenges in India](https://lawfoyer.in/e-contracts-and-digital-signatures-legal-challenges-in-india/) **Published:** August 4, 2024 **Author:** LawFoyer **Content:** **Author: Sonam Chahar, Army Institute of Law** **INTRODUCTION** As we all know contracts are agreements that are enforceable by law. This is the meaning of a contract given by laws. The contracts are between the parties who agree with each other on certain terms and conditions. As the technological revolution took place, the electronic contracts overruled the traditional contracts. E-contracts save the time, money, and complications of parties to the contract. The traditional contracts need some essential elements to be fulfilled, similarly, the e-contracts require pre-requisite conditions to be fulfilled. The old contract system dealt with paperwork, parties had to sign contracts physically, and they were time-consuming. However, e-contracts can be made digitally on various apps, websites, and gadgets. Individuals living in any corner can make contracts digitally. For completion of any contract, one needs the consent of the parties to the contract. In traditional contracts, they had to sign the documents related to the object of the contract. But in the technological era along with e-contracts, digital signatures have also evolved. The parties to the contract have the privilege to sign or submit their documents digitally without any hassle of going out. This article deals with the essentials, the advantages, and disadvantages of e-contracts and digital signatures, and their challenges in India. **1. Meaning, Definition & Explanation** The contract is defined in Section 2(h) of the Indian Contract Act,1872 as “*an agreement enforceable by law is a contract”*.[\[1\]](#_ftn1) To constitute a contract as valid certain pre-requisite conditions, need to be fulfilled such as lawful consideration and lawful objects of the contract. E-contracts are defined in Section 10(A) of Information Technology(IT)Act, 2000 as “*Validity of contracts formed through electronic means.—Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic records, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.”[**\[2\]**](#_ftn2)* **2. Essentials of contracts** There are some essential elements of the contract under The Indian Contract,1872 which are as follows: 1. The one party must make an offer and the acceptance by the other party. 2. The parties should be competent to enter the contract. 3. The object of the contract must be lawful. 4. The consideration of the contract must be lawful. 5. The parties must enter to the contract with free consent. **Essentials of Electronic Contracts** 1. The offer must be made by one party electronically and accepted by another by the mode prescribed. 2. The object and consideration of the contract must be lawful. 3. The parties must be competent to make the contract. **3. Types of E-Contracts** 1. Shrink wrap agreements These types of agreements are related to the buying of software goods. The customer who is purchasing the software product, along with the product the customer has access to the terms and conditions of the product also. - Web wrap agreements These types of agreements are related to merely accepting the terms and conditions of the software for product purchasing. By clicking the button “OK” agreeing to the conditions of the software will give access the customer to purchase the products from that specific software. The customer has the choice of registration also entering the software. Examples are online shopping, and social media apps. - Browse wrap agreements These types of agreements are between several parties and are binding each other with the usage of the website. Parties must comply with the terms and conditions of the website. **4. Benefits of E- Contracts** 1. Cost and time effective: It reduces the time of making a traditional contract and it is time effective as it saves the time of parties entering into a contract. 2. Security purposes: The e-contracts are protected from any damage to the original contracts. They are also protected from any unauthorized use from other sources which are illegal in nature. 3. Easy accessibility: The e-contracts are easily accessible from various platforms or online tools. 4. Environment-friendly: The e-contracts reduce the paperwork which saves paper. **5. Legal Challenges of e-contract** There are some emerging key challenges of e-contracts. 1. Authentication: The authenticity and legality of documents are essential elements to constitute a contract digitally, without the authenticity, there is the risk of fraudulent activities and tampering of documents. 2. Free consent: Free consent is essential for contracts. The parties should refrain from coercion, misrepresentation, or any type of fraud and give free consent in compliance with the terms and conditions of the contract. 3. Easy accessibility: The e-contracts are digitally made, and every individual does not have access to the internet which refrains them from making contracts digitally without going anywhere. 4. Privacy: The data privacy of individuals comes in danger as they submit all their personal and professional information on online platforms to make contracts online. There is a threat to privacy on online platforms. 5. Transaction: In India, consumers are not very aware of online transaction fraud. They purchase products from various online platforms and make transactions with a single click without going through the terms and conditions of that platform that made their loss. - **DIGITAL SIGNATURE** Digital signatures evolved with time as technological evolution took place. Digital signatures are different from e-signatures. The digital signature is a form of consent given by one person to another person digitally attached to documents. The IT Act, of 2000 section 2(p) defines digital signatures as “digital signature” means authentication of any electronic record by a subscriber using an electronic method or procedure in accordance with the provisions of section 3.”[**\[3\]**](#_ftn3)* Digital signatures are important because they carry the real identity of the individual related to the digital documents. They are equivalent to the handwritten signatures. There are three features of digital signatures which are authentication, integrity, and non-repudiation. The authentication of electronic records is given in section 3 of the IT Act, 2000 as *3. Authentication of electronic records. – (1) Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his digital signature. (2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record.[**\[4\]**](#_ftn4)* **Benefits of Digital signatures** 1. Save time: The digital signatures save time for the individual who is residing in a different city away from his/her business place. The individual can sign the documents instantly whenever needed from any place; it eventually saves time. 2. Cost-effective: The digital signatures eliminate all the paper formalities. It saves the cost of companies as they no longer invest in paperwork, scanning, printing, delivery of papers, etc. 3. Valid in nature: They are valid in nature as the laws approve it. They are authentic and original in nature. The specific rules and regulations laid down in the IT Act to ensure the legal validity. 4. Efficiency in Workflow: The workflow of companies and businesses has become fast and efficient. Digital signatures save their time and are cost-effective which leads to a smooth flow of work. **Legal Challenges of Digital Signatures** The digital signatures are managed online, and there is a risk of the tempering of documents. There are some legislative rules and regulations that determine who is competent for digital signatures. Some jurisdictions do not consider digital signatures valid. There are fraudulent activities that question the legal validity of digital signatures. - **CONCLUSION & COMMENTS** The technological revolution introduced e-contracts, digital signatures, electronic signatures, and many more things. The world is slowly moving toward the digital world wholly. Now, electronic contracts become one step ahead of traditional contracts in many aspects, including benefits, etc. To implement these changes effectively in a country, certain rules and regulations and legislative laws like the Information Technology Act, of 2000. - **REFERENCES** - **Books / Commentaries / Journals Referred** - Bare Act of Information Technology Act, 2000 - **Online Articles / Sources Referred** - [https://www.researchgate.net/publication/330281294\_EContracts\_in\_India\_The\_Legal\_Framework\_Issues\_and\_Challenges](https://www.researchgate.net/publication/330281294_EContracts_in_India_The_Legal_Framework_Issues_and_Challenges) - mhnlakgilnojmhinhkckjpncpbhabphi/pages/pdf/web/viewer.html?file=https%3A%2F%2Fls.iledu.in%2Fwpcontent%2Fuploads%2F2023%2F08%2FV1I116.pdf - **Statutes Referred** - Information Technology Act, 2000 --- [\[1\]](#_ftnref1) Indian Contract Act,1872 available at ndiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC\_CEN\_3\_20\_00035\_187209\_1523268996428§ionId=38605§ionno=2&orderno=2&orgactid=AC\_CEN\_3\_20\_00035\_187209\_1523268996428 [\[2\]](#_ftnref2) Information Technology Act,2000 available at https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC\_CEN\_45\_76\_00001\_200021\_1517807324077&orderno=14&orgactid=AC\_CEN\_45\_76\_00001\_200021\_1517807324077 [\[3\]](#_ftnref3) Information Technology Act,2000 available at https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC\_CEN\_45\_76\_00001\_200021\_1517807324077&orderno=2&orgactid=AC\_CEN\_45\_76\_00001\_200021\_1517807324077 [\[4\]](#_ftnref4) Information Technology Act, 2000 available at /mhnlakgilnojmhinhkckjpncpbhabphi/pages/pdf/web/viewer.html?file=https%3A%2F%2Fwww.indiacode.nic.in%2Fbitstream%2F123456789%2F13116%2F1%2Fit\_act\_2000\_updated.pdf **Categories:** Articles, Contract Law --- ### [Free Online Webinar on Changing Facets of Federalism in 21st Century by LawFoyer: Register by August 23](https://lawfoyer.in/free-online-webinar-on-changing-facets-of-federalism-in-21st-century-by-lawfoyer/) **Published:** August 5, 2024 **Author:** LawFoyer **Content:** [![](https://lawfoyer.in/wp-content/uploads/2024/08/Changing-Facets-of-Federalism-in-21st-Century-724x1024.png)](https://lawfoyer.in/webinar-register-changing-facets-of-federalism/) --- [Register Now](https://lawfoyer.in/webinar-register-changing-facets-of-federalism/) ## Gain In-Depth Knowledge from a Leading Expert LawFoyer presents an exclusive free online webinar – **“Changing Facets of Federalism in 21st Century”** led by Constitutional Law expert **Prof. (DR.) 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Bommai v Union of India. - **Cooperative Federalism:** Discussing the concept of cooperative federalism in India, its importance in solving common problems, and how it has been interpreted by the judiciary. - **Competitive Federalism:** Exploring the emerging concept of competitive federalism, where states compete to attract investment and development, and its implications for center-state relations. - **Progressive Federalism:** Examining the idea of progressive federalism, which allows states greater control over issues typically reserved for the national government. - **Challenges and Opportunities:** Identifying the challenges faced by Indian federalism in the 21st century and the opportunities for strengthening federal principles. - **Center-State Relations:** Analyzing the evolving dynamics between the central government and states, including fiscal relations, administrative coordination, and policy implementation. - **Federalism and Diversity:** Discussing how federalism in India accommodates its cultural and ethnic pluralism, and the role it plays in maintaining national unity. - **Future Trends:** Exploring potential future developments in Indian federalism, including possible constitutional amendments or new interpretations of federal principles. - This webinar will provide a comprehensive overview of the changing nature of federalism in 21st century India, offering insights into its constitutional, legal, and practical aspects. Don’t miss this chance to take your Constitutional Law expertise to the next level. Register now on www.lawfoyer.in or contact at contact@lawfoyer.in or +91 8574723478. --- **Categories:** Events, Webinar --- ### [3RD SANKHLA & ASSOCIATES NATIONAL MOOT COURT COMPETITION 2024](https://lawfoyer.in/3rd-sankhla-associates-national-moot-court-competition-2024/) **Published:** August 12, 2024 **Author:** LawFoyer **Content:** The Amikus Qriae (TAQ) is organizing the 3rd edition of Sankhla & Associates National Moot Court Competition 2024 in association with its esteemed joint organizer Sankhla & Associates from 14th September to 17th September 2024 in Virtual mode. ![](https://lawfoyer.in/wp-content/uploads/2024/08/TAQ-MOOT-POSTER-723x1024.jpg)**About Sankhla & Associates** A full-service business and corporate legal practice with a national and international reach is Sankhla & Associates. Their law practice includes collaboration with some of the top solicitors from Singapore, the United Kingdom, and India. Individuals, firms, and organizations can rely on the legal team’s lawyers and corporate advisors for individualized, custom legal solutions. In the areas of Insurance law, Bankruptcy law, Recovery and Debt Management, Corporate law, Advisory, Insolvency and Bankruptcy Laws, etc., their corporate lawyers, litigation experts, bankruptcy and company experts have a renowned legal background and reputation for competing at the highest level. Since the motto of TAQ coincides with that of this law firm, the Third Edition of the National Virtual Moot Court 2024 aims to uphold and reflect these shared values by providing a premier platform for showcasing legal expertise and fostering professional development. **About Amikus Qriae (TAQ):** The Amikus Qriae (TAQ) is a visionary platform conceived by several legal luminaries and eminent personalities from across the country and the globe. TAQ aims to disseminate legal knowledge and provide an in-depth understanding of various fields of law, ensuring that this knowledge penetrates every corner of the ever-growing legal fraternity. We strive to contribute significantly to contemporary legal issues and the development of the omnipresent field of law through the dedicated efforts of ambitious legal minds nationwide. TAQ is registered under the Indian Partnership Act, 1932, and the Ministry of MSME, Government of India. We are proud to be recognized as the 8th largest legal website in India. **Aim of the Competition:** The Third Edition of this prestigious competition aims to enhance the skills of budding lawyers and promote their logical reasoning. Moreover, it helps them cope with the growing standards of success and achievements while preparing them to compete at the highest level in the real world. For further details, please find the Brochure and Moot Proposition of the Third National Virtual Moot Court Competition attached herein. **Eligibility:** Any student pursuing a degree in law, either a five-year course, three-year course, or even LLM students from any recognized institution in India are eligible to participate in the competition. Each team shall consist of a minimum of 2 members (both speakers) and a maximum of 3 members (2 speakers and 1 researcher). We will be permitted a maximum of 04 teams per college to participate. Further, participants in one team may belong to different colleges within the same team, allowing for cross-college participation. **Perks awarded to participants and prize holders:** **NOTE: EVERY PARTICIPANT WILL GET ASSURED VIRTUAL INTERNSHIP OPPORTUNITY AND ASSURED FREE PUBLICATION OPPORTUNITY.** \*Prizes worth up to **Rs. 50,000/- (Fifty-thousand rupees)** will be awarded to specific prize holders and distinguished contestants. 1. The **Winning Team** shall be awarded a prize money of **Rs. 12,000/- (INR)** Along with Internship Opportunities with Chambers of Abhinav Mishra – Advocates and Solicitors, Delhi and Free publication Opportunity at Droit Penale Group bearing ISSN No. \[2456-7280.\] They shall also be awarded with a one-year subscription to CaseMine and access to free courses by our supporting partners. 2. The **Runner-up Team** shall be rewarded with a prize money of **Rs. 10,000/- (INR)** along with an Internship Opportunity at Sankhla & Associates along with a free publication opportunity at Droit Penale Group bearing ISSN No. \[2456-7280.\] They shall also be awarded with a six-month subscription to CaseMine and access to free courses by our supporting partners. 3. The **Second Runner-up Team** shall be awarded a prize money of **Rs. 2000/- (INR)** along with a free publication opportunity at the Indian Journal of Legal Review bearing ISSN No. \[ISSN – 2583-2344\]. They shall also be awarded with a six-month subscription to CaseMine. 4. The **3rd Runner-Up Team** shall be awarded with free book publication opportunity at Lex Scribe. They shall also be awarded with a six-month subscription to CaseMine. 5. The **Best Memorial** shall be awarded with a prize money of INR 2000/ alongwith a free publication opportunity at Indian Journal of Legal Review \[ISSN – 2583-2344\]. They shall also be awarded with a six-month subscription to CaseMine 6. The **Best Speaker** shall be awarded with a prize money of **Rs. 2000/- (INR)** along with a free publication opportunity at Indian Journal of Legal Review \[ISSN – 2583-2344\]. They shall also be awarded with a six-month subscription to CaseMine. 7. The **Best Researcher** shall be awarded with a prize money of **Rs. 2000/- (INR)** along with an Internship Opportunity at Law Offices of India and a free publication opportunity at Lawfoyer International Journal of Doctrinal Legal Research \[ISSN No. 2583-7753\]. They shall also be awarded with a six-month subscription to CaseMine and access to free courses by our supporting partners. 8. The **Semi-finalists** shall be awarded with free publication opportunity at Legal Lock Journal ISSN No. 2583-0384. 9. 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The screenshot of the payment receipt shall be attached to the Google form. 4 Teams Per University can Participate in this Competition. **A/C Details for the Payment of Fees-** **Account Holder Name:** Rupam Banerjee **Account Number:** 38137097733 **Bank Name-** State Bank of India **IFSC Code-** SBIN0012401 **Branch name-** Shyampur **For Google Pay/Paytm/PhonePe:** +91 7364006404 **UPI ID: –** 7364006404@ybl **Categories:** Events --- ### [THEORIES OF PUNISHMENT UNDER CRIMINAL LAW](https://lawfoyer.in/theories-of-punishment-under-criminal-law/) **Published:** April 2, 2024 **Author:** LawFoyer **Excerpt:** Author-Nighilkumar M, Government Law College, Dharmapuri

INTRODUCTION

There is no specific definition of crime and punishment in Indian laws. the act or omission when contrary to law is crime that is punishable. but there is specific definition about offence and punishment in India Penal Code, 1860 and also Bharatiya Nyaya Sanhita,2023. Every crime has punishable by law. The crime and punishment are changing as by the trend, that changes are now, the theories of punishment. let us know the changes of punishment by its period. Keywords: punishment, criminal law, theories of punishment, Indian penal code, bharatiya nyaya sanhita.

Definition of punishment

     In generally, the punishment is giving to the accused for committed the crime. Indian Penal Code denotes that certain amount of punishment for certain offence by different section. but there is no definition of punishment in any law even in Indian Penal Code. Under section 53 of that code says about types of punishment to be punished by the law to the accused. According to that section there are 5 types of punishment such as, death, imprisonment for life, rigorous imprisonment and simple imprisonment, forfeiture of property, fine. No other punishment shall be given other than this code otherwise any specified law provided.

OBJECT OF PUNISHMENT

            The object of punishment is correction of wrongdoer not vengeance on criminal. In India strictly follows the theory of reformative for reform the criminal. Purpose of this punishment is the wrongdoer realise his mistake to correct himself by the theory of reformative and also realise that the wrong-doing is not harmful for the society or the victim and also himself on his future. By this kind of punishment, he realises his wrong-doing in his period of punishment and after released, he comes to the society as a respective person.

Historical Background / Evolution

  • ANCIENT PERIOD
In the Ancient period, the ‘Rex non potest peccare’ principle was followed which means, king can do no wrong. In that period, there is no codified law. king order to do or not to do. there is an oral order not in written and all people were obeying the king’s order. (a) kings can order that killing someone for his crime. that crime even has small offence. if the king ordered, people could be done. there is no appeal, no written judgment and no laws. (b) king can order that move him to another place. In other words, putting something aside from the village. (c) any order to be made by the king even it is not justifiable.
  • MODERN PERIOD
In the Modern period, the “Rule of Law” principle is followed which means No one is above the law. king may do wrong. Only the law can do no wrong. In this period, the laws are written. Even king may do wrong and king can be punished by law. Here is no oral order, order should be written. punishment is defined under the provision of Indian Penal Code.

THEORIES OF PUNISHMENT

There are various theories of punishment followed in India in different period as follows:-
  1. Retributive theory
  2. Deterrent theory
  3. Preventive theory
  4. Reformative theory
Dr. Jacob George v. State of Kerala [1] In this case, the Supreme Court Stated that the purpose of punishment is four-fold. one is retribution for vengeance, another is preventive which is prevent the crime, further is deterrence which gives punishment and furthermore is reformative which is reform the criminals.

RETRIBUTIVE THEORY

     Retributive theory is saying that what the perpetrator done to the victim is equally done the same to the perpetrator too. it also known as ‘theory of vengeance’. This theory is based on the doctrine lex talionis which means an eye for an eye, tooth for tooth. In literal meaning, “You hurt me and I will hurt you”. This kind of punishment is oldest and most ancient justification for punishment.  Retribution means basically that the wrong-doer pays for his wrong-doing. In different way of interpretation may be said that the criminal has by bis crime incurred a debt due to law, and therefore, by suffering punishment he pays it back, dissolving the legal bond forged by his crime. In this moder era, retributive punishment cannot be justification for punishment in this modern society. Punishment is regulated by legislation fixing the punishment and executed by the judges and magistrates.

DETERRENT THEORY

In ordinary meaning of this theory, ‘deterrent’ means abstain from wrong-doing. Object of this theory is restraining the criminal from committing the crime or same in future. This theory explains control the crime by creating the fear of crime before the offender committing the offence. This theory gives us the fear to commit wrong-doing by imposing the punishment. For Example, ‘A’ is committed such offence and punished such imprisonment. People will stop committing such crime because of fear of punishment of ‘A’. Moreover, this theory does not only punish the offender for his crime but also not to commit the offence again. There are two types of deterrents as, specific deterrence and general deterrence. State of Karnataka v. Sharnappa Basangouda Aregoudar [2] “The sentence imposed by the court should act as a deterrent on potential offenders and should be commensurate with the seriousness of the crime”

PREVENTIVE THEORY

     In literal sense, ‘prevent’ means intercept, hinder, frustrate, thwart from happen which means to stop in advance some act. In other way to express about this theory, proverb says that prevention is better than cure.  This theory tries to stop the crime and also prevent him to reoffending. If a person disqualified from driving, it prevented from committing the traffic offences. Preventive theory has two kinds, one is temporary preventive and another one is permanent preventive. temporary preventive means preventive measure is only for such period, i.e., certain amount of fine, certain period of imprisonment. permanent preventive means is unlimited disablement, i.e., life imprisonment, death penalty.

REFORMATIVE THEORY

Reformation is defined as “the effort to a man to society as a better and wiser man and a good citizen”[3] Reformative theory seeks to better the criminal, by removing his errors, faults and defects and maintains that punishment is curative. A crime is a disease and to remove the disease medicine like fine, imprisonment. This theory aims at the actual offender and all legal system are surely moving towards a reformative paradigm. Shanti Lal Meena v. State (NCT of Delhi)[4] Supreme Court observed in this case that in cases of corruption and swindling of public money, there is no serious scope for reformation of public servants as the moment they are convicted they lose their job. Therefore, there is no significance to the theory of reformation and only relevant object of punishment in such cases is denunciation and deterrence.

Types / Kinds of punishment

There are five kinds of punishment under Section 53 of Indian Penal Code, 1860
  1. Death Sentence,
  2. Sentence of Life Imprisonment,
  3. Sentence of a term of imprisonment which may be either simple or rigorous,
  4. forfeiture of property and
  5. fine.

Legal Provisions in IPC & BNS

In Indian Penal Code, Section 53 says about Punishments, “53. Punishments. – The punishments to which offenders are liable under the provisions of this code are, -   First. - Death;   Secondly. - Imprisonnment for life;   Thirdly. - [Repealed by Act 17 of 1949, S. 2];   Fourthly. – Imprisonment, which is of two descriptions, namely: -
  • Rigorous, that is, with hard labour;
  • Simple;
  Fifthly. – Forfeiture of property;   Sixthly. – Fine.” [5] In Section 4 of Bharatiya Nyaya Sanhit, 2023 says about the punishment as, “4. Punishments. - The punishments to which offenders are liable under the provisions of this Sanhita are— (a) Death; (b) Imprisonment for life, that is to say, imprisonment for remainder of a person’s natural life; (c) Imprisonment, which is of two descriptions, namely: —    (1) Rigorous, that is, with hard labour;    (2) Simple; (d) Forfeiture of property; (e) Fine; (f) Community Service.” [6] These provisions are mentioned above about the punishment. but, Indian Penal Code,1860 is replaced by the Bharatiya Nyaya Sanhita, 2023. After the date 1st July, 2024 Indian Penal Code will be repealed and Bharatiya Nyaya Sanhita will be replaced and enforced. that’s why here we discuss both provisions. In addition, another punishment is included in Bharatiya Nyaya Sanhita is community service which is not in Indian Penal Code.

Amendments / Repealing

     In Section 53 of Indian Penal Code has a repealing clause that the third punishment is transportation which was repealed by Act 17 of 1949. But after the moth of July, 2024 the whole Indian Penal Code, 1860 will be repealed and replaced by the Bharatiya Nyaya Sanhita, 2023.  Because of oldest code which was enacted by the British legistation and made such modification in that code for this modern era.

Future Implications

     the society is change in each day by day but, the laws are not modified in day by day. It is not possible to change the laws by up-to-date. But we can change the laws in between certain period. Indian Penal Code is enacted in the British period. This code does not suitable for this modern period. So, we have to need a new code for this modern era. that’s why today Bharatiya Nyaya Sanhita will be enacted and will enforce.  

CONCLUSION & COMMENTS

A penal statute is necessary for a republic country. People make wrong and law correct them by the penal statute. The theories of punishment are nothing but the history of punishment, procedure or manner for punishment.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. The Indian Penal Code – Ratanlal & Dhirajlal
    2. Indian Penal Code – B.M. Gandhi
    3. Indian Penal Code – S.N. Misra
  2. Online Articles / Sources Referred
    1. indiacode.nic.in
    2. scconline.com
    3. mha.gov.in
    4. prsindia.org
    5. lawtimesjournal.in
    6. indiankanoon.org
  3. Cases Referred
    1. Jacob George v. State of Kerala, 1994 Cr.L.J. 3851 SC.
    2. State of Karnataka v. Sharnappa Basangouda Aregoudar AIR 2002 SC 1529.
    3. Shanti Lal Meena v. State (NCT of Delhi), (2015) 6 SCC 185.
  1. Statutes Referred
    1. India Penal Code, 1860.
    2. Bharatiya Nyaya Sanhita, 2023.
[1] Dr.Jacob George v. State of Kerala, 1994 Cr.L.J. 3851 SC. [2] State of Karnataka v. Sharnappa Basangouda Aregoudar AIR 2002 SC 1529. [3] Prison Commissioners Report, 1912, p.24. [4] Shanti Lal Meena v. State (NCT of Delhi), (2015) 6 SCC 185.? [5] Indian Penal Code,1860, S.53. [6] Bharatiya Nyaya Sanhita, 2023, S.4 **Content:** **Author-Nighilkumar M, Government Law College, Dharmapuri** ### **INTRODUCTION** There is no specific definition of crime and punishment in Indian laws. the act or omission when contrary to law is crime that is punishable. but there is specific definition about offence and punishment in India Penal Code, 1860 and also Bharatiya Nyaya Sanhita,2023. Every crime has punishable by law. The crime and punishment are changing as by the trend, that changes are now, the theories of punishment. let us know the changes of punishment by its period. ***Keywords*:** punishment, criminal law, theories of punishment, Indian penal code, bharatiya nyaya sanhita. #### **Definition of punishment** In generally, the punishment is giving to the accused for committed the crime. Indian Penal Code denotes that certain amount of punishment for certain offence by different section. but there is no definition of punishment in any law even in Indian Penal Code. Under section 53 of that code says about types of punishment to be punished by the law to the accused. According to that section there are 5 types of punishment such as, death, imprisonment for life, rigorous imprisonment and simple imprisonment, forfeiture of property, fine. No other punishment shall be given other than this code otherwise any specified law provided. ### **OBJECT OF PUNISHMENT** The object of punishment is correction of wrongdoer not vengeance on criminal. In India strictly follows the theory of reformative for reform the criminal. Purpose of this punishment is the wrongdoer realise his mistake to correct himself by the theory of reformative and also realise that the wrong-doing is not harmful for the society or the victim and also himself on his future. By this kind of punishment, he realises his wrong-doing in his period of punishment and after released, he comes to the society as a respective person. ### **Historical Background / Evolution** - **ANCIENT PERIOD** In the Ancient period, the ‘*Rex non potest peccare’* principle was followed which means, king can do no wrong. In that period, there is no codified law. king order to do or not to do. there is an oral order not in written and all people were obeying the king’s order. (a) kings can order that killing someone for his crime. that crime even has small offence. if the king ordered, people could be done. there is no appeal, no written judgment and no laws. (b) king can order that move him to another place. In other words, putting something aside from the village. (c) any order to be made by the king even it is not justifiable. - **MODERN PERIOD** In the Modern period, the *“Rule of Law”* principle is followed which means No one is above the law. king may do wrong. Only the law can do no wrong. In this period, the laws are written. Even king may do wrong and king can be punished by law. Here is no oral order, order should be written. punishment is defined under the provision of Indian Penal Code. ### **THEORIES OF PUNISHMENT** There are various theories of punishment followed in India in different period as follows:- 1. Retributive theory 2. Deterrent theory 3. Preventive theory 4. Reformative theory ***Dr. Jacob George v. State of Kerala [\[1\]](#_ftn1)*** In this case, the Supreme Court Stated that the purpose of punishment is four-fold. one is retribution for vengeance, another is preventive which is prevent the crime, further is deterrence which gives punishment and furthermore is reformative which is reform the criminals. ### **RETRIBUTIVE THEORY** Retributive theory is saying that what the perpetrator done to the victim is equally done the same to the perpetrator too. it also known as ‘theory of vengeance’. This theory is based on the doctrine *lex talionis* which means *an eye for an eye, tooth for tooth.* In literal meaning, *“You hurt me and I will hurt you”.* This kind of punishment is oldest and most ancient justification for punishment. Retribution means basically that the wrong-doer pays for his wrong-doing. In different way of interpretation may be said that the criminal has by bis crime incurred a debt due to law, and therefore, by suffering punishment he pays it back, dissolving the legal bond forged by his crime. In this moder era, retributive punishment cannot be justification for punishment in this modern society. Punishment is regulated by legislation fixing the punishment and executed by the judges and magistrates. ### **DETERRENT THEORY** In ordinary meaning of this theory, ‘deterrent’ means abstain from wrong-doing. Object of this theory is restraining the criminal from committing the crime or same in future. This theory explains control the crime by creating the fear of crime before the offender committing the offence. This theory gives us the fear to commit wrong-doing by imposing the punishment. For Example, ‘A’ is committed such offence and punished such imprisonment. People will stop committing such crime because of fear of punishment of ‘A’. Moreover, this theory does not only punish the offender for his crime but also not to commit the offence again. There are two types of deterrents as, specific deterrence and general deterrence. ***State of Karnataka v. Sharnappa Basangouda Aregoudar*** [\[2\]](#_ftn2) “The sentence imposed by the court should act as a deterrent on potential offenders and should be commensurate with the seriousness of the crime” ### **PREVENTIVE THEORY** In literal sense, ‘prevent’ means intercept, hinder, frustrate, thwart from happen which means to stop in advance some act. In other way to express about this theory, proverb says that *prevention is better than cure.* This theory tries to stop the crime and also prevent him to reoffending. If a person disqualified from driving, it prevented from committing the traffic offences. Preventive theory has two kinds, one is temporary preventive and another one is permanent preventive. temporary preventive means preventive measure is only for such period, i.e., certain amount of fine, certain period of imprisonment. permanent preventive means is unlimited disablement, i.e., life imprisonment, death penalty. ### **REFORMATIVE THEORY** Reformation is defined as “the effort to a man to society as a better and wiser man and a good citizen”[\[3\]](#_ftn3) Reformative theory seeks to better the criminal, by removing his errors, faults and defects and maintains that punishment is curative. A crime is a disease and to remove the disease medicine like fine, imprisonment. This theory aims at the actual offender and all legal system are surely moving towards a reformative paradigm. ***Shanti Lal Meena v. State (NCT of Delhi)[\[4\]](#_ftn4)*** Supreme Court observed in this case that in cases of corruption and swindling of public money, there is no serious scope for reformation of public servants as the moment they are convicted they lose their job. Therefore, there is no significance to the theory of reformation and only relevant object of punishment in such cases is denunciation and deterrence. ## **Types / Kinds of punishment** There are five kinds of punishment under Section 53 of Indian Penal Code, 1860 1. Death Sentence, 2. Sentence of Life Imprisonment, 3. Sentence of a term of imprisonment which may be either simple or rigorous, 4. forfeiture of property and 5. fine. ### **Legal Provisions in IPC & BNS** In **Indian Penal Code, Section 53** says about Punishments, *“**53. Punishments.** – The punishments to which offenders are liable under the provisions of this code are, –* *First. – Death;* *Secondly. – Imprisonnment for life;* *Thirdly. – \[Repealed by Act 17 of 1949, S. 2\];* *Fourthly. – Imprisonment, which is of two descriptions, namely: –* - *Rigorous, that is, with hard labour;* - *Simple;* *Fifthly. – Forfeiture of property;* *Sixthly. – Fine.” [**\[5\]**](#_ftn5)* In **Section 4 of Bharatiya Nyaya Sanhit**, 2023 says about the punishment as, *“4. Punishments. – The punishments to which offenders are liable under the provisions of this Sanhita are—* *(a) Death;* *(b) Imprisonment for life, that is to say, imprisonment for remainder of a person’s natural life;* *(c) Imprisonment, which is of two descriptions, namely: —* *(1) Rigorous, that is, with hard labour;* *(2) Simple;* *(d) Forfeiture of property;* *(e) Fine;* *(f) Community Service.” [**\[6\]**](#_ftn6)* These provisions are mentioned above about the punishment. but, Indian Penal Code,1860 is replaced by the Bharatiya Nyaya Sanhita, 2023. After the date 1st July, 2024 Indian Penal Code will be repealed and Bharatiya Nyaya Sanhita will be replaced and enforced. that’s why here we discuss both provisions. In addition, another punishment is included in Bharatiya Nyaya Sanhita is community service which is not in Indian Penal Code. #### **Amendments / Repealing** In Section 53 of Indian Penal Code has a repealing clause that the third punishment is *transportation* which was repealed by Act 17 of 1949. But after the moth of July, 2024 the whole Indian Penal Code, 1860 will be repealed and replaced by the Bharatiya Nyaya Sanhita, 2023. Because of oldest code which was enacted by the British legistation and made such modification in that code for this modern era. #### **Future Implications** the society is change in each day by day but, the laws are not modified in day by day. It is not possible to change the laws by up-to-date. But we can change the laws in between certain period. Indian Penal Code is enacted in the British period. This code does not suitable for this modern period. So, we have to need a new code for this modern era. that’s why today Bharatiya Nyaya Sanhita will be enacted and will enforce. ### **CONCLUSION & COMMENTS** A penal statute is necessary for a republic country. People make wrong and law correct them by the penal statute. The theories of punishment are nothing but the history of punishment, procedure or manner for punishment. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. The Indian Penal Code – Ratanlal & Dhirajlal 2. Indian Penal Code – B.M. Gandhi 3. Indian Penal Code – S.N. Misra 2. **Online Articles / Sources Referred** 1. [indiacode.nic.in](http://www.indiacode.nic.in) 2. [scconline.com](http://www.scconline.com) 3. [mha.gov.in](http://www.mha.gov.in) 4. [prsindia.org](http://www.prsindia.org) 5. [lawtimesjournal.in](http://www.lawtimesjournal.in) 6. [indiankanoon.org](http://www.indiankanoon.org) 3. **Cases Referred** 1. Jacob George v. State of Kerala, 1994 Cr.L.J. 3851 SC. 2. State of Karnataka v. Sharnappa Basangouda Aregoudar AIR 2002 SC 1529. 3. Shanti Lal Meena v. State (NCT of Delhi), (2015) 6 SCC 185. 4. **Statutes Referred** India Penal Code, 1860 Bharatiya Nyaya Sanhita, 2023. **Endnotes** [\[1\]](#_ftnref1) Dr.Jacob George v. State of Kerala, 1994 Cr.L.J. 3851 SC. [\[2\]](#_ftnref2) State of Karnataka v. Sharnappa Basangouda Aregoudar AIR 2002 SC 1529. [\[3\]](#_ftnref3) Prison Commissioners Report, 1912, p.24. [\[4\]](#_ftnref4) Shanti Lal Meena v. State (NCT of Delhi), (2015) 6 SCC 185.? [\[5\]](#_ftnref5) Indian Penal Code,1860, S.53. [\[6\]](#_ftnref6) Bharatiya Nyaya Sanhita, 2023, S.4 **Categories:** Articles, Criminal Law --- ### [Mastering the Art of Legal Research: A Comprehensive Certification Course](https://lawfoyer.in/mastering-the-art-of-legal-research-a-comprehensive-certification-course/) **Published:** June 17, 2024 **Author:** LawFoyer **Content:** # ![sticker.png](https://lawfoyer.in/wp-content/uploads/2024/06/sticker.png) Introducing # Mastering the Art of Legal Research: A Comprehensive Certification Course 👨‍🎓👩‍🎓 Want to learn how to do professional legal research and how to write professional Legal Research papers, Case Analysis, Articles, reports of Empirical research? 🏆 Worry not LawFoyer brings to you the Certification Course in Legal Research Methodology, starting on July 5, 2024. 📅 [ Enroll Now ](https://academy.lawfoyer.in/courses/mastering-the-art-of-legal-research-a-comprehensive-certification-course/) ![](https://lawfoyer.in/wp-content/uploads/2024/06/research-course-1024x1024.jpg) # COURSE COMMENCING IN ### Course Duration 15 hours ### Course Starts from 5 July (Live) ### Recordings Validity 2 Years ### Course Fee ₹ 399/- [ Enroll Now ](https://academy.lawfoyer.in/courses/mastering-the-art-of-legal-research-a-comprehensive-certification-course/) ## Frequently Asked Questions [ Do you offer daily live classes? ](#collapse-14514dc6aa18800b864c) No, our course does not include daily live classes. 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[ ](https://wa.me/+918574723478) **Categories:** Courses & Workshops, Events --- ### [Mehmood Nayyar Azam v. State of Chhattisgarh](https://lawfoyer.in/mehmood-nayyar-azam-v-state-of-chhattisgarh/) **Published:** August 25, 2021 **Author:** LawFoyer **Content:** **In the Supreme Court of India** NAME OF THE CASEMehmood Nayyar Azam v. State of ChhattisgarhCITATIONCivil Appeal No. 5703 of 2012DATE OF THE CASEAugust 3, 2012APPELANTMehmood Nayyar AzamRESPONDENTState of ChhattisgarhBENCH/JUDGEK.S.P. RADHAKRISHNAN & DIPAK MISRASTATUTES/CONSTITUTION INVOLVEDConstitution of India; Indian Penal Code, 1860; Evidence Act, 1872; Human and Civil Rights; Criminal Procedure Code, 1973IMPORTANT SECTIONS/ARTICLESConstitution of India — *A*rts. 21, 19, 14 and 32 Indian Penal Code, 1860, Ss. 499 to 502 Criminal Procedure Code, 1973 — Ss. 163, 154, 155 and 157 Evidence Act, 1872 — S. 24 Human and Civil Rights — Right against cruel, inhuman, or degrading treatment or torture ## **Abstract** In the present case, the appellant doctor who was spreading awareness against the exploitation of weaker and marginalised sections of society became a victim of the local coal mafia, police and persons whose interests were being affected thereby. Many criminal cases were filed against the doctor, and he was admittedly humiliated in police custody. Pursuant to the intervention by the high court, departmental proceedings were initiated, and therefore the erring officials were punished. The high court in its final order referred the concern the Chief Secretary of the State for grant of compensation. Till the present appeal i.e. after 19 years, no compensation had been paid to the appellant albeit the Supreme Court initially gave a chance to the respective state government to think about the issue of compensation. ## **Introduction** In India, defamation is considered both a civil & criminal offence. Civil defamation remedy is covered in the Law of Torts. An individual who is defamed can move either High Court or subordinate courts and seek damages within the sort of monetary compensation from the accused in a civil defamation case. The Indian Penal code, 1860 provides a chance for the defamed person to file a criminal case against the accused. Under sections 499 and 500 of the IPC, an individual guilty of criminal defamation is often sent for imprisonment for a term which can extend two years or fine, or both. In the present case, the writ court isn’t concerned with defamation as given under Section 499 IPC. The writ court is basically concerned with how during a country governed by the rule of law and where Article 21 of the Constitution is treated to be sacred, the dignity and social reputation of citizens have been affected. #### **1. Defamation** **Overview** Defamation is a statement that injures a third party’s reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements). **[**\[1\]**](#_ftn1)** **Elements** To prove *prima facie* defamation, a plaintiff must show four things: **[**\[2\]**](#_ftn2)** - A false statement purporting to be fact. - Publication or communication of that statement to a third person. - Fault amounting to at least negligence; and - Damages, or some harm caused to the person or entity who is the subject of the statement. The two-Judge bench within the case of Mehmood Nayyar vs State of Chhattisgarh Stated Article 5 of the 1948 Universal Declaration of Human Rights “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”**\[3\]** It also stated that any kind of torture, inhuman, or degrading treatment should fall within the scope of Article 21 of the Constitution, whether it is during an investigation, interrogation, or anything else. The most valuable right given to convicts, under-trials, detained persons & other prisoners in custody by Article 21 of the Indian Constitution cannot be refused, except in compliance with the procedure laid down by law. The custodial offences are not only causing physical pain but also the mental agony that a person faces within the lockups, which is of great concern. The degree of trauma an individual experiences in police custody whether it is physical assault or rape is outside the purview of the law. #### 2. Custody and Custodial Torture **Custody**, in the legal context, refers to the detention of an individual by law enforcement authorities, which can be categorized into police custody and judicial custody. While **police custody** allows for interrogation, judicial custody is primarily intended for the safekeeping of the accused. Despite robust constitutional protections and statutory provisions, custodial torture remains a persistent concern in India, challenging the very foundations of the criminal justice system. Landmark judgments by the Supreme Court of India have played a crucial role in shaping the legal landscape concerning custodial rights and the prevention of torture. In the seminal case of ***D.K. Basu v. State of West Bengal (1997) 1 SCC 416***, the apex court laid down comprehensive guidelines for arrest and detention procedures, emphasizing the need to safeguard the rights of the accused. Similarly, in ***Nilabati Behera v. State of Orissa (1993) 2 SCC 746***, the Court unequivocally recognized custodial deaths as a grave violation of fundamental rights, paving the way for compensation to victims’ families and underlining the state’s responsibility in preventing such occurrences. Despite these legal protections, the implementation and enforcement of anti-torture measures face significant challenges. The underreporting of cases due to fear of reprisal and the inherent lack of witnesses in custodial settings complicate the prosecution of offenders. Moreover, the difficulty in proving torture, often due to the absence of physical evidence or the manipulation of medical reports, further hampers justice delivery. Institutional resistance to accountability and the reluctance to prosecute law enforcement officers also contribute to the perpetuation of custodial violence. Recently, the Law Commission of India has recommended the ratification of the United Nations Convention against Torture, which would necessitate comprehensive legislative reforms. Additionally, there has been an increased emphasis on technological solutions, such as the mandatory installation of CCTV cameras in police stations, to deter and document potential abuses of power. ## **FACTS OF THE CASE** The factual matrix, in this case, is that the appellant is a Doctor with a B.A.M.S (Ayurveda) degree, and he uses to practise in West Chirmiri Colliery, Pondi area (State of Chhattisgarh). He used to spread awareness & raise agitations against the exploitation of people belonging to weaker and marginalized sections of the society. As a social activist, he ushered in immense awareness among the down-trodden people which caused discomfort to the people such as trade union leaders, police officers and other persons who were having an interest in the coal mine area. They threatened him with horrible consequences and forced him to refrain from such activities. The petitioner continued the activities although he was being forced to stop those activities. The agitation was gaining strength and momentum and when their attempt failed to silence him a consorted bungling effort was made to frame him in certain criminal offences. “As the factual narration further unfolds, in the initial stage, cases under Section 110/116 of the Criminal Procedure Code were initiated and thereafter crime No. 15*/*92 under Section 420 of the Indian Penal Code (for short ‘the IPC’) and crime No. 41/92 under Sections 427 and 379 of the IPC were registered. As the activities gathered further drive and became more pronounced, crime No. 62/90 was registered for an offence punishable under Section 379 of the IPC for alleged theft of electricity. In the said case, the appellant was taken into custody.”[**\[4\]**](#_ftn4) “Although he was presented before the Magistrate on 22/09/1992 for judicial remand and after that, he was supposed to be taken to Baikunthpur Jail, it was evening by the time the order was passed, so he was kept in the lock-up at Manendragarh Police Station. On 24/09/1992, he was required to be shifted to jail but at 9.00 am he was taken to Pondi Police Station instead of being taken to the jail.”[**\[5\]**](#_ftn5) “He was abused and assaulted at the police station &the physical assault was the beginning of ill-treatment. After that, the SHO and ASI, the respondent No. 3 & 4, compelled him to hold a placard on which it was written: ***“******Main Dr. M.N. Azam Chhal Kapti Evam Chorr Badmash Hoon”. (I, Dr. M. N. Azam, am a cheat, fraud, thief, and rascal)*** and took his photograph, they circulated that photograph in public.”[**\[6\]**](#_ftn6) The petitioner submitted a complaint to the National Human Rights Commission because of the said atrocities and the torture by the police as it caused tremendous mental agony and humiliation. Hence the National Human Rights Commission, asked the Superintendent of Police, District Koria to submit a report. “When no action was taken by the respondent or the police, the petitioner was compelled to invoke the extraordinary jurisdiction of the High Court of Judicature at Bilaspur, Chhattisgarh with a prayer for punishing the respondent Nos. 4, 5 & *7* on the foundation that their action was a complete transgression of human rights which affected his fundamental right especially his right to live with dignity as given in Article 21 of the Constitution.”[**\[7\]**](#_ftn7) “On 18.11.2005, the Court was apprised that despite several communications, the Chief Secretary had not yet sent the report. Eventually, the report was filed stating that the appellant was involved in certain cases including the grant of a bogus medical certificate.”[**\[8\]**](#_ftn8) It was also stated in the report that the Sub-Inspector had been imposed punishment of “censure” by the Superintendent of Police on 19/11/2001. It was also set forth that on 3.5.2003, a charge-sheet was served on all the officers that were guilty and a departmental enquiry was held and at last, they had been imposed a major penalty of withholding of one annual increment with cumulative effect for one year commencing 27.5.2004. Also, on 19/07/2005, a case had been registered under Section 29 of the Police Act against the officers that were found guilty. “Pursuant to the intervention by the High Court, departmental proceedings were initiated, and the erring officials were punished. The High Court in its final order referred the matter to the Chief Secretary of the State for grant of compensation. Till the present appeal i.e., after 19 years, no compensation had been paid to the appellant even though the Supreme Court initially gave an opportunity to the State Government to consider the issue of compensation. The High Court in categorical terms has found that the appellant was harassed.”[**\[9\]**](#_ftn9) ## **ISSUE RAISED BEFORE THE COURT** 1. Whether for the custodial humiliation and mental torture under Article 21 of the Constitution a compensation could be awarded or not? 2. Whether the appellant should be asked to initiate a civil action for grant of damages on the foundation that he has been defamed? ## **ARGUMENTS FROM THE APPELANT SIDE - Learned counsel for the petitioner submitted that during the pendency of the writ petition, Relief Clause was fulfilled under the directions of this court and now only the compensation part, as claimed in Relief Clause remained there. - In the instant matter, it is an admitted position that the respondent State authorities were made aware of the harassment meted out to the petitioner by erring police officers and launched a departmental investigation into them, following which they were found guilty and sentenced.” - Learned counsel for the appellant argued that the High Court should have granted reasonable compensation after concluding that the appellant was harassed by police officers and that they were found guilty and disciplined in a departmental investigation. - It is further requested by him that the Court should have appointed the officials of the State to present themselves as representations to provide them with the opportunity to have adequate perceptive changes and determine and grant compensation, but there was no constructive outcome, and the attitude of apathy was supreme. He argues that it would not only display non-Page concern for a citizen who has been humiliated at the police station, but that the method in which the representation was denied clearly demonstrates the state’s misguided perception and stone heart. - Mr. Sharma argued that the State authority’s explanation that defamation is such a subject that the issue of compensation must be decided by a competent court and that, in the absence of such a decision, the Government cannot make a decision on compensation reflects a deliberate insensitive approach to the entire fact situation, Because the High Court had found that the allegations were true and that the appellant had been harassed, which amounted to custodial torture, there was no justification to treat it as a case of defamation in the ordinary sense of the term, requiring the appellant to go through another adjudicatory process and obtain a decree from the civil court. ## **ARGUMENTS FROM THE RESPONDENT SIDE** - Mr. Atul Jha, learned counsel appearing for the State, has supported the High Court’s decision as well as the decision of the State’s competent authority, which rejected the submission on the grounds that when the appellant seeks compensation for defamation, he must go to civil court, and so no fault can be found with the State. - The learned counsel for the private respondents has submitted that they have already been penalised in a disciplinary action, thus the issue of granting compensation does not arise, and if it does, it must be decided by the civil court based on the facts adduced to show defamation. ## **Related Provisions** - **Constitution of India** - **Article 21: –** Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.[**\[10\]**](#_ftn10) - **Article 14: – (**Equality before law) The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth[**\[11\]**](#_ftn11) - **Article 32: –** Remedies for enforcement of rights conferred by this Part - The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed[**\[12\]**](#_ftn12) - The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.[**\[13\]**](#_ftn13) - Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )[**\[14\]**](#_ftn14) - The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[**\[15\]**](#_ftn15) - **Article 19:-** Protection of certain rights regarding freedom of speech etc.[**\[16\]**](#_ftn16) - **Indian Penal Code, 1860** - **Section 499:- Defamation—** Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.[**\[17\]**](#_ftn17) - **Section 500:** – **Punishment for defamation** —Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[**\[18\]**](#_ftn18) - **Section 501:** – **Printing or engraving matter known to be defamatory-**Whoev­er prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[**\[19\]**](#_ftn19) - **Section 502:** – **Sale of printed or engraved substance containing defamatory matter—**Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[**\[20\]**](#_ftn20) - **Criminal Procedure Code, 1973** — Ss. 163, 154, 155 and 157 - **Section 154: –Information in cognizable cases.** - Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.[**\[21\]**](#_ftn21) - A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.[**\[22\]**](#_ftn22) - Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.[**\[23\]**](#_ftn23) - **Section 155: –** Information as to non- cognizable cases and investigation of such cases. - When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.[**\[24\]**](#_ftn24) - No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.[**\[25\]**](#_ftn25) - Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.[**\[26\]**](#_ftn26) - Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.[**\[27\]**](#_ftn27) - **Section 157: – Procedure for investigation preliminary inquiry.** - If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that-[**\[28\]**](#_ftn28) - when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;[**\[29\]**](#_ftn29) - if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.[**\[30\]**](#_ftn30) - In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.[**\[31\]**](#_ftn31) - **Section 163:-** No inducement to be offered.[**\[32\]**](#_ftn32) - No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872).[**\[33\]**](#_ftn33) - But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub- section shall affect the provisions of sub- section (4) of section 164.[**\[34\]**](#_ftn34) - **Evidence Act, 1872** - **Section 24:-** A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,1 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.[**\[35\]**](#_ftn35) ## **Judgement** The Hon’ble Court seriously expressed worry that the dignity and social repute of the public have been compromised in a country governed by rule of law and in which Article 21 of the Constitution is considered sacred. At the outset, the Hon’ble Court was convinced and admitted without any reasonable question that the appellant was arrested and harassed in police custody. However, the Court is more concerned with Article 21 rights than with defamation in this case. In **D.K. Basu v. State of West Bengal**[**\[36\]**](#_ftn36), the Hon’ble Court referred to Article 21 and stated that the term “life or personal liberty” includes the right to live in dignity, and so includes a guarantee against torture and assault by the State or its agents. The Hon’ble Court stated that if government officials breach the law, it will engender contempt for the law and will encourage lawlessness, and every man will have the tendency to become a law unto himself, resulting in chaos. It’s worth noting that the concern expressed by this Court in **Joginder Kumar v. State of U.P**[**\[37\]**](#_ftn37) was taken into account in the matter of **D.K. Basu**[**\[38\]**](#_ftn38). This Court expressed concern in Joginder Kumar’s case about charges of human rights violations during and after his arrest. This Court held in Bhim Singh, MLA v. State of J&K[**\[39\]**](#_ftn39), that police personnel, as keepers of peace and order, should have the highest regard for citizens’ personal liberty, and that they should not flout the law by engaging in odd acts of lawlessness. It was observed that custodians of law and order should not become depredators of civil liberties, for their duty is to protect and not to abduct. Abuse, according to **Arvinder Singh Bagga v. State of U.P. and others**[**\[40\]**](#_ftn40), does not have to be physical, but can also include mental and psychological torture designed to induce fear of the police’s demands. On the facts of the case, it appears that the appellant was subjected to mental torture by incompetent police officers. He may have campaigned to help the poor and oppressed, but the social humiliation he has received has the potential to demolish his worldview. There is no question that he would get stress condition and anxiety, which will rob him of his willpower’s brilliance and vigour. When the appellant was released from custody and saw his photograph distributed with self-condemning comments scribbled on it, he realised he had been subjected to inhumane treatment. As a result, the basic essence of life, as enshrined in Article 21 of the Constitution, is eroding. With regard to the many issues that we have examined and taking into account the totality of the facts and circumstances, we are inclined to believe that a sum of Rs.5.00 lacs (Rupees five lacs only) should be awarded to the appellant as compensation, and we so direct. The respondent State must pay the sum within six weeks and recover it from the erring officers in equal proportions from their salaries, as determined by the competent authorities of the State. ## **Conclusion** “It is luculent that the appellant was subjected to mental torture at the hands of insensible police officials,” the Bench ruled. He may need to be stirred in order to ameliorate the explanation for the poor and thus the oppressed, but the social humiliation he has received is capable of eroding the foundations of his philosophy.” As a result, it was decided that a monetary award for custodial humiliation and torture, whether physical or mental, impacting Article 21 rights should be made. In my opinion, the case correctly states that police brutality is not permitted while in detention. It should be the duty and responsibility of police officials to ensure that when a person is in custody, he is not subjected to any inhumane treatment or cruelty, as no one is above the law, and no one, including the state or police authorities, has the authority to abuse or infringe on anyone’s rights. As a result, it should be a top priority to ensure that no one is denied their fundamental rights under Article 21 of the constitution. --- [\[1\]](#_ftnref1) Cornell Law School, (last visited August 01,2021) [\[2\]](#_ftnref2) Cornell Law School, (last visited August 01,2021) [\[3\]](#_ftnref3) United Nations, (Last Visited on August 01,2021) [\[4\]](#_ftnref4) Indian Kanoon, [\[5\]](#_ftnref5) Case Mine, [\[6\]](#_ftnref6) Indian Kanoon, ¶ 6 [\[7\]](#_ftnref7) Indian Kanoon, ¶ 7 [\[8\]](#_ftnref8) Indian Kanoon, ¶ 8 [\[9\]](#_ftnref9) Judicial Training & Research Institute, (last visited on August 02, 2021) [\[10\]](#_ftnref10) The Constitution of India, 1950, Art. 21. [\[11\]](#_ftnref11) The Constitution of India, 1950, Art. 14. [\[12\]](#_ftnref12) The Constitution of India, 1950, Art. 32(1). [\[13\]](#_ftnref13) The Constitution of India, 1950, Art. 32(2). [\[14\]](#_ftnref14) The Constitution of India, 1950, Art. 32(3). [\[15\]](#_ftnref15) The Constitution of India, 1950, Art. 32(4). [\[16\]](#_ftnref16) The Constitution of India, 1950, Art. 19 [\[17\]](#_ftnref17) See The Indian Penal Code, 1860, §499. [\[18\]](#_ftnref18) See The Indian Penal Code, 1860, §500. [\[19\]](#_ftnref19) See The Indian Penal Code, 1860, §501. [\[20\]](#_ftnref20) See The Indian Penal Code, 1860, §502. [\[21\]](#_ftnref21) See The Code of Criminal Procedure, 1973, §154(1). [\[22\]](#_ftnref22) See The Code of Criminal Procedure, 1973, §154(2). [\[23\]](#_ftnref23) See The Code of Criminal Procedure, 1973, §154(3). [\[24\]](#_ftnref24) See The Code of Criminal Procedure, 1973, §155(1). [\[25\]](#_ftnref25) See The Code of Criminal Procedure, 1973, §155(2). [\[26\]](#_ftnref26) See The Code of Criminal Procedure, 1973, §155(3). [\[27\]](#_ftnref27) See The Code of Criminal Procedure, 1973, §155(4). [\[28\]](#_ftnref28) See The Code of Criminal Procedure, 1973, §157(1) [\[29\]](#_ftnref29) See The Code of Criminal Procedure, 1973, §157(1)(a). [\[30\]](#_ftnref30) See The Code of Criminal Procedure, 1973, §157(1)(b). [\[31\]](#_ftnref31) See The Code of Criminal Procedure, 1973, §157(2). [\[32\]](#_ftnref32) See The Code of Criminal Procedure, 1973, §163. [\[33\]](#_ftnref33) See The Code of Criminal Procedure, 1973, §163(1). [\[34\]](#_ftnref34) See The Code of Criminal Procedure, 1973, §163(2). [\[35\]](#_ftnref35) See The Indian Evidence Act, 1872, §24. [\[36\]](#_ftnref36) AIR 1997 sc 610: (1997) 1 sec 416: 1997 sec (Cri) 92 [\[37\]](#_ftnref37) (1994) 4 sec 260 [\[38\]](#_ftnref38) AIR 1997 sc 610: (1997) 1 sec 416: 1997 sec (Cri) 92 [\[39\]](#_ftnref39) (1985) 4 sec 677 [\[40\]](#_ftnref40) AIR 1995 SC 117 **Categories:** Case Analysis **Tags:** #SC Judgement, #Supreme court, #supreme court judgement, case analysis, case summary, lawfoyer, Mehmood Nayyar Azam v. State of Chhattisgarh --- ### [12th UFYLC - RANKA National Moot Court Competition, 2024 | Cash Prizes Pool of Rs. 53,000 | University of Rajasthan, Jaipur | Register by September 5, 2024](https://lawfoyer.in/12th-ranka-ufylc-national-moot-court-competition-2024/) **Published:** June 8, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/07/LawFoyer-Ranka-Moot-Court-Poster-724x1024.png)University Five Year Law College (UFYLC) invites registration for the 12th UFYLC Ranka National Moot Court Competition scheduled to be held on 05-07 October 2024. # About UFYLC University Five Year Law College was founded by the University of Rajasthan as a Self Financing Institution in 2008. It has been defined by its quality to bring eliciting educated and intellectual scholars to society. With that aim, it has evolved into one of the most prestigious law colleges in India. # About the Competition The Ranka National Moot Court Competition, graciously hosted by the venerable University Five Year Law College in Jaipur, stands as a resounding tribute to the profound vision of the Ranka Public Charitable Trust was established in the year 1980 under the distinguished leadership of the Late Dr. N.M. Ranka, a Senior Advocate of great renown, this trust blazed a trail by introducing the concept of Moot Court Competitions to the legal landscape of Rajasthan. # General Details - Date: 05-07 October, 2024. - Mode: Offline # Eligibility Criteria The competition is open for bonafide students pursuing Five Year Integrated and Three Year LLB courses. # General Rules - Each team shall comprise three members. Under no condition shall a team consisting of more or less than 3 members be allowed to participate. However, the Competition Organisation Committee may allow a team comprising at least 2 members in exceptional circumstances and after hearing the members on merits. The decision of the Competition Organisation Committee, in this regard, shall be final. - Such Team shall designate two of its members as speakers; and shall designate one member, who has not been designated as a speaker, as a researcher. The team must, amongst its members, identify the speakers and the researcher at the time of registration. - Teams shall identify the speakers and researcher during registration. Only those participants, registered as Oralists in the registration form, shall be allowed to speak. - No extra member or observer shall be allowed. No swapping of the designation of the members shall be allowed. - No more than one team shall be allowed to register and participate in the competition from the same College/Institution/University. - Once registered, a team will not be permitted to vary the composition of the team in any manner. Changes, if any, may only be made with the express permission of the Competition Organisation Committee, if due reason is shown for the same. - Arguments shall be in English ONLY. - Each team shall be provided with the memorial of the opposing team by a draw of lots. ## Moot Proposition and Rules - Moot Proposition & Brochure can be accessed here: [Click Here](https://lawfoyer.in/wp-content/uploads/2024/07/New-Ranka-Brochure-_-1.pdf) - Moot Court Rules and Regulations can be accessed here: [Click Here](https://lawfoyer.in/wp-content/uploads/2024/07/New-Ranka-Rules-and-Regulations-_-1.pdf) # Registration Details - Click on the link provided below to register. - Link of Registration: - All the teams shall be required to make a payment of INR 5500/- - In this edition of the competition, registration will be open to one team per institute to participate in the competition. - While filling out the Registration Form, the teams have to choose a primary contact person. All communications concerning the Competition will be sent by e-mail to the nominated contact person. The nominated contact person shall be responsible for conveying all the information to the team. - The fee for the competition shall be paid to the bank account/UPI/QR Code mentioned below. After payment of the fee, the candidate/team must ensure that the screenshot is taken. The screenshot shall be used for verification purposes. - All the participating institutions have to confirm participation by attaching a screenshot of the payment receipt in the Google form. - The teams shall be provided a unique team code which shall be used in the preparation of the memorial as stated above. Teams shall only be addressed by this code in the oral rounds. - No change in the names of the participants shall be permitted after the receipt of the Registration Form, except at the sole discretion of the Organizers. - Teams should mention the participant’s name, and contact number, including the year/ semester of study. ## Important Dates - Closing Date of Registration: September 5, 2024. - Last Date of Seeking Clarifications: September 10, 2024. - Release of Clarifications: September 15, 2024. - Last Date of Memorial Submissions in Soft Copy: September 20, 2024. - Last Date of Memorial Submissions in Hard Copy: September 25, 2024. - Oral Rounds: October 6-7, 2024. ## Prizes - Winning Team: The winning team will receive a trophy, certificate of excellence, and a cash prize of 21,000/-. - Runners-Up Award: The 1st runners-up will get a trophy, a certificate of excellence, and a cash prize of 11,000/-. - Best Student Advocate: - The best student Advocate (Appellant) will get a trophy and cash prize of 5100/- - Best Student Advocate (Respondent) will get a trophy and cash prize of 5100/-. This prize will be awarded based on the make acquired in the preliminary round. - Best Student Researcher: - Best Student Researcher will get a trophy and a cash prize of 5100/-. This award will be based on the Researcher’s test marks. - Best Memorial Award: - The best memorial award will get a trophy and cash prize of 6000/-. - Certificates of participation will be given to all the participants. **Location** University Five Year Law College, University of Rajasthan Campus, Jaipur. ## Contact Information All official communication regarding the 12th UFYLC Ranka National Moot Court Competition, 2024 shall be made through mail to: mootufylc@gmail.com. In case of any further queries, please contact: - Anupam Singh Sengar, Convenor (+91 9358713019) - Rakhi Sharma, Faculty Coordinator (+91 9783287821) **Categories:** Events --- ### [Nandini Sundar & Others Vs. The State of Chhattisgarh 2011 (7) SCC 547](https://lawfoyer.in/nandini-sundar-others-vs-the-state-of-chhattisgarh-2011-7-scc-547/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** **Author:- Sanjay Kannan B, a law student at Bharath University.** **Edited By:- Rutvij Vyas, a Law student at faculty of Law, GLS University.** 1. ABSTRACT** In this Case Analysis of Nandini Sundar vs the State of Chhattisgarh. In June 2005 the satisfied government created Salva Judas projecting it as a particular people’s woman to take care of the law-and-order situation in the Naxalite-prone Dantewada district its compressors of about 6500 special police officers appointed by the state government with financial support from the central government In May 2006 Nandini Sundar professor of sociology University of Delhi along with Aadhar civil rights activities under look the fact-finding machine to shuttle a spot of interdependencies initiative and Complaints against the activists of Salwa judum, Sundar and other than approached various commissions and Ministries and the allotted them about the Human Rights violation by the Selva judam filing to Alicante and effective response from them they approach the supreme court with the repetition in the year of 2007 Hon’ble Supreme Court of India held that Selva judam policy violated both Article 14 write equality before the law and Article 21 protection of life and personal liberty of those employed as a special police officer as well as the local civilians it ordered the particular state government to disorder special police officers and Desire from using them to counter social activities ***Keywords*: *Supreme Court of India, Writ, Human rights, The Constitution of India*:** 2. CASE DETAILS** 1. ***Judgement Cause Title / Case Name*** **Nandini Sundar & Or’s vs State Of Chhattisgarh** 2. *Case Number*** *250/2007*3. *Judgement Date*** ***September -5 -2011***4. *Court*** ***Hon’ble Supreme court of India***5. *Quorum / Constitution of Bench*** ***Single bench***6. *Author / Name of Judges*** ***B. Sudarshan Reddy***7. *Citation*** **AIR** 2011 *SUPREME COURT* 2839, 2011 (7) **SCC** 547, 2011 AIR SCW 4141, (2011) 6 SCALE 839, (2011) 2 *SCALE 37.* 8. *Legal Provisions Involved*** *Constitution of India- 1949* *Article 14,15,19,21* *Police act 1861* 3. INTRODUCTION AND BACKGROUND OF JUDGEMENT** It’s quite a remote place breathing near to get to you have to take the petitioner is used to keep going on trying to collect affidavits if there was news that there has been a “*major encounter are killing*” then I try to go there and get information by the petitioner the police and parametric forces have made it difficult for anybody to the independent fac**t findings basically was a state-sponsored vigilant operation the government for people to come to rallies and the**n it took them forcefully in processing to other villages and burned those villages. And it also recures villages as a” special police officer so you give young people arms and let them terrorism losses that went around burning a lot of villages killing people on raping women all of this was with *complete Government support fundamental violation*”. in the right to life Ande quality before the law the other thing that the go-to pointed out in its judgements, In **2011** when based on public interest litigations the petitioner was filed that it was also a **violation of the right to equality** after special Police officers under special police aur sab under Paramilitary forces the united youngsters and them to fight the Naxalite put them at risk Tak Human Rights violations generally in this country people are also interested that the higher level of impunity as a fact of 2 years in the national press 5 to 10 articles has been published commissions take noted by ***NHRC.*** 1. FACTS OF THE CASE** - Procedural Background of the Case** Petitioner – Nandini Sundar filed a writ petition directly to the Hon’ble Supreme Court of India in the year 2006 and the hearing was late and got human rights violation in the year 2006 same month and repetition in the year 2007 and judgement in 2011. 2. Factual Background of the Case** 1. - In May 2006 Nandini Sundar professor of the Sociology University of Delhi along with Aadhar civil rights activities, under look the fact-finding machine to shuttle a spot of interdependencies initiative and wearied Complaints against the activist of Salwa judum, Sundar and others then approached various commissions and Ministries and the allotted them about the Human Rights violation by the Selva judam filing to Alicante and effective response from them they approach the supreme court with the repetition in the year of 2007. 5. LEGAL ISSUES RAISED** - Whether the Union of India has appointed a Special Police Officers (SPOs) for each state to control law and order Security Related Expenditure (SRE) Scheme. - Whether the recruitment of SPOs is firing of camp villagers by Naxals, total 41 attacks by Maoists between 2005 and 2011 result in 47 and 37 injuries. In place of Dantewada, there were 24 attacks, 37, and 26 injuries. - whether Tribal youths joined in the SPO ranks is safeguard to their families and villages in violent assaults. it results a human rights violation. 6. PETITIONER/ APPELLANT’S ARGUMENTS** - The counsels for Petitioner submitted that the term of a proper challenge in terms of access ability. A special way of must be taken to reach of particular location. The petitioner is known for “*proper collecting affidavits”.* - *Whenever there are a north east west south of a major encounter or killings”*, efforts are made to getting information from the petitioner. Independent fact-finding has become increasingly difficult due to the actions of the police and paramilitary forces. Essentially, it was a government-sanctioned vigilante operation aimed at forcing people to attend rallies, following which they were forcibly taken to other villages that were subsequently set ablaze. The location is quite remote, *“making it challenging to reach. In order to access the area, one must take a specific route.* - *The petitioner is accustomed to persistently attempting to gather affidavits*” Upon hearing news of a significant encounter or killings, I think that to obtain information from the petitioner. The police and paramilitary forces have made it exceedingly difficult for independent fact-finding. **A)** **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that The State of Chhattisgarh astride s that it only getting of tribal youth who “*willingly volunteer for such roles. It further states that many of these young individuals are stepping up due to personal experts of Naxal violence affecting them or their families, or out of a delegation to protect their homes from Naxal attacks.* *It is more difficult for too compared how, even if the get made by the State of Chhattisgarh are impartment”*. these scenes a world of finalized the story of responsibility of the state or allied the human rights concerns surrounding the appointment of these young individuals as SPOs. 7\. RELATED LEGAL PROVISIONS** - - CONSTITUTION OF INDIA, 1949 ARTICLE 14, 15, 19, 21 - INDIAN POLICE 1876 8\. JUDGEMENT** RATIO DECIDENDI** YES, BINDING TO ALL COURTS WITH IN THE TERRITORY OF INDIA AND OPINION GIVEN BY THE HONBLE SUPREME COURT OF INDIA. 9\. CONCLUSION & COMMENTS** The State of Chhattisgarh asserts that it only hires tribal youth who willingly volunteer for such roles. It further states that many of these young individuals are stepping up due to personal experiences of Naxal violence affecting them or their families, or out of a desire to protect their homes from Naxal attacks. It is difficult for us to comprehend how, even if the claims made by the State of Chhattisgarh are accurate, these circumstances would diminish the moral responsibility of the state or alleviate the human rights concerns surrounding the appointment of these young individuals as SPOs and grand proper compensation to the victims and affected public in the state. 10\. REFERENCES** - - Important Cases Referred** - GVK Industries vs ITO. - Important Statutes Referred:-** - H.C. 3451/02, 56(3) P.D., also cited in Aharon Barak: “The Judge in a Democracy” (Princeton University Press, 2003) 1. **Categories:** Case Analysis --- ### [Prem Shankar Shukla vs Delhi Administration, AIR 1980 SC 1535](https://lawfoyer.in/prem-shankar-shukla-vs-delhi-administration-air-1980-sc-1535/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** **Author:** **TISROTA KAR, BIRLA GLOBAL UNIVERSITY** **Edited By:** **Pooja, Rayat College Of Law,Railmajra (Affiliated to Panjab University, Chandigarh)** **ABSTRACT / HEADNOTE** “*Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”-* *Martin Luther King Jr.* In the crucible of the Indian legal system, the case of **Prem Shankar Shukla v. Delhi Administration** emerges as a beacon of human dignity. The Supreme Court’s 1980 judgment delves deep into the ethos of justice, challenging the practice of handcuffing under-trial prisoners as a norm. This case analysis explores the Court’s affirmation that the presumption of innocence is not a mere legal technicality but a cornerstone of human rights, reflecting the interconnection of our societal fabric articulated by King. It underscores the Court’s stance that the measure of a nation’s commitment to justice is not found in the treatment of its highest echelons but in its compassion for the lowest among us. ***Keywords*** ***(Minimum 5)*:** Handcuffing, Human Rights and Dignity, Under-trial Prisoners, Punjab Police Rules, 1934, Fundamental Rights violation. **CASE DETAILS** ***Judgement Cause Title / Case Name*** Prem Shankar Shukla vs Delhi Administration ***Case Number*** ***Judgement Date*** On 29 April 1980 ***Court*** Supreme Court of India ***Quorum / Constitution of Bench*** Justices V.R. Krishniyer, R.S. Pathak, O.Chinnappa Reddy ***Author / Name of Judges*** Justice V.R. Krishnaiyer ***Citation*** AIR 1980 SC 1535 ***Legal Provisions Involved*** Constitution of India, Delhi Prison Act,1894 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** We know that an accused is presumed innocent until proven guilty beyond a reasonable doubt. So why should a person who is innocent before the law (until proven guilty) be humiliated in front of the entire society by handcuffing them? In the society we are living in, that person is already guilty the moment they see them in the shackles. Even if the person is proven innocent they have already been shamed and humiliated when the person has to face the trial with the handcuff on. Society does not wait for the verdict of the case only seeing someone being pulled from the house with shackles on by the police, the image and the goodwill of the person is tarnished. Here we will talk about a case that deals with this issue. *Prem Shankar Shukla vs Delhi Administration AIR, 1980 SC 1535* – A Landmark case that deals with the human dignity of under-trail prisoners and the legality of handcuffing the accused person during the trial. **FACTS OF THE CASE** The Petitioner Prem Shankar Shukla, an under-trial prisoner at Tihar jail, was taken for trial from Tihar jail to Court in handcuffs. In this issue, he wrote a Writ Petition to the Supreme Court protesting against the humiliating and tormenting practice of using handcuffs, though there were legal precedents which were against this practice and simultaneously challenging the legality of the same. The Supreme Court took cognizance of this case, given the significant concerns it presented the ‘presumption of innocence’ and human dignity. He had prayed for the exemption of handcuffs in his petition because he belonged to a “better class prisoner”( a class division created under Punjab Police Rules, 1934). As per his statement in the petition, this class gives him advantages over others as the prisoners were said to be divided as per their caste, education qualifications etc. Despite the court orders given in Sunil Batra vs Delhi Administration, he was handcuffed oftentimes. The petition sent to the High Court was dismissed. Therefore, the petitioner filed a Habeas Corpus. This complaint threw light on the issues concerning the personal liberty, and dignity of the prisoners which fall under Article14, 19, and 21 and also showed concerns regarding the treatment done in jail. This started a legal battle about whether Handcuffing someone qualifies as cruel, inhuman, or humiliating or not. In short, real conflict arose between Human Rights and Safety Precautions. **LEGAL ISSUES RAISED** - Whether is it legal to handcuff the under-trial prisoner in the absence of demonstrable risk of escape is against the law? - Whether are there Violation of Fundamental Rights of the under-trail inmates guaranteed under Articles 14,19 and 21 of the Indian Constitution regarding the indiscriminate use of handcuffs? - Whether is important to weigh the preservation of individual human rights against the necessity of security measures like handcuffing, how should the court rule? - Whether it is appropriate to divide inmates into “ordinary” and “better” classes under the Punjab Police Rules, 1934 and does this division hold up to the test of legal equality? **PETITIONER/ APPELLANT’S ARGUMENTS** - The counsels for Petitioner / Appellant submitted that the fundamental rights vested in Articles 14, 19, and 21 of the under-trial prisoners are being violated. This is also violative as per “*Article 5 of the Universal Declaration of Human Rights,1948- It says ‘No one shall be subjected to torture or cruel, inhumane or degrading treatment’”3* The Petitioner argued that handcuffing a prisoner who had not been declared guilty amounts to severe humiliation in society and damage to the entire goodwill of a person in society that they had worked for so hard. Therefore, it was prayed before the court that if a person completely cooperates with the court proceedings and refrains from any type of resistance and until a person is proven guilty that person should not be treated as a prisoner. - The bone of contention in this case is whether one should give more focus on an individual’s Human Rights or Security measures of the society. The petitioner argued that the balance between security measures and the protection of individual human rights was centred on the premise that security cannot override constitutional guarantees of human dignity and personal liberty. The petitioner argued that handcuffs are only to restrain those persons who are suspects or are not cooperating in the process. Security is a legitimate concern it must not be pursued at the expense of human rights. Therefore, a person who has not been proven guilty should not be restrained as the presumption of innocence until proven guilty is a fundamental right principle of justice, and the indiscriminate use of handcuffs undermines the principle. - A person is not stripped of their basic rights when arrested. It continues to protect the person even in jail. Therefore, the petitioner highlighted the treatment of under-trial prisoners must be inconsistent with these constitutional protections. - The petitioner also challenged the classification of prisoners into ‘ordinary and better’ classes under the Punjab Police Rules,1934 to be violative of Article 14 and no valid link was found with the objective sought to be achieved by the law. It is also contrary to the Human Dignity and International Human Rights Norms. **RESPONDENT’S ARGUMENTS** - The counsels for Respondent argued the process of handcuffing was done as per the rules laid down in the Police Act. Nothing was done beyond the legal arena and this rule under the Police Act gives the power to the Police to handcuff any per they deem to be a suspect as a security measure. - The Respondent also argued any prisoner might flee at any time if given the opportunity. This will become a threat to the society. Therefore, handcuffing a prisoner or any suspect is necessary as a security measure. No rights are being violated in this context. The respondent argued that the petitioner was taken from prison to the court under the protection of a special wing of the police force.4 So it is rational to use handcuffs for the prisoner. **RELATED LEGAL PROVISIONS** To properly analyse and understand the case, different provisions of C.R.P.C and the Constitution of India should be read. - **Section 49 of C.R.P.C**– *“The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”* - **Section 50A of C.R.P.C.-** This section talks about the rights of an arrestee. The arrestee should be informed of the grounds of arrest. - **Article 32:-** This article deals with “Remedies for enforcement of rights” conferred by Part III. *“The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.* [*(2)*](https://indiankanoon.org/doc/1566826/)*The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.* [*(3)*](https://indiankanoon.org/doc/618177/)*Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).* [*(4)*](https://indiankanoon.org/doc/393253/)*The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”* **JUDGEMENT** Upon understanding the case and reviewing every argument placed, the court held that: - The categorisation of Prisoners based on their caste, and family background is written under Section 11(2) of the Punjab Prisoners (Attendance In Courts) Rules, 19697. This rule is completely violative of Article 14 of the Indian Constitution which stands for Equality before Law. No one has the right to treat a prisoner based on caste or family background. - Handcuffing an innocent person who is not been held guilty by the Court will be subject to a violation of basic human rights but simultaneously court emphasized the security measures too. The police authorities should have a warrant of arrest and also should convey the grounds of arrest to the arrested person. - Handcuffs are to be used by the authorities if it feels like the prisoner poses a demonstrable risk of escape against the law. **CONCLUSION & COMMENTS** - In conclusion, this landmark decision reinforced the importance of human dignity and fundamental rights for prisoners. The ruling of the court that handcuffing under-trial prisoners without a demonstrable risk of escape is against the law is unconstitutional and violates Articles 14, 19 and 21 brought a significant change in the inhumane treatment of prisoners in jail. Moreover, the rules followed by the Punjab Police that made them classify the prisoners according to caste, and family background were criticised heavily by the court resulting in striking it down on the grounds of discrimination and being against the principle of equality. This case became a noteworthy precedent that highlights the need to balance security measures and the human rights of every individual and also emphasizes the human treatment of prisoners. - In short, the judgement is a reminder that the law must uphold the dignity of all individuals including those who are deprived of their liberty. **REFERENCES:-** **Important Cases Referred** - Jus Corpus, “PREM SHANKAR SHUKLA v. DELHI ADMINISTRATION” Jus Corpus, 2022 available at: - Prem Shankar Shukla vs Delhi Administration AIR,1980 SC1535 Indian Kanoon, available at - “Prem Shankar Shukla v. Delhi Administration, AIR, 1980 SC 1535,” Drishti Judiciary available at: (last visited June 7, 2024). - “Prem Shankar Shukla VS Delhi Administration 1980 ~ 1980 0 Supreme(SC) 234,” Supreme Today available at: (last visited June 7, 2024). - “Prem Shankar Shukla v. Delhi Administration ., Supreme Court of India, Judgment, Law, casemine.com,” at: (last visited June 7, 2024). - “Article 21 And Its Ever Expanding Scope,” available at: (last visited June 7, 2024). - LCI Team, “exploring the extent to which handcuffs can be used as a means of restraint” available at: - PTI, “Vikas Dubey’s killing raises handcuffing issue vis-a-vis SC guidelines on ‘inhuman’ practice” Times of India, 10 July 2020. - Pritam Banik, “Supreme Court’s Mandate against Handcuffing and chaining” Strictly Legal, 2021available at (last visited June 7, 2024). - “Dignity behind bars,” The Hindu, available at by Shashank 17 May 2013. - Sukanya Shetty, “Human rights ‘handcuffed’” The Indian Express, 23 November 2009. - “Report on Terrorism and Human Rights,” available at: https://www.cidh.org/Terrorism/Eng/part.h.htm (last visited June 7, 2024). - “PREM SHANKAR SHUKLA vs DELHI ADMINISTRATION. Supreme Court, 29-04-1980,” vlex *available a*t: (last visited June 7, 2024). - “Case Analysis,” ProBono India is available at: https://probono-india.in/paper.php?id=9 (last visited June 7, 2024). - Editor, “Classification of Prisoners- Is it legal to classify Prisoners in ‘Better’ and ‘Ordinary’ class? ” The Lawmatics, 2022available at (last visited June 7, 2024). - “Genesis of Rights against handcuffs in India,” Sabrang India, 2021 available at: (last visited June 7, 2024). - “Man! You cannot manacle a man,” Hindustan Times by Venugopal Pillai, available at: [https://www.hindustantimes.com/india/man-you-cannot-manacle-a-man/story-ek4Ka4O3BZ9ICQxkk5s2GJ.html17 April 2006](https://www.hindustantimes.com/india/man-you-cannot-manacle-a-man/story-ek4Ka4O3BZ9ICQxkk5s2GJ.html17%20April%202006). **Important statute Reference:** - Code of Criminal Procedure, 1973 - The Constitution of India,1950 - Punjab Police Rules,1934 - The Universal Declaration of Human Rights,1948 **Categories:** Case Analysis --- ### [COMMUNIST PARTY OF INDIA(M) VS BHARAT KUMAR & ORS [(1998) 1 SCC 201: AIR 1998 SC 184] ](https://lawfoyer.in/communist-party-of-indiam-vs-bharat-kumar-ors-1998-1-scc-201-air-1998-sc-184/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** **Author: Gopika Khatri, UNIVERSITY OF PETROLEUM AND ENERGY STUDIES.** **Edited By: Pooja, Rayat College Of Law, Railmajra(affiliated to Panjab University, Chandigarh).** **ABSTRACT / HEADNOTE :** In the landmark case of the Communist Party of India (Marxist) vs. Bharat Kumar & Ors (1997), the Supreme Court of India addressed the constitutional validity of organizing and enforcing “bandhs” (general strikes). The core issue revolved around whether such actions infringed upon the fundamental rights of citizens, particularly the right to freedom and livelihood. The Court held that bandhs, which forcibly prevent citizens from engaging in their daily activities, violate fundamental rights enshrined in Articles 19(1)(a) and 21 of the Constitution, which guarantee freedom of speech and expression and protection of life and personal liberty, respectively. The judgment emphasized that while peaceful protests are permissible, the coercive nature of bandhs, causing widespread disruption and economic loss, cannot be justified under any circumstances. Consequently, the Court affirmed that state governments have the authority to impose reasonable restrictions to prevent such disruptions and protect public order. This decision marked a significant step in balancing the right to protest with the need to maintain public order and protect individual rights, setting a precedent for the regulation of political activities in India. ***Keywords: –* BANDH, FREEDOM OF SPEECH EXPRESSION, PUBLIC ORDER, RIGHT TO LIFE AND PERSONAL LIBERTY, FREEDOM OF MOVEMENT** **CASE DETAILS** ***Judgement Cause Title / Case Name*** The Communist Party Of India(M) vs Bharat Kumar&Ors ***Case Number*** (1998)1SCC201 ***Judgement Date*** 12/11/1997 ***Court*** THE SUPREME COURT OF INDIA ***Quorum / Constitution of Bench*** A3 judge bench of the S.C. comprising of J.S. Verma, C.J., B.N. Kirpal and V.N. Khare JJ. heard the present case (appeal). ***Author / Name of Judges*** B.N. KIRPAL, V.N. KHARE ***Citation*** \[(1998) 1 SCC 201: AIR 1998 SC 184\] ***Legal Provisions Involved*** Article191(a),Article19(b),Article191(c), Article21, public order and governance **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Civil disobedience hartals and bandhs are common in India because they are recognized as well well-known method of expressing attention of gov on specific demands made by the community and compelling the government to give in to the demands. **According to this case asking for and enforcing a bandh is illegal, as striking or hartal.** **FACTS OF THE CASE** **Procedural Background of the Case** - Initiation of the case: – The legal proceedings were initiated by Bharat Kumar and others who filed a public interest litigation. - High court proceedings: – The legality of the bandh called by political parties in the context of their impact on public life and public property, was before the Kerala High Court. - Judgement by Kerala High Court: – They ruled that bandhs are unconstitutional as they infringe on the fundamental rights of citizens, particularly the right of freedom of movement, and conduct business. - Appeal to the Hon’ble Supreme Court: – CPM and others knocked on the doors of the Supreme Court and challenged the order of Kerala High Court proceedings in the Supreme Court. **Factual Background of the Case** - In this case, the Petitioners were two private individuals and the Chambers of Commerce in the State of Kerala. The State of Kerala, Director General of Police and five registered All India political parties were made respondents. This was on the ground that bandhs should be held unconstitutional as they violate Articles 19 and 21 of the Constitution and also because they are inconsistent with the Directive Principles of State Policy and the Fundamental Duties laid down in the Constitution. The petitioners also prayed that the calling and enforcing of bandhs should be declared a crime under the Indian Penal Code. - The Kerala High Court held that the calling for a bandh by any association, organisation or political party and its enforcement, is illegal and unconstitutional. The court also held that the groups that organize and carry out these bandhs are accountable for paying back the government, the general public, and private citizens for any losses they incur as a result of the destruction of both public and private property. In a decision that was upheld on appeal, the Supreme Court simply stated that the High Court’s reasoning was sound and that their intervention was not required. **LEGAL ISSUES RAISED** : - Whether call for a bandh is distinctive from the call for a strike or a hartal? - Whether there exists a fundamental right of political parties to call or enforce a Bandh under Article 19(1)(a) and (b) of the Constitution? - Whether calling or enforcement of a bandh infringes Articles 19(1)(g), 19(1)(d) and 21 of the citizens? **PETITIONER/ APPELLANT’S ARGUMENTS:** - Counsel for the petitioners argued that the calling of a bandh by the political parties must necessarily result in a blanket imposition of various restrictions upon the rights of the citizens under Articles 19(1)(a), 19(1)(d) and 21 of the Constitution. Citizens are equally circumscribed in their right to pursue their avocations. - Bandhs, if observed are a loss of a day of production and hence the economy of the country. They further argued that the political parties cannot assert their right to call bandhs and strikes to protest whatever they want to as their fundamental right under Article 19(1) since it impinges on the fundamental rights of the other citizens on the whole. They further argued that the political parties cannot also seek their right to strike and bandhs under Article 19(1) as fundamental rights while ignoring the fundamental rights of other citizens. However, this right does not give a freeway to political parties to exercise the same in any way, in as much as which renders the fundamental rights of others violated. - Further, they argued that political parties cannot exercise their “right to bandhs and strikes as part of their fundamental rights under Article 19(1) at the expense of the fundamental rights of the other citizens. Related to this there is a corollary: This does not mean the political parties have a freeway to do so, in as much as they do this their fundamental rights are violated consequently. A bandh call curtails the freedom of movement for the general population and thus should be made illegal, they argued. They further submitted that when a bandh is called, it necessarily means that there would be destruction to property, safety of human lives and other things done either impliedly and/or expressly can ensue on the streets which thereby impairs the citizen in the free enjoyment of their Fundamental rights under Article 19(1)(a), (d), and (g) and Article 21. **RESPONDENT’S ARGUMENTS** : - The counsel on behalf of the appellant in this case contended that the right to call for or holding of a bandh is a fundamental right protected under Article 19(1)(a) and (b) of the Constitution and any restriction on the same would amount to a violation of the fundamental rights of the political parties or of every citizen comprising that party, in this case. - Moreover, they also disputed and denied the respondent/petitioner’s assumption that all bandhs expressly call for violence as such assumption is general and lacks logical basis. - They contended that the mere calling of a bandh for peaceful purposes cannot be declared unconstitutional or illegal. - Furthermore, they argued that only the State had the authority to restrict the freedoms granted under Article 19 via the imposition of reasonable restrictions. Therefore, the Court has no authority to do the same. - The appellants further contended that Article 19(1)(a) grants to every citizen a fundamental right to strike, protest and the right to civil disobedience. **RELATED LEGAL PROVISIONS** : - *“Article 19(1)(a): All citizens shall have the right to freedom of speech and expression;* - *Article19(1)(b): All citizens shall have the right to assemble peaceably and without arms;* - *Article19(1)(c): to form associations or unions or co-operative societies;* - *Article19(3): Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.* - *Article19(1)(d) :to move freely throughout the territory of India;* - *Article 19(4): Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.* - *Article21: No person shall be deprived of his life or personal liberty except according to procedure established by law.”* **JUDGEMENT:** **RATIO DECIDENDI** - The court authorizes the case to proceed and the arguments presented by Mr Harish Soli J. Sorabjee representing the appellant and Mr. Mathai M. Paideday who is the legal counsel for the respondents. - By keeping in view, The Public Order and Governance, Right to Life, Reasonable Restrictions and Natural Justice. The High Court held that bandhs are unconstitutional because they violate the fundamental rights of the citizens. **OBITER DICTA (IF ANY)** - The primary focus of the case was on the legality of bandhs that they are unconstitutional as they violate the fundamental rights of citizens, such as the right to freedom and the right to carry on any trade or business. **CONCLUSION & COMMENTS** The Supreme Court of India’s ruling in the case of the Communist Party of India (Marxist) vs. Bharat Kumar & Others (1997) marked a significant judicial stance on the issue of bandh calls and their impact on public life. The Court concluded that bandhs, which involve the coercion of citizens to stop their activities and result in the shutdown of services, violate fundamental rights, particularly the right to freedom of movement and the right to carry on trade and business. The judgment emphasized that while the right to protest is essential in a democracy, it must not infringe upon the rights of others. The ruling reinforced the need for balancing political expression with public order and individual freedoms. It also highlighted the judiciary’s role in safeguarding constitutional rights against actions that disrupt the societal order and infringe upon personal liberties. This landmark decision has since served as a precedent in addressing similar issues of public disruption caused by political activities in India. **REFERENCES** **Important Cases Referred** - Railway Board v. Niranjan Singh 1969 AIR 9667 - Bandhua Mukti Morcha v. Union of India 1984 AIR 8028 - A.K. Gopalan v. State AIR 1950 SC 279 - Saghir Ahamad v. State AIR 1961 ALL 507 10 - Maneka Gandhi v. Union of India AIR 1978 SC 59711 **Important Statutes Referred** - CONSTITUTION OF INDIA: -Article 19(1)(a), (b), (c), (d), Article 21, Article 32, Article 226 **Categories:** Case Analysis --- ### [Amar Singh Ji & Ors Vs State of Rajasthan, AIR 1955 SC 504](https://lawfoyer.in/amar-singh-ji-ors-vs-state-of-rajasthan-air-1955-sc-504/) **Published:** June 25, 2024 **Author:** LawFoyer **Content:** **Author: Ajay Pratap Singh, Law Student at Amity University** **Edited By: Naman Jain, Law Student at Galgotias University** **ABSTRACT / HEADNOTE** *Amar Singh Ji & Ors Vs State of Rajasthan AIR 1955 SC 504*: From the fact given this backdrop of the judgment where the treatment of the subject matter of land acquisition and the quantum of the compensation provided to the landowners were the critical issues before the Supreme Court of India. Amar Singh Ji, a big landowner, the petitioner, contended its validity alleging that the jeep was acquired land under the Land Acquisition Act, and the amount of compensation awarded to him was grossly inadequate as it did not come close to the fair market value. He argued that the actions of the state were arbitrary and constituted an infringement of his property rights; they did not amount to fair compensation as the Act required. Through the judgment, the Supreme Court of India has laid down fundamental legal principles on the right of the State to acquire land and the need to provide adequate compensation, without pointing to one or all of the following two judgments. The Court emphasized that there should be fair compensation which is reflective of the fair market value of the land and that the state should follow the due process of law whenever the state acquires land so that there is no misuse of power. This ruling made it clear that the judiciary would protect the citizens from their own state yet again and that the excessive use of force by the state could not be successful every time. The judgment has since become a seminal precedent in Indian jurisprudence with respect to all cases involving Right to Land and compensation disputes. ***Keywords:** Land Acquisition, Compensation, Property Rights, Fair Market Value, Due Process, State Power.* **CASE DETAILS** 1. i) Judgement Cause Title / Case Name: Thakur Amar Singhji vs State Of Rajasthan(And Other Petitions) 2. ii) Judgement Date: April 15, 1955 iii) Court: Supreme Court of India 1. iv) Quorum / Constitution of Bench: Aiyyar, T.L. Venkatarama Mukherjee, Bijan Kr. (cj) Das, Sudhi Ranjan Bhagwati, Natwarlal H. Imam, Syed Jaffer 1. v) Author / Name of Judges: Justice Venkatarama Ayyar (delivering the judgment) 2. vi) Citation: AIR 1955 SC 504 vii) Legal Provisions Involved: Rajasthan Land Reforms and Resumption of Jagirs Act (1952) Constitution of India: Article 31(2), Article 31A, Article 14 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** Amar Singh Ji v. State of Rajasthan is a landmark judgment by the Supreme Court of India on matters pertaining to land acquisition and the adequacy of compensation payable to the owners of such land. This case arose when India was caught between rapid industrialization and balancing public interest with private property rights. The main legal issue in this case was whether or not the Land Acquisition Act could be interpreted to mean that fair compensation principles and due process must be followed by state authorities taking over private land. Amar Singh Ji, who was also known as the petitioner, had his property confiscated by Rajasthan Government. The petitioner’s claim was that he deserved a better payment than what he received from the government because it was not the fair market price for his property. **Background** The government enacted the Land Acquisition Act to give a legal framework for it to buy private land for public purposes. It also required that the owners of the land were adequately compensated for what was acquired. In this case, Amar Singh Ji argued that he was not given sufficient compensation by the state and therefore his rights under the Act were violated. He alleged that the manner in which his properties were valued was arbitrary and non-transparent hence subjecting him to material undervaluation. This is an important case because it indicates how conflicting are states’ interests in development with individuals’ rights to own property. The Supreme Court’s decision in this matter played a key role in setting a precedent on how compensation should be done and what process should be followed during land acquisition cases hence making these requirements mandatory. It only confirmed that fair compensation is inevitable and further affirmed due process thereby safeguarding landowners from irrational state actions. **FACTS OF THE CASE** 1. i) Procedural Background of the Case 2. Initial Filing: The petitioner, Amar Singh Ji filed a legal suit against the State of Rajasthan about a compensation that was given upon acquiring his land under Land Acquisition Act. The argumentation of the petitioner dwelt on the inadequacy and as such shortfall in true/market value for his property. This case initially filled at lower courts but later reached the Supreme Court with regard to its significance on land acquisition legislations and rights over property. 1. Appeal to Supreme Court: The petitioner appealed to the supreme court after receiving several negative judgments from lower courts. It wanted to look into this matter because it raised critical questions relating to fair recompense and due procedures during land acquisitions. 1. ii) Factual Background of the Case 2. Land Acquisition: Under the law of Land Acquisition Act, The state of Rajasthan took Amar Singh Ji’s piece of property. The land was being acquired for a public purpose, as stated in the act that justified the state’s action. However, he got compensation far below what he believed to be the fair market valuation of his property. 1. Compensation Dispute: Amar Singh Ji argued that the compensation amount set by the state was just a random amount that did not reflect his land’s actual value after adding that it had used opaque and unfair principles in determining its offer leading to an unfair evaluation that did not mirror his land’s real worth. 1. Legal Arguments: The petitioner claimed that the state had violated the principles of acquisition when it failed to provide him with appropriate remuneration as required by law. He approached the Supreme Court asking for reconsideration of compensation based on fair market value and adherence to due process. **LEGAL ISSUES RAISED** 1. Fair Compensation: Whether the compensation awarded by the State of Rajasthan for the land acquired from Amar Singh Ji was fair and reflective of the land’s fair market value. 1. Due Process: Whether the procedures followed by the State of Rajasthan in determining and awarding compensation adhered to the principles of due process as mandated by the Land Acquisition Act. iii. Arbitrariness of State Action: Whether the actions of the State of Rajasthan in acquiring the land and determining compensation were arbitrary and capricious, thus violating the rights of the petitioner. 1. Interpretation of the Land Acquisition Act: How should the provisions of the Land Acquisition Act be interpreted and applied to ensure just and fair compensation for landowners? 1. Judicial Oversight: To what extent should courts exercise oversight over state actions in land acquisition cases to prevent misuse of power and ensure compliance with legal standards? 1. **F) PETITIONER/APPELLANT’S ARGUMENTS** 2. Inadequate Compensation: mar Singh Ji, the counsel for the petitioner argued that the compensation when it comes to the acquisition of land was grossly inadequate. They stated that this amount did not represent a fair market value of the property, which resulted in a situation where the land was undervalued signifying financial harm for the petitioner. 1. Violation of Fair Compensation Principles: The petitioner’s legal team placed great emphasis on the fact that the Land Acquisition Act required fair compensation to be made to landowners whose lands were being acquired for public purposes. It was their view that since this compensation did not follow those principles then this implied non-compliance with statutory requirements under which the said act was enacted. iii. Arbitrary Valuation Process: It is submitted that there had been arbitrariness and lack of transparency in the determination of compensation by the State of Rajasthan. The Petitioner contended that the valuation method used by Rajasthan State does not conform to any uniform or reasonable basis for fixing the price, making it an unfair one. 1. Lack of Due Process: According to counsel representing the appellant, due process was not followed in acquiring land and determining its value. They argued that there were no procedural safeguards taken into account by the state in order to protect the interests of landowners resulting in an unfair evaluation. 1. Right to Property: The petitioner argued that the inadequate compensation infringed upon his constitutional right to property. The legal team highlighted that the right to property, though not a fundamental right, still demands protection against arbitrary state actions and requires fair treatment under the law. 1. Judicial Intervention: The counsel for Amar Singh Ji urged the Supreme Court to intervene and correct the injustice by reassessing the compensation. They sought the Court’s directive for the state to award compensation that genuinely reflects the market value of the land, ensuring that the petitioner is fairly compensated as per the legal standards. **RESPONDENT’S ARGUMENTS** 1. Legal Compliance of the Land Acquisition Act: The State of Rajasthan contended that the compensation awarded to Amar Singh Ji was in strict accordance with the provisions of the Land Acquisition Act. All the statutory procedures and guidelines were followed with meticulous commitment both in the process of land acquisition and compensation determination. 1. Reflective of the Fair Market Value: The respondents alleged that the compensation reflected the fair market value of the land at the time of acquisition. They further argued that the valuation was done by competent authorities using established methods and principles. Therefore, the amount awarded was just and reasonable. iii. No Arbitrariness: The counsel team of the state resisted any arbitrariness in the valuation process. They specifically claimed that the process was transparent and founded on objective facts. They further argued that the compensation was determined fairly and impartially, and, as such, the petitioner’s claims are just unfounded allegations of arbitrary actions on the part of the respondents. 1. Due Process Procedural Adherence: The respondents maintained that due process was followed throughout the land acquisition proceedings. It was submitted that all the necessary notices were served, hearings were conducted, and the petitioner was given ample opportunity to put forward objections and claims. 1. Public Purpose Justification: The counsel for the State emphasized that the acquisition of land was for a legitimate public purpose. It furthered that the public purpose served by the acquisition outweighed any claims of the petitioner for higher compensation. 1. Judicial Deference: The respondents appealed to the apex court for deference to the findings and decisions of the lower courts and the valuation authorities. They averred that the judicial system should respect the administrative expertise that comes from valuing land and should not intervene unless a clear legal or procedural violation was manifest. vii. Sufficiency of Compensation: The State’s counsel submitted that the awarded compensation was adequate and sufficient, given the circumstances and legal regime. They added that the claim for more significant amounts by the petitioner was untenable in law and fact. **JUDGEMENT** 1. **RATIO DECIDENDI** 2. Adequate Compensation and Market Value: The Supreme Court held that the compensation determined for land acquisition should reflect the fair market value of the property at the time of acquisition. The Court emphasized that the state should ensure that landowners are adequately compensated to prevent any monetary loss from the acquisition. 1. Procedural Guarantee in Land Acquisition: The Court reiterated the fact that the process laid down for the determination of compensation is transparent, fair, and just and ensures that the rights of landowners are protected throughout the process of land acquisition. iii. Guarding Against Arbitrary Action of the State: In this judgment, the Court has echoed that state actions in land acquisition should not be whimsical or capricious in nature. A mere tendency of arbitrariness in the process of valuation and determination of compensation, the Court has held, will attract judicial intervention for the protection of the rights of the affected landowners. 1. Justification for State Action with Judicial Oversight and Protection of Rights: The Court upheld the well-established principle, i.e., the role of the judiciary is to keep a check on state action, so as to ensure that such power is not misused. It has been observed that the judiciary has to intervene when there is evidence of arbitrary or mala fides or capricious state actions in land acquisition matters to ensure that the standards of law are met and the property rights of people are protected. 1. **OBITER DICTA** 2. Balancing between Development and Rights: The Court balanced the concern of land acquisition for a public purpose, citing the necessity of according to individual property rights vis-a-vis the state’s development goals. Balanced with proper compensation and due process is required according to the Court. 1. Suggestions regarding Future Legislation: The Court suggested that in the future, amendments to the Land Acquisition Act should provide clearer guidelines and mechanisms to ensure adequate compensation and prevent state arbitrariness. It was suggested that the law in respect of land acquisition should be refined progressively. **CONCLUSION & COMMENTS** The ruling of the Supreme Court in Amar Singh Ji v. State of Rajasthan is a landmark judgment, which has long affected Indian jurisprudence concerning land acquisition and compensation. The various principles which the judgment declared aimed at ensuring fair compensation to the landowners and, at the same time, the prevention of arbitrary state actions. **Key Takeaways-** **Compensation:** The Supreme Court emphasized that the compensation given for acquiring land should reflect the fair market value of the property. This principle aims at ensuring that the landowners are not financially disadvantaged by the acquisition. **Due Process:** Fairly emphasized by the court was the following of due process in land acquisition proceedings. It is due process and fair procedures that would save the rights of the landowners and ensure just compensation. **Judicial Review:** The judgment reiterated the need for the courts to reexamine the state’s exercise of power to prevent misuse of power. The Court made it clear that the state action with regard to matters of land acquisition shall definitely call for judicial intervention when there is evidence of arbitrariness or capriciousness. **Public Interest vs. Private Rights:** The Court emphasized that while land acquisition is necessary for public purposes, it also requires a balance between public interest and the individual rights to property. And, fair compensation and due process are the two vital components to affect this balance. COMMENTS: The case of Amar Singh Ji v. State of Rajasthan is a landmark case in Indian law relating to the acquisition of land and compensation therefor. The principles enunciated by the Supreme Court of India, in this case, have continued to be the guiding light for later pronouncements in similar matters and have ensured that the rights of landowners are kept sacrosanct and the state actions are held under high standards of fairness and transparency. This judgment has been a landmark in the way land acquisition cases have been dealt with in India. It has established strong guidelines in judging the adequacy of compensation and whether state actions in land acquisition are legal or illegal. The guidelines in the case help prevent misuse of power and ensure that individuals get fair treatment under the law. In a word, the case is very important because it calls to the fore the role the judiciary plays in ensuring that individual rights are not compromised by state actions. It calls for a framework that balances state interest with individual rights, which ensures that development does not come at a cost of justice and fairness. **REFERENCES** 1. Important Cases Referred 2. *State of Bihar v. Kameshwar Singh* Citation: AIR 1952 SC 252 Significance: This case dealt with compensation principles and the rights of landowners under the Land Acquisition Act. 1. *Raja Anand Brahma Shah v. State of Uttar Pradesh* Citation: AIR 1967 SC 1081 Significance: This case addressed issues of fair compensation and due process in land acquisition. 1. Important Statutes Referred 2. Land Acquisition Act, 1894 Sections involved: Sections 4, 5A, 6, 9, 11, 12, 18, 23, and 24 1. Constitution of India Article 226: Power of High Courts to issue certain writs. **Categories:** Case Analysis --- ### [Arrest under CRPC and Bhartiya Nagarik Suraksha Sanhita(BNSS): Provisions, Precedents, and Procedures](https://lawfoyer.in/arrest-under-crpc-and-bhartiya-nagarik-suraksha-sanhitabnss-provisions-precedents-and-procedures/) **Published:** June 22, 2024 **Author:** LawFoyer **Content:** Author: **Smriti Verma,(Amity University Lucknow)** Edited By: **Pooja, Rayat College Of Law,Railmajra (Affiliated to Panjab University, Chandigarh)** **INTRODUCTION** An arrest involves legally restricting a person’s ability to move freely using authority. Typically, an arrest requires the presence of an arrest warrant. If there is probable cause and exigent circumstances, an arrest can be made without a warrant at the time of the arrest. Probable cause is the police officer’s justifiable belief in the suspect’s guilt, formed from facts and information before making an arrest. For example, a warrantless arrest could be considered valid when the police officer believes reasonably that the suspect has either already committed a crime or is going to commit one. The police officer may additionally detain the suspect to stop their potential flight or safeguard evidence. Nonetheless, an arrest without a warrant could be deemed invalid if the officer did not show urgent situations and reasonable cause. In the Indian Criminal Justice system, Arrests are primarily carried out by the police. Scholars and activists in India strongly criticize the practice of arrests, yet many still argue that ‘the power to arrest’ is a necessary aspect of policing. The BNSS of 2023 aims to substitute the CrPC of 1973. The CrPC outlines the process for arrest, prosecution, and bail. **Arrest under the Criminal Procedure Code:** A person may be placed under arrest under the Criminal Procedure Code (CrPC) if there are good reasons to suspect that they have committed a crime that is punishable by law. During an arrest, the police are required by law to adhere to due process, which includes notifying the subject of the arrest of their rights, the reason for the arrest, and the preparation of an arrest document. If a magistrate approves, a person may be detained in police custody for up to 24 hours at a time; in rare cases, this period may be extended to 15 days. The CrPC provides instructions on how to be arrested, prosecuted, and granted bail. The BNSS emphasizes criminal procedures that are centred around citizens and aims to update and simplify criminal justice practices. BNSS has implemented rules to safeguard elderly or incapacitated individuals when arrested without a warrant. The BNSS permits a law enforcement officer to utilize handcuffs when arresting or presenting the suspect in court under certain circumstances. It offers instructions on the prosecution of crimes, the establishment of criminal courts and offices, and the imprisonment of individuals awaiting trial as per the regulations outlined in BNSS. ***Keywords*:** Criminal Procedure Code, Police, Arrest, BNSS, Law enforcement **ARREST UNDER CRPC** **Arrest in pursuance of a warrant** A police officer is unable to detain an individual without a warrant if they commit a non-arrestable crime or offence. An arrest warrant gives the authority to arrest someone or to confiscate their property. Each arrest warrant is authorized by a Judge or a Magistrate on the state’s behalf. As per Section 70 of the CrPC, 1973, each arrest warrant from a Court must be written, signed by the presiding officer, and stamped with the Court’s seal. Furthermore, the warrant must continue to be valid until it is revoked by the issuing Court or until it is enforced. **Arrest without warrant** Just like the name implies, ‘Arrest without warrant’ allows a police officer to detain an individual without needing a warrant for a crime that warrants an arrest. Section 41 of the CrPC outlines specific situations in which a police officer can detain a person without a Magistrate’s order or a warrant. As per this part, a law enforcement officer has the authority to detain an individual if they: - commits a cognizable crime. - has been declared a criminal either by the State Government’s directive or under CrPC. - has the stolen items in their possession. - prevents a law enforcement officer from carrying out their duties or flees or trying to flee from legal detention. - is believed to have deserted from any branch of the Indian Armed Forces, - a former prisoner violates a regulation. - is implicated in any crime that took place outside of India, and - The person to be arrested and the reason for the arrest is specified by another police officer who has submitted a request for their arrest. **Arrest on refusal to give name and residence** Section 42 of CrPC addresses a different scenario in which a police officer can apprehend an individual, known as ‘Arrest on refusal to provide name and address’. According to this Section, if someone refuses to reveal their name or address, or gives false information when accused of a non-cognizable offence, the police can make an arrest. This also demonstrates that once the correct name and address of the individual are known, they will be set free after signing a bond to appear before a Magistrate when needed. If a person’s true identity and location cannot be determined within 24 hours or they are unable to sign a bond or provide enough guarantors, they must be taken to the closest Magistrate. **Arrest by a private person** This implies that an individual can apprehend anyone who commits a non-bailable and cognizable offence in front of them. Section 43 of the Criminal Procedure Code of 1973 pertains to the ‘Arrest by private person and procedure on such arrest’. One private individual has the authority to detain another individual in certain circumstances. - He/she engages in a crime that is not eligible for bail and is recognizable by law enforcement. - the individual has been declared as a wanted criminal. If there is suspicion that the individual falls within the boundaries of Section 41 of CrPC, law enforcement should detain them again. According to Section 43(3), a person suspected of a non-cognizable offence must provide their name and address to a police officer upon request. If they refuse or provide false information, they will be dealt with according to section 42. If there is no sufficient reason to believe they have committed an offence, they will be released immediately. **Arrest by Magistrate** Section 44 of the Criminal Procedure Code, 1973, discusses the ‘Arrest by Magistrate’, referring to both Judicial and Executive Magistrates. Its first part explains that if a crime occurs in front of a Magistrate, whether they are an Executive or Judicial Magistrate in their area of jurisdiction, they have the authority to arrest the offender or instruct someone else to do so. They can then, depending on bail regulations, detain the offender. Clause (2) affirms that any Magistrate has the authority to apprehend or order someone within their local jurisdiction to arrest a person in his presence. Section 45 of the CrPC protects Armed Forces members from arrest in connection with their official duties without approval from the Central Government. **HOW IS AN ARREST MADE?** There is no code specifically outlining the process of arrest, while Section 46 of the CrPC, 1973 explains the procedure of making an arrest. Under Section 46(1) of the CrPC, the arresting officer or individual must physically touch or restrain the person being arrested. It also mentions that if a woman is going to be arrested, it is assumed that her compliance with a verbal notice of arrest is sufficient unless the situation suggests otherwise. In addition, the police officer should not physically touch the woman during her arrest unless necessary or if the officer is a female. If someone tries to avoid being arrested or resists arrest by force, the police can use any amount of force necessary to make the arrest. As per Section 46(3), no authority is given by this section to deliberately cause the death of a person not charged with a crime punishable by death or life imprisonment. Furthermore, it is stated in Section 46(4) of the CrPC, 1973 that no woman should be detained between sunset and sunrise. **CONDITIONS ASSOCIATED WITH ARREST** As per **DK Basu v. State of Bengal,** wherein the Supreme Court gave guidelines of how arrest shall be made, certain conditions are to be met for a lawful arrest, some of them are enumerated as follows: - When arrest is not necessary, notice must be given before proceeding with the arrest. - Per Section 41B of CrPC, every police officer must follow certain guidelines when making an arrest. - Display a precise, easily readable, and clear labelling of his name. - Create a written record of the arrest, with verification from one witness and approval from the arrested individual. - Advise the individual who has been arrested about their right to have a family member notified. - Control rooms for police will be set up in each district and at the state level as per Section 41C of the CrPC. - A person who has been arrested has the right to consult with a lawyer during questioning, but not constantly, as stated in Section 41D of the CrPC. - A Police Officer can, in addition to making an arrest, utilize the following powers: – - Authorities have the right to search a location where the person being sought for arrest has entered. - May follow any individual to any location within India. - Must not impose additional constraints on individuals beyond what is essential. - Advise the individual in custody about the reasons for their arrest. - Advise the individual who has been arrested about their right to post bail. - Is required to notify a designated individual about the arrest. - Look for the individual who has been taken into custody. - Grab an aggressive tool. - Medical evaluation of defendant as requested by law enforcement officer. - Medical assessment of individuals facing accusations of sexual assault. - Medical assessment of an individual who has been taken into custody. - The person responsible for custody must ensure the health and safety of the arrested person by taking appropriate precautions. - An individual who has been arrested must be presented to the magistrate within 24 hours of the arrest under Section 57 of the CrPC. - The officer in command must inform the District Magistrate of every arrest made without a warrant. - Individuals taken into custody will be released on their recognizance by posting bail or through a special order from the magistrate. - Authority to chase and recover in the event of fleeing. - Any arrest must adhere strictly to the CrPC as outlined in Section 60A. - In the case of **[Arnesh Kumar v. State of Bihar (2014)](https://indiankanoon.org/doc/2982624/)**[**,**](http://%2C/) the Supreme Court of India instructed that police officers should not arrest the accused without sufficient reason and that magistrates should not approve detention in such circumstances. **ARREST UNDER BNSS** - The new rule regarding elderly/sick individuals being detained without a warrant is now under Section 35 of the BNSS, combining Sections 41 and 41A of the CrPC. A new provision has been added for elderly and disabled individuals in addition to the current provisions in the CrPC. According to Section 35(7) of the BNSS, individuals who are elderly or infirm and the offence they committed is punishable by less than three years imprisonment cannot be arrested without authorization from a Deputy Superintendent of Police. - The range of individuals who receive information about an arrest has been expanded: According to the CrPC, only the police officer could inform the person’s relative or friend about the arrest. Information can now be shared with a person’s chosen relative, friend, or other named individual under the BNSS. - The additional requirement concerning the information about an arrest: If a person is arrested with a warrant, Section 82(2) of the BNSS now requires the arresting officer to immediately provide details about the arrest and the location of where the arrested individual is being held to the designated police officer, as well as to a police officer in the district where the arrested person usually lives. Furthermore, Section 48 of the BNSS now states that details of the arrest and location of the detainee must be reported to the assigned police officer in the area. - Keeping records of arrested individuals and showing it: Section 41C of the CrPC states that the State Government must ensure that the names and addresses of arrested persons, as well as the names and positions of the arresting police officers, are posted on notice boards outside control rooms in each district. Section 37 of the BNSS outlines the details of that particular necessity. The State Government must assign a police officer, at least an Assistant Sub-Inspector of Police, in each district and police station to keep records of arrested individuals’ names, addresses, and charges. It is necessary to have this displayed prominently at district headquarters and police stations, including using digital methods. - Arrest for not providing name and address or providing incorrect information: According to Section 42 of the CrPC, a person could be released by signing a bond, with or without sureties, in these instances. According to Section 39 of the BNSS, a person who is arrested in these cases can be set free with a bond or bail bond, as specified in the codified ‘bail bond’. - The new time limit for private individuals to hand over arrested individuals to authorities: Under the amended Section 40(1) of the BNSS, those who make an arrest must bring the arrested person before a police officer within six hours or take them to the closest police station. Section 43(1) of the CrPC previously indicated the need to produce the person without any unnecessary delay, and this timeframe is now better defined. - Individuals who are arrested without a warrant should not be held for longer than 24 hours (regardless of whether the Magistrate has authority or not). Section 57 of the CrPC states that a police officer cannot keep a person in custody for an excessively long period, which should not surpass 24 hours (excluding the time needed to travel from the place of arrest to the Magistrate) unless directed otherwise by a Magistrate. Changes to Section 58 of the BNSS include the addition of “whether having jurisdiction or not” at the provision’s end, mandating that the arresting officer must promptly present the detainee before the closest Magistrate regardless of the Magistrate’s jurisdiction. **Changes have been made to bail provisions and detention periods for under-trial prisoners in the BNSS:** The new approach is more lenient towards first-time offenders, allowing them to seek release on bond after serving one-third of the maximum imprisonment period for their offence. The jail superintendent can now request bail for undertrial prisoners who have completed either one-half or one-third of the specified period. Tougher conditions apply for undertrial prisoners with multiple offences or cases. When someone is involved in multiple offences or cases, bail cannot be granted by the court. As a result, the chances of getting bail decrease when dealing with multiple cases brought against a person by a complainant. In any case, the individual must not be held longer than the specified maximum prison term for that offence under the law during the legal process. Offences with the death penalty or life imprisonment as potential punishments are excluded from this rule. Section 436A of the CrPC corresponded to Section 479 of the BNSS. **CONCLUSION** For the law of arrest to be successful, police officers must be knowledgeable. up to date on arrest laws and guidelines. Supreme Court rulings related to the apprehension. afforded equal rights throughout the legal process. provided with all the rights that have been granted and acknowledged by the law. The police officer must exercise care, particularly while arresting the women and children. It is said that Justice should not just be carried out but should also appear to be carried out. Justice involves achieving equilibrium. the concern for both the people and the society. Being one of the complicated tasks, it is observed that very Often, individual freedom may need to be given up to protect the welfare of the community, especially. with occurrences of increasing violence and criminal activity within homes and across state borders. Yet, considering the most recent NHRC investigation. The police must adhere to specific guidelines, which often restrict their operations. Stringent procedures are adhered to in urban areas. REFERENCES - https://indiankanoon.org/doc/2982624 Important Statutes: - The Code of Criminal Procedure(1973) - Bhartiya Nagarik Suraksha Sanhita (2023) **Categories:** Articles, Criminal Procedure Law --- ### [13th National Quiz on Indian Contract Act & Law of Torts by LawFoyer: Register by 15th June](https://lawfoyer.in/13th-national-quiz-on-indian-contract-act-law-of-torts-by-lawfoyer-register-by-15th-june/) **Published:** May 10, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/05/13th-national-quiz-724x1024.png) ## Dates - **Date of Quiz:- 16/06/2024** **(5 Pm)** - **Last Date to Apply:-** **15/06/2024, 11:59 pm** - **Result Declaration:-** **20/06/2024** [Final Answer Key](https://lawfoyer.in/wp-content/uploads/2024/06/Updated-Answer-Key-13th-Quiz.pdf) --- [Check Results](https://lawfoyer.in/results-of-13th-national-quiz-on-indian-contract-act-law-of-torts/) --- [Download E-Certificates](https://lawfoyer.in/download-certificates-of-13th-national-quiz-on-indian-contract-act-law-of-torts/) --- ## Prizes - **1st prize- Rs 1500 + Winner Trophy** - **2nd prize- Rs 1000 + 1st Runner Up Trophy** - **3rd prize- Rs 500 + 2nd Runner Up Trophy** - **4th-10th Prize- Rs 150 + Certificate of Excellence** - **FREE Practice E-Book with 1000+ MCQs for Practice** - **Free 2 AI Plagiarism Report by Turnitin.** - **Appreciation Certificate for All the Participants** - **Top 10 Rank will get Free access to Certification Course on Indian Evidence Act.** [Click here to know more about course](https://academy.lawfoyer.in/index.php/courses/mastering-the-indian-evidence-act-a-10-day-certification-course/) **Note:-** The Winners Trophy will be dispatched to the designated recipients’ physical address without any additional charges. ![](https://lawfoyer.in/wp-content/uploads/2024/01/WhatsApp-Image-2024-01-22-at-01.00.07_ac7cf468-1024x576.jpg "WhatsApp-Image-2024-01-22-at-01.00.07_ac7cf468 | LawFoyer | LawFoyer")## **Registration Fees** - **Rs 99/- Only** ## **Important Guidelines** - **Format of Quiz:** Quiz shall take place online, and a paper will include multiple-choice questions**.** - The participant can take this exam on their laptop or mobile phone. - The platform for the quiz will be google Forms, Microsoft Forms, etc. - In the case of the same marks, time will be considered (a person who submits early will be given preference). - The link will be shared 24 hours prior to the start of the quiz. ## **Rules & Regulations** - **60 MCQ(s) \[30 question on Indian Contract Act & 30 questions on Law of Torts\].** - The time allotted will be **25** minutes. (This includes time for filling the basic details like Name, email, etc.) - **Every question carries 04 marks & there will be no negative marking.** - The Result will be declared on **20th June 2024**([www.lawfoyer.in](https://lawfoyer.in/)). --- ## Registration Form [Register Now](https://lawfoyer.in/?ff_landing=3) --- **Categories:** Quiz **Tags:** contract, law, lawfoyer, legal, legalquiz, quiz --- ### [RE BERUBARI UNION CASE (AIR 1960 SC 845)](https://lawfoyer.in/re-berubari-union-case-air-1960-sc-845/) **Published:** June 20, 2024 **Author:** LawFoyer **Content:** **Author: Devi Prasad Mishra, Law Student at Lajpat Rai Law College, Sambalpur University** **Edited By: Manik Tindwani, Law Student at University Five Year Law College, University of Rajasthan, Jaipur** **ABSTRACT** Berubari union case was instituted by a special reference made by the president of India to the Supreme Court. It clarified the constitutional provision relating to the territorial reorganization of the state by parliament. While prime ministers of Pakistan and India agreed to settle border disputes between them, the question arose whether any legislative action was necessary to enforce an agreement. It set a precedent to follow a due legislative procedure when it comes to national boundaries. Also, it made it clear that the constitution is a living document and it needs to be interpreted and amended where necessities arise. ***Keywords:*** *Territorial dispute, Parliament, Article 3, Constitution of India, Special reference* **CASE DETAILS** ***i)* *Judgement Cause Title / Case Name***Re, Berubari Union Case, 1960 ***ii)* *Case Number***Special reference number 1 of 1959 ***iii)* *Judgement Date***1st April, 1959 ***iv)* *Court***Supreme Court ***v)* *Quorum***### B.P. Sinha, A.K. Sarkar, J.C. Shah, K.C. Das Gupta, K. Subba Rao, M. Hidayatullah, P.B. Gajendragadkar, S.K. Das ***vi)* *Author*** Gajendragadkar J. ***vii)* *Citation***AIR 1960 SC 845, \[1960\] 3 SCR 250***viii)* *Legal Provisions Involved***Part1, Article 368 of the Constitution of India**INTRODUCTION** Article 143 empowers the president of India to consult the Supreme Court to seek its opinion on any question of law or fact of such importance. Re Beubari union was such a case where the then president Dr. Rajendra Prasad consulted the Supreme Court to execute the Nehru-Noon agreement to settle the border dispute between India and Pakistan. **BACKGROUND OF JUDGEMENT** The Re Berubari Union case, otherwise known as the Berubari Union case, was a landmark case held by the Supreme Court of India in the year 1960. The case settled the dispute between India and Pakistan over the division of the Berubari Union, a town located in the district of Jalpaiguri in the West Bengal state of India. The court addressed important questions such as the power of parliament to amend the constitution and transfer any territory to a foreign state. This case also deals with the status of the preamble of the constitution of India. **FACTS OF THE CASE** 1. The dispute over Berubari emerged after the demarcation of boundaries between India and Pakistan, after partition, by Sir Radcliffe. In that commission partition of the Berubari region was not explicitly mentioned, despite the commission, it was administered by West Bengal state after the enactment of the Constitution. 2. In 1952, Pakistan claimed the region and to be given to East Pakistan. 3. In 1958, by way of the Nehru-Noon agreement both prime ministers agreed to divide the territory of Berubari into two parts. 4. Since there were doubts arising out of this agreement, the president of India referred this matter to the Supreme Court. **LEGAL ISSUES RAISED** In the above case, three legal issues were raised 1. The first issue was regarding the necessity of any legislative action in order to enforce an agreement signed by two states. 2. Secondly whether the parliament has the power to give any part of the territory under Article 3? 3. Whether the case where there is such a requirement is a law of parliament in relation to Article 3 of the Constitution of India, 1950 sufficient for the purpose or is an amendment of the constitution according to Article 368 of the constitution necessary **PETITIONER’S ARGUMENTS** The counsel representing the union government submitted before the court that the agreement simply acknowledges the previously decided boundary line, it does not create any new or alter the existing boundary of the state. Further, it was submitted that it was a formal setup for border dispute settlement and not surrender of any Indian territory to another state. **RESPONDENT’S ARGUMENTS** The counsel against of government submitted that the preamble of the constitution confers no power on parliament over any territory to transfer it. Also under Article 1 (3) territory of India can be extended but it cannot be cessed. **RELATED LEGAL PROVISIONS** In the present case, the following legal provisions were discussed. The court discussed the relevant articles of the constitution in order to resolve the dispute **Article 1 in the Constitution of India** ***‘1. Name and territory of the Union;*** [*(1)*](https://indiankanoon.org/doc/1200881/)*India, that is Bharat, shall be a Union of States.* [*(2)*](https://indiankanoon.org/doc/1629443/)*The States and the territories thereof shall be as specified in the First Schedule.* [*(3)*](https://indiankanoon.org/doc/1062009/)*The territory of India shall comprise-*[*(a)*](https://indiankanoon.org/doc/490632/)*The territories of the States;*[*(b)*](https://indiankanoon.org/doc/1444445/)*the Union territories specified in the First Schedule; and*[*(c)*](https://indiankanoon.org/doc/125352/)*such other territories as may be required.’* ## Article 2 in the Constitution of India ### *‘2. Admission or establishment of new States* *Parliament may by law admit into the Union, or establish, new States on such terms and conditions, as it thinks fit, territories as may be acquired.’* ## Article 3 in the Constitution of India ### *‘3. Formation of new States and alteration of areas, boundaries, or names of existing States* *Parliament may by law-*[*(a)*](https://indiankanoon.org/doc/531335/)*Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;*[*(b)*](https://indiankanoon.org/doc/45318/)*increase the area of any State;*[*(c)*](https://indiankanoon.org/doc/1470645/)*diminish the area of any State;*[*(d)*](https://indiankanoon.org/doc/1725440/)*alter the boundaries of any State;*[*(e)*](https://indiankanoon.org/doc/1799986/)*alter the name of any State.’* ## Article 4 in the Constitution of India ### *‘4. Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental, and consequential matters* [*(1)*](https://indiankanoon.org/doc/989492/)*Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.* [*(2)*](https://indiankanoon.org/doc/1244046/)*No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.’* ## Article 368 in the Constitution of India ### *‘368. The power of Parliament to amend the Constitution and procedure therefor* [*(1)*](https://indiankanoon.org/doc/528655/)*Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.*[*(2)*](https://indiankanoon.org/doc/1389240/)*An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:Provided that if such amendment seeks to make any change in–*[*(a)*](https://indiankanoon.org/doc/498530/)*article 54, article 55, article 73, article 162 or article 241, or*[*(b)*](https://indiankanoon.org/doc/386420/)*Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or*[*(c)*](https://indiankanoon.org/doc/1836100/)*any of the Lists in the Seventh Schedule, or*[*(d)*](https://indiankanoon.org/doc/1339490/)*the representation of States in Parliament, or*[*(e)*](https://indiankanoon.org/doc/482214/)*the provisions of this article. the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.* [*(3)*](https://indiankanoon.org/doc/145429/)*Nothing in Article 13 shall apply to any amendment made under this article.* [*(4)*](https://indiankanoon.org/doc/1929205/)*No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.* [*(5)*](https://indiankanoon.org/doc/252025/)*For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.’* **JUDGEMENT** - **Ratio Decedendi** After hearing the arguments from both counsels the court held that executive action alone is insufficient to transfer any territory of the state without parliamentary approval. It was also decided that the Berubari Union was part of West Bengal and not East Bengal, and therefore, it was necessary to cede a part of the territory according to laws and not through treaties or agreements. On the other hand, the parliament has the power to amend the Constitution under Article 368, including the power to cede territories of India to a foreign state. Parliament cannot cede a part of India in favor of a foreign state under Article 3 of the Constitution unless it is amended - **Obiter Dictum** While addressing one of the arguments the court was of the opinion that the Preamble to the Constitution is not a part of the Constitution itself, rather it is the key to opening the mind of the constitution makers. It shows the general purpose of making several provisions in the Constitution. **CONCLUSION & COMMENTS :** The case clarified the constitutional provisions related to the territorial reorganization of the state. The case set a precedent of protecting citizen’s rights when any territorial dispute is being settled by the state. The decision underscores the importance of following due legislative process while the executive is dealing with national boundaries. In this regard, it is worth mentioning that the decision concluded that changing Article 1 in response to cession of any portion of Indian territory to any foreign country does not activate the safeguards under any proviso of Article 368 **REFERENCES** **Important Statutes Referred** Constitution Of India,1950 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Privacy Unplugged: Balancing Technology and Human Rights](https://lawfoyer.in/privacy-unplugged-balancing-technology-and-human-rights/) **Published:** June 19, 2024 **Author:** LawFoyer **Content:** **Author: Eekshitha Gutta**, **Second Year Law Student of B.A.LL.B. Hons.at Lovely Professional University** **Introduction** The fine line between fundamental human rights and technology breakthroughs has become increasingly important in an increasingly linked society. As we make our way through the digital world, concerns about protecting privacy while using technology’s advantages come up. We will examine the complex link between technology and human rights in this blog, looking at both the problems and possible remedies. **What is Technology?** In today’s world, technology is the result of the dynamic interaction of scientific understanding, useful instruments, and creative processes. It includes a wide range of innovations that impact our day-to-day activities, from the tangible devices we use to the intangible algorithms controlling our online interactions. Every aspect of our lives is impacted by technology, whether it is the smartphone we carry around in our pockets, the artificial intelligence that analyses data, or the infrastructure that facilitates international communication. Fundamentally, technology stands for advancement—the never-ending search for answers to problems, big or little. It gives us the ability to accomplish previously unthinkable things, but it also presents moral conundrums. We must balance this dual responsibility as we examine the complex link between technology and human rights—preserving individual liberty while maximizing its advantages. Some of the Key Aspects of the Technology are Innovation, Tools & Machines, Automation, Information and Communication, and, Data Processing. **What are Human Rights?** Human rights are essential privileges that every person has only by existing. All people are entitled to these rights, which are unalienable and universal, irrespective of their race, nationality, religion, or any other attribute. Achieving a balance between protecting individual rights and technical progress becomes crucial in the context of technology and privacy. **1. Right to Privacy:** A fundamental component of human rights is the right to privacy. It includes the freedom of an individual to control their private life, communications, and personal information. This right confronts hitherto unheard-of difficulties in the digital age because of the widespread use of technology. It’s critical to strike a balance between the advantages of technical progress and the requirement to preserve privacy. **2. Freedom of Expression:** One of the fundamental rights of individuals is the ability to freely express one’s thoughts, ideas, and knowledge as well as to take part in public conversation. Global communication has made this right even more possible thanks to technology. To strike a balance, though, requires tackling problems that might restrict this freedom, such as hate speech and disinformation on the internet and spying. **3. Right to Data Protection:** People have the right to decide how their information is used, especially when technology gathers enormous volumes of personal data. By promoting data-driven innovations while protecting privacy, data protection laws and regulations seek to achieve a balance. To achieve this balance, transparency, consent, and accountability are essential. **4. Right to Access Information:** People now have never-before-seen access to information thanks to technology, which enables them to study, participate, and make wise decisions. However, equitable access may be hampered by the digital divide. Technology balancing entails closing this gap and making sure that everyone takes use of the possibilities and information that the digital world has to offer. **5. Right to Anonymity:** The freedom to express oneself without worrying about retaliation is facilitated by anonymity. Technology balancing is protecting anonymity while addressing issues with cyberbullying, online abuse, and illegal activity made possible by anonymity. **6. Right to Security:** People are entitled to both physical and digital security. Through cybersecurity, monitoring, and encryption, technology improves security. Finding a balance between maintaining public safety and avoiding overzealous surveillance that violates people’s right to privacy is necessary, nevertheless. **7. The Right to Be Free from Discrimination:** Technology must not support prejudice against people based on their gender, race, religion, or any other attribute. Promoting inclusion, preventing prejudice in algorithms, and guaranteeing equitable opportunity for all are all part of balancing technology. **Historical Aspect** 1. **Technology** Technological developments and privacy issues have always crossed. Certain technologies generated concerns about secrecy and personal information even before the advent of the digital age. Ideas circulated quickly because printed materials were widely available. It did, however, also give rise to worries about the unlawful sharing of private data. Immediate long-distance communication was made possible by the telegraph. However, it also prompted concerns over the privacy of communications sent across wires. The telephone transformed communication, but it also brought out new issues related to privacy. Concerns arose around wiretapping and eavesdropping. Significant technical advances, particularly those in the area of monitoring, were made throughout the 20th century. Governments monitored communications throughout World War II using code-breaking devices, wiretaps, and other instruments. Discussions over how to strike a balance between privacy and security were spurred by these advances. The internet and computers brought about a revolution in privacy dynamics. The 1970s saw a rise in awareness of data privacy thanks to personal computers and databases. Data management is guided by the Fair Information Practices (FIPs) standards. Encryption technologies became widely used in the 1980s, giving people the ability to safeguard their digital communications. Public access to the Internet began in the 1990s. As more people engaged in internet activities, privacy worries increased. Social networking sites and mobile devices made it more difficult to distinguish between private and public information in the 2000s. Artificial intelligence, biometrics, and security cameras are examples of modern technology that nonetheless influence privacy. It is still difficult to strike a balance between individual rights and technical advancement. - **Human Rights** Human rights have a long history. Magna Carta, an English charter from the Middle Ages, guaranteed rights including protection from arbitrary arrest and due process. Individual rights, including privacy, were promoted by intellectuals such as Voltaire and John Locke during the Enlightenment (18th century). The Universal Declaration of Human Rights was a historic statement that the United Nations enacted in 1948 following World War II, highlighting the importance of fundamental rights for all people. Article 12 addresses The right to privacy is acknowledged in the Universal Declaration. “No one shall be subjected to arbitrary interference with his privacy,” according to Article 12. The European Convention on Human Rights (1950) (ECHR) has impacted privacy legislation worldwide and expressly guarantees privacy (Article 8). Article 17 of the 1966 International Covenant on Civil and Political Rights guarantees the right to privacy. **Advancements in Technology** In our globalized society, technology has a significant impact on how we live. Innovations have completely changed how people connect, communicate, and work—from cell phones to smart cities. This quick development raises an important issue, though: how to protect privacy while upholding human rights? Technological progress gives rise to a dilemma. On the one hand, we experience never-before-seen efficiency and convenience. However, our personal information is continuously gathered, examined, and valued. There is a clear conflict between technical advancement and privacy. Tools for surveillance are used by businesses and governments to support law enforcement and national security. Although location monitoring, biometrics, and facial recognition are important tools, their careless application might violate people’s right to privacy. Policies such as the CCPA and GDPR place a strong emphasis on responsibility, transparency, and user permission. These regulations seek to achieve a balance between protecting individual rights and fostering innovation. End-to-end encryption is used by messaging apps like Signal and WhatsApp to protect conversations. Limiting communication accessibility to only those who are meant to see it, improves privacy. The Tor network routes internet traffic via many servers to allow anonymous browsing. Users’ identities are safeguarded and they are kept safe from prying eyes. Blockchain technology provides decentralized, unchangeable data storage that goes beyond money. It guarantees user control over personal data and has the potential to transform identity management. A decentralized web is envisioned by projects such as Solid. The data that users provide specific access to applications and services is still their own. Devices and safe transactions can be unlocked using fingerprint and face recognition technology. Despite its convenience, worries about abuse and privacy continue. It is essential to guarantee fairness and openness in AI systems. Bias-free models shield people from prejudice and uphold human rights. From the beginning, engineers and designers need to incorporate privacy issues. Privacy should be given priority in default settings so that consumers are empowered to make wise decisions. It is crucial to spread knowledge about privacy dangers and acceptable practices. Users with more power can demand technology that respects their privacy. **Hindrance to Human Rights** While technological advancements have made life easier than before, they also seriously jeopardize human rights. Let’s examine a few of the major obstacles: The spread of monitoring technology puts personal liberties and privacy at risk. Unauthorized data gathering, face recognition technology, and widespread monitoring all threaten our right to privacy. Governments and corporations gather enormous volumes of personal information. This data is frequently utilized for manipulation, profiling, and targeted advertising. Our autonomy is undermined by the lack of openness and control over our data. Even if AI algorithms are strong, prejudice and discrimination might still exist in them. Biassed algorithms have the potential to violate human rights in the criminal justice system, employment, and lending by escalating already-existing disparities. Not everyone has access to technology in the same way. The digital gap keeps underprivileged populations from reaping the rewards of technological advancement due to factors like geography, socioeconomic position, or educational attainment. Platforms and governments have authority over internet material. Overreach can stifle free expression and restrict access to information, even while certain limits are appropriate (such as those about hate speech). Cyber risks are evolving along with technology. Cyberattacks, identity theft, and data breaches jeopardize our security and privacy, violating our fundamental rights. Despite the enormous influence that tech corporations have, accountability measures are sometimes insufficient. It is difficult to hold these organizations accountable when infractions happen. Online anonymity is becoming less common. Because our digital footprints are traced, we are open to monitoring and possible danger. Biometric identification, DNA databases, and facial recognition all give rise to worries about possible abuse and violation of privacy. Striking a balance between privacy and security is difficult. Security precautions can occasionally infringe on people’s rights, creating moral conundrums. **National Policies** 1. **Right to Privacy** National constitutions or legal frameworks should expressly recognize the right to privacy as a basic human right. With this acknowledgment, people are guaranteed legal protection from unauthorized access to their private life. It should be illegal for governments and other organizations to conduct widespread monitoring without a valid reason. It is crucial to strike a balance between the demands of individual privacy rights and national security. To stop arbitrary surveillance, there should be legal protections in place, including warrants. - **Transparency and Accountability** Companies that gather personal information are required to be open and honest about their data policies. Users should be informed about data collection, processing, and storage through their succinct and unambiguous privacy policies. Organizations should be held responsible for data breaches. It is vital to have reporting guidelines and sanctions for improper handling of personal data. Trust between users and data controllers is strengthened by transparency. - **Biometric Data Regulation** The usage of biometric information such as DNA, fingerprints, and face recognition—for identification and verification is growing. Policies ought to balance the needs of individual privacy protection with those of technical innovation. Biometric data should be collected, stored, and used following regulations. Before having their biometric information gathered, people must give their informed consent. It is important to have explicit policies regarding the usage and security of this data. - **Cross-border data flows** Maintaining uniform privacy rules is critical when data moves across national borders. Cross-border data transfers should be covered by national policies. Sufficient security measures have to be implemented to preserve private data even during its transit outside the nation. - **Ethical use of AI and Surveillance Technologies** The ethical ramifications of surveillance technology and artificial intelligence (AI) should be addressed by policy. It is difficult yet vital to strike a balance between the demands for privacy protection and security. Privacy rights should be protected when surveillance technologies, such as CCTV cameras, are used, according to policies. It’s crucial to have explicit policies on data access, retention, and supervision. - **Collaboration with International Bodies** Participating in international organizations enables nations to work together on global privacy standards. A strong privacy framework may be established by exchanging best practices and learning from one another. Involvement in privacy standards debates helps to guarantee that national regulations follow international trends. **International Law** 1. **UN Report on Spyware and Surveillance** The United Nations (UN) has drawn attention to the risks that contemporary networked digital technologies pose to human rights and privacy. These technologies may be oppressive even if they are effective instruments for monitoring and controlling people. The necessity of effective regulation founded on international human rights legislation and norms is emphasized in the study. It concentrates on three important areas: State agencies frequently misuse spyware programs, and convert cell phones into round-the-clock monitoring apparatuses. To stop spyware from spreading, immediate action is required. This includes calling for a ban on using and selling spyware until sufficient security measures are in place. Strong encryption techniques are essential for safeguarding online human rights. States should refrain from utilizing techniques like backdoors or routine device scanning to erode encryption. Extensive monitoring is made possible by digital identification systems, biometric databases, and large-scale automated data collecting and processing. Governments are required to prevent the misuse of surveillance instruments and to notify the public about surveillance operations. - **OHCHR Reports on AI and Privacy** The wide-ranging effects of artificial intelligence (AI) on privacy and related rights have been investigated by the UN Human Rights Office (OHCHR). The papers emphasize how urgently sufficient protections must be put in place before AI technologies that pose major dangers to human rights may be sold or used. AI programs that violate international human rights legislation ought to be prohibited. **Conclusion** In conclusion, maintaining a careful balance between technology and privacy is still a major difficulty in our globally interconnected society. We must protect human rights while utilizing innovation as we traverse the digital realm. Our future course needs to be determined by frameworks of ethics, accountability, and transparency. Let’s work towards a time where privacy is fundamental to the advancement of technology, not an afterthought. **References** 1. How are today’s biggest tech trends affecting our human rights?, *available at:* https://www.weforum.org/agenda/2017/12/how-are-today-s-biggest-tech-trends-affecting-human-rights/ (Last Visited on April 14, 2024). 2. Technological Advancements affect the future of Human rights, *available at:* https://www.hks.harvard.edu/centers/carr/programs/technology-human-rights (Last Visited on April 14, 2024). 3. The Promise and Peril of Human Rights Technology, *available at:* https://www.cambridge.org/core/services/aop-cambridge core/content/view/17A00746377B91341F684D4F28D48221/9781107179639c1\_120.pdf/the-promise-and-peril-of-human-rights-technology.pdf (Last Visited on April 14, 2024). 4. Technology and Human Rights, *available at:* https://www.openglobalrights.org/technology/ (Last Visited on April 14, 2024). 5. Introduction to International Human Rights Law, *available at:* https://humanrightsconnected.org/international-human-rights-law/ (Last Visited on April 14, 2024). 6. A Brief Primer on International Law and Cyber Space, *available at:* https://carnegieendowment.org/2021/06/14/brief-primer-on-international-law-and-cyberspace-pub-84763 (Last Visited on April 14, 2024). 7. International Law Handbook, *available at:* https://legal.un.org/avl/studymaterials/handbook/english/book\_1.pdf (Last Visited on April 14, 2024). 8. Universal Declaration of Human Rights, *available at:* https://www.un.org/en/about-us/universal-declaration-of-human-rights (Last Visited on April 14, 2024). 9. International Bill of Human Rights, *available at:* https://www.ohchr.org/en/what-are-human-rights/international-bill-human-rights (Last Visited on April 14, 2024). 10. Human Rights, *available at:* https://www.britannica.com/topic/human-rights (Last Visited on April 14, 2024). **Categories:** Articles, Constitutional Law, Human Rights --- ### [USE OF INTERPRETATION PRINCIPLES IN LANDMARK CASES SUCH AS AYODHYA JUDGMENT & OTHER RECENT DEVELOPMENTS](https://lawfoyer.in/use-of-interpretation-principles-in-landmark-cases-such-as-ayodhya-judgment-other-recent-developments/) **Published:** June 13, 2024 **Author:** LawFoyer **Content:** ## **INTRODUCTION** #### **Background on interpretation principles** In the realm of legal jurisprudence, interpretation principles play a pivotal role in guiding judges and legal scholars as they navigate complex cases and strive to uphold the rule of law. These principles serve as essential tools for deciphering the intent behind legal provisions, determining their applicability to specific situations, and arriving at just and equitable decisions. The significance of interpretation principles cannot be overstated, as they form the bedrock upon which landmark judgments are built and shape the evolution of legal systems across the globe. At its core, the process of legal interpretation involves a meticulous examination of the language employed in legal texts, be it constitutions, statutes, or judicial precedents. The primary objective is to ascertain the true meaning and purpose behind these provisions, taking into account the historical context, societal norms, and the overarching goals of the legal system. Interpretation principles provide a structured framework for this analysis, ensuring that judges approach cases with consistency, objectivity, and a commitment to fairness. One of the fundamental interpretation principles is the literal rule, also known as the plain meaning rule. This principle dictates that when the language of a legal provision is clear and unambiguous, it should be interpreted according to its ordinary and natural meaning. The literal rule serves as a starting point for interpretation, promoting certainty and predictability in the application of the law. However, it is important to recognize that language is not always straightforward, and there may be instances where a strict literal interpretation leads to absurd or unjust results. To address such situations, judges often rely on the golden rule of interpretation. This principle allows for a departure from the literal meaning when it would lead to an absurdity or manifest injustice. The golden rule enables judges to consider the context and purpose of the legal provision, ensuring that the interpretation aligns with the underlying intent of the lawmakers. By applying this principle judiciously, courts can prevent the mechanical application of the law and instead strive for a more nuanced and equitable approach. Another crucial interpretation principle is the mischief rule, which focuses on identifying the mischief or defect that the legal provision aims to remedy. This principle requires judges to examine the historical background and the circumstances that led to the enactment of the law. By understanding the mischief that the law seeks to address, courts can interpret the provision in a manner that effectively tackles the identified problem. The mischief rule ensures that the interpretation of the law remains faithful to its original purpose and prevents loopholes or unintended consequences. The purposive approach to interpretation goes beyond the literal meaning of the words and delves into the broader objectives and values that the legal system seeks to promote. This principle recognizes that the law is not merely a collection of rules but an instrument for achieving social, economic, and political goals. Judges applying the purposive approach consider the spirit and intention behind the law, striving to interpret it in a way that advances the underlying objectives. This approach allows for a more dynamic and adaptive interpretation of the law, ensuring that it remains relevant and responsive to the evolving needs of society. In recent years, the application of interpretation principles has been at the forefront of several landmark cases in India. The [Ayodhya judgment](https://main.sci.gov.in/supremecourt/2010/36350/36350_2010_1_1502_18205_Judgement_09-Nov-2019.pdf "Ayodhya judgment"), for instance, required the Supreme Court to navigate complex historical, religious, and legal issues. The court relied on various interpretation principles to determine the ownership of the disputed land, considering evidence, testimonies, and the principles of justice, equity, and good conscience. Similarly, in the case of the abolition of Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships, the court employed a purposive interpretation to uphold the fundamental rights of the LGBTQ+ community. By looking beyond the literal meaning of the provision and considering the evolving societal values and constitutional principles, the court struck down the discriminatory law. These examples underscore the crucial role that interpretation principles play in shaping the outcomes of landmark cases. They demonstrate how judges, armed with these principles, can navigate complex legal terrain, balance competing interests, and arrive at decisions that uphold the values of justice, equality, and human rights. As legal systems continue to evolve and face new challenges, the application of interpretation principles will remain indispensable in ensuring that the law remains a living, breathing entity that responds to the needs and aspirations of the society it serves. - **Significance of landmark cases in Indian law** Landmark judgments hold immense significance in the Indian legal system, as they serve as guiding beacons for interpreting and applying the law in subsequent cases. These judgments carry the weight of precedent, shaping the course of jurisprudence and influencing the trajectory of legal discourse. The impact of landmark cases transcends mere legal technicalities; they often reflect societal values, address pressing issues, and catalyze societal transformations. One such landmark case that has etched its name in the annals of Indian legal history is the Ayodhya judgment. This long-standing dispute, centered around the Ram Janmabhoomi-Babri Masjid site, had been a contentious and emotive issue for decades. The Supreme Court’s verdict in this case was not only a resolution of a property dispute but also a testament to the judicial system’s ability to navigate complex issues with sensitivity and impartiality. The judgment’s impact extended beyond the legal realm, as it sought to promote communal harmony and uphold the principle of secularism enshrined in the Indian Constitution. Another seminal case that redefined the boundaries of individual liberty and rights is the decriminalization of consensual same-sex relationships. The Supreme Court’s landmark judgment in [***Navtej Singh Johar v. Union of India***](https://lawfoyer.in/navtej-singh-johar-vs-union-of-india/ "Navtej Singh Johar v. Union of India") struck down Section 377 of the Indian Penal Code, which had criminalized homosexuality. This decision marked a watershed moment in the struggle for LGBTQ+ rights in India, recognizing the fundamental right to privacy, dignity, and equality. The Court’s interpretation of constitutional principles and its progressive stance on individual autonomy have paved the way for a more inclusive and tolerant society. Beyond these well-known cases, the Indian judiciary has delivered numerous other landmark judgments that have shaped the legal landscape. [The Vishakha Guidelines](https://lawfoyer.in/vishaka-ors-vs-state/ "The Vishakha Guidelines"), for instance, laid the foundation for addressing sexual harassment in the workplace, establishing a comprehensive framework for prevention, redressal, and deterrence. This judgment not only filled a legislative vacuum but also demonstrated the judiciary’s proactive role in addressing societal issues. Landmark cases often involve the interpretation and application of constitutional principles, statutory provisions, and legal doctrines. The principles of interpretation employed by the judiciary in these cases hold immense significance, as they guide the interpretation and implementation of laws. For example, the Ayodhya judgment drew upon the principles of constitutional secularism, the doctrine of essential religious practices, and the concept of a “non-retrogressive” interpretation of religious freedom. The abolition of Section 377, on the other hand, hinged on the interpretation of fundamental rights, such as the right to equality, privacy, and dignity, as enshrined in the Indian Constitution. The Court’s reliance on the principles of substantive equality, non-discrimination, and the “transformative” interpretation of constitutional rights paved the way for this landmark decision. Furthermore, landmark cases serve as catalysts for legal reforms and policy changes. The Vishakha Guidelines prompted the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, demonstrating the judiciary’s ability to influence legislative action. Similarly, the decriminalization of same-sex relationships has opened the door for further discussions and reforms related to LGBTQ+ rights, such as the recognition of same-sex marriages and adoption rights. ## **AYODHYA JUDGMENT** #### **Overview of the case** The Ayodhya Judgment, delivered by the Supreme Court of India on November 9, 2019, marked the culmination of a decades-long legal battle and a watershed moment in the country’s history. This landmark case, which centered around the disputed Ramjanmabhoomi-Babri Masjid site in Ayodhya, Uttar Pradesh, had been a contentious and emotive issue, deeply rooted in the nation’s socio-political fabric. At the heart of the dispute lay the question of ownership and possession of the disputed site, which held immense religious significance for both Hindus and Muslims. The former believed it to be the birthplace of Lord Ram, while the latter asserted that the Babri Masjid, a 16th-century mosque, stood on the site until its demolition in 1992, an event that ignited widespread communal tensions across the country. The legal battle over the disputed site had been a long and arduous journey, spanning multiple forums and courts. In 2010, the Allahabad High Court had attempted to resolve the dispute by partitioning the land among the Hindu and Muslim parties. However, this judgment was appealed in the Supreme Court, setting the stage for the historic Ayodhya Judgment. In a unanimous decision delivered by a five-judge constitutional bench, the Supreme Court ruled in favor of the Hindu parties, paving the way for the construction of a Ram temple on the disputed site. The Court based its decision on the findings of the Archaeological Survey of India (ASI), which had identified the remains of a Hindu structure beneath the demolished Babri Masjid. However, the judgment went beyond the mere resolution of a property dispute. It delved into the intricate interplay between law, religion, and history, addressing complex issues of constitutional secularism, the doctrine of essential religious practices, and the concept of a “non-retrogressive” interpretation of religious freedom. The Court’s interpretation of the principle of constitutional secularism was particularly noteworthy. It emphasized that secularism is not an anti-thesis to religious practice but rather a means to protect and nurture the rich diversity of faith in India. The Court recognized that the State’s duty of neutrality towards religion does not preclude it from taking steps to protect and promote the fundamental right to profess, practice, and propagate religion. Furthermore, the judgment grappled with the contentious issue of the doctrine of essential religious practices, which had been a cornerstone of the Court’s jurisprudence in matters of religious freedom. While acknowledging the significance of this doctrine, the Court adopted a nuanced approach, recognizing that the determination of what constitutes an essential religious practice is a complex and context-specific exercise. Perhaps one of the most significant aspects of the Ayodhya Judgment was the Court’s emphasis on the principle of a “non-retrogressive” interpretation of religious freedom. This principle advocates for a progressive and inclusive interpretation of religious rights, ensuring that they evolve with the changing needs and aspirations of society. The Court’s recognition of this principle marked a departure from a narrow and static understanding of religious freedom, paving the way for a more dynamic and responsive jurisprudence. Beyond the legal intricacies, the Ayodhya Judgment carried immense symbolic weight, representing the judiciary’s ability to navigate complex and emotionally charged issues with sensitivity and impartiality. The Court’s decision sought to promote communal harmony and national unity, acknowledging the need for healing and reconciliation in the aftermath of the long-standing dispute. While the judgment brought closure to the legal battle, it also acknowledged the pain and suffering endured by both communities throughout the protracted conflict. In a remarkable display of empathy and wisdom, the Court directed the acquisition of an alternate site for the construction of a mosque, recognizing the religious sentiments of the Muslim community. The Ayodhya Judgment stands as a testament to the Indian judiciary’s commitment to upholding the principles of the Constitution and the rule of law, even in the face of deeply divisive and politically charged issues. It serves as a reminder of the vital role that landmark cases play in shaping the course of jurisprudence and addressing societal challenges, often transcending the confines of mere legal discourse. - **Key issues and arguments** The Ayodhya Judgment, a landmark decision by the Supreme Court of India, grappled with a multitude of complex issues that had far-reaching implications for the country’s socio-political landscape. At the crux of this case lay the contentious dispute over the ownership and possession of the Ramjanmabhoomi-Babri Masjid site in Ayodhya, Uttar Pradesh. One of the central issues that the Court addressed was the question of whether the disputed site was the birthplace of Lord Ram, as claimed by the Hindu parties. This issue carried immense religious and historical significance, as it would determine the legitimacy of the claim over the site. The Archaeological Survey of India (ASI) played a pivotal role in this regard, conducting extensive excavations and presenting evidence of the existence of a Hindu structure beneath the demolished Babri Masjid. Another key issue revolved around the doctrine of essential religious practices and its application in determining the legitimacy of claims over the disputed site. The Court grappled with the intricate task of evaluating whether the belief in the birthplace of Lord Ram constituted an essential religious practice for Hindus, thereby meriting legal protection under the right to freedom of religion enshrined in the Indian Constitution. Furthermore, the Court delved into the complex interplay between the principles of constitutional secularism and the right to religious freedom. The Hindu parties argued that the construction of a Ram temple on the disputed site was a matter of religious faith and should be protected under the constitutional guarantee of freedom of religion. Conversely, the Muslim parties contended that the State’s obligation to maintain secularism precluded it from favoring one religion over another in the resolution of this dispute. The Court’s interpretation of the concept of constitutional secularism was a crucial aspect of this case. The judges grappled with the question of whether secularism necessitated a strict separation between religion and state, or whether it allowed for the protection and promotion of religious practices within the bounds of the Constitution. Another significant issue that emerged during the legal proceedings was the applicability of the doctrine of adverse possession. The Muslim parties claimed that they had acquired ownership of the disputed site through continuous and uninterrupted possession for centuries, dating back to the construction of the Babri Masjid in the 16th century. In contrast, the Hindu parties argued that the concept of adverse possession could not be invoked in cases involving places of worship, as religious sentiments were inextricably tied to such sites. The Court also had to grapple with the complex task of balancing competing claims and rights, particularly in the context of a deeply divisive and emotionally charged issue. The judges had to navigate the delicate line between upholding the rule of law, respecting religious sentiments, and promoting communal harmony and national unity. Throughout the legal proceedings, both parties presented a wealth of historical evidence, including archaeological findings, textual references, and eyewitness accounts, to bolster their respective claims over the disputed site. The Court’s evaluation of this extensive body of evidence and its interpretation of historical records played a crucial role in shaping the final judgment. Moreover, the Court had to contend with the contentious issue of the demolition of the Babri Masjid in 1992, an event that had ignited widespread communal tensions and violence across the country. The Muslim parties argued that the demolition constituted a flagrant violation of the rule of law and should be factored into the Court’s decision-making process. In addition to these substantive issues, the Court also grappled with procedural matters, such as the admissibility of evidence, the interpretation of statutory provisions, and the application of legal principles and doctrines relevant to the case. The Ayodhya Judgment, with its intricate web of religious, historical, and legal complexities, presented the Supreme Court with an unprecedented challenge. The Court’s task was not merely to resolve a property dispute but to navigate the intricate interplay between law, religion, and history, while upholding the principles of the Constitution and promoting communal harmony in a deeply divided society. - **Interpretation principles applied** The Ayodhya Judgment, a landmark decision by the Supreme Court of India, involved the application of various interpretation principles that hold significant implications for the country’s jurisprudence. In navigating the complex legal and socio-religious issues at stake, the Court drew upon a range of interpretative tools to arrive at a reasoned and well-founded judgment. One of the key principles applied by the Court was the principle of constitutional secularism. The Court grappled with the intricate task of interpreting the concept of secularism enshrined in the Indian Constitution, recognizing that it did not necessarily mandate a strict separation between religion and state. Instead, the Court adopted a nuanced approach, emphasizing that secularism is not antithetical to religious practice but rather a means to protect and nurture the rich diversity of faith in India. The Court’s interpretation of secularism was guided by the principle of non-retrogression, which advocates for a progressive and inclusive understanding of religious rights. This principle allowed the Court to move away from a narrow and static interpretation of religious freedom, paving the way for a more dynamic and responsive jurisprudence that evolves with the changing needs and aspirations of society. Furthermore, the Court delved into the doctrine of essential religious practices, a cornerstone of its jurisprudence in matters of religious freedom. While acknowledging the significance of this doctrine, the Court adopted a context-specific approach, recognizing that the determination of what constitutes an essential religious practice is a complex exercise that requires careful consideration of the particular circumstances of each case. In evaluating the claims over the disputed site, the Court relied heavily on the principle of evidence-based decision-making. The Archaeological Survey of India (ASI) played a crucial role in this regard, providing extensive evidence through excavations and surveys of the site. The Court’s interpretation of this evidence, coupled with historical records and eyewitness accounts, formed the basis for its findings on the existence of a Hindu structure beneath the demolished Babri Masjid. The Court also applied the principle of balancing competing claims and rights, a principle that is particularly relevant in cases involving deeply divisive and emotionally charged issues. The judges had to navigate the delicate line between upholding the rule of law, respecting religious sentiments, and promoting communal harmony and national unity. In this context, the Court drew upon the principle of restorative justice, recognizing the need for healing and reconciliation in the aftermath of the long-standing dispute. This principle guided the Court’s decision to direct the acquisition of an alternate site for the construction of a mosque, acknowledging the religious sentiments of the Muslim community and seeking to foster a spirit of inclusivity and unity. The Court’s interpretation of statutory provisions and legal doctrines, such as the doctrine of adverse possession, played a crucial role in shaping the final judgment. The judges carefully examined the applicability of these legal principles to the specific circumstances of the case, ensuring that their interpretation was consistent with the overarching principles of the Constitution and the spirit of the law. Throughout the judgment, the Court emphasized the principle of upholding the rule of law and the primacy of the Constitution. The judges recognized that their role was not merely to resolve a property dispute but to navigate the intricate interplay between law, religion, and history, while upholding the principles of the Constitution and promoting communal harmony in a deeply divided society. The Court’s application of these interpretation principles was not without criticism, with some legal scholars and commentators questioning the consistency and coherence of the Court’s reasoning. Nevertheless, the Ayodhya Judgment stands as a testament to the judiciary’s commitment to interpreting and applying the law in a manner that is faithful to the Constitution and responsive to the evolving needs of society. By employing a range of interpretation principles, the Court sought to strike a delicate balance between respecting religious sentiments, upholding the rule of law, and promoting communal harmony. The judgment’s impact extends far beyond the resolution of a single dispute, as it has set precedents and shaped the trajectory of legal discourse on issues of religious freedom, secularism, and the role of the judiciary in navigating complex socio-religious conflicts. ## **OTHER RECENT DEVELOPMENTS** #### **Sabarimala Temple Entry Case** - **Overview of the case** The Sabarimala Temple Entry Case, also known as the [***Indian Young Lawyers Association v. State of Kerala***](https://indiankanoon.org/doc/163639357/ "Indian Young Lawyers Association v. State of Kerala"), is a landmark decision by the Supreme Court of India that addressed the contentious issue of gender discrimination in religious practices. The case centered around the centuries-old tradition of the Sabarimala temple in Kerala, which prohibited women of menstruating age (between 10 and 50 years) from entering the temple premises. The controversy originated when the Indian Young Lawyers Association, a non-governmental organization, filed a petition in the Supreme Court challenging the ban on women’s entry into the Sabarimala temple. The petitioners argued that the ban violated the fundamental rights enshrined in the Indian Constitution, particularly Article 14 (right to equality), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), and Article 25 (freedom of conscience and free profession, practice, and propagation of religion). In a highly divisive and polarizing judgment delivered on September 28, 2018, a constitutional bench of the Supreme Court, by a 4:1 majority, ruled that the ban on women’s entry into the Sabarimala temple was unconstitutional and discriminatory. The majority opinion, authored by the then Chief Justice Dipak Misra, held that the exclusion of women from the temple violated their fundamental rights to equality, dignity, and freedom of religion. The majority judgment invoked the principles of substantive equality and the transformative nature of the Constitution, emphasizing that religious practices must conform to constitutional morality and the overarching principles of gender equality and non-discrimination. The court reasoned that the exclusion of women based on menstrual status was rooted in patriarchal notions and stereotypical beliefs about impurity, which violated the dignity of women and perpetuated gender discrimination. However, the lone dissenting opinion by Justice Indu Malhotra argued that the court should respect the age-old traditions and customs of the temple, as they were an integral part of the religious faith and beliefs of the devotees. Justice Malhotra expressed concerns about the judicial overreach in matters of religious practices and emphasized the need for a balanced approach that respects both constitutional rights and religious freedoms. The Sabarimala judgment sparked widespread debates and protests across the country, with supporters and opponents voicing their opinions vehemently. While some hailed the judgment as a progressive step towards gender equality and the realization of constitutional ideals, others criticized it as an infringement on religious autonomy and an encroachment on the rights of devotees to follow their faith and traditions. The implementation of the Supreme Court’s verdict faced significant challenges, with protests and violence erupting in Kerala as women attempted to enter the temple premises. The state government initially struggled to enforce the court’s order, leading to further legal battles and the involvement of various stakeholders, including religious organizations, political parties, and civil society groups. The Sabarimala case highlighted the complex interplay between constitutional rights, religious freedoms, and societal traditions in India’s diverse and pluralistic society. It sparked discussions on the boundaries of judicial intervention in religious matters, the interpretation of fundamental rights, and the delicate balance between individual liberties and collective religious practices. The case also highlighted the need for a nuanced and contextual approach to resolving such conflicts, taking into account the specific circumstances, historical contexts, and the evolving societal values and norms. The Sabarimala judgment serves as a significant precedent in the ongoing discourse on gender equality, religious autonomy, and the role of the judiciary in interpreting and upholding constitutional principles in a diverse and complex nation like India. - **Interpretation principles applied** The Sabarimala Temple Entry Case presented a complex interplay between constitutional rights, religious freedoms, and societal traditions, requiring the Supreme Court to navigate through intricate legal principles and interpretive approaches. In their landmark judgment, the majority employed several crucial interpretation principles to arrive at their conclusions, demonstrating the judiciary’s role in upholding constitutional values while respecting religious autonomy. Let us delve into the key interpretation principles applied in this landmark case. 1. **Principle of Substantive Equality and Non-Discrimination:** The majority judgment heavily relied on the principle of substantive equality enshrined in Articles 14 and 15 of the Indian Constitution. The court recognized that the prohibition on women’s entry into the Sabarimala temple based on their menstrual status perpetuated stereotypical notions of impurity and inferiority, thereby violating their fundamental right to equality and non-discrimination. The court emphasized that formal equality is not enough; true equality demands the elimination of all forms of discrimination, including those rooted in deep-seated societal beliefs and practices. 2. **Transformative Interpretation of Constitutional Rights:** The majority adopted a transformative interpretation of fundamental rights, recognizing that the Constitution is a living document that must evolve with changing societal values and norms. The court held that religious practices and traditions must conform to constitutional morality and the overarching principles of gender equality and non-discrimination. This transformative approach allowed the court to reinterpret and redefine the scope of religious freedoms in light of contemporary understandings of equality and human dignity. 3. **Harmonious Construction and Balancing of Rights:** The court sought to strike a balance between the competing rights of religious freedom and gender equality by employing the principle of harmonious construction. The majority acknowledged the importance of religious autonomy but maintained that such autonomy is not absolute and must operate within the boundaries of constitutional rights and morality. By harmonizing the rights of religious freedom and gender equality, the court aimed to uphold both sets of rights without compromising the core principles of the Constitution. 4. **Doctrine of Essential Religious Practices:** The court engaged with the doctrine of essential religious practices, which holds that the Constitution protects only those religious practices that are integral and essential to the religion in question. The majority found that the exclusion of women from the Sabarimala temple was not an essential religious practice but rather a discriminatory practice rooted in patriarchal notions and societal attitudes. 5. **Constitutional Morality and Dignity:** The majority judgment placed significant emphasis on the concept of constitutional morality, which demands that all laws, practices, and traditions conform to the overarching principles of the Constitution, including equality, liberty, and human dignity. The court recognized that the exclusion of women from the temple violated their inherent dignity and perpetuated gender-based stereotypes, which ran counter to the core values of the Constitution. 6. **Purposive Interpretation of Fundamental Rights:** The court employed a purposive interpretation of fundamental rights, focusing on the broader objectives and values enshrined in the Constitution. The majority interpreted the right to equality and the right to freedom of religion in a manner that promoted gender equality, non-discrimination, and the realization of human dignity, rather than adopting a narrow or literal interpretation. 7. **Evolutive Interpretation and Expanding Frontiers of Rights:** The majority judgment recognized that rights and freedoms must be interpreted in an evolutive manner, taking into account the changing social, cultural, and legal landscapes. The court expanded the frontiers of constitutional rights by interpreting them in light of contemporary understandings of gender equality, human dignity, and non-discrimination, thereby ensuring the continued relevance and adaptability of the Constitution. The Sabarimala Temple Entry Case demonstrated the Supreme Court’s willingness to engage in a nuanced and contextual interpretation of constitutional principles, balancing religious autonomy with fundamental rights and upholding the transformative spirit of the Indian Constitution. The application of these interpretation principles not only advanced the cause of gender equality and non-discrimination but also reinforced the judiciary’s role as the guardian of constitutional values and the protector of individual liberties in a diverse and pluralistic society. ## **ANALYSIS AND DISCUSSION** The Ayodhya Judgment and the abolition of Section 377 of the Indian Penal Code stand as two landmark cases that have profoundly shaped the legal landscape of India. These cases not only resolved complex legal disputes but also grappled with intricate issues of constitutional interpretation, religious freedom, and individual liberty. The interpretation principles employed by the Supreme Court in these cases hold immense significance, as they reflect the judiciary’s approach to navigating complex socio-legal challenges and upholding the tenets of the Constitution. In the Ayodhya Judgment, the Court’s interpretation of the principle of constitutional secularism was a pivotal aspect of its reasoning. By adopting a nuanced understanding of secularism, the Court departed from a narrow, strict separation between religion and state. Instead, it emphasized that secularism is a means to protect and nurture the rich diversity of faith in India, allowing for the protection and promotion of religious practices within the bounds of the Constitution. This interpretation was guided by the principle of non-retrogression, which advocates for a progressive and inclusive interpretation of religious rights, ensuring that they evolve with the changing needs and aspirations of society. By embracing this principle, the Court signaled a shift towards a more dynamic and responsive jurisprudence, one that recognizes the fluid nature of religious practices and their importance in shaping societal values. Moreover, the Court’s application of the doctrine of essential religious practices demonstrated its willingness to engage with complex religious and cultural issues. While acknowledging the significance of this doctrine, the Court adopted a context-specific approach, recognizing that the determination of what constitutes an essential religious practice is a nuanced exercise that requires careful consideration of the particular circumstances of each case. In the case of the abolition of Section 377, the Court’s interpretation of fundamental rights, such as the right to equality, privacy, and dignity, played a pivotal role. The Court’s reliance on the principles of substantive equality and non-discrimination marked a departure from a narrow, formalistic interpretation of the right to equality. Instead, the Court embraced a transformative interpretation of constitutional rights, recognizing that true equality requires addressing systemic discrimination and societal prejudices. The Court’s emphasis on the right to privacy and dignity was particularly noteworthy, as it recognized the inherent dignity of individuals, regardless of their sexual orientation. By striking down Section 377, the Court affirmed the fundamental right of LGBTQ+ individuals to live with autonomy, free from the stigma and criminalization of their identities. Both the Ayodhya Judgment and the abolition of Section 377 demonstrated the Court’s commitment to upholding the rule of law and the primacy of the Constitution. In the Ayodhya case, the Court navigated the complex interplay between law, religion, and history, while in the Section 377 case, it addressed the tension between individual liberty and societal morality. However, the interpretation principles employed by the Court in these cases have also been subject to critique and debate. Some legal scholars and commentators have questioned the consistency and coherence of the Court’s reasoning, particularly in the Ayodhya Judgment. Critics have argued that the Court’s interpretation of constitutional secularism and the doctrine of essential religious practices may have far-reaching implications for the separation of religion and state, potentially opening the door for increased state involvement in religious matters. Similarly, the Court’s interpretation of the right to equality and non-discrimination in the Section 377 case has raised questions about the extent to which these principles should be applied in other contexts, such as the recognition of same-sex marriages or the adoption rights of LGBTQ+ individuals. Despite these criticisms, the interpretation principles employed in these landmark cases have undoubtedly shaped the trajectory of legal discourse in India. The Court’s willingness to engage with complex socio-legal issues and its commitment to upholding constitutional values have set important precedents for future cases. As Indian society continues to evolve, the role of the judiciary in interpreting and applying the law will become increasingly pivotal. The interpretation principles employed in landmark cases such as the Ayodhya Judgment and the abolition of Section 377 will serve as guideposts for future decisions, ensuring that the law remains responsive to the changing needs and aspirations of society while upholding the fundamental principles enshrined in the Constitution. ## **CONCLUSION** The Ayodhya Judgment and the abolition of Section 377 stand as pivotal moments in the legal history of India, reflecting the judiciary’s commitment to upholding the principles enshrined in the Constitution while navigating complex socio-legal challenges. These landmark cases have not only resolved long-standing disputes but have also shaped the trajectory of legal discourse and societal transformation. In the Ayodhya Judgment, the Supreme Court’s interpretation of constitutional secularism and the doctrine of essential religious practices set important precedents for the delicate balance between religious freedom and the rule of law. By embracing a nuanced understanding of secularism and a context-specific approach to essential religious practices, the Court signaled its willingness to engage with the intricate interplay between law, religion, and history. The Court’s application of the principle of non-retrogression in this case marked a departure from a narrow and static interpretation of religious rights, paving the way for a more dynamic and responsive jurisprudence that evolves with the changing needs and aspirations of society. This principle holds immense significance as India grapples with the complexities of a diverse and pluralistic society, where religious beliefs and practices are deeply interwoven with cultural identities. In the case of the abolition of Section 377, the Court’s transformative interpretation of fundamental rights, such as the right to equality, privacy, and dignity, was a resounding affirmation of individual liberty and autonomy. By striking down the draconian law that criminalized same-sex relationships, the Court recognized the inherent dignity of LGBTQ+ individuals and their right to live free from discrimination and societal prejudice. The Court’s reliance on the principles of substantive equality and non-discrimination in this case marked a departure from a narrow, formalistic interpretation of the right to equality. It recognized that true equality requires addressing systemic discrimination and societal prejudices, ensuring that marginalized communities are afforded equal protection under the law. These landmark cases have not only had a profound impact on the legal landscape but have also catalyzed societal transformations. The Ayodhya Judgment, while resolving a long-standing dispute, sought to promote communal harmony and national unity, acknowledging the need for healing and reconciliation in the aftermath of the conflict. Similarly, the decriminalization of same-sex relationships has opened the door for further discussions and reforms related to LGBTQ+ rights, such as the recognition of same-sex marriages and adoption rights. These cases have empowered marginalized communities and challenged deeply entrenched societal norms, fostering a more inclusive and tolerant society. While the interpretation principles employed by the Court in these cases have been subject to critique and debate, they have undoubtedly shaped the future of legal discourse in India. The Court’s willingness to engage with complex socio-legal issues and its commitment to upholding constitutional values have set important precedents for future cases. As Indian society continues to evolve, the role of the judiciary in interpreting and applying the law will become increasingly pivotal. The interpretation principles employed in these landmark cases will serve as guideposts for future decisions, ensuring that the law remains responsive to the changing needs and aspirations of society while upholding the fundamental principles enshrined in the Constitution. In conclusion, the use of interpretation principles in landmark cases such as the Ayodhya Judgment and the abolition of Section 377 reflects the judiciary’s commitment to navigating complex socio-legal challenges while upholding the tenets of the Constitution. These cases have not only resolved long-standing disputes but have also shaped the trajectory of legal discourse and societal transformation, catalyzing a more inclusive, tolerant, and just society. While debates and critiques may continue, these landmark cases stand as testament to the resilience of the Indian legal system and its ability to adapt and evolve in response to the changing needs and aspirations of society. As India continues on its path of progress, the interpretation principles employed in these landmark cases will serve as beacons, guiding the judiciary in its pursuit of upholding the rule of law, protecting individual liberties, and promoting the values enshrined in the Constitution. **Categories:** Articles, Interpretation of Statutes --- ### [Sakshi v. Union of India (2004)](https://lawfoyer.in/sakshi-v-union-of-india-2004/) **Published:** June 2, 2024 **Author:** LawFoyer **Content:** ### A) ABSTRACT / HEADNOTE The case of **Sakshi vs. Union of India** (2004) involves a writ petition filed under Article 32 of the Constitution of India by Sakshi, an NGO advocating for victims of sexual abuse. The petition sought a broader interpretation of “sexual intercourse” under Section 375 of the Indian Penal Code (IPC) to include various forms of penetration beyond penile/vaginal intercourse. The Supreme Court examined whether such an expanded definition could be judicially interpreted or required legislative amendment. The petition also highlighted the need for protective measures for child victims during trials. The Court acknowledged the necessity for a broader understanding but emphasized that such changes should be made by the legislature, not through judicial interpretation. The judgment led to procedural guidelines for better protection of victims in court. **Keywords**: Sexual Intercourse, Judicial Interpretation, Indian Penal Code, Child Abuse, Victim Protection ### B) CASE DETAILS **i) Judgement Cause Title**: Sakshi vs. Union of India **ii) Case Number**: Writ Petition (Crl.) 33 of 1997 **iii) Judgement Date**: 26/05/2004 **iv) Court**: Supreme Court of India **v) Quorum**: Rajendra Babu CJ & G.P. Mathur **vi) Author**: G.P. Mathur **vii) Citation**: 2004 Supp(2) SCR 723 **viii) Legal Provisions Involved**: Sections 354, 375, 376, 376A-D, 377 IPC, Article 32, 14, 15(3), 21 of the Constitution of India ### C) INTRODUCTION AND BACKGROUND OF JUDGEMENT The case arose from a writ petition filed by Sakshi, an NGO focused on providing support for victims of sexual abuse. The organization sought a declaratory relief to broaden the definition of “rape” under Section 375 IPC to include all forms of non-consensual penetration, including penile/oral, penile/anal, finger/vaginal, finger/anal, and object/vaginal penetration. Sakshi argued that the narrow interpretation of rape under current laws failed to protect many victims, particularly children, and was inconsistent with contemporary understandings of sexual violence and international commitments. ### D) FACTS OF THE CASE Sakshi, noticing an increase in sexual violence against women and children, filed a public interest litigation (PIL) seeking a judicial declaration that various forms of penetration should be included under the definition of rape in Section 375 IPC. They highlighted that the existing trend of law enforcement was to treat non-penile/vaginal penetrative acts as lesser offenses under Sections 354 or 377 IPC. Sakshi contended that such interpretations failed to acknowledge the severe trauma experienced by victims of these forms of abuse, which could be as harmful as penile/vaginal rape. ### E) LEGAL ISSUES RAISED **i) Whether the definition of “sexual intercourse” in Section 375 IPC should be expanded to include various forms of penetration.** **ii) Whether non-consensual penetrations such as penile/oral, penile/anal, finger/vaginal, finger/anal, and object/vaginal should be subsumed under Section 375 IPC.** **iii) Whether a restrictive interpretation of penetration in Section 375 defeats the legislative intent of providing adequate protection against sexual abuse.** **iv) Whether the narrow interpretation of rape violates Articles 14 and 21 of the Constitution by denying adequate redress to victims.** **v) Whether special procedural protections should be provided to child victims of sexual abuse during trials.** ### F) PETITIONER/APPELLANT’S ARGUMENTS The counsels for Petitioner submitted that the current definition of rape under Section 375 IPC was outdated and did not reflect the contemporary understanding of sexual violence, which views rape as an act of humiliation and violation rather than merely penile/vaginal penetration. They argued that the term “sexual intercourse” was not explicitly defined in the IPC and should, therefore, be judicially interpreted to include all forms of penetration to ensure justice for all victims of sexual abuse. They also emphasized the severe psychological trauma caused by non-penile/vaginal penetrations, which deserved to be classified as rape. ### G) RESPONDENT’S ARGUMENTS The counsels for Respondent submitted that Sections 375 and 376 IPC had been significantly amended by the Criminal Law (Amendment) Act, 1983, providing clear definitions and stringent punishments for various sexual offenses. They contended that non-penile/vaginal penetrations were appropriately covered under Section 377 IPC as unnatural offenses, which also carried severe punishments. The Respondents argued that judicial reinterpretation of the term “sexual intercourse” was unnecessary and could lead to legal uncertainty. They maintained that any changes in the law should be made by the legislature. ### H) JUDGEMENT **a. Ratio Decidendi** The Supreme Court held that the definition of rape under Section 375 IPC could not be expanded through judicial interpretation to include all forms of penetration. It emphasized that such an interpretation would require the substitution of words, which is not permissible under the principles of statutory interpretation. The Court acknowledged the petitioner’s concerns but concluded that any change in the definition of rape should be made through legislative action rather than judicial interpretation. **b. Obiter Dicta** The Court recognized the severe trauma caused by various forms of sexual penetration and the need for broader protection under the law. It expressed hope that the legislature would take urgent steps to amend the law to address these issues comprehensively. Additionally, the Court issued procedural guidelines to protect child victims during trials, such as allowing videotaped statements, testimony via closed-circuit television, and avoiding direct confrontation with the accused. ### I) CONCLUSION & COMMENTS The judgment in Sakshi vs. Union of India highlights the limitations of judicial interpretation in addressing evolving social issues. While the Supreme Court empathized with the plight of sexual abuse victims and acknowledged the need for broader legal protection, it maintained that substantial changes to criminal laws should be the domain of the legislature. This case underscores the importance of legislative reforms in ensuring comprehensive legal protection against all forms of sexual violence. ### J) REFERENCES **a. Important Cases Referred** - **State of Punjab vs. Gurmit Singh**, \[1996\] 2 SCC 384 - **Vishaka vs. State of Rajasthan**, \[1997\] 6 SCC 241 - **Lakshmi Kant Pandey vs. Union of India**, \[1984\] 2 SCC 244 - **S. Gopal Reddy vs. State of A.P.**, \[1996\] 4 SCC 596 - **State of Maharashtra vs. Dr. Praful B Desai**, \[2003\] 4 SCC 601 **b. Important Statutes Referred** - Indian Penal Code, Sections 354, 375, 376, 376A-D, 377 - Constitution of India, Articles 14, 15(3), 21, 32 - Criminal Law (Amendment) Act, 1983 - UN Convention on the Rights of the Child, Articles 17(e) and 19 - UN Convention on the Elimination of Discrimination Against Women **Categories:** Case Analysis, Constitutional Law Cases, Criminal Law Cases, POCSO Cases --- ### [Moser Baer Karamchari Union vs Union Of India on 2 May, 2023](https://lawfoyer.in/moser-baer-karamchari-union-vs-union-of-india-on-2may-2023/) **Published:** June 1, 2024 **Author:** LawFoyer **Content:** ## A) ABSTRACT / HEADNOTE In the case “Moser Baer Karamchari Union Thr. President Mahesh Chand Sharma vs Union of India and Ors.,” decided on May 2, 2023, the Supreme Court of India addressed the constitutionality of Section 327(7) of the Companies Act, 2013. This provision excludes the applicability of Sections 326 and 327 of the Companies Act during liquidation under the Insolvency and Bankruptcy Code, 2016 (IBC). The petitioners argued that this exclusion was arbitrary and violated Articles 14 and 21 of the Constitution of India, as it disadvantaged workmen’s dues in liquidation proceedings. The Court examined the legislative history and rationale behind the IBC, noting its objective to create a uniform insolvency framework. It upheld Section 327(7) as constitutionally valid, emphasizing the IBC’s comprehensive approach and the balanced treatment of workmen’s dues within the liquidation process. Keywords: Insolvency and Bankruptcy Code, Companies Act, workmen’s dues, liquidation, constitutionality, Supreme Court of India. ## B) CASE DETAILS i) Judgement Cause Title: Moser Baer Karamchari Union Thr. President Mahesh Chand Sharma vs Union of India and Ors. ii) Case Number: Writ Petition (C) No. 421 of 2019 iii) Judgement Date: May 2, 2023 iv) Court: Supreme Court of India v) Quorum: Justice M.R. Shah vi) Author: Justice M.R. Shah vii) Citation: \[2023\] 1 SCC 421 viii) Legal Provisions Involved: Section 327(7) of the Companies Act, 2013; Section 53 of the Insolvency and Bankruptcy Code, 2016; Articles 14 and 21 of the Constitution of India. ## C) INTRODUCTION AND BACKGROUND OF JUDGEMENT The Moser Baer Karamchari Union, representing the workmen of Moser Baer, filed a writ petition challenging the constitutionality of Section 327(7) of the Companies Act, 2013. This provision excludes the applicability of Sections 326 and 327 in the event of liquidation under the IBC. The petitioners contended that this exclusion unfairly disadvantaged the workmen by altering the priority of their dues in liquidation proceedings, thereby violating their fundamental rights under Articles 14 and 21 of the Constitution. The IBC, enacted in 2016, introduced a new framework for insolvency resolution and liquidation of corporate entities. It replaced multiple earlier laws, aiming for a time-bound resolution process. The petitioners argued that the IBC’s provisions, particularly Section 53, which outlines the priority of claims, unjustly relegated workmen’s dues by ranking them pari passu with secured creditors who relinquished their security interests. They sought a declaration that Section 327(7) was unconstitutional and that workmen’s dues should be prioritized above all other claims in liquidation. ## D) FACTS OF THE CASE The Moser Baer Karamchari Union filed the writ petition under Article 32 of the Constitution, seeking to strike down Section 327(7) of the Companies Act, 2013, and to exclude workmen’s dues from the purview of the IBC’s waterfall mechanism. The petitioners emphasized that under the Companies Act, 2013, workmen’s dues had higher priority, which the IBC altered. The Union of India, represented by the Additional Solicitor General, defended the legislative changes, arguing that the IBC was designed to create a uniform and efficient insolvency resolution framework. The respondent contended that the changes were made after extensive consultation and aimed at balancing the interests of all stakeholders, including workmen, creditors, and the economy at large. The Court also considered the legislative history of the Companies Act and the IBC, the reports of various committees, and the objectives behind the insolvency reforms. The judgment required a detailed analysis of whether the exclusion of Sections 326 and 327 during IBC liquidation violated constitutional guarantees and whether the prioritization mechanism under the IBC was just and reasonable. ## E) LEGAL ISSUES RAISED i) Whether Section 327(7) of the Companies Act, 2013, which excludes the application of Sections 326 and 327 during liquidation under the IBC, is arbitrary and violative of Articles 14 and 21 of the Constitution of India. ii) Whether the IBC’s provision of pari passu treatment of workmen’s dues with secured creditors in liquidation is unconstitutional. ## F) PETITIONER/ APPELLANT’S ARGUMENTS The counsels for Petitioner submitted that the exclusion of Sections 326 and 327 by Section 327(7) of the Companies Act, 2013, was arbitrary and unconstitutional. They argued that this exclusion violated Articles 14 and 21 by diminishing the priority of workmen’s dues, which previously had higher priority under the Companies Act. They contended that the IBC’s waterfall mechanism, particularly Section 53, unfairly ranked workmen’s dues on par with secured creditors who relinquished their security, undermining the workmen’s financial security and welfare. ## G) RESPONDENT’S ARGUMENTS The counsels for Respondent submitted that the IBC aimed to create a comprehensive and time-bound insolvency resolution framework, balancing the interests of all stakeholders. They argued that the exclusion of Sections 326 and 327 was necessary to avoid conflicting provisions and to ensure a uniform insolvency process. They emphasized that the IBC’s provisions were designed after extensive consultation and were intended to maximize asset value and revive distressed companies, which ultimately benefited workmen as well. ## H) JUDGEMENT a. RATIO DECIDENDI The Supreme Court held that Section 327(7) of the Companies Act, 2013, was not arbitrary and did not violate Articles 14 and 21 of the Constitution of India. The Court emphasized that the IBC was a comprehensive code designed to address insolvency and bankruptcy in a time-bound and efficient manner. It noted that the legislative intent behind the IBC was to balance the interests of all stakeholders, including workmen, and that the exclusion of Sections 326 and 327 was to ensure a uniform insolvency process. b. OBITER DICTA The Court observed that while the workmen’s dues were ranked pari passu with secured creditors in the IBC, this did not undermine their rights but was part of a broader objective to maximize the value of assets and ensure fair distribution among all creditors. The Court also noted that the provident fund, pension fund, and gratuity fund were excluded from the liquidation estate, thus protecting the core financial interests of workmen. ## I) CONCLUSION & COMMENTS The Supreme Court’s decision upheld the constitutionality of Section 327(7) of the Companies Act, 2013, affirming that the IBC’s provisions did not violate constitutional rights. The judgment reinforced the IBC’s objective to create a uniform and balanced insolvency resolution framework. The decision highlighted the Court’s deference to legislative judgment in economic matters, recognizing the complex considerations involved in insolvency law. This ruling underscores the importance of a cohesive insolvency framework and the need to balance competing interests to achieve economic stability and growth. ## J) REFERENCES a. Important Cases Referred i) Manish Kumar vs Union of India (2021) 5 SCC 1 ii) Swiss Ribbons Private Limited and Anr. vs Union of India and Ors. (2019) 4 SCC 17 iii) Committee of Creditors of Essar Steel India Limited vs Satish Kumar Gupta and Ors. (2020) 8 SCC 531 iv) Ghanashyam Mishra and Sons Private Limited vs Edelweiss Asset Reconstruction Company Limited (2021) 9 SCC 657 v) Allahabad Bank vs Canara Bank and Anr. (2000) 4 SCC 406 vi) Andhra Bank vs Official Liquidator and Anr. (2005) 5 SCC 75 b. Important Statutes Referred i) Companies Act, 2013 ii) Insolvency and Bankruptcy Code, 2016 iii) Constitution of India **Categories:** Case Analysis, Constitutional Law Cases, Corporate Law Cases, Insolvency and Bankruptcy Code --- ### [Meaning, Definition, Nature, Scope and Applicability of Law of Torts](https://lawfoyer.in/law-of-tort/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Jahnvi Goel, Amity University, Lucknow

Introduction

One moment you are strolling down the road and the other you unexpectedly slip into a pit left open by the Municipal Corporation. Without glancing around, you stand up quickly to cover up the embarrassment it may have caused. But what can you do? Is there anyone who could be blamed for this? I have sustained injuries so I should be more careful from the next time. However, there was a responsibility of Municipality in this situation. They were negligent in fulfilling their duty. This is what law of torts talks about and much more.

Meaning and definition of Tort

Tort defines its meaning in the word civil wrong. The word Tort means twisted or crooked. It is of French origin and is comparable to the English word wrong. It is often used to define a breach of duty amounting to a civil wrong. Some of the important definitions include Salmond’s who defined Tort as a civil wrong for which the remedy is an action for damages and which is not exclusively the breach of contract or the breach of trust or breach of merely  equitable obligation[1]. A tort becomes apparent due to an individual’s duty to others in generally which is created by one law or the other. An individual who commits a tort is known as a tortfeaser, or a wrongdoer. They are called joint tortfeaser where they are more than one. Tortuous act is their wrongdoing and they are liable to be sued jointly as well as severally. The main objective of the Law of tort is compensation of sufferer or their dependants. Deterrence of wrong doers is also another objective of the law of tort. Some other important definitions, which throw light on the nature of tort include Winfield’s who described Tort as a Tortious liability which arises from the breach of a duty primarily fixed the law,  this duty is towards the persons generally and its breach is redressible by an action for unliquidated damages. According to Clark and Lindsell, “Tort is a wrong independent of contract for which the appropriate remedy is a common law action."  In addition to, Section 2(m), the Limitation Act, 1963 states that Tort is a civil wrong which is not exclusively a breach of contract or breach of trust.

Why does Tort law exist?

Tort law serves at least three purposes. First, it facilitates compensation for injuries resulting from wrongful conduct. Second, it can deter persons from wrongful behavior that may produce harm. Third, it can provide a way of punishing people who wrongfully injure others.

Development and evolution of law of torts

Tort law evolved in three phases mainly which are the Ancient Era, the Medieval Era, and the Modern Era. Unlike England, there is less tort litigation in India, the reasons include lack of consciousness and awareness  about one’s rights and the spirit of toleration, issue of recognition of the action by courts, and, awarding of very low compensation. Hence, a number of cases of violation of legal right or injury in India like unlawful detention, injury to or the death of people due to adulterated foodstuffs, liquor, medicine, etc., loss due to power cut, noise and other pollutions, etc. are tolerated without bringing an action in a court of law or to a higher authority.

Tort existed in Hindu and Muslim law to deal with wrongful acts but it could be said that tort was formally introduced by the Crown in India. It is primarily based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is generally the English law of torts. The exercise of the law of tort is applied selectively in Indian courts keeping in mind if it suits the elements and situations of Indian society.

Justice Bhagwati in M.C Mehta v. Union of India observed that: “We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”

Nature of Torts

●       Tort and crime:

Initially tort had its roots in criminal procedure. There is a punitive element in some aspects of the rules on damages even today. However, tort is a kind of civil injury or wrong. The nature of the remedy provided by law differentiates civil and criminal wrongs. At times, the same wrong is capable of being made the subject of proceedings of both crime and tort. For example assault, libel, theft, negligence, conspiracy, malicious injury to property etc. in such cases the wrong doer may be penalized criminally and also compelled in a civil action to make compensation or restitution, the victim can sue the wrongdoer under civil liability or initiate criminal proceedings against the offender under criminal law. If a defamatory article about another person has been published in a newspaper, the defamatory publication will demand both criminal prosecution for libel as well as a civil action claiming damages may be taken against him. In P.Rathinam. v. Union of India (Hansaria, 1844, 1994 SCC ), the Supreme Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society.

●       Tort and contract:

The definition given by P.H. Winfield clearly highlights the distinction between tort and contract. It says, Tortious liability arises from the breach of a duty primarily imposed by law; which is owed to the general public and its breach is redressible by an action for unliquidated damages. On the other hand, A contract is that species of agreement which establishes legal obligation between the parties. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous and voluntary legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations. At the present day, the key distinction between tort and contract lies in the source of duties in the former are mainly fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual duties and responsibilities.

●       Tort and Quasi-Contract:

Those cases where a person is held liable to another without any agreement is covered by Quasi Contract, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the duties and responsibilities under a quasi contract is the existence of a hypothetical contract which is implied by law. However, the Radical view is that the duties and responsibilities in a quasi contract is sui generis and its basis is prevention of unjust enrichment.

Scope of Tort Law

The main purpose of implementing tort law was to use it as a tool to make people to follow the conduct of a reasonable prudent man and to make them respectful towards each other’s rights and obligations. In order to achieve its purpose, law of torts allows the sufferer to claim and demand compensation for the infringement of his legal right. To constitute a tort,
  1. There should be commission of wrongful act by a person;
  2. The nature of the unlawful act should be such to have a resort to legal remedy and
  3. Unliquidated damages should be the legal remedy for the unlawful act caused.
Legal Damage is an important ingredient in constituting a tort. In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission which caused the violation of a legal right vested in the plaintiff. If there has been a violation of a legal right, the same is actionable whether the plaintiff has suffered any loss or not. This is indicated by the maxim, "Injuria sine damnum”, 'Injuria' refers to infringement of a legal right and the term 'damnum' implies substantial harm, loss or damage. The term 'sine' means without. However, if there is no violation of a legal right, no action can lie in a court despite of the loss, harm or damage to the plaintiff caused by the defendant. This is expressed by the maxim 'Damnum sine injuria’. The detailed discussion of these two maxims is as follows:
  • Injuria sine damnum:
This doctrine implies infringement or violation of a legal private right of a person even if no actual loss or damage is evident. In such a case the person whose right is infringed has a good cause of action and such infringements are generally punishable under the law. It is not necessary for him to prove any special damage. Thus, in cases of assault, battery, false imprisonment,  libel etc., the mere wrongful act is actionable without proof of special damage. The court is  bound to award to the plaintiff at least nominal damages if no actual damage is proved. Thus, this maxim provides for, (1) infringement of a legal right of a person. (2) no actual loss or damage is required to prove. (3) infringement of a private right is actionable per se. In Ashby Verses White (Holt CJ, 1703), the plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiffs vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election. Plaintiff succeeded in his action since there was a violation of his legal right.
  • Damnum sine injuria:
This maxim signifies an actual and substantial loss without infringement of any legal  right. In such a case no action lies. There are numerous harms of which loss takes no account and mere loss of money's worth does not by itself constitute a legal damage. There are many forms of harm of which the law takes no account, (1)Loss inflicted on individual traders by competition in trade, (2)Where the damage is done by a man acting under necessity to prevent a greater evil, (3)Damage caused by defamatory statements made on a privileged occasion, (4)Where the harm is too trivial, too indefinite or too difficult of proof, (5)Where the harm done may be of such a nature that a criminal prosecution is more  appropriate for example, in case of public nuisance or causing of death, (6)There is no right of action for damages for contempt of court. In Gloucester Grammar School Case (Hillary, 1410), The defendant, a schoolmaster, set up a rival school to that of the plaintiff. Because of the competition, the plaintiff had to reduce their fees and initiated legal proceedings demanding compensation for the financial loses incurred. Held, the plaintiff had no remedy for the loss suffered by them. Hence, the essential requirement is the violation of a legal right.

Conclusion

Thus to conclude, Tort law has made firm roots in the legal showground and it’s primary aim is to impose liability on parties responsible for the harm, to provide relief to injured parties for harms caused by others, and to serve as a deterrent against wrongful acts. Torts can also shift the burden of loss to the party who is at fault or better suited to bear the burden of loss from the injured party. It also enables citizens to seek redress for the minor and major damage caused to them. Thus, it could be said that Tort has gained much confidence among the laymen in acting as the backbone of civil justice. [1] Iyer, S. (1933). The Law of Torts. Harvard Law Review, 46, 882. Hansaria, B. (1844, 1994 SCC ). P.Rathinam vs Union Of India on 26 April, 1994. 394. Holt CJ, P. J. (1703). Ashby v White. 92 ER 126. Hillary, J. Y. (1410). GLOUCESTER GRAMMAR SCHOOL CASE. IV of 47. **Content:** **Author-Jahnvi Goel, Amity University, Lucknow** ### Introduction One moment you are strolling down the road and the other you unexpectedly slip into a pit left open by the Municipal Corporation. Without glancing around, you stand up quickly to cover up the embarrassment it may have caused. But what can you do? Is there anyone who could be blamed for this? I have sustained injuries so I should be more careful from the next time. However, there was a responsibility of Municipality in this situation. They were negligent in fulfilling their duty. This is what law of torts talks about and much more. ### **Meaning and definition of Tort** Tort defines its meaning in the word civil wrong. The word Tort means twisted or crooked. It is of French origin and is comparable to the English word wrong. It is often used to define a breach of duty amounting to a civil wrong. Some of the important definitions include Salmond’s who defined Tort as a civil wrong for which the remedy is an action for damages and which is not exclusively the breach of contract or the breach of trust or breach of merely equitable obligation[\[1\]](#_ftn1). A tort becomes apparent due to an individual’s duty to others in generally which is created by one law or the other. An individual who commits a tort is known as a tortfeaser, or a wrongdoer. They are called joint tortfeaser where they are more than one. Tortuous act is their wrongdoing and they are liable to be sued jointly as well as severally. The main objective of the Law of tort is compensation of sufferer or their dependants. Deterrence of wrong doers is also another objective of the law of tort. Some other important definitions, which throw light on the nature of tort include Winfield’s who described Tort as a Tortious liability which arises from the breach of a duty primarily fixed the law, this duty is towards the persons generally and its breach is redressible by an action for unliquidated damages. According to Clark and Lindsell, “Tort is a wrong independent of contract for which the appropriate remedy is a common law action.” In addition to, Section 2(m), the Limitation Act, 1963 states that Tort is a civil wrong which is not exclusively a breach of contract or breach of trust. ### **Why does Tort law exist?** Tort law serves at least three purposes. First, it facilitates compensation for injuries resulting from wrongful conduct. Second, it can deter persons from wrongful behavior that may produce harm. Third, it can provide a way of punishing people who wrongfully injure others. ### Development and evolution of law of torts Tort law evolved in three phases mainly which are the Ancient Era, the Medieval Era, and the Modern Era. Unlike England, there is less tort litigation in India, the reasons include lack of consciousness and awareness about one’s rights and the spirit of toleration, issue of recognition of the action by courts, and, awarding of very low compensation. Hence, a number of cases of violation of legal right or injury in India like unlawful detention, injury to or the death of people due to adulterated foodstuffs, liquor, medicine, etc., loss due to power cut, noise and other pollutions, etc. are tolerated without bringing an action in a court of law or to a higher authority. Tort existed in Hindu and Muslim law to deal with wrongful acts but it could be said that tort was formally introduced by the Crown in India. It is primarily based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is generally the English law of torts. The exercise of the law of tort is applied selectively in Indian courts keeping in mind if it suits the elements and situations of Indian society. Justice Bhagwati in *M.C Mehta v. Union of India* observed that: *“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”* ### Nature of Torts #### ● Tort and crime: Initially tort had its roots in criminal procedure. There is a punitive element in some aspects of the rules on damages even today. However, tort is a kind of civil injury or wrong. The nature of the remedy provided by law differentiates civil and criminal wrongs. At times, the same wrong is capable of being made the subject of proceedings of both crime and tort. For example assault, libel, theft, negligence, conspiracy, malicious injury to property etc. in such cases the wrong doer may be penalized criminally and also compelled in a civil action to make compensation or restitution, the victim can sue the wrongdoer under civil liability or initiate criminal proceedings against the offender under criminal law. If a defamatory article about another person has been published in a newspaper, the defamatory publication will demand both criminal prosecution for libel as well as a civil action claiming damages may be taken against him. In P.Rathinam. v. Union of India (Hansaria, 1844, 1994 SCC ), the Supreme Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society. ## ● Tort and contract: The definition given by P.H. Winfield clearly highlights the distinction between tort and contract. It says, Tortious liability arises from the breach of a duty primarily imposed by law; which is owed to the general public and its breach is redressible by an action for unliquidated damages. On the other hand, A contract is that species of agreement which establishes legal obligation between the parties. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous and voluntary legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations. At the present day, the key distinction between tort and contract lies in the source of duties in the former are mainly fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual duties and responsibilities. #### ● Tort and Quasi-Contract: Those cases where a person is held liable to another without any agreement is covered by Quasi Contract, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the duties and responsibilities under a quasi contract is the existence of a hypothetical contract which is implied by law. However, the Radical view is that the duties and responsibilities in a quasi contract is sui generis and its basis is prevention of unjust enrichment. ### Scope of Tort Law The main purpose of implementing tort law was to use it as a tool to make people to follow the conduct of a reasonable prudent man and to make them respectful towards each other’s rights and obligations. In order to achieve its purpose, law of torts allows the sufferer to claim and demand compensation for the infringement of his legal right. To constitute a tort, 1. There should be commission of wrongful act by a person; 2. The nature of the unlawful act should be such to have a resort to legal remedy and 3. Unliquidated damages should be the legal remedy for the unlawful act caused. Legal Damage is an important ingredient in constituting a tort. In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission which caused the violation of a legal right vested in the plaintiff. If there has been a violation of a legal right, the same is actionable whether the plaintiff has suffered any loss or not. This is indicated by the maxim, ***“Injuria sine damnum”, ‘Injuria’*** refers to infringement of a legal right and the term ***‘damnum’*** implies substantial harm, loss or damage. The term ***‘sine’*** means without. However, if there is no violation of a legal right, no action can lie in a court despite of the loss, harm or damage to the plaintiff caused by the defendant. This is expressed by the maxim ***‘Damnum sine injuria’****.* The detailed discussion of these two maxims is as follows: - ***Injuria sine damnum***: This doctrine implies infringement or violation of a legal private right of a person even if no actual loss or damage is evident. In such a case the person whose right is infringed has a good cause of action and such infringements are generally punishable under the law. It is not necessary for him to prove any special damage. Thus, in cases of assault, battery, false imprisonment, libel etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. Thus, this maxim provides for, (1) infringement of a legal right of a person. (2) no actual loss or damage is required to prove. (3) infringement of a private right is actionable *per se.* In **Ashby Verses White** (Holt CJ, 1703), the plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiffs vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election. Plaintiff succeeded in his action since there was a violation of his legal right. - ***Damnum sine injuria:*** This maxim signifies an actual and substantial loss without infringement of any legal right. In such a case no action lies. There are numerous harms of which loss takes no account and mere loss of money’s worth does not by itself constitute a legal damage. There are many forms of harm of which the law takes no account, (1)Loss inflicted on individual traders by competition in trade, (2)Where the damage is done by a man acting under necessity to prevent a greater evil, (3)Damage caused by defamatory statements made on a privileged occasion, (4)Where the harm is too trivial, too indefinite or too difficult of proof, (5)Where the harm done may be of such a nature that a criminal prosecution is more appropriate for example*,* in case of public nuisance or causing of death, (6)There is no right of action for damages for contempt of court. In **Gloucester Grammar School Case** (Hillary, 1410), The defendant, a schoolmaster, set up a rival school to that of the plaintiff. Because of the competition, the plaintiff had to reduce their fees and initiated legal proceedings demanding compensation for the financial loses incurred. Held, the plaintiff had no remedy for the loss suffered by them. Hence, the essential requirement is the violation of a legal right. ### **Conclusion** Thus to conclude, Tort law has made firm roots in the legal showground and it’s primary aim is to impose liability on parties responsible for the harm, to provide relief to injured parties for harms caused by others, and to serve as a deterrent against wrongful acts. Torts can also shift the burden of loss to the party who is at fault or better suited to bear the burden of loss from the injured party. It also enables citizens to seek redress for the minor and major damage caused to them. Thus, it could be said that Tort has gained much confidence among the laymen in acting as the backbone of civil justice. [\[1\]](#_ftnref1) Iyer, S. (1933). The Law of Torts. *Harvard Law Review*, 46, 882. Hansaria, B. (1844, 1994 SCC ). P.Rathinam vs Union Of India on 26 April, 1994. 394. Holt CJ, P. J. (1703). Ashby v White. 92 ER 126. Hillary, J. Y. (1410). GLOUCESTER GRAMMAR SCHOOL CASE. IV of 47. **Categories:** Articles, Law of Torts --- ### [Determination of Age under Section 15 of the Juvenile Justice Act](https://lawfoyer.in/determination-of-age-under-section-15-of-the-juvenile-justice-act/) **Published:** May 1, 2024 **Author:** LawFoyer **Content:** #### Introduction to Section 15 of the Juvenile Justice Act, 2015 The Juvenile Justice (Care and Protection of Children) Act, 2015, plays a critical role in determining how juveniles in conflict with the law are treated. A key aspect of this legislative framework is Section 15, which details the procedure for the preliminary assessment of juveniles aged between 16 and 18 who are accused of committing heinous offences. This assessment decides whether a juvenile should be tried as an adult, incorporating a comprehensive evaluation of both mental and physical capacity to commit such offences. #### Historical Evolution of Juvenile Legislation The evolution of juvenile justice legislation in India saw a significant turn with the Juvenile Justice Act, 2000, which was later amended to the current version in 2015 following the public outcry from the Nirbhaya case in 2012. This incident notably shifted public sentiment towards harsher punishments for juveniles committing severe crimes, leading to the introduction of the provision for trying juveniles as adults under certain conditions. The legal framework was further supported by recommendations from the Justice J.S. Verma Committee and judgments like *Dr. Subramanian Swamy v. Raju* which influenced the legislative amendments. #### Core Provisions of Section 15: Preliminary Assessment Section 15 stipulates a two-step process for handling cases involving juveniles accused of heinous offences: 1\) **Eligibility for Assessment**: - Only juveniles aged between 16 and 18 years are eligible. - The offence in question must be classified as a heinous offence under Section 2(33), which generally refers to crimes punishable with a minimum of 7 years imprisonment. 2\) **Assessment Procedure**: - The Juvenile Justice Board is tasked with the assessment. - The process involves determining the juvenile’s mental and physical capacity to commit the crime. - Assistance from psychologists, psycho-social workers, or other experts may be sought. #### Role and Functions of the Juvenile Justice Board The Juvenile Justice Board (JJB) plays a pivotal role under Section 15. This multidisciplinary body performs the initial assessment and decides the subsequent legal proceedings for the juvenile. The JJB’s decisions can range from counseling and community service to recommending the trial of a juvenile as an adult in severe cases. #### Judicial Interpretations and Case Law Several landmark cases have shaped the interpretation and application of Section 15: - **Barun Chandra Thakur vs. Master Bholu (2022)**: The Supreme Court emphasized that the preliminary assessment should strictly adhere to the legal procedures established, with the JJB having the sole authority to decide on the trial of juveniles as adults. - **Shilpa Mittal vs. State of NCT of Delhi (2020)**: The Supreme Court clarified that not all offences with severe penalties qualify as heinous offences unless the law explicitly states a minimum sentence of 7 years, influencing how juveniles are assessed under Section 15. - **Smt. Durga vs. State of Rajasthan (2019)**: The case highlighted issues around the application of juvenile justice laws, especially in contexts involving severe domestic conflicts leading to crime, where the juvenile’s background and circumstances were taken into consideration for their defense. #### Constitutional and Ethical Considerations The application of Section 15 raises significant constitutional and ethical issues, such as: - **Violation of Right to Equality**: Questions arise regarding the differentiation between juveniles below and above 16 years of age, challenging the principles under Article 14 of the Indian Constitution. - **Right Against Self-Incrimination**: The involvement of psychological assessments could potentially lead to self-incriminating evidence, conflicting with Article 20(3) of the Constitution which protects against self-incrimination. #### Conclusion: Balancing Justice with Juvenile Welfare The determination of age and the subsequent application of the Juvenile Justice Act require a careful balance between ensuring public safety and upholding the rights and welfare of juveniles. The law must navigate between the retributive demands of society and the reformative needs of the juvenile, ensuring that the legal responses are both just and compassionate. This complex interplay of legal standards, ethical considerations, and societal expectations continues to evolve, as seen in the recent judicial decisions and ongoing legislative discussions, ensuring that the juvenile justice system remains responsive and relevant to the needs of both juveniles and society. **Categories:** Articles, Criminal Law, Juvenile Justice Act --- ### [Introduction to the Civil Procedure Code (CPC), 1908](https://lawfoyer.in/introduction-to-the-civil-procedure-code-cpc-1908/) **Published:** April 23, 2024 **Author:** LawFoyer **Content:** The Civil Procedure Code (CPC) of 1908 is a comprehensive legal framework that governs the conduct of civil litigation in India. It is designed to ensure the administration of justice is both fair and efficient, adhering to the principles of natural justice. The CPC is foundational to the procedural law in India, defining how civil matters are to be filed, heard, and adjudicated in courts. ### Classification of Law: Substantive and Procedural **Substantive Law:** This branch of law determines the rights and duties of individuals and collective entities. It includes laws that define, create, or confer substantive legal rights or statuses, such as the Indian Contract Act, 1872, and the Indian Penal Code, 1860. Substantive laws are primarily prospective in their application, laying down the legal groundwork that governs society. **Procedural Law:** Also known as Adjective Law, this area governs the mechanisms and methods through which substantive laws are enforced and administered. Unlike substantive law, procedural laws can sometimes be retrospective, although the CPC typically operates prospectively. This includes legislations like the Indian Evidence Act, 1872, and the CPC itself. Procedural laws are essential as they provide the “machinery” for the enforcement of rights. ### Overview of the Civil Procedure Code, 1908 **Enactment and Amendments:** The CPC was enacted on January 1, 1909, and has been amended several times, notably by the Amendment Acts of 1976, 1999, and 2002, to improve efficiency and adapt to contemporary needs. **Purpose of the CPC:** The main objectives of the CPC are to ensure a fair trial in accordance with the principles of natural justice, to expedite the process of justice, to simplify the procedure, and to make justice accessible to all, irrespective of socio-economic status. ### Major Reforms in CPC **Justice Malimath Committee’s Recommendations:** The amendments in 1999 and 2002 were largely influenced by this committee, which proposed several key changes: - Time limits for various stages of litigation, such as for summons, written statements, and judgments. - Inclusion of alternative dispute resolution mechanisms under Section 89 to encourage settlements out of court. - Limitation on the number of adjournments to avoid unnecessary delays. - Provisions for recording of evidence by commissioners and the filing of written arguments. These reforms aimed to streamline procedures and reduce the backlog of cases. ### Key Provisions and Stages of Civil Litigation Under the CPC **Jurisdiction:** Defined under various sections, jurisdiction refers to the legal authority of a court to hear and decide cases. This is classified into subject-matter, territorial, and pecuniary jurisdictions, which determine which court has the authority to hear a case. **Stages of a Civil Suit:** 1. **Filing of Plaint:** The process begins with the plaint, where the plaintiff states the facts and claims against the defendant. 2. **Written Statement by Defendant:** The defendant responds to the plaint by filing a written statement. 3. **Framing of Issues:** The court identifies the issues to be addressed during the trial. 4. **Trial Process:** Involves the presentation and examination of evidence. 5. **Judgment and Decree:** Concludes with the court delivering a judgment and issuing a decree based on the findings. ### Stages of a Civil Suit Under the Civil Procedure Code, 1908 The following is a detailed list of the stages in a civil lawsuit under the CPC, including the relevant sections, orders, and rules that govern each stage: **Filing of Plaint** - **Section 26**: Institution of suits. - **Order 7**: Pertains to the specifics of what should be included in a plaint. **Written Statement by Defendant** - **Order 8**: Governs the filing of the written statement, set-off, and counter-claims. **Framing of Issues** - **Order 14**: Relates to the settling of issues and determination of the suit on issues of law or on issues agreed upon by the parties. **Discovery and Inspection** - **Order 11**: Deals with discovery and inspection of documents and other material objects relevant to the lawsuit. **Admission** - **Order 12**: Provides for the admission of facts, simplifying the trial by establishing certain ground truths that need not be argued. **Production, Impounding and Return of Documents** - **Order 13**: Concerns the handling of documents during the trial, including their submission, safekeeping, and eventual return. **Examination of Parties by the Court** - **Order 10**: Pertains to the court’s authority to orally examine parties to ascertain the truth or clarify matters relevant to the case. **Hearing of the Suit and Oral Arguments** - **Order 18**: Regulates the hearing of the suit and the procedure for submission of oral arguments. **Recording of Evidence** - **Section 33** and **Order 18**: Govern the recording of evidence when the examination of witnesses occurs. **Judgment** - **Section 33**: Discusses the court’s obligation to pronounce judgment. - **Order 20**: Details the procedure for the pronouncement of judgment. **Decree** - **Section 2(2)**: Defines what constitutes a decree. - **Section 33** and **Order 20**: These sections and order also encompass the issuance of the decree following the judgment. **Execution of Decree** - **Sections 36 to 74**: Outline the procedures for the execution of decrees. - **Order 21**: Provides detailed rules on the execution process, including attachment and auction of property, and arrest and detention in civil prison. **Appeal** - **Sections 96 to 112**: Set out the laws regarding appeals to higher courts. - **Order 41**: Provides the procedure for filing appeals, including what should be contained in the appeal, how it should be presented, and how the courts will handle it. **Review** - **Section 114** and **Order 47**: Deal with the application for review of judgment by the same court that issued the original judgment. **Revision** - **Section 115**: Provides for the revisional jurisdiction of the High Court over the decrees and orders of subordinate courts. **Reference** - **Section 113** and **Order 46**: Regulate the procedure when a court feels that a case involves a question of law concerning the interpretation of the constitution, requiring it to refer the question to a higher court. Each of these stages is crucial for the proper functioning of civil proceedings, ensuring that every aspect of a case is thoroughly considered and adjudicated upon based on legal principles and evidence. ### Comparative Legal Framework Comparing the CPC with procedural laws in other jurisdictions, such as the Federal Rules of Civil Procedure in the United States or the Civil Procedure Rules in the United Kingdom, highlights its unique blend of detailed procedural guidance and flexibility. This flexibility is crucial in allowing the courts to interpret and apply the law in a manner that promotes justice. ### Judicial Interpretations and Case Laws Significant case laws that have shaped the interpretation of the CPC include: - **Sangram Singh v. Election Tribunal**: Emphasized that procedural laws should not be a hindrance to justice but should aid its realization. - **Saiyad Mohd. v. Abdul Habib**: Highlighted that procedural laws should be interpreted flexibly to prevent miscarriages of justice. ### Future Directions and Reforms The evolution of the CPC continues as the legal system confronts new challenges such as the integration of technology in judicial processes. The move towards digital courts and online procedures could significantly impact the efficiency and accessibility of civil justice. ### Conclusion The Civil Procedure Code, 1908, is more than just a set of procedural rules; it is a dynamic framework that adapts to the legal, social, and technological changes in society. Its purpose is not only to govern the conduct of civil litigation but also to ensure that justice is delivered in an efficient, effective, and equitable manner. As legal reforms continue to evolve, the CPC remains central to the administration of civil law in India, reflecting the balance between procedural detail and the overarching goal of justice. **Categories:** Articles, Civil Procedure Law --- ### [Hearing of Suit under CPC](https://lawfoyer.in/hearing-of-suit-under-cpc/) **Published:** May 22, 2024 **Author:** LawFoyer **Content:** ## Right to Begin (Order 18 Rule 1) ### Explanation and Scope The plaintiff typically has the right to begin unless the defendant admits the facts alleged by the plaintiff and argues that the plaintiff is not entitled to any relief based on legal points or additional facts. In such scenarios, the defendant may start first. The determination of the right to begin relies on the rules of evidence. Generally, the party bearing the burden of proof starts. For instance, in **Mirza Niamat Baig v. Sk. Abdul Sayeed, 2009(1) CCC 75 (Ori.)**, it was held that since the plaintiff raised allegations of fraud, he had to begin first as per Order 18, Rule 1 of CPC. In another case, **Associate Auto Agencies Automobiles Dealers and Engineers v. M/s. Chhotabhai Jithabhai and Co., 1993(2) C.C.C. 175 (M.P.)**, the defendant had to prove the delivery of a car after admitting the plaintiff’s payment, thereby bearing the burden of proof and leading evidence first. This rule ensures fairness in the trial process by aligning the presentation of evidence with the party who needs to substantiate their claims or defenses. ## Statement and Production of Evidence (Order 18 Rule 2) ### Procedure On the hearing day, the party with the right to begin must state their case and produce supporting evidence for the issues they are required to prove. The opposing party will then state their case and present any evidence they have, followed by a general address to the court on the entire case. The initial party can then reply generally on the whole case. Oral arguments may be supplemented with written arguments if permitted by the court, forming part of the record, as seen in **Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353**. ### Scope and Importance The procedure ensures systematic and orderly presentation of cases, enabling the court to comprehensively understand each party’s stance. Dismissal of a suit due to a plaintiff’s failure to produce evidence after multiple opportunities, as in **Manohar Lal Ahuja v. Nand Lal Ahuja, AIR 2008 (NOC) 347 (Del.)**, underscores the importance of adherence to these rules. ## Party to Appear Before Other Witnesses (Order 18 Rule 3A) If a party wishes to appear as a witness, they must do so before examining other witnesses unless the court allows otherwise for recorded reasons. This rule ensures the witness’s credibility and immediate relevance of their testimony. ## Recording of Evidence (Order 18 Rule 4) ### Examination-in-Chief and Cross-Examination Examination-in-chief must be on affidavit, with copies provided to the opposing party. Cross-examination and re-examination are conducted by the court or a commissioner appointed for the task. The commissioner’s recorded evidence, including remarks on witness demeanor, forms part of the suit’s record. For instance, the validity and applicability of Order 18, Rule 4 were upheld in **Salem Advocate Bar Association’s case**. ### Scope and Interpretation Order 18, Rule 4(2) allows discretion for evidence recording by a commissioner, maintaining the right of cross-examination and ensuring the trial’s integrity. Complex cases may prompt courts to record cross-examinations themselves to observe witness demeanor directly, as discussed in **Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, AIR 2010 Bom.178 (Full Bench)**. The rule mandates that cross-examinations must occur, but it is the court’s discretion whether they happen before the court or a commissioner. ## Production of Documents with Affidavit (Order 18 Rule 4(1)) Parties can produce documents with their affidavits, but the court must decide on their admissibility before they are exhibited as evidence, preventing postponement of such decisions until case disposal. This principle was emphasized in **Durga Shankar S. Trivedi v. Babubani Bhulabhai Parekh, AIR 2003 Bom. 487**. ## Video Conferencing and Electronic Recording Evidence can be recorded through video conferencing, and audio-visual recordings can form part of the record. This modern approach aligns with efficient case management, reducing delays and logistical constraints. This was supported in **Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2002(8) Supreme 55**. ## Commissioner’s Power and Role A commissioner can record objections during evidence collection but cannot declare a witness hostile. The court retains this discretion under Section 154 of the Evidence Act. If required, parties must obtain the court’s permission to treat a witness as hostile. This distinction ensures judicial control over critical aspects of witness examination, as clarified in **Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353**. ## Applicants’ Appearance in Court Applicants filing affidavits must appear in court to testify. Affidavits without the witness’s presence in the witness box do not constitute evidence, as noted in **F.D.C. Ltd v. Federation of Medical Representatives Association India (FMRAI), AIR 2003 Bombay 371**. The Supreme Court confirmed this in **Ameer Trading Corporation v. Shapoorji Data Processing Ltd. (2004) 1 SCC 702**. ## Remarks on Witness Demeanor (Order 18 Rule 12) The court can record material remarks about a witness’s demeanor during examination. This practice aids in evaluating witness credibility and overall evidence reliability. ## Immediate Examination of Witnesses (Order 18 Rule 16) If a witness is about to leave the court’s jurisdiction or for other sufficient reasons, the court may immediately take their evidence. Such urgency was justified in **Samuel H. Joseph & Ors. v. Dr. Johan C. Taylor, 1991(1) CCC 595**, where the plaintiff’s imminent departure warranted immediate testimony. ## Court’s Power to Recall and Examine Witness (Order 18 Rule 17) The court can recall any witness at any stage to clarify issues or doubts. This power, primarily for judicial clarification, was underscored in **K.K. Velusamy v. N. Palaanisamy, 2011 (2) CCC 28 (SC)**. However, it does not extend to further examination or introducing new evidence. ## Issuing Commission to Examine Witness (Order 26 Rule 1) Courts can issue commissions for examining witnesses unable to attend due to sickness or other infirmities. Advanced age can also be a valid reason for this provision, as recognized in **Om Prakash Kajaria v. Circular Investment Trust Ltd., AIR 2009 Cal. 66**. The court must monitor the commission’s proceedings to prevent delays and ensure efficient evidence collection, as highlighted in **M/s Fashion Linkers & Ors. v. Mrs. Savitri Devi & Anr., 1995 (3) CCC 604 (Del.)**. These procedural rules under the CPC aim to streamline the hearing process, ensure fair presentation of evidence, and maintain judicial efficiency while safeguarding the rights of the parties involved. ## Key Cases Referred / Cited 1. Mirza Niamat Baig v. Sk. Abdul Sayeed, 2009(1) CCC 75 (Ori.) 2. Associate Auto Agencies Automobiles Dealers and Engineers v. M/s. Chhotabhai Jithabhai and Co., 1993(2) C.C.C. 175 (M.P.) 3. Manohar Lal Ahuja v. Nand Lal Ahuja, AIR 2008 (NOC) 347 (Del.) 4. Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353 5. Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, AIR 2010 Bom.178 (Full Bench) 6. Durga Shankar S. Trivedi v. Babubani Bhulabhai Parekh, AIR 2003 Bom. 487 7. Samuel H. Joseph & Ors. v. Dr. Johan C. Taylor, 1991(1) C.C.C. 595 8. K.K. Velusamy v. N. Palaanisamy, 2011 (2) CCC 28 (SC) 9. Akash v. Gian Singh, AIR 2010 H.P. 93 10. Om Prakash Kajaria v. Circular Investment Trust Ltd., AIR 2009 Cal. 66 11. M/s Fashion Linkers & Ors. v. Mrs. Savitri Devi & Anr., 1995 (3) CCC 604 (Del.) **Categories:** Articles, Civil Procedure Law --- ### [Warrant Trials under the Criminal Procedure Code, 1973](https://lawfoyer.in/warrant-trials-under-the-criminal-procedure-code-1973/) **Published:** May 1, 2024 **Author:** LawFoyer **Content:** ### Meaning of Warrant Trials Warrant trials in India are governed by Sections 238 to 250 of the Criminal Procedure Code (CrPC), 1973. These trials deal with more serious offences compared to summons cases, involving crimes punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. The fundamental distinction between warrant and summons cases lies in the severity of punishments involved, affecting the procedural intricacies of each trial type. ### Initiation of Warrant Trials A warrant trial typically commences upon the registration of a First Information Report (FIR) at a police station or directly through a complaint to a magistrate. These trials are categorized based on how they are instituted: either on a police report (Section 173, CrPC) or otherwise. The process varies slightly depending on the initiation mechanism but fundamentally follows a structured sequence to ensure justice. #### Trials Instituted on a Police Report 1. **Initial Steps and Supply of Copies**: Following the FIR, the police investigate and submit a charge sheet to the magistrate (Section 207, CrPC). The accused must be furnished with all documents including the police report, to prepare a defense. 2. **Discharge of Accused**: If the magistrate finds the charges baseless after reviewing the initial evidence and hearing the parties, the accused may be discharged under Section 239. 3. **Framing of Charge**: If there is sufficient ground, a formal charge is framed against the accused (Section 240). The charge is then read and explained to the accused. 4. **Conviction on Plea of Guilty**: If the accused pleads guilty, the magistrate may convict them immediately (Section 241). #### Presentation and Recording of Evidence - **Prosecution’s Evidence**: The prosecution presents its evidence first, calling witnesses and submitting other evidentiary materials (Section 242). The magistrate records all evidence deemed relevant. - **Defense’s Evidence**: After the prosecution, the defense has the opportunity to present its evidence and witnesses (Section 243). #### Judgment - Following the presentation of evidence from both sides, the magistrate passes a judgment of either acquittal or conviction based on the evidence and its legal scrutiny. ### Trials Instituted Otherwise than on a Police Report 1. **Preliminary Hearing and Discharge**: Similar initial steps are followed where the magistrate conducts a preliminary hearing. If the accusations appear groundless, the accused can be discharged (Sections 245 to 247). 2. **Framing of Charge and Further Proceedings**: If not discharged, the charge is framed and the trial proceeds similarly to police report cases, with evidence presentation and eventual judgment. ### Key Legal Principles and Cases - **Case Law**: The principles laid out in cases such as *State vs Sitaram Dayaram Kachhi (1957)* and *State of Himachal Pradesh vs Krishan Lal Pradhan (1987)* illustrate the courts’ approach to discharging an accused and the importance of prima facie evidence in framing charges. - **Importance of Section 243 and 244, CrPC**: These sections underline the procedural fairness provided to the accused in presenting their defense effectively. ### Procedural Nuances - **Evidence Management**: The magistrates’ role in examining and recording evidence is crucial. This involves a careful balancing of the testimonies, documentary evidence, and legal requirements to ensure a fair trial. - **Judicial Discretion in Conviction and Sentencing**: The magistrate’s discretion in recording a guilty plea or in deciding on a conviction post-trial highlights the personalized nature of legal judgments, factoring in the specifics of each case. ### Conclusion Warrant trials under the CrPC, 1973, serve a critical function in the Indian judicial system by addressing serious offences through a comprehensive procedural framework. The emphasis on detailed evidence presentation, judicial discretion in discharge and conviction, and the rights of the accused to a fair defense, all contribute to the overarching goal of justice. **Categories:** Articles, Criminal Procedure Law --- ### [Ilavarasan v. State](https://lawfoyer.in/ilavarasan-v-state/) **Published:** April 5, 2024 **Author:** LawFoyer **Content:** By – **Peuli Chakraborty** (**The University of Burdwan, West Bengal**) **ABSTRACT / HEADNOTE** This case, Ilavarasan v. State, was dealt by the Supreme Court of India. The appellant, Ilavarasan, claimed that his wife, Mathithra, had been taken away by her parents and compelled to get married to her maternal uncle, which was against her will. He initially filed a petition before the High Court, stating that he got married to her, in compliance with section 7A of the Hindu Marriage Act. The High Court straightforwardly set aside the habeas corpus petition, stating the legitimacy of sec 7A of Hindu Marriage Act, in terms of certifying the marriage by the advocates. He then appealed to the Supreme Court and the Supreme Court consequently directed the District Legal Service Authority, for the recording of the statement of Mathithra. Mathithra revealed that she married Ilavarasan, aggreably. The Apex Court then interpreted sec 7A of the HMA, and held that the public declaration isn’t at all essential for the solemnization of a legitimate marriage. The Court concluded the willingness of Mathithra, pertaining to living with Ilavarasan and ensured their reconciliation. ***Keywords*** – ***Ilavarasan, Supreme Court, The Writ of Habeas Corpus, The Hindu Marriage Act, Sec 7*A.** **CASE DETAILS** *Judgement Cause Title***Ilavarasan v. The Superintendent Of Police & Ors.*Case Number***Cr. Appeal No. 6534 of 2023*Judgement Date***August 28,2023*Court***The Supreme Court of India*Quorum***Aravind Kumar, S. Ravindra Bhat*Author***S. Ravindra Bhat*Citation***SC 1120*Legal Provisions Involved***The Writ of Habeas Corpus, Article 21 ( Right to Privacy), Sec 7A of HMA,1955.**NTRODUCTION AND BACKGROUND OF JUDGEMENT** Marriage is a consecrate fastening, instituted between a man and a woman, called husband and wife ( AKA Spouses). The Husband and Wife are promise bound, with the help of marriage, to carry out and honour this relationship, physically, mentally as well as socially. In accordance with Hindu Law, marriage is a sacred or consecrate ritual, to be taken into account, where both the bride and the groom performs SAPTAPADI ( a ritual, pertaining to taking up seven steps before the sacred fire, by the bridegroom) and subsequently they turn out be spouses and the marriage is solemnised**.** In accordance with the Hindu Law, bride is required to be at the eighteen years of age and the groom is required to be at twenty one years of age, while marrying each other. Apart from this, for the solemnization of an effective marriage, both the parties must have displayed their free consent. However, if one parties were compelled getting married or could not demonstrate his/her consent due to mental illness or unsoundness of mind, then the marriage shall be voidable, at the option of such party. The issue raised, in this specific case law, was with regard to the validity of the solemnization of marriage.The Apex Court held that the public declaration is not required for the solemnization of a valid marriage. **FACTS OF THE CASE** In this case, the appellant, named Ilavarasan, had filed a habeas corpus writ petition, under Art. 226, before the Madras High Court and had alleged that he married Mathithra ( his legally wedded wife), a 21 – year- old lady, in compliance with sec 7A of the Hindu Marriage Act of 1955. The marriage was solemnized in the presence of advocates and the other social workers. As per his statements and allegations, his wife Mathithra had been confined forcefully by her parents, despite their legitimate marriage, which had been solemnized, in compliance with sec 7-A of the Hindu Marriage Act, 1955. The petitioner included that he and Mathithra fell in love with each other and were determined of getting married. However his ladylove, was a minor by that time ( when they fell in love) and due to which, both of them was determined to get married later on. However, her parents, in this time period, went for a child marriage and compelled her to get married to her maternal uncle. She opposed and declined getting married to him and emphasized her feelings for Ilavarasan. She then abandoned her maternal house with the intent to live with her paramour. Subsequently, both the petitioner and Mathithra got married discreetly, in the presence of Advocates and other social workers employed at the Trade Union. They complied with sec 7-A of the Hindu Marriage Act, which exerted the performance of their licit marriage. Despite the solemnization of their legitimate marriage, Mathithra had once again been taken back by her parents and the petitioner filed a writ petition consequently, praying for her prompt release. This writ petition was discarded by Madras High Court, stating their incapacity to get rendered with certifying marriages under sec 7-A of the Hindu Marriage Act. Consequently the petitioner moved to the Apex Court filing the current appeal. **LEGAL ISSUES RAISED** - Whether a marriage, that has been taken place in secrecy, without a public declaration, is valid or not, in the eye of law? **PETITIONER/ APPELLANT’S ARGUMENTS ( Before the Madras High Court)** The learned counsel, **Mr. R. Alagumani** contented on behalf of the petitioner before the Madras High Court, that, the detenue opposed to the child marriage, initiated earlier, by her parents and she let her parents know about her philanderer by emphasizing her willingness to live with him. She then joined her philanderer and a special marriage, between them, took place in secrecy, in the presence of the advocates and certain social workers. The marriage was solemnised in accordance with sec 7-A of the Hindu Marriage Act, 1955, which was legitimate in the eye of law. **RESPONDENT’S ARGUMENTS ( Before the Madras High Court)** The additional public prosecutor contended on the behalf of the respondents by submitting that, the petitioner kidnapped Mathithra twice and had already been alleged for the same beforehand. The counsel for respondents further added that in order to dissimulate his kidnapping, he filed a writ petition displaying his fake love towards Mathithra, which he actually pretended. The counsel contented that the petitioner harassed both Mathithra and her parents by filing the habeas corpus petition. **RELATED LEGAL PROVISIONS** **The Constitution of India** **1. The Writ of Habeas Corpus –** *“The “Great Writ” of habeas corpus is a fundamental right in the Constitution that protects against unlawful and indefinite imprisonment. Translated from Latin it means “show me the body.” Habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power”.* **2.** **The Right against Infringement of Privacy –** *“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”* Right against the abasement of privacy, is intrinsic to Right to Life and Personal Liberty and is inherently shielded under Art. 21 of the Indian Constitution. **The Hindu Law** **1. Sec 7A of the Hindu Marriage Act –** *“This special provision legalised self-respect and secular marriages between two Hindus who meet the minimum age requirement for marriage”* **JUDGEMENT** **RATIO DECIDENDI** The ratio decidendi or the rationale or legal principle, as delivered by the Court, emphasizes that, for the solemnization of a valid and lawful marriage, under the Hindu Marriage Act ( sec 7A) 1955, a public declaration or dissemination is not required. The Court, afterwards held that, the couples’, who are getting married, might get confronted with certain hazards and family pressures, on account of the solemnization of the marriage, wherefore, for the purpose of safeguarding their conjugal lives, they opt for the public involvement. Apart from this, Court interpreted sec 7A of the HMA, 1955, to be compatible, in terms of getting married privately, even though there is the presence of a fewer people, in the form of witnesses. The above mentioned elaboration or interpretation unravels the Fundamental Rights, enshrined under **Article 21** of the Indian Constitution, which denotes the **Right to Privacy**, to every individual, in the form of a Fundamental Right. **OBITER DICTA** The antecedent decision of the Madras High Court was looked through by the Court, in the case **Balakrishnan Pandiyan v. Inspector of Police (2014)** , which demonstrated that the solemnization of a marriage, in secrecy, by ensuring fewer witnesses, shall neither amount to a valid marriage nor solemnization would constitute, under sec 7 and 7A of the Hindu Marriage Act, 1955. However, the above mentioned perspective was held to be inaccurate. In addition to this, the Court emphasized the magnitude of the celebration of a marriage along with the declaration of being married. The Court interpreted that, proponents of **suyamariyathai** or **seerthiruththa** form of marriage didn’t visualise the performance of marriage in secrecy. The Court, thereaftermanifested the weightiness of marriage celebration as well as the public recognition. The Court subsequently cited the case **S. Nagalingam v. Shivagami**, and clarified that, the solemnization of an effective marriage needs to take place, in the presence of the family, relatives and the friends, where a priest is not essential. The basic rituals, such as exchanging of garlands, putting vermillion ( Sindur ) or exchanging of rings are more than sufficient for the completion of a valid and legitimate marriage, under sec 7A of the Hindu Marriage Act, 1955. **CONCLUSION& COMMENTS** It was observed by the Court, that the parties may conceal the solemnization of their marriage on account of several reasons, especially if both the parties are adult. The marriage might have been hidden due to the family pressure of the bride Mathithra, who was compelled to get married to her maternal uncle and she turned out to be terror haunted of getting confined by her parents once again. The court further demonstrated regarding the abasement of the Art. 21, that came up in this case. The court emphasized that every single individual possesses the right to choose his/her life partner, which has been guaranteed by Art.21 of the Indian Constitution. The court further stated that solemnization of their marriage in the presence of the Advocates, doesn’t imply anything illicit in nature. The advocates are recognised to be the Officers of ther Court possessing innumerable authorities. They cannot proceed with being the witnesses during the solemnization of marriage, when they’re in the course of their profession. If the advocates attend a wedding privately being the witnesses of the same, that activity cannot be declared ineffective. After analysing the above mentioned fact of case along with the judgement, it must be included that we do belong to a narrower and illiberal society, where the women are compelled to get married against her will and it’s quite prevalent even in this twenty first century. It’s quite noticeable even now, that women are coerced by their parents, to get married by immolating their personal choices and career at the same time. Therefore, in this twenty first century and the era of Artificial Intelligence, where the women are discovered to be quite conceptual and analytical in their career and lives, this type of activities are indeed unanticipated from the parents. An individual ( irrespective of the gender) has the authority to opt for his/her congruous life partner and the parents are expected to embrace such decision, in lieu of opposing it. Henceforth, the above expounded humiliation by Mathithra’s parents is abominable and whimsical at the same time. We’d be craving for such Indian Society where everysingle individual would be rewarded with the opportunity to opt for their life partners, without the occurance of any perplexity in the family. **REFERENCES** **Important Cases Referred** 1. ***S. Nagalingam v. Sivagami* (2001) 7 SCC 487*S.*** 2. ***Balakrishnan Pandiyan v Inspector of Police* 2014 (7) MadLJ 651** **Important Statutes Referred** - **The Writ of Habeas Corpus, Indian Constitution.** - **The Right Against Infringement of Privacy, Article 21, Constitution of India.** - **Sec 7A of the Hindu Marriage Act,1955.** **Categories:** Case Analysis, Constitutional Law Cases, Family Law Cases --- ### [Mohd.Naushad vs State Of NCT, Delhi 2023](https://lawfoyer.in/mohd-naushad-vs-state-of-nct-delhi-2023/) **Published:** April 5, 2024 **Author:** LawFoyer **Content:** By – **CHITRA** (**University Five Year Law College, Jaipur**) **ABSTRACT / HEADNOTE** The criminal appeal named” Mohd Naushad vs State Of(Govt. Nct, Delhi)” was a significant case that was heard in the Supreme Court of India, with the judgment being delivered on July 6, 2023. The case revolves around a series of bomb blasts that were carried out on May 21, 1996, at a bustling central request in Lajpat Nagar, New Delhi. The charge distance professing conspiracy and prosecution of the bomb blast with the intention of destabilizing the country was presented by the execution. The State Government of the National Capital Territory( NCT) of Delhi was the replier in this case, while Mohd. Naushad was the complainant. Multiple indicted persons were involved in the case, with some of them being declared placarded malefactors and escaping trial. The remaining indicted individualities faced trial for colorful offenses under different correctional vittles of the law. The judgment was delivered by the Trial Court on April 8, 2010, performing in persuasions and clearings for the indicted parties. latterly, felonious prayers challenging the Trial Court’s judgment were filed in the Supreme Court by the complainant. The criminal prayers were reviewed by a bench comprising Sanjay Karol, Vikram Nath, and B.R.Gavai in the Supreme Court. The court’s decision is anticipated to give pivotal interpretations and judgments regarding the issues raised in the prayers, slipping light on the legal aspects of the case and potentially impacting the persuasions and clearings handed down by the Trial Court. ***Keywords*** – *Criminal appeal, Bomb blasts, conviction, conspiracy, Destabilizing the Country, Lajpat Nagar New Delhi, Mohd Naushad, Trial Court.* **CASE DETAILS** *Judgement Cause Title***Mohd Naushad vs State Of (Govt. Nct, Delhi)*Case Number***Criminal Appeal No. 1269 of 2013 , 1270-1271 0f 2013, 6447-6451 of 2013*Judgement Date***6 July ,2023*Court***Supreme court of India*Quorum***Sanjay Karol, Vikram Nath, Bhushan Ramkrishna Gavai*Author***Sanjay Karol*Citation***2023INSC605*Legal Provisions Involved***IPC-1860, The Explosive Substances Act-1908, The Indian Evidence Act-1872**INTRODUCTION AND BACKGROUND OF JUDGEMENT** The judgment named” Mohd Naushad vs State Of(Govt. Nct, Delhi) on 6 July, 2023″ was delivered by a bench comprising judges Sanjay Karol, Vikram Nath, andB.R. Gavai in the Supreme Court of India. The judgment, bearing Felonious AppealNo. 1269 of 2013, was pronounced on 6th July 2023. The case pertained to two First Information Reports( FIRs) registered in 1996. The execution presented a challan in connection with FIRNo. 517 of 1996, which contended a conspiracy to commit lemon blasts in order to destabilize the country. As per the charge- distance, 17 individualities, linked as A1 to A17, were indicted of being involved in the conspiracy and carrying out a blast on 21st May 1996 in a crowded request in Lajpat Nagar, New Delhi. Another challan was presented in connection with FIRNo.286/1996, which related to the theft in connection with the same main crime involving four out of the seventeen indicted persons. It’s important to note that out of the seventeen indicted, one existent( A13) had passed down, and seven individualities( A11 to A17) were declared placarded malefactors and hadn’t faced trial. The remaining nine indicted persons were facing trial for colorful offenses under different correctional vittles of the law. The judgment provides a irregular form presenting the names of the indicted and the charges against them. Each indicted faced charges under sections similar as IPC 120B( felonious conspiracy), 124- A( sedition), 302( murder), 307( attempt to murder), and 436( mischief by fire or explosive substances). also, charges were filed under colorful sections of the Explosive Substances Act and Arms Act. The Trial Court, through a common judgment dated 8th April 2010, pronounced the verdict on the indicted facing trial. The judgment redounded in persuasions and clearings, along with the corresponding corrections awarded. The table in the judgment outlines the persuasions, clearings, and the corrections awarded for each indicted. For case, A1( Farooq Ahmed Khan@ Anwar Sadat) was condemned under the Explosive Substances Act and Arms Act and doomed to rigorous imprisonment for five times. A2( Farida Dar@ Bahanji) was condemned under the Explosive Substances Act and awarded imprisonment for the formerly experienced period. A3( Mohd. Naushad) was condemned under colorful sections, including IPC 302( murder), 307( attempt to murder), 436( mischief by fire or explosive substances), and doomed to death. The judgment also mentioned that A4( Mirza Iftqar Hussain@ Saba) was acquitted of the charges. The judgment provides detailed information on the persuasions, clearings, and corrections awarded to each indicted. In conclusion, the judgment in the case of Mohd Naushad vs State Of(Govt. Nct, Delhi) on 6 July, 2023, delivered by the Supreme Court of India, addressed the charges against the indicted individualities involved in a conspiracy to commit lemon blasts. The judgment outlined the persuasions, clearings, and corrections awarded to each indicted grounded on the substantiation and charges presented during the trial. The Trial Court had delivered its judgment on 8th April 2010, and the Supreme Court’s judgment acted as an appellate decision affirming or modifying the persuasions and corrections awarded by the lower court. **FACTS OF THE CASE** The facts of the case on 6th July 2023, between Mohd Naushad and State Of(Govt. Nct, Delhi), were as follows: Two First Information Reports( FIRs) were filed in 1996. FIRNo. 517 of 1996 contended a conspiracy to commit bomb blasts with the intention of destabilizing the country. It was contended that on 21st May 1996, a blast passed in a crowded request in Lajpat Nagar, New Delhi, and 17 individualities, linked as A1 to A17, were indicted of being part of this conspiracy. FIRNo.286/1996 related to theft connected to the same main crime involving four out of the seventeen indicted persons. Among the indicted, one existent( A13) had passed down, and seven individualities( A11 to A17) were declared placarded malefactors who had finessed trial. The remaining nine indicted were facing trial for colorful offenses under different sections of the law, including IPC 120B( felonious conspiracy), 124- A( sedition), 302( murder), 307( attempt to murder), 436( mischief by fire or explosive substances), as well as vittles of the Explosive Substances Act and Arms Act. **LEGAL ISSUES RAISED** 1. Whether The validity of the substantiation presented by the execution? 2. Any procedural irregularities or legal crimes committed during the trial? 3. Whether the indicted individualities were involved in the conspiracy to commit lemon blasts and the posterior blast in Lajpat Nagar, New Delhi? 4. Whether the charges leveled against the indicted individualities under various sections of the law were substantiated by the substantiation presented during the trial? **PETITIONER/ APPELLANT’S ARGUMENTS** i. The counsels for Petitioner/ Appellant submitted that They challenged the validity of the substantiation presented against them, claiming that it was inadequate to prove their involvement in the contended conspiracy and the posterior blast. ii. They argued that there were inconsistencies and disagreement in the execution’s case, casting mistrustfulness on the trustability of the substantiation. iii. The supplicant/ complainant contended that their rights to a fair trial and due process were violated during the proceedings. **RESPONDENT ’S ARGUMENTS** i. The counsels for Respondent submitted that It contended the substantiation presented during the trial established the involvement of the indicted individualities in the conspiracy and the blast. ii. They argued that the execution had produced substantial substantiation, including substantiation testaments, forensic reports, and other factual substantiation, which established the guilt of the indicted persons. iii. The respondent emphasized that the trial court had precisely examined the substantiation and arrived at the correct conclusions. **RELATED LEGAL PROVISIONS** **1. Indian Penal Code( IPC):** Various sections of the IPC were applied in the case to establish the felonious liability of the indicted individualities. - **Section 120B( Felonious Conspiracy) –** The offense of felonious conspiracy was invoked to establish that the indicted persons were involved in a conspiracy to commit felonious acts. - **Section 124- A( Sedition) –** The offense of sedition was charged against the indicted individualities for their alleged involvement in conditioning aimed at overthrowing the government or creating public complaint. - **Section 302( Murder) –** The charge of murder was applied to the indicted individualities for their alleged involvement in causing the death of another person. - **Section 307( Attempt to Murder) –** The offense of attempt to murder was invoked against the indicted persons for their alleged involvement in trying to cause the death of another person. - **Section 411( Dishonestly entering Stolen Property) –** The indicted individualities were charged under this section for their alleged involvement in dishonestly entering stolen property. 1.6 Section 436( Mischief by Fire or Explosive Substance) – The offense of mischief by fire or explosive substance was applied to the indicted individualities for their alleged involvement in causing damage or destruction by using snares. **2. Explosive Substances Act:** The Explosive Substances Act was invoked in the case to deal with offenses related to explosive substances. - **Section 4 ( Possession or Control of Explosive Substances with Intent to Endanger Life or Property) –** The indicted individualities, including Mohd. Naushad, were charged under this section for their alleged involvement in the possession and control of explosive substances with intent to jeopardize life or property. **3. Arms Act :** The Arms Act was invoked in the case to deal with offenses related to the possession, use, and trade of arms. - **Various sections of the Arms Act –** The indicted individualities faced charges under specific sections of the Arms Act for their alleged involvement in the illegal possession of arms. 4\. **Other applicable legal vittles –** Depending on the specific details of the case, other applicable legal vittles may have been invoked by the execution to establish the felonious liability of the indicted individualities. **Identification and operation of fresh legal vittles –** The court, grounded on the substantiation and arguments presented, may have linked and applied fresh legal vittles to determine the guilt or innocence of the indicted individualities. Please note that the specific operation and interpretation of these legal vittles were done by the court during the trial and posterior proceedings. The court examined the substantiation, arguments, and applicable legal vittles to arrive at its findings and judgments. **JUDGEMENT** **RATIO DECIDENDI** The case involved multiple indicted persons who were charged with colorful offenses, including conspiracy and bomb blasts. The execution presented a challan in connection with FIRNo. 517 of 1996, which stated that 17 persons conspired and conducted a blast in Lajpat Nagar, New Delhi. Another challan was presented for theft in connection with FIRNo.286/1996. Out of the 17 indicted, one expired, and seven were declared placarded offenders and didn’t face trial. The remaining nine indicted faced trial for several offenses under different correctional vittles. The charges against each indicted and the offenses they were charged with are handed in a irregular form. The Trial Court, in a common judgment, condemned and acquitted the indicted grounded on the offenses they were charged with. The judgment also awarded the needful discipline. The ratio decidendi of the case can be deduced from the Court’s findings and the persuasions and clearings of the indicted. The Court’s decision to condemn or acquit each indicted is grounded on the substantiation and legal vittles applicable to their separate cases. The rate decidendi establishes the legal principles and logic that led to the Court’s decision in each case. **OBITER DICTA** Obiter dicta refers to the incidental or fresh reflections made by the Court that aren’t directly applicable to the decision in the case. It includes compliances, commentary, or opinions expressed by the Court, which may not have a list effect but can give perceptivity into the Court’s logic. In this case, the obiter dicta may include the Court’s commentary on the nature of the offenses, the impact of the crimes on society, or the need for strict corrections to discourage analogous acts in the future. These reflections, although not forming part of the rate decidendi, can give guidance and perspective on the Court’s overall view of the case and the beginning legal issues. **CONCLUSION & COMMENTS** The judgment of the Supreme Court in the case of Mohd Naushad vs State Of(Govt. Nct, Delhi) on 6 July 2023 was pronounced byHon’bleMr. Justice Sanjay Karol, along withHon’bleMr. JusticeB.R. Gavai andHon’bleMr. Justice Vikram Nath. The judgment was granted leave. The Felonious AppealNo.1269/2013 and Felonious AppealNos. 1270- 1271 of 2013 were dismissed, while the Crl.A. Nos.@ SLP( Crl.)Nos. 6447- 6451 of 2013 were allowed, as per the signed judgment. The operative part of the judgment states that the common judgment dated22.11.2012 rendered by the High Court of Delhi in Death Sentence ReferenceNo. 2 of 2010 and Felonious AppealNos. 948, 949, 950, and 951 of 2010 is set away. The prayers preferred by indicted Mohd. Naushad( Felonious AppealNo.1269/2013) and Javed Ahmed Khan( Felonious AppealNos. 1270- 1271 of 2013) were dismissed. The appeal preferred by the State(Govt. NCT of Delhi),Crl.A.@ SLP( Crl.)Nos. 6447- 6451 of 2013, was allowed. As a result, A3- Mohd. Naushad was condemned under Sections 302, 307, 411, 436, and 120B IPC as well as Section 5 of the Explosive Substances Act. A5- Mirza Nissar Hussain@ Naza and A6- Mohd. Ali Bhatt@ Killey were condemned under Sections 302, 307, 436, 411, and 120B IPC, and A9- Javed Ahmed Khan was condemned under Sections 302, 307, 436, and 120B IPC. Considering the inflexibility of the offense performing in the deaths of innocent persons and the part played by each indicted person, all these indicted persons were doomed to imprisonment for life, without absolution, extending to natural life. The indicted, if on bail, were directed to incontinently surrender before the Court concerned, and their bail bonds stood cancelled. A5- Mirza Nissar Hussain@ Naza and A6- Mohd. Ali Bhatt@ Killey were directed to rendition forthwith. **REFERENCES** **Important Cases Referred** 1. Major Puran v. The State of Punjab was observed. 2. Kottaya v. Emperor was held. 3. M.G. Agarwal v. State of Maharashtra was observed. 4. Sharad Birdhichand Sarda v. State of Maharashtra was held. 5. Hari Charan Kurmi & Jogia Hajam v. State of Bihar was observed. 6. Kehar Singh & Ors. v. State of Delhi Administration was observed. 7. Kashmira Singh v. The State of Madhya Pradesh was held. 8. Pakala Narayana Swami v. Emperor was observed. 9. Jaffar Hussain Dastagir v. State of Maharashtra was held.s 10. Bhuboni Sahu v. R. was observed. 11. Aher Raja Khima v. State of Saurashtra was held. 12. Balbir Singh v. State of Punjab was held. 13. Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra was held. 14. Ram Singh v. Central Bureau of Narcotics was referred. 15. Suresh was referred. **Important Statutes Referred** 1. Sections 120-A, 120-B, 124-A, 302, 307 and 436 r/w Section 120B Indian Penal Code (‘IPC) were referred. 2. Sections 25, 27 and 30 of the Indian Evidence Act were referred. 3. Sections 4 and 5 of the Explosive Substances Act were referred. 4. Section 3 of the Prevention of Damage to Public Property Act were referred. 5. Section 164 Cr.P.C. was referred. 6. Section 10 of the Evidence Act was referred. 7. Section 120-A IPC was referred. **REFERENCES** 1. 2. 3. 4. **Categories:** Case Analysis, Constitutional Law Cases --- ### ["Juris Femme: Reframe the Reality," hosted by the Uttar Pradesh Judicial Reform Council (UPJRC), an organization under the NJRC, WICCI on  21st April 2024, (Online)](https://lawfoyer.in/juris-femme-reframe-the-reality-hosted-by-the-uttar-pradesh-judicial-reform-council-upjrc-an-organization-under-the-njrc-wicci-on-21st-april-2024-online/) **Published:** April 17, 2024 **Author:** LawFoyer **Content:** **UTTAR PRADESH JUDICIAL REFORMS COUNCIL** The Uttar Pradesh Judicial Reforms Council is a non-profit organization working under the aegis of the **National Judicial Reforms Council**, **WICCI**. Established in **March 2023**, our council is committed to identifying and addressing gaps in the judicial system, with a focus on expediting the delivery of justice. We are a women-led organization working with the objective to bring judicial reforms to the existing Indian Judicial System. The idea behind setting up of the council was the upliftment of the deprived sections of the society with the help of legal reforms. We aim to monitor the implementation of laws, advocate for economic equality among all, promotion of fair and just practices and realization of potential of all. **WORK DONE BY THE COUNCIL SINCE ITS INCEPTION** The UPJRC has conducted various webinars, panel discussions and awareness drives since its inception. We work tirelessly to advocate for the needs of the citizens, empower them and create a more equitable world for them. One of our major roles is to ensure that the justice system is accessible to everyone, regardless of income or social status. We conduct events, webinars, and panel discussions to guide those who are facing domestic violence, sexual harassment, discrimination and violation of their rights; and create awareness among them. In addition to these activities, we also promote education and leadership among the citizens of the country. We provide opportunities to develop their skills, gain knowledge, and network with others. We also encourage them to take on leadership roles in the organization and improve their skills. In the past year, we hosted a successful webinar focusing on LLM for law students and the opportunities relating to it. We are also engaged in posting newsletters and inviting open discussions on various contemporary legal issues of importance and thereby strive to constantly implement and achieve the objectives for which the Council was formed. **AMENDMENT DYNAMIC COMPETITION** The UPJRC is organizing a Legislation Amendment Competition titled – ‘Juris Femme: Reframe the Reality’ on the theme of women-related laws. It will be conducted on 21 st April 2024, Sunday in online mode. We are thrilled to extend an invitation to law students, law graduates and legal professionals from across the country to participate in the competition. This event is designed to harness legal acumen and innovative thinking towards the advancement of women-related laws. As we strive for gender equality and empowerment, your participation in this competition can pave the way for a more just and equitable society. **KEY DETAILS** ● TITLE – Juris Femme: Reframe the Reality ● DATE – 21st April 2024, Sunday ● TIME – 12:00 p.m. onwards ● THEME – Women-related laws ● MODE – online **STRUCTURE OF THE COMPETITION** - The participants will be called upon to present their ideas for amendment in legislations. - The amendments shall be pertaining to laws relating to women. - Only individual participation is allowed. - Each participant will be given 5 minutes to present their ideas and answer the questions - put forth by the judges. - Participants may present their ideas through a PowerPoint presentation. - The participants will be marked on two factors: 1. Knowledge of Law 2. Creativity and Innovation in the idea presented. **RULES AND GUIDELINES** - The participants need to adhere to the time allotted. - The participants will be required to be formally dressed. - The participants will have to have their cameras switched on throughout the event. - The participants must ensure proper network bandwidth on their end. - The decision of the judges shall be binding. - The proposed amendments shall not be offensive or derogatory to any community, caste or section of the society. 2. **PERKS OF PARTICIPATION** - Certificates to all participants. - Letter of Appreciation to the Winner **REGISTRATION** Follow this link to register yourself as a participant: [**https://docs.google.com/forms/d/e/1FAIpQLScGWFNqAwIZvJ\_FgQbpv3cu6x2SvMN5EocDIs- kMd9Ki0tywA/viewform?usp=sf\_link**](https://docs.google.com/forms/d/e/1FAIpQLScGWFNqAwIZvJ_FgQbpv3cu6x2SvMN5EocDIs- kMd9Ki0tywA/viewform?usp=sf_link) **CONTACT INFORMATION** For queries and further information, reach out to the following 1. **Kashish Khanna** – +91 97529 74899 2. **Diya Vinekar** – +91 99000 92248 We are also available at [**upjrcwicci@gmail.com**](mailto:upjrcwicci@gmail.com) [Download Poster](https://lawfoyer.in/wp-content/uploads/2024/04/POSTER-FOR-COMPETITION.jpg) **Categories:** Events, Interpretation of Statutes, Legal Subjects, Legislation Amendment Competitions, Practice Quizes --- ### [12th National Quiz Competition on Indian Constitutional Law by LawFoyer: Register by 20th April](https://lawfoyer.in/12th-national-quiz-competition-on-indian-constitutional-law-by-lawfoyer-register-by-20th-april/) **Published:** March 17, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/03/Quiz-Poster-12th-819x1024.jpg) [Download Answer Key](https://lawfoyer.in/wp-content/uploads/2024/04/ANSWER-KEY.pdf) --- [Check Results](https://lawfoyer.in/results-of-12th-national-quiz-competition-on-indian-constitutional-law/) --- [Download Certificate](https://lawfoyer.in/download-certificates-of-12th-national-quiz-competition-on-indian-constitutional-law/) ## Dates - **Date of Quiz:- 21/04/2024** **(5 Pm)** - **Last Date to Apply:-** **20/04/2024, 11:59 pm** - **Result Declaration:-** **25/04/2024** ## Prizes - 1st prize- Rs 1500 + Winner Trophy - 2nd prize- Rs 1000 + 1st Runner Up Trophy - 3rd prize- Rs 500 + 2nd Runner Up Trophy** - 4th-10th Prize- Rs 150 + Certificate of Excellence** - **FREE Practice E-Book with 1000+ MCQs for Practice** - **Free 2 AI Plagiarism Report by Turnitin.** - **Appreciation Certificate for All the Participants** - **Top 10 Rank will get Free access to Certification Course on Indian Evidence Act.** [Click here to know more about course](https://academy.lawfoyer.in/index.php/courses/mastering-the-indian-evidence-act-a-10-day-certification-course/) **Note:-** The Winners Trophy will be dispatched to the designated recipients’ physical address without any additional charges. ![](https://lawfoyer.in/wp-content/uploads/2024/01/WhatsApp-Image-2024-01-22-at-01.00.07_ac7cf468-1024x576.jpg "WhatsApp-Image-2024-01-22-at-01.00.07_ac7cf468 | LawFoyer")## **Registration Fees** - **Rs 99/- Only** ## **Important Guidelines** - **Format of Quiz:** Quiz shall take place online, and a paper will include multiple-choice questions**.** - The participant can take this exam on their laptop or mobile phone. - The platform for the quiz will be google Forms, Microsoft Forms, etc. - In the case of the same marks, time will be considered (a person who submits early will be given preference). - The link will be shared 24 hours prior to the start of the quiz. ## **Rules & Regulations** - **60 MCQ(s).** - The time allotted will be **25** minutes. (This includes time for filling the basic details like Name, email, etc.) - **Every question carries 04 marks & there will be no negative marking.** - The Result will be declared on **25th April 2024**([www.lawfoyer.in](https://lawfoyer.in/)). --- ## Registration Form --- **Categories:** Events, Quiz --- ### [Meaning, Definition & Explanation of Res Sub Judice](https://lawfoyer.in/meaning-definition-explanation-of-res-sub-judice/) **Published:** April 23, 2024 **Author:** LawFoyer **Content:** **Res sub judice** is a Latin term that translates to “a matter under judgment.” This doctrine is codified in Section 10 of the Civil Procedure Code, 1908, which governs the stay of suits in Indian law. Section 10 prevents the courts from simultaneously processing two parallel litigations concerning the same issue, subject matter, and relief sought. The principle underpinning this provision is to avoid multiple and potentially conflicting judgments on the same matter, thereby conserving judicial resources and maintaining consistency in legal proceedings. ### Legal Framework and Applicability of Section 10 The application of Section 10 is contingent upon several conditions being satisfied: 1. **Existence of Two Suits:** There must be a previously instituted suit and a subsequently instituted one. 2. **Common Matters in Issue:** The matter contested in the subsequent suit must be directly and substantially in issue in the prior suit. 3. **Commonality of Parties:** The parties or their representatives involved must be the same in both suits. 4. **Jurisdiction and Pendency:** The previously instituted suit must be pending in a court with appropriate jurisdiction, whether in India or a foreign jurisdiction established or continued by the Central Government. 5. **Same Relief Sought:** The court where the previous suit is pending must have jurisdiction to grant the relief claimed in the subsequent suit. 6. **Litigating Under Same Title:** The parties must be litigating under the same title in both suits. Upon these conditions being met, the court is mandated to stay the proceedings of the subsequent suit. ### Interpretation and Judicial Decisions Significant case law elucidates the application and interpretation of Section 10: - **National Institute of Mental Health and Neuro Sciences v. C Parameshwara (2005 SC):** Highlighted the policy to prevent conflicting verdicts and conserve judicial resources. - **Radha Devi v. Deep Narayan (2003 SC):** Stated that if the decision in the previously instituted suit would operate as res judicata in the subsequent suit, then the latter must be stayed. - **Aspi Jal and another v. Khushroo Rustom Dadyburjor (2013 SC):** Emphasized that Section 10 applies when the entire subject matter in controversy is the same across both suits. ### Exceptions and Exclusions Section 10 specifically addresses the trial of suits but does not extend to appeals or applications. The provision is designed not to bar the institution of a suit but to postpone its trial. Therefore, while a subsequent suit cannot be dismissed outright, it must be stayed pending the resolution of the earlier suit. This rule is applicable even if the earlier suit is vexatious or seemingly infringing upon contractual terms, as per Manohar Lal v. Seth Hira Lal (AIR 1962 SC). ### Waiver and Inherent Powers Parties involved in litigation can waive the applicability of Section 10 by consenting for the court to proceed with the subsequent suit. This waiver must be explicit, and post-waiver, parties cannot challenge the validity of the proceedings based on Section 10. Moreover, courts retain inherent powers under Section 151 of the Code to stay proceedings to meet the ends of justice, even if the conditions of Section 10 do not strictly apply, as demonstrated in cases like P.V. Shetty v. B.S. Giridhar (1982 SC). ### Practical Implications and Critical Analysis Section 10 serves as a crucial procedural tool to streamline litigation, prevent judicial contradiction, and reduce unnecessary litigation, aligning with the broader objectives of efficient judicial administration. However, the application of this section requires precise alignment with its stringent conditions, which calls for careful judicial consideration to balance the principles of justice, efficiency, and legal consistency. **Categories:** Articles, Civil Procedure Law --- ### [Rule against Perpetuity under Section 14 of Transfer of Property Act](https://lawfoyer.in/rule-against-perpetuity-under-section-14-of-transfer-of-property-act/) **Published:** April 14, 2024 **Author:** LawFoyer **Content:** **Author: Ritesh Singh Shekhawat, Mahatma Jyoti Rao Phoole University, Jaipur, Rajasthan** #### Emergence and Objective of the Rule Against Perpetuities The rule against perpetuities, codified under Section 14 of the Transfer of Property Act, 1882, addresses the duration within which property interests must vest. The rule is aimed at preventing the indefinite tying up of property and ensuring that it does not remain inalienable for extended periods. Historically, the rule emerged from the Duke of Norfolk’s case (1682), where attempts were made to control property disposition beyond the settlor’s lifetime, influencing several generations. The legal principle dictates that no interest in property should subsist beyond 21 years after a life in being at the time of the property transfer, plus the period of gestation, where applicable. #### Legal Mechanisms and Scope The primary legal mechanism under this rule is the prevention of future interests in property from vesting beyond an allowed timeframe. Specifically, this applies to transfers that could extend beyond the lifetime of living persons at the transfer time, plus the minority of any person alive at the period’s expiration. The rule’s scope extends to both movable and immovable property but excludes personal contracts that do not create property interests, thereby avoiding undue restrictions on property utility and exchange. #### Key Legal Cases and Interpretations Several cases have shaped the interpretation and application of the rule against perpetuities in India. In “R Kempraj v Burton Son and Co. (AIR 1970 SC 1872),” the Supreme Court addressed the application scope regarding property interests, emphasizing the rule’s objective to facilitate property alienation within reasonable timeframes. Furthermore, “Jagar Nath v Cheddi Dhobi (AIR 1973 All 307)” clarified that transactions not involving property transfer are not subjected to these perpetuity restrictions. #### Comparisons with English Law Differences between Indian and English law on perpetuities primarily lie in the treatment of the gestation period and the fixed period extensions beyond a life in being. Unlike English law, which allows a fixed additional 21-year period irrespective of minority, Indian law restricts extensions strictly to the minority of the beneficiaries concerned without additional time. The gestation period, if relevant, is added at the beginning of the period under English law but is not extended at the end under Indian law, reflecting a more stringent approach to ensuring property vesting within predictable periods. #### Modern Applications and Legal Reasoning The modern application of the rule against perpetuities continues to influence property transfers, where conditions that might indefinitely delay interest vesting are rendered void. This is illustrated in scenarios involving complex family trusts or where property interests are contingent upon long-term conditions being fulfilled, which could potentially exceed the stipulated vesting period. In legal reasoning, the rule is employed to assess whether property transfers align with statutory limitations, ensuring no undue delay affects the property’s alienation or utilisation rights. Courts evaluate whether potential future events, as stipulated in property agreements, could lead to vesting delays beyond the permissible limit, thereby preserving the underlying legal intent to prevent property from being unalienable indefinitely. #### Conclusion The rule against perpetuities remains a fundamental legal principle in Indian property law, ensuring that property remains within the commerce and control of living persons within a reasonable timeframe. It reflects a balance between respecting the intentions of property owners and preventing the stagnation of property utility and ownership, thus facilitating more dynamic and equitable property relations in society. The rule’s consistent evolution through case law and statutory amendments highlights its critical role in adapting to changing social and economic landscapes, ultimately guiding legal practitioners and property owners in structuring transfers that comply with legal standards and societal needs. #### References 1. “Transfer of Property Act, 1882, Section 14.” 2. S N Shukla, “Transfer of Property Act” (27th Edn 2009). 3. R Kempraj v Burton Son and Co. AIR 1970 SC 1872. 4. Jagar Nath v Cheddi Dhobi AIR 1973 All 307. 5. Mulla, “Transfer of Property Act” (10th Edn 2008). 6. Black’s Law Dictionary, p. 349 (5th ed. 1979). **Categories:** Articles, Property Law --- ### [Paschimanchal Vidhyut Vitran Nigam Ltd . V . Raman Ispat Private Limited & Ors](https://lawfoyer.in/paschimanchal-vidhyut-vitran-nigam-ltd-v-raman-ispat-private-limited-ors/) **Published:** April 14, 2024 **Author:** LawFoyer **Content:** **Author: Ritesh Singh Shekhawat** ## A) ABSTRACT / HEADNOTE In the case of Paschimanchal Vidyut Vitran Nigam Ltd. vs Raman Ispat Private Limited, the Supreme Court of India adjudicated on the applicability of the Insolvency and Bankruptcy Code (IBC), 2016, vis-à-vis the Electricity Act, 2003, specifically addressing the issue of priority of claims in the liquidation process of a corporate debtor. This judgment is significant as it clarifies the interplay between sector-specific statutes like the Electricity Act and a general statute like the IBC concerning financial dues and the recovery process. The court’s decision highlights the nuanced approach required in the adjudication of conflicts between special and general laws in the context of insolvency proceedings. **Keywords**: Insolvency and Bankruptcy Code, Electricity Act, Priority of Claims, Corporate Debtor, Liquidation, Secured Creditors, Operational Creditors. ## B) CASE DETAILS i) **Judgement Cause Title**: Paschimanchal Vidyut Vitran Nigam Ltd. vs Raman Ispat Private Limited ii) **Case Number**: Civil Appeal Nos. 7976 of 2019 iii) **Judgement Date**: 17 July 2023 iv) **Court**: Supreme Court of India v) **Quorum**: Dipankar Datta, S. Ravindra Bhat vi) **Author**: S. Ravindra Bhat vii) **Citation**: 2023 INSC 625 viii) **Legal Provisions Involved**: Insolvency and Bankruptcy Code, 2016; Electricity Act, 2003; Uttar Pradesh Electricity Supply Code, 2005. ## C) INTRODUCTION AND BACKGROUND OF JUDGEMENT The judgment arises from a dispute regarding the priority of claims under the IBC in the context of dues claimed by Paschimanchal Vidyut Vitran Nigam Ltd. (PVVNL), a state-run electricity distribution company, against Raman Ispat Private Limited, which was under liquidation. The primary legal question involved was whether the provisions of the IBC would override the rights and remedies provided under the Electricity Act, 2003, and related regulations, specifically regarding the recovery of electricity dues. ## D) FACTS OF THE CASE PVVNL had supplied electricity to Raman Ispat under an agreement stipulating that unpaid dues would constitute a charge on the assets of Raman Ispat. Due to non-payment, PVVNL initiated measures to recover the dues by attaching the assets of Raman Ispat. However, during the insolvency proceedings of Raman Ispat, the NCLT and subsequently the NCLAT ordered the release of the attached assets to facilitate liquidation, prompting PVVNL to appeal to the Supreme Court. ## E) LEGAL ISSUES RAISED Whether the provisions of the Electricity Act, which allow for the recovery of dues as a charge on the assets of the debtor, have an overriding effect over the IBC. ## F) PETITIONER/ APPELLANT’S ARGUMENTS The counsels for Petitioner / Appellant submitted that the specific provisions of the Electricity Act should prevail over the general provisions of the IBC, ensuring the priority of electricity dues over other claims in the liquidation assets. ## G) RESPONDENT’S ARGUMENTS The counsels for Respondent submitted that the IBC establishes a comprehensive framework for resolving insolvency which includes a statutory mechanism for the distribution of assets, and that this framework should take precedence over the Electricity Act in the context of insolvency proceedings. ## H) JUDGEMENT a) **RATIO DECIDENDI** The Supreme Court held that while the Electricity Act provides a mechanism for the recovery of dues, it does not specifically create a priority over claims made under the IBC. Thus, the IBC’s framework for the distribution of assets during liquidation proceedings, including the priority of claims, applies notwithstanding the provisions of the Electricity Act. b) **OBITER DICTA** (IF ANY) The court observed that the harmonious interpretation of the IBC with other laws is essential for the effective resolution of insolvencies and suggested that amendments to clarify these interactions would be beneficial. ## I) CONCLUSION & COMMENTS The judgment underscores the supremacy of the IBC in insolvency-related matters and affirms the structured approach to the resolution of financial distress within corporate entities. It ensures that all creditors are treated equitably according to the statutory scheme of distribution, emphasizing the balance between sector-specific statutory rights and the objectives of the IBC. ## J) REFERENCES a) **Important Cases Referred**: Board of Trustees, Port of Mumbai vs. Indian Oil Corporation b) **Important Statutes Referred**: Insolvency and Bankruptcy Code, 2016 **Categories:** Case Analysis, Corporate Law Cases --- ### [REGISTRATION AND INCORPORATION OF COMPANIES](https://lawfoyer.in/registration-and-incorporation-of-companies/) **Published:** April 14, 2024 **Author:** LawFoyer **Content:** **Author**: **Sangamithirai. V**, **Chettinad School of Law** **INTRODUCTION** The Article “Registration and Incorporation of Companies” provides an in-depth discussion of the steps, prerequisites, and importance of establishing and incorporating a business. It functions as a comprehensive resource that covers a range of corporation formation topics, such as the makeup of shareholders, directors, and members for various company forms. In addition to the discussion of the formation procedure, the document offers comprehensive insights into the significance of choosing a suitable and compatible company name, emphasizing the legal consequences and limitations associated with name selections. It also highlights how important it is to stay in compliance with national rules and keep clear of issues involving registered trademarks.The article also discusses the process of drafting important documents, including the Articles of Association (AoA) and Memorandum of Association (MoA).In addition, the article provides a detailed flowchart that describes every step of the registration process, including all of the forms, declarations, and paperwork that need to be turned in to the registrar. It also discusses the responsibilities that follow registration, such as the necessity of keeping lines of communication open and adhering to legal regulations. and the case laws has been disscussed all these infromation provided with respect to companies act 2013. **Keywords:** Registration, company, Incorporation, MOA, AOA **Formation of company:** To form a company there must be adequate members and the limit should attain : In case of one person company maximum one person. In case of a Private company sec(68) of companies act 2013, there must be minimum 2 and maximum 200 members, minimum of two directors and two shareholders. The minimum paid up capital is 1 lakh. In case of a Public company sec 2(71) of comoanies act 2013, there must be minimum 7 and maximum it si unlimited, minimum of three directors and seven subscribers for the company. The minimum paid up Capital is 5 lakh. **Naming of the company:** The company’s name must be chosen by the promoters. According to Section 4 of the Companies Act, a business’s name cannot be the same as or very similar to the name of an already-existing company. Furthermore, the name must not look unpleasant to the national government, nor should using the name violate any national laws. For instance, the company’s name shouldn’t conflict with a registered trademark. An organization gains the exclusive right to use a name once it registers it. After then, no other business may register under the same or a similar name. The company’s name is regarded as a vital component of its public image. A corporation may only alter its name with the Central Government’s prior consent, according to Section 13 of the Companies Act. **Documents to be prepared:** The MoA and AoA are the important documents to be prepared at the time of registration. MoA memorandum of associations: A company’s constitution is sometimes referred to as the Memorandum of Association (MoA). It establishes the range of what a business can do. The purpose of the company’s establishment, the authorized share capital that the business can raise, the level of liability that the members pay, and other details like the company name and registered office location are all stated in the Memorandum of Association. A public company’s memorandum of association (MoA) must be signed by a minimum of seven individuals, but a private company’s must be signed by at least two. The people who sign the Memorandum of Association (MoA) are referred to as subscribers, and each subscriber is required to own a minimum of one share in the company’s capital. AoA articles of associations: A company’s regulations, or articles of association (AoA), specify how it will be run and managed. They stand for the promoters’ morals and principles. The AoA must be signed by each subscriber to the MoA. It is important to remember that the MoA is the document that overrides the AoA. Should there be any provisions inconsistencies between the AoA and MoA, the MoA would take priority. The purpose for which the company is founded is stated in the MoA, and the means by which the purpose is to be fulfilled is included in the AoA. **Procedure for Registration of Company: Section 7 of Companies Act,2013[\[1\]](#_ftn1) defines the technique to be followed for incorporating a company. It explains that (1)While incorporation of company it must be filed to the registrar where the control falls as where the company is positioned. To incorporate a company the upcoming documents are needed to be proposed by the company. a)Firstly the memorandum and articles of the association must be engaged by the persons who are the subscribers to the memorandum or article . b)A pronouncement must be given by the an chartered accountant, by an advocate, cost accountant in a prearranged form given by the person such a manager, director of the company. c)Each of the subscribers to the memorandum must give affirmation and the persons who are named as first directors in the article must state that they are not convicted by any offence which is interconnected to the materialization of the company, upgrade of the company or handling the company. And the persons must not be guilty of any offence or there must not be any kind of breach of duty happened while incorporating a company. And also the company must certify that all the documents proposed to registrar must be fair and given by them in knowledge d)there must be address for communication till the new company is being amalgamated. e)All the particulars of the person who is incorporating the company must be given such as surname,residential address, nationality must be mentioned. Also the person who contributed to the memorandum must also give their proof of identity. f)Also the persons who are named as first directors must give their nationality,surname,residential address and also other particulars such as proof of identity, Director identification number must be succumbed. g)The interested persons to the article of the company must submit their sufferance to act as a director in the company. **CASELAWS:** **Moosha v Ibrahim [**\[2\]**](#_ftn2)** A company was being incorporated and later it was found out that the company has contravened some of the rules and regulations while incorporating the company as the Memorandum of association was endorsed by the guardian of five members. Finally the court held that the incorporation certificate for the company is cogent. **Steps for incorporation of companies** 1. To discover a name for the company: A company can be identified by the name given to the registrar. The memorandum of the company consist the name of the company. 2. The memorandum of Associations and Articles of Association must be prepared The memorandum reside the objectives of the company, the field of the company. The memorandum consists of different clauses. - Name clause - Registered office clause - Object clause - Liability clause - Capital clause The article is involve of the rights and duties of the members and it is binding on all the members of company. 3)The memorandum of articles must be printed and be stamped endorsed by the members. The articles must be endorsed individually in front of witnesses. 4)For the incorporation of the company the promoter will take on the power of attorney as the person who has take on as power of attorney will be given the authority to act on behalf of the company. Also the person prearranged as power of attorney have the authority to make changes in the memorandum. 5)the declaration must be made by the members as per the essentials of Company act. 6)During the course of incorporation of the companies the recommended amount must be paid to the registrar. 8)After all the process and commended are fulfilled the company will receive a certificate for the known as “incorporation certificate” **Post Registration:** - Based on the type of company or business undertaken the licence for the company will be postulated. - The company incorporated must have a positioned office in India. It have access to all kinds of transactions. - The board of directors and shareholders meetings must be conducted as an when needed. - The companies must affirm records of accounts and ts Financial status and it must comply with the rules and regulations as prescribed by the act. - The newly incorporated company must register for GST registration when the business is related to goods and services supply. - The company may protect its copyrights,patents,trademarks,trade secrets by registering for Intellectual Property protection. **Principle of Registration of company:** The registration and incorporation of company is set up , the registered company has - Separate legal entity[\[3\]](#_ftn3) - Transferable of shares - Limited liability - Suing and flexibilty - When a company is being registered it will get apparent legal identity. And the believability of the companies gets increased it attracts more investors, clients and even customers. - The company gets limited liability fortification when it is being registered. As it considered as a separate legal entity the company’s liability is not on shareholders and on directors. This is profited in a way that the personal asset cannot be taken when the company becomes bankrupt. - When a company is registered it has better access to funding resources such as angel investment ,banking, venture capital. - A company which is enumerated has a perpetual succession which means that the company is not dependent on the founders or representatives of the company. If in case the company existing memberships change or new membership add on to the company the management of the company is unremitting. - For a registered company the shares of the company is easily exchangeable is laidback for the existing members to exist and also magnetizes new potential investors. - For the enhancement of the economic growth the government provides tax incentives for the registered company. **Disadvantages of registration of company:** - There is lot of legal complex techniques to be followed and there is high expense while incorporating a company. This may disuade the persons from incorporating a company. - As the company is a legal entity it will not be apparent and it will not disclose any kind of information to the low-members of the company. There are always circumscribed to give certain access. - The small company shareholders have no authority over the company like making decisions for the company. There is split up of control from ownership. - If it is a enlarges incorporated company they have a burden of contributing to the society and they must follow the rules and regulations stringently. - There will be advanced tax rate imposed when it is a huge incorporated company. In **Gilford Motor Co. v. Horne**[\[4\]](#_ftn4), the court held that a firm could not take encounter where its primary shareholder was liege to a covenant of restraint and had formed a company solely to get around the restriction. **Difference between Registration and Incorporation of companies:** Registration does not conclude in having a separate legal entity. The furthest step of registration is Incorporation of companies. For incorporation of company the company will be known as a separate legal entity and it contains its own assets and own debts in the name of the company. **Non compliance to Statutory authority** - The penalties enforced for the companies which have been incorporated various on its jurisdiction as to where the company is registered. - The statutory authority will entail monetary penalties when there is any breach transpired while incorporating the company. - If the company is involved in repeated violations. Or noncomplying with the rules and regulations inflict legal action can be taken against the companies or the members of the company can be held accountable for the breach done. - In a company if a director has done any kind of breach of duty it may lead to the ineligability of the directors from the company. - In some cases due to the non-compliance of authority the court may order the company to windup . - By not obeying the rules and regulations the company may subject to loss of Limited liability protection ie. When the company is being dissolved or insolvent the debts can be paid off from the owners of the company. - Due to continuous breach of duty the company may loss its character with the clients, investors,stakeholders etc. **Pre incorporation contract:** A firm is not subject to lawsuits based on per-incorporation agreements when it first forms. In English and Colonial Produce Co., Re., a lawyer[\[5\]](#_ftn5) produced the company’s documents and expended time and money registering it at the promoters’ request. However, the business was not found to be obligated to cover those costs and services. Agents may be held personally liable: The agents hired by a proposed business may be held personally liable. In **Kelner v. Baxter**[\[6\]](#_ftn6), the plaintiff’s wine was bought by the organizers of a proposed hotel business. The corporation was founded, however it entered liquidation before making a payment. The plaintiff held them personally accountable. **CONCLUSION & COMMENTS:** The process of registering and incorporating a company is essential to creating a legal entity with rights, responsibilities, and credibility. Following the rules outlined in the Companies Act of 2013 guarantees that businesses function within a framework that encourages responsibility, transparency, and investor trust. Companies can establish a strong basis for their operations by carrying out the required processes, such as establishing a company with the right number of members, choosing a distinctive and legal name, and drafting the key documents like the Memorandum of Association (MoA) and Articles of Association (AoA). A few benefits of registration and incorporation include: distinct legal company status; limited liability protection for shareholders; financing source access; perpetual succession; and improved share marketability. It is essential to remember that the registration and incorporation processes can be difficult and expensive. Nevertheless, these difficulties are outweighed by the long-term advantages and legal safeguards provided to registered companies. In summary, registering and incorporating a business gives it legal recognition, credibility, development potential, and the ability to draw in clients and investors. Through adherence to legislative mandates and meeting post-registration responsibilities, businesses can function within a regulated environment that promotes stability, accessibility, and sustainable business methods. --- [\[1\]](#_ftnref1)requirements of incorporation of company [\[2\]](#_ftnref2) 26 June 1912 [\[3\]](#_ftnref3) salomon v.salomon & Co. Ltd. (1897)Established the principle of separate legal entity for a properly incorporated company. [\[4\]](#_ftnref4) Gilford Motor Co. v. Horne (1993) ch 935 [\[5\]](#_ftnref5) (1906) 2 Ch.435 [\[6\]](#_ftnref6) \[1866\] LR 2 CP 174 **Categories:** Articles, Company Law --- ### [Charan Singh @Charanjith Singh V State of Uttarakhand](https://lawfoyer.in/charan-singh-charanjith-singh-v-state-of-uttarakhand/) **Published:** April 8, 2024 **Author:** LawFoyer **Content:** **Author: SANGAMITHIRAI.V** **(Chettinad School of Law)** **ABSTRACT / HEADNOTE:** In the current case the appellant is the husband of the deceased woman. He has been convicted of rigorous punishment below section 304 B for 10 years below 498A for 2 years and section201 for 2 years below the Indian Penal Code and the appellant is challenging his conviction by an appeal. The husband, mother-in-law, and brother-in-law have allegedly been suspected of killing the deceased for not fulfilling the demand for a motorcycle which was asked on account of dowry. The appellant and two other accused were declared guilty by the trial court however the mother-in-law and brother-in-law were realized not guilt-ridden by the High Court which maintained the appellant’s conviction. But below 304B of IPC the high court lowered the appellant’s verdict from 10 years to 7 years. The respondents contended that there was inadequate proof to prove the appellants’ culpability below sections 304B and 498A of IPC. ***Keywords*:** *Dowry death, Brutality by husband and relatives**,** Indian Penal Code**,** Indian Evidence Act**,** Section113B of IEA* **CASE DETAILS** *Judgement Cause Title***Charan Singh @Charanjith Singh V State of Uttarakhand*Case Number***Criminal Appeal no 447 of 2012*Judgement Date***20th April 2023*Court***Supreme Court of India*Quorum***Abhay S.Oka, Rajesh Bindal *Author***Rajesh Bindal*Legal Provisions Involved***Section 304B ,498A,201 of IPC Section 113A of IEA**INTRODUCTION** In India, there are many cases relating to dowry death. If a woman dies within 7 years of the commencement of marriage there can be sufficient cause that the death happened due to dowry death. The appellant, Charan Singh also as known as Charanjith Singh has filed a petition stimulating his verdict and sentence below sections 304B,498A and 201 of the Indian Penal Code. The dispute case of Criminal Appeal no.447 of 2012. The appellant, the deceased spouse challenged the trial court verdict and sentenced him to ten years of rigorous labour below section 304B, two years below section 498A and 2 years below section 201 of IPC. The marriage of the appellants and the Chhilo Kaur which happened in 1993 is at the centre of this case. There have been claims that the appellants and his family members tormented the deceased and made demands for the dowry. The trial court found the appellant and the other two accused parties guilty after the trial. However, the mother-in-law and the brother-in-law’s conviction and punishment were quashed upon appeal to the Supreme Court, culminating in their acquittal. On the other hand, below section 304B of IPC, the High Court sustained the appellants’ conviction but decreased his sentence from ten years to seven years. Below sections 304B or 498A IPC, the defence argues that the evidence used in the trial did not support the appellants’ guilt. They assert that there is insufficient proof of brutality or harassment toward the deceased related to dowry demands soon before the death. **Essentials of Dowry Death[**\[1\]**](#_ftn1)** - The woman must be imperilled to brutality or agitation by her husband or relatives. - Within 7 years of marriage, the death must occur. - The demise of the woman must be by blisters or by any bodily injury otherwise other than normal circumstances. - Such brutality must be met soon before the death of the woman. **Section 498A of IPC[**\[2\]**](#_ftn2)–**Brutality by husband or relatives The woman must be exposed to any brutality by their husband or by her relatives and may be punished for 3 years and also liable for a fine. **BACKGROUND OF THE JUDGEMENT:** The appellant in this case is Charan Singh who is also known as Charanjith Singh. The complaint is the husband of the dead Chilo Kaur. The death of Chilo Kaur took place in the State of Uttarakhand. Chilo Kaur got married to Charan Singh in the year 1993. After two months her in-laws started to demand her motorcycle as a dowry and Chilo Kaur when she visited her parental family informed her father about the dowry which she asked for. Her father pacified her and sent her back to her matrimonial home and promised that he would buy a motorcycle when he became financially capable. This demand was continued for a long time and later in addition, the appellant family also started to demand land from the Chilo Kaur family as dowry. On June 23 a person from that village Jagir Singh informed Chilo Kaur’s father that she had been murdered by her in-laws. They have immolated the body without informing the plaintiff. When the parents of the deceased visited the village, they came to know that their daughter had been strangled to death by her husband Charan Singh, mother-in-law Santo Kaur, and Brother-in-law Gurmeet Singh. Chilo Kaur’s father complained to the police based on this information and a probe was carried out. Below the “Section 304B (dowry death),498A (brutality to the married woman) and 201 (causing disappearance of evidence) of the Indian Penal Code(IPC)” ” the trial court found Charan Singh, Gurmeet Singh and Santo Kaur guilty parties filed an appeal with the Uttarakhand High Court, which maintained Charan Singh’s conviction but cleared Gurmeet Singh and Santo Kaur from conviction. The High Court did, however, shorten Singh’s sentence from 10 years to 7 years under section 304B of IPC. This appeal resulted from a challenge made to the High Court’s decision to reduce Charan Singh’s sentence before the Supreme Court of India. **FACTS OF THE CASE:** The plaintiff and the dead Chhilo Kaur were married in the year 1993. In the marriage, the dead of the father had given enough dowry to the appellant. But after two months the appellant started asking for a motor vehicle, and the deceased father promised that he would buy him when he was able to buy new a one. The deceased has been repeatedly sent to her parental home demanding dowry. Later the family of the appellant also started demanding land. The previous day on 23/06/1995 in the village of Bhojpuri Dam Jagir told the plaintiff that his daughter had been murdered by her in-laws. After receiving this knowledge the complaint along with his wife came to the Bhojpuri Dam village on 24.06.1995 and were extremely shocked to know that on 22.06.1995 at morning 8.00 am the plaintiff’s daughter was beaten up and garrotted to death by her husband Charan Singh, mother-in-law Santo Kaur, brother-in-law Gurmeet Singh. The marriage was only two years old, and the deceased was reduced to ashes without even informing her father. Her maternal grandma and two of her uncles were present at the time of cremation had seen wound marks and her teeth were wrecked. She was killed due to the non-satisfaction of the demand for the dowry of the motor vehicle and the land. The matter was investigated by the police and a charge sheet was filed against Charan Singh, Santo Kaur, and Gurmeet Singh. **LEGAL ISSUES RAISED** 1. Whether the appellant’s conviction and sentence below 304 B,498A is legally sustained? 2. Whether the evidence submitted by the plaintiff establishes brutality and harassment towards the deceased for the demand of dowry immediately before death. **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioner / Appellant succumbed that the verdict and sentence cannot be legally persistent either below section 304B or 498A of IPC as none of the witnesses has Stated that they were any harassment or brutality or demand for dowry was made soon before the death. Also, even the parents of the deceased, maternal grandmother and two maternal uncles Stated that she was subjected to brutality. The maternal grandmother and two maternal uncles were active at a distance near the village of the deceased, and they were also present at the time of cremation, and they did not raise any complaint to the police. It is further Stated that indication was also given to the father of the deceased who was living 290 km from the village. Further argued that Jagir Singh who was named by the plaintiff in the Fir was not produced by the hearing in evidence. He was the person who resided in the village of the deceased and informed about the death to the father of the deceased. **RESPONDENT’S ARGUMENTS** The counsels for Respondent succumbed that it is a case in which a young woman was assassinated by her in-laws in the yearning for dowry. The death of the woman was very unnatural, and the marriage was only two years old. The cremation happened without even informing the father of the deceased, The maternal grandmother and the two of her maternal uncles were present at the time of immolation and saw certain injury marks on the woman and also her tooth was broken. The maternal grandmother and two of her uncles did not complain to the police as they were being threatened. Also, there is a sufficient material record in the form of Statements provided by the witnesses that the family was demanding for dowry very repeatedly. There is sufficient indulgence by the High Court as they reduced the sentence of the appellant from 10 years to 7 years as provided below in “section 304B of IPC”. **RELATED LEGAL PROVISIONS:** **“304B of Indian Penal Code 1860**[\[3\]](#_ftn3). Dowry death -When a woman’s death is initiated by bodily injury or burns or occurs due to circumstances other than normal and within 7 years of her marriage it must be shown that it must have happened soon before her death and the woman must be subjected to brutality or harassment by her husband or any relative of her husband or in connection with any kind of demand for dowry. Such kind of death is known as dowry death and the husband shall be deemed to have the person who caused the death. **Explanation:** Dowry death will have the same meaning in section 2 of the Dowry Prohibition Act 1961, and whoever commits the dowry death shall be punished with imprisonment for not less than 7 years and the term may extend to life imprisonment.” “**489A of Indian Penal Code 1860[**\[4\]**](#_ftn4). Husband or relative of the husband of a woman subjecting her to brutality:** When the husband or relatives of the husband subjects a woman to brutality the person can be punished for a term that may extend to 3 years and they can also be liable to fine. Explanation-the word brutality means. a) any kind of wilful conduct that is likely to drive a woman to suicide or cause any kind of grave injury or danger to life health or limb(can be mental or physical) b) harassment of the woman to coerce her or any person relating to or valuable security or account of failure by her or any person related to meet such demand.” “**Section 113B of Indian Evidence Act 1872[**\[5\]**](#_ftn5).Presumption as to dowry death** there is a question arising whether a person has committed dowry death and it is very much evident that soon before the demise such women have been subjected to brutality or harassment or in connection with any demand of dowry the court shall presume that such person had caused dowry death. Explanation-For the purpose of this section “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)” **JUDGEMENT** **a. RATIO DECIDENDI:** The petitioner contested the judgment and sentencing by Sections 304B, 498A, and 201 IPC. The defence contended that there was insufficient evidence to establish a presumption of dowry death because the dead had not been imperilled to any abuse or aggravation in the moments leading up to her death. Additionally, the defence claimed that the prosecution had failed to present a relevant witness who could have offered vital evidence. The prosecution argued that there was enough evidence in the file to back up the appellant’s frequent demands for dowry and acts of brutality. After hearing the arguments, the Supreme Court reviewed the available data. The Court found that there was insufficient evidence to support a conviction below Section 304B or 498A IPC. The Court noted that none of the witnesses had mentioned that the deceased had been subjected to abuse or harassment, or that she had been asked for a dowry right before she passed away. The deceased’s uncles and maternal grandmother, who were present during the cremation, did not object or file a complaint, the court further Stated. The prosecution was judged to have failed to meet the requirements essential to cultivate an impertinence of dowry death, according to the court. Below sections 304B and 498A of the IPC, the Court quashed the appellant’s conviction and punishment. The appellant was cleared of all charges after the High Court’s decision was overruled. **CONCLUSION & COMMENTS** Charan Singh and Chilo Kaur were spouses. Chilo Kaur has been subjected to brutality in her in-law’s home for dowry by her husband and in-laws. Suddenly one day Chilo Kaur passed away. So the parents of Chilo Kaur filed a complaint against Charan Singh below section 304B,498A,201 of IPC. The prosecution side argued that the woman passed away only because of the dowry torture. The trial court, the defence side argued that there were no proper witnesses to prove the brutality and gave sentences of “two years below section 498A,2 years below section 201 and 10 years of hard imprisonment below section 304B of IPC”[\[6\]](#_ftn6).But on the appeal on High Court maintained Charan Singh’s sentence from 10 years to 7 years below section 304B. On the challenging of this judgement, they went for an appeal to the Supreme Court as there were no sufficient reasons to make Charan Singh liable below sections 304B,498A and 201 of IPC. Thus Supreme Court set aside the High Court’s verdict. **REFERENCES** **Important Cases Referred** **Sindo vs State of Punjab (2011)11SC 517[**\[7\]**](#_ftn7):** The court while looking into the scope of the purport of Section 304B if IPC and Section 113B of the Indian Evidence Act presumption is contingent on the fact and the ingredients of Section 304B are satisfied to this current case. **Ranjeev Kumar vs State of Haryana (2013) 16 SC 640[**\[8\]**](#_ftn8):** The court overpowering that one of the main indispensable components of dowry death is that the woman must be subjected to brutality soon before she dies in connection with the demand of dowry. And also it must be proved by the prosecution beyond reasonable doubt. In the current case the deceased was subject to brutality as severe injuries were seen before her death. **Prema.S.Rao vs Yadla Srinivasa[**\[9\]**](#_ftn9):** The court in this case also witnessed that the foremost component is that brutality or aggravation must occur soon before demise. **Baijnath v. State of M. P[**\[10\]**](#_ftn10):** The interpretation of 304B and 498A of IPC was considered in this case. **Ingredients:** - There must be bodily marks or any other cause other than usual conditions. - It must be within 7 years from marriage. - Brutality occurred soon before the demise. **Section 498A:** Below this section, brutality means wilful conduct that could drive a woman to suicide And also includes harassment towards the woman for meeting such demand. **Important Statutes Referred** “Indian Penal Code,1860” “Indian Evidence Act,1872” --- [\[1\]](#_ftnref1) Essentials of Dowry Death section 304B of IPC [\[2\]](#_ftnref2) Section 498A of IPC [\[3\]](#_ftnref3) 304B of Indian Penal Code 1860 [\[4\]](#_ftnref4) 489A of Indian Penal Code 1860 [\[5\]](#_ftnref5) Section 113B of Indian Evidence Act 1872 [\[6\]](#_ftnref6) 304B of Indian Penal Code 1860,489A of Indian Penal Code 1860,201 of Indian Penal Code 1860 [\[7\]](#_ftnref7) Sindo vs State of Punjab (2011)11SC 517 [\[8\]](#_ftnref8) Ranjeev Kumar vs State of Haryana (2013) 16 SC 640 [\[9\]](#_ftnref9) Prema.S.Rao vs Yadla Srinivasa [\[10\]](#_ftnref10) Baijnath v. State of M.P **Categories:** Case Analysis, Criminal Law Cases --- ### [Breach of Contract: Meaning, Essentials, Principles, Cases and Remedies under Indian Contract Act, 1872](https://lawfoyer.in/breach-of-contract-meaning-essentials-principles-cases-and-remedies-under-indian-contract-act-1872/) **Published:** April 8, 2024 **Author:** LawFoyer **Content:** **Author: Monika Gurjar, Dharmashastra National Law University, Jabalpur** **INTRODUCTION** The history of contract dates-back to ancient times where people used to enter into contract especially for domestic purposes. With the advancement of society and its need the nature of contract has also changed and had become complex. In a modern world, every individual is dependent on other, such interdependence is visible in modern complex market structure. Due to such interdependence, the consequences of breach (violation) of contract sometimes becomes grave. To regulate this, and to prevent such grave losses, the government came with the Indian Contract Act which provides remedy to the innocent parties of the contract. The Act in its Section 2 (h) says contract is as an agreement which is enforceable by law, which means the parties to the contract are legally bound to perform the promise made. The infringement or non-performance of the terms and conditions of the contract is called breach of contract. ***Keywords*:** contract, breach, damages, liquidated, unliquidated **INSTANCES OF BREACH OF CONTRACT** After the formation of contract fulfilling all the prerequisites provided under section 10 (agreements that became contract), the parties to the contract becomes bound to perform the promises made to each other in the form of terms & conditions in the contract. The act under its Section 37 mentions the right and duties of the parties to the contract. And any deviation or omission to perform the conditions of contract leads to the infringement of contract. The refusal of the either party to perform the promise made in the contract wholly, or if party is partially performing the contract and the other party does not give acquiescence to it, in such cases the party partially performing the promise becomes liable of breach of contract as provided in section 39 of the act. When there is a time bound contract (time is of essence of contract) between the parties, where the obligations need to be performed within the prescribed time limit, if any party who enters the contract fails to discharge his obligations within that fixed time limit, then such failure leads to breach of contract according to section 55 of the contract act. **REMEDIES UNDER INDIAN CONTRACT ACT** There are three kinds of remedy that are available to the party suffering from the breach of contract. These are; 1. **Compensation** In case of non-performance (breach) of contract, the remedy available to the non- breaching party is compensation for the actual loss caused to the party. Under the Indian contract act, this compensation is mentioned as damages which is present in two forms; 1. **Liquidated Damages:** As the term indicate liquidates damages is the amount to be paid in case of breach which is decided or determined by the parties before suffering the breach or during the time of formation of contract. Section 74 of the act says that if there is genuine pre estimate amount decided by the parties then, in such kind of cases actual loss to the party is not required to be proved, and mere breach of conditions of contract gave rise to damages under this section. 2. **Unliquidated Damages:** There are cases of violation of conditions of contract where the party had not decided the amount that will be payable if either partybreaches the contract, in such conditions reasonable compensation is decided by the court by taking into consideration the actual loss suffered, mitigating factors and the relation of loss with the act of breach. The aforementioned is given in section 73 of Indian Contract Act, 1872. 3. **Penalty** Section 74 deals with the case where the parties to the contract had stipulated the compensation or amount as penalty then the actual loss caused to the aggrieved party needs to be proved. The reason for penalty in the contract is to deter the parties and to ensure the performance of the contract. - **Specific Performance** The other remedy available to the aggrieved party is provided under section 10 of specific relief act whereby the party can get the decree of specific performance of contract from the court, to compel the party (breaching party) to perform the contract. The circumstances where such remedy can be given by the court is provided under the specific relief act. **RECENT DEVELOPMENTS** **1. M/s Devchand Construction v. Union of India[**\[1\]**](#_ftn1)** In the case M/s Devchand Construction v. Union of India, the Kerala high court held that mere breach or failure to properly perform the terms of contract does not automatically give right to seek compensation in section 73 and 74 of Indian contract Act, but such breach shall cause actual damage or loss to the aggrieved party. Therefore, the section 73, 74 and 75 cannot be invoked if the party had not suffered any loss. **2. The Indian Hotels Company Ltd. v. Union of India and Ors**[**\[2\]**](#_ftn2) In case of “The Indian Hotels Company Ltd. v. Union of India and Ors”, the Delhi high court repeated the settled law that “section 74” of the Indian contract act which provides for liquidated damages cannot be invoked at stage of pre-formation of contract. **3. The Chairman, Coal India Limited & ors vs Star Cement Limited[**\[3\]**](#_ftn3)** The Meghalaya High Court, in **“The Chairman, Coal India Limited & ors vs Star Cement Limited” held that in event of breach of contract, the party claiming compensation from the party in breach is only entitled to the amount to the extent of loss suffered by it, unless there is** genuine pre-estimate **decided by the parties. **4.Emerge Tech Global Services P Ltd. v. Mr M.R. Vindhyasagar & Anr **In case of** “Emerge Tech Global Services P Ltd. v. Mr M.R. Vindhyasagar & Anr” the madras high court had made a distinction between the restitutionary damages and the compensatory damages. It further said that the purpose of compensatory damages is to made the good the loss caused to the aggrieved party and are provided in cases where the damages are identifiable. However, restitutionary damages are awarded to disgorge the benefit received by the breaching party at the expense of non- breaching party. **CONCLUSION** The idea behind the contract act is to prevent the parties of the contract from injustice and exploitation. In a contemporary scenario, contracts are made on days-to-days basis at different levels such as the contract between big corporate firms which involves a large amount of money. In such cases, breach of conditions of contract by any party puts the other party into great loss, which is unjust for that party. The Indian contract act by following the principle of natural justice provided appropriate remedy to the parties. The section 74 of the act creatively protects the interest of both the sides. **REFERENCES** **Online Articles / Sources Referred** > [But-for rule in Contract Law](https://blog.ipleaders.in/rule-contract-law/) Adjudication of claim for damages under Sections 73, 74 and 75 of Indian Contract Act, 1872 B. V. R. Sarma **Cases Referred** Devchand Construction v. Union of India The Indian Hotels Company Ltd. v. Union of India and Ors **The Chairman, Coal India Limited & ors vs Star Cement Limited Emerge Tech Global Services P Ltd. v. Mr M.R. Vindhyasagar & Anr **Statutes Referred** Indian Contract Act, 1872 --- [\[1\]](#_ftnref1) Devchand Construction v. Union of India, (2022) SCC OnLine Ker 826 [\[2\]](#_ftnref2)The Indian Hotels Company Ltd. v. Union of India And Ors. 2022 LiveLaw (Del) 287 [\[3\]](#_ftnref3) Coal India Ltd. v. Star Cement Ltd., (2023) SCC OnLine Megh 323 **Categories:** Articles, Contract Law --- ### [B.K. Pavitra v. Union of India, (2019) 16 SCC 129](https://lawfoyer.in/b-k-pavitra-v-union-of-india-2019-16-scc-129/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **Author: Gaurav Katiyar**, **University of Lucknow** ABSTRACT** The decision of B.K. Pavitra v. Union of India is one of the most important legal decisions in Indian history. The case is a consideration of the reservation system in public employment in Karnataka before a constitution bench. The toughest question was about promotion policy reserved for other backward classes in public service. In its judgment, the apex court reiterates constitutional mandate towards equal opportunity in public employment while recognizing the need for affirmative action to uplift historically marginalized communities. Reservations became more complicated with empirical evidence and indicators of backwardness as the basis for their designing. It stressed on states conducting periodic reviews and data collection to determine if reservations are still relevant considering changing social economic conditions. B.K. Pavitra v. Union of India is an epoch-making decision that upheld constitutional principles pertaining to reservation policies in public employment thereby guiding policymakers and courts on affirmative action while maintaining equality as well as justice. ***Keywords*:** B.K. Pavitra v. Union of India, Consequential seniority, public employment, Constitution, Reservation System. - CASE DETAILS** *Judgement Cause Title***BK Pavitra and others v. Union of India*Case Number***Civil Appeal No. 2368 of 2011*Judgement Date***May 10, 2019*Court***SUPREME COURT OF INDIA*Quorum***Two-judge bench*Author***Dr Dhananjaya Y Chandrachud, J*Citation***(2017) 4 SCC 620*Legal Provisions Involved***Article 16(4A), Article 14 of Constitution of India Section 3, Section 4 of Reservation Act 2018- INTRODUCTION AND BACKGROUND OF JUDGEMENT** No cases in the history of Indian jurisprudence have created as much controversy and debate as the case of BK Pavitra vs. Union of India. This legal saga at its core traverses through a complex landscape of reservation policies particularly regarding reservations in promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs) in government employment which is a bone of contention. It all began when this matter reached the prestigious chambers of Supreme Court of India where it became evident that there were very deep questions with regard to promoting social justice for historically marginalized communities, on one hand, and ensuring efficiency and meritocracy within public institutions, on the other. The originators behind this matter are understood to have relied upon constitutional provisions such as Articles 16(4A) and 16(4B) Constitution which empower State to make reservations with respect to promotions for SCs and STs if they are not adequately represented in public services. However, these provisions have been contested in interpretation and implementation leading to litigation that resonates far beyond courtrooms, resonating with socio-political fabric. In the backdrop of these developments, a number of policemen including BK Pavitra, a constable in the Karnataka State Reserve Police Force, have challenged the constitutionality of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018. Inevitably, this act led to heated debates about equality, fairness and efficiency in public employment. The subsequent legal proceedings brought forth a subtle conversation on several aspects of reservation policies such as creamy layer concept, reservation versus efficient administration and judicial review scope in policy formulation. The case which traversed through various levels in India’s judicial hierarchy was widely watched by scholars on law, national policy makers and other stakeholders that marked it out as an important breaking point in evolving Indian reservation jurisprudence. In the end, BK Pavitra vs. Union of India’s verdict did not only solve the immediate legal problem, but also created everlasting case laws that have far-reaching implications on India’s affirmative action policies and general social justice talks. As attorneys we should carefully examine this breakthrough case with a view to decoding its doctrinal complexities, jurisprudential foundations and societal impacts. The aim is to extract knowledge from this analysis which can enlighten us about law as well as help in our quest for a better world characterized by fairness and equal distribution of resources. - FACTS OF THE CASE** - In the year 2002, Karnataka State passed a law which stated that practical seniority would be applied on promotion of SC/ST employees in public offices. This implies that an employee from a reserved category could be promoted before a general category senior employee. - By 2007, Supreme Court had ruled that the statute passed by Government of Karnataka was inconsistent with the Nagraj case’s guideline and therefore unconstitutional. - Afterwards, the government of Karnataka constituted a committee to verify fulfilment of requirements outlined under Nagraj Case namely; - 1. present backwardness of SC/ST - 2. scant representation and - 3. effect on administrative efficiency and re-enacted the former legislation again - LEGAL ISSUES RAISED** - Constitutional Validity: The main issue that arose was whether Karnataka’s policy providing reservation in promotions with consequential seniority to employees belonging to Scheduled Castes and Scheduled Tribes was constitutionally valid. A provision of Article 16(4-A) empowers the state to provide for such reservations while still being subject to certain conditions. - Interpretation of Article 16(4-A): This was a central issue in the case. It sought to establish what powers were vested on the state as far as making provisions for promotion within its jurisdiction is concerned given particularly by words like “if the State considers necessary” and their implications for policy formulation and judicial review. - Affirmative Action: This case was all about affirmative action and how it helps to uplift groups that have historically been oppressed. It was incumbent upon the court to ensure equality of opportunity but also gave special protections for Scheduled Castes and Scheduled Tribes. - Empirical Data and Backwardness Indicators: Another legal aspect raised by this matter is the significance of empirical data and backwardness indicators in framing reservation policies. The court considered whether states need to constantly collect data and undertake periodic reviews How could they know if these policies are effective? - Designing Reservation Policies: Another angle considered by the court was whether or not reservations should be tailored according to needs of changing social-economic scenarios. In doing so, it examined why such interventions ought to take into account changing circumstances as well as new needs among previously marginalized communities. - APPELLANT’S ARGUMENTS** - **Constitutional Violation**: The complainants maintained that the policy of Karnataka which reserved promotions on consequential seniority was a breach of equality, non-discrimination and equal opportunities principles as enshrined in Articles 14, 15 and 16 respectively of the Indian constitution. - **Merit-Based Promotion**: They were of the view that the reservation policy had led to the automatic promotion of Scheduled Castes and Scheduled Tribes resulting in undermining the efficiency and effectiveness of the merit based promotion system thus neglecting the constitutional command to maintain meritocracy. - **Indirect Discrimination**: It was alleged by them that this provision of its policy for consequential seniority amounted to indirect discrimination against employees belonging to other communities who were denied promotions which were given solely on behalf their cast, but not on basis their individual merits or qualifications entitling them among others. - **Violation of Fundamental Rights**: It was claimed that this reservation policy violated fundamental rights since it disadvantaged employees who suffered from its operation by denying them equal opportunity for advancement and exposing them to discriminatory treatment based purely on their caste. - **Constitutional Limits on Reservation**: According to the petitioners, Article 16(4-A) of the Constitution should be read in a nuanced manner and they submitted that though states were allowed by the law to make provisions for reservations in promotions, such provisions must not violate the principles of equality, efficiency and non-discrimination. - **Administrative Efficiency**: The respondents have shown how this policy has been adversely affecting administration efficiency. They claim that automatically giving seniority to those promoted from reserved categories regardless of their performance levels and qualifications limits the effectiveness of public institutions and is against public interest. - RESPONDENT’S ARGUMENTS** - **Constitutional Mandate**: The defendants argued that reservation policy for promotions was in compliance with the constitutional mandate to secure social justice and representation of historically disadvantaged communities in public employment. They stated that Article 16(4-A) of the Constitution gives power to the State make reservations in promotion “if the state so deems necessary” giving it a wide discretion in forming such policies. - **Historical Injustice**: The respondents pointed out how these people had been discriminated against historically, put at a socio-economic disadvantage and never given an equal chance to compete for any job opportunities within the government. They therefore said, however, that reservation in promotion along with consequential seniority was necessary to remove the deeply rooted inequalities and uplift these communities allowing them upward mobility and socio-economic empowerment. - **Remedial Measure for Consequential Seniority**: The respondents pointed out that the provision for consequential seniority was justified as a remedial measure to ameliorate the cumulative disadvantages that the Scheduled Castes and Scheduled Tribes employees have been suffering as a result of historical injustices meted on them. They said that refusal to grant consequential seniority would mean continuing their under-representation in higher posts and further marginalizing them. - **Constitutional Guarantees of Equality**: The respondents stressed that reservation policy did not violate constitutional guarantees of equality under Articles 14, 15, and 16. They submitted that reservation was an affirmative action sanctioned by the constitution to address systemic inequities and guarantee substantive equality of opportunities for all citizens. - **Administrative Efficiency**: The respondents asserted that reservation policy on promotions in no way conflicted with administrative efficiency or meritocracy. They argued that diversity and inclusiveness in public institutions were important ingredients of quality governance while affirming necessity for reservations to enhance representation bureaucracy capable of addressing wide demands from society. - RELATED LEGAL PROVISIONS** - **Section 3 of the 2018 Reservation Act**– provides for reservation in promotion - **Section 4** **of the 2018 Reservation Act**– validates consequential seniority, backdated to 24th April 1978. - **Article 16(4B) of the Indian Constitution-** provides that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the next year. It also ensures that the ceiling on the reservation quota – capped at 50% by *Indra Sawhney* for these carried forward unfilled posts doesn’t apply to subsequent years. - **Article 16 (1)** **of the Indian Constitution-** there shall be equality of opportunity for all citizens in matters regarding employment or appointment to any office under the State. - **Article 335** **of the Indian Constitution-** The claims of the member of the Scheduled Castes and therefore the Scheduled Tribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration within the making of appointments to services and posts in reference with the affairs to the Union or a State. - **Article 341 and 342** **of the Indian Constitution-** These articles define who would be Scheduled Castes and Scheduled Tribes concerning any State or Union Territory. - JUDGEMENT** - RATIO DECIDENDI** - Based on the caste, consequential seniority is a privilege only for SC/ST employees in terms of promotions in public employment by Karnataka State which has been held as unconstitutional. - Article 16(4-A) allows for reservation of promotions to SC/ST employees but does not provide for automatic outcome of promotion. - The reservations in promotion should redress long years of injustice and inequalities while at the same time respecting the rights of non-reserved category workers. - For all employees, it should be explained why seniority should be based on merit and suitableness rather than caste considerations. - In order to promote overall efficiency in administration and accommodate different interests at stake, states are allowed by law some lee-way when making decision on whether reservation or promotions is proper or not. - The judgment highlights that affirmative action must be balanced with meritocracy and efficiency in governance. - Reservation policies must conform to constitutional norms; these principles will assist them in maintaining social justice and integrity within public institutions. - **OBITER DICTA** - Affirmative Action and Equality: - The signification of affirmative action measures for historical injustices. - Proactive steps to uplift marginalized communities and ensure their meaningful participation in public life have been recognized. - Merit and Efficiency: - The importance of meritocracy ion public administration was acknowledged by this court. - While efficiency was important, it was also deemed necessary to balance it with social justice, through reservation policies. - Consequential Seniority: - Condemned the automatic grant of consequential seniority to SC/ST promotees as unconstitutional. - Performance should decide who is senior rather than birth into a particular caste only. - State Discretion: - It emphasized on the discretionary nature of state power to provide reservations for promotions - Considering overall efficiency and interests of all stakeholders, discretion must be exercised judiciously. - Judicial Review: - Reaffirmed that judicial review plays a significant role in ensuring adherence to constitutional values - This court upheld that judiciary has its responsibility in protecting constitutional rights especially concerning reservation policies. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Sakal Papers Ltd. V. Union of India, AIR 1962 SC 305](https://lawfoyer.in/sakal-papers-ltd-v-union-of-india-air-1962-sc-305/) **Published:** April 5, 2024 **Author:** LawFoyer **Content:** By – **Madhu Sri Chepuri** (Sri Padmavati Mahila Visva Vidyalayam) **ABSTRACT / HEADNOTE** According to the Constitution of India Article 19 is a fundamental right. It provides protection of rights related to freedom of speech etc. *Article 19 1(a) provides the right to freedom of speech and expression*[***\[1\]***](#_ftn1) *Article 19 1(g) provides the right to practice any profession, or to carry on any occupation, trade or business[**\[2\]**](#_ftn2)* . These are the rights which are provided to the citizens of India. Article 19 1(a) grants the rights to citizens to express their opinions,thoughts and odeas freely. The freedom to express includes speech, expressions, writing ,printing, visual representations etc. In the case of *Romesh Thappar vs state of Madras*[***\[3\]***](#_ftn3) ,the CJ Patanjali shastri observed that freedom to press is a part of article 19 and and there should be not interference from the state or any public authority and the right is not absolute which has some restrictions which are mentioned under article 19 2 of the Indian constitution. In *Prabhu dutt vs union of India*[\[4\]](#_ftn4), the Supreme court held that the right to know the information and news regarding the government administration is also included in the freedom of press. Article 19 1(g) provides that the citizens have the right and freedom to choose and practice the occupation,trade of their own choice but there are certain restrictions regarding in the interests of the general public,professional Qualifications or the sovereignty and integrity of India. In the landmark Judgement, *chindamanrao vs state of M.P. AIR 1951*[\[5\]](#_ftn5), the court held that the act made by the government is arbitrary and doesn’t fall under the reasonable restrictions. In the present case, the petitioner plead that his rights are violated under the provisions of The Newspaper Act 1956 and the Newspaper Order 1960. The Supreme Court of India in this case decided that the provisions made under those impugned acts are unconstitutional and they are violating the rights of citizens under Article 19 1(a),(g). In its Judgement the Supreme Court of India said that the law should not make any Acts which restricts the liberty of citizens. Any acts made should be reasonable and it should not violate any right which is given to the citizens under the Constitution of India. ***Keywords*** – **Freedom of speech and expression**, **Newspaper Regulation**, **Newspaper (Price and Page) Act, 1956**, **Daily Newspaper (Price and Page) Order,1960**, **Constitutional validity**, **Availability of newspaper**, **Article 19(1)(a), 19(1)(g)** **CASE DETAILS** *Judgement Cause Title***Sakal Papers (P) Ltd. V. Union of India Civil Appeal No. 1168 of 1966*Case Number***Petition numbers 331 of 1960 and 67-68 of 1961*Judgement Date***25 September, 1961*Court***Supreme Court of India*Quorum*** J.R. Mudholkar, Bhuvneshwar P. Sinha, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar*Author***J.R. Mudholkar*Citation***1962 AIR 305,1962 SCR (3) 842, AIR SUPREME COURT 305*Legal Provisions Involved***Constitution of India- Article 19(1)(a),19(1)(g) Newspaper (Pric and Page) Act,1956 Daily Newspaper (Price and Page) Order,1960 **INTRODUCTION AND BACKGROUND OF JUDGEMENT** The Sakal Papers case is considered as a landmark case which revolves around the article 19 1(a) and 19 1(g) of the Indian constitution. The Judgement was a 5bench Judgement which consists of justices J.R. Mudholkar, Bhuvneshwar P. Sinha, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar. The bench had made significant observations on the law made by the government which is related to newspapers. It involved Sakal paper company and the state regarding the dispute of violation of article 19 guaranteed under constitution of India due to the provisions made under the impugned act and order. *Article 19 1(a) provides the right to freedom of speech and expression.* *Article 19 1(g) provides the right to practice any profession, or to carry on any occupation, trade or business .* The Newspaper Act, 1956: This act was passed by the central government which regulates the price of the paper and also the number of pages to be in the Newspaper . Section 3 states that the central government has the power to regulate prices and pages of newspapers. The Newspaper Order, 1960: This was made under the authority of the Act 1956. The court had preceded over the cases like *Romesh Thappar vs state of Madras, Prabhu dutt vs union of India* and gave a landmark decision . The bench had delivered the milestone Judgement stating that the provisions made by the government under the Newspaper Act 1956 and the Newspaper Order 1960 were unconstitutional. And also said that the freedom of press is included in the freedom of speech and expression. The Supreme Court of India said that government should make the laws which are according to the citizens and it shouldn’t restrict the liberty of citizens in any manner. **FACTS OF THE CASE** - Sakal paper is a daily newspaper published in Marathi language. - It is a private newspaper company named as SAKAL. - The company provides a total of 6pages in its Daily newspaper ie., on 5 weekdays and 4pages on 1day with 7np price. - It publishes newspapers with 10pages on Sundays by charging 12np. - The company allocated 40% space for advertising and rest for news. - The petitioner was the private company who has filed a Challenging petition against the acts which was passed by the government according to which the newspaper company has to charge the paper based upon the number of pages they provided. - There are total 3 petitions filed. - The first petition filed by the SAKAL paper company and the rest 2 petitions were filed by the readers of Daily newspaper. - In the writ petition, they challenged the provisions of 1956,1960 Act and order as they are violating the fundamental right which is given under Article 19 of the Constitution of India. **LEGAL ISSUES RAISED** 1. Whether the freedom of speech and expression include the freedom of publishing and circulation? 2. Whether the impugned Act and order is violation of right of the petitioners guaranteed under Article 19(1)(a) of the Constitution? **PETITIONER/ APPELLANT’S ARGUMENTS** - The petitioner’s counsels argued that the Newspaper Act and Newspaper Order violate the right guaranteed under Article 19(1)(a) of the Indian constitution. - They contended that enforcing the impugned Act and order would force them to either raise the price from 7 nP to 8 nP per day or reduce the total number of pages to 24, thus violating Article 19(1)(a) of the Constitution. - They asserted that reducing the number of pages would curtail news content, affecting the circulation of the company. - Additionally, they highlighted that while currently all newspapers can issue any number of supplements as they choose, the Order would prevent them from doing so without government permission. - They argued that the Order would effectively compel them to increase prices or reduce pages for practically every newspaper in the country, while also restricting them from publishing supplements without extraneous restrictions, as they currently do. - They further emphasized that publishing advertisements is a trading activity that needs differentiation from an activity falling under Article 19(1)(a). **RESPONDENT’S ARGUMENTS** - The Respondent’s counsels argued that the Act aims to regulate newspaper prices relative to their pages. - They acknowledged that the impugned Order limits space for news and ideas but suggested newspapers could expand by raising prices. - They contended that the Act and Order address unfair competition and monopolies, promoting free speech. - The Respondent asserted that raising prices wouldn’t harm circulation, justifying restrictions in the public interest. They highlighted that newsprint imports are tied to 1957 page averages, limiting page increases. **RELATED LEGAL PROVISIONS** - **Article 19 1(a) of the Indian constitution: “***Protection of certain rights regarding freedom of speech, etc. – (1) All citizens shall have the right-* - *(a) to freedom of speech and expression”.* - **Article 19 1(g) of the Indian constitution: “** *to practise any profession, or to carry on any occupation, trade or business”.* - **The Newspaper Act,1956: “***An Act to provide for the regulation of the prices charged for newspapers in relation to their pages and of matters connected therewith for the purpose of preventing unfair competition among newspapers so that newspapers may have fuller opportunities of freedom of expression”.* - **The Newspaper Order, 1960:** This was made by the central government which says that ” *fixing the maximum number of pages that might be published by a newspaper according to the charged price and prescribing the number of supplements that could be issued”.* **JUDGEMENT** **RATIO DECIDENDI** The bench had went by the petition made by the Sakal paper company and accepted the petition. They gone through the provisions of the 1956 Act and 1960 order and said that those provisions were violating the rights of citizens. In ***Romesh Thappar vs state of Madras*** the Supreme Court held that freedom of speech and expression also includes freedom of press and that right should not be violated by anyone. In ***Prabhu dutt vs union of India**,* the Supreme court held that the right to know the information and news regarding the government administration is also included in the freedom of press. By taking these cases as precedence, the Honourable Supreme Court delivered it’s Judgement as the provisions made by the government under the 1956,1960 Act and order were not reasonable and they are violating the rights which are guaranteed under constitution of India. In this case , the court had dismissed the claims due to lack of Evidence. The court had struck down the provisions of those impugned act and order and held them as unconstitutional. Further it stated that, the government should not make any laws which restricts the freedom of citizens and their fundamental rights. **CONCLUSION & COMMENTS** In the Sakal Papers case, the Supreme Court of India struck down the provisions of the 1956 and 1960 Acts, holding them unconstitutional. This case marked a milestone in the development of constitutional law in India, specifically concerning the freedom of speech and expression. It involved the violation of the fundamental right guaranteed to citizens under the Constitution. The right to freedom of speech and expression, including the freedom of the press, publication, circulation, and dissemination of opinions, is integral to our democratic society. Hence, the government should refrain from enacting any laws that interfere with citizens’ rights. **Important Cases Referred** 1. *Romesh Thappar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124)* 2. *Patanjali Sastri, J.* 3. *Prabhu dutt vs union of India* **Important Statutes Referred** 1. Article 19(1)(a), 19(1)(g). 2. Section 3,4 of the Newspaper Act 1956. --- [\[1\]](#_ftnref1) Article 19 1(a) ,of the Indian constitution [http://https://www.bareactslive.com/ACA/ACT401.HTM](http://https:/www.bareactslive.com/ACA/ACT401.HTM) [\[2\]](#_ftnref2) Article 19 1(g), of the Indian constitution [http://https://www.bareactslive.com/ACA/ACT401.HTM](http://https:/www.bareactslive.com/ACA/ACT401.HTM) [\[3\]](#_ftnref3) Romesh Thappar vs state of Madras[http://https://indiankanoon.org/doc/1218090/](http://https:/indiankanoon.org/doc/1218090/) [\[4\]](#_ftnref4) Prabhu Dutt vs Union of India [https://indiankanoon.org/doc/1218090/](http://https:/indiankanoon.org/doc/1218090/) [\[5\]](#_ftnref5) Chindamanrao VS State of M.P.AIR 1951[http://https://indiankanoon.org/doc/1218090/](http://https:/indiankanoon.org/doc/1218090/) **Categories:** Case Analysis, Constitutional Law Cases --- ### [R Rajgopal V State Of Tamil Nadu 1994 6 SCC 632](https://lawfoyer.in/r-rajgopal-v-state-of-tamil-nadu-1994-6-scc-632/) **Published:** April 5, 2024 **Author:** LawFoyer **Content:** By – **SATPATHY GAYATREE GEETASWAROOP** ( BIRLA SCHOOL OF LAW, BIRLA GLOBAL UNIVERSITY, BHUNHANESHWAR) **ABSTRACT / HEADNOTE** This landmark judgment is about an auto driver and an autobiography writer who had been sentenced to death for murder during his life imprisonment he shared about the details of his illegal connections with prison and public officials involving in all sorts of illegal activities; as the writing revealed the truth behind the person in bar, his publication was attempted to being stopped to safeguard rights of petitioners through article 191a of the indian constitution as it had defamatory content to get published with an intention to defend themselves irrespective any true facts the court carefully discussed about the solitude rights of the citizen and decided the case by keeping both sides of the coin in mind which definitely has a crystal clear reflection on the judgment of it where the honble court held that even the higher authority or the government has no absolute right to infringe prior commentary which became an image of necessity of right to privacy and hence maintained the supremacy of law. ***Keywords*** – ***Right to privacy, freedom of press, defamation, auto Shankar, prior restraint***. **CASE DETAILS** *Judgement Cause Title***R Rajgopal V State Of Tamil Nadu*Case Number***Civil Writ Petition No. 264*Judgement Date***07th of October 1994*Court***The Supreme Court of India*Quorum***Hon’ble Shri Justice B.P. Jeevan Reddy, Justice S.C. Sen*Author***Hon’ble Shri Justice B.P. Jeevan Reddy*Citation***1995 AIR 264 1994 SCC(6)632 JT 1994(6) 514 1994 SCALE(4) 494*Legal Provisions Involved***Article 19(1)(a) r/w Article 19(2), Article 21 of the Indian Constitution, Section 499 and 500 of the Indian Penal Code and Official Secrets Act, 1923**INTRODUCTION AND BACKGROUND OF JUDGEMENT** The case of R. Rajgopal and Ors v. State of Tamil Nadu established a pivotal precedent at the junction of freedom of speech, privacy rights, and the role of the press. It centered around Auto Shankar, a death row prisoner seeking to block the publication of his autobiography. The court’s ruling balanced the fundamental right to freedom of expression with the protection of individual privacy and matters of public interest. It emphasized the critical role of the press in scrutinizing public officials while upholding dignity and privacy. This landmark case highlighted the intricate principles guiding media authority and individuals’ rights, setting a precedent for courts to navigate disputes concerning freedom of speech while respecting privacy rights and public interest. **FACTS OF THE CASE** 1. The case centralized on Shankar an Auto driver, who was accused of murder and death sentence was declared for him. 2. While in the prison, he wrote an autobiography and mentioned everything about his activities and life including all about illegal connections with state officials involved in all sorts of unlawful activities. 3. Before his death sentence Shankar wrote requesting that to issue his biography in the entitled magazine. 4. The moment where the prisoner personnel got to know this immediately, the prison official warned the petitioner that his book contained absolutely false and defamatory information. 5. They threatened him that if the book gets published he will take required legal action against him. 6. Unwanted interference from higher authorities showed that they sought of tried to protect their freedom to publish under Article 19 of the Indian Constitution. 7. Despite their enormous efforts the High Court dismissed their petition as a result they brought the matter in front of the Supreme Court under Article 32 praying to preclude respondents from infringing the publication. **LEGAL ISSUES RAISED** 1. Whether any citizen of India can be prevented from publishing any others biography? 2. Whether the freedom of press qualifies the media to publish an unofficial content of a citizen’s life? 3. Whether the state public officers are qualified to assess a beforehand restraint on the media to forestall their defamation? 4. Whether the prison executives are entitled to prohibit the printing of a prisoner’s biography on the ground the that he is behind the bars and cannot use any legal remedies in order to protect his rights and thus they are authorized to act on behalf? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. The counsels for Petitioner / Appellant submitted that, it’s the petitioner right to publish his biography. 2. The announcement of issuing was fragmented as his illegal connections with the state officials was disclosed. 3. Various instances happened where petitioner’s press was raided. 4. Apprehension occurred in petitioner about the damage that might be caused by the police. 5. They also contended that, the petitioner was free to publish his writing under Article 19(a) of the Indian Constitution. 6. Also argued that the communications made in the book are not true and shouldn’t be relied hence, it was a clear cut defamatory for the state. **RESPONDENT’S ARGUMENTS** - The counsels for Respondent submitted that, the prisoner absolutely denied publishing any sort of book and he didn’t entitle any authority to his advocate for publishing the book or biography. - The publication is a fundamental right given in the Constitution of India but these has some restrictions too and these were violated in this case. - Allegations made about the prisoner officials that they have tortured him and had no sufficient, reasonable and valid grounds to justify it. - The book was written by Shankar himself hence all the facts and incidents mentioned in it were true. **RELATED LEGAL PROVISIONS** - **The Constitution of India** **Article 19(1)(a) –** All citizens shall have the right to freedom of speech and expression. - **The Indian penal Code** **Section 499 – Defamation:** Anybody who tries to impute anyone by words, either by spoken, reading, signs or by visible representations intends to harm somebody’s reputation is said to be defaming that person. **Section 500 – Punishment for defamation:** Anybody who defames anybody will be punished with simple imprisonment for two years or with fine or both. **JUDGEMENT** The writing publication is not at all valid which means the state has the right to sue for defamation but preventing the publication before hand is not admissible also stated that auto Shankar has public records about his activities which was disrupting for the public in general so publication can be done with or without his consent but when it comes to his personal life if they publish something regarding this they will be invading and violating his privacy rights same is applicable to the public officials who had illegal connections with him have no right to stop publishing before time. **RATIO DECIDENDI** The Hon’ble Court held on the basis that articles books or stories can be published about Shankar because he has public records but when it comes to publishing about his personal private life including his family affairs consent must be taken prior to publishing regarding this because if not done so they are disregarding his or her right to privacy no body not even the state has no right to stop its countrymen from employing solitude rights. **OBITER DICTA** Right to privacy is the highlight of this decision therefore it ruled that every Indian citizen has the right except any kind of intervention and it is a crucial element of Article 21 so everybody can fully enjoy this right lawfully. **CONCLUSION& COMMENTS** From the above analysis we can say conclude that judgement for this case was quite tough to say as it was dealing with the fundamental right of an individual although the court did a fair and reasonable justice to this case but it would have been much better if the court could have decided to rename the book instead of a autobiography it could have been published just to make the public in general aware about the officials in their state. **REFERENCES** **Important Cases Referred** 1. Kharak Singh v the State of UP 1962 2. Govind v the State of MP 1975 3. Griswold v Connecticut 1965 4. Roe v Wade 1973 **Important Statutes Referred** 1. Official Secrets Act, 1923 2. The Constitution of India 3. The Indian Penal Code, 1860 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Aruna Ramchandra Shanbaug & Ors v. Union Of India](https://lawfoyer.in/aruna-ramchandra-shanbaug-ors-v-union-of-india/) **Published:** April 5, 2024 **Author:** LawFoyer **Content:** By – SHAURYA SINGH KARASI (Chandigarh University) **ABSTRACT/HEADNOTE** The landmark case of Aruna Ramchandra Shanbaug vs. Union Of India & Ors, decided on March 7, 2011, marked a significant turning point in the legal discourse surrounding euthanasia. It centered on the plight of Aruna Shanbaug, who tragically fell victim to a brutal assault in 1973 and has since remained in a persistent vegetative state (PVS) for 37 years, igniting a profound ethical and legal debate about her right to a dignified death. The court meticulously examined Aruna’s medical condition, acknowledging her irreversible brain damage caused by a hypoxic-ischemic injury, while also recognizing her minimal signs of consciousness and responsiveness. Furthermore, the judgment explored the global legal landscape regarding euthanasia, drawing upon examples from countries such as the United States, France, and Montana, where laws regarding physician-assisted death vary. Ultimately, the court affirmed the legality of passive euthanasia under specific circumstances, acknowledging the right of individuals or their designated caregivers to make decisions in the best interest of the patient’s well-being. The court also commended the dedicated care provided by the staff at KEM Hospital to Aruna over the years, underscoring the importance of compassionate healthcare for individuals in vulnerable states. In its decision, the court emphasized the sanctity of life while also affirming the principles of human dignity and autonomy in end-of-life care. **KEYWORDS** – : *Physician-assisted suicide, Euthanasia, Passive euthanasia, Mercy killing, Permanent vegetative state*. **CASE DETAILS** i) Judgment Clause TitleAruna Ramchandra Shanbaug vs. Union Of India & Orsii) Case NumberWrit Petition (Criminal) No. 115 of 2009Iii) Judgment Date March 7, 2011iv) CourtSupreme Courtv) Quorum2 Judgesvi) Author Justice Markandey Katju.vii) Citation(2011) 4 SCC 454viii)Legal Provisions Involved1. Article 21 of the Indian Constitution 2. Article 32 of the Indian Constitution 3. Article 226 of the Indian Constitution**INTRODUCTION AND BACKGROUND OF THE JUDGMENT** Supreme Court of India inAruna Ramchandra Shanbaug v. Union of India & Ors took up the examination of moral and legal issues related to the right to death and euthanasia on 7 March 2011. At the center of this problem is Aruna Shanbaug, who suffered a stroke in 1973 and remained in a vegetative state for more than thirty years. Because of its personal nature, this case raises further questions about end-of-life care, patient management, and the ethics of caregivers. The crux of the case is a medical evaluation by a team of reputable doctors to assess Aruna’s physical and mental health. The findings confirmed that he was in a long-term coma and met the criteria for a stable vegetative state (PVS). Although Aruna is biological, he is not aware of himself and his environment and has no reactions or responses to stimuli.The decision also reflects the determination of the medical team at KEM Hospital in Mumbai, who worked tirelessly for 10 years to care for Aruna. almost forty years. Their unwavering commitment to their well-being despite the challenges reflects the complexity of the case and ethical considerations. The decision examines international practice and law regarding euthanasia and assisted suicide, providing a comprehensive overview of various practices around the world. Finally, the court’s decision not only resolves specific allegations against Arunashanbaug, but also establishes important principles that guide end of life decisions and protect the rights of patients in similar situations. context. This document is important in Indian law as it influences debates on euthanasia, patient autonomy and the right to die with dignity. **FACTS OF THE CASE** 1\. Aruna Shanbaug, a dedicated nurse at KEM Hospital in Mumbai, suffered unexpected beatings and injuries at the hands of her colleagues, resulting in brain damage and physical disability. 2. Aruna, who begins to fall into a coma after the attack, later transforms into a normal body, having not yet shown any consciousness, interaction or purposeful movement. This is surprising to those who know his heart. 3\. A team of compassionate doctors appointed by the Supreme Court conducted the medical examination of Aruna Shanbaug to better understand her condition. Their analysis showed that the plant permanently experiences the features of its state, the fine art of its struggle, without awareness of itself or its environment. 4\. Although she survived, Aruna’s physical health declined over time; Her reliance on bottle feeding for health and the stress of stomach and bladder incontinence remind people that her condition once caused a huge impact on her life. 5\. This case sparked a huge debate about the juxtaposition of legal and ethical aspects of euthanasia, patient freedom, and the fundamental right to die with dignity. The petitioner’s request to discontinue feeding Aruna is based on the belief that Aruna’s prolonged crop failure constitutes a serious violation of her dignity and freedom. 6\. In considering ethical issues, the Court carefully considers the principles of medical ethics, respect for the sanctity of the patient’s liberty, and the need for compassion in the face of the complexities inherent in hospital decision-making. . Such a desire. 7\. The judgment examines the finer laws surrounding euthanasia in India and abroad, finding that euthanasia remains illegal in India and many other countries around the world, unless there are special circumstances prescribed by law. Consider the evolution of social ethics. 8\. Additionally, the Court discussed the concept of brain death and its serious implications for end-of-life care and organ donation, with reference to the Human Organ Transplantation Act 1994; This means it is not possible for the dead brain to perform surgery. . Each nerve stalk demonstrates the importance of morality, dealing with matters of life and death. **LEGAL ISSUES RAISED** 1. This case delves into the profound ethical, medical, and legal complexities surrounding euthanasia, specifically exploring the differences between active euthanasia, where lethal substances are intentionally administered to end a person’s life, and passive euthanasia, which involves withholding or withdrawing life-sustaining treatments. 2. At the heart of the legal discourse lies the fundamental question of an individual’s right to die with dignity, particularly when confronted with irreversible medical conditions like a persistent vegetative state (PVS). The court meticulously examines the extent to which this right is safeguarded under constitutional principles, including the cherished rights to life and personal liberty. 3. In light of the patient’s incapacitated state, the case prompts reflection on who should hold authority in making decisions concerning her medical care. The court delves into the role of surrogate decision-makers and the legal frameworks governing such decisions, particularly in cases where the patient’s preferences are not explicitly known. 4. Throughout its deliberations, the judgment carefully considers a myriad of medical ethics guidelines, international legal precedents, and legislative frameworks pertaining to euthanasia and end-of-life care. It scrutinizes how these standards intersect with domestic laws and constitutional provisions in India. 5. A nuanced examination of constitutional rights, notably Article 21 (Right to Life and Personal Liberty), unfolds within the context of end-of-life care and the withdrawal of life support. The court meticulously weighs the delicate balance between preserving life and honoring individual autonomy and dignity. 6. Central to the case are interpretations of medical terms such as brain death and persistent vegetative state. Drawing upon medical evidence and expert opinions, the court endeavors to establish clear criteria for diagnosing these conditions and determining appropriate medical interventions. 7. The judgment casts a discerning eye on the diverse array of laws and practices concerning euthanasia and end-of-life care observed in other jurisdictions, including the United States, the United Kingdom, and various European nations. It ponders the far-reaching implications of international practices in shaping legal frameworks and ethical considerations within the Indian context. **PETITIONER’S ARGUMENTS** 1\. The petitioner’s legal counsels contended that Article 21 of the constitution of India inherently encompasses the right to die with dignity, at once hard the translation set forth inside the Gian Kaur vs. State of Punjab case. In Gian Kaur, it was established that the right to life does now not expand to include the right to die, a viewpoint vehemently contested with the aid of the petitioner in this case. 2\. notwithstanding acknowledging the procedural requirements of the court, the petitioner’s representatives underscored the paramount importance of addressing the center issue of the right to die with dignity, particularly in the poignant situation of people enduring a permanent vegetative state. Their emphasis on this fundamental element displays a heartfelt plea for recognition and redressal of what they perceive as a profound ethical imperative. 3\. The petitioner sensitively highlighted the tragic trajectory leading to Aruna Ramachandra Shanbaug’s plight, emphasizing the brutality of the attack and strangulation she persisted inside the hospital’s confines in 1973. This narrative, probably intended to awaken empathy, served to underscore the gravity and injustice of her quandary. 4\. Arguments likely revolved round Aruna Shanbaug’s dwindled high-quality of lifestyles and the absence of meaningful existence because of her incapacitating condition. The petitioner likely contended that artificially prolonging her existence simply perpetuates her struggling without imparting any tangible prospect of development, compelling the court docket to take into account the ethical implications of such prolongation. five. The petitioner in all likelihood marshaled medical evidence and professional evaluations declaring that Aruna Shanbaug’s condition satisfies the criteria warranting consideration for passive euthanasia. important to this argument will be the irrevocable nature of her country and the conspicuous absence of attention, compelling the court docket to confront the stark realities of her enduring ordeal. 6\. In maintaining the fundamental principle of autonomy and self-determination, the petitioner in all likelihood endorsed for people’ inherent proper to dictate choices regarding their personal lives, consisting of the prerogative to relieve their struggling thru passive euthanasia. This plea for autonomy underscores the vital of respecting man or woman organisation and dignity in topics of profound non-public importance. 7\. Moreover, the petitioner might also have drawn upon international legal precedents and practices concerning euthanasia and the right to die with dignity, searching for to contextualize their argument within a broader worldwide framework. through invoking evolving worldwide standards, the petitioner aimed to persuade the court to adopt a forward-thinking approach aligned with present day notions of human rights and dignity. **RESPONDENT’S ARGUMENTS** 1. The counsels representing the Respondents presented compelling arguments against the legalization of euthanasia, grounding their stance in the compassionate and familial fabric of Indian society. They voiced apprehensions regarding the potential for abuse, cautioning against scenarios where familial interests might collude with medical professionals to expedite the end of a patient’s life, perhaps for inheritances. Additionally, they highlighted the optimistic prospect of future medical breakthroughs that could potentially cure conditions deemed incurable today, urging caution in making irreversible decisions. 2. The Respondents emphasized the absence of any expressed wishes or directives from Aruna Shanbaug regarding life-sustaining treatments for her condition. They underscored the necessity for decisions regarding her care to be entrusted to a surrogate, given the profound uncertainty surrounding her preferences. 3. On the pivotal matter of determining the best course of action for a patient in a persistent vegetative state, the Respondents stressed the importance of entrusting such weighty decisions to a responsible and competent body of medical professionals, who possess the requisite expertise to navigate complex medical and ethical considerations. 4. The withdrawal of life support was characterized as an omission rather than an affirmative action to terminate life, aligning with advancements in medical technology that have shifted the paradigm of death away from traditional markers like breathing and heartbeat, toward criteria involving the functionality of the brain stem. 5. The Respondents argued for the primacy of expert medical opinion in determining the cessation of life-sustaining treatments, highlighting the potential for unforeseen medical advancements that could potentially revive patients in the near future, underscoring the need for cautious deliberation. 6. An objection was raised against Ms. Pinky Virani’s assertion of being the next friend of Aruna Shanbaug, contending that the true next friend should be considered as the dedicated staff of KEM Hospital, given their intimate involvement in her care and well-being over the years. 7. The principle of parens patriae jurisdiction was invoked, emphasizing the sovereign’s duty, in the interest of the public, to safeguard individuals under disability who lack a natural guardian. This underscored the State’s obligation to oversee and protect vulnerable individuals from exploitation or harm. 8. The Respondents proposed a procedural framework involving the establishment of a committee comprising medical experts, coupled with notifications to the State and close relatives of the patient. They suggested that a verdict be rendered by a High Court bench, pending legislative enactment by Parliament on this sensitive subject, reflecting a cautious approach to the evolving legal and ethical landscape surrounding euthanasia. **RELATED LEGAL PROVISIONS** Article 21 of the Indian Constitution stands as a cornerstone, safeguarding the cherished rights to life and personal liberty. While the judiciary has expansively interpreted this provision to encompass diverse facets of human dignity and quality of life, pivotal judicial precedents, such as Gian Kaur vs. State of Punjab, 1996(2) SCC 648, have clarified that the right to life does not explicitly encompass the right to die. This constitutional backdrop shapes the legal terrain concerning euthanasia and end-of-life decisions, delineating the boundaries within which such matters are evaluated. 2\. Article 32 of the Indian Constitution confers upon individuals the invaluable right to Constitutional Remedies, empowering them to directly seek redressal from the esteemed Supreme Court of India for the enforcement of their fundamental rights. However, unlike Article 226, which pertains to the jurisdiction of High Courts, Article 32 necessitates that a petitioner substantiate a violation of fundamental rights. This constitutional provision significantly influences the jurisdiction of the Supreme Court, particularly in cases pertaining to euthanasia and the right to a dignified death. 3\. The judgment draws upon legal principles and precedents from diverse jurisdictions, notably the United States and England, to offer comparative insights into euthanasia laws and practices surrounding end-of-life care. These cross-jurisdictional references enrich the discourse by shedding light on the varied legal frameworks and approaches embraced by other nations grappling with analogous issues. 4\. Although not explicitly delineated in the provided excerpt, considerations of medical ethics and professional standards invariably intersect with legal deliberations concerning euthanasia. The court may rely upon expert medical opinions and ethical guidelines to navigate the intricate medical dimensions of the case, discerning the appropriateness of euthanasia or end-of-life care decisions in consonance with prevailing professional norms. 5\. Surrogate decision-making assumes paramount significance in cases where incapacitated patients necessitate medical determinations on their behalf. The excerpt intimates discussions concerning the relevance of surrogate perspectives, particularly in instances where the patient’s own wishes cannot be ascertained. Legal principles and standards guide these deliberations, ensuring that decisions are made in the best interests of the patient while respecting their autonomy and dignity. **JUDGMENT** **Ratio Decidendi:** 1\. The court asserts that decisions concerning the treatment of Aruna Shanbaug, who resides in a permanent vegetative state, should be entrusted to a surrogate due to her inability to express her own preferences. Recognizing the longstanding care provided by the staff of KEM Hospital, the court designates them as appropriate surrogates. 2\. Reaffirming the illegality of active euthanasia in India, the court deems it a criminal offense under the Indian Penal Code. It acknowledges the divergence in euthanasia laws worldwide, citing examples such as Belgium, where it is permissible under stringent conditions. 3\. Acknowledging the evolving understanding of death, the court expands its definition beyond mere cardiopulmonary function to encompass brain function. It discusses the legal principle of parens patriae, wherein the state assumes the role of protector for individuals with disabilities. **Obiter Dicta:** 1\. The judge expresses apprehension regarding societal readiness to embrace euthanasia or mercy killing, citing concerns over potential misuse. The judge advocates for a compassionate society that prioritizes the welfare of its vulnerable members. 2\. The judge advocates for the repeal of Section 309 of the Indian Penal Code, which criminalizes attempted suicide. Instead, the judge suggests a paradigm shift toward offering assistance and support to individuals struggling with suicidal tendencies. 3\. Emphasizing the state’s duty to safeguard individuals with disabilities, the court underscores the evolution of parens patriae jurisdiction from feudal times to a contemporary state responsibility. This highlights the state’s obligation to protect vulnerable individuals and uphold their rights in modern society. **CONCLUSION AND COMMENTS** In the case of Aruna Ramchandra Shanbaug vs. Union Of India & Ors on March 7, 2011, the court delves deeply into the intricate web of legal, medical, and ethical questions surrounding euthanasia and the right to life. It carefully scrutinizes Aruna Shanbaug’s medical condition, shedding light on the complexities involved in assessing her level of consciousness and awareness. The court notably points out the absence of specific legislation governing euthanasia in India, emphasizing the urgent need for a clear legal framework to guide end-of-life care decisions. Furthermore, the judgment elucidates fundamental principles such as patient autonomy, beneficence, and surrogate decision-making, underlining the importance of honoring the wishes of individuals who are unable to make decisions for themselves. It also touches upon the doctrine of Parens Patriae, highlighting the state’s responsibility in safeguarding the interests of those who are unable to fend for themselves. Recognizing the invaluable role played by the compassionate staff of KEM Hospital in Aruna Shanbaug’s life, the court underscores the profound significance of human dignity and compassion in the realm of medical decision-making. By doing so, it emphasizes the importance of upholding the dignity and welfare of patients in vulnerable situations. In essence, the judgment offers profound insights into the complex moral and legal considerations surrounding end-of-life care, serving as a guiding light for future cases grappling with similar issues, both within India and on a global scale. **REFERENCES** a. **Important Cases Referred** 1. Vikram Deo Singh Tomar vs. State of Bihar, 1988 (Supp) SCC 734 2. P. Rathinam vs. Union of India and another (1994) 3 SCC 394 3. Charan Lal Sahu vs. Union of India (1990) 1 SCC 613 b. **Important Statutes Referred** 1. Indian Penal Code (IPC): Referred to regarding the legality of euthanasia and assisted suicide. 2. Article 21 of the Constitution: Discussed in the context of the right to life with human dignity. 3. Section 309 IPC: Dealing with the attempt to commit suicide. 4. Law Commission of India, 2006: Referred to in the context of ‘Medical Treatment to Terminally Ill Patients.’ **Categories:** Case Analysis, Constitutional Law Cases --- ### [BHAGWAN SINGH VS DILIP SINGH](https://lawfoyer.in/bhagwan-singh-vs-dilip-singh/) **Published:** April 5, 2024 **Author:** LawFoyer **Content:** By – **Sushree sangita Panda** (**BIRLA GLOBAL UNIVERSITY, BHUBANESWAR**) **ABSTRACT / HEADNOTE** This case is based on Special Leave Petition, which has been arise from the order of the High Court that grants bail to the accused (respondent) who were alleged of gang rape of a minor girl. Not only gang rape but also threatening and extorting her for the same. This case has been filed by the uncle of that minor girl (appellant) on challenging the granting of bail by High Court and arguing about the seriousness or depth of the offences, the risk and possibility of evidence tampering and threatening to the evidence etc. The Respondent has argued that there is political motivation behind the case and also claimed their guilt freeness. By considering all the factors like nature of accusation, chance of tampering and threatening evidence etc. the Supreme Court examine the bail petition. This step of Supreme Court shows the importance of fair trial, and effect of the same in the society as well as the role of the court to avoid miscarriage of justice. Subsequently the Apex court throws away the granted bail and ordered the respondents to hand themselves over to the judiciary by stressing over the requirement of a comprehensive review of facts and evidences. ***Keywords*** – Gang rape, extortion, special leave petition, political motivation, discretion, witness depositions, minor girl **CASE DETAILS** *Judgement Cause Title***“Bhagwan Singh vs. Dilip Kumar @ Deepu @ Deepak.”*Case Number***6199 of 2023*Judgement Date***23rd august 2023*Court***Supreme Court of India*Quorum***Aravind Kumar, S. Ravindra Bhat*Author***Aravind Kumar*Citation***2023SCC online SC 1059*Legal Provisions Involved***Sec 376 D, 384, AND 506 of IPC Sec 326, 376 (2)(n), 376 DA of POCSO Sec 439 of CrPC Sec 66 of IT Act, 2000**INTRODUCTION AND BACKGROUND OF CASE** Bhagwan Singh v. Dilip Kumar @ Deepu @ Deepak involves severe charges of gang rape, threats, and extortion against a juvenile girl. The appellant, Bhagwan Singh, petitioned the Supreme Court for special permission to challenge a High Court ruling which granted bail to the respondents in the case. The case has important legal and cultural ramifications for the granting of bail in situations involving horrendous crimes against kids. Vivek, Deepak, and Netram raped Bhagwan Singh’s niece and warned her not to tell anybody about the occurrence. Netram and Vivek were charged, with and Deepak later implicated. Despite the gravity of the offences and the probable harm to witnesses and evidence tampering, the High Court granted the respondent’s bail. This result caused the appellant to file an appeal with the Supreme Court, seeking the annulment of the High Court’s bail order. The case involves difficult legal concerns related to bail, witness protection, and the pursuit of justice in situations involving crimes against minors. It emphasises the requirement for a fair trial and the seriousness of offences while ruling on bail petitions. **FACTS OF THE CASE** This is a case which is based on gangrape to a juvenile/minor girl. In this case, the respondents were alleged of gang rape to a minor girl. In the case it has been alleged that the accused VIVEK, one of the accused, seduced the minor girl and took her to a hotel. After that he along with the co accused namely Deepak and Netram drugged her. When she was unconscious, they gang raped her along with shoot the video of that work. After getting her consciousness back, The girl tried to go back her home and during that time she had been threatened to not disclose anything in front of anyone. If she does anything like that, they will make the rape video viral and this will damage the family of her. Primarily the girl remained silent and didn’t say anything about the occurrence. During the family function at her home, the accused had threatened and extorted money and jewellery from her as well. After this incident the girl spoke out everything in front of her family and on the basis of her words the appellant, uncle of the victim had filed a complaint in the police station. The case went to trial and during the trial period the High Court grant bail to the accused. By challenging the decision of the High Court, victim’s uncle filled and Special Leave Petition before the Supreme Court of India. **LEGAL ISSUES RAISED** 1. Whether the High Court’s grant of bail to the respondents was warranted considering the nature of the accused offences, which include gang rape, extortion, and threat? 2. Whether the probable danger of tampering with evidence and frightening witnesses appropriately weighed by the High Court while granted bail to the respondents? 3. Whether the court should consider the societal effect and sensitivity surrounding cases of sexual offences against minors when considering whether to grant bail to the accused? 4. Whether the bail granted to the respondents should be cancelled to guarantee a fair trial, safeguard the victim’s rights, and maintain public faith in the legal system? **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioner / Appellant submitted that; 1. The petitioner claims that the charges against the accused are exceedingly serious, including gang rape, threats, and extortion against a minor girl. These offences have grave legal consequences and need close judicial investigation. 2. 2. He also submitted that the victim’s remarks recorded under Sections 161 and 164 of the Code of Criminal Procedure (Cr.P.C.) and her deposition before the court establishes a prima facie case against the accused. The victim’s persistent statements about the accused’s involvement in the offences are adequate grounds for conviction. 3. The petitioner emphasises the considerable danger of witness intimidation presented by the defendants, particularly considering their claimed threats and aggressive techniques. The victim’s and her family members’ safety and security, as well as those of other prospective witnesses, are top priorities that the court must carefully examine. 4. The petitioner highlights concern regarding suspected evidence tampering, such as missing entries in hotel registers and erased CCTV video, calling into question the investigation’s integrity and the credibility of the defence’s evidence. 5. While conceding the delay in submitting the complaint, the petitioner claims that genuine grounds exist for the delay, such as the victim’s fear of retaliation and the accused’s repeated threats. The delay should not impair the credibility of the claims or diminish the gravity of the crimes committed. 6. The petitioner also emphasises the necessity of securing a fair trial for all parties concerned and protecting the public interest in pursuing horrific crimes, particularly those involving assault against minors. Granting bail to the accused may jeopardise the judicial process and undermine justice for the victim and family. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that; 1. The respondent denies the allegations, emphasising that one of the accused, Deepak, had no direct link to the rape and extortion episode. They claim he was unfairly implicated to settle political scores, as proven by the absence of evidence tying him to the crimes. 2. The respondents argue that there is insufficient evidence to implicate them in the alleged crimes. They emphasise the lack of definitive evidence, such as retrieved CCTV video or other supporting evidence, to back up the prosecution’s case against them. 3. The responses provide an alternate narrative that contradicts the prosecution’s account of events. 4. The respondents also raised points about the delay in bringing the complaint, questioning the intentions behind the timing of the charges and claiming that it may damage the prosecution’s case. They contend that the delay calls into question the truth of the charges and demonstrates the complainant’s lack of urgency or sincerity. 5. The respondents emphasise the basic premise of presumption of innocence, asserting their entitlement to fair treatment under the law and arguing against pre-judgment or discriminatory treatment based on untested charges. They ask for a fair and balanced approach to the matter while protecting their rights as accused persons. 6. Finally, the respondents highlighted the probable repercussions of long-term detention before trial, such as disruptions to their life and livelihood. They advocate for their right to liberty and fair treatment in the court process, opposing pretrial imprisonment without adequate proof of guilt. **RELATED LEGAL PROVISIONS** This case involves the following legal provisions: 1. Sections 376D, 384, and 506 of the Indian Penal Code (IPC) address offences such as rape, extortion, and criminal intimidation, respectively. 2. provision 66D of the Information Technology Act of 2000 – This provision addresses the penalties for cheating by personation while utilising a computer resource. 3. Section 66 of the Information Technology Act of 2000 addresses computer-related offences such as hacking and data theft. 4. provision 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) – This provision addresses the competence of the High Court and the Court of Sessions to issue bail. 5. Sections 376(2)(n) and 376DA of the Indian Penal Code (IPC) deal with severe types of rape. 6. provision 326 of the Protection of Children from Sexual Offences (POCSO) Act – Under the POCSO Act, this provision addresses the punishment for causing grave harm by an acid assault, among other things. **JUDGEMENT** The Supreme Court of India ruled in the matter of Bhagwan Singh v. Dilip Kumar @ Deepu @ Deepak on August 23, 2023 and overturned the High Court ruling granted bail to the accused/respondents. While deciding the matter, the Apex court ruled against the decision of High Court. The court held that the grant of bail by the High Court is not justified and it has been rejected on the same ground. The Apex Court after setting aside this also directed the accused/respondents to surrender before the court having competent jurisdiction oof the matter, within 2 weeks of this judgement. If they fail to do so, they will be taken into custody as directed by the Supreme Court of India. Supreme Court also stated that the respondents will also be in the liberty to seek bail from the competent court only after the completion of rest procedure of the case. As directed by the Apex Court the High Court will decide this case on its own merit and decide the final verdict of the case without being influenced by anyone. The jurisdictional court was admonished not to be swayed by the observations made in the judgement. - **RATIO DECIDENDI** While the respondent argued about the delay in making the complaint, the court observed its practicality and understood the submission from the appellant side and held that delay in making complaint doesn’t diminish the gravity of case. The court highlighted bail’s discretionary character while also protecting the rights of victims and the impartiality of the criminal justice system. It also addressed the significance of ensuring a fair trial for everyone concerned, as well as safeguarding witnesses from intimidation and coercion. By considering the age of the victim the court understood the practicality of the situation and approved the appeal as well as order the High Court to decide the case without being biased to anyone. **CONCLUSION & COMMENTS** The decision of the Supreme court in this case proves the fairness and transparency of the judicial system in India. By quashing the bail order of the high court after observing the whole fact, is a great example of dedication of the judiciary towards equal and fair justice.This decision concluded that the balance between both rights of victim and safeguard of them are equally important to decide a case. By denying the bail order of the High Court, Apex court also shows how important it is to analyse every fact critically and give the judgement on the same. This judgement also mentioned about the basis of judgement which is the concept of Natural Justice without being biased towards anyone. And finally, this verdict again made the public to believe on the judicial system as it serves justice with the most transparent way possible. **Important statute referred** 1. The Constitution of India 2. Indian Penal Code,1860 3. Protection Of Children from Sexual Offences (POCSO) Act,2012 4. Information and Technology Act,2000 5. Code of Criminal Procedure, 1973 --- 1. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Right To Education under Article 21 of the Indian Constitution](https://lawfoyer.in/right-to-education-under-article-21-of-the-indian-constitution/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Hemant Jarwal, University Five Year Law College, University Of Rajasthan

INTRODUCTION

"Knowledge is power. Information is liberating. Education is the premise of progress, in every society, in every family."- Kofi Annan, Former Secretary-General of the United Nations. From the Time a child is born, his or her education begins. At first, education is an informal process in which an infant watches others and learns from them by either copying them or listening to them. As the infant grows into a young child, the process of education becomes more formal by going to preschool. In grade school, academic lessons become the focus of education as a child moves through the school system. But it is not that simple, education is about much more than the simple learning of facts. Education in the bigger picture is the process of encouraging discovery and innovation in different sectors. From the time we are born, humans keep learning and still learning and will continue learning in the future. Sometimes consciously and many times subconsciously. Education is an effective method in different fields of acquiring knowledge, values, skills, habits, and beliefs. So after knowing and considering all the factors that tell us why education is so important and how can it change our life and our society's thinking or enhance their perspective from narrow mind to broad mind and how it can help in the overall growth and development of the nation. That’s why To eradicate education poverty, the government of India proposed the Right to Education Act (RTE) in 2009. It came into effect on 1 April 2010. It aims to provide free and compulsory education to children aged six to fourteen years under Article 21-A. Ensure that every child has his or her right to get a quality elementary education. This right also ensures the provision of fundamental or primary education for those who have not completed their basic education. Right to education includes the right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all and an obligation to develop equitable access to higher education. India has a total of 19% of the children population in the world and almost one-third of the illiterate population in the world. But India can change this fact and figures by becoming the most educated population by using its resources to educate its youth. Education is a powerful tool for the uneducated population to grow and fully participate as citizens. And the Right to Education is also universally recognized by the main international instrument, the Universal Declaration of Human Rights (UDHR) as a basic human right to right to education in Article 26 “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit”.

Keywords : Right to Education, Article 21-A, Article 21  Constitution of India, Article 45, 86th Constitutional Amendment Act, UDHR, Right to Education Act.

Meaning, Definition & Explanation

Education is the way that gives us the ideas, skills, techniques, information, and knowledge to know, understand, and respect the duties we have towards our society, families, and nation. Education helps a person to get knowledge and enhance their confidence in life. It can help us to improve our careers and our personal growth. And as an educated person can become a great citizen in society and in the end educated persons help in the development and growth of society and nation. It helps you to make the right decisions in life. Therefore education is very important in life is because it helps everyone develop a good perspective of looking at the world and our society. Education helps us in getting new ideas and exploring new ideas. An uneducated person can never be fully aware of his/her responsibilities towards each other as human beings and the world as a whole. As human beings, we have to give back to the society that we have used and where we live in so that we can make it a better place to live for everybody. Proper education teaches an individual to think beyond their interests and helps them in developing an ability to make the world a happier, safer place for the next generation. It is difficult to give the answer of the question  What is education in a few lines. Because the Definition of education is given differently by different people at different times. Therefore, education cannot be defined or described by one's precise or perfect definition. The definitions given by different educators about its education are given below:
  1. According to Socrates "Education means the bring out of the ideas of universal validity which are latent in the mind of every man."
  2. According to Plato "Education is the capacity to feel pleasure and pain at the right moment it develops in the body and in the soul of the student all the beauty and all the perfection which he capable of."
  3. According to Aristotle "Education is the creation of a sound mind in a sound body it develops men's faculty especially his mind so that he may be able to enjoy the implementation of supreme court goodness and beauty of which perfect happiness essentially consists."

Historical Background / Evolution of Education:

The importance of education in India has been seen from the ancient times. Human education in India can be traced back to ancient times when the Gurukul system was working. In this Guru-Shishya (teacher-disciple) system, those who wanted to study would go to teachers and request to be accepted as a disciple. If they were accepted then the disciple had to stay at the teacher’s place, and apart from learning, he also had to help in other household chores. This system made a strong tie between the Guru and Shishya, and it also taught the disciple that how to run a household. Teachers of that era taught all the subjects in open classrooms like under shadow of trees, under the sun. Languages like Sanskrit and holy scripture, as well as metaphysics and mathematics, were part of the learning process. Learning was based more on the understanding their surroundings and nature, not just memorizing verses or shlokas. This education system got an impetus and developed with universities like Nalanda, Ujjain, Takshashila, and Vikramshila. Lord Thomas Babington Macaulay brought the modern form of education and the English language to India in the 1830s. The development of education in India was started by classroom confinement, and by teaching modern subjects like science and maths were part of this curriculum. Subjects like metaphysics and philosophy were deemed unnecessary or not important at that time. And you know what The right to education was initially not included as a fundamental right in the constitution but was included as a Directive Principle under Article 45 which states that it is the duty of the state to endeavor to provide, within a period of 10 years from the commencement of the constitution, for free and compulsory education for all children until they complete the age of 14 years. The directive in Article 45 was not limited to merely primary education rather it extends up to providing free education up to the age of 14 years, whatever the stage of education it came to. Therefore, education for children of this age group should have been free. During this period the Supreme Court also held that  the ‘Right to education' get from other Articles of the Constitution such as Articles 21, 24, 30(i), and 39(e) & (f). The Court emphasized that the primary obligation placed on the state by Article 45 is “to provide for free and compulsory education for children” and it can be discharged through government and aided school and that Article 45 does not required that obligation to be discharged at the expense of the minority communities.

Comparison of Right to Education with other Countries:

Status of Right to Education in India:

Like in India the Right to Education is mentioned under the Constitution of India by The 86th  Constitutional Amendment Act, 2002 which is made with objective to protect the citizen’s rights of education, as well as to overcome the challenges in India regarding education. The 86th Amendment act 2002, makes three exact provisions in Constitution to provide understanding of free and compulsory education to children’s of age between 6 to 14 years as a Fundamental Right. These are as follows:-
  1. Adding Article 21A in part III initiated that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.
  2. Bring alteration and modification in Article 45 and substituted as the state shall endeavors to assure early childhood care and free and compulsory education for all children until they complete the age of 6 years.
  3. The insertion of new clause in Article 51 A, clearly mandates the parents or guardians to furnish opportunities for education of their children between the age group of 6 to 14 years.[Article 51A (k)].

Status of Right to Education in the United States of America:

The right to an education is guaranteed and recognized as a fundamental or basic Human right by the  International law in the Universal Declaration of Human Rights. Similarly, UNESCO’s Constitution sets out the right to an education as necessary in order to “prepare the children of the world for the responsibilities of freedom.” However — and this might come as a surprise to many Americans — The U.S. Constitution mentions no such right nor has the U.S. Supreme Court recognized one. But All kids living in the United States have the right to a free public education. And the Constitution requires that all kids be given equal educational opportunity no matter what their race, ethnic background, religion, or sex, or whether they are rich or poor, citizen or non-citizen. Even if you are in this country illegally, you have the right to go to public school. In addition to this constitutional guarantee of an equal education, many federal, state and local laws also protect students against discrimination in education based on sexual orientation or disability, including pregnancy and HIV status. In fact, even though some kids may complain about having to go to school, the right to an equal educational opportunity is one of the most valuable rights you have. The Supreme Court said this in the landmark Brown v. Board of Education case when it struck down race segregation in public schools. Many people assume that the Federal Court had found a federal Right to Education in Brown v. Board of Education, 347 U.S. 483 (1954). However the court in that case did not held that all students had a right to an education. Rather, it held only that where a state makes public education available, it cannot withhold access to education based on race. Further, it espoused — or at least suggested the possibility of — an individual right to an education. The Federal court came closer to recognizing a federal right to education in Plyler v. Doe, 457 U.S. 202 (1982). There, the state of Texas had foreclosed public school education for undocumented students, and plaintiffs had made an Equal Protection claim. The court found that even though education was not a fundamental right, the state did not have a sufficient interest to withhold education from students whose parents had brought them to this country illegally. Since education is not specifically mentioned as a right or a power of the federal government, Congress does not have the authority to directly regulate education. Education is not currently recognized as a fundamental right in the United States. In 1973’s San Antonio Independent School District v. Rodriguez, the Supreme Court found that education is not explicitly protected under the U.S. Constitution, and its precedent has remained unchallenged at the Supreme Court for over 30 years. Advocates for the right to public education have offered divergent strategies to overcoming the ruling, but none has found success in federal court.

Types / Kinds of Education in India:

Education means the development of the learning and thinking process. And It is not limited to the walls of the classroom but it goes beyond the four walls of the classroom. It is all about gaining experience and therefore we can divide education into three main types:
  1. Formal Education.
  2. Informal Education.
  3. Non-formal Education.
  • Formal Education: This is also known as formal learning which usually takes place within the premises of the school. It is the type of education where the basic academic knowledge that a child learns in a formal manner.This continues from an elementary school to secondary school and further on to colleges. Such type of education is provided by specially qualified teachers who are efficient enough with the art of instruction.Here both the student and the teacher are both aware of the facts and involve themselves into a process of education. Some of the examples of formal education are classroom learning, Institute grading/certification, or planned education of different subjects with a proper syllabus acquired by attending an institution.
  • Informal Education: This is the type of education where a parent teach his/her child things that are beyond academics like preparing a meal or riding a bicycle. People can also get informal education through books or educational websites. This is an education that is not taught in schools through a proper learning method. It is not pre-determined nor deliberate. It is an experience that an individual feel by undergoing regular practice and observing others. Some of the examples are like by teaching a child with some basic personality traits, learning a mother tongue, performing certain extracurricular activities, etc.
  • Non-formal Education: It is a type of education where a person learn about adult basic education, adult literacy education, or skill development. It can take different forms of learning, which is consistently and systematically provided in order to develop a particular skill or ability in an individual.This type of education is highly flexible and it includes a wide range of activities. Some of the examples may be fitness programs, community-based adult education courses, and free courses on different platforms, etc.

Constitutional Provisions Related to the Right to Education

The right to education is a constitutionally protected right in India. The Constitutional provisions which supports and protected the right to education under the constitution of India are:
  1. Article 21-A: It was included to make the right to education a Fundamental rightfor children aged 6 to 14. It states that “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”.This provision was not included in the Constitution of India 1950. It was inserted by the Constitution (Eighty-sixth Amendment) Act, 2010.
  2. Article 45: It talks about the provision for free and compulsory education for children. It states that “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”.
  3. Article 46: It talks about the Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections under which it is clearly stated that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”.
  4. Article 51-A(k): was added as the fundamental duties under Part IV of the Indian Constitution which states that “who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years”.

Legislative Acts Related to the Right to Education:

Right to Education (RTE) Act 2009

The Parliament has enacted the Right to Education Act 2009 (RTE Act) with the objective of regulating the degradation of the standard of the education system and uplifting the education imparting procedure by implementing specific provisions that required certain reformations to live up to the spirit of catering a quality and equitable education irrespective of caste, creed, gender economic and social background. The Act was enacted on 4th August 2009 and came into force on 1st April 2010. The principal features of the Act are as follows:
  1. The Act clearly mentions that education is the Fundamental Right of every child.
  2. Private schools must keep 25% of seats reserved for children belonging to the backward classes in terms of social background.
  3. The Act also provide educational rights for dropout students.
  4. Unrecognized schools are barred and are not allowed from interviewing a child or a parent for admission.
  5. Schools are barred and are not allowed to charge any capitation fees at any step while providing admission to a child.
  6. The Children who are pursuing elementary or primary education shall not be expelled, held back, or pressured to pass a board examination.
  7. The Act mandates that every government and aided schools should create a School Management Committee which composed of 75% of members as parents or guardians.
  8. The Act strictly prohibited physical punishment, mental harassment and private tuition by the teachers.
  9. The Act states that the provisions for a child’s admission to an appropriate class should be based on his/her age in the event that child has never been admitted to any school. And in order To help the child to keep up with other students, provisions relating to special training have also been mentioned in the Act.
The RTE Act 2009 acted as a tool in accelerating and developing the spirit of imparting free and compulsory elementary education to children between the age group of 6 to 14 years. Subsequent to the enforcement of the Act, a drastic change came about in the standard of education both in access and enrolment levels; literacy rates of the states and also enhanced at large. However, lately, due to a lack of an appropriate regulatory framework, the practical application and compliance with the provisions of the Act are facing repeated failure.

Landmark Cases and Judgement

 Case: - 1 Mohini Jain vs State of Karnataka(1992). In this case Miss Mohini Jain, a resident of Meerut applied for the admission in the MBBS course in a session which was commencing from 1991 in a private medical college located in the state of Karnataka. The college management asked her to deposit a sum of Rs 60000/- as the tuition fee for the first year and also to show a bank guarantee of the amount equal to the fee for the remaining year. When Miss Jain’s father questioned the management that the asked amount was beyond his reach, the management denied Ms. Jain’s admission to the medical college. Then Miss Jain informed the court that the management demanded an additional amount of Rs 450000/- however the management denied the allegation. Issues
  1. Whether “Right to Education” is guaranteed to the people of India under the constitution?
  2. Whether the charging of Capitation fees is violation of Article 14 and 21?
Judgment In this case the honourable Supreme Court held that although the right to education is as such has not been guaranteed as a fundamental right under the Indian constitution But it becomes clear from the preamble of the constitution and its Directive Principles contained in part 4 because the framers of the constitution intended that it the duty of  the state to provide education for its citizens. The court also held that the charging of a capitation fee by the private educational institutions violated the right to education as implied from the right to life and human dignity and the right to equal protection of the law. In additional the court held that the private institutions, which are acting as agent of the state have a duty to ensure equal access to and non discrimination the delivery of higher education. Thus we can conclude that The Court, in the absence of any Constitutional Provision for the Right to Education, held that the right to life and personal liberty under Article 21 also includes the Right to Education as education is required for the overall development of personality, without which one would not be able to have the enjoyment of his right to life. The purpose of the right to life is baseless without the Right to Education. Case:-2 Unni Krishnan, J.P & Ors vs State of Andhra Pradesh(1993) The case comes into existence through petitions filed by private educational institutions to challenge the state laws. These state laws were enacted with the objective of regulating the capitation fee charges in the states of Tamil Nadu, Karnataka, Andhra Pradesh and Maharashtra. These Laws mentioned that any person who is involved in the management and taking additional fees will be considered as capitation fees. Issues Whether Right to Education under Article 21 extend to technical education? Judgment In this case the Supreme Court with a Constitutional bench held that the education up to the age of 14 years to be a fundamental right and “It would be therefore incumbent up on the state to provide facilities and opportunity as enjoined under Article 39 (e) and (f) of the constitution in order to prevent exploitation of their childhood due to indigence and vagary”. In this case the Supreme Court By narrowing the approach taken by it in the Mohini Jain case, that the Right to Education is undoubtedly a Fundamental Right under Article 21. However, the right to free education is available to children until they attain the age of 14 years; after that, the obligation of the state to provide education is subject to economic capacity and development. Case:-3 Avinash Mehrotra vs Union of India(2009) In this case, The Court held that it is a fundamental right to have access to education free from the fear of security and shall have appropriate safety measures in case of any threat to life. Therefore, the right to education also includes providing safe schools in accordance with Articles 21 and 21A of the Indian Constitution. No matter where a family seeks to educate its children, even if it is a private institution, then the state must ensure that children shall not suffer any  harm while exercising their fundamental right to Education.

Amendments to Achieve Right to Education

86th Constitutional Amendment (2002)  In 2002, The constitution was amended by the 86th Amendment act with the objective to provide the Right to Education as a fundamental right.This Constitutional Amendment is made with the intent to protect the citizen’s rights to education, as well as to estimate the forthcoming and existing challenges in India concerning education. The Three main provisions in Constitution that 86th Amendment, 2002 incorporates and which promotes free and compulsory education to children between the age 6 to 14 years. They are as follows:-
  1. Article 21A: it was incorporated under the Fundamental Right which are mentioned under (Part III) of the Indian Constitution has expressly mentioned the right of every child to have access to full-time elementary education that would attain the standard of equality and quality through a formal school which would be satisfactory in terms of setting the norms and standard of the education.
  2. Article 45 was Altered and modified: Before the 86th Amendment 2002, Article 45 of Directive Principles of State Policy stated that free and compulsory education shall be provided to children up to the age of 14 years old. However, subsequent to the amendment, Article 45 was altered and modified, which states that “the state shall endeavour to impart early childhood care and education for every child till the age of 6 years instead of 14”. The age limit has been reduced to emphasize the prominence of early childhood care and education.
  3. Article 51-A(k): It was added as the fundamental duties under part IV of the Indian Constitution that it is the duty of the parents and guardians to provide and facilitate the opportunities for education to their children who are between the age group of 6 to 14 years.

CONCLUSION

Thus we can say that now The right to education is recognized today as a fundamental right under the Constitution of India. And This is a relatively recent development. The Constituent Assembly only included that it is the obligation of the state to provide free and compulsory primary education under Article 45 of the Constitution. But this is a Directive Principle of State Policy, which was not enforceable by courts. Articles 29 and 30, however, they are justifiable fundamental rights but they only prevent the state from discriminating against minority groups in access to education or in the establishment of educational institutions. So we all should say thank you to the honorable Supreme Court because it also plays an important role in directly reaching the journey of article 21 A by giving landmark judgments like the Mohini Jain judgment, Unni Krishnan judgment and many more which encourages and motivated the Indian Government to take necessary steps in order to provide Right to Education under Indian Constitution like 86th Constitutional Amendment Act, 2002 and enforcing laws like Right to Education Act, 2009 and many more So Because all of this The right to receive basic elementary education is one of the most important rights. And we can also say that the Right to Education is one of the best legislation in our country. And As per the layman’s perspective, the provision is either good or bad but the law holds the accountability, more.  And once A famous philosopher has said that “law is the public conscience” – Thomas Hobbes. Law is made for the welfare of society and not for the purpose of making the welfare of oneself.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. J N Pandey,”Constitutional Law of India”p.382 Central Law Agency, Allahabad 2022.
    2. Agrawal, Tushar. “Right to Education Act and Educationally Backward States in India.” SSRN Electronic Journal, 2012, doi:10.2139/ssrn.1985122.
    3. Gursharan Singh Kainth “Right to education” Bharti publications Delhi 2014, page no. 29.
  1. Online Articles / Sources Referred
    1. https://www.researchgate.net/publication/342734746_right_to_education_with_special_reference_to_Article_21A
    2. https://www.aclu.org/documents/your-right-equality-education
    3. https://kappanonline.org/underwood-education-american-right/
    4. https://law.vanderbilt.edu/a-novel-argument-for-the-right-to-public-education/
    5. https://eduhutch.blogspot.com/2021/07/definition-of-education.html
    6. https://en.unesco.org/themes/education/sdgs/material/04
    7. https://www.escr-net.org/caselaw/2009/mohini-jain-v-state-karnataka-1992-air-1858
    8. https://www.escr-net.org/caselaw/2006/unni-krishnan-jp-ors-v-state-andhra-pradesh-ors-cited-1993-air-217-1993-scr-1-594-1993
    9. https://www.cuemath.com/learn/3-types-of-education/
    10. https://www.lawctopus.com/academike/right-education-india/
    11. https://www.thehindu.com/news/national/India-joins-list-of-135-countries-in-making-education-a-right/article13666115.ece
    12. https://lawbhoomi.com/development-of-education-as-a-right-in-india/
  1. Cases Referred
    1. AIR 1992 SC 1858
    2. AIR 1993 SC 2178
    3. 6 SCC 398 (2009)
  1. Statutes Referred
    1. Article 21-A of the Constitution of India, 1950
    2. Article 45 of Constitution of India, 1950
    3. Article 51A(k) of Constitution of India, 1950
    4. RTE Act, 2009
    5. 86th Constitutional Amendment Act, 2002
**Content:** **Author-Hemant Jarwal, University Five Year Law College, University Of Rajasthan** ### **INTRODUCTION** ***“Knowledge is power. Information is liberating. Education is the premise of progress, in every society, in every family.”**–* *Kofi Annan**,* *Former Secretary-General of the United Nations.*** From the Time a child is born, his or her education begins. At first, education is an informal process in which an infant watches others and learns from them by either copying them or listening to them. As the infant grows into a young child, the process of education becomes more formal by going to preschool. In grade school, academic lessons become the focus of education as a child moves through the school system. But it is not that simple, education is about much more than the simple learning of facts. Education in the bigger picture is the process of encouraging discovery and innovation in different sectors. From the time we are born, humans keep learning and still learning and will continue learning in the future. Sometimes consciously and many times subconsciously. Education is an effective method in different fields of acquiring knowledge, values, skills, habits, and beliefs. So after knowing and considering all the factors that tell us why education is so important and how can it change our life and our society’s thinking or enhance their perspective from narrow mind to broad mind and how it can help in the overall growth and development of the nation. That’s why To eradicate education poverty, the government of India proposed the Right to Education Act (RTE) in 2009. It came into effect on 1 April 2010. It aims to provide free and compulsory education to children aged six to fourteen years under Article 21-A. Ensure that every child has his or her right to get a quality elementary education. This right also ensures the provision of fundamental or primary education for those who have not completed their basic education. Right to education includes the right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all and an obligation to develop equitable access to higher education. India has a total of 19% of the children population in the world and almost one-third of the illiterate population in the world. But India can change this fact and figures by becoming the most educated population by using its resources to educate its youth. Education is a powerful tool for the uneducated population to grow and fully participate as citizens. And the Right to Education is also universally recognized by the main international instrument, the Universal Declaration of Human Rights (UDHR) as a basic human right to right to education in Article 26 **“*Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit*”.** #### ***Keywords* : Right to Education, Article 21-A, Article 21 Constitution of India, Article 45, 86th Constitutional Amendment Act, UDHR, Right to Education Act.** ### **Meaning, Definition & Explanation** Education is the way that gives us the ideas, skills, techniques, information, and knowledge to know, understand, and respect the duties we have towards our society, families, and nation. Education helps a person to get knowledge and enhance their confidence in life. It can help us to improve our careers and our personal growth. And as an educated person can become a great citizen in society and in the end educated persons help in the development and growth of society and nation. It helps you to make the right decisions in life. Therefore education is very important in life is because it helps everyone develop a good perspective of looking at the world and our society. Education helps us in getting new ideas and exploring new ideas. An uneducated person can never be fully aware of his/her responsibilities towards each other as human beings and the world as a whole. As human beings, we have to give back to the society that we have used and where we live in so that we can make it a better place to live for everybody. Proper education teaches an individual to think beyond their interests and helps them in developing an ability to make the world a happier, safer place for the next generation. It is difficult to give the answer of the question What is education in a few lines. Because the Definition of education is given differently by different people at different times. Therefore, education cannot be defined or described by one’s precise or perfect definition. The definitions given by different educators about its education are given below: 1. **According to Socrates** “Education means the bring out of the ideas of universal validity which are latent in the mind of every man.” 2. **According to Plato** “Education is the capacity to feel pleasure and pain at the right moment it develops in the body and in the soul of the student all the beauty and all the perfection which he capable of.” 3. **According to Aristotle** “Education is the creation of a sound mind in a sound body it develops men’s faculty especially his mind so that he may be able to enjoy the implementation of supreme court goodness and beauty of which perfect happiness essentially consists.” ### **Historical Background / Evolution of Education:** The importance of education in India has been seen from the ancient times. Human education in India can be traced back to ancient times when the Gurukul system was working. In this Guru-Shishya (teacher-disciple) system, those who wanted to study would go to teachers and request to be accepted as a disciple. If they were accepted then the disciple had to stay at the teacher’s place, and apart from learning, he also had to help in other household chores. This system made a strong tie between the Guru and Shishya, and it also taught the disciple that how to run a household. Teachers of that era taught all the subjects in open classrooms like under shadow of trees, under the sun. Languages like Sanskrit and holy scripture, as well as metaphysics and mathematics, were part of the learning process. Learning was based more on the understanding their surroundings and nature, not just memorizing verses or shlokas. This education system got an impetus and developed with universities like Nalanda, Ujjain, Takshashila, and Vikramshila. **Lord Thomas Babington Macaulay** brought the modern form of education and the English language to India in the 1830s. The development of education in India was started by classroom confinement, and by teaching modern subjects like science and maths were part of this curriculum. Subjects like metaphysics and philosophy were deemed unnecessary or not important at that time. And you know what The right to education was initially not included as a fundamental right in the constitution but was included as a Directive Principle under **Article 45** which states that it is the duty of the state to endeavor to provide, within a period of 10 years from the commencement of the constitution, for free and compulsory education for all children until they complete the age of 14 years. The directive in Article 45 was not limited to merely primary education rather it extends up to providing free education up to the age of 14 years, whatever the stage of education it came to. Therefore, education for children of this age group should have been free. During this period the Supreme Court also held that the ‘Right to education’ get from other Articles of the Constitution such as **Articles 21, 24, 30(i), and 39(e) & (f).** The Court emphasized that the primary obligation placed on the state by Article 45 is **“to provide for free and compulsory education for children”** and it can be discharged through government and aided school and that Article 45 does not required that obligation to be discharged at the expense of the minority communities. ### **Comparison of Right to Education with other Countries:** #### **Status of Right to Education in India:** Like in **India** the **Right to Education** is mentioned under the Constitution of India by **The 86th Constitutional Amendment Act, 2002** which is made with objective to protect the citizen’s rights of education, as well as to overcome the challenges in India regarding education. The 86th Amendment act 2002**,** makes three exact provisions in Constitution to provide understanding of free and compulsory education to children’s of age between 6 to 14 years as a Fundamental Right. These are as follows:- 1. **Adding Article 21A in part III** initiated that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. 2. Bring alteration and modification in **Article 45** and substituted as the state shall endeavors to assure early childhood care and free and compulsory education for all children until they complete the age of 6 years. 3. The insertion of new clause in **Article 51 A**, clearly mandates the parents or guardians to furnish opportunities for education of their children between the age group of 6 to 14 years.**\[Article 51A (k)\]**. #### **Status of Right to Education in the United States of America:** The right to an education is guaranteed and recognized as a fundamental or basic Human right by the International law in the **Universal Declaration of Human Rights**. Similarly, **UNESCO’s Constitution** sets out the right to an education as necessary in order to **“prepare the children of the world for the responsibilities of freedom.”** However — and this might come as a surprise to many Americans — The U.S. Constitution mentions no such right nor has the U.S. Supreme Court recognized one. But All kids living in the United States have the right to a free public education. And the Constitution requires that all kids be given **equal educational opportunity no matter what their race, ethnic background, religion, or sex, or whether they are rich or poor, citizen or non-citizen.** Even if you are in this country illegally, you have the right to go to public school. In addition to this constitutional guarantee of an equal education, many federal, state and local laws also **protect students against discrimination in education based on sexual orientation or disability, including pregnancy and HIV status.** In fact, even though some kids may complain about having to go to school, **the right to an equal educational opportunity is one of the most valuable rights you have.** The Supreme Court said this in the **landmark *Brown v. Board of Education* case** when it struck down race segregation in public schools. Many people assume that the **Federal Court** had found a federal **Right to Education** in ***Brown v. Board of Education, 347 U.S. 483 (1954)***. However the court in that case did not held that all students had a right to an education. Rather, it held only that where a state makes public education available, it cannot withhold access to education based on race. Further, it espoused — or at least suggested the possibility of — an individual right to an education. The Federal court came closer to recognizing a federal right to education in ***Plyler v. Doe, 457 U.S. 202 (1982)*.** There, the state of Texas had foreclosed public school education for undocumented students, and plaintiffs had made an Equal Protection claim. The court found that even though education was not a fundamental right, the state did not have a sufficient interest to withhold education from students whose parents had brought them to this country illegally. Since education is not specifically mentioned as a right or a power of the federal government, Congress does not have the authority to directly regulate education. Education is not currently recognized as a fundamental right in the United States. In **1973’s *San Antonio Independent School District v. Rodriguez***, the Supreme Court found that education is not explicitly protected under the U.S. Constitution, and its precedent has remained unchallenged at the Supreme Court for over 30 years. Advocates for the right to public education have offered divergent strategies to overcoming the ruling, but none has found success in federal court. ### **Types / Kinds of Education in India:** Education means the development of the learning and thinking process. And It is not limited to the walls of the classroom but it goes beyond the four walls of the classroom. It is all about gaining experience and therefore we can divide education into three main types: 1. Formal Education. 2. Informal Education. 3. Non-formal Education. - **Formal Education:** This is also known as formal learning which usually takes place within the premises of the school. It is the type of education where the basic academic knowledge that a child learns in a formal manner.This continues from an elementary school to secondary school and further on to colleges. Such type of education is provided by specially qualified teachers who are efficient enough with the art of instruction.Here both the student and the teacher are both aware of the facts and involve themselves into a process of education. Some of the examples of formal education are classroom learning, Institute grading/certification, or planned education of different subjects with a proper syllabus acquired by attending an institution. - **Informal Education:** This is the type of education where a parent teach his/her child things that are beyond academics like preparing a meal or riding a bicycle. People can also get informal education through books or educational websites. This is an education that is not taught in schools through a proper learning method. It is not pre-determined nor deliberate. It is an experience that an individual feel by undergoing regular practice and observing others. Some of the examples are like by teaching a child with some basic personality traits, learning a mother tongue, performing certain extracurricular activities, etc. - **Non-formal Education:** It is a type of education where a person learn about adult basic education, adult literacy education, or skill development. It can take different forms of learning, which is consistently and systematically provided in order to develop a particular skill or ability in an individual.This type of education is highly flexible and it includes a wide range of activities. Some of the examples may be fitness programs, community-based adult education courses, and free courses on different platforms, etc. ### **Constitutional Provisions Related to the Right to Education** The right to education is a constitutionally protected right in India. The Constitutional provisions which supports and protected the right to education under the constitution of India are: 1. **Article 21-A:** It was included to make the right to education a **Fundamental right**for children aged 6 to 14. It states that ***“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”***.This provision was not included in the Constitution of India 1950. It was inserted by the Constitution (Eighty-sixth Amendment) Act, 2010. 2. **Article 45:** It talks about the provision for free and compulsory education for children. It states that ***“The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”.*** 3. **Article 46:** It talks about the **Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections under which it is clearly stated that *“The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”.*** 4. **Article 51-A(k):** was added as the fundamental duties under Part IV of the Indian Constitution which states that ***“who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years”.*** ### **Legislative Acts Related to the Right to Education:** #### **Right to Education (RTE) Act 2009** The Parliament has enacted the Right to Education Act 2009 (RTE Act) with the objective of regulating the degradation of the standard of the education system and uplifting the education imparting procedure by implementing specific provisions that required certain reformations to live up to the spirit of catering a quality and equitable education irrespective of caste, creed, gender economic and social background. The Act was enacted on 4th August 2009 and came into force on 1st April 2010. The principal features of the Act are as follows: 1. The Act clearly mentions that education is the Fundamental Right of every child. 2. Private schools must keep 25% of seats reserved for children belonging to the backward classes in terms of social background. 3. The Act also provide educational rights for dropout students. 4. Unrecognized schools are barred and are not allowed from interviewing a child or a parent for admission. 5. Schools are barred and are not allowed to charge any capitation fees at any step while providing admission to a child. 6. The Children who are pursuing elementary or primary education shall not be expelled, held back, or pressured to pass a board examination. 7. The Act mandates that every government and aided schools should create a School Management Committee which composed of 75% of members as parents or guardians. 8. The Act strictly prohibited physical punishment, mental harassment and private tuition by the teachers. 9. The Act states that the provisions for a child’s admission to an appropriate class should be based on his/her age in the event that child has never been admitted to any school. And in order To help the child to keep up with other students, provisions relating to special training have also been mentioned in the Act. The RTE Act 2009 acted as a tool in accelerating and developing the spirit of imparting free and compulsory elementary education to children between the age group of 6 to 14 years. Subsequent to the enforcement of the Act, a drastic change came about in the standard of education both in access and enrolment levels; literacy rates of the states and also enhanced at large. However, lately, due to a lack of an appropriate regulatory framework, the practical application and compliance with the provisions of the Act are facing repeated failure. ### **Landmark Cases and Judgement** Case: – 1 Mohini Jain vs State of Karnataka(1992).** In this case Miss Mohini Jain, a resident of Meerut applied for the admission in the MBBS course in a session which was commencing from 1991 in a private medical college located in the state of Karnataka. The college management asked her to deposit a sum of Rs 60000/- as the tuition fee for the first year and also to show a bank guarantee of the amount equal to the fee for the remaining year. When Miss Jain’s father questioned the management that the asked amount was beyond his reach, the management denied Ms. Jain’s admission to the medical college. Then Miss Jain informed the court that the management demanded an additional amount of Rs 450000/- however the management denied the allegation. **Issues** 1. Whether “Right to Education” is guaranteed to the people of India under the constitution? 2. Whether the charging of Capitation fees is violation of Article 14 and 21? **Judgment** In this case the honourable Supreme Court held that although the right to education is as such has not been guaranteed as a fundamental right under the Indian constitution But it becomes clear from the preamble of the constitution and its Directive Principles contained in part 4 because the framers of the constitution intended that it the duty of the state to provide education for its citizens. The court also held that the charging of a capitation fee by the private educational institutions violated the right to education as implied from the right to life and human dignity and the right to equal protection of the law. In additional the court held that the private institutions, which are acting as agent of the state have a duty to ensure equal access to and non discrimination the delivery of higher education. Thus we can conclude that The Court, in the absence of any Constitutional Provision for the Right to Education, held that the right to life and personal liberty under Article 21 also includes the Right to Education as education is required for the overall development of personality, without which one would not be able to have the enjoyment of his right to life. The purpose of the right to life is baseless without the Right to Education. **Case:-2 Unni Krishnan, J.P & Ors** **vs State of Andhra Pradesh(1993)** The case comes into existence through petitions filed by private educational institutions to challenge the state laws. These state laws were enacted with the objective of regulating the capitation fee charges in the states of Tamil Nadu, Karnataka, Andhra Pradesh and Maharashtra. These Laws mentioned that any person who is involved in the management and taking additional fees will be considered as capitation fees. **Issues** Whether Right to Education under Article 21 extend to technical education? **Judgment** In this case the Supreme Court with a Constitutional bench held that the education up to the age of 14 years to be a fundamental right and “It would be therefore incumbent up on the state to provide facilities and opportunity as enjoined under Article 39 (e) and (f) of the constitution in order to prevent exploitation of their childhood due to indigence and vagary”. In this case the Supreme Court By narrowing the approach taken by it in the Mohini Jain case, that the Right to Education is undoubtedly a Fundamental Right under Article 21. However, the right to free education is available to children until they attain the age of 14 years; after that, the obligation of the state to provide education is subject to economic capacity and development. **Case:-3 Avinash Mehrotra vs Union of India(2009)** In this case, The Court held that it is a fundamental right to have access to education free from the fear of security and shall have appropriate safety measures in case of any threat to life. Therefore, the right to education also includes providing safe schools in accordance with Articles 21 and 21A of the Indian Constitution. No matter where a family seeks to educate its children, even if it is a private institution, then the state must ensure that children shall not suffer any harm while exercising their fundamental right to Education. ### **Amendments to Achieve Right to Education** **86th Constitutional Amendment (2002) In 2002, The constitution was amended by the 86th Amendment act with the objective to provide the Right to Education as a fundamental right.This Constitutional Amendment is made with the intent to protect the citizen’s rights to education, as well as to estimate the forthcoming and existing challenges in India concerning education. The Three main provisions in Constitution that 86th Amendment, 2002 incorporates and which promotes free and compulsory education to children between the age 6 to 14 years. They are as follows:- 1. **Article 21A:** it was incorporated under the Fundamental Right which are mentioned under (Part III) of the Indian Constitution has expressly mentioned the right of every child to have access to full-time elementary education that would attain the standard of equality and quality through a formal school which would be satisfactory in terms of setting the norms and standard of the education. 2. **Article 45 was Altered and modified:** Before the 86th Amendment 2002, Article 45 of Directive Principles of State Policy stated that free and compulsory education shall be provided to children up to the age of 14 years old. However, subsequent to the amendment, Article 45 was altered and modified, which states that “the state shall endeavour to impart early childhood care and education for every child till the age of 6 years instead of 14”. The age limit has been reduced to emphasize the prominence of early childhood care and education. 3. **Article 51-A(k): It** was added as the fundamental duties under part IV of the Indian Constitution that it is the duty of the parents and guardians to provide and facilitate the opportunities for education to their children who are between the age group of 6 to 14 years. ### **CONCLUSION** Thus we can say that now The right to education is recognized today as a fundamental right under the Constitution of India. And This is a relatively recent development. The Constituent Assembly only included that it is the obligation of the state to provide free and compulsory primary education under Article 45 of the Constitution. But this is a Directive Principle of State Policy, which was not enforceable by courts. Articles 29 and 30, however, they are justifiable fundamental rights but they only prevent the state from discriminating against minority groups in access to education or in the establishment of educational institutions. So we all should say thank you to the honorable Supreme Court because it also plays an important role in directly reaching the journey of article 21 A by giving landmark judgments like the ***Mohini Jain*** judgment, ***Unni Krishnan*** *judgment and many more which encourages and motivated the Indian Government to take necessary steps in order to provide Right to Education under Indian Constitution like 86th Constitutional Amendment Act, 2002 and enforcing laws like Right to Education Act, 2009 and many more So Because all of this* The right to receive basic elementary education is one of the most important rights. And we can also say that the Right to Education is one of the best legislation in our country. And As per the layman’s perspective, the provision is either good or bad but the law holds the accountability, more. And once A famous philosopher has said that “law is the public conscience” – Thomas Hobbes. Law is made for the welfare of society and not for the purpose of making the welfare of oneself. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 2022. J N Pandey,”Constitutional Law of India”p.382 Central Law Agency, Allahabad 2022. 2023. Agrawal, Tushar. “Right to Education Act and Educationally Backward States in India.” SSRN Electronic Journal, 2012, doi:10.2139/ssrn.1985122. 2024. Gursharan Singh Kainth “Right to education” Bharti publications Delhi 2014, page no. 29. 2. **Online Articles / Sources Referred** 1. [https://www.researchgate.net/publication/342734746\_right\_to\_education\_with\_special\_reference\_to\_Article\_21A](https://www.researchgate.net/publication/342734746_right_to_education_with_special_reference_to_Article_21A) 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 3. **Cases Referred** 1. AIR 1992 SC 1858 2. AIR 1993 SC 2178 3. 6 SCC 398 (2009) 4. **Statutes Referred** 1. Article 21-A of the Constitution of India, 1950 2. Article 45 of Constitution of India, 1950 3. Article 51A(k) of Constitution of India, 1950 4. RTE Act, 2009 5. *86th Constitutional Amendment Act, 2002* **Categories:** Articles --- ### [DIVORCE](https://lawfoyer.in/divorce/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Muskan Srivastav, Amity University, Lucknow

ABSTRACT

Divorce is a source through which a husband and wife officially and legally can end their marriage. It is a formal process of ending a marriage, it's not like a temporary separation. If someone gets a divorce it means that their marriage has ended and is officially over. Divorce carries out both emotions happy and sad. it's not necessary in everyone's case that divorce is peace but in some cases it is. Now, that's another thing no one values the emotion of marriage and uses divorce as a toy. whatever law is made in India or in any country it has both positive and negative impacts with it, divorce is also like this. There are many grounds for divorce. There are many reasons why one can decide to take a divorce either because of constant conflict or because of other things like going to die soon because of a disease or getting caught cheating, and let's not assume that the reason for all this will always be men, no it's not always men, sometimes it's women who misuses their rights and cheat and then lead to divorce. Both men and women are equally responsible for the mishap in the society. But at the end of the day, divorce is the only way to end a toxic relationship which could be dangerous for the couples and children in the future. Keywords (Minimum 5): divorce, emotion of marriage, ending of toxicity, misuse rights, positive and negative impact

INTRODUCTION

If two people can’t compromise with each other and are victims of a toxic or forced relationship they need to be separated, and for that law exists. Divorce, it’s a mean or a way for a person to escape from a forced and stressful relationship through a legal and formal process, if they are separated in the eye of the law then no one can dare to interfere in their matter or force them to stay in a relationship. In earlier days it was not possible to get a divorce or get separated from an unwanted or toxic partner, it is one of the main reasons why domestic violence took place in large numbers in every household. Divorce is nothing new it has been coming in power for years to years but there is this difference that divorce was not mutual in earlier days, it was all up to the man, if he wants to stay with his wife he will and if he doesn’t then he would simply send their wife back to their home, they are not official separated but living separately. In other countries, the divorce system was famous and was enacted, but in India, it took time for women to realize their rights and to take a stand for themselves. Because in India it was taught to every girl that their husband is their everything and that they should just follow their husband’s order and accept their toxic and immoral behavior as they are their “Pati Parmeshwar” and that they should worship them. But that’s a relief that now women in India are aware of their rights they know what is wrong and what is right, if they should stay or just let it go.

Meaning & Explanation

Divorce is a source and an act by which a valid marriage can turn into void and null in the eye of the law. The main motive of divorce is to free the other party to live their life as they want or remarry if they plan to do so. Divorce generally imposes the nullification or restructures of the legal duties and obligations of marriage. It can be said as a lawful conclusion of a marriage by the court or other qualified body. People decide to get divorced when things get too tangled up and out of control. If two people cannot compromise for an hour, a second, or a day there is no chance that they would be able to spend the rest of their lives together. By keeping all this in mind that this not compatible individual’s life would become hell in the future if lived together, a law was formed known as Divorce. Divorce declares a marriage null and void in the eye of the law. Divorce is surely needed as a safety law, everyone needs to compromise with their partner in married life but compromise includes things like trust, giving independence, mutual understanding, compromising with each other’s unexperienced habits if have one, letting each other live their life as they want, and no single dominant partner, both to be treated equally. These are some of the things which are needed between a married couple but the main thing is mutual understanding, if this is not between the couple then the marriage is long ago over. If two individuals in a marriage are not compatible it is hard for them to live, it would feel like jail or hell for them every day as if they are prisoned in a forced relationship, and that’s why they need to be separated and for that a legal formal process ‘DIVORCE’ has been made. Though in India it is not just a paper away work, it took a lot of courage to come to this decision because some religions or societies still don’t accept a divorcee in a society, and they get a lot of backlash for being a divorcee.

Background & Evolution

Divorce known as a legal way for separation, was found and practiced in British India in the year 1869 and this law was not really for Indians it was generally made for Christians who were looking for a way to end marriage lawfully, resulting in divorce. In India it was not easy to generalize the system of divorce, Indian society would never accept a divorcee in a society so they would not let a couple end their relationship. Even if they are in a toxic relationship, they need to stay just like this and bear with it for the rest of their life. This later on resulted in an increasing rate of domestic violence. In India divorce was not normalized at that time they gave a lot of importance to the patriarchy and women were not educated enough to be aware of their rights. Later on, in the year 1955, an act was formed known as the Hindu Marriage Act, 1955. It was made to let people file for divorce under this act. The Hindu Marriage Act is established to help both bride and groom to safeguard their fundamental rights and right to live without any violence and discomfort. Several laws were made under this act in favor of women, and that was needed because in earlier times women tended to suffer a lot more than men. sometimes men also suffer in a relationship but the majority are always women. After the act was made women started getting aware of their rights and started to take a stand for themselves. They realized that they don’t need to be in a toxic relationship forcefully they can end things if it’s getting overboard. It doesn’t mean that a husband or wife is cheating on their partner and for remarriage they need to let go of their partner so they file for divorce, if such a case happens the other partner can reach out to the court for restitution of conjugal rights if the reason of divorce is not a reasonable and legal excuse, they can reach court for that. The process of divorce has evolved a lot in the present time the rate of divorce is also getting high in India which was not possible in earlier times, but it doesn’t mean that it only has a positive impact, it has both positive and negative. Positive because now both individuals can live freely and however, they want, and negative because by all these divorce processes children suffer a lot they get childhood trauma, they get the incomplete love of parents, as they experience the pain of separation from loved ones in a very young age. Divorce has evolved a lot over time, everyone is now aware of the process of ending a toxic relationship that they won’t dare to spend the rest of their life.

Comparison with other Countries

India has the lowest rate of divorce worldwide. Generally, western societies traditionally have higher divorce rates than Asians. It’s not a great thing that India has the lowest rate of divorce because it means that they are forced to stay in an unwanted relationship. After all, they are afraid of the backlash they would get if they get a divorce. India is a diverse country and values their culture a lot, it is a country where people still decide to stay in a joint family and depend on each other. On the other hand in Western culture, no one stays in a joint family even teens start living on their own by coming to an age, when they don’t care much about society culture, and norms they do what they like and feel like to do without thinking of society, in western societies an individual’s decision is respected they won’t get judged by the society they don’t fear society’s thought process that much. In India, it is hard for a divorcee to live freely because society would look down on that person rather than feel sympathetic for them and demotivate them by their words. Unlike in other countries where love marriage is normalized, every individual has the right to marry whoever they want irrespective of their caste, creed, or religion. India is not at all like this, Indian culture doesn’t support love marriage, inter cast, or inter religion much. The majority of Indian weddings are arranged and in arranged marriages, individuals don’t know each other that much which results in a lack of intimacy and love which makes them stay with their partner longer. Another difference is the financial dependency of women on men, In western culture very few females are dependent financially on their husbands, the majority are financially independent while in India majority of females are dependent on their husbands financially, nowadays this thing is changing and women in India is also getting financially independent on their own but majorities are not really financially independent, they depend on their husband, this is the reason why the divorce rate in western countries is much more in comparison to India. In India divorce generally takes place in rich class family, middle class people avoid getting divorced as much as they can.

GROUNDS

In India, divorce is granted mainly on various grounds. These are Adultery, Desertion, Cruelty, mental disorders, chronic disease leprosy; venereal disease, etc. These grounds for divorce in India are mentioned under the Hindu Marriage Act, of 1955.

ADULTERY

Adultery is an act where a person is involved in any kind of sexual relationship, also intercourse outside marriage. If husband or wife is cheating on each other by committing an act of adultery then this single act is enough for the petitioner to get a divorce. Adultery is known as a criminal offense and requires considerable proof to establish it.

CRUELTY

In marriage, if the partner gives physical or mental injury to their partner then a spouse can file a divorce case. The cruelty under the Hindu Marriage Act includes any type of false allegation, excessive demand of dowry, an injury that causes danger to life, perverse sexual act, mental torture, and such types of cruel offenses are defined under this act.

DESERTION

In a marriage if the husband or wife by their own choice disowns his/her partner for some time such as two to three years, then the abandoned spouse can file a divorce case.

MENTAL DISORDER

If one of the partners is suffering from any type of mental disorder that in incurable and results in insanity which may harm the spouse in the future and they won’t be able to stay till last together, then the spouse can file for divorce on the grounds of mental disorder.

VENEREAL DISEASE

If one of the partners is suffering from a serious disease that can be transmitted easily and is communicable, such as AIDS is considered as venereal disease. Then the spouse can file a divorce on the grounds of venereal disease. There are many more grounds for divorce these were some of them explained in short.

PRINCIPLE

There are certain rules and principles for divorce in India under the Hindu Marriage Act, of 1955, which apply only to Hindu religious people. Every religion has its customs and culture, so some laws are made differently by keeping the religion and customs in mind. Nowadays, even in India, the partners don’t hesitate much to get a divorce and move on in their lives. According to section 13 B (2), if the married couple moves to the court for divorce with mutual consent, a mandatory six-month period is given to them in case they change their mind in these six months. this rehabilitation six-month period was necessary to give, but now there is a change in the rule and it’s not that mandatory anymore, now it depends on the court’s discretion. A civil court can only give the order for divorce. there are other rules and principles which help to understand the divorce process clearly, it helps to understand all the process. CASE LAWS
  • Akanksha vs Anupam Mathur
In this case, it was observed by the supreme court that the couple had made a voluntary decision to divorce and that there was no need to make the couple wait another 6 months for divorce. the court decided to dismiss the 6-month time limit and conclude the marriage.
  • Sangamitra Ghose Vs. Kajal Kumar Ghosh
In this case, the court states that they are fully satisfied that the marriage between the couple has irretrievably broken down because of inconsistency of personality. there has been a total vanishing of an emotional framework in the marriage.
  • Naveen Kohli v. Neelu Kohli (2006)
This divorce case is based on the ground of cruelty, the Supreme Court restates that if a marriage has broken down hopelessly or irretrievably and there is no possible sign of reunion, then it can be considered a reasonable ground for divorce. The court noticed and concluded that it was a waste to force parties to live together as it would only lead to great disaster.

Statistical Analysis / Data Analysis

  • India has the lowest divorce rate worldwide.
  • 108 divorces in 2021(0.077)
  • 315 divorces in 2020 (0.022)
Because of patriarchy, male-dominated society, culture, norms, and women’s financial dependency, the divorce rate in India is lowest.

CONCLUSION & COMMENTS

Divorce is not just an ordinary social importance; it is a serious social and psychological significance.in India, it was not easy to get divorced or even think about getting a divorce. Divorce is an escape for those spouses who suffer every minute and hour of suffering in the guilt of living with someone toxic or not compatible with them. Divorce affects the personal and social life of the partner and the whole family members. To safeguard the divorce process from getting misused by any spouse, several grounds were made. These grounds help decide the valid reason for granting a divorce. After 1955 when the reformers introduced the Hindu Marriage Act, 1955, it became easy for the parties to resolve any dispute going on in their married life, and could leave if things got too complicated and hard to handle for the rest of their life. Before 1955, there was no provision for separation or leaving the partner legally. Divorce rates are now increasing because of changes in the mindset of an individual, people are getting educated about their rights and know how to fight for themselves, they come forward and take a stand for themselves and move on in their lives. Though divorce rate of India used to be the lowest and still is the lowest compared to other countries.

REFERENCES

  1. Online Articles / Sources Referred
    1. https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/#:~:text=A%20brief%20history%20of%20the,divorce%20or%20allow%20for%20it
    2. https://divorce.com/blog/divorce-rates-in-the-world/#:~:text=Lowest%20Divorce%20Rate%20Country,)%20and%202021%20(0.077
    3. https://aishwaryasandeep.in/concept-of-irretrievable-breakdown-of-marriage/#:~:text=Case%3A%20Sangamitra%20Ghose%20vs.,emotional%20substratum%20in%20the%20marriage
  1. Cases Referred
    1. Akanksha vs Anupam Mathur
    2. Sangamitra Ghose Vs. Kajal Kumar Ghosh
    3. Naveen Kohli v. Neelu Kohli (2006)
  1. Statutes Referred
    1. Hindu Marriage Act, 1995
**Content:** **Author-Muskan Srivastav, Amity University, Lucknow** ### **ABSTRACT** Divorce is a source through which a husband and wife officially and legally can end their marriage. It is a formal process of ending a marriage, it’s not like a temporary separation. If someone gets a divorce it means that their marriage has ended and is officially over. Divorce carries out both emotions happy and sad. it’s not necessary in everyone’s case that divorce is peace but in some cases it is. Now, that’s another thing no one values the emotion of marriage and uses divorce as a toy. whatever law is made in India or in any country it has both positive and negative impacts with it, divorce is also like this. There are many grounds for divorce. There are many reasons why one can decide to take a divorce either because of constant conflict or because of other things like going to die soon because of a disease or getting caught cheating, and let’s not assume that the reason for all this will always be men, no it’s not always men, sometimes it’s women who misuses their rights and cheat and then lead to divorce. Both men and women are equally responsible for the mishap in the society. But at the end of the day, divorce is the only way to end a toxic relationship which could be dangerous for the couples and children in the future. ***Keywords* *(Minimum 5)*:** divorce, emotion of marriage, ending of toxicity, misuse rights, positive and negative impact ### **INTRODUCTION** If two people can’t compromise with each other and are victims of a toxic or forced relationship they need to be separated, and for that law exists. Divorce, it’s a mean or a way for a person to escape from a forced and stressful relationship through a legal and formal process, if they are separated in the eye of the law then no one can dare to interfere in their matter or force them to stay in a relationship. In earlier days it was not possible to get a divorce or get separated from an unwanted or toxic partner, it is one of the main reasons why domestic violence took place in large numbers in every household. Divorce is nothing new it has been coming in power for years to years but there is this difference that divorce was not mutual in earlier days, it was all up to the man, if he wants to stay with his wife he will and if he doesn’t then he would simply send their wife back to their home, they are not official separated but living separately. In other countries, the divorce system was famous and was enacted, but in India, it took time for women to realize their rights and to take a stand for themselves. Because in India it was taught to every girl that their husband is their everything and that they should just follow their husband’s order and accept their toxic and immoral behavior as they are their “Pati Parmeshwar” and that they should worship them. But that’s a relief that now women in India are aware of their rights they know what is wrong and what is right, if they should stay or just let it go. ### **Meaning & Explanation** Divorce is a source and an act by which a valid marriage can turn into void and null in the eye of the law. The main motive of divorce is to free the other party to live their life as they want or remarry if they plan to do so. Divorce generally imposes the nullification or restructures of the legal duties and obligations of marriage. It can be said as a lawful conclusion of a marriage by the court or other qualified body. People decide to get divorced when things get too tangled up and out of control. If two people cannot compromise for an hour, a second, or a day there is no chance that they would be able to spend the rest of their lives together. By keeping all this in mind that this not compatible individual’s life would become hell in the future if lived together, a law was formed known as Divorce. Divorce declares a marriage null and void in the eye of the law. Divorce is surely needed as a safety law, everyone needs to compromise with their partner in married life but compromise includes things like trust, giving independence, mutual understanding, compromising with each other’s unexperienced habits if have one, letting each other live their life as they want, and no single dominant partner, both to be treated equally. These are some of the things which are needed between a married couple but the main thing is mutual understanding, if this is not between the couple then the marriage is long ago over. If two individuals in a marriage are not compatible it is hard for them to live, it would feel like jail or hell for them every day as if they are prisoned in a forced relationship, and that’s why they need to be separated and for that a legal formal process ‘DIVORCE’ has been made. Though in India it is not just a paper away work, it took a lot of courage to come to this decision because some religions or societies still don’t accept a divorcee in a society, and they get a lot of backlash for being a divorcee. ### **Background & Evolution** Divorce known as a legal way for separation, was found and practiced in British India in the year 1869 and this law was not really for Indians it was generally made for Christians who were looking for a way to end marriage lawfully, resulting in divorce. In India it was not easy to generalize the system of divorce, Indian society would never accept a divorcee in a society so they would not let a couple end their relationship. Even if they are in a toxic relationship, they need to stay just like this and bear with it for the rest of their life. This later on resulted in an increasing rate of domestic violence. In India divorce was not normalized at that time they gave a lot of importance to the patriarchy and women were not educated enough to be aware of their rights. Later on, in the year 1955, an act was formed known as the Hindu Marriage Act, 1955. It was made to let people file for divorce under this act. The Hindu Marriage Act is established to help both bride and groom to safeguard their fundamental rights and right to live without any violence and discomfort. Several laws were made under this act in favor of women, and that was needed because in earlier times women tended to suffer a lot more than men. sometimes men also suffer in a relationship but the majority are always women. After the act was made women started getting aware of their rights and started to take a stand for themselves. They realized that they don’t need to be in a toxic relationship forcefully they can end things if it’s getting overboard. It doesn’t mean that a husband or wife is cheating on their partner and for remarriage they need to let go of their partner so they file for divorce, if such a case happens the other partner can reach out to the court for restitution of conjugal rights if the reason of divorce is not a reasonable and legal excuse, they can reach court for that. The process of divorce has evolved a lot in the present time the rate of divorce is also getting high in India which was not possible in earlier times, but it doesn’t mean that it only has a positive impact, it has both positive and negative. Positive because now both individuals can live freely and however, they want, and negative because by all these divorce processes children suffer a lot they get childhood trauma, they get the incomplete love of parents, as they experience the pain of separation from loved ones in a very young age. Divorce has evolved a lot over time, everyone is now aware of the process of ending a toxic relationship that they won’t dare to spend the rest of their life. ### Comparison with other Countries India has the lowest rate of divorce worldwide. Generally, western societies traditionally have higher divorce rates than Asians. It’s not a great thing that India has the lowest rate of divorce because it means that they are forced to stay in an unwanted relationship. After all, they are afraid of the backlash they would get if they get a divorce. India is a diverse country and values their culture a lot, it is a country where people still decide to stay in a joint family and depend on each other. On the other hand in Western culture, no one stays in a joint family even teens start living on their own by coming to an age, when they don’t care much about society culture, and norms they do what they like and feel like to do without thinking of society, in western societies an individual’s decision is respected they won’t get judged by the society they don’t fear society’s thought process that much. In India, it is hard for a divorcee to live freely because society would look down on that person rather than feel sympathetic for them and demotivate them by their words. Unlike in other countries where love marriage is normalized, every individual has the right to marry whoever they want irrespective of their caste, creed, or religion. India is not at all like this, Indian culture doesn’t support love marriage, inter cast, or inter religion much. The majority of Indian weddings are arranged and in arranged marriages, individuals don’t know each other that much which results in a lack of intimacy and love which makes them stay with their partner longer. Another difference is the financial dependency of women on men, In western culture very few females are dependent financially on their husbands, the majority are financially independent while in India majority of females are dependent on their husbands financially, nowadays this thing is changing and women in India is also getting financially independent on their own but majorities are not really financially independent, they depend on their husband, this is the reason why the divorce rate in western countries is much more in comparison to India. In India divorce generally takes place in rich class family, middle class people avoid getting divorced as much as they can. ### **GROUNDS** In India, divorce is granted mainly on various grounds. These are Adultery, Desertion, Cruelty, mental disorders, chronic disease leprosy; venereal disease, etc. These grounds for divorce in India are mentioned under the Hindu Marriage Act, of 1955. #### **ADULTERY** Adultery is an act where a person is involved in any kind of sexual relationship, also intercourse outside marriage. If husband or wife is cheating on each other by committing an act of adultery then this single act is enough for the petitioner to get a divorce. Adultery is known as a criminal offense and requires considerable proof to establish it. #### **CRUELTY** In marriage, if the partner gives physical or mental injury to their partner then a spouse can file a divorce case. The cruelty under the Hindu Marriage Act includes any type of false allegation, excessive demand of dowry, an injury that causes danger to life, perverse sexual act, mental torture, and such types of cruel offenses are defined under this act. #### **DESERTION** In a marriage if the husband or wife by their own choice disowns his/her partner for some time such as two to three years, then the abandoned spouse can file a divorce case. #### **MENTAL DISORDER** If one of the partners is suffering from any type of mental disorder that in incurable and results in insanity which may harm the spouse in the future and they won’t be able to stay till last together, then the spouse can file for divorce on the grounds of mental disorder. #### **VENEREAL DISEASE** If one of the partners is suffering from a serious disease that can be transmitted easily and is communicable, such as AIDS is considered as venereal disease. Then the spouse can file a divorce on the grounds of venereal disease. There are many more grounds for divorce these were some of them explained in short. ### **PRINCIPLE** There are certain rules and principles for divorce in India under the Hindu Marriage Act, of 1955, which apply only to Hindu religious people. Every religion has its customs and culture, so some laws are made differently by keeping the religion and customs in mind. Nowadays, even in India, the partners don’t hesitate much to get a divorce and move on in their lives. According to section 13 B (2), if the married couple moves to the court for divorce with mutual consent, a mandatory six-month period is given to them in case they change their mind in these six months. this rehabilitation six-month period was necessary to give, but now there is a change in the rule and it’s not that mandatory anymore, now it depends on the court’s discretion. A civil court can only give the order for divorce. there are other rules and principles which help to understand the divorce process clearly, it helps to understand all the process. **CASE LAWS** - **Akanksha vs Anupam Mathur** In this case, it was observed by the supreme court that the couple had made a voluntary decision to divorce and that there was no need to make the couple wait another 6 months for divorce. the court decided to dismiss the 6-month time limit and conclude the marriage. - **Sangamitra Ghose Vs. Kajal Kumar Ghosh** In this case, the court states that they are fully satisfied that the marriage between the couple has irretrievably broken down because of inconsistency of personality. there has been a total vanishing of an emotional framework in the marriage. - **Naveen Kohli v. Neelu Kohli (2006**) This divorce case is based on the ground of cruelty, the Supreme Court restates that if a marriage has broken down hopelessly or irretrievably and there is no possible sign of reunion, then it can be considered a reasonable ground for divorce. The court noticed and concluded that it was a waste to force parties to live together as it would only lead to great disaster. ### **Statistical Analysis / Data Analysis** - India has the lowest divorce rate worldwide. - 108 divorces in 2021(0.077) - 315 divorces in 2020 (0.022) Because of patriarchy, male-dominated society, culture, norms, and women’s financial dependency, the divorce rate in India is lowest. ### **CONCLUSION & COMMENTS** Divorce is not just an ordinary social importance; it is a serious social and psychological significance.in India, it was not easy to get divorced or even think about getting a divorce. Divorce is an escape for those spouses who suffer every minute and hour of suffering in the guilt of living with someone toxic or not compatible with them. Divorce affects the personal and social life of the partner and the whole family members. To safeguard the divorce process from getting misused by any spouse, several grounds were made. These grounds help decide the valid reason for granting a divorce. After 1955 when the reformers introduced the Hindu Marriage Act, 1955, it became easy for the parties to resolve any dispute going on in their married life, and could leave if things got too complicated and hard to handle for the rest of their life. Before 1955, there was no provision for separation or leaving the partner legally. Divorce rates are now increasing because of changes in the mindset of an individual, people are getting educated about their rights and know how to fight for themselves, they come forward and take a stand for themselves and move on in their lives. Though divorce rate of India used to be the lowest and still is the lowest compared to other countries. ### **REFERENCES** 1. **Online Articles / Sources Referred** 1. 2. 3. 3. **Cases Referred** 1. Akanksha vs Anupam Mathur 2. Sangamitra Ghose Vs. Kajal Kumar Ghosh 3. Naveen Kohli v. Neelu Kohli (2006) 4. **Statutes Referred** 1. Hindu Marriage Act, 1995 **Categories:** Articles --- ### [Compensation to the Victims of Crime under Criminal Law](https://lawfoyer.in/compensation-to-the-victims-of-crime-under-criminal-law/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Chaitanya Sharma, National Forensics Sciences University, Delhi 

INTRODUCTION

Providing compensation to the victim is a very important aspect of any criminal justice system. Especially in India where there is a very high crime rate requires significant attention from the legislature as well as from the judiciary to take appropriate actions. Victims who go through with the crime suffer from physical as well as mental injury. To alleviate their sufferings victim compensation is provided to them with a sense of justice and make them assure that they will get speedy justice. In this article firstly we will go through who is a victim under the scheme of victim compensation then legal provisions dealing with victim compensation, and hurdles in getting compensation after this we will dive into the recent developments going on in the victim compensation scheme and what is the mechanism framed for getting compensation and finally, we will conclude. Keywords: Victim Compensation, Code of Criminal Procedure, Victim, Accused, Criminal Justice System

Who Qualifies as a Victim of Crime?

Any person, group, or entity that has suffered harm, which can be of any type including mental, physical, economic, or other. The beauty of the Indian legal system is that it considers victims to those people also whose perpetrators are absconding or not yet prosecuted. If someone is dead as a result of a crime the family members of the deceased will be regarded as the victims and they will be provided all the facilities which are provided to the victim itself. A victim can be defined as “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir”[1] Another definition of victim is as follows “Persons who individually or collectively have suffered harm including physical and mental injury emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that are violation of criminal law”[2]

Legal Provisions Dealing with Victim Compensation:

Constitutional laws:
  • Article 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[3]
  • Article 21: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[4]
Criminal Procedure Code,1973:
  • Section 357: “When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied---
(a) in defraying the expenses of properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.”[5]
  • Section 357A: “Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.”[6]
  • Section 358: “(1) Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding 1[one thousand rupees], to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.”
(2) In such cases, if more persons than one is arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding 1 [one thousand rupees], as such Magistrate thinks fit. (3) All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.”[7]
  • Section 359: “Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees, witnesses and pleader's fees which the Court may consider reasonable.
(2) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.”[8]

Hurdles in Getting Compensation:

  • Every state has its own victim compensation scheme which creates non-uniformity across all states and they don’t abide by central government guidelines and by these discrepancies victims have to suffer.
  • Wide umbrella terms have been made by the state government which includes several crimes under one ambit and they have already set a prerequisite amount of compensation which is an injustice to the victims.
  • Each state has its own theory to allocate victim compensation, some states regard nature of crime as primary fact for compensation while other states regard age as a fact of awarding compensation.
  • Due to increase in crime rate in India, the recipient of victim compensation has increased to an alarming level which directly affects the state treasury.
  • The process of awarding the compensation is very lengthy which takes a large number of times to allocate the compensation.

Measures:

  • Victimology must be introduced in the Indian criminal justice system and judges and lawyers need to understand that giving harsher punishment will not benefit the victim, rather actions which are reparative in nature will help them start their new life again.
  • A new mechanism must be made to assess the impact of the crime on the victim and after assessing all the factors than victim must be awarded the compensation.
  • Proper implementation of laws must be taken place sections 357 and 357A of the Crpc talks about compensation but their implementation is very important in mainstream to compensate the victims.

Recent developments:

  • Ministry of Home Affairs in 2018 established victim compensation scheme, which aims to provide financial assistance to victims and made the process transparent as well as speedy. This scheme works on the theory of restorative justice and help the victim to mitigate his financial burden.
  • In year 2015 the central government set up the Central Victim Compensation Fund Scheme. The main aim of this scheme is to support the various schemes going on in various states and UTs. It talks about the budget allocation, particularly for victim compensation and if any state was lacking funds central government helped the respective state by allocating the funds.
  • Supreme Court of India in its various judgements has reiterated various guidelines and orders to state as well as executive agencies to comply with it some of the landmark judgements of the Supreme Court are as follows:
  1. Ankush Shivaji Gaikwad v State of Maharashtra (2013)6 SCC 770: The Supreme Court of India in this landmark judgement made it compulsory for trial courts to consider grant of interim compensation and specifically give reasons for not awarding the interim compensation
  1. Rudal Sah V State of Bihar AIR 1983 SC 1086: The petitioner in this case was illegally detained for more than 14 years and after due deliberation he was released and a writ petition was filed by the petitioner and Supreme Court awarded the petitioner with a compensatory amount of 30,000 Rs. It was the first case in India where a writ court in India awarded compensation for illegal detention.
  1. MC Mehta V Union of India AIR 1987 SC 965: The Supreme Court held that its power under Article 32 is not just confined to preventive measures when there is a violation of fundamental right but it has its scope to remedial measures which also includes compensation where rights of the victim have already been violated.
  1. Hitendra Vishnu Thakur Vs State of Maharashtra (1994 )4 SCC 602: It was held by Supreme Court that “…A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties…”
  2. Suresh v. State of Haryana (2015) 2 SCC 227: The Supreme Court held that “It is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial…relief.” The gravity of offence committed towards the victim and the condition of victim are the grounds to decide the compensation.

CONCLUSION & COMMENTS

Victim compensation under criminal law has witnessed systematic and fast progress in awarding compensation to the victims. Though the legal provisions in criminal law are hard to comprehend and checking the credibility of the victim is still a challenge the Supreme Court of India has played a vital role in this regard and by its myriad judgements tried to bridge the gap between courts, executive agencies and financial institutions. Lack of funds is a very serious problem states going through but the Central Government by its various initiatives tried to release the load over state. Regular auditing of funds should be done to check the progress in compensating the victims. By prioritize the victim compensation India can move towards a victim centric criminal justice system which not only punish the criminals but also compensate the victims and help them to get justice speedily and without any financial Hurdle.

REFERENCES

  1. Online Articles / Sources Referred
    1. efaidnbmnnnibpcajpcglclefindmkaj/https://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf
    2. https://www.legalserviceindia.com/legal/article-6103-a-critical-study-on-victim-compensation-under-various-laws-of-india.html
    3. https://www.livelaw.in/tags/victim-compensation
    4. https://www.scconline.com/blog/post/2024/01/10/delhi-government-published-amendment-in-delhi-victims-compensation-scheme-legal-news/
  1. Cases Referred
    1. Ankush Shivaji Gaikwad v State of Maharashtra (2013)6 SCC 770
    2. Rudal Sah V State of Bihar AIR 1983 SC 1086
    3. MC Mehta V Union of India AIR 1987 SC 965:
    4. Hitendra Vishnu Thakur Vs State of Maharashtra (1994 )4 SCC 602
    5. Suresh v. State of Haryana (2015) 2 SCC 227:
  2. Statutes Referred
    1. Code of Criminal Procedure
    2. Constitution of India
    3. Section 2 (wa) - Code of Criminal Procedure,1973
    4. UN Declaration of Basic Principles of Justice for victims of crime, including those law proscribing criminal abuse of power, 1985
    5. Constitution of India,1950
    6. Constitution of India,1950
    7. Order to pay compensation., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555§ionId=22766§ionno=357&orderno=399.
    8. Victim compensation scheme., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=400.
    9. Compensation to persons groundlessly arrested, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=403.
    10. Order to pay costs in non-cognizable cases., https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=40
**Content:** **Author-Chaitanya Sharma, National Forensics Sciences University, Delhi** ### **INTRODUCTION** Providing compensation to the victim is a very important aspect of any criminal justice system. Especially in India where there is a very high crime rate requires significant attention from the legislature as well as from the judiciary to take appropriate actions. Victims who go through with the crime suffer from physical as well as mental injury. To alleviate their sufferings victim compensation is provided to them with a sense of justice and make them assure that they will get speedy justice. In this article firstly we will go through who is a victim under the scheme of victim compensation then legal provisions dealing with victim compensation, and hurdles in getting compensation after this we will dive into the recent developments going on in the victim compensation scheme and what is the mechanism framed for getting compensation and finally, we will conclude. ***Keywords*:** *Victim Compensation, Code of Criminal Procedure, Victim, Accused, Criminal Justice System* ### **Who Qualifies as a Victim of Crime?** Any person, group, or entity that has suffered harm, which can be of any type including mental, physical, economic, or other. The beauty of the Indian legal system is that it considers victims to those people also whose perpetrators are absconding or not yet prosecuted. If someone is dead as a result of a crime the family members of the deceased will be regarded as the victims and they will be provided all the facilities which are provided to the victim itself. A **victim can be defined as** “*a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir*”[\[1\]](#_ftn1) Another definition of **victim** is as follows “*Persons who individually or collectively have suffered harm including physical and mental injury emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that are violation of criminal law”[**\[2\]**](#_ftn2)* ### **Legal Provisions Dealing with Victim Compensation:** **Constitutional laws:** - **Article 14:** “*The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India*.”[\[3\]](#_ftn3) - **Article 21:** “*No person shall be deprived of his life or personal liberty except according to procedure established by law.*”[\[4\]](#_ftn4) **Criminal Procedure Code,1973:** - **Section 357:** “*When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied—* *(a) in defraying the expenses of properly incurred in the prosecution;* *(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;* *(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;* *(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.*”[\[5\]](#_ftn5) - **Section 357A:** “Every *State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation*.”[\[6\]](#_ftn6) - **Section 358:** “(1) *Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding 1\[one thousand rupees\], to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.”* *(2) In such cases, if more persons than one is arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding 1 \[one thousand rupees\], as such Magistrate thinks fit.* *(3) All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid*.”[\[7\]](#_ftn7) - **Section 359:** “*Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and such costs may include any expenses incurred in respect of process-fees, witnesses and pleader’s fees which the Court may consider reasonable.* *(2) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision*.”[\[8\]](#_ftn8) ### **Hurdles in Getting Compensation:** - Every state has its own victim compensation scheme which creates non-uniformity across all states and they don’t abide by central government guidelines and by these discrepancies victims have to suffer. - Wide umbrella terms have been made by the state government which includes several crimes under one ambit and they have already set a prerequisite amount of compensation which is an injustice to the victims. - Each state has its own theory to allocate victim compensation, some states regard nature of crime as primary fact for compensation while other states regard age as a fact of awarding compensation. - Due to increase in crime rate in India, the recipient of victim compensation has increased to an alarming level which directly affects the state treasury. - The process of awarding the compensation is very lengthy which takes a large number of times to allocate the compensation. ### **Measures:** - Victimology must be introduced in the Indian criminal justice system and judges and lawyers need to understand that giving harsher punishment will not benefit the victim, rather actions which are reparative in nature will help them start their new life again. - A new mechanism must be made to assess the impact of the crime on the victim and after assessing all the factors than victim must be awarded the compensation. - Proper implementation of laws must be taken place sections 357 and 357A of the Crpc talks about compensation but their implementation is very important in mainstream to compensate the victims. ### **Recent developments:** - Ministry of Home Affairs in 2018 established victim compensation scheme, which aims to provide financial assistance to victims and made the process transparent as well as speedy. This scheme works on the theory of restorative justice and help the victim to mitigate his financial burden. - In year 2015 the central government set up the Central Victim Compensation Fund Scheme. The main aim of this scheme is to support the various schemes going on in various states and UTs. It talks about the budget allocation, particularly for victim compensation and if any state was lacking funds central government helped the respective state by allocating the funds. - Supreme Court of India in its various judgements has reiterated various guidelines and orders to state as well as executive agencies to comply with it some of the landmark judgements of the Supreme Court are as follows: 1. *Ankush Shivaji Gaikwad v State of Maharashtra (2013)6 SCC 770:* The Supreme Court of India in this landmark judgement made it compulsory for trial courts to consider grant of interim compensation and specifically give reasons for not awarding the interim compensation 2. *Rudal Sah V State of Bihar AIR 1983 SC 1086:* The petitioner in this case was illegally detained for more than 14 years and after due deliberation he was released and a writ petition was filed by the petitioner and Supreme Court awarded the petitioner with a compensatory amount of 30,000 Rs. It was the first case in India where a writ court in India awarded compensation for illegal detention. 3. *MC Mehta V Union of India AIR 1987 SC 965:* The Supreme Court held that its power under Article 32 is not just confined to preventive measures when there is a violation of fundamental right but it has its scope to remedial measures which also includes compensation where rights of the victim have already been violated. 5. *Hitendra Vishnu Thakur Vs State of Maharashtra (1994 )4 SCC 602*: It was held by Supreme Court that “*…A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties…*” 6. *Suresh v. State of Haryana (2015) 2 SCC 227: The* Supreme Court held that “*It is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial…relief*.” The gravity of offence committed towards the victim and the condition of victim are the grounds to decide the compensation. ### **CONCLUSION & COMMENTS** Victim compensation under criminal law has witnessed systematic and fast progress in awarding compensation to the victims. Though the legal provisions in criminal law are hard to comprehend and checking the credibility of the victim is still a challenge the Supreme Court of India has played a vital role in this regard and by its myriad judgements tried to bridge the gap between courts, executive agencies and financial institutions. Lack of funds is a very serious problem states going through but the Central Government by its various initiatives tried to release the load over state. Regular auditing of funds should be done to check the progress in compensating the victims. By prioritize the victim compensation India can move towards a victim centric criminal justice system which not only punish the criminals but also compensate the victims and help them to get justice speedily and without any financial Hurdle. ### **REFERENCES** 1. **Online Articles / Sources Referred** 8726. efaidnbmnnnibpcajpcglclefindmkaj/https://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F\_\_criminal.pdf 8727. 8728. 8729. 3. **Cases Referred** 1. *Ankush* *Shivaji* *Gaikwad* *v* *State* *of Maharashtra (2013)6* *SCC* *770* 2. *Rudal Sah V State of Bihar AIR 1983 SC 1086* 3. *MC Mehta V Union of India AIR 1987 SC 965:* 4. *Hitendra* *Vishnu* *Thakur* *Vs* *State* *of Maharashtra (1994* *)4* *SCC* *602* 5. *Suresh v. State of Haryana (2015) 2 SCC 227:* 4. **Statutes Referred** 1. Code of Criminal Procedure 2. Constitution of India 3. Section 2 (wa) – Code of Criminal Procedure,1973 4. UN Declaration of Basic Principles of Justice for victims of crime, including those law proscribing criminal abuse of power, 1985 5. Constitution of India,1950 6. Constitution of India,1950 7. [](#_ftnref5)Order to pay compensation., https://www.indiacode.nic.in/show-data?actid=AC\_CEN\_5\_23\_000010\_197402\_1517807320555§ionId=22766§ionno=357&orderno=399. 8. Victim compensation scheme., https://www.indiacode.nic.in/show-data?actid=AC\_CEN\_5\_23\_000010\_197402\_1517807320555&orderno=400. 9. Compensation to persons groundlessly arrested, https://www.indiacode.nic.in/show-data?actid=AC\_CEN\_5\_23\_000010\_197402\_1517807320555&orderno=403. 10. Order to pay costs in non-cognizable cases., https://www.indiacode.nic.in/show-data?actid=AC\_CEN\_5\_23\_000010\_197402\_1517807320555&orderno=40 **Categories:** Articles --- ### [MUTUAL DIVORCE UNDER HINDU MARRIAGE ACT, 1955](https://lawfoyer.in/mutual-divorce-under-hindu-marriage-act-1955/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Satpathy Gayatree Geetaswaroop, Birla School of Law, Birla Global University, Bhubaneswar

INTRODUCTION

Marriage brings two people together and unites them as a life partner socially or legally or both which strongly establishes their rights, duties and obligations between them and definitely with their children. Marriage also involves emotional, mutual commitments, friendship, partnership, financial, social and legal duties. Marriage as a social and formal institution that has ‘n’ number of things apart from mentioned above included in it; among the spouses aiming to stay together, creating a healthy, stable and happy family. But sometimes, destiny has it’s own plans. Everything can’t never happen the way we want and same is for marriage. Disturbance between couples is a clear cut reflection of their disagreements, miscommunications, misunderstandings and emotional distance etc. Ill arguments leading to separation of spouses is a common scenario. Some face very hectic separation, on the other hand some opt for mutual divorce on the ground that they were unable to live together and mutually agreed to dissolve the marriage. Keywords:Consent, Mutual agreement, Joint petition, Divorce, Hindu law

MEANING:

In simple words; spouses seeking or getting divorced with mutual agreement or consent.

EXPLANATION:

Mutual divorce or divorce by mutual consent is a process where both the parties or spouses in a marriage agree together to terminate their marital relationship amicably and legally as a result they file a joint petition in the court expressing their will to dissolve their marriage in which it is mentioned that, both the parties have agreed mutually to get separated due to incapability or incompatibilty to stay together.

EVOLUTION OF DIVORCE IN HINDU MARRIAGE LAW:

From the ancient times, marriage in Hindus has always been considered as pious, sacramental form of union between two opposite genders; i.e. a man and a woman. The concept or idea that lies behind marriage in Hindus is to stay committed and dedicated for lifetime cooperating with all ups and downs while maintaining love, harmony and togetherness. Divorce was neither a choice nor an option for the spouses at that time as they were bound to fulfill their commitments regardless of any obstructions in their marital relationship. Legal Hindu textbook ‘Manusmirti’ has never explicitly talked about divorce as the belief of a persistent marriage was practiced. Slowly and gradually as the society grew and evolved, laws needed amendments too. When it comes to divorce laws in India, the Indian society has never made itself broad enough to accept a divorced couple; especially a divorced woman. Legalising divorce was definitely a challenge for the Indian law but also a great and effective move to make the Indian society evolve in a much better way resulting in women empowerment and evolvement of law in all aspects. Hence the Hindu Marriage Act 1955 was enacted approving divorce laws in India.

WHAT CAUSED TO LEGALIZE DIVORCE IN INDIA?

In India it was observed that individuals in a marital relationship were facing issues to continue their marriage further and if they wanted to do so, there was no proper way or a channel to follow to get separated. There were women who suffered a lot mentally, physically and emotionally by staying in a disturbing marriage. According to various surveys, women didn’t get the life that they had thought of before getting into a marriage. They even mentioned that, the married life they entered into was just only a one day of celebration and not a lifelong commitment. Not only women, men were also facing various issues regarding their bitter relationship with their wives which ultimately gave rise to bring divorce laws in India.

PROVISIONS TO DISSOLVE A MARRIAGE UNDER HINDU LAW:

  • A solemnized marriage on the interest of the parties or the spouses can be dissolved by Judicial separation and Divorce under the Hindu Marriage Act, 1955 (HMA).
  • JUDICIAL SEPARATION UNDER HMA, 1955: Judicial separation is considered lesser cruel than divorce because it has chances of reconciliation. It is not dissolution of marriage rather it suspends all marital duties, rights and obligations of the parties; the husband and the wife. Judicial separation has been mentioned under section 10 of the Hindu Marriage Act, 1955 in which it is stated that, either of the party if want can present a petition before the court of law stating for a decree of judicial separation on any of the grounds suitable to the party mentioned u/s 13(1) and 13(2) of them HMA. Once the decree of judicial separation is passed, parties or the spouses are no longer obligatory to stay together.
  • DIVORCE UNDER HMA, 1955: Divorce has been mentioned under section 13(1) of the Hindu Marriage Act, 1955 which states that any marriage solemnized before or after the enactment of this act, the parties in the marriage can dissolve their marriage by a decree of divorce on presenting a petition; any of the either spouse can present the petition. The following grounds should be kept in mind to file a divorce petition:
  • Adultery: u/s 13(1)(ia); having or had voluntary sexual intercourse with any other individual other than his or her spouse.
  • Cruelty: u/s 13(1)(ib); this includes both mental cruelties in which the exchange of thoughts, kindness, and understanding gets lost between the partners resulting in adverse issues disturbing the mental and physical cruelty; where one of the spouses causes injuries on body of the other spouse making her or him weak to do any task physically.
For example-
  1. communication gap between husband and wife
  2. disrespecting either of the spouse even by a mini humour
  3. not respecting either of the spouses family
  4. indecent and indiscipline lifestyle of either of the spouses
  • Conversion: 13(1)(ii) states that either of the spouse has ceased to be Hindu by conversion to any other religion
  • Unsoundness of mind: u/s 13(1)(iii) either of the spouse had unsound mind, or suffering constantly from mental disorder to a such extent that it made difficult for either of the spouse to live with him or her.
  • Veneral Disease: u/s 13(1)(v) states either of the spouse can seek for divorce if any one of them is suffering from a communicable venereal disease.
  • Renounciation: 13(1)(vi) says that either of the spouse has renounced the world.
  • Assumption or Presumption of death: 13(1)(vii) states if either of the spouse has not been heard of being alive for seven years or more and this information is authorized in regarding who might have heard it naturally.

DIVORCE BY MUTUAL CONSENT UNDER HINDU MARRIAGE ACT, 1955:

This is probably the best and the most advisable ground to take a divorce. Divorce by mutual consent was inserted by (Act 68 of 1976, Section 8). In HMA it has been mentioned under section 13(B) where it states that parties can jointly file a petition before the district court on the following grounds mentioned:
  • Living separately for a period of one year or more: Here “living separately” means that parties were not anymore living as a husband and wife neither under the same roof or different houses.
  • Had not been able to live together: This means breaking of marriage irretrievably.
  • Mutually agreed to dissolve the marriage: Decided to have a mutual settlement amicably.
  1. PROCEDURE: Grounds mentioned above in point ‘G’ of this article shows the eligibility to file petition for divorce. Keeping these grounds in mind there’s a hierarchy for the parties to follow to get divorced, which are as follows:
  • After presenting the petition, parties need to wait for six months but not more than eighteen months.
  • Six months from the date of petition presented and not later than eighteen months after the date has been declared.
  • The parties need to move a motion in the court stating that a decree of divorce to dissolve their marriage be passed.
  • The parties are absolutely free to withdraw their petition but this is only possible within the period of six to eighteen months and not after that.
  • If not withdrawn, the Court will be satisfied that the parties don’t want to continue their marriage further and the facts mentioned in the petition are true, the decree of divorce will be passed effectively from the date of decree.
Note: The motto of providing six to eighteen months (also known as cooling-off period) to the spouses or parties to make them reconsider about their marital relationship dissolution; if they ever think to change their minds to re-unite, they have to do this within the period of six to eighteen months given to them.

UNILATERAL WITHDRAWAL OF CONSENT BY ONE PARTY IN MUTUAL DIVORCE:

Yes, in a case the Delhi High Court in 2018, held that either of the party can unilaterally withdraw his or her consent not to opt for mutual divorce only in exceptional cases with valid and reasonable grounds.

LANDMARK CASE LAW:

  • Manish Goyal vs Rohini Goyal (2010) 4 SCC 393
Facts of the case: Both the parties; Manish and Rohini filed a petition for divorce by mutual consent and satisfied the court that there is no chance of reconciliation and they both strongly agreed the facts metioned in their petition where as subsequently submitted another application to the court to waive of their six month timeline for filing the final petition to get divorced. The District Court denied it and eventually the petition was presented in the Supreme Court. Issues raised in the case:
  1. Whether the timeline of six to eight months specified in section 13-B(2) of the Hindu Marriage Act,1955 is mandatory?
  2. Whether the waiving off the six-month window period is only mandatory in exceptional cases?
Judgement: The Supreme Court held that, legal requirement of waiting for six months before granting divorce under section 13-B(2) in the Hindu Marriage Act, 1955 is not mandatory but directory. However, the Supreme Court also mentioned that power to unwind the mandatory requirement of six months waiting period can only be exercised by the Supreme Court only under Article 142 of the Indian Constitution in which “extent of executive power of State” has been stated.

CONCLUSION& COMMENTS

Divorce has always been considered as the most disturbing phase for any couple in their whole marital life. It has adverse effects on families of the spouses including their children but sometimes situation can be worst to a such extent that termination of marriage becomes the only solution to solve the problem. The Hindu Marriage Act, 1955 has various provisions for individuals whether it is a man or a woman that wants to get divorced and in this act it has given, meaning, explanation and definition, procedure, precedents and theories supporting dissolution of marriage. The Hindu Marriage Act wisely and reasonably justifies remedies for spouses getting divorced. Resolving disturbance or disputes between spouses in not an easy task but legislation did its best to give some relief to the spouses or the parties. Last but not the least, divorce by mutual consent is by far the most amicable way of handling and tackling a serious issue like divorce. REFERENCES
  1. Books / Commentaries / Journals Referred
    1. Family Law, Dr. Paras Diwan
  2. Online Articles / Sources Referred
    1. Indian kanoon
    2. SCC online
  3. Cases Referred
    1. Raj Vinod vs Smt. Durga Devi 2002
    2. Jayashree Vs Ramesh, AIR 1984 BOM HC
    3. Santhosh Kumari vs Virendra Kumar AIR 1986
    4. Akhil Kumar Jain vs Maya Jain (2009) 10 SCC 415
    5. Ajay Bhikulal Gujar vs Shyamati Gujar AIR 2021 SC 3341
    6. Kaizer Basu vs Mahua Basu AIR 2014 Cal 180
    7. Davinder Singh Narula vs Meenakshi Nangia AIR 2012 SC 2890
  4. Statutes Referred
    1. Hindu laws (Bare Act)
    2. The Constitution of India (Bare Act)
    3. The Marriage Laws (Amendment) Act, 1976
    4. Indian Divorce (Amendment) Act, 2001
**Content:** **Author-Satpathy Gayatree Geetaswaroop, Birla School of Law, Birla Global University, Bhubaneswar** ### **INTRODUCTION** Marriage brings two people together and unites them as a life partner socially or legally or both which strongly establishes their rights, duties and obligations between them and definitely with their children. Marriage also involves emotional, mutual commitments, friendship, partnership, financial, social and legal duties. Marriage as a social and formal institution that has ‘n’ number of things apart from mentioned above included in it; among the spouses aiming to stay together, creating a healthy, stable and happy family. But sometimes, destiny has it’s own plans. Everything can’t never happen the way we want and same is for marriage. Disturbance between couples is a clear cut reflection of their disagreements, miscommunications, misunderstandings and emotional distance etc. Ill arguments leading to separation of spouses is a common scenario. Some face very hectic separation, on the other hand some opt for mutual divorce on the ground that they were unable to live together and mutually agreed to dissolve the marriage. ***Keywords*:*Consent, Mutual agreement, Joint petition, Divorce, Hindu law*** ### **MEANING:** In simple words; spouses seeking or getting divorced with mutual agreement or consent. ### **EXPLANATION:** Mutual divorce or divorce by mutual consent is a process where both the parties or spouses in a marriage agree together to terminate their marital relationship amicably and legally as a result they file a joint petition in the court expressing their will to dissolve their marriage in which it is mentioned that, both the parties have agreed mutually to get separated due to incapability or incompatibilty to stay together. ### **EVOLUTION OF DIVORCE IN HINDU MARRIAGE LAW:** From the ancient times, marriage in Hindus has always been considered as pious, sacramental form of union between two opposite genders; i.e. a man and a woman. The concept or idea that lies behind marriage in Hindus is to stay committed and dedicated for lifetime cooperating with all ups and downs while maintaining love, harmony and togetherness. Divorce was neither a choice nor an option for the spouses at that time as they were bound to fulfill their commitments regardless of any obstructions in their marital relationship. Legal Hindu textbook ‘Manusmirti’ has never explicitly talked about divorce as the belief of a persistent marriage was practiced. Slowly and gradually as the society grew and evolved, laws needed amendments too. When it comes to divorce laws in India, the Indian society has never made itself broad enough to accept a divorced couple; especially a divorced woman. Legalising divorce was definitely a challenge for the Indian law but also a great and effective move to make the Indian society evolve in a much better way resulting in women empowerment and evolvement of law in all aspects. Hence the Hindu Marriage Act 1955 was enacted approving divorce laws in India. ### **WHAT CAUSED TO LEGALIZE DIVORCE IN INDIA?** In India it was observed that individuals in a marital relationship were facing issues to continue their marriage further and if they wanted to do so, there was no proper way or a channel to follow to get separated. There were women who suffered a lot mentally, physically and emotionally by staying in a disturbing marriage. According to various surveys, women didn’t get the life that they had thought of before getting into a marriage. They even mentioned that, the married life they entered into was just only a one day of celebration and not a lifelong commitment. Not only women, men were also facing various issues regarding their bitter relationship with their wives which ultimately gave rise to bring divorce laws in India. ### **PROVISIONS TO DISSOLVE A MARRIAGE UNDER HINDU LAW:** - A solemnized marriage on the interest of the parties or the spouses can be dissolved by Judicial separation and Divorce under the Hindu Marriage Act, 1955 (HMA). - **JUDICIAL SEPARATION UNDER HMA, 1955**: Judicial separation is considered lesser cruel than divorce because it has chances of reconciliation. It is not dissolution of marriage rather it suspends all marital duties, rights and obligations of the parties; the husband and the wife. Judicial separation has been mentioned under section 10 of the Hindu Marriage Act, 1955 in which it is stated that, either of the party if want can present a petition before the court of law stating for a decree of judicial separation on any of the grounds suitable to the party mentioned u/s 13(1) and 13(2) of them HMA. Once the decree of judicial separation is passed, parties or the spouses are no longer obligatory to stay together. - **DIVORCE UNDER HMA, 1955**: Divorce has been mentioned under section 13(1) of the Hindu Marriage Act, 1955 which states that any marriage solemnized before or after the enactment of this act, the parties in the marriage can dissolve their marriage by a decree of divorce on presenting a petition; any of the either spouse can present the petition. The following grounds should be kept in mind to file a divorce petition: - **Adultery:** **u/s 13(1)(ia)**; having or had voluntary sexual intercourse with any other individual other than his or her spouse. - **Cruelty: u/s 13(1)(ib)**; this includes both mental cruelties in which the exchange of thoughts, kindness, and understanding gets lost between the partners resulting in adverse issues disturbing the mental and physical cruelty; where one of the spouses causes injuries on body of the other spouse making her or him weak to do any task physically. **For example-** 1. communication gap between husband and wife 2. disrespecting either of the spouse even by a mini humour 3. not respecting either of the spouses family 4. indecent and indiscipline lifestyle of either of the spouses - Conversion: 13(1)(ii) states that either of the spouse has ceased to be Hindu by conversion to any other religion - Unsoundness of mind: u/s 13(1)(iii) either of the spouse had unsound mind, or suffering constantly from mental disorder to a such extent that it made difficult for either of the spouse to live with him or her. - Veneral Disease: u/s 13(1)(v) states either of the spouse can seek for divorce if any one of them is suffering from a communicable venereal disease. - Renounciation: 13(1)(vi) says that either of the spouse has renounced the world. - Assumption or Presumption of death: 13(1)(vii) states if either of the spouse has not been heard of being alive for seven years or more and this information is authorized in regarding who might have heard it naturally. ### **DIVORCE BY MUTUAL CONSENT UNDER HINDU MARRIAGE ACT, 1955:** This is probably the best and the most advisable ground to take a divorce. Divorce by mutual consent was inserted by (Act 68 of 1976, Section 8). In HMA it has been mentioned under section 13(B) where it states that parties can jointly file a petition before the district court on the following grounds mentioned: - Living separately for a period of one year or more: Here “living separately” means that parties were not anymore living as a husband and wife neither under the same roof or different houses. - Had not been able to live together: This means breaking of marriage irretrievably. - Mutually agreed to dissolve the marriage: Decided to have a mutual settlement amicably. 1. PROCEDURE: Grounds mentioned above in point ‘G’ of this article shows the eligibility to file petition for divorce. Keeping these grounds in mind there’s a hierarchy for the parties to follow to get divorced, which are as follows: - After presenting the petition, parties need to wait for six months but not more than eighteen months. - Six months from the date of petition presented and not later than eighteen months after the date has been declared. - The parties need to move a motion in the court stating that a decree of divorce to dissolve their marriage be passed. - The parties are absolutely free to withdraw their petition but this is only possible within the period of six to eighteen months and not after that. - If not withdrawn, the Court will be satisfied that the parties don’t want to continue their marriage further and the facts mentioned in the petition are true, the decree of divorce will be passed effectively from the date of decree. *Note: The motto of providing six to eighteen months (also known as cooling-off period) to the spouses or parties to make them reconsider about their marital relationship dissolution; if they ever think to change their minds to re-unite, they have to do this within the period of six to eighteen months given to them.* #### **UNILATERAL WITHDRAWAL OF CONSENT BY ONE PARTY IN MUTUAL DIVORCE:** Yes, in a case the Delhi High Court in 2018, held that either of the party can unilaterally withdraw his or her consent not to opt for mutual divorce only in exceptional cases with valid and reasonable grounds. ### **LANDMARK CASE LAW:** - **Manish Goyal vs Rohini Goyal (2010) 4 SCC 393** **Facts of the case:** Both the parties; Manish and Rohini filed a petition for divorce by mutual consent and satisfied the court that there is no chance of reconciliation and they both strongly agreed the facts metioned in their petition where as subsequently submitted another application to the court to waive of their six month timeline for filing the final petition to get divorced. The District Court denied it and eventually the petition was presented in the Supreme Court. **Issues raised in the case:** 1. Whether the timeline of six to eight months specified in section 13-B(2) of the Hindu Marriage Act,1955 is mandatory? 2. Whether the waiving off the six-month window period is only mandatory in exceptional cases? **Judgement:** The Supreme Court held that, legal requirement of waiting for six months before granting divorce under section 13-B(2) in the Hindu Marriage Act, 1955 is not mandatory but directory. However, the Supreme Court also mentioned that power to unwind the mandatory requirement of six months waiting period can only be exercised by the Supreme Court only under Article 142 of the Indian Constitution in which “extent of executive power of State” has been stated. ### **CONCLUSION& COMMENTS** Divorce has always been considered as the most disturbing phase for any couple in their whole marital life. It has adverse effects on families of the spouses including their children but sometimes situation can be worst to a such extent that termination of marriage becomes the only solution to solve the problem. The Hindu Marriage Act, 1955 has various provisions for individuals whether it is a man or a woman that wants to get divorced and in this act it has given, meaning, explanation and definition, procedure, precedents and theories supporting dissolution of marriage. The Hindu Marriage Act wisely and reasonably justifies remedies for spouses getting divorced. Resolving disturbance or disputes between spouses in not an easy task but legislation did its best to give some relief to the spouses or the parties. Last but not the least, divorce by mutual consent is by far the most amicable way of handling and tackling a serious issue like divorce. **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. Family Law, Dr. Paras Diwan 2. **Online Articles / Sources Referred** 1. Indian kanoon 2. SCC online 3. **Cases Referred** 1. Raj Vinod vs Smt. Durga Devi 2002 2. Jayashree Vs Ramesh, AIR 1984 BOM HC 3. Santhosh Kumari vs Virendra Kumar AIR 1986 4. Akhil Kumar Jain vs Maya Jain (2009) 10 SCC 415 5. Ajay Bhikulal Gujar vs Shyamati Gujar AIR 2021 SC 3341 6. Kaizer Basu vs Mahua Basu AIR 2014 Cal 180 7. Davinder Singh Narula vs Meenakshi Nangia AIR 2012 SC 2890 4. **Statutes Referred** 1. Hindu laws (Bare Act) 2. The Constitution of India (Bare Act) 3. The Marriage Laws (Amendment) Act, 1976 4. Indian Divorce (Amendment) Act, 2001 **Categories:** Articles --- ### [Tangled Webs: White Collar Scams in India](https://lawfoyer.in/tangled-webs-white-collar-scams-in-india/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Pooja, Rayat College of Law, Railmajra

INTRODUCTION

For many decades, the news headlines about scams and frauds committed by individuals and corporations have become more prevalent in India. Unfortunately, several people are unaware of these scams like Phishing calls, Telegram fraud, custom duty scams, financial scams and more. However, these practices are still ongoing, and offenders are taking advantage of loopholes in the statutes due to the negligence of lawmakers during the creation of laws. Nobody dares to question these practices till the day when news headlines reveal that ‘A’ person fled to ‘B’ Country before any legal action can be taken as he has committed default in repaying such amount i.e., raised or borrowed money by him from multiple sources from the past ‘X’ years. When an aggrieved party or parties file the petition before the court then it’s already too late to administer justice to them because defaulters know very well how to defeat the law as the judiciary has no jurisdiction beyond the country even if all the evidence shows yes, it is a scam. For example, if the Judiciary gives judgment against the offender but during the time of execution of the decree in general question arises how we can recover that money as the Offender did not leave any sufficient property as all the properties belonged to him at ‘B’ country, where the offender currently resides. All the victims are not able to get their funds back due to the typical procedure established by the committee and not a proper channel of communication to listen to the queries of the victims because of the incomplete investigation from the side of the authorities. No doubt, many people will say that they have official data to prove that people getting refunds, but the reality is much different from the data. Normally. data is just a formality nothing else because a large number of people commit suicides[1] and lose hope in the justice system. We can see that on the surface everything is going on very smoothly but if we dive into reality then we will see there is an ocean of corruption and laziness from the side of the authorities. In the end, Authorities treat the victims in such a manner which makes them believe that they are the root cause of the problem, not the defaulters because justice is in the hands of such people and there is no one to address their miseries. That’s why, reality is too harsh and beyond the way. Now, we can understand that it is a very well-planned tactic and generally played by the many offenders at every time because they believe that no one can restrict such activities as they have the power in their hands till they have money which is sufficient to feed the mouth of corrupted officials and for that sake, such officials will protect them as far as possible. However, On the other side, many officials are honest and dedicated to their profession. Still, they do have not the power to restrain such corrupt practices that are adopted in the world of the corporate. Even Today, there is no specific legislation to deal with, regulate and provide adequate relief against such practices. Ultimately, these practices are increasing at a higher pace. In this article, we will understand the meaning, statutory provisions, Problems and remedies to prevent such Crimes in the interest of justice. Keywords (Minimum 5): Corruption, Money 'Power, Loopholes in Statutes, Lack in the implementation of Law, Defeat of Justice, Corporate Crime and Scams.

Meaning, and Definition:

White-collar scams fall under the umbrella term of white-collar crime. White-collar scams are one of the white-collar crimes. It means the scope of white-collar crime is much greater than white-collar scams. A “scam” generally refers to a deceptive, manipulative or fraudulent scheme. These scams are designed to cheat someone out of money or assets. When this type of fraudulent activity is adopted by individuals or entities in positions of authority, trust, or influence. This is how scams become white-collar scams[2][3] "Crime committed by a person of respectability and high social status during his occupation."                                                                      -------------- Edwin Sutherland In other words, White-collar crimes denote non-violent, illegal activities, financially motivated and tricks like deception, fraud, or manipulation particularly committed by individuals of high social status, such as professionals, business executives, or government officials, during their occupation or profession.

Historical Background

In 1930, The Sociologist and Criminologist Edwin Sutherland coined and popularised the concept of white-collar crime. Before this, there was a myth that individuals from the upper social class never indulge in such unethical and immoral practices. Sutherland challenged this notion and brought attention to the involvement of respected individuals in illegal activities[4]. Since then, various theories and approaches have been developed to analyse and address issues concerning such crimes. Over time, Due to technological advancement and globalization, these crimes have become more sophisticated because of the complex financial schemes and regulatory challenges[5]. “The Santhanam Committee's report showed a wide picture of white-collar crimes committed by respectable individuals such as businessmen, industrialists, contractors, and suppliers, as well as corrupt public officials. The motivation for committing a crime is not always based on necessity.[6]” It includes Businessmen, Industrialists, Contractors, Suppliers and not surprisingly corrupt Public Officials. In May 1958, the government appointed a Board of Enquiry headed by Justice Vivian Bose[7]. In 1963, The Reports of the Vivian Bose Commission[8] investigated the affairs of the Dalmia Jain group of companies and drew attention towards the Businessmen who often indulge themselves in White Collar Crimes such as Forgery, Fraud, Falsification of accounts, Tampering with records for personal gains and Tax evasion etc. Consequently, the problems like huge financial, social, and psychological suffering by the victims and society at large[9].

 Principles and Doctrines:

  • Strict Construction and Interpretation of Criminal Statutes - The idea behind this principle is that there must not be a formality when the laws are enacted but every provision contained in the statutes must address the issues and the procedures in the concised form. Therefore, criminal statutes must be construed strictly and interpreted precisely by keeping in view the practical application of the laws.
  • The Tricks of Deceit and Concealment - This doctrine states that in this AI era, it is an easy task to access information because lack of security issues and data is bought and sold by such persons who do not have the authority to do so but this is the reality and lack of the vigilance from the side of the authorities. Hence, criminals often employ fraudulent schemes, misrepresentations, or false information, to accomplish their objectives.
  • Causes behind the criminal intent of the Individual - This concept is very helpful to understanding and investigating the criminal behaviour of individuals, such as rule-violating nature, greed, lack of awareness among people, lack of strict rules and laws, lack of accountability, peer support, loopholes of legal structure, technological and industrial development[10].
Therefore, this list is not limited but understanding of these factors aids in identifying and combating such crimes. As, there are various theories such as rational choice, social control, strain etc, that can be applied to explain the motivations and tactics behind white-collar crimes. This is how researchers and policymakers can understand the root causes of such offences.

Essentials / Elements / Pre-requisites:

  • One of the most essential points is that there must be the presence of the Intention to deceive
  • The statement by the person that he/she is from an ‘X’ company 'agent or your relative’ friend is like impersonating themselves to gain the trust of the individual. Such act known as Breach of trust,
  • The intention to deceive someone only because there is an existence of financial motive,
  • In scams, the most common element is to operate illegal activities by showing that these activities are complying with the law. This is called the concealment of illegal activities.
Note: A thorough investigation is required to uncover the scams may involve complex schemes and multiple parties.

Exceptions:

  • There must be a lack of intention to deceive the victim to gain undue financial advantage.
  • When there is no meeting of mind that leads to the mistake of fact.
  • No usage of manipulative tricks to trap the victims to do such acts which they ordinarily resist to do so. It is known as
  • There must not be use of force of any type over the victim to do such an act. Such acts count as
However, proving these defences can be challenging due to the nature of white-collar scams and the evidence required to establish guilt.

Forms / Modes [11]

Some common types of white-collar scams[12]:
  • Fund Embezzlement: The misuse of funds by the executives within organizations that are entrusted under the care of the individual.
  • Fraud[13]: “Fraud occurs when someone knowingly lies to obtain a benefit or advantage to which they are not otherwise entitled, or someone knowingly denies a benefit that is due and to which someone is entitled”[14]. In other words, there must be a presence of an intention to deceive to secure unfair or unlawful financial gain, which can include:
  • Investment Fraud, Insurance Fraud, Forgery, Credit Card Fraud, Securities Fraud, Bank Fraud, Online Auction Fraud etc
  • For example, in the case of Punjab National Bank Fraud (2018): Over Rs 14,000 crores was defrauded by Nirav Modi (Billionaire Jeweller) and this fraud was committed via the issuance of fraudulent Letters of Undertaking by a subordinate clerk at a single Mumbai branch.
  • Insider Trading: “This practice that often blurs the line between legitimate investment activities and unlawful behaviour. It happens when individuals or entities buy or sell securities in a company based on non-public, material information about that company. This practice can lead to unfair advantages, market distortions, and loss[15].
For example, In the Re Harshad Mehta Scam (1992) case: This is one of the biggest securities scams in Indian history and it involved fraudulent brokerage practices and over Rs.6,000 crores in bank funds being siphoned off.
  • Ponzi Schemes: In this scheme, at first, the funds are collected from new investors then these funds are used to pay returns to their earlier investors, creating the illusion of profit when no legitimate business activity is occurring.
For example, In the Re Rose Valley Chit Fund Scam (2012-13) case: An estimated Rs 15,000 crores Ponzi scheme defrauded lakhs of small investors across India.
  • Pyramid Schemes: This scheme is familiar with the Ponzi scheme, where participants are recruited to make payments to those above them in a hierarchy, promising future profits based on recruiting more participants.
Example: In the Re PACL Ponzi scam case (2014): In the Re PACL Ponzi scam case (2014): PACL collected over Rs 45,000 crores through its instalment payment plan and cash down payment plan as part of its collective investment scheme. The investors were lured by promises of an interest rate of 12.5 per cent on deposits are much better option instead of investing in the Fds and depositing in the savings bank account, besides free accidental insurance and income tax-free maturity. Sebi passed an order asking the company to refund Rs 49,100 crores, with promised returns.[16]
  • Phishing Scams: This is a method of sending fake emails or messages to trick individuals into providing sensitive information, such as passwords or credit card numbers. Afterwards, this information is used for identity theft or financial fraud.
  • Tech Support Scams: Tech support personnel convince victims to provide remote access to their computers as they impersonate themselves so that individual will believe their words and do such acts that scammers want them to do. That‘s why, it is easier for scammers to steal personal information or install malware.
  • Business Email Compromise and Phishing Calls: Scammers use compromised email accounts and phone numbers to impersonate executives or employees, tricking others into transferring funds or sensitive information.
  • Identity Theft: In this era, both online and offline at some official platforms sharing of personal data is very common but our data are sold/leaked by the sources to whom we give access to have our data. That’s how Scammers Illegally obtain and use someone else's data, such as Social Security numbers or credit card information, for financial gain.
  • Loan Scams: Offering fraudulent loans with unrealistic terms and prerequisite conditions is upfront fees or personal information that can be used for identity theft[17].

Legal Provisions and Regulations

India's legal framework addresses white-collar scams with specific statutes and provisions: Statutes:
  • “Central Bureau of Investigation (CBI) Act, 1946 - The CBI is the premier investigating agency in India to investigate major crimes, including white-collar crimes. The CBI Act empowers the agency to investigate offences across state borders”[18].
  • “Banking Regulation Act, 1949 [19]- Sections 33A, 34A, 35 dealing with banking related fraudulent transactions, falsification of accounts”[20].
  • “Income Tax Act, 1961[21] - This act includes provisions related to tax evasion, which is a common aspect of white-collar crimes. Evading taxes through fraudulent means is punishable under this act”.
Havells India Ltd Tax Evasion (2016): Tax evasion of over Rs 500 crores by under-reporting sales and profit figures over several years.
  • “Securities and Exchange Board of India (SEBI) Act, 1992” [22]
The Securities and Exchange Board of India Act regulates the securities market and aims to prevent market manipulation and insider trading. Amendments: Amendments have been made to the SEBI Act to enhance regulatory oversight and enforcement against insider trading and market abuse.
  • Indian Penal Code (IPC)[23]
Sections 403 to 409 deal with offences related to criminal breach of trust, misappropriation, and cheating. Sections 463 to 468 cover forgery and counterfeiting. Sections 471 to 474 address the use of forged documents as genuine. Amendments: The IPC has undergone various amendments over the years to strengthen provisions against white-collar crimes. Notable amendments include updates to punishment clauses for fraud, misappropriation, and financial offences. [24].
  • Information Technology Act, 2000[25]- With the rise of cybercrimes related to white-collar offences, this act provides legal provisions for electronic fraud, data theft, and hacking.
  • Prevention of Money Laundering Act, 2002[26]: This Act focuses on dealing with corruption involving public officials and public servants.
Commonwealth Games Scam (2010): Large-scale inflated expenses and corruption during preparation for the games with over ₹70,000 crores estimated to have been laundered. Amendments: Amendments to this Act have introduced stricter penalties for corruption, bribery, and illegal gratification.
  • Central Vigilance Commission Act, 2003[27]: This act enhances vigilance in public sector organizations[28]
  • “Lokpal and Lokayuktas Act, 2013[29]: Establishes Institutions to Combat Corruption[30] The Act provides for the establishment of Lokpal at the central level and Lokayuktas at the state level to inquire into allegations of corruption against public officials.”
“The Lokpal and Lokayuktas (Amendment) Act, 2016[31],2019 and, 2020, introduced provisions for declaring assets and liabilities of public servants and their family members. Also amended various sections to enhance transparency, streamline procedures for filing complaints, protect whistleblowers and for the extension of the time limit for public servants to declare their assets and liabilities.” “The objectives behind these amendments are to strengthen the functioning of Lokpal and Lokayuktas, increase accountability, and expedite the resolution of corruption cases. It covers various offences related to corruption and misconduct by public servants.”
  • Prevention of Corruption Act, 1988[32]
“The Prevention of Corruption (Amendment) Act, 2018[33], introduced stringent provisions against corruption, including criminalizing giving bribes and punishing commercial organizations for bribery.” The objectives are to ensure speedy trial and enhanced punishment for offenses related to bribery, corruption and curb corruption and promote transparency in governance. This Act complements the Lokpal and Lokayuktas Act by defining various offences related to corruption involving public officials and public servants. and prescribing penalties Amendments: The Act has undergone amendments to enhance penalties and widen the scope of offences, to complement the objectives of the Lokpal and Lokayuktas Act.”
  • “Foreign Contribution Regulation Act, 2010[34]: Regulates foreign contributions and targets financial misconduct[35].”
  • “Companies Act (2013)[36]: The fraud committed by officers of a company falls under the Sections 447 and 448 like financial statement fraud falls under this. One more thing is that there is no specific definition of Fraud in the Companies Act, of 1956”.
  • “Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015[37] - Sections - Deals with non-disclosure of foreign assets, tax evasion on undisclosed foreign income and assets.”
  • “Fugitive Economic Offenders Act, 2018[38]: To deal with the economic offenders who fly to another country from India[39] .”

Case Laws:

  • V Senthil Balaji v State[40]-In this Special Leave Petition case reported in 2023, the Tamil Nadu chief minister was involved in the Cash for Job scam. the Supreme Court provided insights into white-collar crimes and their legal implications[41].
  • Rahul Dinesh Surana vs. Senior Assistant Director[42][43]- The Madras High Court held to grant imprisonment to the former CEO of Surana Group of Companies in a Rs 10,000 Crores fraud case highlights the seriousness of white-collar crimes in India.
  • Vijay Madanlal Choudhary vs Union Of India [44][45]- A case discussing the constitutional aspects of the procedure under the Prevention of Money Laundering Act (PMLA), shedding light on legal safeguards in white-collar crime investigations.
  • 2G Spectrum Scam (2008): Mobile frequencies allocation scam involving underpricing that led to an estimated loss of ₹1.76 lakh crores to the exchequer[46].
  • Satyam Scam (2009) India's biggest accounting fraud involving fictitious assets and inflated cash balances worth ₹7,800 crores by its chairman.[47]

 Amendments /  Repealing :

  • Amendments to PMLA: The Prevention of Money Laundering Act (PMLA) was amended in 2023 by the Central Government to include provisions related to the punishment for forgery and falsification of accounts[48].
  • Repeal of IPC: The enactment of three new acts aimed at reforming criminal laws, The Indian Penal Code, 1860 replaced by the Bharatiya Nyaya Sanhita Bill, 2023, the Criminal Procedure Code, 1898 replaced by the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and the Indian Evidence Act, 1872 replaced by the Bharatiya Sakshya Bill, 2023[49].

CONCLUSION & COMMENTS (Recommendations and Remedies)

This article paints the real picture of the current legal framework and obstacles within the judicial process while dealing with white-collar scams in India. This study emphasises that the consequences are beyond financial losses, affecting businesses, consumers, and the overall economy. Likewise, the Mundhra scam (1950) case marked independent India’s first big financial fraud. The famed Harshad Mehta Scam- Stock market and Money laundering scam (1992), Satyam Scam-White collar scam (2008), Sahara Scam (2013) - In this case, Option bonds were collected over Rs. 24000 crores from the public without authorisation of proper regulatory authorities, Bhushan steel scam- Money Laundering (2019), Dewan Housing Finance Limited-Bank scam ( 2021), ABG Shipyard-Bank scam (2022) are frauds keep growing on with an alarming frequency following every decade and many more. To deal with such scams/crimes, there is a huge need to adopt a comprehensive mechanism. There are some recommendations such as Principles of transparency, accountability, integrity, and ethical conduct, that must be adopted. Remedies include reviewing laws governing economic offences, engaging knowledgeable prosecutors, expediting trials through exclusive courts, simplifying court procedures, and establishing a special penal code for white-collar crime prevention. In lump sum, the study calls for a stringent approach to address white-collar crimes in India, advocating for legal reforms, judicial efficiency enhancements, and preventive measures to combat these complex forms of criminal activities effectively and efficiently. Therefore, it is high time for our constitutional machinery to focus on the enactment of stringent laws that will be helpful to deter offenders and prevent such crimes by tightening bail provisions to prevent economic offenders from being released easily and a special penal code dedicated to preventing white-collar crime to expedite justice, combat and prevent misconduct, promote corporate responsibility, and maintain public trust in institutions.

REFERENCES

Books / Commentaries / Journals Referred
  1. https://kbsaa.org/journal/wp-content/uploads/2022/12/Saptarshi-Ganguly-and-Amit-Majumder.pdf
  2. https://ijirl.com/wp-content/uploads/2022/07/A-CRITICAL-STUDY-OF-WHITE-COLLAR-CRIMES.pdf
Online Articles / Sources
  1. com - Legislations Against White Collar Crimes
  2. com - White-Collar Crime 2023
  3. LiveLaw - Reathed all Latest Updates on and about White Collar Crimes
  4. LinkedIn - White Collar Crime in India
  5. JSTOR - Corrupting the Harm Requirement in White Collar Crime
  6. com/library/detail.aspx
  7. India code
  8. Hindustan Times
  9. Outlook.com
Cases Referred
  1. https://www.livemint.com/Companies/UJ4F8Dyx6L9CEmLYME3o6K/Mundhra-scam-Indias-first-big-corporate-fraud-case.html
  2. https://main.sci.gov.in/supremecourt/2012/20230/20230_2012_Judgement_17-Apr-2012.pdf
  3. https://main.sci.gov.in/supremecourt/2012/20230/20230_2012_Judgement_17-Apr-2012.pdf
  4. https://www.livemint.com/Companies/UJ4F8Dyx6L9CEmLYME3o6K/Mundhra-scam-Indias-first-big-corporate-fraud-case.html
  5. https://www.rediff.com/business/report/bhushan-steel-case-a-classic-example-of-crony-capitalism/20200528.html.
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[36]https://www.google.com/urlsa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiNroHojduEAxWFcGwGHZulBloQFnoECCAQAQ&url=https%3A%2F%2Fwww.mca.gov.in%2FMinistry%2Fpdf%2FCompaniesAct2013.pdf&usg=AOvVaw0gT0arPjCTG3CrZBD8LC6A&opi=89978449 accessed on March4,2024 [37] https://www.indiacode.nic.in/handle/123456789/2147?view_type=search&sam_handle accessed on March 3,2024 [38] https://www.indiacode.nic.in/handle/ accessed on March 3,2024 [39] https://www.lexology.com/library/detail.aspx?g=a815f6b0-048e-4d93-ba3d-28023e6f057 accessed on March 2,2024. [40] https://main.sci.gov.in/supremecourt/2023/28176/28176_2023_7_1501_45841_Judgement_07-Aug-2023.pdf accessed on March 2,2024. [41] SLP(Crl) No. 013929 of 2023. [42] https://www.livelaw.in/pdf_upload/rahul-dinesh-surana-v-senior-assistant-director-441450.pdf accessed on March2,2024. [43] Crl.O.P.No.21728 of 2022 [44]https://www.livelaw.in/pdf_upload/633-vijay-madanlal-choudhary-v-union-of-india-27-july-2022-428134.pdf accessed on March 2,2024. [45] AIR 2022 (SC) 633 [46] https://www.indiatoday.in/fyi/story/what-is-2g-scam-in-india-2g-scam-verdict-upa-a-raja-cbi-judge-op-saini-verdict-things-to-know-1113444-2017-12-21accessed on March 2024. [47]https://www.researchgate.net/publication/304441053_Revisiting_the_Satyam_Accounting_Scam_A_Case_Study accessed on Maech 3,2024. [48] CLG - Business Crime Laws and Regulations Report 2024 India accessed on March2,2024 [49]https://www.outlookindia.com/national/govt-announces-implementation-of-three-new-criminal-laws-from-july-1-2024 accessed on 4 March,2024. **Content:** **Author-Pooja, Rayat College of Law, Railmajra** ### INTRODUCTION For many decades, the news headlines about scams and frauds committed by individuals and corporations have become more prevalent in India. Unfortunately, several people are unaware of these scams like Phishing calls, Telegram fraud, custom duty scams, financial scams and more. However, these practices are still ongoing, and offenders are taking advantage of loopholes in the statutes due to the negligence of lawmakers during the creation of laws. Nobody dares to question these practices till the day when news headlines reveal that ‘A’ person fled to ‘B’ Country before any legal action can be taken as he has committed default in repaying such amount i.e., raised or borrowed money by him from multiple sources from the past ‘X’ years. When an aggrieved party or parties file the petition before the court then it’s already too late to administer justice to them because defaulters know very well how to defeat the law as the judiciary has no jurisdiction beyond the country even if all the evidence shows yes, it is a scam. For example, if the Judiciary gives judgment against the offender but during the time of execution of the decree in general question arises how we can recover that money as the Offender did not leave any sufficient property as all the properties belonged to him at ‘B’ country, where the offender currently resides. All the victims are not able to get their funds back due to the typical procedure established by the committee and not a proper channel of communication to listen to the queries of the victims because of the incomplete investigation from the side of the authorities. No doubt, many people will say that they have official data to prove that people getting refunds, but the reality is much different from the data. Normally. data is just a formality nothing else because a large number of people commit suicides[\[1\]](#_ftn1) and lose hope in the justice system. We can see that on the surface everything is going on very smoothly but if we dive into reality then we will see there is an ocean of corruption and laziness from the side of the authorities. In the end, Authorities treat the victims in such a manner which makes them believe that they are the root cause of the problem, not the defaulters because justice is in the hands of such people and there is no one to address their miseries. That’s why, reality is too harsh and beyond the way. Now, we can understand that it is a very well-planned tactic and generally played by the many offenders at every time because they believe that no one can restrict such activities as they have the power in their hands till they have money which is sufficient to feed the mouth of corrupted officials and for that sake, such officials will protect them as far as possible. However, On the other side, many officials are honest and dedicated to their profession. Still, they do have not the power to restrain such corrupt practices that are adopted in the world of the corporate. Even Today, there is no specific legislation to deal with, regulate and provide adequate relief against such practices. Ultimately, these practices are increasing at a higher pace. In this article, we will understand the meaning, statutory provisions, Problems and remedies to prevent such Crimes in the interest of justice. Keywords (Minimum 5): Corruption, Money ‘Power, Loopholes in Statutes, Lack in the implementation of Law, Defeat of Justice, Corporate Crime and Scams. ### Meaning, and Definition: White-collar scams fall under the umbrella term of white-collar crime. White-collar scams are one of the white-collar crimes. It means the scope of white-collar crime is much greater than white-collar scams. *A “scam” generally refers to a deceptive, manipulative or fraudulent scheme. These scams are designed to cheat someone out of money or assets. When this type of fraudulent activity is adopted by individuals or entities in positions of authority, trust, or influence. This is how scams become white-collar scams*[**\[2\]**](#_ftn2)[**\[3\]**](#_ftn3) **“***Crime committed by a person of respectability and high social status during his occupation*.” **————– Edwin Sutherland** In other words, White-collar crimes denote non-violent, illegal activities, financially motivated and tricks like deception, fraud, or manipulation particularly committed by individuals of high social status, such as professionals, business executives, or government officials, during their occupation or profession. ### Historical Background In 1930, The Sociologist and Criminologist Edwin Sutherland coined and popularised the concept of white-collar crime. Before this, there was a myth that individuals from the upper social class never indulge in such unethical and immoral practices. Sutherland challenged this notion and brought attention to the involvement of respected individuals in illegal activities[\[4\]](#_ftn4). Since then, various theories and approaches have been developed to analyse and address issues concerning such crimes. Over time, Due to technological advancement and globalization, these crimes have become more sophisticated because of the complex financial schemes and regulatory challenges[\[5\]](#_ftn5). *“The Santhanam Committee’s report showed a wide picture of white-collar crimes committed by respectable individuals such as businessmen, industrialists, contractors, and suppliers, as well as corrupt public officials. The motivation for committing a crime is not always based on necessity.[**\[6\]**](#_ftn6)” It includes Businessmen, Industrialists, Contractors, Suppliers and not surprisingly corrupt Public Officials.* In May 1958, the government appointed a Board of Enquiry headed by Justice Vivian Bose[\[7\]](#_ftn7). In 1963, The Reports of the **Vivian Bose Commission**[\[8\]](#_ftn8) investigated the affairs of the Dalmia Jain group of companies and drew attention towards the Businessmen who often indulge themselves in White Collar Crimes such as Forgery, Fraud, Falsification of accounts, Tampering with records for personal gains and Tax evasion etc. Consequently, the problems like huge financial, social, and psychological suffering by the victims and society at large[\[9\]](#_ftn9). ### **Principles and Doctrines:** - ***Strict Construction and Interpretation of Criminal Statutes*** – The idea behind this principle is that there must not be a formality when the laws are enacted but every provision contained in the statutes must address the issues and the procedures in the concised form. Therefore, criminal statutes must be construed strictly and interpreted precisely by keeping in view the practical application of the laws. - ***The Tricks of Deceit and Concealment*** – This doctrine states that in this AI era, it is an easy task to access information because lack of security issues and data is bought and sold by such persons who do not have the authority to do so but this is the reality and lack of the vigilance from the side of the authorities. Hence, criminals often employ fraudulent schemes, misrepresentations, or false information, to accomplish their objectives. - ***Causes behind the criminal intent of the Individual*** – This concept is very helpful to understanding and investigating the criminal behaviour of individuals, such as rule-violating nature, greed, lack of awareness among people, lack of strict rules and laws, lack of accountability, peer support, loopholes of legal structure, technological and industrial development[\[10\]](#_ftn10). Therefore, this list is not limited but understanding of these factors aids in identifying and combating such crimes. As, there are various theories such as rational choice, social control, strain etc, that can be applied to explain the motivations and tactics behind white-collar crimes. This is how researchers and policymakers can understand the root causes of such offences. ### Essentials / Elements / Pre-requisites: - One of the most essential points is that there must be the presence of the **Intention to deceive** - The statement by the person that he/she is from an ‘X’ company ‘agent or your relative’ friend is like impersonating themselves to gain the trust of the individual. Such act known as **Breach of trust**, - The intention to deceive someone only because there is an existence of f**inancial motive**, - In scams, the most common element is to operate illegal activities by showing that these activities are complying with the law. This is called the **concealment of illegal activities.** Note: A thorough investigation is required to uncover the scams may involve complex schemes and multiple parties. ### Exceptions: - There must be a **lack of intention to deceive** the victim to gain undue financial advantage. - When there is no meeting of mind that leads to the **mistake of fact**. - No usage of manipulative tricks to trap the victims to do such acts which they ordinarily resist to do so. It is known as - There must not be use of force of any type over the victim to do such an act. Such acts count as However, proving these defences can be challenging due to the nature of white-collar scams and the evidence required to establish guilt. ### Forms / Modes [\[11\]](#_ftn11) Some common types of white-collar scams[\[12\]](#_ftn12): - **Fund Embezzlement:** The misuse of funds by the executives within organizations that are entrusted under the care of the individual. - **Fraud[\[13\]](#_ftn13):** “*Fraud occurs when someone knowingly lies to obtain a benefit or advantage to which they are not otherwise entitled, or someone knowingly denies a benefit that is due and to which someone is entitled”*[\[14\]](#_ftn14). In other words, there must be a presence of an intention to deceive to secure unfair or unlawful financial gain, which can include: - **Investment Fraud, Insurance Fraud, Forgery, Credit Card Fraud, Securities Fraud, Bank Fraud, Online Auction Fraud etc** - For example, in the case of Punjab National Bank Fraud (2018): Over Rs 14,000 crores was defrauded by Nirav Modi (Billionaire Jeweller) and this fraud was committed via the issuance of fraudulent Letters of Undertaking by a subordinate clerk at a single Mumbai branch. - **Insider Trading:** “*This practice that often blurs the line between legitimate investment activities and unlawful behaviour. It happens when individuals or entities buy or sell securities in a company based on non-public, material information about that company. This practice can lead to unfair advantages, market distortions, and loss*[\[15\]](#_ftn15). For example, In the **Re Harshad Mehta Scam (1992)** case: This is one of the biggest securities scams in Indian history and it involved fraudulent brokerage practices and over Rs.6,000 crores in bank funds being siphoned off. - **Ponzi Schemes:** In this scheme, at first, the funds are collected from new investors then these funds are used to pay returns to their earlier investors, creating the illusion of profit when no legitimate business activity is occurring. For example, In the Re **Rose Valley Chit Fund Scam (2012-13) case**: An estimated Rs 15,000 crores Ponzi scheme defrauded lakhs of small investors across India. - **Pyramid Schemes:** This scheme is familiar with the Ponzi scheme, where participants are recruited to make payments to those above them in a hierarchy, promising future profits based on recruiting more participants. Example: **In the Re PACL Ponzi scam case (2014**): In the Re PACL Ponzi scam case (2014): PACL collected over Rs 45,000 crores through its instalment payment plan and cash down payment plan as part of its collective investment scheme. The investors were lured by promises of an interest rate of 12.5 per cent on deposits are much better option instead of investing in the Fds and depositing in the savings bank account, besides free accidental insurance and income tax-free maturity. Sebi passed an order asking the company to refund Rs 49,100 crores, with promised returns.[\[16\]](#_ftn16) - **Phishing Scams:** This is a method of sending fake emails or messages to trick individuals into providing sensitive information, such as passwords or credit card numbers. Afterwards, this information is used for identity theft or financial fraud. - **Tech Support Scams:** Tech support personnel convince victims to provide remote access to their computers as they impersonate themselves so that individual will believe their words and do such acts that scammers want them to do. That‘s why, it is easier for scammers to steal personal information or install malware. - **Business Email Compromise and Phishing Calls:** Scammers use compromised email accounts and phone numbers to impersonate executives or employees, tricking others into transferring funds or sensitive information. - **Identity Theft:** In this era, both online and offline at some official platforms sharing of personal data is very common but our data are sold/leaked by the sources to whom we give access to have our data. That’s how Scammers Illegally obtain and use someone else’s data, such as Social Security numbers or credit card information, for financial gain. - **Loan Scams:** Offering fraudulent loans with unrealistic terms and prerequisite conditions is upfront fees or personal information that can be used for identity theft[\[17\]](#_ftn17). ### Legal Provisions and Regulations **I**ndia’s legal framework addresses white-collar scams with specific statutes and provisions: **Statutes:** - ***“Central Bureau of Investigation (CBI) Act, 1946*** *– The CBI is the premier investigating agency in India to investigate major crimes, including white-collar crimes. The CBI Act empowers the agency to investigate offences across state borders”[**\[18\]**](#_ftn18).* - ***“Banking Regulation Act, 1949*** [***\[19\]***](#_ftn19)*– Sections 33A, 34A, 35 dealing with banking related fraudulent transactions, falsification of accounts”[**\[20\]**](#_ftn20).* - ***“Income Tax Act, 1961***[***\[21\]***](#_ftn21) *– This act includes provisions related to tax evasion, which is a common aspect of white-collar crimes. Evading taxes through fraudulent means is punishable under this act”.* *Havells India Ltd Tax Evasion (2016): Tax evasion of over Rs 500 crores by under-reporting sales and profit figures over several years.* - ***“Securities and Exchange Board of India (SEBI) Act, 1992”*** [***\[22\]***](#_ftn22) *The Securities and Exchange Board of India Act regulates the securities market and aims to prevent market manipulation and insider trading.* *Amendments: Amendments have been made to the SEBI Act to enhance regulatory oversight and enforcement against insider trading and market abuse.* - ***Indian Penal Code (IPC)***[***\[23\]***](#_ftn23) *Sections 403 to 409 deal with offences related to criminal breach of trust, misappropriation, and cheating.* *Sections 463 to 468 cover forgery and counterfeiting.* *Sections 471 to 474 address the use of forged documents as genuine.* *Amendments: The IPC has undergone various amendments over the years to strengthen provisions against white-collar crimes. Notable amendments include updates to punishment clauses for fraud, misappropriation, and financial offences.* [***\[24\]***](#_ftn24)*.* - ***Information Technology Act, 2000[\[25\]](#_ftn25)****– With the rise of cybercrimes related to white-collar offences, this act provides legal provisions for electronic fraud, data theft, and hacking.* - ***Prevention of Money Laundering Act, 2002***[***\[26\]***](#_ftn26)*: This Act focuses on dealing with corruption involving public officials and public servants.* *Commonwealth Games Scam (2010): Large-scale inflated expenses and corruption during preparation for the games with over ₹70,000 crores estimated to have been laundered.* *Amendments: Amendments to this Act have introduced stricter penalties for corruption, bribery, and illegal gratification.* - ***Central Vigilance Commission Act, 2003[\[27\]](#_ftn27):*** *This act enhances vigilance in public sector organizations[**\[28\]**](#_ftn28)* - ***“Lokpal and Lokayuktas Act, 2013***[***\[29\]***](#_ftn29)*: Establishes Institutions to Combat Corruption[**\[30\]**](#_ftn30) The Act provides for the establishment of Lokpal at the central level and Lokayuktas at the state level to inquire into allegations of corruption against public officials.”* *“The Lokpal and Lokayuktas (Amendment) Act, 2016[**\[31\]**](#_ftn31),2019 and, 2020, introduced provisions for declaring assets and liabilities of public servants and their family members. Also amended various sections to enhance transparency, streamline procedures for filing complaints, protect whistleblowers and for the extension of the time limit for public servants to declare their assets and liabilities.”* *“The objectives behind these amendments are to strengthen the functioning of Lokpal and Lokayuktas, increase accountability, and expedite the resolution of corruption cases. It covers various offences related to corruption and misconduct by public servants.”* - ***Prevention of Corruption Act, 1988***[***\[32\]***](#_ftn32) *“The Prevention of Corruption (Amendment) Act, 2018[**\[33\]**](#_ftn33), introduced stringent provisions against corruption, including criminalizing giving bribes and punishing commercial organizations for bribery.”* *The objectives are to ensure speedy trial and enhanced punishment for offenses related to bribery, corruption and curb corruption and promote transparency in governance.* *This Act complements the Lokpal and Lokayuktas Act by defining various offences related to corruption involving public officials and public servants. and prescribing penalties* *Amendments: The Act has undergone amendments to enhance penalties and widen the scope of offences, to complement the objectives of the Lokpal and Lokayuktas Act.”* - ***“Foreign Contribution Regulation Act, 2010***[***\[34\]***](#_ftn34)*: Regulates foreign contributions and targets financial misconduct[**\[35\]**](#_ftn35).”* - ***“Companies Act (2013****)[**\[36\]**](#_ftn36): The fraud committed by officers of a company falls under the Sections 447 and 448 like financial statement fraud falls under this. One more thing is that there is no specific definition of Fraud in the Companies Act, of 1956”.* - ***“Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015***[***\[37\]***](#_ftn37) *– Sections – Deals with non-disclosure of foreign assets, tax evasion on undisclosed foreign income and assets.”* - ***“Fugitive Economic Offenders Act, 2018[\[38\]](#_ftn38)****: To deal with the economic offenders who fly to another country from India[**\[39\]**](#_ftn39) .”* ### Case Laws: - ***V Senthil Balaji v State[\[40\]](#_ftn40)****-In this Special Leave Petition case reported in 2023, the Tamil Nadu chief minister was involved in the Cash for Job scam. the Supreme Court provided insights into white-collar crimes and their legal implications[**\[41\]**](#_ftn41)**.*** - ***Rahul Dinesh Surana vs. Senior Assistant Director***[***\[42\]***](#_ftn42)[***\[43\]***](#_ftn43)*– The Madras High Court held to grant imprisonment to the former CEO of Surana Group of Companies in a Rs 10,000 Crores fraud case highlights the seriousness of white-collar crimes in India.* - ***Vijay Madanlal Choudhary vs Union Of India [\[44\]](#_ftn44)[\[45\]](#_ftn45)****– A case discussing the constitutional aspects of the procedure under the Prevention of Money Laundering Act (PMLA), shedding light on legal safeguards in white-collar crime investigations.* - ***2G Spectrum Scam (2008):*** *Mobile frequencies allocation scam involving underpricing that led to an estimated loss of ₹1.76 lakh crores to the exchequer[**\[46\]**](#_ftn46).* - ***Satyam Scam (2009)*** *India’s biggest accounting fraud involving fictitious assets and inflated cash balances worth ₹7,800 crores by its chairman.[**\[47\]**](#_ftn47)* ### Amendments / Repealing ***:*** - ***Amendments to PMLA:*** *The Prevention of Money Laundering Act (PMLA) was amended in 2023 by the Central Government to include provisions related to the punishment for forgery and falsification of accounts[**\[48\]**](#_ftn48).* - ***Repeal of IPC:*** *The enactment of three new acts aimed at reforming criminal laws, The Indian Penal Code, 1860 replaced by the Bharatiya Nyaya Sanhita Bill, 2023, the Criminal Procedure Code, 1898 replaced by the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and the Indian Evidence Act, 1872 replaced by the Bharatiya Sakshya Bill, 2023[**\[49\]**](#_ftn49).* ### CONCLUSION & COMMENTS (Recommendations and Remedies) This article paints the real picture of the current legal framework and obstacles within the judicial process while dealing with white-collar scams in India. This study emphasises that the consequences are beyond financial losses, affecting businesses, consumers, and the overall economy. Likewise, the Mundhra scam (1950) case marked independent India’s first big financial fraud. The famed Harshad Mehta Scam- Stock market and Money laundering scam (1992), Satyam Scam-White collar scam (2008), Sahara Scam (2013) – In this case, Option bonds were collected over Rs. 24000 crores from the public without authorisation of proper regulatory authorities, Bhushan steel scam- Money Laundering (2019), Dewan Housing Finance Limited-Bank scam ( 2021), ABG Shipyard-Bank scam (2022) are frauds keep growing on with an alarming frequency following every decade and many more. To deal with such scams/crimes, there is a huge need to adopt a comprehensive mechanism. There are some recommendations such as Principles of transparency, accountability, integrity, and ethical conduct, that must be adopted. Remedies include reviewing laws governing economic offences, engaging knowledgeable prosecutors, expediting trials through exclusive courts, simplifying court procedures, and establishing a special penal code for white-collar crime prevention. In lump sum, the study calls for a stringent approach to address white-collar crimes in India, advocating for legal reforms, judicial efficiency enhancements, and preventive measures to combat these complex forms of criminal activities effectively and efficiently. Therefore, it is high time for our constitutional machinery to focus on the enactment of stringent laws that will be helpful to deter offenders and prevent such crimes by tightening bail provisions to prevent economic offenders from being released easily and a special penal code dedicated to preventing white-collar crime to expedite justice, combat and prevent misconduct, promote corporate responsibility, and maintain public trust in institutions. ### REFERENCES **Books / Commentaries / Journals Referred** 1. 2. https://ijirl.com/wp-content/uploads/2022/07/A-CRITICAL-STUDY-OF-WHITE-COLLAR-CRIMES.pdf ***Online Articles / Sources*** 1. com – Legislations Against White Collar Crimes 2. com – White-Collar Crime 2023 3. LiveLaw – Reathed all Latest Updates on and about White Collar Crimes 4. LinkedIn – White Collar Crime in India 5. JSTOR – Corrupting the Harm Requirement in White Collar Crime 6. com/library/detail.aspx 7. India code 8. Hindustan Times 9. 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[\[30\]](#_ftnref30) https://www.lexology.com/library/detail.aspx?g=a815f6b0-048e-4d93-ba3d-28023e6f057 accessed on March 2,2024 [\[31\]](#_ftnref31) [https://dopt.gov.in/sites/default/files/407\_16\_2016-AVD-IV-LP-10082016.pdf](https://dopt.gov.in/sites/default/files/407_16_2016-AVD-IV-LP-10082016.pdf) accessed on March 3,2024. [\[32\]](#_ftnref32) accessed on March3,2024. [\[33\]](#_ftnref33) accessed on March 3,2024. [\[34\]](#_ftnref34) [https://fcraonline.nic.in/Home/PDF\_Doc/FC-RegulationAct-2010-C.pdf](https://fcraonline.nic.in/Home/PDF_Doc/FC-RegulationAct-2010-C.pdf) accessed on March3,2024. [\[35\]](#_ftnref35) https://www.lexology.com/library/detail.aspx?g=a815f6b0-048e-4d93-ba3d-28023e6f057 Accessed on March 2,2024. [\[36\]](#_ftnref36)[https://www.google.com/urlsa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiNroHojduEAxWFcGwGHZulBloQFnoECCAQAQ&url=https%3A%2F%2Fwww.mca.gov.in%2FMinistry%2Fpdf%2FCompaniesAct2013.pdf&usg=AOvVaw0gT0arPjCTG3CrZBD8LC6A&opi=89978449](https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiNroHojduEAxWFcGwGHZulBloQFnoECCAQAQ&url=https%3A%2F%2Fwww.mca.gov.in%2FMinistry%2Fpdf%2FCompaniesAct2013.pdf&usg=AOvVaw0gT0arPjCTG3CrZBD8LC6A&opi=89978449) accessed on March4,2024 [\[37\]](#_ftnref37) [https://www.indiacode.nic.in/handle/123456789/2147?view\_type=search&sam\_handle](https://www.indiacode.nic.in/handle/123456789/2147?view_type=search&sam_handle) accessed on March 3,2024 [\[38\]](#_ftnref38) accessed on March 3,2024 [\[39\]](#_ftnref39) accessed on March 2,2024. [\[40\]](#_ftnref40) [https://main.sci.gov.in/supremecourt/2023/28176/28176\_2023\_7\_1501\_45841\_Judgement\_07-Aug-2023.pdf](https://main.sci.gov.in/supremecourt/2023/28176/28176_2023_7_1501_45841_Judgement_07-Aug-2023.pdf) accessed on March 2,2024. [\[41\]](#_ftnref41) [SLP(Crl) No. 013929 of 2023.](https://main.sci.gov.in/officereport/2023/43833/43833_2023_2023-10-30_1419.html) [\[42\]](#_ftnref42) [https://www.livelaw.in/pdf\_upload/rahul-dinesh-surana-v-senior-assistant-director-441450.pdf](https://www.livelaw.in/pdf_upload/rahul-dinesh-surana-v-senior-assistant-director-441450.pdf) accessed on March2,2024. [\[43\]](#_ftnref43) Crl.O.P.No.21728 of 2022 [\[44\]](#_ftnref44)https://www.livelaw.in/pdf\_upload/633-vijay-madanlal-choudhary-v-union-of-india-27-july-2022-428134.pdf accessed on March 2,2024. [\[45\]](#_ftnref45) AIR 2022 (SC) 633 [\[46\]](#_ftnref46) on March 2024. [\[47\]](#_ftnref47)[https://www.researchgate.net/publication/304441053\_Revisiting\_the\_Satyam\_Accounting\_Scam\_A\_Case\_Study](https://www.researchgate.net/publication/304441053_Revisiting_the_Satyam_Accounting_Scam_A_Case_Study) accessed on Maech 3,2024. [\[48\]](#_ftnref48) CLG – Business Crime Laws and Regulations Report 2024 India accessed on March2,2024 [\[49\]](#_ftnref49)https://www.outlookindia.com/national/govt-announces-implementation-of-three-new-criminal-laws-from-july-1-2024 accessed on 4 March,2024. **Categories:** Articles --- ### [CRIMINAL CONSPIRACY UNDER CRIMINAL LAW](https://lawfoyer.in/criminal-conspiracy-under-criminal-law/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Priyanshi Jaiswal, University of Lucknow, Lucknow

INTRODUCTION

The word ‘Conspiracy' is generally signified for an illegal or bad act. In common parlance, ‘Conspiracy' i.e (षडयंत्र) means a kind of secret plan between two or more persons in pursuance of any act. A conspiracy between any person is not merely held in their mind but it must also be made explicitly in their agreement to do an unlawful or overt act, so from this, we can determine that mere intention is not indictable under a conspiracy. One of the most essential elements present in Conspiracy is an agreement between parties to commit any act that is unlawful in nature. In toto, the whole crux of this offence is the ‘Combination' means the agreement between the persons to commit an act. In the Indian Penal Code, 1860[1] Criminal Conspiracy is defined as a substantive offence, earlier when an accused is charged with criminal conspiracy, there must also be the presence of any other charges of substantive offences. In 1913, Chapter - V A  was inserted in the Indian Penal Code which deals with the ‘Criminal Conspiracy’, the provisions and punishments for the same are given under Section 120A and 120B respectively. Throughout this article, we shall be dealing with each and every aspect of the Criminal Conspiracy discussed under criminal law. Keywords (Minimum 5):
  1. Criminal Conspiracy.
  2. Agreement for unlawful purposes.
  3. Section 120A of Indian Penal Code.
  4. Legal act by illegal means.
  5. Joint Liability.

MEANING OF CRIMINAL CONSPIRACY

In our society both crime and criminality are looked upon with the greatest hatred by everyone, but it can't be denied that it is one of the most interesting branches of Jurisprudence. According to Stephen, “Crime is an act forbidden by law and which at the same time revolting to the moral sentiments of the society." [2] Criminal Conspiracy is defined under Indian Penal Code as inchoate crime because it approaches toward the suspects for the prevention of the suspected crime at any particular time or place. Conspiracy holds nothing but the mere combination of minds or agreement between the parties to constitute an offence is enough to punish the offenders for such an act. Here, the agreement means the meeting of two minds with an intent for a particular instance, there shall not be presence of criminal conspiracy until there is any interchanging of plans or matters regarding the commission of such act. The origin of conspiracy took place in early years of ancient time for executing false cases  against one. However  it was mainly recognised in the case of Poulterer’s case (1611)  in which for the first time criminal conspiracy was regarded as a criminal offence of substantive nature.

STATUTORY PROVISIONS FOR CRIMINAL CONSPIRACY

In the year 1913, the Criminal Law Amendment Act inserted Chapter V-A of the Indian Penal Code which made conspiracy a substantive offence. Earlier to this, there was no such statutory provisions related to the conspiracy between any persons for the commission of any offence, they were only punishable when such act amounted to an offence in pursuance thereof. Under the Indian Penal Code, Criminal Conspiracy is defined under Section 120A as follows - “Section 120A : Definition of Criminal Conspiracy When two or more persons agree to do, or cause to be done, –
  • an illegal act, or
  • an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.”[3]
The Proviso attached to this section explains that all such agreements for the commission of an offence shall amount to criminal conspiracy. When the object of such conspiracy is to commit an act that is not amount to offence, in such case some overt act is necessary. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

PRE-REQUISITES OF CRIMINAL CONSPIRACY

The followings are the prerequisites of the offence of criminal conspiracy under the Indian Penal Code, 1860 :-
  1. Presence of agreement between two or more than two persons who conspired together.
  2. That agreement must be made with an intention -
  • to commit an illegal act, or
  • to commit a legal act but by illegal means.
3. Presence of joint evil intent of parties. In the case of K. Hasim v/s State of Tamil Nadu[4], it was laid that the most important element of criminal conspiracy is the unlawful combination and the offence shall be completed when the act is reached at the stage of combination. For example - A and B planned together to persuade C to kill D. They accordingly persuaded C and he agreed to do so. In such a case A and B shall be liable for abetment to commit murder whereas C will be liable for the offence of conspiracy under Section 120A of the Indian Penal Code. EVIDENCE OF CRIMINAL CONSPIRACY In the Criminal Justice System, the concept of ‘Evidence’ holds the greatest importance for investigating any facts of the case. Generally, it is of two types: (i) direct evidence and (ii) circumstantial evidence. In the case of criminal conspiracy, the act or any offence is usually executed secretly so the proof for the evidence in such a case can not be made easily from the  direct evidence as compared to the circumstantial evidence. Section 10 of the Indian Evidence Act, 1872[5] states the doctrine of agency which says that if the case is proved to be of criminal conspiracy, the act of one of the conspirator becomes the act of the another involved in such conspiracy and anything done or written by any of one of such persons in further of common intention would be seems to be conspired together and then each one shall be liable. Followings are the certain conditions for this section:-
  • Presence of reasonable ground.
  • Everything that is done, written or said by any one of them expressly showing their common intention shall be covered under the ambit of evidence.
In the case of Ram Narain Popli v/s CBI[6], the Hon’ble Supreme Court held that the evidences of mere agreement between the parties are sufficient to prove the case of conspiracy. PUNISHMENT FOR CRIMINAL CONSPIRACY UNDER CRIMINAL LAW According to Bentham, “Punishment is an empirical question of desire and of the infliction of sufficient pain to provide an effective deterrent[7]." The quantum of punishment for the offence of  criminal conspiracy under this section is split into two parts, namely,
  1. If the offences are of severe nature, here the punishment for the conspiracy shall be the same as given under the punishment for the commission of such offences, and
  2. and the secondly for the less severe offences where express provisions are made for their punishments.
The Indian Penal Code provides punishment of criminal conspiracy under Section 120B as follows – “Section - 120B - Punishment for criminal conspiracy.
  • Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term Anything said, written or done by any one of them about their common intention will be evidence against each other.
  • two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manyas if he had abetted such offence.
  • Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”[8]
In the recent case, Praveen v/s State of Haryana[9], it was observed by the court that it is not the compliance of the provisions of Section 120B of IPC without the presence of sufficient evidence shows the prior meeting of mind or agreement between them. DEFENCES UNDER CRIMINAL CONSPIRACY There are following two types of defence available in the case of criminal conspiracy -
  1. Abandonment or withdrawal - Generally seen in the cases of attempt, if it is proved that before the commission of the offences, the accused withdrew the case or abandoned himself then he shall not be guilty of such offences. In the same way we can provide defence if we prove that the conspirator withdrew from such a conspiracy at the very initial stage.
  2. Entrapment - As the name suggests ‘something that is entrapped’. In this the conspirator is entrapped by a law enforcement officer or government agent to be involved in such a conspiracy.
DEMARCATION BETWEEN ABETMENT AND CRIMINAL CONSPIRACY
  1. Criminal Conspiracy is a substantive offence whereas the Abetment is not a substantive offence.
  2. Criminal Conspiracy is dealt under Section 120A of IPC whereas the provisions for the Abetment is covered under Section -107 of IPC.
  3. The mode of commission of offence varies, in the criminal conspiracy agreements are made between the parties for such an offence however in the latter one one person instigates or provokes another for the commission of any offence.
  4. Mere combination is the gist of the criminal conspiracy but in abetment the act must be committed.
  5. The term ‘Conspirator’ is used for the offender in criminal conspiracy and in abetment, ‘Abettor’ is used.
  6. Abetment is the ‘genus’ whereas criminal conspiracy is ‘species’.
  7. In any case the abettor can not be the principal offender (accused) but the conspirator can be the accused for the case.
  8. The offences under the criminal conspiracy can be said as a part of offences under Abetment.
CONCLUSION Due to its gravity of nature, criminal conspiracy is exempted from the essentials of the crime, a crime includes two things i.e actus reus and mens reus  however in  the criminal conspiracy the actus reus is the exception. The aim before inclusion of this act was to prevent the criminal activities before its actual commission but this approach is not accomplished nowadays. It has also been observed the misuses of the provisions of conspiracy in a number of cases where innocents are tortured and humiliated. It seems that there is a need to pay attention to the provisions of conspiracy during investigation or trial, due diligence must also be shown from the side of judges in courtrooms.
  1. REFERENCES
  2. Books -
    1. Indian Penal Code by Prof. S. N. Mishra
  3. Online Articles / Sources Referred
    1. https://www.justia.com/criminal/offenses/inchoate-crimes/conspiracy/
    2. https://www.jstor.org/stable/3309198
  4. Cases Referred
    1. B.I. v/s V.C. Shukla[10]
    2. State of Tamil Nadu v/s Nalini[11]
    3. Topandas v/s State of Bombay [12]
    4. Kuldeep Sharma v/s State of Himachal Pradesh[13]
  5. Statutes Referred
    1. Section 120A and 120B of Indian Penal Code.
    2. Section 107 of Indian Penal Code.
    3. Section 43 of Indian Penal Code.
[1] The Indian Penal Code, 1860 (Act no. 45 of 1860). [2] Stephen, General View of Criminal Law of England, p. 3. [3] The Indian Penal Code, 1860 (Act no. 45 of 1860). [4] K. Hasim v/s State of Tamil Nadu (2005) Cr LJ 143 SC. [5] The Indian Evidence Act, 1872 (Act no. 1 of 1872). [6] Ram Narain Popli v/s CBI (2003) 3 SCC 641. [7] Bentham, Rationale of Punishment 29 (1830). [8] The Indian Penal Code, 1860 (Act no. 45 of 1860). [9] Praveen v/s State of Haryana (2021) Cr Appeal no. 1571 of 2021. [10] C.B.I v/s V.C. Shukla AIR 1998 S.C 1406. [11] State of Tamil Nadu v/s Nalini (1999) Cr LJ 3124 (SC) [12] Topandas v/s State of Bombay (1955) 2 SCR 881. [13] Kuldeep Sharma v/s State of Himachal Pradesh AIR 2011 SC 1895. **Content:** **Author-Priyanshi Jaiswal, University of Lucknow, Lucknow** ### **INTRODUCTION** The word ‘Conspiracy’ is generally signified for an illegal or bad act. In common parlance, ‘Conspiracy’ i.e (षडयंत्र) means a kind of secret plan between two or more persons in pursuance of any act. A conspiracy between any person is not merely held in their mind but it must also be made explicitly in their agreement to do an unlawful or overt act, so from this, we can determine that mere intention is not indictable under a conspiracy. One of the most essential elements present in Conspiracy is an agreement between parties to commit any act that is unlawful in nature. In toto, the whole crux of this offence is the ‘Combination’ means the agreement between the persons to commit an act. In the Indian Penal Code, 1860[\[1\]](#_ftn1) Criminal Conspiracy is defined as a substantive offence, earlier when an accused is charged with criminal conspiracy, there must also be the presence of any other charges of substantive offences. In 1913, Chapter – V A was inserted in the Indian Penal Code which deals with the ‘Criminal Conspiracy’, the provisions and punishments for the same are given under Section 120A and 120B respectively. Throughout this article, we shall be dealing with each and every aspect of the Criminal Conspiracy discussed under criminal law. ***Keywords* *(Minimum 5)*:** 1. Criminal Conspiracy. 2. Agreement for unlawful purposes. 3. Section 120A of Indian Penal Code. 4. Legal act by illegal means. 5. Joint Liability. ### **MEANING OF CRIMINAL CONSPIRACY** In our society both crime and criminality are looked upon with the greatest hatred by everyone, but it can’t be denied that it is one of the most interesting branches of Jurisprudence. According to Stephen, *“Crime is an act forbidden by law and which at the same time revolting to the moral sentiments of the society.” [**\[2\]**](#_ftn2)* Criminal Conspiracy is defined under Indian Penal Code as inchoate crime because it approaches toward the suspects for the prevention of the suspected crime at any particular time or place. Conspiracy holds nothing but the mere combination of minds or agreement between the parties to constitute an offence is enough to punish the offenders for such an act. Here, the agreement means the meeting of two minds with an intent for a particular instance, there shall not be presence of criminal conspiracy until there is any interchanging of plans or matters regarding the commission of such act. The origin of conspiracy took place in early years of ancient time for executing false cases against one. However it was mainly recognised in the case of *Poulterer’s case (1611) in* which for the first time criminal conspiracy was regarded as a criminal offence of substantive nature. ### **STATUTORY PROVISIONS FOR CRIMINAL CONSPIRACY** In the year 1913, the Criminal Law Amendment Act inserted Chapter V-A of the Indian Penal Code which made conspiracy a substantive offence. Earlier to this, there was no such statutory provisions related to the conspiracy between any persons for the commission of any offence, they were only punishable when such act amounted to an offence in pursuance thereof. Under the Indian Penal Code, Criminal Conspiracy is defined under Section 120A as follows – ***“Section 120A : Definition of Criminal Conspiracy*** *When two or more persons agree to do, or cause to be done, –* - *an illegal act, or* - *an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.”[**\[3\]**](#_ftn3)* The Proviso attached to this section explains that all such agreements for the commission of an offence shall amount to criminal conspiracy. When the object of such conspiracy is to commit an act that is not amount to offence, in such case some overt act is necessary. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. ### **PRE-REQUISITES OF CRIMINAL CONSPIRACY** The followings are the prerequisites of the offence of criminal conspiracy under the Indian Penal Code, 1860 :- 1. Presence of agreement between two or more than two persons who conspired together. 2. That agreement must be made with an intention – - to commit an illegal act, or - to commit a legal act but by illegal means. 3\. Presence of joint evil intent of parties. In the case of *K. Hasim v/s State of Tamil Nadu[**\[4\]**](#_ftn4)*, it was laid that the most important element of criminal conspiracy is the unlawful combination and the offence shall be completed when the act is reached at the stage of combination. **For example –** A and B planned together to persuade C to kill D. They accordingly persuaded C and he agreed to do so. In such a case A and B shall be liable for abetment to commit murder whereas C will be liable for the offence of conspiracy under Section 120A of the Indian Penal Code. **EVIDENCE OF CRIMINAL CONSPIRACY** In the Criminal Justice System, the concept of ‘Evidence’ holds the greatest importance for investigating any facts of the case. Generally, it is of two types: (i) direct evidence and (ii) circumstantial evidence. In the case of criminal conspiracy, the act or any offence is usually executed secretly so the proof for the evidence in such a case can not be made easily from the direct evidence as compared to the circumstantial evidence. **Section 10 of the Indian Evidence Act, 1872[\[5\]](#_ftn5)** states the doctrine of agency which says that if the case is proved to be of criminal conspiracy, the act of one of the conspirator becomes the act of the another involved in such conspiracy and anything done or written by any of one of such persons in further of common intention would be seems to be conspired together and then each one shall be liable. Followings are the certain conditions for this section:- - Presence of reasonable ground. - Everything that is done, written or said by any one of them expressly showing their common intention shall be covered under the ambit of evidence. In the case of *Ram Narain Popli v/s CBI[**\[6\]**](#_ftn6)*, the Hon’ble Supreme Court held that the evidences of mere agreement between the parties are sufficient to prove the case of conspiracy. **PUNISHMENT FOR CRIMINAL CONSPIRACY UNDER CRIMINAL LAW** According to Bentham, *“Punishment is an empirical question of desire and of the infliction of sufficient pain to provide an effective deterrent[**\[7\]**](#_ftn7).”* The quantum of punishment for the offence of criminal conspiracy under this section is split into two parts, namely, 1. If the offences are of severe nature, here the punishment for the conspiracy shall be the same as given under the punishment for the commission of such offences, and 2. and the secondly for the less severe offences where express provisions are made for their punishments. The Indian Penal Code provides punishment of criminal conspiracy under Section 120B as follows – ***“Section – 120B – Punishment for criminal conspiracy.*** - *Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term* Anything said, written or done by any one of them about their common intention will be evidence against each other. - *two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manyas if he had abetted such offence.* - *Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”[**\[8\]**](#_ftn8)* In the recent case, *Praveen v/s State of Haryana[**\[9\]**](#_ftn9)*, it was observed by the court that it is not the compliance of the provisions of Section 120B of IPC without the presence of sufficient evidence shows the prior meeting of mind or agreement between them. **DEFENCES UNDER CRIMINAL CONSPIRACY** There are following two types of defence available in the case of criminal conspiracy – 1. **Abandonment or withdrawal –** Generally seen in the cases of attempt, if it is proved that before the commission of the offences, the accused withdrew the case or abandoned himself then he shall not be guilty of such offences. In the same way we can provide defence if we prove that the conspirator withdrew from such a conspiracy at the very initial stage. 2. **Entrapment –** As the name suggests ‘something that is entrapped’. In this the conspirator is entrapped by a law enforcement officer or government agent to be involved in such a conspiracy. **DEMARCATION BETWEEN ABETMENT AND CRIMINAL CONSPIRACY** 1. Criminal Conspiracy is a substantive offence whereas the Abetment is not a substantive offence. 2. Criminal Conspiracy is dealt under Section 120A of IPC whereas the provisions for the Abetment is covered under Section -107 of IPC. 3. The mode of commission of offence varies, in the criminal conspiracy agreements are made between the parties for such an offence however in the latter one one person instigates or provokes another for the commission of any offence. 4. Mere combination is the gist of the criminal conspiracy but in abetment the act must be committed. 5. The term ‘Conspirator’ is used for the offender in criminal conspiracy and in abetment, ‘Abettor’ is used. 6. Abetment is the ‘genus’ whereas criminal conspiracy is ‘species’. 7. In any case the abettor can not be the principal offender (accused) but the conspirator can be the accused for the case. 8. The offences under the criminal conspiracy can be said as a part of offences under Abetment. **CONCLUSION** Due to its gravity of nature, criminal conspiracy is exempted from the essentials of the crime, a crime includes two things i.e actus reus and mens reus however in the criminal conspiracy the actus reus is the exception. The aim before inclusion of this act was to prevent the criminal activities before its actual commission but this approach is not accomplished nowadays. It has also been observed the misuses of the provisions of conspiracy in a number of cases where innocents are tortured and humiliated. It seems that there is a need to pay attention to the provisions of conspiracy during investigation or trial, due diligence must also be shown from the side of judges in courtrooms. 1. **REFERENCES** 2. **Books –** 1. Indian Penal Code by Prof. S. N. Mishra 3. **Online Articles / Sources Referred** 1. 2. 4. **Cases Referred** 1. B.I. v/s V.C. Shukla[\[10\]](#_ftn10) 2. State of Tamil Nadu v/s Nalini[\[11\]](#_ftn11) 3. Topandas v/s State of Bombay [\[12\]](#_ftn12) 4. Kuldeep Sharma v/s State of Himachal Pradesh[\[13\]](#_ftn13) 5. **Statutes Referred** 1. Section 120A and 120B of Indian Penal Code. 2. Section 107 of Indian Penal Code. 3. Section 43 of Indian Penal Code. [\[1\]](#_ftnref1) The Indian Penal Code, 1860 (Act no. 45 of 1860). [\[2\]](#_ftnref2) Stephen, General View of Criminal Law of England, p. 3. [\[3\]](#_ftnref3) The Indian Penal Code, 1860 (Act no. 45 of 1860). [\[4\]](#_ftnref4) K. Hasim v/s State of Tamil Nadu (2005) Cr LJ 143 SC. [\[5\]](#_ftnref5) The Indian Evidence Act, 1872 (Act no. 1 of 1872). [\[6\]](#_ftnref6) Ram Narain Popli v/s CBI (2003) 3 SCC 641. [\[7\]](#_ftnref7) Bentham, Rationale of Punishment 29 (1830). [\[8\]](#_ftnref8) The Indian Penal Code, 1860 (Act no. 45 of 1860). [\[9\]](#_ftnref9) Praveen v/s State of Haryana (2021) Cr Appeal no. 1571 of 2021. [\[10\]](#_ftnref10) C.B.I v/s V.C. Shukla AIR 1998 S.C 1406. [\[11\]](#_ftnref11) State of Tamil Nadu v/s Nalini (1999) Cr LJ 3124 (SC) [\[12\]](#_ftnref12) Topandas v/s State of Bombay (1955) 2 SCR 881. [\[13\]](#_ftnref13) Kuldeep Sharma v/s State of Himachal Pradesh AIR 2011 SC 1895. **Categories:** Articles --- ### [ACT OF GOD AS A DEFENCE UNDER LAW OF TORTS](https://lawfoyer.in/act-of-god-as-a-defence-under-law-of-torts/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Himani Choudhary, University Five Year Law College, University of Rajasthan

INTRODUCTION

An act of god is a general defense under the Law of Torts when the act is such a nature over which the defendant has no control and the damage is caused due to the working of natural forces. An act of god is defined as a circumstance where no human foresight can foresee the event and humans have no control over the circumstances. The act must be something that is extraordinary and something that cannot be foreseen and usually does not occur. The act must be of such a nature that even after applying all forces and due care it cannot be prevented. In such a case the defendant can take the defense of an act of god and can save himself from the liability and harm caused to the plaintiff. It is an absolute defense under the law of torts.

MEANING:

An act of god or Vis Major is a defense under the law of torts when the act is caused by the working of natural forces that is extraordinary, uncommon, direct, sudden, and cannot be foreseen by a reasonable man and if foreseen cannot be prevented even after taking all precautions and due care by the defendant. This includes earthquakes, floods, wildfires, etc.  In this case, the defendant can take the defense of an act of god and can prevent himself from the liability arising after proving that he had done everything that a reasonable and a prudent person could do in such a scenario. It is an absolute defense under the law of torts.

DEFINITION:

According to Salmond, an act of god include those acts which a man cannot avoid by taking reasonable care. Such accidents are the result of natural forces and are incoherent with the agency of man. According to Lord Mansfield, an act of god is define as it is something in opposition to the act of man. Vis is a Latin word meaning any kind of force, violence or disturbance to person or property. Vis major is an act of God. The doctrine states that a person is absolved of liability if it was directly caused by vis major.

HISTORICAL BACKGROUND

An act of god is one of the general defense of the law of torts. General defenses are framed from time to time as per the need arises in court of law to prevent the defendant from the tortious liability arises from his act. To get the benefit of these defense defendant had to prove all the essentials required to get the defense. These defences were framed from time to time to keep up with the very basis of imposition of tortious liability on an individual i.e, creating a sense of deterrence while keeping up with the basic values of justice. An act of god is one which has been there since the existence of our planet, earth, we have been facing and witnessing natural calamities since the existence of mankind and this include Earthquakes, floods, tornadoes, wildfire etc. In such occurrences lives are lost, properties are destroyed and significantly damaged when the forces of the nature strike harshly and suddenly.

ELEMENTS OF ACT OF GOD

  • NATURAL CAUSES:
An act of God is an uncommon, extraordinary and unforeseen manifestation of the forces of nature, or a misfortune or accident arising from inevitable necessity. An act of god cannot prevent by reasonable human foresight and care. The effect of ordinary causes may be foreseen and avoided by the exercise of human care. For example, the fact that rain will leak through a defective roof is foreseeable by an ordinary man. In case of foreseeable causes, failure to take the necessary precautions constitutes negligence, and the party injured in the accident may be entitled to damages. An act of God, therefore, is so extraordinary and devoid of human agency that reasonable care would not avoid the consequences. Therefore in such cases the injured party has no right to damages.
  • AN OCCURRENCE NOT REASONABLY FORESEEABLE
The basic and prime element of an act of god is the happening of an unforeseeable event. For this, if the harm or loss was caused by a foreseeable accident that could have been prevented, the party who suffered the injury has the right to compensation. However, the damage caused by an unforeseen and uncontrollable natural event is not compensable as it could not have been prevented or avoided by the foresight or prudence of man. Moreover, courts are of the opinion that the act of God defense exists only if the event is so exceptional and could not have been anticipated or expected by the long history of climate variations in the locality. It is constructed by only the memory of man i.e. recorded history. The courts may demand expert testimonies to prove that an event was unforeseeable. It is IMPOSSIBLE TO PREVENT BY ANY REASONABLE PRECAUTIONS AND ABSENCE OF HUMAN AGENCY CAUSING THE ALLEGED DAMAGE: It means practically impossible to resist. Negligence constitutes failure to take the necessary precautions. In an incident where a human factor was present, even though the harm could not be prevented, the fact that the human factor exercised reasonable care and precautions to prevent the harm has to be proved if the defence of act of God has to prevail. If negligence is alleged and proved, then the defence of act of God will fail. If an owner was negligent in properly maintaining a tree that fell on a passerby, he cannot be exempted from liability by act of God principle.

CASE LAWS

  1. In the case of NICHOLS V. MARSHLAND [1] the defendant has a number of artificial lakes on his land. Extraordinary rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff's bridges were swept by an act of God and the defendant was not liable.
  2. In the case of BLYTH V. BIRMINGHAM WATER WORKS CO [2] the defendants had constructed water pipes which were reasonably strong enough to withstand severe frost. There was an unprecented severe frost that year causing the pipes to burst resulting in severe damage to the plaintiff's property. It was held that though frost is a natural phenomenon, the occurrence of an unforeseen severe frost can be attributed to an act of God, thus the relieving the defendants of any liability.
  3. In the case of RAMALINGA NADAR V. NARAYANA REDDIAR [3] the plaintiff had booked goods with the defendant for transportation. The goods are looted by a mob, the prevention of which was beyond control of defendant. It was held that event beyond control of the defendant cannot be said Act of God. It was held that the destructive acts of an unruly mob cannot be considered an Act of God.

CONCLUSION

Although the act of God defense - that a defendant is insulated from liability for personal injury or property damages caused by a natural cause is rarely used, it may become more common and general in the future if predictions of disastrous weather events caused by global warming prove true. One prediction related to global warming is that catastrophic weather events such as hurricanes, tornados, and torrential rains will occur more often. All of these have the potential to cause extensive personal injury and property damage and consequently mental trauma. **Content:** **Author-Himani Choudhary, University Five Year Law College, University of Rajasthan** ### **INTRODUCTION** An act of god is a general defense under the Law of Torts when the act is such a nature over which the defendant has no control and the damage is caused due to the working of natural forces. An act of god is defined as a circumstance where no human foresight can foresee the event and humans have no control over the circumstances. The act must be something that is extraordinary and something that cannot be foreseen and usually does not occur. The act must be of such a nature that even after applying all forces and due care it cannot be prevented. In such a case the defendant can take the defense of an act of god and can save himself from the liability and harm caused to the plaintiff. It is an absolute defense under the law of torts. ### **MEANING:** An act of god or Vis Major is a defense under the law of torts when the act is caused by the working of natural forces that is extraordinary, uncommon, direct, sudden, and cannot be foreseen by a reasonable man and if foreseen cannot be prevented even after taking all precautions and due care by the defendant. This includes earthquakes, floods, wildfires, etc. In this case, the defendant can take the defense of an act of god and can prevent himself from the liability arising after proving that he had done everything that a reasonable and a prudent person could do in such a scenario. It is an absolute defense under the law of torts. ### **DEFINITION:** According to Salmond, an act of god include those acts which a man cannot avoid by taking reasonable care. Such accidents are the result of natural forces and are incoherent with the agency of man. According to Lord Mansfield, an act of god is define as it is something in opposition to the act of man. Vis is a Latin word meaning any kind of force, violence or disturbance to person or property. Vis major is an act of God. The doctrine states that a person is absolved of liability if it was directly caused by vis major. ### **HISTORICAL BACKGROUND** An act of god is one of the general defense of the law of torts. General defenses are framed from time to time as per the need arises in court of law to prevent the defendant from the tortious liability arises from his act. To get the benefit of these defense defendant had to prove all the essentials required to get the defense. These defences were framed from time to time to keep up with the very basis of imposition of tortious liability on an individual i.e, creating a sense of deterrence while keeping up with the basic values of justice. An act of god is one which has been there since the existence of our planet, earth, we have been facing and witnessing natural calamities since the existence of mankind and this include Earthquakes, floods, tornadoes, wildfire etc. In such occurrences lives are lost, properties are destroyed and significantly damaged when the forces of the nature strike harshly and suddenly. ### **ELEMENTS OF ACT OF GOD** - **NATURAL CAUSES**: An act of God is an uncommon, extraordinary and unforeseen manifestation of the forces of nature, or a misfortune or accident arising from inevitable necessity. An act of god cannot prevent by reasonable human foresight and care. The effect of ordinary causes may be foreseen and avoided by the exercise of human care. For example, the fact that rain will leak through a defective roof is foreseeable by an ordinary man. In case of foreseeable causes, failure to take the necessary precautions constitutes negligence, and the party injured in the accident may be entitled to damages. An act of God, therefore, is so extraordinary and devoid of human agency that reasonable care would not avoid the consequences. Therefore in such cases the injured party has no right to damages. - **AN OCCURRENCE NOT REASONABLY FORESEEABLE** The basic and prime element of an act of god is the happening of an unforeseeable event. For this, if the harm or loss was caused by a foreseeable accident that could have been prevented, the party who suffered the injury has the right to compensation. However, the damage caused by an unforeseen and uncontrollable natural event is not compensable as it could not have been prevented or avoided by the foresight or prudence of man. Moreover, courts are of the opinion that the **act of God** defense exists only if the event is so exceptional and could not have been anticipated or expected by the long history of climate variations in the locality. It is constructed by only the memory of man i.e. recorded history. The courts may demand expert testimonies to prove that an event was unforeseeable. It is **IMPOSSIBLE TO PREVENT BY ANY REASONABLE PRECAUTIONS AND ABSENCE OF HUMAN AGENCY CAUSING THE ALLEGED DAMAGE:** It means practically impossible to resist. Negligence constitutes failure to take the necessary precautions. In an incident where a human factor was present, even though the harm could not be prevented, the fact that the human factor exercised reasonable care and precautions to prevent the harm has to be proved if the defence of **act of God** has to prevail. If negligence is alleged and proved, then the defence of **act of God** will fail. If an owner was negligent in properly maintaining a tree that fell on a passerby, he cannot be exempted from liability by act of God principle. ### **CASE LAWS** 1. In the case of **NICHOLS V. MARSHLAND** \[1\] the defendant has a number of artificial lakes on his land. Extraordinary rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff’s bridges were swept by an act of God and the defendant was not liable. 2. In the case of **BLYTH V. BIRMINGHAM WATER WORKS CO** \[2\] the defendants had constructed water pipes which were reasonably strong enough to withstand severe frost. There was an unprecented severe frost that year causing the pipes to burst resulting in severe damage to the plaintiff’s property. It was held that though frost is a natural phenomenon, the occurrence of an unforeseen severe frost can be attributed to an act of God, thus the relieving the defendants of any liability. 3. In the case of **RAMALINGA NADAR V. NARAYANA REDDIAR** \[3\] the plaintiff had booked goods with the defendant for transportation. The goods are looted by a mob, the prevention of which was beyond control of defendant. It was held that event beyond control of the defendant cannot be said Act of God. It was held that the destructive acts of an unruly mob cannot be considered an Act of God. ### **CONCLUSION** Although the act of God defense – that a defendant is insulated from liability for personal injury or property damages caused by a natural cause is rarely used, it may become more common and general in the future if predictions of disastrous weather events caused by global warming prove true. One prediction related to global warming is that catastrophic weather events such as hurricanes, tornados, and torrential rains will occur more often. All of these have the potential to cause extensive personal injury and property damage and consequently mental trauma. **Categories:** Articles --- ### [ARBITRATION TRIBUNAL: COMPOSITION, JURISDICTION , APPOINTMENT](https://lawfoyer.in/arbitration-tribunal-composition-jurisdiction-appointment/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Anurupa Pal, Techno India University, Kolkata

INTRODUCTION

We all know that “litigation” is a process that is both time-consuming and requires monetary effort for the parties involved as a result many people tend to avoid such a process and believe in the out-of-court settlement and thus most of the time justice is not served properly. Hence to bridge the gap between the Judiciary and the citizens of India as well as reduce the burden of cases led to the passing of the Arbitration and Conciliation Act, 1996, with the main aim to consolidate and amend the law relating to domestic arbitration and also to provide for a law relating to conciliation and related matters. It aims to ensure the smooth settlement of domestic and international commercial disputes. Arbitration in simple words means the settlement of an argument or disagreement between two parties, outside the course of the court by a neutral third party known as the arbitrator or more than one person known as “Arbitral Tribunal” or “Arbitration Tribuna”l. The decision made by the same is binding on both the parties. To go to the process of arbitration both parties need to sign a written agreement which can be in the form of an I) Arbitral clause II) A contract or III) in the form of a separate legal agreement known as an “Arbitration Agreement”. Keywords (Minimum 5): Arbitration and Conciliation Act,1996, Arbitration, Binding decision, Composition, Arbitral tribunal, Appointment, Jurisdiction

Meaning, Definition & Explanation

The term ‘Arbitration means the determination or settlement of a dispute by the decision of one or more persons called “Arbitrator” or “Arbitral Tribunal” In the case of [1]Amar Chand Vs. Ambika Jute Mills ( 1966) held that arbitration is “Judging of a dispute between parties or group of people by someone not involved in the dispute and whose decision both the parties agree to accept. Here, an Arbitrator is a person to whom the parties submit the matters in dispute and whose functions are more or less judicial thus giving equal justice to all. When the parties in dispute appoint more than one arbitrator, it is called an Arbitral Tribunal. In [2]Satyendra Kumar Vs. Hind Construction Ltd. (1852) it was held that where the parties to dispute refer the matter to a person and such person holds a judicial inquiry in deciding that dispute and comes to a judicial decision, such person is called an “arbitrator” An arbitration tribunal, also known as an arbitral tribunal, is a panel of unbiased adjudicators or arbitrators assembled to resolve disputes through the arbitration procedure. These courts, which include one or more arbitrators, play an important role in settling disputes between the parties concerned. Unlike judges in domestic courts, an arbitral tribunal's authority, powers, and obligations are determined by the appropriate legal framework rather than national laws and procedures. Typically, these tribunals have the jurisdiction to rule on substantive disputes, assign expenses, weigh precedents, and carry out their tasks within the agreed-upon scope of powers.

COMPOSITION

According to Section 10 (1) of the Act of 1996, the parties to dispute are free to appoint a sole arbitrator or more than one arbitrator The number of arbitrators should always be odd and never an even number. If the parties fail to determine the number the arbitral tribunal shall consist of a sole arbitrator. If the number of arbitrators is three, the third appointed arbitrator shall act as a “Presiding Arbitrator”.

QUALIFICATIONS OF AN ARBITRATOR

  1. He should be Indian
  2. He must be impartial
  3. He must not be interested in the subject matter or the parties
  4. There should not be any dispute as to his professional Qualification
  5. He should not buy any claim of the parties
  6. He holds the quasi-judicial position, he should not be biased.

APPOINTMENT

1) Appointment by Parties - The general rule followed is the Appointment by parties where the right to appoint the members of the arbitral tribunal. The parties may agree to appoint a sole or more than one arbitrator. If both parties do not name their arbitrator, they may agree that arbitrators or arbitrators may be appointed by a third designated person. When one parties fail to appoint. 2) Appointment by Court - Where both parties have appointed two arbitrators each but are unable to appoint a third arbitrator, within the time frame of 30 days, the chief justice or any other person or institution or authority to whom the chief justice may delegate this function will appoint the Arbitrator or third arbitrator.

JURISDICTION

  • The jurisdiction of an arbitral tribunal is derived from the agreement between the parties, as stated in their arbitration agreement. The arbitration agreement must be in writing and may be in the form of a separate agreement or a clause within a contract.
  • An arbitral tribunal's jurisdiction is restricted to the area of the dispute specified in the contract of arbitration. Tribunals have the authority to rule on issues affecting their jurisdiction, such as whether the arbitration agreement exists or is legal.
  • A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence.
  • A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
  • The decision passed by the arbitral tribunal shall be binding on both parties which is popularly known as the arbitral award.

CONCLUSION

The composition, jurisdiction, and characterization of an arbitration panel are all significant components of the arbitration process. The establishment of the arbitral tribunal plays an essential role in the arbitration process since it involves the appointment of arbitrators by the relevant parties or appointed organisations. If the authorised entity fails to select an arbitrator, the High Court or Supreme Court may intervene. The membership of the tribunal, or the selection of a solitary arbitrator, is a key aspect of arbitration that influences the course and outcome of the proceedings. In some cases, such as those regarding investment treaty protection, arbitrators may be appointed by institutions such as the ICC International Court of Arbitration. Jurisdiction is another important aspect of the arbitral tribunal's job. The arbitral panel can decide on its jurisdiction, including the determination of objections to the existence or legality of the arbitration agreement. This authority guarantees that the tribunal can effectively assess its ability to manage disputes. In conclusion, knowing the structure, jurisdiction, and definition of an arbitral tribunal is essential for navigating the complexities of arbitration. The selection of arbitrators, resolution of jurisdictional issues, and recognition of arbitral tribunals' role in conflict settlement are essential elements that promote the effectiveness and integrity of arbitration proceedings. Understanding these fundamental factors allows stakeholders to engage in arbitration with clarity and confidence, encouraging a fair and quick settlement of disputes.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. Book - Lectures on Arbitration, conciliation and A.D.R Systems, Author - Dr. Rega Surya Rao
  2. Online Articles / Sources Referred
    1. LoginUniversitofLucknow, https://udrc.lkouniv.ac.in/Content/DepartmentContent/SM_367aca78-6e00-4cb5-82f6-18ed4d3299d4_30.pdf (last visited Mar. 4, 2024).
    2. Terminating arbitration: lessons from India, Global Arbitration Review, https://globalarbitrationreview.com/review/the-asia-pacific-arbitration-review/2024/article/terminating-arbitration-lessons-india (last visited Mar. 4, 2024).
    3. Arbitration and Conciliation Act, 1996 - An Overview, Search eLibrary:: SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3582896 (last visited Mar. 4, 2024).
    4. https://www.coursesidekick.com/law/3626445#:~:text=The%20person%20by%20whom%20the,to%20move%20to%20the%20court. (last visited Mar. 4, 2024).
  3. Cases Referred
    1.  M/S. Amarchand Lalitkumar vs Shree Ambica Jute Mills Ltd on 3 May 1962, Indian Kanoon - Search engine for Indian Law, https://indiankanoon.org/doc/1371659/#:~:text=The%20appellant's%20case%20was%20that,were%20either%20directly%20or%20indirectly (last visited Mar. 4, 2024).
    2. Satyendra Kumar vs Hind Constructions Ltd. on 14 August 1951, Indian Kanoon - Search engine for Indian Law, https://indiankanoon.org/doc/1333612/ (last visited Mar. 4, 2024).
[1] M/S. Amarchand Lalitkumar vs Shree Ambica Jute Mills Ltd on 3 May, 1962, Indian Kanoon - Search engine for Indian Law, https://indiankanoon.org/doc/1371659/#:~:text=The%20appellant's%20case%20was%20that,were%20either%20directly%20or%20indirectly (last visited Mar. 4, 2024). [2] Satyendra Kumar vs Hind Constructions Ltd. on 14 August, 1951, Indian Kanoon - Search engine for Indian Law, https://indiankanoon.org/doc/1333612/ (last visited Mar. 4, 2024). **Content:** **Author-Anurupa Pal, Techno India University, Kolkata** ### **INTRODUCTION** We all know that “litigation” is a process that is both time-consuming and requires monetary effort for the parties involved as a result many people tend to avoid such a process and believe in the out-of-court settlement and thus most of the time justice is not served properly. Hence to bridge the gap between the Judiciary and the citizens of India as well as reduce the burden of cases led to the passing of the Arbitration and Conciliation Act, 1996, with the main aim to consolidate and amend the law relating to domestic arbitration and also to provide for a law relating to conciliation and related matters. It aims to ensure the smooth settlement of domestic and international commercial disputes. Arbitration in simple words means the settlement of an argument or disagreement between two parties, outside the course of the court by a neutral third party known as the arbitrator or more than one person known as “Arbitral Tribunal” or “Arbitration Tribuna”l. The decision made by the same is binding on both the parties. To go to the process of arbitration both parties need to sign a written agreement which can be in the form of an I) Arbitral clause II) A contract or III) in the form of a separate legal agreement known as an “Arbitration Agreement”. ***Keywords* *(Minimum 5)*:** *Arbitration and Conciliation Act,1996, Arbitration, Binding decision, Composition, Arbitral tribunal, Appointment, Jurisdiction* ### **Meaning, Definition & Explanation** The term ‘Arbitration means the determination or settlement of a dispute by the decision of one or more persons called “Arbitrator” or “Arbitral Tribunal” In the case of [\[1\]](#_ftn1)***Amar Chand Vs. Ambika Jute Mills ( 1966)*** held that arbitration is “Judging of a dispute between parties or group of people by someone not involved in the dispute and whose decision both the parties agree to accept. Here, an Arbitrator is a person to whom the parties submit the matters in dispute and whose functions are more or less judicial thus giving equal justice to all. When the parties in dispute appoint more than one arbitrator, it is called an Arbitral Tribunal. In [\[2\]](#_ftn2)***Satyendra Kumar Vs. Hind Construction Ltd. (1852)*** it was held that where the parties to dispute refer the matter to a person and such person holds a judicial inquiry in deciding that dispute and comes to a judicial decision, such person is called an “arbitrator” An arbitration tribunal, also known as an arbitral tribunal, is a panel of unbiased adjudicators or arbitrators assembled to resolve disputes through the arbitration procedure. These courts, which include one or more arbitrators, play an important role in settling disputes between the parties concerned. Unlike judges in domestic courts, an arbitral tribunal’s authority, powers, and obligations are determined by the appropriate legal framework rather than national laws and procedures. Typically, these tribunals have the jurisdiction to rule on substantive disputes, assign expenses, weigh precedents, and carry out their tasks within the agreed-upon scope of powers. ### **COMPOSITION** According to Section 10 (1) of the Act of 1996, the parties to dispute are free to appoint a sole arbitrator or more than one arbitrator The number of arbitrators should always be odd and never an even number. If the parties fail to determine the number the arbitral tribunal shall consist of a sole arbitrator. If the number of arbitrators is three, the third appointed arbitrator shall act as a “Presiding Arbitrator”. ### **QUALIFICATIONS OF AN ARBITRATOR** 1. He should be Indian 2. He must be impartial 3. He must not be interested in the subject matter or the parties 4. There should not be any dispute as to his professional Qualification 5. He should not buy any claim of the parties 6. He holds the quasi-judicial position, he should not be biased. ### **APPOINTMENT** 1\) ***Appointment by Parties*** – The general rule followed is the Appointment by parties where the right to appoint the members of the arbitral tribunal. The parties may agree to appoint a sole or more than one arbitrator. If both parties do not name their arbitrator, they may agree that arbitrators or arbitrators may be appointed by a third designated person. When one parties fail to appoint. 2\) ***Appointment by Court*** – Where both parties have appointed two arbitrators each but are unable to appoint a third arbitrator, within the time frame of 30 days, the chief justice or any other person or institution or authority to whom the chief justice may delegate this function will appoint the Arbitrator or third arbitrator. ### **JURISDICTION** - The jurisdiction of an arbitral tribunal is derived from the agreement between the parties, as stated in their arbitration agreement. The arbitration agreement must be in writing and may be in the form of a separate agreement or a clause within a contract. - An arbitral tribunal’s jurisdiction is restricted to the area of the dispute specified in the contract of arbitration. Tribunals have the authority to rule on issues affecting their jurisdiction, such as whether the arbitration agreement exists or is legal. - A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. - A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. - The decision passed by the arbitral tribunal shall be binding on both parties which is popularly known as the arbitral award. ### **CONCLUSION** The composition, jurisdiction, and characterization of an arbitration panel are all significant components of the arbitration process. The establishment of the arbitral tribunal plays an essential role in the arbitration process since it involves the appointment of arbitrators by the relevant parties or appointed organisations. If the authorised entity fails to select an arbitrator, the High Court or Supreme Court may intervene. The membership of the tribunal, or the selection of a solitary arbitrator, is a key aspect of arbitration that influences the course and outcome of the proceedings. In some cases, such as those regarding investment treaty protection, arbitrators may be appointed by institutions such as the ICC International Court of Arbitration. Jurisdiction is another important aspect of the arbitral tribunal’s job. The arbitral panel can decide on its jurisdiction, including the determination of objections to the existence or legality of the arbitration agreement. This authority guarantees that the tribunal can effectively assess its ability to manage disputes. In conclusion, knowing the structure, jurisdiction, and definition of an arbitral tribunal is essential for navigating the complexities of arbitration. The selection of arbitrators, resolution of jurisdictional issues, and recognition of arbitral tribunals’ role in conflict settlement are essential elements that promote the effectiveness and integrity of arbitration proceedings. Understanding these fundamental factors allows stakeholders to engage in arbitration with clarity and confidence, encouraging a fair and quick settlement of disputes. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. *Book – Lectures on Arbitration, conciliation and A.D.R Systems, Author – Dr. Rega Surya Rao* 2. **Online Articles / Sources Referred** 1. LoginUniversitofLucknow, [https://udrc.lkouniv.ac.in/Content/DepartmentContent/SM\_367aca78-6e00-4cb5-82f6-18ed4d3299d4\_30.pdf](https://udrc.lkouniv.ac.in/Content/DepartmentContent/SM_367aca78-6e00-4cb5-82f6-18ed4d3299d4_30.pdf) (last visited Mar. 4, 2024). 2. *Terminating arbitration: lessons from India*, Global Arbitration Review, (last visited Mar. 4, 2024). 3. *Arbitration and Conciliation Act, 1996 – An Overview*, Search eLibrary:: SSRN, [https://papers.ssrn.com/sol3/papers.cfm?abstract\_id=3582896](https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3582896) (last visited Mar. 4, 2024). 4. (last visited Mar. 4, 2024). 3. **Cases Referred** 1. *M/S. Amarchand Lalitkumar vs Shree Ambica Jute Mills Ltd on 3 May 1962*, Indian Kanoon – Search engine for Indian Law, [https://indiankanoon.org/doc/1371659/#:~:text=The%20appellant’s%20case%20was%20that,were%20either%20directly%20or%20indirectly](https://indiankanoon.org/doc/1371659/#:~:text=The%20appellant's%20case%20was%20that,were%20either%20directly%20or%20indirectly) (last visited Mar. 4, 2024). 2. *Satyendra Kumar vs Hind Constructions Ltd. on 14 August 1951*, Indian Kanoon – Search engine for Indian Law, (last visited Mar. 4, 2024). [\[1\]](#_ftnref1) *M/S. Amarchand Lalitkumar vs Shree Ambica Jute Mills Ltd on 3 May, 1962*, Indian Kanoon – Search engine for Indian Law, [https://indiankanoon.org/doc/1371659/#:~:text=The%20appellant’s%20case%20was%20that,were%20either%20directly%20or%20indirectly](https://indiankanoon.org/doc/1371659/#:~:text=The%20appellant's%20case%20was%20that,were%20either%20directly%20or%20indirectly) (last visited Mar. 4, 2024). [\[2\]](#_ftnref2) *Satyendra Kumar vs Hind Constructions Ltd. on 14 August, 1951*, Indian Kanoon – Search engine for Indian Law, (last visited Mar. 4, 2024). **Categories:** Articles --- ### [Gender Dynamics on Inheritance Rights: A Study of Succession Laws](https://lawfoyer.in/gender-dynamics-on-inheritance-rights-a-study-of-succession-laws/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Jagrit Singla, Baba Farid Law College, Faridkot

Abstract:

This article delves into the succession/inheritance rights of the male and female legal heirs of the deceased person by exploring the different personal laws prevailing in Indian society. This article talks about the shares inherited by the son, daughter, spouse, mother, or other legal heirs under the different customs of different religions like Hindus, Muslims, Christians, and Parsis and the laws followed by them. This article also delves into the challenges being faced in society due to different customary norms prevailing in creating the impact of gender dynamics on inheritance rights and how these challenges can be overcome for future growth which helps in equalizing inheritance rights in society.  Keywords (Minimum 5): Inheritance, Joint Property, Succession Laws, Coparceners, Legal Heirs, Ancestral Property, Self-acquired Property, Customary Practices, Gender Equality, Legal Heirs

INTRODUCTION:

Inheritance is a convention of passing or transferring the properties, rights, titles, interests as well as the obligations and debts to the legal heirs of the deceased person. The inheritance rights thus, refer to the legal entitlement of the individuals /legal heirs to inherit the property, wealth, and assets from the deceased member of the family, which was in the ownership of such deceased person. The inheritance rights are governed by the succession laws which may vary across different jurisdictions and are influenced by the different cultures, religion, and other factors. In India, the succession or inheritance laws differ according to the different cultures and religions, for instance the Inheritance in Hindus is governed by “Hindu Succession Act, 1956,” in Muslims it is governed by the Muslim Laws, etc. The property, assets, wealth, etc. can be inherited by the legal heirs in the following two ways: -
  • Wills/ Testament;
  • Intestate Succession Laws (person dying Intestate, i.e., without making Will)

Meanings and Explanation:

  • Legal Heirs: Legal Heirs means the individuals who are entitles to inherit the property, assets, and wealth of a deceased person according to the provisions of the customs and laws. Legal heirs mainly include spouses, children, parents and other relatives of the deceased as specified in the succession laws.
  • Succession: Succession means the process by which the rights, duties, properties, titles, or obligations are transferred from one person to another. According to the inheritance laws, succession refers to the transmission of property, assets, and other interests upon the death of an individual.
  • Co-parceners: The concept of the coparceners is found in the Hindu Laws and pertains to the joint ownership of property in Hindu Undivided Family (HUF). Coparceners means the individuals who jointly hold an undivided interest in an inherited ancestral property.

Historical Background:

The inheritance laws are personal laws which exists from the ancient times, so as the old-fashioned laws, the equal rights were not given to the women. In many cultures, the right over the entitlement of the joint property was inherited to the sons only, sons were considered as the prior legal heirs and daughters have no or limited right to inheritance; which perpetuates the economic disparities and gender inequality. The Hindu Succession Act, was enacted in the year 1956 and that time the women had no right to inherent the properties of her father dying intestate. After passing the “Hindu Succession (Amendment) Act, 2005,” the equal rights are provided to the daughters as well in the coparcenary property. After the said amendment, the daughters shall have the same rights by birth as that of a son in the Joint Hindu Family as a co-parcener and thus, have the right to claim by survivorship. Case: “Prakash vs. Phulavati,” (2016)[1], in this case the Supreme Court held that, the living daughters of living coparceners as on 9th September, 2005 can claim the inheritance rights irrespective of when the daughter was born. Any prior disposition or alienation including partition will remain unaffected.

Legal Reforms and Progress:

The legal reforms are made for the welfare and development of the society and these legal frameworks progress over time to cope with the new ages and thus, amendments are done. In the traditional period there exists gender inequality regarding the inheritance rights between the males and females. But as time changes legal reforms are made to address the gender disparities in inheritance rights. Many countries amended their inheritance and succession laws to promote the gender equality and give the same rights to both the males and females by eliminating the discrimination in inheritance laws. In India also, the legal reforms progress which provide equal rights to females of the society.

Types of Properties:

The property which can be inherited among the legal heirs can be classified into two categories:
  1. Self -Acquired Property: The property which is acquired or purchased by a person with his own income or resources and it is not subject to the rules of coparcenary or family lineage.
  2. Ancestral Property: The property which is inherited through successive generations within a family. The property inherited from last four generations, i.e., father, father’s father, or great grandfather will be ancestral property.[2] The ancestral property is governed by the succession laws.
Case: “Sarvamma vs. U.R. Virupakshaiah,”[3] in this case the Court held that the property will be considered as ancestral property only when it is inherited from last four generations in the male lineage without partition and division.

Inheritance Laws in different Religions and Cultures:

  • Hindu Inheritance Laws: The succession/inheritance in Hindus are governed by “Hindu Succession Act, 1956” and the term Hindus include Sikhs, Buddhists, Jains, and Arya Samaj. The property of the person dying intestate in Hindus are distributed among the legal heirs as classified into followed classes: -
  • Firstly, Class I heirs,
  • Secondly, Class II heirs,
  • Thirdly, Agnates, and then
  • Fourthly, Cognates.
Under the Hindu Succession laws the property is first distributed among the legal heirs in Class-I category and if none is available in Class-I then, the property goes to the legal heirs of Class-II, and then to Agnates and then, lastly to the Cognates. After the amendment of 2005, the daughters are also included in the legal heirs of Class-I and the whole property of the deceased will be equally distributed among son, daughter, mother, widow, and any other living person included in Class-I category. Case: “Arunachala Gounder vs. Ponnusamy,”[4] in this case the Supreme Court held that in addition to the coparcenary property inherited by the daughter of the deceased through partition, the daughter also has the right to inherit the self-acquired property of a Hindu male who dies intestate, i.e., without making a Will.   
  • Muslim Inheritance Laws: Unlike Hindu inheritance law, the Muslim inheritance law does not distinguish between the self-acquired property and ancestral property. The inheritance under Islamic laws or culture are governed by the “Shias and Sunnis” customs and rules. In the Shias, all the heirs of the deceased get equal share while in Sunnis, the shares are divided based on branches. The property of deceased is distributed among the heirs only after paying all the outstanding debts and charges related to funeral rites.
However, under the Muslim laws, there is some gender inequality while the inheriting the property among the legal heirs as the son is supposed to get double share of what the daughter will have. And in case of the widows, the widow is entitled to share of one-fourth of the property if she has no child; and one-eighth share if she has children.
  • Parsi Inheritance Laws: The inheritance in the Parsis is governed by “The Indian Succession Act, 1925” under Sections 50 to 56. Under the Parsi laws, no distinction is made between the legal heirs who were born in the lifetime of a person deceased or who were only conceived in the womb, at the time of the death of the said person.[5] According to the provision of Section 51 of the Act, the property of the person dying intestate shall be divided equally among the widow/widower, sons, and daughters.
  • Christian Inheritance Laws: The Christian inheritance laws are also governed by “The Indian Succession Act, 1925” under Section 31 to 49. It also does not create any inequality based on gender at the time of inheritance. The property of the deceased dying intestate will be divided among widow/widower and children or any other lineal descendants. The one-third share of the property shall belong to the widow/widower and the remaining two-third shall be equally inherited among the children or lineal descendants of the deceased.[6]

Rights of Women:

  • The women were given unequal rights regarding the inheritance of property. The right of inheritance enjoy by women/daughters are different in different religions and customs, which are explained as follows:
  1. Under Hindu Succession Act, the daughters were not giving equal rights as that of sons. But, after 2005 an amendment has been made and it provides that, daughter shall inherent equal share to that of a mother, grandmother, and brother in the property of her father dying intestate.
  2. After amendment in the Hindu Succession Act, not only the unmarried daughters but, the married daughters also have the right of inheritance in the property of her father.
  • As per Muslim Laws, the women have lesser rights and shares in the property of her husband and father.
  1. The Christian and Parsi Laws provide equal rights and shares to the women and daughters in the property as that of men.

Rights of Natural and Adopted Children:

  1. The natural children have the right of inheritance in the ancestral property by birth, unless a will has been made which opposes it.
  2. The child in the womb of the mother at the time of the death of the person also has the right of inheritance in the ancestral property.
  • The child adopted has the same rights and share as that of the natural child in the property of the adoptive father dying without making a Will.
  • The illegitimate child cannot acquire the property rights.

Challenges and Ongoing Struggle:

Despite the various legal reforms and promotions of gender equality, there still exists some discrepancy among the different cultural and societal norms, which poses as a challenge and hurdles in shaping the impact of gender dynamics on equal inheritance rights. The various backward beliefs are deep-rooted regarding the gender biasness, family structures, property ownerships, etc. within the communities. Various challenges are being faced while implementing and achieving the full gender equality in the inheritance rights. The legal reforms alone are not sufficient to tackle the challenges faced such as backward thinking of the societies and to create the impact of gender dynamics on the inheritance rights. Other challenges related to different class, religions, castes, race, and ethnicity are being faced which follow their own customary and cultural practices and hinders the progress of gender equality in inheritance laws. In some regions, the customary laws prevail over the statutory laws, which leads to different inheritance practices.

Future Directions:

Gender dynamics stimulus the rights of inheritance by giving equal rights to both male and female heirs and demolishing the impact of historical biasness which favours the males over the females. However, many legal frameworks are established which promotes the equality but still efforts are need to be made to tackle the challenges and complexities of the gender dynamics and inheritance/succession rights. So, to create the impact of gender dynamics on inheritance rights following things can be done in the future: -
  • Uphold the principle of gender equality and protect the rights of all heirs whether male or female;
  • Raising awareness on equal inheritance rights;
  • Promoting education;
  • Nurturing the value of female heirs and their rights in the society by challenging the communities’ harmful stereotypes.

CONCLUSION & COMMENTS

The impact of gender dynamics on inheritance rights is being made but still there are various challenges that need to be tackled for future growth. The succession laws in India are governed by different personal laws according to the cultures and religious practices. However, amendments are being made to encourage the rights of inheritance of the female heirs like the Hindu Succession (Amendment) Act, 2005 which create the equal rights of the daughters as that of the sons in the property of her father. Still, the legislative reforms need to be improved and cultural norms and biasness should be addressed for achieving the full gender equality in the inheritance laws by enhancing the legal awareness and promoting the education towards fostering equitable inheritance rights in India.

REFERENCES

  • Online Articles / Sources Referred
  1. The Article: Inheritance Laws in India- All You Need to Know, written by Pawni Mishra and the link of the article is https://www.magicbricks.com
  2. The Article: All about Property Inheritance Law in India, written by Adv. Priyanka Sampathy and the link of the article is https://www.ezylegal.in
  3. The Article:- “Inheritance Rights of Women: How to Protect them and how succession laws vary,” written by Riju Mehta and the link of the article is https://m.economictimes.com/wealth/plan/inheirtance-rights-of-women-how-to-protect-them-and-how-succession-laws-vary/articleshow/70407336.cms
  4. https://indiankanoon.org
  5. https://scconline.com
  • Cases Referred
  1. Prakash vs. Phulavati AIR 2016 SC 769
  2. Gurdip Kaur Ghamand Singh, 1964 SCC Online Punj 180
  3. Sarvamma vs. U.R. Virupakshaiah 2010 SCC Online Kar 136
  4. Arunachala Gounder vs. Ponnusamy (2022) 11 SCC 520
  • Statutes Referred
  1. Hindu Succession Act, 1956
  2. Indian Succession Act, 1925
  3. LexisNexis, Universal’s, Bare Act Hindu Laws, 2020
[1] AIR 2016 SC 769 [2] Gurdip Kaur vs. Ghamand Singh, 1964 SCC Online Punj 180 [3] 2010 SCC Online Kar 136 [4] (2022) 11 SCC 520 [5] Section 50(a), Indian Succession Act, 1925 [6] Section 33(a), The Indian Succession Act, 1925 **Content:** **Author-Jagrit Singla, Baba Farid Law College, Faridkot** ### **Abstract:** *This article delves into the succession/inheritance rights of the male and female legal heirs of the deceased person by exploring the different personal laws prevailing in Indian society. This article talks about the shares inherited by the son, daughter, spouse, mother, or other legal heirs under the different customs of different religions like Hindus, Muslims, Christians, and Parsis and the laws followed by them. This article also delves into the challenges being faced in society due to different customary norms prevailing in creating the impact of gender dynamics on inheritance rights and how these challenges can be overcome for future growth which helps in equalizing inheritance rights in society.* ***Keywords* : *Inheritance, Joint Property, Succession Laws, Coparceners, Legal Heirs, Ancestral Property, Self-acquired Property, Customary Practices, Gender Equality, Legal Heirs*** ### **INTRODUCTION:** Inheritance is a convention of passing or transferring the properties, rights, titles, interests as well as the obligations and debts to the legal heirs of the deceased person. The inheritance rights thus, refer to the legal entitlement of the individuals /legal heirs to inherit the property, wealth, and assets from the deceased member of the family, which was in the ownership of such deceased person. The inheritance rights are governed by the succession laws which may vary across different jurisdictions and are influenced by the different cultures, religion, and other factors. In India, the succession or inheritance laws differ according to the different cultures and religions, for instance the Inheritance in Hindus is governed by *“Hindu Succession Act, 1956,”* in Muslims it is governed by the Muslim Laws, etc. The property, assets, wealth, etc. can be inherited by the legal heirs in the following two ways: – - Wills/ Testament; - Intestate Succession Laws (person dying Intestate, i.e., without making Will) ### **Meanings and Explanation:** - ***Legal Heirs:*** Legal Heirs means the individuals who are entitles to inherit the property, assets, and wealth of a deceased person according to the provisions of the customs and laws. Legal heirs mainly include spouses, children, parents and other relatives of the deceased as specified in the succession laws. - ***Succession:*** Succession means the process by which the rights, duties, properties, titles, or obligations are transferred from one person to another. According to the inheritance laws, succession refers to the transmission of property, assets, and other interests upon the death of an individual. - ***Co-parceners:*** The concept of the coparceners is found in the Hindu Laws and pertains to the joint ownership of property in Hindu Undivided Family (HUF). Coparceners means the individuals who jointly hold an undivided interest in an inherited ancestral property. ### **Historical Background:** The inheritance laws are personal laws which exists from the ancient times, so as the old-fashioned laws, the equal rights were not given to the women. In many cultures, the right over the entitlement of the joint property was inherited to the sons only, sons were considered as the prior legal heirs and daughters have no or limited right to inheritance; which perpetuates the economic disparities and gender inequality. The Hindu Succession Act, was enacted in the year 1956 and that time the women had no right to inherent the properties of her father dying intestate. After passing the ***“Hindu Succession (Amendment) Act, 2005,”*** the equal rights are provided to the daughters as well in the coparcenary property. After the said amendment, the daughters shall have the same rights by birth as that of a son in the Joint Hindu Family as a co-parcener and thus, have the right to claim by survivorship. ***Case: “Prakash vs. Phulavati,” (2016)[\[1\]](#_ftn1),*** in this case the Supreme Court held that, the living daughters of living coparceners as on 9th September, 2005 can claim the inheritance rights irrespective of when the daughter was born. Any prior disposition or alienation including partition will remain unaffected. ### **Legal Reforms and Progress:** The legal reforms are made for the welfare and development of the society and these legal frameworks progress over time to cope with the new ages and thus, amendments are done. In the traditional period there exists gender inequality regarding the inheritance rights between the males and females. But as time changes legal reforms are made to address the gender disparities in inheritance rights. Many countries amended their inheritance and succession laws to promote the gender equality and give the same rights to both the males and females by eliminating the discrimination in inheritance laws. In India also, the legal reforms progress which provide equal rights to females of the society. ### **Types of Properties:** The property which can be inherited among the legal heirs can be classified into two categories: 1. *Self -Acquired Property*: The property which is acquired or purchased by a person with his own income or resources and it is not subject to the rules of coparcenary or family lineage. 2. *Ancestral Property:* The property which is inherited through successive generations within a family. The property inherited from last four generations, i.e., father, father’s father, or great grandfather will be ancestral property.[\[2\]](#_ftn2) The ancestral property is governed by the succession laws. ***Case: “Sarvamma vs. U.R. Virupakshaiah,”[\[3\]](#_ftn3)*** in this case the Court held that the property will be considered as ancestral property only when it is inherited from last four generations in the male lineage without partition and division. ### **Inheritance Laws in different Religions and Cultures:** - ***Hindu Inheritance Laws:*** The succession/inheritance in Hindus are governed by “Hindu Succession Act, 1956” and the term Hindus include Sikhs, Buddhists, Jains, and Arya Samaj. The property of the person dying intestate in Hindus are distributed among the legal heirs as classified into followed classes: – - Firstly, Class I heirs, - Secondly, Class II heirs, - Thirdly, Agnates, and then - Fourthly, Cognates. Under the Hindu Succession laws the property is first distributed among the legal heirs in Class-I category and if none is available in Class-I then, the property goes to the legal heirs of Class-II, and then to Agnates and then, lastly to the Cognates. After the amendment of 2005, the *daughters* are also included in the legal heirs of Class-I and the whole property of the deceased will be equally distributed among son, daughter, mother, widow, and any other living person included in Class-I category. ***Case: “Arunachala Gounder vs. Ponnusamy,”[\[4\]](#_ftn4)*** in this case the Supreme Court held that in addition to the coparcenary property inherited by the daughter of the deceased through partition, the daughter also has the right to inherit the self-acquired property of a Hindu male who dies intestate, i.e., without making a Will. - ***Muslim Inheritance Laws:*** Unlike Hindu inheritance law, the Muslim inheritance law does not distinguish between the self-acquired property and ancestral property. The inheritance under Islamic laws or culture are governed by the “*Shias and Sunnis”* customs and rules. In the Shias, all the heirs of the deceased get equal share while in Sunnis, the shares are divided based on branches. The property of deceased is distributed among the heirs only after paying all the outstanding debts and charges related to funeral rites. However, under the Muslim laws, there is some gender inequality while the inheriting the property among the legal heirs as the son is supposed to get double share of what the daughter will have. And in case of the widows, the widow is entitled to share of one-fourth of the property if she has no child; and one-eighth share if she has children. - ***Parsi Inheritance Laws:*** The inheritance in the Parsis is governed by *“The Indian Succession Act, 1925”* under Sections 50 to 56. Under the Parsi laws, no distinction is made between the legal heirs who were born in the lifetime of a person deceased or who were only conceived in the womb, at the time of the death of the said person.[\[5\]](#_ftn5) According to the provision of Section 51 of the Act, the property of the person dying intestate shall be divided equally among the widow/widower, sons, and daughters. - ***Christian Inheritance Laws:*** The Christian inheritance laws are also governed by *“The Indian Succession Act, 1925”* under Section 31 to 49. It also does not create any inequality based on gender at the time of inheritance. The property of the deceased dying intestate will be divided among widow/widower and children or any other lineal descendants. The one-third share of the property shall belong to the widow/widower and the remaining two-third shall be equally inherited among the children or lineal descendants of the deceased.[\[6\]](#_ftn6) ### **Rights of Women:** - The women were given unequal rights regarding the inheritance of property. The right of inheritance enjoy by women/daughters are different in different religions and customs, which are explained as follows: 1. Under Hindu Succession Act, the daughters were not giving equal rights as that of sons. But, after 2005 an amendment has been made and it provides that, daughter shall inherent equal share to that of a mother, grandmother, and brother in the property of her father dying intestate. 2. After amendment in the Hindu Succession Act, not only the unmarried daughters but, the married daughters also have the right of inheritance in the property of her father. - As per Muslim Laws, the women have lesser rights and shares in the property of her husband and father. 1. The Christian and Parsi Laws provide equal rights and shares to the women and daughters in the property as that of men. ### **Rights of Natural and Adopted Children:** 1. The natural children have the right of inheritance in the ancestral property by birth, unless a will has been made which opposes it. 2. The child in the womb of the mother at the time of the death of the person also has the right of inheritance in the ancestral property. - The child adopted has the same rights and share as that of the natural child in the property of the adoptive father dying without making a Will. - The illegitimate child cannot acquire the property rights. ### **Challenges and Ongoing Struggle:** Despite the various legal reforms and promotions of gender equality, there still exists some discrepancy among the different cultural and societal norms, which poses as a challenge and hurdles in shaping the impact of gender dynamics on equal inheritance rights. The various backward beliefs are deep-rooted regarding the gender biasness, family structures, property ownerships, etc. within the communities. Various challenges are being faced while implementing and achieving the full gender equality in the inheritance rights. The legal reforms alone are not sufficient to tackle the challenges faced such as backward thinking of the societies and to create the impact of gender dynamics on the inheritance rights. Other challenges related to different class, religions, castes, race, and ethnicity are being faced which follow their own customary and cultural practices and hinders the progress of gender equality in inheritance laws. In some regions, the customary laws prevail over the statutory laws, which leads to different inheritance practices. ### **Future Directions:** Gender dynamics stimulus the rights of inheritance by giving equal rights to both male and female heirs and demolishing the impact of historical biasness which favours the males over the females. However, many legal frameworks are established which promotes the equality but still efforts are need to be made to tackle the challenges and complexities of the gender dynamics and inheritance/succession rights. So, to create the impact of gender dynamics on inheritance rights following things can be done in the future: – - Uphold the principle of gender equality and protect the rights of all heirs whether male or female; - Raising awareness on equal inheritance rights; - Promoting education; - Nurturing the value of female heirs and their rights in the society by challenging the communities’ harmful stereotypes. ### **CONCLUSION & COMMENTS** The impact of gender dynamics on inheritance rights is being made but still there are various challenges that need to be tackled for future growth. The succession laws in India are governed by different personal laws according to the cultures and religious practices. However, amendments are being made to encourage the rights of inheritance of the female heirs like the Hindu Succession (Amendment) Act, 2005 which create the equal rights of the daughters as that of the sons in the property of her father. Still, the legislative reforms need to be improved and cultural norms and biasness should be addressed for achieving the full gender equality in the inheritance laws by enhancing the legal awareness and promoting the education towards fostering equitable inheritance rights in India. ### **REFERENCES** - **Online Articles / Sources Referred** 1. The Article: Inheritance Laws in India- All You Need to Know, written by Pawni Mishra and the link of the article is 2. The Article: All about Property Inheritance Law in India, written by Adv. Priyanka Sampathy and the link of the article is 3. The Article:- “Inheritance Rights of Women: How to Protect them and how succession laws vary,” written by Riju Mehta and the link of the article is 4. 5. - **Cases Referred** 1. Prakash vs. Phulavati AIR 2016 SC 769 2. Gurdip Kaur Ghamand Singh, 1964 SCC Online Punj 180 3. Sarvamma vs. U.R. Virupakshaiah 2010 SCC Online Kar 136 4. Arunachala Gounder vs. Ponnusamy (2022) 11 SCC 520 - **Statutes Referred** 1. Hindu Succession Act, 1956 2. Indian Succession Act, 1925 3. LexisNexis, Universal’s, Bare Act Hindu Laws, 2020 [\[1\]](#_ftnref1) AIR 2016 SC 769 [\[2\]](#_ftnref2) Gurdip Kaur vs. Ghamand Singh, 1964 SCC Online Punj 180 [\[3\]](#_ftnref3) 2010 SCC Online Kar 136 [\[4\]](#_ftnref4) (2022) 11 SCC 520 [\[5\]](#_ftnref5) Section 50(a), Indian Succession Act, 1925 [\[6\]](#_ftnref6) Section 33(a), The Indian Succession Act, 1925 **Categories:** Articles --- ### [MEANING AND STAGES OF CRIME IN CRIMINAL SYSTEM](https://lawfoyer.in/meaning-and-stages-of-crime-in-criminal-system/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Mansi, University Five Year Law College, University of Rajasthan

INTRODUCTION

“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”-Jonathan Swift The current era is full of so many occupations. So, because of it, we found so many crimes in each and every situation. Some persons are not aware properly of these crimes. Now, rape and cybercrime is a very major issue nowadays. But first of all, we have to know about the meaning of crime and what are the stages to consider an act as a crime. Therefore, in this article, I tried to explain the meaning and stages of crime in an easy way.

MEANING OF CRIME

We know that every country or state is full of customs, religions and rules and regulations. Nowadays, when we disobey these customs, and regulations of any society, then it is considered as a crime. However, according to legal definition, “crime is any kind of act or omission which is declared to be socially detrimental with respect to the State and is forbidden by law, by the imposition of some punishment.” Blackstone stated crime as “an act committed or omitted in violation of public law forbidding or commanding it”. Glanville Williams says that “a crime is a legal wrong that can be followed by criminal proceedings which may result in punishment”. Professor Kenny defined crimes in the these terms: “Crime is a harmful human conduct that sovereign desires to prevent.” Salmond defines as “an act deemed by law to be harmful to society in general even though its immediate victim is an individual”. John Austin defines crime “a wrong which is pursued by the sovereign or his subordinates is a crime.” Crime is derived from Latin word – ‘krimos’  which means ‘to accuse’. The Hon’ble Supreme Court of India in Harpreet Kaur v. State of Maharashtra, states that “crime is a revolt against the whole society and an attack on the civilization of the day.” The Hon’ble Supreme Court in another case titled, Subramanian Swamy v. Union of India,  held that every criminal action consists of followings characters:
  1. Human being who commits a crime and with.
  2. Law gives punishment to accused and prevented the any other person to commits a crime.
Thus, supreme court gives the best definition of crime.

ELEMENTS OF CRIME

The cardinal elements of crime is contained in this maxim ‘actus non facit reum, nisi mens sit rea’. This maxim contains two words ‘actus reus’ and ‘mens rea’. It means that crime will not be considered as crime without guilty mind. Intention plays a major role to commit any crime. ACTUS REUS Actus reus means to commit a crime. A wrongful act which is done by any person and this act falls down under the ambit of crime prescribed by law of any nation. A crime can be an immoral act but every immoral act can’t considers as crime. For example, not care aged parents is an immoral act but not is a crime. MENS REA Mens Rea means ‘a guilty mind’. The legal maxim  ‘actus non facit reum, nisi mens sit rea’ defines that any act not considers as crime without any guilty mind. Thus, it means that for committing a crime intention plays a major role. For example, a starving child was crying and her mother had not money and food to give him. So, he theft some food from any shopkeeper. Thus, the intention is not malafide, so because of it, it is not considers as crime.

STAGES OF CRIME

  1. INTENTION – Intention is the very first stage to commit a crime. Because intention will converts into act and act will considers as crime. Thus, it is very first and crucial stage.
  2. PREPARATION – Preparation is second stage to commit a crime. When a person got intention to commit a crime and aftermath he collects some measures and equipments or conspiracy for intention converts into reality.
  3. ATTEMPT- Attempt is the third stage to commencement of crime aftermath preparation. To commit a crime is also an offence by law. Thus, it means that when a person reached at this stage, then he will known as a criminal. There have three main essentials –
  • Guilty intention.
  • Act done for commits a crime.
  • The act fall down under the ambit of an offence which is prescribed by law.
  1. ACCOMPLISHMENT OR COMPLETION – It is the large stag fir commencement of a crime. When a person is successful to commit a crime, then he is a criminal and idlf he is unsuccessful to commits a crime, then he did a commit a crime.
Thus, these are the stages of a crime.

CONCLUSION

Thus, we found that a crime is a very wide area to read and understand. It’s have very deep concerns. There are four stages to commit a crime. A person can commit a crime with innocence it means that he is not aware about the consequences of his act.

REFERENCES

     Books-
  • Criminal law, PSA Pillai
Journals –
  • NUJS Law review
     Online resources –
  1. https://epgp.inflibnet.ac.in/
  2. https://www.mondaq.com/india/crime/878294/general-criminal-defences-insanity-infancy-and-intoxication-part-1
  3. https://blog.ipleaders.in/
  4. https://indiankanoon.org/doc/1641007/
  5. manupatra.com
**Content:** **Author-Mansi, University Five Year Law College, University of Rajasthan** ### **INTRODUCTION** “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”-**Jonathan Swift** The current era is full of so many occupations. So, because of it, we found so many crimes in each and every situation. Some persons are not aware properly of these crimes. Now, rape and cybercrime is a very major issue nowadays. But first of all, we have to know about the meaning of crime and what are the stages to consider an act as a crime. Therefore, in this article, I tried to explain the meaning and stages of crime in an easy way. ### **MEANING OF CRIME** We know that every country or state is full of customs, religions and rules and regulations. Nowadays, when we disobey these customs, and regulations of any society, then it is considered as a crime. However, according to legal definition, “crime is any kind of act or omission which is declared to be socially detrimental with respect to the State and is forbidden by law, by the imposition of some punishment.” Blackstone stated crime as “an act committed or omitted in violation of public law forbidding or commanding it”. Glanville Williams says that “a crime is a legal wrong that can be followed by criminal proceedings which may result in punishment”. Professor Kenny defined crimes in the these terms: “Crime is a harmful human conduct that sovereign desires to prevent.” Salmond defines as “an act deemed by law to be harmful to society in general even though its immediate victim is an individual”. John Austin defines crime “a wrong which is pursued by the sovereign or his subordinates is a crime.” Crime is derived from Latin word – ‘krimos’ which means ‘to accuse’. The Hon’ble Supreme Court of India in Harpreet Kaur v. State of Maharashtra, states that “crime is a revolt against the whole society and an attack on the civilization of the day.” The Hon’ble Supreme Court in another case titled, Subramanian Swamy v. Union of India, held that every criminal action consists of followings characters: 1. Human being who commits a crime and with. 2. Law gives punishment to accused and prevented the any other person to commits a crime. Thus, supreme court gives the best definition of crime. ### **ELEMENTS OF CRIME** The cardinal elements of crime is contained in this maxim ‘***actus non facit reum, nisi mens sit rea’.*** This maxim contains two words ‘actus reus’ and ‘mens rea’. It means that crime will not be considered as crime without guilty mind. Intention plays a major role to commit any crime. **ACTUS REUS** Actus reus means to commit a crime. A wrongful act which is done by any person and this act falls down under the ambit of crime prescribed by law of any nation. A crime can be an immoral act but every immoral act can’t considers as crime. For example, not care aged parents is an immoral act but not is a crime. **MENS REA** Mens Rea means ‘a guilty mind’. The legal maxim ***‘actus non facit reum, nisi mens sit rea’*** defines that any act not considers as crime without any guilty mind. Thus, it means that for committing a crime intention plays a major role. For example, a starving child was crying and her mother had not money and food to give him. So, he theft some food from any shopkeeper. Thus, the intention is not malafide, so because of it, it is not considers as crime. ### **STAGES OF CRIME** 1. **INTENTION –** Intention is the very first stage to commit a crime. Because intention will converts into act and act will considers as crime. Thus, it is very first and crucial stage. 2. **PREPARATION –** Preparation is second stage to commit a crime. When a person got intention to commit a crime and aftermath he collects some measures and equipments or conspiracy for intention converts into reality. 3. **ATTEMPT-** Attempt is the third stage to commencement of crime aftermath preparation. To commit a crime is also an offence by law. Thus, it means that when a person reached at this stage, then he will known as a criminal. There have three main essentials – - Guilty intention. - Act done for commits a crime. - The act fall down under the ambit of an offence which is prescribed by law. 4. **ACCOMPLISHMENT OR COMPLETION –** It is the large stag fir commencement of a crime. When a person is successful to commit a crime, then he is a criminal and idlf he is unsuccessful to commits a crime, then he did a commit a crime. Thus, these are the stages of a crime. ### **CONCLUSION** Thus, we found that a crime is a very wide area to read and understand. It’s have very deep concerns. There are four stages to commit a crime. A person can commit a crime with innocence it means that he is not aware about the consequences of his act. ### **REFERENCES** **Books-** - Criminal law, PSA Pillai **Journals –** - NUJS Law review **Online resources –** 1. [**https://epgp.inflibnet.ac.in/**](https://epgp.inflibnet.ac.in/) 2. [**https://www.mondaq.com/india/crime/878294/general-criminal-defences-insanity-infancy-and-intoxication-part-1**](https://www.mondaq.com/india/crime/878294/general-criminal-defences-insanity-infancy-and-intoxication-part-1) 3. [**https://blog.ipleaders.in/**](https://blog.ipleaders.in/) 4. [**https://indiankanoon.org/doc/1641007/**](https://indiankanoon.org/doc/1641007/) 5. [**manupatra.com**](http://www.manupatra.com) **Categories:** Articles --- ### [LOVE WITHOUT BOUNDARIES: THE TIMELESS JOURNEY OF SAME MEX MARRIAGE FROM HISTORY TO HOPE](https://lawfoyer.in/love-without-boundaries-the-timeless-journey-of-same-mex-marriage-from-history-to-hope/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Diya Dhall, Vivekananda Institute of Professional Studies - Technical Campus

INTRODUCTION

India has long struggled with addressing the question of homosexual marriage due to its diverse cultural fabric. Homosexual marriages are those that unite two individuals who share the same sex legally and biologically. These have been a very controversial issue in the worldwide context, which permits or prohibits it based on it being seen as either legal, religious or customary. Legal and social responses have varied from recognition to outright condemnation. By 2023, thirty-four countries with a combined population of more than one billion people have legalized and recognized same-sex marriage. In India, the supreme Court has held there is no fundamental right to marry. The court has also held that it cannot legislate on queer marriages. Keywords: Same-sex marriages, special marriage act, unnatural, legal, decriminalized, section 377, transgender, LGBTQIA+.

The Past: A History of Struggle

Throughout history many societies stigmatized and criminalized homosexuality. However, in the late twentieth century, a gradual sea change began undermining discriminatory norms. India’s third and fourth wave feminists’ particularly advocated for equal rights for members of LGBTQIA+ community since they began campaigning for gender justice in 90s. In 2001, this country made history by becoming the first to approve gay marriage thereby creating a milestone in equality struggle against discrimination on sexual orientation grounds. You could say that the NALSA v. Union of India (2014) case has nothing to do with marriage. However, it was able to acknowledge transgender people’s rights by endorsing the principles of equality, and anti-discrimination. It established a precedent for recognizing different gender identities and expressions. The journey in terms of law towards LGBTQ+ rights in India has been characterized by Section 377 of the Indian Penal Code which made consensual same-sex relationships illegal, among other “unnatural offenses.” The historic Navtej Singh Johar v. Union of India (2018) case represented a breakthrough. In this landmark decision, the Supreme Court decriminalized consensual homosexual acts while affirming that sexual orientation is an inherent facet of privacy.

The Present: Global Progress and Remaining Challenges

Now let us move forward to where we are at present when substantial headway has been made in this area. Today many countries all over the globe accept and legalize same marriages between males or females. For instance, America witnessed a historic judgement by its highest court that declared all homosexual unions legal on 25th June 2015 signalling a turning point in LGBTQ+ movement. Other nations have followed suit albeit to varyingly uncertain extents for LGBT people regarding their status as human beings before society and law. Challenges, however, continue. Nevertheless, there are still places whereby same-sex relationships are outlawed and societies as well as individuals remain unwilling to change. India does not recognize the marriage of people from the same-sex or civil unions. On October 17, 2023, a prayer was dismissed by the Supreme Court for queer persons to be allowed to marry, and on that day itself it was decided unanimously in opposition. The court concurred that marriage is not a fundamental right. The court also said that the Special Marriage Act 1954 cannot conceive of queer marriages. Discrimination and prejudice continue to impact LGBTQ+ lives necessitating sustained advocacy and education.

The Future: Anticipating Legal Recognition

India’s potential future for legalizing gay marriage appears bright due to indications of a gradual shift toward its acceptance within this country’s legislature. Public opinion has changed over time revealing an emerging trend for equality across different courts in India. There is hope among many people who await this matter being dealt with directly by courts interpreting equal protection principles under the Indian constitution which guarantees non-discrimination clauses when it comes down to same-sex marriages.

Challenges faced by Queer community-

The problems queer people are forced to deal with can differ and depend on the individual’s place of living, cultural environment, and legal situation. The rights of gay marriage have not been legally recognized in many countries, which means that they can be subject to legal discrimination. Homophobia, biphobia, and transphobia are the main causes that lead to social stigma and discrimination. Queer individuals can experience prejudice, exclusion, or even violence due to their sexual orientation or gender identity. Difficulty in receiving healthcare that is sensitive to the needs and requirements of queer individuals is one of the challenges that queer individuals might face. Queer individuals, particularly youngsters, can be bullied and harassed by people in their schools, colleges, or communities. Conversion therapy, which is recognized as a deleterious method that strives to alter a person’s sexual orientation or gender identity, still persists in some parts of the world. The result can be highly destructive and cause grave harm on the mental and emotional side. Several instances have been documented where adolescents belonging to the queer community have attempted suicide due to this reason.

Examining Perspectives: Arguments Against Same-Sex Marriage

One of the most common arguments against same-sex marriage comments about the social values and religious beliefs. It is argued by many that marriage is an integral part of social organization and believed that the traditional meaning of institution of marriage exist for thousands of years purposefully socialize individuals into sex roles specifically whereas man is groomed to be a leader and women is to be subordinate. In addition to that, they are afraid that any change will cause the irreversible ripples that could change the nature of fundamental principles of the relationship. In my opinion, it is not a credible argument as no society is static nor stationary and is always being changed and going on with the needs of people dynamic. The same trend of changing can be followed by institution of marriage as it depends on the needs of people as well . Other opponents also say that being raised in a mother and a father home is important for a child's development since they need both men and women to grow and become matured. This argument can be disproven for the reason that love and affection are the factors that impacts on the growth and development of a child in their early years and who parents a child does not matter whether they are a homosexual or a heterosexual couple.

Conclusion: A Journey Unfinished

The past, present, and future developments of same-sex marriage in India reflect a journey towards inclusivity and equality. With landmark decisions and changing societal attitudes, there is hope that India will continue to progress towards recognizing the rights of the LGBTQ+ community, including the right to marry and provide them the equal status as others in the society. The story of same-sex marriage is one of progress, but the journey is far from complete. There is still a long way to go. While many strides have been made; there is still work to be done to ensure equal rights and acceptance for all including the members of the LGBTQIA+ community. As we navigate the future, it is essential to remain vigilant in advocating for inclusivity, understanding, and respect, fostering a world where love knows no boundaries.

REFERENCES

  1. Cases Referred
    1. Navtej Singh Johar v. Union of India (2018)
    2. NALSA v. Union of India (2014)
    3. Supriyo v. Union of India (2023)
  2. Statutes Referred
    1. Special marriage Act,1954
**Content:** **Author-Diya Dhall, Vivekananda Institute of Professional Studies – Technical Campus** ### **INTRODUCTION** India has long struggled with addressing the question of homosexual marriage due to its diverse cultural fabric. Homosexual marriages are those that unite two individuals who share the same sex legally and biologically. These have been a very controversial issue in the worldwide context, which permits or prohibits it based on it being seen as either legal, religious or customary. Legal and social responses have varied from recognition to outright condemnation. By 2023, thirty-four countries with a combined population of more than one billion people have legalized and recognized same-sex marriage. In India, the supreme Court has held there is no fundamental right to marry. The court has also held that it cannot legislate on queer marriages. ***Keywords*:** Same-sex marriages, special marriage act, unnatural, legal, decriminalized, section 377, transgender, LGBTQIA+. ### **The Past: A History of Struggle** Throughout history many societies stigmatized and criminalized homosexuality. However, in the late twentieth century, a gradual sea change began undermining discriminatory norms. India’s third and fourth wave feminists’ particularly advocated for equal rights for members of LGBTQIA+ community since they began campaigning for gender justice in 90s. In 2001, this country made history by becoming the first to approve gay marriage thereby creating a milestone in equality struggle against discrimination on sexual orientation grounds. You could say that the NALSA v. Union of India (2014) case has nothing to do with marriage. However, it was able to acknowledge transgender people’s rights by endorsing the principles of equality, and anti-discrimination. It established a precedent for recognizing different gender identities and expressions. The journey in terms of law towards LGBTQ+ rights in India has been characterized by Section 377 of the Indian Penal Code which made consensual same-sex relationships illegal, among other “unnatural offenses.” The historic Navtej Singh Johar v. Union of India (2018) case represented a breakthrough. In this landmark decision, the Supreme Court decriminalized consensual homosexual acts while affirming that sexual orientation is an inherent facet of privacy. ### **The Present: Global Progress and Remaining Challenges** Now let us move forward to where we are at present when substantial headway has been made in this area. Today many countries all over the globe accept and legalize same marriages between males or females. For instance, America witnessed a historic judgement by its highest court that declared all homosexual unions legal on 25th June 2015 signalling a turning point in LGBTQ+ movement. Other nations have followed suit albeit to varyingly uncertain extents for LGBT people regarding their status as human beings before society and law. Challenges, however, continue. Nevertheless, there are still places whereby same-sex relationships are outlawed and societies as well as individuals remain unwilling to change. India does not recognize the marriage of people from the same-sex or civil unions. On October 17, 2023, a prayer was dismissed by the Supreme Court for queer persons to be allowed to marry, and on that day itself it was decided unanimously in opposition. The court concurred that marriage is not a fundamental right. The court also said that the Special Marriage Act 1954 cannot conceive of queer marriages. Discrimination and prejudice continue to impact LGBTQ+ lives necessitating sustained advocacy and education. ### **The Future: Anticipating Legal Recognition** India’s potential future for legalizing gay marriage appears bright due to indications of a gradual shift toward its acceptance within this country’s legislature. Public opinion has changed over time revealing an emerging trend for equality across different courts in India. There is hope among many people who await this matter being dealt with directly by courts interpreting equal protection principles under the Indian constitution which guarantees non-discrimination clauses when it comes down to same-sex marriages. ### **Challenges faced by Queer community-** The problems queer people are forced to deal with can differ and depend on the individual’s place of living, cultural environment, and legal situation. The rights of gay marriage have not been legally recognized in many countries, which means that they can be subject to legal discrimination. Homophobia, biphobia, and transphobia are the main causes that lead to social stigma and discrimination. Queer individuals can experience prejudice, exclusion, or even violence due to their sexual orientation or gender identity. Difficulty in receiving healthcare that is sensitive to the needs and requirements of queer individuals is one of the challenges that queer individuals might face. Queer individuals, particularly youngsters, can be bullied and harassed by people in their schools, colleges, or communities. Conversion therapy, which is recognized as a deleterious method that strives to alter a person’s sexual orientation or gender identity, still persists in some parts of the world. The result can be highly destructive and cause grave harm on the mental and emotional side. Several instances have been documented where adolescents belonging to the queer community have attempted suicide due to this reason. ### **Examining Perspectives: Arguments Against Same-Sex Marriage** One of the most common arguments against same-sex marriage comments about the social values and religious beliefs. It is argued by many that marriage is an integral part of social organization and believed that the traditional meaning of institution of marriage exist for thousands of years purposefully socialize individuals into sex roles specifically whereas man is groomed to be a leader and women is to be subordinate. In addition to that, they are afraid that any change will cause the irreversible ripples that could change the nature of fundamental principles of the relationship. In my opinion, it is not a credible argument as no society is static nor stationary and is always being changed and going on with the needs of people dynamic. The same trend of changing can be followed by institution of marriage as it depends on the needs of people as well . Other opponents also say that being raised in a mother and a father home is important for a child’s development since they need both men and women to grow and become matured. This argument can be disproven for the reason that love and affection are the factors that impacts on the growth and development of a child in their early years and who parents a child does not matter whether they are a homosexual or a heterosexual couple. ### **Conclusion: A Journey Unfinished** The past, present, and future developments of same-sex marriage in India reflect a journey towards inclusivity and equality. With landmark decisions and changing societal attitudes, there is hope that India will continue to progress towards recognizing the rights of the LGBTQ+ community, including the right to marry and provide them the equal status as others in the society. The story of same-sex marriage is one of progress, but the journey is far from complete. There is still a long way to go. While many strides have been made; there is still work to be done to ensure equal rights and acceptance for all including the members of the LGBTQIA+ community. As we navigate the future, it is essential to remain vigilant in advocating for inclusivity, understanding, and respect, fostering a world where love knows no boundaries. ### **REFERENCES** 1. **Cases Referred** 1. Navtej Singh Johar v. Union of India (2018) 2. NALSA v. Union of India (2014) 3. Supriyo v. Union of India (2023) 2. **Statutes Referred** 1. Special marriage Act,1954 **Categories:** Articles --- ### [How to Draft Excellent Contracts: Best Practices, Procedure, Principles, Important Cases](https://lawfoyer.in/how-to-draft-excellent-contracts-best-practices-procedure-principles-important-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Aman Tyagi, University Five Year Law College, University of Rajasthan

INTRODUCTION-

In this comprehensive article, my primary aim is to thoroughly explain the fundamental aspects of a contract, aiming to provide clear and concise definitions accessible to both lay individuals and legal professionals alike. Throughout the discussion, I have precisely outlined the crucial components inherent in contracts, with a dedicated focus on examining pertinent precedents and case laws to enhance understanding. Diving further, we have delved into the foundational element’s integral to the art of drafting, offering insights on streamlining the process by diligently considering essential factors. To conclude, I've exactly crafted a detailed, step-by-step guide to empower you in the creation of excellent contracts. Additionally, I've included a collection of supplementary tips, ideally placed to be helpful factors during the detailed task of creating contracts.

What is a contract?

Let's start with defining contract in the most laymen's terms “A contract is a legally binding agreement at least between two parties to create mutual obligations that businesses and individuals use to protect their business or personal interests. They also aim to outline the engagement for a transaction. They can also dictate legal consequences if a party tries to break the agreement.”[1] Contracts can be written or verbal. Generally, most businesses favor written contracts as they can easily be referred to in future matters. Written contracts are also less ambiguous, hence eliminating any future enforcement problems. After defining it in simple terms let's also define it in the Lawmen language don’t worry this won’t mean that it can’t be understood in this language but it requires you to use more of your legal aptitude. To define it legally Sir William Anson defines a contract as “a legally enforceable agreement between two persons wherein two or more persons get a legal right and some have to fulfil corresponding legal responsibilities”[2]. To put it simply a contract is an agreement that interprets the obligations of various parties involved in it. Henceforth a contract is an agreement between two or more competent parties based on mutual promises, to do or refrain from doing a particular that is neither illegal nor impossible. Taking into consideration the perspective of India let's also define contracts according to Indian Contracts Act 1872, ICA 1872 Section 2(h) defines a contract as an “agreement enforceable by law”[3]. This denotes that there are two main ingredients of a contract: an agreement and enforceability. Only a valid contract is enforceable by law and a contract must fulfil certain conditions to be valid. After reading the above-discussed definitions a doubt might have arisen in your mind whether contracts and agreements are the same. To clear this let’s, distinguish between the two and take into consideration relevant examples to help us understand this fully.

Contracts and Agreements distinguished?

The terms contracts and agreements are often used interchangeably but in the legal landscape differences though minor are important to be taken into consideration to avoid any future legal hassle. They can be distinguished on the following grounds:-
    Features  Agreement  Contract 
Definition  An arrangement (usually informal and unwritten) between two or more parties that is not enforceable by law. A formal arrangement between two or more parties(usually written) that, by its terms and elements, is enforceable by law.
Does it need to be in writing? An agreement is not required to be written.  A contract also doesn’t necessarily require to be written however in some cases it's a legal necessity for them to be written for enforceability. These are often referred to as “statute of frauds” requirements. Examples of contracts that typically fall under the statute of fraud and must be in writing include: Contracts involving the sale or transfer of real estate, Contracts that cannot be performed within one year from the date of formation, Contracts to pay the debt of another person, etc.
Consideration requirements An agreement doesn’t require consideration. A contract requires the presence of consideration in a contractual agreement.
 Relevant examples You agree with your friend to buy their car for Rs 5,00,000. This is a mutual understanding or arrangement between you and your friend, but it might not be legally binding if it lacks essential elements or if it's merely a casual conversation. You and your friend draft a written agreement specifying the terms of the car sale, including the price, payment method, and any conditions. Both parties sign the document. Now, it has become a legally binding contract.
Hence these were the differences that might have aided you in understanding though minor but important differences between contracts and agreements. Concluding our discussion about the differences between the two, it's a legally accepted principle that “While every contract is an agreement, every agreement is not a contract.”[4] This statement has been propagated by Anson. Moving forward in the discussion of contracts we must know the essentials of contracts and also its essential requirements to make a legally comprehensive enforceable contract.

Essentials of Contracts – 

To make an agreement a validly enforceable contract in law certain essentials are needed to be satisfied. Henceforth let's delve into the explanation of the required essentials for a contract along with some decided case laws to understand them holistically. The essentials of a contractual agreement(as per ICA 1872) are as follows: -
  1. Offer and Acceptance - “There must be a clear offer by one party and a corresponding acceptance by the other party. Generally, the written contract only unfolds when the other party accepts the offer by one party and is definite in all senses. The offer or agreement must be clear and complete in all senses. Both parties should communicate to ensure there is no lapse in the contract act. Both the offer and acceptance must be "consensus ad idem", meaning( meeting of the minds), to put it simply both parties must comply with the same thing.” [5]
Mere silence is not constituted as acceptance of to offer. An offeree is not generally obligated to respond to an offer and their silence does not imply agreement. One more important thing to consider is that an invitation to offer is not an offer in itself. Taking an example of decided case law in “Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953): Goods displayed on shelves in a store are an invitation to customers to make an offer to purchase.”[6] Some Relevant case laws on offer and acceptance  - Carlill v. Carbolic Smoke Ball Company (1893)-
  • Facts: The Carbolic Smoke Ball Company advertised a product that they claimed could prevent influenza. They offered a reward to anyone who used the smoke ball according to the instructions and still got the flu.
  • Legal Issue: Was the advertisement a valid offer, and was Mrs Carlill entitled to the reward for using the product as directed and still contracting influenza?
  • Judgement: The court held that the advertisement was an offer, and Mrs. Carlill was entitled to the reward as she had accepted the offer by using the product as instructed and suffering from influenza.”[7]
Felthouse v Bindley (1862)-
  • Facts: Felthouse wanted to purchase a horse from his nephew. He wrote to his nephew, stating, "If I hear no more about him, I consider the horse mine at £30." The nephew intended to sell the horse but failed to respond to the letter.
  • Legal Issue: Did the nephew's silence amount to acceptance of the offer, and was a contract formed?
  • Judgement: The court held that there was no contract. Silence does not constitute acceptance unless there is a prior agreement that silence would amount to acceptance. In this case, the nephew's failure to respond meant that there was no acceptance, and therefore, no contract was formed.” [8]
  1. Intention to Create a Legal Relationship- “To bind, both parties should have a specific intention that can create a legal relationship, resulting in an agreement. Agreements of a social or household nature are not contracts because parties do not intend to build legal relationships.” [9]
Relevant case law on this essential is as follows: Balfour v. Balfour (1919)-
  • Facts: Mr Balfour promised to pay his wife a monthly allowance while he was working abroad, but the relationship later turned sour, and the payments ceased.
  • Legal Issue: Did the parties intend for their agreement to have legal consequences, or was it a domestic arrangement without legal intent?
  • Judgement: The court held that in domestic agreements, there's a presumption against legal intent. In this case, there was no intention to create a legal relationship, and the agreement was a domestic arrangement.” [10]
  1. The Intent of Legal Obligations- “One of the essential elements of a valid offer is that both parties subject to a contract must be clear with the intent to create a legal relationship. This also means that agreements that are not enforceable by the law like agreements between relatives are enforceable in the court of law.”[11]
Relevant case law on this essential is as follows: Merritt v. Merritt (1970)-
  • Facts: Mr and Mrs Merritt, who were separated, made an agreement in writing regarding the transfer of the family home to Mrs Merritt.
  • Legal Issue: Was there an intention to create legal obligations in their written agreement, despite being separated?
  • Judgement: The court held that in this case, there was an intention to create legal relations. The written agreement, made during the separation, indicated a clear intention to be legally bound, and Mrs. Merritt was entitled to enforce the agreement.”[12]
  1. Possibility of Performance of Agreement- “An agreement should be possible to perform for example suppose two people decide to undergo an agreement where person A agrees to bring person B’s dead relative back to life, this will not fall under the legal contract act because bringing back the deceased person alive is an impossible task. Thus, the agreement does not stand valid.”[13]
Relevant case law on this essential is as follows: Taylor v. Caldwell (1863)-
  • Facts: Caldwell hired Taylor's hall for musical performances, but the hall was later destroyed by fire before the event.
  • Legal Issue: Was it possible for Taylor to perform the contract when the hall was destroyed through no fault of either party?
  • Judgement: The court held that the contract was frustrated due to the unforeseen event of the hall's destruction. Since performance became impossible, the contract was discharged.” [14]
  1. Legal Formalities- “In a contractual agreement, if there is any uncertainty and both parties are not capable of finding the right path, then it is deemed void. As a part of the essentials of a valid consideration, the terms and conditions of the contract should be concrete”[15]. Any contract, that is uncertain in any sense, can be termed void. The terms mentioned in the agreement should be capable of performing specific actions or obligations.
Relevant case law on this essential is as follows: Smith v. Hughes (1871)-
  • Facts: Smith sold oats to Hughes, who inspected them without noticing they were of a lower quality. Smith argued that the contract was void because Hughes did not inspect the oats as required by the Sale of Goods Act.
  • Legal Issue: Did the failure to inspect the goods in the prescribed manner render the contract void?
  • Judgement: The court held that the contract was valid. The legal formality of inspection was not essential to the agreement, and Hughes' actions indicated acceptance, making the contract binding”[16].
  1. Consideration- “Consideration means the moral value given for the performance of the promise. It should not be only limited to money, but there should be some value to what has been agreed upon”[17]. One of the essentials of valid consideration is that it should not be adequate, but should carry some value in the eyes of law.
Relevant case law on this essential is as follows: Ward v. Byham (1956)-
  • Facts: " Byham promised to send her child regularly to live with Mr. Ward, who was the child's father. In return, Mr. Ward promised to take good care of the child and provide a suitable home.
  • Legal Issue: Was there valid consideration for Ms. Byham's promise to send the child to live with Mr. Ward?
  • Judgement: The court held that there was valid consideration. The mother derived a benefit from the promise that the child would be well cared for, and the father derived a benefit from having the child live with him. The mutual promises constituted valid consideration.”[18]
Henceforth, these are the required essentials and relevant case laws that might have helped you understand the intricacies of contract law in much more detail. Moving on, we must understand the nitty-gritty of contract drafting and how we can draft an excellent contract by keeping in mind the universal best practices.

Essential elements and drafting of a contractual agreement -

Sometimes it looks like the whole world revolves around contracts. They are a crucial part of how all companies interact and how individuals engage in business relations yet drafting can be a daunting task if not done efficiently. In this segment, I have tried covering minor though important things to consider while drafting a contract so that it is holistic, makes sense, and is even legally enforceable. You might be wondering if anyone can write a contract. Honestly speaking, there are no specific requirements for you to be a legal practitioner to draft a contract, so you can stop losing sleep now. As we discussed earlier, a contract is simply a written agreement between two or more people. So, why do people and firms invest so much in consulting counsels for help in drafting contracts? This is because some legal experience and consultancy are beneficial if you want to create a contract that is future-proofed and sealed. Therefore, it is advisable for firms and individuals to seek legal help when drafting a contractual agreement.

Non-negotiable elements of a contract -

  1. Agreement - “Contracts are not merely written for the sake of it; they all carry significance. This is why the most crucial element of any contract is the agreement.”[19] Essentially, the agreement is what defines the contract. For instance, in a contract between a seller and a manufacturer, there would be an agreement stating that the seller has committed to purchasing goods from the manufacturer/seller.
It's important to emphasize that the placement of this information doesn't affect its importance; what matters is its inclusion in the document. Additionally, it's crucial to express the contractual agreement as clearly as possible to prevent any potential legal complications or ambiguity in interpretation.
  1. The parties- Including the parties in the agreement is essential for a legally enforceable contract. In the case of an agreement between a buyer and a seller, it is crucial to include the names and addresses of the respective parties. This inclusion facilitates the identification of the contracting parties and enables one party to contact the other in case of any future legal issues.
  2. Consideration- Sometimes people mistake consideration to be something of monetary value and proportionate in nature however section 2(d) of the ICA 1872 defines consideration as “where the Promisor or anyone else has done or promised not to do or do anything. Such restriction or promise is called a consideration.” [20] It is based on the term “quid-pro-quo” which means “something in exchange”.Two essentials are needed to be satisfied for a valid consideration:
  3. “Consideration must move in the direction of the promisor’s desire: In a contract, the promisor promises something to the promisor in exchange for a subsequent act or restraint. As a result, the promisee must only perform his part of the promise at the ‘will’ of the promisor.
  4. Consideration on the promisee’s or anyone else’s behalf: If the counterparty has any objections, or if the promisor has any. It can also be transferred to a non-contracting third party. Under Indian law, the consideration does not have to be given solely by the promisee; it can be given by the promisee or any other person.”[21]
Looking at the definition and its interpretation it's clear that a consideration need not be of some monetary value or proportional to the consideration by the other party rather it should be lawful in the eyes of the law and agreed by both the parties to fall under the category of a valid consideration. “Therefore insertion of consideration into the contract is crucial if you want to make sure that the paying party will be legally bound to make payments.”[22]
  1. Terms and conditions - This is typically the segment that proves most tiresome to draft and read. Nevertheless, it is a pivotal section that makes it clear what the parties are agreeing to. Therefore, the incorporation of this section into our contractual agreement is significant, as it aids in outlining the party's obligations and rights comprehensively.
  2. Acknowledgement of parties' competence to contract - For an agreement to be legally valid, all of the individuals who signed the agreement must have “contractual capacity to enter into contracts”[23]. Contractual capacity is a legal term that refers to the minimum mental capacity which is required to enter into a contractual agreement. In other words, we can say that individuals who lack contractual capacity are presumed to not know what they are doing and they can set aside the contract if required. For your contract to be legally valid your document must include a statement recognizing that each party has the capacity to sign the contract.
  3. Space for date and signature- “A contract without a signature isn’t worth the paper it’s printed on.”[24]  To put it simply a contractual agreement becomes legally enforceable only with the signature of each party involved in the agreement. Hence you shouldn’t forget to include space for every party to sign on the contracting document. “As well as a lot of contracts essentially require to be dated .”[25]  This is important to avoid any issues in the future between the contracting parties.

How to draft a contract between two parties: A step-by-step guide -

Till now you might be clear about what you need to include in a contract, now it is time we shed some light on drafting. Follow the step-by-step guide mentioned below to aid you in drafting a contract with confidence:
  1. Check out the parties - “The parties to a contract are the most important element; without them to enact the terms of the agreement, there’s no point in even writing the contract.” [26]  If you are drafting a contract on behalf of parties you must know the intention of the contracting parties inside out and accordingly draft an agreement keeping their intention in your mind. For example - You can make sure whether they are competent to participate or not such as if they are over 18 (the minimum age for entering into a contract) and not under the influence of alcohol while entering the agreement.
  2. Negotiate and Finalize Terms- Start your contract with clear and direct language. This makes managing the contract down the line easier and simplifies the drafting process. Ensure everyone's on the same page before putting pen to paper. If needed, gather the parties for a face-to-face agreement. Yet, for straightforward contracts,  written intentions from all parties would suffice.
  3. Define the Duration of the Agreement- Imagine I promised to clean your car, and I did just that, spending the entire day to make it shine. Seems fair, right?
But if someone were really into legal battles, they might argue that I never specified when I'd finish washing your car – technically, I could be stuck in your driveway forever. While this may sound far-fetched, it highlights why it's crucial to set a clear endpoint in the contract once you've laid out the terms. Many contracts involve ongoing tasks, yet even these should have a termination clause, providing the same could also be used by parties to end a contract prematurely.
  1. Clearly specify the consequences - “Contracts are an expression of good faith – however, not everything goes exactly to plan.”[27] After you have completed drafting and defining the duration of your contractual agreement your next task should involve making the parties clear about the consequences they might face in case of a breach.
“The specifics will vary based on the type of contract you're creating. For a rental agreement, for example, you'll likely need to outline what happens if a tenant doesn't pay rent on time or causes damage to the property.”[28]  Without these sorts of mentions the value of the contractual agreement becomes futile.
  1. Establish the framework for Dispute Resolution - It is inevitable that despite the inclusion of penalty clauses in the commercial agreement parties will disagree on failures to enact the obligations of the contractual agreement.
It is advised by legal counsels that apart from the inclusion of civil litigation, parties should also include methods of ADR(Alternative dispute resolutions) such as mediation, arbitration, etc as a mode for speedy and inexpensive dispute resolution. Putting this into our agreement will ensure that every dispute will be treated fairly and it will be easy to resolve.
  1. Respecting confidentiality of parties - At times, the contract contents must be kept confidential, as they may involve sensitive personal data or company secrets. “If this is the case you should insert a confidentiality clause into the agreement .”[29] Henceforth breaching of the confidentiality clause is in itself equivalent to a breach of contract.
  2. Keeping check of the contract’s legality- To be sure that your contract is legally valid and enforceable it is crucial that it should be within the local laws or regulations and if there seems to be a breach of the same there should be an according reformation of the same.
  3. Open it up for negotiation - Finally after taking into consideration all the above-stated steps in mind the contracting parties might ask you to reframe or scrap something completely from the agreement hence your contract should be open to negotiations before it is signed by both the parties. This will ensure that everyone is happy and content when it ultimately comes to signing the final agreement.

Some final Tips to make your contract make sense:

  1. Keep it simple - “A legal agreement is not the place to pull out your best Shakespeare impression”[30] Therefore it is advisable to keep it simple and use plain English throughout avoiding unnecessary use of complex vocabulary, legalese, or jargon as that will only make things difficult for you.
  2. Use modals wisely - “Verbs like ‘may’, ‘shall’, and ‘will’ need to be handled carefully when you’re drafting a contract.”[31]As they all might carry different meanings being a little more vigilant with them will ensure a hassle-free contractual agreement.
  3. Avoid using Synonyms- “Usually, we try to mix up our vocabulary when writing; however, it’s better to stick to the same old words and phrases throughout a contract.”[32] This ensures that the meaning of your contractual terms is clear, you should try defining them at the start of the contract.
  4. Divide and triumph - While drafting contracts your main aim should be ease and clarity of contractual terms. “Dividing the contract into multiple sections and subsections will help you simplify the agreement.”[33] It is advisable to avoid large blocks of text and use bullet points or sub-points whenever possible.

CONCLUSION & COMMENTS:

Contracts are essential to business relations and personal dealings. As highlighted throughout this article a valid enforceable contract requires specific essential elements like competent parties, contractual relations, consideration, concrete and clear terms and conditions, and the presence of signature and dates on the contractual document to make it legally valid. While contract drafting might seem, a complex task following certain basic guidelines on the same including clearly defined duties, rights, dispute resolution processes, and respecting party confidentiality can create balanced, legally binding agreements between parties. Ensuring agreements comply with policy regulations and allowing room for negotiations can also lead to the formation of mutually beneficial contracts. To conclude, I would say contracts, in itself, is a huge subject. A single article on the web can't provide a comprehensive understanding of such a vast topic. Henceforth, I recommend you to surf the web and explore additional articles/blogs on the subject to gain a clearer and more comprehensive understanding. My piece is just a bucket in the vast ocean, so get going before settling on this one.

REFERENCES :

  • Online Articles / Sources Referred –
  1. Ownr Blog (2023) "How to Build a Contract for Your Small Business."
  2. Indian Legal Solution (2020) "Definition and types of contracts."
  3. Legal Katta (2021) "'All Contracts Are Agreements but All Agreements Are Not Contracts.'"
  4. Legal Service India (Date not provided) "Essentials of a valid contract under the Indian Contract Act, 1872: A Comprehensive Analysis."
  5. Laws Study (2021) "Define Consideration and its Essential Elements ICA 1872."
  6. Svitlana Omelia Blog (2023) "A comprehensive guide on how to draft a contract."
  • Cases Referred-
  1. Great Britain v Boots Cash Chemists (1953) 1 QB 401
  2. Carlill v Carbolic Smoke Ball Company ([1893] 1 QB 256), (legalservicesindia.com)
  3. Balfour v Balfour [1919] 2 KB 571
  4. Merritt v Merritt [1970] 2 All ER 760
  5. Taylor v Caldwell (1863) 3 B & S 826, LawLex.Org
  6. Smith v Hughes (1871) LR 6 QB 597
  7. Ward v Byham [1956] 1 WLR 496
  • Statutes Referred-
  1. Section 2(h) in The Indian Contract Act, 1872
  1. Section 2(d) in The Indian Contract Act, 1872
[1]  Team, O. (2023) How to Build a Contract for Your Small Business, Ownr Blog. Available at: https://www.ownr.co/blog/how-to-build-a-contract/ (Accessed: 2 March 2024). [2]  Solution, I.L. (2020) ‘Definition and types of contract’, Indian Legal Solution, 5 July. Available at: https://indianlegalsolution.com/definition-and-types-of-contract/ (Accessed: 2 March 2024). [3] Section 2(h) in The Indian Contract Act, 1872 (no date). Available at: https://indiankanoon.org/doc/1890444/ (Accessed: 2 March 2024). [4] All Contracts Are Agreements But All Agreements Are Not Contracts’ (2021), 7 March. Available at: https://legalkatta.in/all-contracts-are-agreements-but-all-agreements-are-not-contracts/ (Accessed: 2 March 2024). [5]  Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis-https://legalserviceindia.com/legal/article-5512-essentials-of-a-valid-contract-under-the-indian-contract-act-1872-a-comprehensive-analysis.html (Accessed: 2 March 2024). [6]  Pharmaceutical Society of Great Britain v Boots Chemists – Case Summary (2020) IPSA LOQUITUR. Available at: https://ipsaloquitur.com/contract-law/cases/pharmaceutical-society-great-britain-v-boots-cash-chemists/ (Accessed: 2 March 2024). [7]Carlill v/s Carbolic Smoke Ball Company (no date). Available at: https://legalserviceindia.com/legal/article-6570-carlill-v-s-carbolic-smoke-ball-company.html (Accessed: 2 March 2024). [8]  Felthouse v Bindley – Case Summary (2020) IPSA LOQUITUR. Available at: https://ipsaloquitur.com/contract-law/cases/felthouse-v-bindley/ (Accessed: 2 March 2024). [9]   Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis-https://legalserviceindia.com/legal/article-5512-essentials-of-a-valid-contract-under-the-indian-contract-act-1872-a-comprehensive-analysis.html (Accessed: 2 March 2024). [10]  Balfour v Balfour – Case Summary (2020) IPSA LOQUITUR. Available at: https://ipsaloquitur.com/contract-law/cases/balfour-v-balfour/ (Accessed: 2 March 2024). [11] Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis-https://legalserviceindia.com/legal/article-5512-essentials-of-a-valid-contract-under-the-indian-contract-act-1872-a-comprehensive-analysis.html (Accessed: 2 March 2024). [12]  Merritt v Merritt, [1970] 2 All ER 760 | England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com (no date) https://www.casemine.com. Available at: https://www.casemine.com/judgement/uk/5a8ff87960d03e7f57ec1097 (Accessed: 2 March 2024). [13]  Merritt v Merritt, [1970] 2 All ER 760 | England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com (no date) https://www.casemine.com. Available at: https://www.casemine.com/judgement/uk/5a8ff87960d03e7f57ec1097 (Accessed: 2 March 2024). [14]   Jaggi, N. (2020) ‘Case Summary: Taylor v. Caldwell’, LawLex.Org, 15 July. Available at: https://lawlex.org/lex-bulletin/case-summary-taylor-v-caldwell/24748 (Accessed: 2 March 2024). [15]  Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis-https://legalserviceindia.com/legal/article-5512-essentials-of-a-valid-contract-under-the-indian-contract-act-1872-a-comprehensive-analysis.html (Accessed: 2 March 2024). [16]  Smith v Hughes – Case Summary (2020) IPSA LOQUITUR. Available at: https://ipsaloquitur.com/contract-law/cases/smith-v-hughes/ (Accessed: 2 March 2024). [17]  Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis-https://legalserviceindia.com/legal/article-5512-essentials-of-a-valid-contract-under-the-indian-contract-act-1872-a-comprehensive-analysis.html (Accessed: 2 March 2024). [18] Ward v Byham, [1956] 2 All ER 318 | England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com (no date) https://www.casemine.com. Available at: https://www.casemine.com/judgement/uk/5a8ff87860d03e7f57ec107d (Accessed: 2 March 2024). [19]  svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [20] Section 2(d) in The Indian Contract Act, 1872 (no date). Available at: https://indiankanoon.org/doc/877630/ (Accessed: 2 March 2024). [21] ‘Define Consideration and its Essential Elements ICA 1872 - LAWS STUDY’ (2021), 10 August. Available at: https://lawsstudy.com/define-consideration-and-its-essential-elements-ica-1872/ (Accessed: 2 March 2024). [22]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [23]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [24]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [25] svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024) [26]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [27]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [28]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [29]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [30]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [31]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [32]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). [33]   svitlanaomelia (2023) A comprehensive guide on how to draft a contract, Blog. Available at: https://www.pandadoc.com/blog/how-to-draft-a-contract/ (Accessed: 2 March 2024). **Content:** **Author-Aman Tyagi, University Five Year Law College, University of Rajasthan** ### **INTRODUCTION-** In this comprehensive article, my primary aim is to thoroughly explain the fundamental aspects of a contract, aiming to provide clear and concise definitions accessible to both lay individuals and legal professionals alike. Throughout the discussion, I have precisely outlined the crucial components inherent in contracts, with a dedicated focus on examining pertinent precedents and case laws to enhance understanding. Diving further, we have delved into the foundational element’s integral to the art of drafting, offering insights on streamlining the process by diligently considering essential factors. To conclude, I’ve exactly crafted a detailed, step-by-step guide to empower you in the creation of excellent contracts. Additionally, I’ve included a collection of supplementary tips, ideally placed to be helpful factors during the detailed task of creating contracts. ### **What is a contract?** Let’s start with defining contract in the most laymen’s terms *“A contract is a legally binding agreement at least between two parties to create mutual obligations that businesses and individuals use to protect their business or personal interests. They also aim to outline the engagement for a transaction. They can also dictate legal consequences if a party tries to break the agreement.”[**\[1\]**](#_ftn1)* Contracts can be written or verbal. Generally, most businesses favor written contracts as they can easily be referred to in future matters. Written contracts are also less ambiguous, hence eliminating any future enforcement problems. After defining it in simple terms let’s also define it in the Lawmen language don’t worry this won’t mean that it can’t be understood in this language but it requires you to use more of your legal aptitude. To define it legally Sir William Anson defines a contract as “*a legally enforceable agreement between two persons wherein two or more persons get a legal right and some have to fulfil corresponding legal responsibilities*”[\[2\]](#_ftn2). To put it simply a contract is an agreement that interprets the obligations of various parties involved in it. Henceforth a contract is an agreement between two or more competent parties based on mutual promises, to do or refrain from doing a particular that is neither illegal nor impossible. Taking into consideration the perspective of India let’s also define contracts according to Indian Contracts Act 1872, ICA 1872 Section 2(h) defines a contract as an “agreement enforceable by law”[\[3\]](#_ftn3). This denotes that there are two main ingredients of a contract: an agreement and enforceability. Only a valid contract is enforceable by law and a contract must fulfil certain conditions to be valid. After reading the above-discussed definitions a doubt might have arisen in your mind whether contracts and agreements are the same. To clear this let’s, distinguish between the two and take into consideration relevant examples to help us understand this fully. ### **Contracts and Agreements distinguished?** The terms contracts and agreements are often used interchangeably but in the legal landscape differences though minor are important to be taken into consideration to avoid any future legal hassle. They can be distinguished on the following grounds:- **Features** **Agreement** **Contract** **Definition** An arrangement (usually informal and unwritten) between two or more parties that is not enforceable by law.A formal arrangement between two or more parties(usually written) that, by its terms and elements, is enforceable by law.**Does it need to be in writing?**An agreement is not required to be written. A contract also doesn’t necessarily require to be written however in some cases it’s a legal necessity for them to be written for enforceability. These are often referred to as “statute of frauds” requirements. Examples of contracts that typically fall under the statute of fraud and must be in writing include: Contracts involving the sale or transfer of real estate, Contracts that cannot be performed within one year from the date of formation, Contracts to pay the debt of another person, etc. **Consideration requirements**An agreement doesn’t require consideration.A contract requires the presence of consideration in a contractual agreement. **Relevant examples**You agree with your friend to buy their car for Rs 5,00,000. This is a mutual understanding or arrangement between you and your friend, but it might not be legally binding if it lacks essential elements or if it’s merely a casual conversation.You and your friend draft a written agreement specifying the terms of the car sale, including the price, payment method, and any conditions. Both parties sign the document. Now, it has become a legally binding contract.Hence these were the differences that might have aided you in understanding though minor but important differences between contracts and agreements. Concluding our discussion about the differences between the two, it’s a legally accepted principle that “*While every contract is an agreement, every agreement is not a contract.*”[\[4\]](#_ftn4) This statement has been propagated by Anson. Moving forward in the discussion of contracts we must know the essentials of contracts and also its essential requirements to make a legally comprehensive enforceable contract. ### **Essentials of Contracts –** To make an agreement a validly enforceable contract in law certain essentials are needed to be satisfied. Henceforth let’s delve into the explanation of the required essentials for a contract along with some decided case laws to understand them holistically. The essentials of a contractual agreement(as per ICA 1872) are as follows: – 1. **Offer and Acceptance** – *“There must be a clear offer by one party and a corresponding acceptance by the other party. Generally, the written contract only unfolds when the other party accepts the offer by one party and is definite in all senses. The offer or agreement must be clear and complete in all senses. Both parties should communicate to ensure there is no lapse in the contract act. Both the offer and acceptance must be “consensus ad idem”, meaning( meeting of the minds), to put it simply both parties must comply with the same thing.” [**\[5\]**](#_ftn5)* Mere silence is not constituted as acceptance of to offer. An offeree is not generally obligated to respond to an offer and their silence does not imply agreement. One more important thing to consider is that an invitation to offer is not an offer in itself. Taking an example of decided case law in “*Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953): Goods displayed on shelves in a store are an invitation to customers to make an offer to purchase.”[**\[6\]**](#_ftn6)* Some Relevant case laws on offer and acceptance – ***Carlill v. Carbolic Smoke Ball Company (1893)-*** - ***Facts:*** *The Carbolic Smoke Ball Company advertised a product that they claimed could prevent influenza. They offered a reward to anyone who used the smoke ball according to the instructions and still got the flu.* - ***Legal Issue:*** *Was the advertisement a valid offer, and was Mrs Carlill entitled to the reward for using the product as directed and still contracting influenza?* - ***Judgement:*** *The court held that the advertisement was an offer, and Mrs. Carlill was entitled to the reward as she had accepted the offer by using the product as instructed and suffering from influenza.”[**\[7\]**](#_ftn7)* ***Felthouse v Bindley (1862)-*** - ***Facts:*** *Felthouse wanted to purchase a horse from his nephew. He wrote to his nephew, stating, “If I hear no more about him, I consider the horse mine at £30.” The nephew intended to sell the horse but failed to respond to the letter.* - ***Legal Issue:*** *Did the nephew’s silence amount to acceptance of the offer, and was a contract formed?* - ***Judgement:*** *The court held that there was no contract. Silence does not constitute acceptance unless there is a prior agreement that silence would amount to acceptance. In this case, the nephew’s failure to respond meant that there was no acceptance, and therefore, no contract was formed.” [**\[8\]**](#_ftn8)* 2. **Intention to Create a Legal Relationship-** *“To bind, both parties should have a specific intention that can create a legal relationship, resulting in an agreement. Agreements of a social or household nature are not contracts because parties do not intend to build legal relationships.” [**\[9\]**](#_ftn9)* Relevant case law on this essential is as follows: ***Balfour v. Balfour (1919)-*** - ***Facts:*** *Mr Balfour promised to pay his wife a monthly allowance while he was working abroad, but the relationship later turned sour, and the payments ceased.* - ***Legal Issue:*** *Did the parties intend for their agreement to have legal consequences, or was it a domestic arrangement without legal intent?* - ***Judgement:*** *The court held that in domestic agreements, there’s a presumption against legal intent. In this case, there was no intention to create a legal relationship, and the agreement was a domestic arrangement.” [**\[10\]**](#_ftn10)* 3. **The Intent of Legal Obligations-** *“One of the essential elements of a valid offer is that both parties subject to a contract must be clear with the intent to create a legal relationship. This also means that agreements that are not enforceable by the law like agreements between relatives are enforceable in the court of law.”[**\[11\]**](#_ftn11)* Relevant case law on this essential is as follows: ***Merritt v. Merritt (1970)-*** - ***Facts:*** *Mr and Mrs Merritt, who were separated, made an agreement in writing regarding the transfer of the family home to Mrs Merritt.* - ***Legal Issue:*** *Was there an intention to create legal obligations in their written agreement, despite being separated?* - ***Judgement:*** *The court held that in this case, there was an intention to create legal relations. The written agreement, made during the separation, indicated a clear intention to be legally bound, and Mrs. Merritt was entitled to enforce the agreement.”[**\[12\]**](#_ftn12)* 4. **Possibility of Performance of Agreement-** “*An agreement should be possible to perform for example suppose two people decide to undergo an agreement where person A agrees to bring person B’s dead relative back to life, this will not fall under the legal contract act because bringing back the deceased person alive is an impossible task. Thus, the agreement does not stand valid.”[**\[13\]**](#_ftn13)* Relevant case law on this essential is as follows: ***Taylor v. Caldwell (1863)-*** - ***Facts:*** *Caldwell hired Taylor’s hall for musical performances, but the hall was later destroyed by fire before the event.* - ***Legal Issue:*** *Was it possible for Taylor to perform the contract when the hall was destroyed through no fault of either party?* - ***Judgement:*** *The court held that the contract was frustrated due to the unforeseen event of the hall’s destruction. Since performance became impossible, the contract was discharged.” [**\[14\]**](#_ftn14)* 5. **Legal Formalities-** “*In a contractual agreement, if there is any uncertainty and both parties are not capable of finding the right path, then it is deemed void. As a part of the essentials of a valid consideration, the terms and conditions of the contract should be concrete”[**\[15\]**](#_ftn15).* Any contract, that is uncertain in any sense, can be termed void. The terms mentioned in the agreement should be capable of performing specific actions or obligations. Relevant case law on this essential is as follows: ***Smith v. Hughes (1871)-*** - ***Facts:*** *Smith sold oats to Hughes, who inspected them without noticing they were of a lower quality. Smith argued that the contract was void because Hughes did not inspect the oats as required by the Sale of Goods Act.* - ***Legal Issue:*** *Did the failure to inspect the goods in the prescribed manner render the contract void?* - ***Judgement:*** *The court held that the contract was valid. The legal formality of inspection was not essential to the agreement, and Hughes’ actions indicated acceptance, making the contract binding”[**\[16\]**](#_ftn16).* 6. **Consideration-** “*Consideration means the moral value given for the performance of the promise. It should not be only limited to money, but there should be some value to what has been agreed upon”[**\[17\]**](#_ftn17).* One of the essentials of valid consideration is that it should not be adequate, but should carry some value in the eyes of law. Relevant case law on this essential is as follows: ***Ward v. Byham (1956)-*** - ***Facts: “*** *Byham promised to send her child regularly to live with Mr. Ward, who was the child’s father. In return, Mr. Ward promised to take good care of the child and provide a suitable home.* - ***Legal Issue:*** *Was there valid consideration for Ms. Byham’s promise to send the child to live with Mr. Ward?* - ***Judgement:*** *The court held that there was valid consideration. The mother derived a benefit from the promise that the child would be well cared for, and the father derived a benefit from having the child live with him. The mutual promises constituted valid consideration.”[**\[18\]**](#_ftn18)* Henceforth, these are the required essentials and relevant case laws that might have helped you understand the intricacies of contract law in much more detail. Moving on, we must understand the nitty-gritty of contract drafting and how we can draft an excellent contract by keeping in mind the universal best practices. ### **Essential elements and drafting of a contractual agreement –** Sometimes it looks like the whole world revolves around contracts. They are a crucial part of how all companies interact and how individuals engage in business relations yet drafting can be a daunting task if not done efficiently. In this segment, I have tried covering minor though important things to consider while drafting a contract so that it is holistic, makes sense, and is even legally enforceable. You might be wondering if anyone can write a contract. Honestly speaking, there are no specific requirements for you to be a legal practitioner to draft a contract, so you can stop losing sleep now. As we discussed earlier, a contract is simply a written agreement between two or more people. So, why do people and firms invest so much in consulting counsels for help in drafting contracts? This is because some legal experience and consultancy are beneficial if you want to create a contract that is future-proofed and sealed. Therefore, it is advisable for firms and individuals to seek legal help when drafting a contractual agreement. ### **Non-negotiable elements of a contract –** 1. **Agreement – *“****Contracts are not merely written for the sake of it; they all carry significance. This is why the most crucial element of any contract is the agreement.”[**\[19\]**](#_ftn19)* Essentially, the agreement is what defines the contract. For instance, in a contract between a seller and a manufacturer, there would be an agreement stating that the seller has committed to purchasing goods from the manufacturer/seller. It’s important to emphasize that the placement of this information doesn’t affect its importance; what matters is its inclusion in the document. Additionally, it’s crucial to express the contractual agreement as clearly as possible to prevent any potential legal complications or ambiguity in interpretation. 2. **The parties-** Including the parties in the agreement is essential for a legally enforceable contract. In the case of an agreement between a buyer and a seller, it is crucial to include the names and addresses of the respective parties. This inclusion facilitates the identification of the contracting parties and enables one party to contact the other in case of any future legal issues. 3. **Consideration-** Sometimes people mistake consideration to be something of monetary value and proportionate in nature however section 2(d) of the ICA 1872 defines consideration as *“where the Promisor or anyone else has done or promised not to do or do anything. Such restriction or promise is called a consideration.*” [\[20\]](#_ftn20) It is based on the term “quid-pro-quo” which means “something in exchange”.Two essentials are needed to be satisfied for a valid consideration: 4. ***“Consideration must move in the direction of the promisor’s desire:*** *In a contract, the promisor promises something to the promisor in exchange for a subsequent act or restraint. As a result, the promisee must only perform his part of the promise at the ‘will’ of the promisor.* 5. ***Consideration on the promisee’s or anyone else’s behalf:*** *If the counterparty has any objections, or if the promisor has any. It can also be transferred to a non-contracting third party. Under Indian law, the consideration does not have to be given solely by the promisee; it can be given by the promisee or any other person.”[**\[21\]**](#_ftn21)* Looking at the definition and its interpretation it’s clear that a consideration need not be of some monetary value or proportional to the consideration by the other party rather it should be lawful in the eyes of the law and agreed by both the parties to fall under the category of a valid consideration. “*Therefore insertion of consideration into the contract is crucial if you want to make sure that the paying party will be legally bound to make payments.*”[\[22\]](#_ftn22) 4. **Terms and conditions –** This is typically the segment that proves most tiresome to draft and read. Nevertheless, it is a pivotal section that makes it clear what the parties are agreeing to. Therefore, the incorporation of this section into our contractual agreement is significant, as it aids in outlining the party’s obligations and rights comprehensively. 5. **Acknowledgement of parties’ competence to contract –** For an agreement to be legally valid, all of the individuals who signed the agreement must have *“contractual capacity to enter into contracts”[**\[23\]**](#_ftn23)*. Contractual capacity is a legal term that refers to the minimum mental capacity which is required to enter into a contractual agreement. In other words, we can say that individuals who lack contractual capacity are presumed to not know what they are doing and they can set aside the contract if required. For your contract to be legally valid your document must include a statement recognizing that each party has the capacity to sign the contract. 6. **Space for date and signature-** “*A contract without a signature isn’t worth the paper it’s printed on.”*[\[24\]](#_ftn24) To put it simply a contractual agreement becomes legally enforceable only with the signature of each party involved in the agreement. Hence you shouldn’t forget to include space for every party to sign on the contracting document. “*As well as a lot of contracts essentially require to be dated .*”[\[25\]](#_ftn25) This is important to avoid any issues in the future between the contracting parties. ### **How to draft a contract between two parties: A step-by-step guide –** Till now you might be clear about what you need to include in a contract, now it is time we shed some light on drafting. Follow the step-by-step guide mentioned below to aid you in drafting a contract with confidence: 1. **Check out the parties –** “*The parties to a contract are the most important element; without them to enact the terms of the agreement, there’s no point in even writing the contract.” [**\[26\]**](#_ftn26)* If you are drafting a contract on behalf of parties you must know the intention of the contracting parties inside out and accordingly draft an agreement keeping their intention in your mind. For example – You can make sure whether they are competent to participate or not such as if they are over 18 (the minimum age for entering into a contract) and not under the influence of alcohol while entering the agreement. 2. **Negotiate and Finalize Terms-** Start your contract with clear and direct language. This makes managing the contract down the line easier and simplifies the drafting process. Ensure everyone’s on the same page before putting pen to paper. If needed, gather the parties for a face-to-face agreement. Yet, for straightforward contracts, written intentions from all parties would suffice. 3. **Define the Duration of the Agreement-** Imagine I promised to clean your car, and I did just that, spending the entire day to make it shine. Seems fair, right? But if someone were really into legal battles, they might argue that I never specified when I’d finish washing your car – technically, I could be stuck in your driveway forever. While this may sound far-fetched, it highlights why it’s crucial to set a clear endpoint in the contract once you’ve laid out the terms. Many contracts involve ongoing tasks, yet even these should have a termination clause, providing the same could also be used by parties to end a contract prematurely. 4. **Clearly specify the consequences –** “*Contracts are an expression of good faith – however, not everything goes exactly to plan.”[**\[27\]**](#_ftn27)* After you have completed drafting and defining the duration of your contractual agreement your next task should involve making the parties clear about the consequences they might face in case of a breach. “*The specifics will vary based on the type of contract you’re creating. For a rental agreement, for example, you’ll likely need to outline what happens if a tenant doesn’t pay rent on time or causes damage to the property.*”[\[28\]](#_ftn28) Without these sorts of mentions the value of the contractual agreement becomes futile. 5. **Establish the framework for Dispute Resolution –** It is inevitable that despite the inclusion of penalty clauses in the commercial agreement parties will disagree on failures to enact the obligations of the contractual agreement. It is advised by legal counsels that apart from the inclusion of civil litigation, parties should also include methods of ADR(Alternative dispute resolutions) such as mediation, arbitration, etc as a mode for speedy and inexpensive dispute resolution. Putting this into our agreement will ensure that every dispute will be treated fairly and it will be easy to resolve. 6. **Respecting confidentiality of parties –** At times, the contract contents must be kept confidential, as they may involve sensitive personal data or company secrets. “*If this is the case you should insert a confidentiality clause into the agreement .”[**\[29\]**](#_ftn29)* Henceforth breaching of the confidentiality clause is in itself equivalent to a breach of contract. 7. **Keeping check of the contract’s legality-** To be sure that your contract is legally valid and enforceable it is crucial that it should be within the local laws or regulations and if there seems to be a breach of the same there should be an according reformation of the same. 8. **Open it up for negotiation –** Finally after taking into consideration all the above-stated steps in mind the contracting parties might ask you to reframe or scrap something completely from the agreement hence your contract should be open to negotiations before it is signed by both the parties. This will ensure that everyone is happy and content when it ultimately comes to signing the final agreement. ### **Some final Tips to make your contract make sense:** 1. **Keep it simple –** *“A legal agreement is not the place to pull out your best Shakespeare impression”[**\[30\]**](#_ftn30)* Therefore it is advisable to keep it simple and use plain English throughout avoiding unnecessary use of complex vocabulary, legalese, or jargon as that will only make things difficult for you. 2. **Use modals wisely –** *“Verbs like ‘may’, ‘shall’, and ‘will’ need to be handled carefully when you’re drafting a contract.”[**\[31\]**](#_ftn31)*As they all might carry different meanings being a little more vigilant with them will ensure a hassle-free contractual agreement. 3. **Avoid using Synonyms-** *“Usually, we try to mix up our vocabulary when writing; however, it’s better to stick to the same old words and phrases throughout a contract.”[**\[32\]**](#_ftn32)* This ensures that the meaning of your contractual terms is clear, you should try defining them at the start of the contract. 4. **Divide and triumph –** While drafting contracts your main aim should be ease and clarity of contractual terms. *“Dividing the contract into multiple sections and subsections will help you simplify the agreement.”[**\[33\]**](#_ftn33)* It is advisable to avoid large blocks of text and use bullet points or sub-points whenever possible. ### **CONCLUSION & COMMENTS:** Contracts are essential to business relations and personal dealings. As highlighted throughout this article a valid enforceable contract requires specific essential elements like competent parties, contractual relations, consideration, concrete and clear terms and conditions, and the presence of signature and dates on the contractual document to make it legally valid. While contract drafting might seem, a complex task following certain basic guidelines on the same including clearly defined duties, rights, dispute resolution processes, and respecting party confidentiality can create balanced, legally binding agreements between parties. Ensuring agreements comply with policy regulations and allowing room for negotiations can also lead to the formation of mutually beneficial contracts. To conclude, I would say contracts, in itself, is a huge subject. A single article on the web can’t provide a comprehensive understanding of such a vast topic. Henceforth, I recommend you to surf the web and explore additional articles/blogs on the subject to gain a clearer and more comprehensive understanding. My piece is just a bucket in the vast ocean, so get going before settling on this one. ### **REFERENCES :** - **Online Articles / Sources Referred –** 1. Ownr Blog (2023) “How to Build a Contract for Your Small Business.” 2. Indian Legal Solution (2020) “Definition and types of contracts.” 3. Legal Katta (2021) “‘All Contracts Are Agreements but All Agreements Are Not Contracts.'” 4. Legal Service India (Date not provided) “Essentials of a valid contract under the Indian Contract Act, 1872: A Comprehensive Analysis.” 5. Laws Study (2021) “Define Consideration and its Essential Elements ICA 1872.” 6. Svitlana Omelia Blog (2023) “A comprehensive guide on how to draft a contract.” - **Cases Referred-** 1. Great Britain v Boots Cash Chemists (1953) 1 QB 401 2. Carlill v Carbolic Smoke Ball Company (\[1893\] 1 QB 256), (legalservicesindia.com) 3. Balfour v Balfour \[1919\] 2 KB 571 4. Merritt v Merritt \[1970\] 2 All ER 760 5. Taylor v Caldwell (1863) 3 B & S 826, LawLex.Org 6. Smith v Hughes (1871) LR 6 QB 597 7. Ward v Byham \[1956\] 1 WLR 496 - **Statutes Referred-** 1. Section 2(h) in The Indian Contract Act, 1872 1. Section 2(d) in The Indian Contract Act, 1872 [\[1\]](#_ftnref1) Team, O. (2023) *How to Build a Contract for Your Small Business*, *Ownr Blog*. Available at:[ https://www.ownr.co/blog/how-to-build-a-contract/](https://www.ownr.co/blog/how-to-build-a-contract/) (Accessed: 2 March 2024). [\[2\]](#_ftnref2) Solution, I.L. (2020) ‘Definition and types of contract’, *Indian Legal Solution*, 5 July. Available at:[ https://indianlegalsolution.com/definition-and-types-of-contract/](https://indianlegalsolution.com/definition-and-types-of-contract/) (Accessed: 2 March 2024). [\[3\]](#_ftnref3) *Section 2(h) in The Indian Contract Act, 1872* (no date). Available at:[ https://indiankanoon.org/doc/1890444/](https://indiankanoon.org/doc/1890444/) (Accessed: 2 March 2024). [\[4\]](#_ftnref4) All Contracts Are Agreements But All Agreements Are Not Contracts’ (2021), 7 March. Available at:[ https://legalkatta.in/all-contracts-are-agreements-but-all-agreements-are-not-contracts/](https://legalkatta.in/all-contracts-are-agreements-but-all-agreements-are-not-contracts/) (Accessed: 2 March 2024). [\[5\]](#_ftnref5) *Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis*– (Accessed: 2 March 2024). [\[6\]](#_ftnref6) *Pharmaceutical Society of Great Britain v Boots Chemists – Case Summary* (2020) *IPSA LOQUITUR*. Available at:[ https://ipsaloquitur.com/contract-law/cases/pharmaceutical-society-great-britain-v-boots-cash-chemists/](https://ipsaloquitur.com/contract-law/cases/pharmaceutical-society-great-britain-v-boots-cash-chemists/) (Accessed: 2 March 2024). [\[7\]](#_ftnref7)*Carlill v/s Carbolic Smoke Ball Company* (no date). Available at:[ https://legalserviceindia.com/legal/article-6570-carlill-v-s-carbolic-smoke-ball-company.html](https://legalserviceindia.com/legal/article-6570-carlill-v-s-carbolic-smoke-ball-company.html) (Accessed: 2 March 2024). [\[8\]](#_ftnref8) *Felthouse v Bindley – Case Summary* (2020) *IPSA LOQUITUR*. Available at:[ https://ipsaloquitur.com/contract-law/cases/felthouse-v-bindley/](https://ipsaloquitur.com/contract-law/cases/felthouse-v-bindley/) (Accessed: 2 March 2024). [\[9\]](#_ftnref9) *Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis*– (Accessed: 2 March 2024). [\[10\]](#_ftnref10) *Balfour v Balfour – Case Summary* (2020) *IPSA LOQUITUR*. Available at:[ https://ipsaloquitur.com/contract-law/cases/balfour-v-balfour/](https://ipsaloquitur.com/contract-law/cases/balfour-v-balfour/) (Accessed: 2 March 2024). [\[11\]](#_ftnref11) *Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis*– (Accessed: 2 March 2024). [\[12\]](#_ftnref12) *Merritt v Merritt, \[1970\] 2 All ER 760 | England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com* (no date) *https://www.casemine.com*. Available at:[ https://www.casemine.com/judgement/uk/5a8ff87960d03e7f57ec1097](https://www.casemine.com/judgement/uk/5a8ff87960d03e7f57ec1097) (Accessed: 2 March 2024). [\[13\]](#_ftnref13) *Merritt v Merritt, \[1970\] 2 All ER 760 | England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com* (no date) *https://www.casemine.com*. Available at:[ https://www.casemine.com/judgement/uk/5a8ff87960d03e7f57ec1097](https://www.casemine.com/judgement/uk/5a8ff87960d03e7f57ec1097) (Accessed: 2 March 2024). [\[14\]](#_ftnref14) Jaggi, N. (2020) ‘Case Summary: Taylor v. Caldwell’, *LawLex.Org*, 15 July. Available at:[ https://lawlex.org/lex-bulletin/case-summary-taylor-v-caldwell/24748](https://lawlex.org/lex-bulletin/case-summary-taylor-v-caldwell/24748) (Accessed: 2 March 2024). [\[15\]](#_ftnref15) *Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis*– (Accessed: 2 March 2024). [\[16\]](#_ftnref16) *Smith v Hughes – Case Summary* (2020) *IPSA LOQUITUR*. Available at:[ https://ipsaloquitur.com/contract-law/cases/smith-v-hughes/](https://ipsaloquitur.com/contract-law/cases/smith-v-hughes/) (Accessed: 2 March 2024). [\[17\]](#_ftnref17) *Essentials of a valid contract under the Indian Contract Act,1872: A Comprehensive Analysis*– (Accessed: 2 March 2024). [\[18\]](#_ftnref18) *Ward v Byham, \[1956\] 2 All ER 318 | England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com* (no date) *https://www.casemine.com*. Available at:[ https://www.casemine.com/judgement/uk/5a8ff87860d03e7f57ec107d](https://www.casemine.com/judgement/uk/5a8ff87860d03e7f57ec107d) (Accessed: 2 March 2024). [\[19\]](#_ftnref19) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[20\]](#_ftnref20) *Section 2(d) in The Indian Contract Act, 1872* (no date). Available at:[ https://indiankanoon.org/doc/877630/](https://indiankanoon.org/doc/877630/) (Accessed: 2 March 2024). [\[21\]](#_ftnref21) ‘Define Consideration and its Essential Elements ICA 1872 – LAWS STUDY’ (2021), 10 August. Available at:[ https://lawsstudy.com/define-consideration-and-its-essential-elements-ica-1872/](https://lawsstudy.com/define-consideration-and-its-essential-elements-ica-1872/) (Accessed: 2 March 2024). [\[22\]](#_ftnref22) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[23\]](#_ftnref23) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[24\]](#_ftnref24) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[25\]](#_ftnref25) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024) [\[26\]](#_ftnref26) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[27\]](#_ftnref27) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[28\]](#_ftnref28) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[29\]](#_ftnref29) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[30\]](#_ftnref30) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[31\]](#_ftnref31) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[32\]](#_ftnref32) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). [\[33\]](#_ftnref33) svitlanaomelia (2023) *A comprehensive guide on how to draft a contract*, *Blog*. Available at:[ https://www.pandadoc.com/blog/how-to-draft-a-contract/](https://www.pandadoc.com/blog/how-to-draft-a-contract/) (Accessed: 2 March 2024). **Categories:** Articles --- ### [AYODHYA RAM MANDIR VERDICT: CONSTITUTIONAL PRINCIPLES & IMPACT ON PEOPLE](https://lawfoyer.in/ayodhya-ram-mandir-verdict-constitutional-principles-impact-on-people/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Khushi, University Institute of Legal Studies, Panjab University

INTRODUCTION

Sites that are sacred have great power.  They hold great symbolic meaning for both outsiders and members of the communities that regard them as sacred. Sometimes they begin to act as communal spaces unless it hold special significance for only one individual, who need not share it with others who have other interests. It might be necessary for members of a single, cohesive religious group to share it with one yet another. Many of the most well-known disputes over holy locations involve locations that are contested by several religious groups; one such example is the ongoing dispute in Israel on the Noble Sanctuary/Temple Mount , sometimes Even nonreligious sharing can also spark controversy; in the UK, for example, there have been disputes regarding Stonehenge’s historical and religious purposes. The article concentrates on the legal ramifications of one very long-running dispute, disagreement on Ayodhya Ram Temple/ Babri Masjid. North Indian town Ayodhya is located in the Uttar Pradesh state’s Faizabad district. Every major religion practiced in India has some link to it. Still, For our purposes, the relationships that Hindus and Muslims have with the location.

Various beliefs related to structure

Ayodhya was a Saivic centre for Hindus for many centuries, and in the seventeenth  Century developed became a major Vaishnavite hub in the century. Specifically, Ayodhya is viewed by Hindus are the people as birth place of Hindu God Rama. Similar to the Hindu accounts of belief , the Islamic account of Ayodhya’s history emphasizes how old the relationship between religion and the location is, dating back much longer than any conventional history could. Muslims contend that they have been connected to Ayodhya from Pre-Islamic era, when Noah and Seth, one of Adam and Eve’s children, were buried at Ayodhya , a  sizable number of religious tourists are still drawn to both grave sites. Ayodhya’s monarch was vanquished in combat by the first Mughal Emperor, and in 1528, his administrator erected a mosque in the city. Ayodhya’s numerous Muslim holy sites make it known as a “Khurd Mecca,” or little Mecca. The pre-1528 history of the site,  differs considerably between the two communities. The Hindu community asserts that  for the purpose of constructing a masjid first Mughal Emperor demolished an ancient and magnificent Ram temple and on the remains of temple, mosque was built . Whereas Muslims assert that it was vacant land and nothing was demolished for any such construction. Keywords : Ayodhya Ram Lalla Virajman, Babri Masjid, Religion, Status quo , secularism

Legal Analysis of the issue

The groundwork for the settlement of these and other communal disputes by legal means was laid with the start of the British Crown’s direct administration over the region in 1856. A Hindu priest created a chabutra, or elevated platform for idols, in 1857 on a portion of the Babri Masjid property. Local Muslims objected to this, but the disagreement was settled by agreeing to build a wall between the mosque and the  Chabutra, subsequently dubbed the Janmastan Temple. Nonetheless, Muslims protested against the building of a clay chabutra in a petition to the local magistrate on November 30, 1858. In 1860, the Babri Masjid was formally recognized as a Muslim place of worship & decision to let the Janmastan priest to build a temple above the Chabutra were turned down in 1883–1885.21 The matter came before the District Court in 1886. There were three reasons why the judge rejected the petition. First of all, It is regrettable that a masjid was constructed on land that Hindus specifically hold sacred, but because the incident happened 356 years ago, there is no way to address the issue. Second, any alteration can have the opposite effect of what is intended and destabilize the system. Thirdly, the Hindu priest’s assertion that he was the landowner was unsupported by any documentation. The Judicial Commissioner of Avadh upheld the District Court’s decision, stating in his ruling dated November 1, 1886, that the plaintiff’s claim was quickly dismissed by the executive and Civil Courts. The appeal was dismissed,the parties were asked to maintain status quo. An internal Muslim dispute in 1943 -45 was also promptly resolved, with a legislative inquiry concluding that a Sunni Muslim founded the Babri  Masjid, later observation citing that such site was being used by both Shias & Sunnis,  still being led by Sunni Waqf board. The controversy changed course in  Dec, 1949.As claimed by Muslims ,a group of Sadhus  lightened sacred flames around graveyard of mosque to support their claims Later, idols believed to have been placed there miraculously by Hindus—Ram, Lakshmana, and Sita—were found inside the mosque. Gould stated it as a cause of sensation between both communities. The local authorities ordered the Babri Masjid gates to be locked and forbade both communities from using it because they believed that the dispute would likely cause a breach of the peace, since the argument increased tensions in the community. An appointed receiver made arrangements for protection of contested property and assumed control of it on January 5, 1950. Many lawsuits and countersuits ensued, which were eventually combined into a one lawsuit in 1964. The primary lawsuit was filed in 1961 by The Sunni Central Board of Waqf, UP, seeking the declaration and regaining of ownership of the mosque and cemetery following removal of idols. Death of receiver in 1970 created a fresh dispute that could only come to an end in 1987. A Hindu nationalist group called Vishwa Hindu Parishad (VHP) started a campaign in 1984 to “liberate” the Ram Janmabhumi and reconstruct the beautiful Ram temple in Ayodhya.  In 1986, a Hindu intervenor who was not involved in any of the primary lawsuits obtained an order that gave him permission to enter the building freely for prayer, something that was prohibited by the interim order of 1950 ,this time Hon’ble Judge K.M. Gupta stated that opening the gates and allowing the idols within to be seen will not, under any circumstances, have an impact on the Muslims or any other members of the other group. The tension between both the groups accelerated when the UP State government acquired 2.77 acres of disputed land on 7 October 1991. The government argued that this was to promote tourism and provide amenities for pilgrims. The acquisition was challenged on the basis that the land was Waqf property, and so could not be acquired under the relevant legislation; and that the exercise of power was colourable having malafide intention for Muslims, whereas looking upon merits and facts of the case , an interim order of Hon’ ble High court allowed the acquisition. Since both the parties were in eager urge to actual title holder of disputed Land , and no such decision was being given by Hon’ble courts in order to prevent breach of peace. Dharma Sansad, on 31st of October 1992 announced resumption of Karseva. As a consequence of the then  Prime Minister, PV Narsimha Rao’s continuous appeal to Hon’ble supreme court to intervene , the occasion being of symbolic importance was allowed , along with efforts being ensured to prevent any miscarriage of peace .The  UP State Government assured the Court the protection of mosque & The High Court appointed a District Judge as an observer who would report periodically. Despite all these assurances, the Babri Masjid stood demolished on 6 Dec,1992. Following the demolition, the World Hindu Lawyers Association, a lesser-known forum, petitioned the High Court in a Writ Petition, asking for the deity’s blessing in the temporary Hindu temple. They asked the judge to grant them permission to use their constitutional freedom to practice one’s religion. In the prersuance , Justices H.N. Tilhari and A.N. Gupta ordered in their ruling that the orders imposed under  Section 144 CrPC  be relaxed, and further ordered state officials to permit the petitioners, who are Hindus and followers of Ram, to receive darshan in the temporary Ayodhya temple, decision being challenged in Hon’ble supreme court in order to maintain status quo.Following the ruling of the Supreme Court on October 24, 1994, the High Court’s proceedings were restarted in January 1996 and lasted until the Allahabad High Court rendered a decision in September 2010.Delay has been described as the ‘pathology of the Indian legal system’ and has been a cause of concern. Even though it has always existed in the Indian judicial system, delays typically last between ten and fifteen years. But in the Ayodhya dispute, without even a preliminary trial, the delay was prolonged to 42 years . In such lengthy litigations , interim relief ,has been always crucial that has also spanned generations , whereas on the other hand, each decision of title centred around maintenance of status quo . After a drawn-out trial, three rulings totalling over 8000 pages were issued ,but all the three judges noted undesirability of very long period which could have been resolved before 1986 unlocking order, ultimately marking tripartite sharing between two communities: 2/3 to Hindus and 1/3 to Muslims. Besides , nothing matched then govt’s attempts to extinguish the sacredness of the place were beyond its competence.  The verdict was delayed by the Supreme Court in May 2011 because they deemed it to be “strange and surprising.” It was specifically mentioned that none of the parties had requested the relief that the High Court had given, which was partition. Rather, each party had pursued exclusive rights throughout the whole precinct. The status quo was mandated by the Supreme Court until the matter was decided by the Supreme Court. In February 2018 ,the Supreme Court made it clear it would approach the case as a pure land dispute and began to hear the substance of the case on 23rd March 2018.The writers of the Constitution understood that secular principles were necessary for maintaining social cohesion and religious peace in a multi-ethnic and multireligious nation such as India. The fundamental human rights of all Indian citizens, particularly those of the minority groups, were to be safeguarded on the basis of these principles. Indian secularism attempted to address some of the injustices that existed in Indian culture, Jacobsohn described it as “ameliorative secularism.”

Ayodhya verdict by Hon’ble Supreme court

Legal issues framed

  • First, what precisely are the boundaries of a Hindu idol’s legal personality? Stated differently, how close is the legal personality of a real person to the artificial legal personality that courts have bestowed upon a Hindu idol ( Bhagwan Sri Ram Virajman)
Thus, two tenets used by courts support the validity of the Hindu idol as a legal or “juristic” person. The first is to acknowledge the testator’s religious intent as a legal body that is able to own property in an ideal sense in the absence of  establishment of a trust. In order to guarantee that the pious aim is fulfilled, the second step involves combining the pious purpose itself with the idol that represents it. The Hindu idol is a legitimate person as it is conceived.
  • Whether property of corporeal nature (Asthan Shri Ram Janam Bhumi Ayodhya) be ascribed legal personality?
The Apex court here held that In this instance, all competing ownership rights to the in question land would be annihilated with the recognition of “Asthan Sri Ram Janam Bhumi” as a juristic person. The awarding of “absolute title” as a consequence of the awarding of legal personality on land) would, in actuality, negate the significance of title altogether. Furthermore, opposing claims would be eliminated solely on the grounds of the devotees’ faith and belief rather than as a result of established legal rules. This is not permissible under law. Further , referring to case of  THE MOSQUE, MASJID SHAHID GANJ V. SHIROMANI GURUDWARA PRABANDHAK , Apex court held that conferring legal personality on immovable property leads to consequences that fundamentally have no Nexus to limited purpose for which juristic personality is conferred. The Supreme Court decided that if the adherence to constitutional ideals is to be maintained, the adjudication of civil disputes pertaining to private property must continue to be under the purview of the courts. Hence , decided it couldn’t be attributed a juristic personality.
  • Whether suit filed by Nirmohi Akhara was barred by limitation?
Limitation Act of 1908 was in force on the day of Institution of suit , i.e. why Hon’ble High court held in split verdict 2:1 that the suit by Nirmohi Akhara  was barred by limitation, Justice S.U. Khan presenting dissenting opinion.
  • Nature and scope of section 145 ,crpc?
Section 145 is recognised to be a branch of preventive jurisdiction of Magistrate , mere CUSTODIA LEGIS , as it is only invoked if Magistrate satisfies that issue is such that has potential to likely cause breach of peace. The section donot purports to decide party’s title or possession of land .Actual substantive right to decide such title or possession vests with civil courts in civil proceedings. It also constitutes a reason why Nirmohi Akhara cannot take plea that since no order was passed under section 145, crpc i.e. why no limitation period commenced.
  • The suit of 1885 and Res judicata barring subsequent suits ?
Held, There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.
  • Evidentiary Value of The Reliance On Travelogues, Gazetteers And Books?
Held ,while Gazetteers have been noticed in several decisions of this Court, it is equally important to note that the reliance placed on them is more in the nature of corroborative material. The evidentiary value to be ascribed to their contents necessarily depends upon the context and is subject to a careful evaluation of their contents.
  • Concept of Possession and Adverse Possession?
A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous – possession which meets the requirement of being “nec vi nec claim and nec precario.” To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. Held, The evidence in the records indicate that Hindus, post the setting up of the railing have, in any event, been in possession of the outer courtyard. On this basis alone, the plea of adverse possession set up by the plaintiffs in respect of the entirety of the area must fail.
  • Is doctrine of lost grant applicable?
Since a plea of adverse possession is predicated on title vesting in someone other than the purported grantee, it would be interpreted against the application of the doctrine of lost grant . The  Privy Council's and this Court’s rulings acknowledging the doctrine as a rule of evidence demonstrate that the concept needs to be used cautiously. The concept is an evidence-based guideline rather than an independent, substantive basis for the recognition of titles. According to Section 110 of the Evidence Act of 1872, it is the burden of proof to establish ownership when there is a doubt as to whether a person in possession of something is its rightful owner. The theory of lost grant must inevitably follow that it has no applicability in this particular instance in the absence of any pleadings or evidence that may be used to support an assumption that the doctrine is applicable.
  • Analysis on Muslim claim of possession?
The travelogues (chiefly Tieffenthaler and Montgomery Martin) provide a detailed account both of the faith and belief of the Hindus based on the sanctity which they ascribed to the place of birth of Lord Ram and of the actual worship by the Hindus at the Janmasthan; William Finch (1608-11) and Tieffenthaler who visited India between 1743-1785 provided an account of Ayodhya. Conspicuous in both the accounts are references to worship by the Hindus to Lord Ram. The positive account of Hindu worship to Lord Ram is of probative value. There is no evidence to the contrary by the Muslims to indicate that their possession of the disputed structure of the mosque was exclusive and that the offering of namaz was exclusionary of the hindus. FINAL VERDICT On 9th of November 2019, the  final case of M.SIDDIQ (D) THR LRS V. MAHANT SURESH DAS AND ORS. Settled unanimously , pronouncing a judgement of 1045 pages by five judge bench of Hon’ble supreme court led by then ,Chief justice of India , Ranjan Gagoi where The Indian government was given a three-month deadline by the court to establish a board of trustees and establish a trust to construct the Ram Mandir temple. The Indian government will be the owner of the contested land, which will thereafter be given to the Trust upon its establishment. The Court directed that the full 2.77 acres of contested land be set aside for the construction of a temple, and that the Uttar Pradesh Sunni Central Waqf Board be given 5 acres of alternative land to be used for the construction of a mosque at a suitable location in Ayodhya. The division of the contested land by the Allahabad High Court in 2010 was deemed erroneous by the Court. Further, ASI submission that Masjid was built atop the structure that was indigenous and non Islamic was taken as an ordinary opinion owing to dissenting submissions by Muslim claimants . Review petitions Review petitions were filed in reaction to the Ayodhya ruling, which was overturned on December 12, 2019, since the court found no basis on which “to entertain review petitions” even after “carefully going through” the supplied papers that were attached. However, the disagreement was settled through an adjudication process in which a fair legal system was established and all parties were given an equal opportunity to submit their case. This procedure as a whole deserves to be praised as a secularist win. It is never thought that criticism of judgement is unwarranted; rather, it is a fundamental tenet of a robust democracy. The idea of inviolability and inevitability, which must be presented as a secularist advantage to stop violence or strife.

SECULARISM – TOP TIER IN INDIA

The Indian constitution has always been inherently secular, which is why Hon. Prime Minister Shri Narendra Modi said on the day of the ruling that "the verdict should not be seen as win or loss for anybody. We have the essential essence of Rashtra Bhakti, whether we are practicing Ram or Rahim bhakti.” Also inaugurating world’s third largest temple  in Asia on 22nd of January,  2024 , at  its  Pran pratistha (consecration ceremony) Prime Minister Narendra Modi remarked  “ Influence of Rama is global and stands tall as unity of India  and shaping new India with social Harmony , economic prosperity and scientific progress.  The event itself grabbed very tightly nerves of unity as  100 dignitaries from 55 nations including Akhbar Taj, Justice Nazeer, user Ahmad Illyasi were invited sending  messages of peace and brotherhood  among  all and reiterating  the concept of VASUDEV KATUMBAKAM. Impact of Ram Mandir has been no less than a Messiah for a region said to steeping in poverty and backwardness.

Impact on INDIAN ECONOMY

Reports of foreign brokerage firm Jefferies underlines that event doesn’t possess only spiritual significance but also substantial economic impact .$10 billion makeover encompassing new airport,  railway station,  road connectivity is anticipated to make multiplier impact. Ayodhya is no less than a catalyst with influx of tourists with projections reacting  over 50 millions annually, transforming it from a quiet town to spirituality destination akin to Mecca and Vatican. Moreover  , Acc.to  SBI research reports, Indian economy is posed to achieve a milestones of $5trillion economy with growths rate surpassing 7%where Uttar Pradesh is expected to command second highest weightage in Indian economy, surpassing Norway in terms of GDP. The temple also posed commendable impact on telecommunication sector. CONCLUSION No doubt ,India strives testimony of providing justice to its citizens at any cost . Any such imuendo that such revival is against secular credentials has  no legs to stand upon, as it is not so distant future when a new mosque would adore the region being largest mosque in Asia and the city Ayodhya being hub of two religious destinations. The city has potential to become symbol of Hindu Muslim amity and showcase SARVA DHARAM SAMBHAVA to entire globe .However , it stands prudent to let local people take the lead how they wish to go about their lives in changed environment. Politicians from outside world are best advised to keep away and not to polarize region with their viscous politics.

REFERENCES

  1. Books / Commentaries / Journals Referred
    • Ayodhya :Prof Peter W Edge & Dr M.C. Rajan.
    • Ayodhya issue : jaffrelot
  1. Cases Referred
    • SIDDIQ (D) THR LRS V. MAHANT SURESH DAS AND ORS,
    • AIRONLINE 2019 SC 1420, 2020 (1) SCC 1, (2019) 15 SCALE 1,
    • The Mosque Masjid Shahid Ganj V. Shiromani Gurdwara Prabandhak committee , Amritsar,AIR 1940 PC 116
  1. Statutes Referred
    1. Constitution of India
    2. Places of worship Act 1991
    3. Ayodhya Land acquisition act
**Content:** **Author-Khushi, University Institute of Legal Studies, Panjab University** ### **INTRODUCTION** Sites that are sacred have great power. They hold great symbolic meaning for both outsiders and members of the communities that regard them as sacred. Sometimes they begin to act as communal spaces unless it hold special significance for only one individual, who need not share it with others who have other interests. It might be necessary for members of a single, cohesive religious group to share it with one yet another. Many of the most well-known disputes over holy locations involve locations that are contested by several religious groups; one such example is the ongoing dispute in Israel on the Noble Sanctuary/Temple Mount , sometimes Even nonreligious sharing can also spark controversy; in the UK, for example, there have been disputes regarding Stonehenge’s historical and religious purposes. The article concentrates on the legal ramifications of one very long-running dispute, disagreement on Ayodhya Ram Temple/ Babri Masjid. North Indian town Ayodhya is located in the Uttar Pradesh state’s Faizabad district. Every major religion practiced in India has some link to it. Still, For our purposes, the relationships that Hindus and Muslims have with the location. ### ***Various beliefs related to structure*** Ayodhya was a Saivic centre for Hindus for many centuries, and in the seventeenth Century developed became a major Vaishnavite hub in the century. Specifically, Ayodhya is viewed by Hindus are the people as birth place of Hindu God Rama. Similar to the Hindu accounts of belief , the Islamic account of Ayodhya’s history emphasizes how old the relationship between religion and the location is, dating back much longer than any conventional history could. Muslims contend that they have been connected to Ayodhya from Pre-Islamic era, when Noah and Seth, one of Adam and Eve’s children, were buried at Ayodhya , a sizable number of religious tourists are still drawn to both grave sites. Ayodhya’s monarch was vanquished in combat by the first Mughal Emperor, and in 1528, his administrator erected a mosque in the city. Ayodhya’s numerous Muslim holy sites make it known as a “Khurd Mecca,” or little Mecca. The pre-1528 history of the site, differs considerably between the two communities. The Hindu community asserts that for the purpose of constructing a masjid first Mughal Emperor demolished an ancient and magnificent Ram temple and on the remains of temple, mosque was built . Whereas Muslims assert that it was vacant land and nothing was demolished for any such construction. ***Keywords* :** Ayodhya Ram Lalla Virajman, Babri Masjid, Religion, Status quo , secularism ### ***Legal Analysis of the issue*** The groundwork for the settlement of these and other communal disputes by legal means was laid with the start of the British Crown’s direct administration over the region in 1856. A Hindu priest created a chabutra, or elevated platform for idols, in 1857 on a portion of the Babri Masjid property. Local Muslims objected to this, but the disagreement was settled by agreeing to build a wall between the mosque and the Chabutra, subsequently dubbed the Janmastan Temple. Nonetheless, Muslims protested against the building of a clay chabutra in a petition to the local magistrate on November 30, 1858. In 1860, the Babri Masjid was formally recognized as a Muslim place of worship & decision to let the Janmastan priest to build a temple above the Chabutra were turned down in 1883–1885.21 The matter came before the District Court in 1886. There were three reasons why the judge rejected the petition. First of all, It is regrettable that a masjid was constructed on land that Hindus specifically hold sacred, but because the incident happened 356 years ago, there is no way to address the issue. Second, any alteration can have the opposite effect of what is intended and destabilize the system. Thirdly, the Hindu priest’s assertion that he was the landowner was unsupported by any documentation. The Judicial Commissioner of Avadh upheld the District Court’s decision, stating in his ruling dated November 1, 1886, that the plaintiff’s claim was quickly dismissed by the executive and Civil Courts. The appeal was dismissed,the parties were asked to maintain status quo. An internal Muslim dispute in 1943 -45 was also promptly resolved, with a legislative inquiry concluding that a Sunni Muslim founded the Babri Masjid, later observation citing that such site was being used by both Shias & Sunnis, still being led by Sunni Waqf board. The controversy changed course in Dec, 1949.As claimed by Muslims ,a group of Sadhus lightened sacred flames around graveyard of mosque to support their claims Later, idols believed to have been placed there miraculously by Hindus—Ram, Lakshmana, and Sita—were found inside the mosque. Gould stated it as a cause of sensation between both communities. The local authorities ordered the Babri Masjid gates to be locked and forbade both communities from using it because they believed that the dispute would likely cause a breach of the peace, since the argument increased tensions in the community. An appointed receiver made arrangements for protection of contested property and assumed control of it on January 5, 1950. Many lawsuits and countersuits ensued, which were eventually combined into a one lawsuit in 1964. The primary lawsuit was filed in 1961 by The Sunni Central Board of Waqf, UP, seeking the declaration and regaining of ownership of the mosque and cemetery following removal of idols. Death of receiver in 1970 created a fresh dispute that could only come to an end in 1987. A Hindu nationalist group called Vishwa Hindu Parishad (VHP) started a campaign in 1984 to “liberate” the Ram Janmabhumi and reconstruct the beautiful Ram temple in Ayodhya. In 1986, a Hindu intervenor who was not involved in any of the primary lawsuits obtained an order that gave him permission to enter the building freely for prayer, something that was prohibited by the interim order of 1950 ,this time Hon’ble Judge K.M. Gupta stated that opening the gates and allowing the idols within to be seen will not, under any circumstances, have an impact on the Muslims or any other members of the other group. The tension between both the groups accelerated when the UP State government acquired 2.77 acres of disputed land on 7 October 1991. The government argued that this was to promote tourism and provide amenities for pilgrims. The acquisition was challenged on the basis that the land was Waqf property, and so could not be acquired under the relevant legislation; and that the exercise of power was colourable having malafide intention for Muslims, whereas looking upon merits and facts of the case , an interim order of Hon’ ble High court allowed the acquisition. Since both the parties were in eager urge to actual title holder of disputed Land , and no such decision was being given by Hon’ble courts in order to prevent breach of peace. Dharma Sansad, on 31st of October 1992 announced resumption of Karseva. As a consequence of the then Prime Minister, PV Narsimha Rao’s continuous appeal to Hon’ble supreme court to intervene , the occasion being of symbolic importance was allowed , along with efforts being ensured to prevent any miscarriage of peace .The UP State Government assured the Court the protection of mosque & The High Court appointed a District Judge as an observer who would report periodically. Despite all these assurances, the Babri Masjid stood demolished on 6 Dec,1992. Following the demolition, the World Hindu Lawyers Association, a lesser-known forum, petitioned the High Court in a Writ Petition, asking for the deity’s blessing in the temporary Hindu temple. They asked the judge to grant them permission to use their constitutional freedom to practice one’s religion. In the prersuance , Justices H.N. Tilhari and A.N. Gupta ordered in their ruling that the orders imposed under Section 144 CrPC be relaxed, and further ordered state officials to permit the petitioners, who are Hindus and followers of Ram, to receive darshan in the temporary Ayodhya temple, decision being challenged in Hon’ble supreme court in order to maintain status quo.Following the ruling of the Supreme Court on October 24, 1994, the High Court’s proceedings were restarted in January 1996 and lasted until the Allahabad High Court rendered a decision in September 2010.Delay has been described as the ‘pathology of the Indian legal system’ and has been a cause of concern. Even though it has always existed in the Indian judicial system, delays typically last between ten and fifteen years. But in the Ayodhya dispute, without even a preliminary trial, the delay was prolonged to 42 years . In such lengthy litigations , interim relief ,has been always crucial that has also spanned generations , whereas on the other hand, each decision of title centred around maintenance of status quo . After a drawn-out trial, three rulings totalling over 8000 pages were issued ,but all the three judges noted undesirability of very long period which could have been resolved before 1986 unlocking order, ultimately marking tripartite sharing between two communities: 2/3 to Hindus and 1/3 to Muslims. Besides , nothing matched then govt’s attempts to extinguish the sacredness of the place were beyond its competence. The verdict was delayed by the Supreme Court in May 2011 because they deemed it to be “strange and surprising.” It was specifically mentioned that none of the parties had requested the relief that the High Court had given, which was partition. Rather, each party had pursued exclusive rights throughout the whole precinct. The status quo was mandated by the Supreme Court until the matter was decided by the Supreme Court. In February 2018 ,the Supreme Court made it clear it would approach the case as a pure land dispute and began to hear the substance of the case on 23rd March 2018.The writers of the Constitution understood that secular principles were necessary for maintaining social cohesion and religious peace in a multi-ethnic and multireligious nation such as India. The fundamental human rights of all Indian citizens, particularly those of the minority groups, were to be safeguarded on the basis of these principles. Indian secularism attempted to address some of the injustices that existed in Indian culture, Jacobsohn described it as “ameliorative secularism.” ### ***Ayodhya verdict by Hon’ble Supreme court*** #### ***Legal issues framed*** - First, what precisely are the boundaries of a Hindu idol’s legal personality? Stated differently, how close is the legal personality of a real person to the artificial legal personality that courts have bestowed upon a Hindu idol ( Bhagwan Sri Ram Virajman) Thus, two tenets used by courts support the validity of the Hindu idol as a legal or “juristic” person. The first is to acknowledge the testator’s religious intent as a legal body that is able to own property in an ideal sense in the absence of establishment of a trust. In order to guarantee that the pious aim is fulfilled, the second step involves combining the pious purpose itself with the idol that represents it. The Hindu idol is a legitimate person as it is conceived. - **Whether property of corporeal nature (Asthan Shri Ram Janam Bhumi Ayodhya) be ascribed legal personality?** The Apex court here held that In this instance, all competing ownership rights to the in question land would be annihilated with the recognition of “Asthan Sri Ram Janam Bhumi” as a juristic person. The awarding of “absolute title” as a consequence of the awarding of legal personality on land) would, in actuality, negate the significance of title altogether. Furthermore, opposing claims would be eliminated solely on the grounds of the devotees’ faith and belief rather than as a result of established legal rules. This is not permissible under law. Further , referring to case of THE MOSQUE, MASJID SHAHID GANJ V. SHIROMANI GURUDWARA PRABANDHAK , Apex court held that conferring legal personality on immovable property leads to consequences that fundamentally have no Nexus to limited purpose for which juristic personality is conferred. The Supreme Court decided that if the adherence to constitutional ideals is to be maintained, the adjudication of civil disputes pertaining to private property must continue to be under the purview of the courts. Hence , decided it couldn’t be attributed a juristic personality. - **Whether suit filed by Nirmohi Akhara was barred by limitation?** Limitation Act of 1908 was in force on the day of Institution of suit , i.e. why Hon’ble High court held in split verdict 2:1 that the suit by Nirmohi Akhara was barred by limitation, Justice S.U. Khan presenting dissenting opinion. - **Nature and scope of section 145 ,crpc?** Section 145 is recognised to be a branch of preventive jurisdiction of Magistrate , mere CUSTODIA LEGIS , as it is only invoked if Magistrate satisfies that issue is such that has potential to likely cause breach of peace. The section donot purports to decide party’s title or possession of land .Actual substantive right to decide such title or possession vests with civil courts in civil proceedings. It also constitutes a reason why Nirmohi Akhara cannot take plea that since no order was passed under section 145, crpc i.e. why no limitation period commenced. - **The suit of 1885 and Res judicata barring subsequent suits ?** Held, There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits. - **Evidentiary Value of The Reliance On Travelogues, Gazetteers And Books?** Held ,while Gazetteers have been noticed in several decisions of this Court, it is equally important to note that the reliance placed on them is more in the nature of corroborative material. The evidentiary value to be ascribed to their contents necessarily depends upon the context and is subject to a careful evaluation of their contents. - **Concept of Possession and Adverse Possession?** A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous – possession which meets the requirement of being “nec vi nec claim and nec precario.” To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. Held, The evidence in the records indicate that Hindus, post the setting up of the railing have, in any event, been in possession of the outer courtyard. On this basis alone, the plea of adverse possession set up by the plaintiffs in respect of the entirety of the area must fail. - **Is doctrine of lost grant applicable?** Since a plea of adverse possession is predicated on title vesting in someone other than the purported grantee, it would be interpreted against the application of the doctrine of lost grant . The Privy Council’s and this Court’s rulings acknowledging the doctrine as a rule of evidence demonstrate that the concept needs to be used cautiously. The concept is an evidence-based guideline rather than an independent, substantive basis for the recognition of titles. According to Section 110 of the Evidence Act of 1872, it is the burden of proof to establish ownership when there is a doubt as to whether a person in possession of something is its rightful owner. The theory of lost grant must inevitably follow that it has no applicability in this particular instance in the absence of any pleadings or evidence that may be used to support an assumption that the doctrine is applicable. - **Analysis on Muslim claim of possession?** The travelogues (chiefly Tieffenthaler and Montgomery Martin) provide a detailed account both of the faith and belief of the Hindus based on the sanctity which they ascribed to the place of birth of Lord Ram and of the actual worship by the Hindus at the Janmasthan; William Finch (1608-11) and Tieffenthaler who visited India between 1743-1785 provided an account of Ayodhya. Conspicuous in both the accounts are references to worship by the Hindus to Lord Ram. The positive account of Hindu worship to Lord Ram is of probative value. There is no evidence to the contrary by the Muslims to indicate that their possession of the disputed structure of the mosque was exclusive and that the offering of namaz was exclusionary of the hindus. ***FINAL VERDICT*** On 9th of November 2019, the final case of M.SIDDIQ (D) THR LRS V. MAHANT SURESH DAS AND ORS. Settled unanimously , pronouncing a judgement of 1045 pages by five judge bench of Hon’ble supreme court led by then ,Chief justice of India , Ranjan Gagoi where The Indian government was given a three-month deadline by the court to establish a board of trustees and establish a trust to construct the Ram Mandir temple. The Indian government will be the owner of the contested land, which will thereafter be given to the Trust upon its establishment. The Court directed that the full 2.77 acres of contested land be set aside for the construction of a temple, and that the Uttar Pradesh Sunni Central Waqf Board be given 5 acres of alternative land to be used for the construction of a mosque at a suitable location in Ayodhya. The division of the contested land by the Allahabad High Court in 2010 was deemed erroneous by the Court. Further, ASI submission that Masjid was built atop the structure that was indigenous and non Islamic was taken as an ordinary opinion owing to dissenting submissions by Muslim claimants . ***Review petitions*** Review petitions were filed in reaction to the Ayodhya ruling, which was overturned on December 12, 2019, since the court found no basis on which “to entertain review petitions” even after “carefully going through” the supplied papers that were attached. However, the disagreement was settled through an adjudication process in which a fair legal system was established and all parties were given an equal opportunity to submit their case. This procedure as a whole deserves to be praised as a secularist win. It is never thought that criticism of judgement is unwarranted; rather, it is a fundamental tenet of a robust democracy. The idea of inviolability and inevitability, which must be presented as a secularist advantage to stop violence or strife. ### ***SECULARISM – TOP TIER IN INDIA*** The Indian constitution has always been inherently secular, which is why Hon. Prime Minister Shri Narendra Modi said on the day of the ruling that “the verdict should not be seen as win or loss for anybody. We have the essential essence of Rashtra Bhakti, whether we are practicing Ram or Rahim bhakti.” Also inaugurating world’s third largest temple in Asia on 22nd of January, 2024 , at its Pran pratistha (consecration ceremony) Prime Minister Narendra Modi remarked “ Influence of Rama is global and stands tall as unity of India and shaping new India with social Harmony , economic prosperity and scientific progress. The event itself grabbed very tightly nerves of unity as 100 dignitaries from 55 nations including Akhbar Taj, Justice Nazeer, user Ahmad Illyasi were invited sending messages of peace and brotherhood among all and reiterating the concept of VASUDEV KATUMBAKAM. Impact of Ram Mandir has been no less than a Messiah for a region said to steeping in poverty and backwardness. ### ***Impact on INDIAN ECONOMY*** Reports of foreign brokerage firm Jefferies underlines that event doesn’t possess only spiritual significance but also substantial economic impact .$10 billion makeover encompassing new airport, railway station, road connectivity is anticipated to make multiplier impact. Ayodhya is no less than a catalyst with influx of tourists with projections reacting over 50 millions annually, transforming it from a quiet town to spirituality destination akin to Mecca and Vatican. Moreover , Acc.to SBI research reports, Indian economy is posed to achieve a milestones of $5trillion economy with growths rate surpassing 7%where Uttar Pradesh is expected to command second highest weightage in Indian economy, surpassing Norway in terms of GDP. The temple also posed commendable impact on telecommunication sector. **CONCLUSION** No doubt ,India strives testimony of providing justice to its citizens at any cost . Any such imuendo that such revival is against secular credentials has no legs to stand upon, as it is not so distant future when a new mosque would adore the region being largest mosque in Asia and the city Ayodhya being hub of two religious destinations. The city has potential to become symbol of Hindu Muslim amity and showcase SARVA DHARAM SAMBHAVA to entire globe .However , it stands prudent to let local people take the lead how they wish to go about their lives in changed environment. Politicians from outside world are best advised to keep away and not to polarize region with their viscous politics. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** - Ayodhya :Prof Peter W Edge & Dr M.C. Rajan. - Ayodhya issue : jaffrelot 2. **Cases Referred** - SIDDIQ (D) THR LRS V. MAHANT SURESH DAS AND ORS, - AIRONLINE 2019 SC 1420, 2020 (1) SCC 1, (2019) 15 SCALE 1, - The Mosque Masjid Shahid Ganj V. Shiromani Gurdwara Prabandhak committee , Amritsar,AIR 1940 PC 116 3. **Statutes Referred** 1. Constitution of India 2. Places of worship Act 1991 3. Ayodhya Land acquisition act **Categories:** Articles --- ### [Article 16 of the Indian Constitution](https://lawfoyer.in/article-16-of-the-indian-constitution/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Naman Jain, Galgotias University

INTRODUCTION

All Indian citizens are guaranteed fundamental human rights under Part III of the Indian Constitution, and certain non-citizens are also entitled to these rights. These rights are referred to be "fundamental rights" because they are justified in nature and because anyone who feels that their rights have been violated may file a lawsuit. The United States Bill of Rights served as a major source of inspiration for those who drafted our Constitution, which established India's fundamental rights. This Article gives the outline for the appointment of employee in public office and the equality of opportunity for them. through this article the employment for general public is given to everyone without any kind of dispute as well as certain exception was also provided which was necessary for the public. The goal of Article 16 of the Indian Constitution is to give all people of the country equal opportunities for employment and official posts. The Article's first two sentences make it clear that there will be no discrimination against Indian citizens in the workplace. These clauses establish equitable job opportunities by outlawing discrimination on the basis of religion, race, caste, gender, place of birth, or any other criteria. Keywords (Minimum 5): Public Employment, Reservation, Promotion, SCs and STs,           

Reservation for EWS

Context of this Articles

(1) “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”[1] (2) “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”  (3)” Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office[2] [under the Government of, or any local or other authority within a state or Union Territory, any requirement as to residence within that state or Union Territory] prior to such employment or appointment” (4) “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.  “[3][(4A) Nothing in this article shall prevent the State from making any provision for reservation [4][in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]” “[5][(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.]” (5) “Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.” [6](6) Nothing in this article shall prevent the State from making any provision for the reservation of appointment or post in favour of any economically weaker section of citizen other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of Ten Percent of the post in each Category.

Explanation of Articles

Article 16 (1) The right to equality of opportunity in matters pertaining to public employment is covered by Article 16 of the Indian Constitution. Only citizens of India are officially guaranteed this right. Equality of opportunity is guaranteed in situations pertaining to "appointment" or "employment" to any office under the State by Article 16 (1). It only applies to positions held by or associated with the State or Government. Article 16(2) No citizen shall face discrimination in any employment or office under the State on the grounds of race, caste, gender, place of birth, residence, or descent, Article 16 (3), the Parliament may pass any laws mandating residency in a state or union territory in order to be considered for a specific job or appointment within that state or union territory, as well as in local government or other authorities within it. Article 16 (4) gives the State the authority to pass laws reserving positions in the public sector or jobs for people from underrepresented backgrounds, if the State determines that these groups have not been sufficiently represented in state services. The national government decided that the reservation in the advancement of SCs and STs should not be impacted and should continue, as the Indra Sawhney case exclusively pertains to the backward classes. But in order to allow the Parliament to reserve seats for SCs and STs in promotion positions, the 77th Amendment Act, 1995 was passed, adding clause 4-A to Article 16 of the Constitution. By the 81st Amendment, 2000, Clause (4-B) was inserted to the Indian Constitution under Article 16 in place of Clause (4-A). It was added to the Constitution with the intention that the backlog of open positions that could not be filled in a previous year because there were no eligible candidates from the SEBC category would not be combined with the 50% reservation for SCs, STs, and Other Backward Classes on the total number of openings in the following year. Article 16(5) law is excluded from the application of clauses (1) and (2), which stipulate that the occupant of any position must be qualified for appointment based on religion, under this clause Article 16(6) The 103rd Amendment, 2019, which went into effect on January 14, 2019, added clause (6) to Article 16 and gave the State the authority to reserve some positions for members of the Economically Weaker Sections (EWS) of society when they are appointed to government positions. But these clauses, in addition to the current reservations, have to stay below the 10% cap.

Important Committees for this Article

  • Kalelkar Committee
Affirmative action for the "Depressed Classes," or the Scheduled Castes and Tribes, was implemented after India obtained its independence. This program helped the most marginalized and backward sections of Indian society. Nevertheless, no benefits were provided, nor was there a list of the other backward classes in the nation, which, while not as politically and socially backward as the ST/SCs, were nevertheless marginalized in society and lagged behind forwarding castes in the areas of economic development, employment, and education. In 1953, the nation's first Backward Classes Commission was established under the leadership of Kaka Kalelkar to solve this issue. The Kalelkar Commission was another name for this. [7] “When the commission submitted its findings in 1955, it said that there were 2399 backward groups in India, of whom 837 were considered to be "most backward," and that caste was the main indicator of backwardness”. But the Union Government disregarded them because it wanted to eventually establish a casteless society. But this was Rejected by the Government due to some problems.
  • Indra Sawhney[8] Case known as Mandal Commission
In the well-known "Mandal Commission case," Indra Sawhney v. Union of India, AIR 1993 SC 447, the Hon'ble Supreme Court carefully considered the parameters of Article 16(4) in this landmark decision. The case's facts were as follows:
  • Under Article 340, the government appointed the second backward classes commission on January 1, 1979, with Sri B.P. Mandal serving as its chair. This Commission was tasked with looking into the socially and educationally disadvantaged groups living on Indian territory and recommending to the government ways to help them progress, including the need to set aside funds for them to be given preference for positions in state employment.
  • In December 1980, the Commission published its report, which classified 3743 castes as socially and educationally inferior groups. Additionally, the Commission suggested that the government give these classes a 27% reservation.
  • In the meantime, the Congress Party took control of the Centre when internal disputes caused the collapse of the Janta Dal Government. It wasn't until 1989 that the Congress Party carried out the Mandal Commission's recommendations. After defeating the Congress Party in the legislative elections in 1989, Janta Dal reestablished its hold on power and decided to carry out the Commission's report's recommendations as promised to the voters.
  • Based on the Mandal commission report, the Indian government subsequently issued the Office Memoranda (OM) on August 13, 1990, reserving 27% of seats for members of the underprivileged classes in the State and Government services. Following the nation's approval of the Mandal Commission Report, there was a violent anti-reservation movement that lasted for about three months and claimed a great deal of lives and property. The Supreme Court Bar Association simultaneously filed a writ petition, arguing that the OM was invalid and requesting a stay of execution. The Five-Judge Bench of the Court halted the OM's operations until the case's resolution, which was rendered on October 1, 1990.
Judgement for this Case
  • In rulings of 6:3 Justice B.P. Jeevan Reddy, C.J.I. M.H. Kania, M.N. Venkatachalam, A.M. Ahmadi, SR Pandian, and SB Sawant, along with the other members of the Supreme Court's Constitution Bench, held that the Union Government's decision to reserve 27% of government jobs for members of the lower classes was constitutionally valid as long as the socially advanced individuals—the creamy layer among them—were removed.
  • The Supreme Court clarified its position by ruling that seat reservations should be restricted to initial appointments only, not promotions, and that the overall reservation amount should not be more than 50%. The Congress Government's OM, which reserved 10% of government posts for upper classes that were economically disadvantaged, was overruled by the Court. The majority also concurred that no more than 50% of the reservation should be made.
  • The scope and extent of Article 16(4) of the Indian Constitution were carefully scrutinized by the Court. It made clear the different points on which earlier courts had disagreed. The majority ruling of the Supreme Court can be summed up as follows:
  1. Caste is not the only factor to be taken into account when identifying a backward class of individuals, as stated in Article 16 Clause 4; nonetheless, caste cannot be the exclusive foundation for consideration.
  2. According to the majority, Article 16(4) of the Constitution is an independent clause rather than an exception to Article 16(1). Instead, similar to the Doctrine of Equality stated under Article 14, reservations may be made under clause (1) of Article 16 on the basis of reasonable classification.
  3. It is necessary to remove the creamy layer from the lower grades.
  4. It was found that the backward classes may be categorized as "backward and more backward" under Article 16(4) of the Constitution. The argument went on to say that classifying citizens as backward only on the basis of their economic status would undermine the very goal of Article 16(4), which is to give underrepresented groups adequate representation in state services to alleviate or elevate them as well as to give those who have been excluded from state power due to social, educational, and economic backwardness their rightful share.
  5. Backward class reservations cannot be made for more than 50% of the total.
  6. A provision enacted pursuant to Article 16(4) may only be implemented by executive order, subject to parliamentary approval.
  7. Not to be reserved for promotions.
  8. The Union government, State governments, and Union territories have appointed a permanent statutory committee to look into complaints regarding the inclusion or exclusion of certain groups, sectors, and classes from the list of other backward classes.
  9. About the Mandal Commission Report, no viewpoint was voiced.
  10. Rule laid down in this Article
  11. Carry forward Rule
In [9]“T. Devadasan v. Union of India” the Supreme Court examined the application of Article 16(4) (1964). In this instance, the question was whether the government's "carry forward rule," which governed the appointment of members of the underprivileged classes to positions involving state services, was constitutionally valid. According to this rule, any unfilled positions would be considered unreserved and would be filled by newly available candidates if a sufficient number of candidates from the SC and ST classes were not available for appointment to the reserved quota. In addition to their reserved quota for the following year, a corresponding number of posts would be reserved for SCs and STs in the following year. As a result, the unused balance and open positions from the second and third years were carried over all at once. In reality, SCs and STs were allocated 68% of the available positions. The carry forward rule was declared unconstitutional by the Honourable Supreme Court, which ruled 4:1 that the government could not use its authority under Article 16(4) to deny members of classes other than the backward classes a reasonable opportunity in matters of public employment. “The Hon’ble Supreme Court, in Indra Sawhney v. Union of India, overruled Devadasan v. Union of India on the point and held the “carry forward rule” valid as long as it did not, in a particular year, exceed 50 percent of vacancies.”
  • Catch Up Rule
[10]Following the constitutional recognition of reservation in promotion, the reserved category candidates who were promoted ahead of their general class counterparts became their seniors due to their earlier promotion. The Hon’ble Supreme Court addressed this anomaly by introducing the concept of a catch-up rule in two cases: [11]Union of India v. Virpal Singh (1995) and [12]Ajit Singh v. State of Punjab (1996). According to this rule, the senior general category candidates who were promoted after SC/ST candidates would regain their seniority over general category candidates who were promoted earlier. Candidates in the reserved category can keep their seniority over their counterparts in the general category through consequential seniority. To put it another way, the State may stipulate that a candidate who was promoted ahead of time due to the reservation rule will not be entitled to seniority over his senior in the general category and that a general candidate who was promoted ahead of him will regain his seniority over the reserved candidate even if he is promoted later to the reserved candidate. The ideas of consequential seniority and the catch-up rule are neither implicit in Article 16 clauses (1) and (4), nor are they constitutional constraints. Neither are they constitutional requirements. Articles 14, 15, and 16 of the Constitution establish an equality law that remains unchanged even if these regulations are eliminated. Article 16's clause (1) cannot stop the state from considering the compelling interests of the socially excluded. Article 16's clause (4) relates to affirmative action through reservation, which allows the government to grant reserve if it determines that there is insufficient representation of underrepresented classes in the service based on verifiable statistics.

CONCLUSION & COMMENTS

The most significant fundamental right guaranteed to every person by the Indian Constitution is the right to equality. By elevating particular societal segments or classes, it seeks to accomplish social and economic fairness. Equal opportunity is guaranteed by Article 16 when it comes to hiring or appointment to positions in the government. The drafting committee did, however, substitute several measures for a reservation of government posts for members of the socially and educationally backward classes (SEBC) of society. By bringing them forward and offering them the chance to represent in state jobs, the same aimed to give opportunities to those who have always been in the dark (i.e., the vulnerable sections of society), who had previously been outside the state administration. The Indian Constitution was drafted with consideration for the inequality that existed at the time, which peaked in the 1990s. They saw that the nation was separated into two classes: the rich and the backward, and that these provisions were necessary to bring the two classes together and promote the nation's general development.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. “The Constitution of India”
  2. Online Articles / Sources Referred
    1. https://legislative.gov.in/constitution-of-india/
    2. https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf
    3. https://byjus.com/free-ias-prep/right-to-equality/
    4. https://blog.ipleaders.in/article-16-of-indian-constitution/
    5. https://lawbhoomi.com/equality-of-opportunity-in-matters-of-public-employment-under-article-16/
  3. Cases Referred
    1. Indra Sawhney v. Union of India, AIR 1993 SC 447
    2. Devadasan v. Union of India, (1964) 4 SCR 680
    3. Union of India vs Virpal Singh 1996 AIR 448
    4. Ajeet Singh vs State of Punjab SLP (Crl.) no.147 of 2017)
[1]https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf [2] Substituted by the Constitution 7th Amendment [3] Inserted by the constitution through 77th Amendment [4] Substituted By the Constitution through 85th Amendment [5] Inserted By the Constitution through 81st Amendment [6] Inserted By the Constitution through 103rd Amendment [7] https://www.ncbc.nic.in/Writereaddata/AR%202012-13%20Pandey635705824205955927.pdf [8] Indra Sawhney v. Union of India, AIR 1993 SC 447 [9] Devadasan v. Union of India, (1964) 4 SCR 680 [10] https://blog.ipleaders.in/article-16-of-indian-constitution/ [11]Union of India vs Virpal Singh 1996 AIR 448 [12] Ajeet Singh vs State of Punjab SLP (Crl.) no.147 of 2017) **Content:** **Author-Naman Jain, Galgotias University** ### **INTRODUCTION** All Indian citizens are guaranteed fundamental human rights under Part III of the Indian Constitution, and certain non-citizens are also entitled to these rights. These rights are referred to be “fundamental rights” because they are justified in nature and because anyone who feels that their rights have been violated may file a lawsuit. The United States Bill of Rights served as a major source of inspiration for those who drafted our Constitution, which established India’s fundamental rights. This Article gives the outline for the appointment of employee in public office and the equality of opportunity for them. through this article the employment for general public is given to everyone without any kind of dispute as well as certain exception was also provided which was necessary for the public. The goal of Article 16 of the Indian Constitution is to give all people of the country equal opportunities for employment and official posts. The Article’s first two sentences make it clear that there will be no discrimination against Indian citizens in the workplace. These clauses establish equitable job opportunities by outlawing discrimination on the basis of religion, race, caste, gender, place of birth, or any other criteria. ***Keywords* *(Minimum 5)*: Public Employment, Reservation, Promotion, SCs and STs,** ### **Reservation for EWS** #### **Context of this Articles** *(1) “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”[**\[1\]**](#_ftn1)* *(2) “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”* *(3)” Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office[**\[2\]**](#_ftn2) \[under the Government of, or any local or other authority within a state or Union Territory, any requirement as to residence within that state or Union Territory\] prior to such employment or appointment”* *(4) “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. “[**\[3\]**](#_ftn3)\[(4A) Nothing in this article shall prevent the State from making any provision for reservation [**\[4\]**](#_ftn4)\[in matters of promotion, with consequential seniority, to any class\] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.\]”* *“[**\[5\]**](#_ftn5)\[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.\]”* *(5) “Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”* [***\[6\]***](#_ftn6)*(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointment or post in favour of any economically weaker section of citizen other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of Ten Percent of the post in each Category.* ### **Explanation of Articles** Article 16 (1) The right to equality of opportunity in matters pertaining to public employment is covered by Article 16 of the Indian Constitution. Only citizens of India are officially guaranteed this right. Equality of opportunity is guaranteed in situations pertaining to “appointment” or “employment” to any office under the State by Article 16 (1). It only applies to positions held by or associated with the State or Government. Article 16(2) No citizen shall face discrimination in any employment or office under the State on the grounds of race, caste, gender, place of birth, residence, or descent, Article 16 (3), the Parliament may pass any laws mandating residency in a state or union territory in order to be considered for a specific job or appointment within that state or union territory, as well as in local government or other authorities within it. Article 16 (4) gives the State the authority to pass laws reserving positions in the public sector or jobs for people from underrepresented backgrounds, if the State determines that these groups have not been sufficiently represented in state services. The national government decided that the reservation in the advancement of SCs and STs should not be impacted and should continue, as the Indra Sawhney case exclusively pertains to the backward classes. But in order to allow the Parliament to reserve seats for SCs and STs in promotion positions, the 77th Amendment Act, 1995 was passed, adding clause 4-A to Article 16 of the Constitution. By the 81st Amendment, 2000, Clause (4-B) was inserted to the Indian Constitution under Article 16 in place of Clause (4-A). It was added to the Constitution with the intention that the backlog of open positions that could not be filled in a previous year because there were no eligible candidates from the SEBC category would not be combined with the 50% reservation for SCs, STs, and Other Backward Classes on the total number of openings in the following year. Article 16(5) law is excluded from the application of clauses (1) and (2), which stipulate that the occupant of any position must be qualified for appointment based on religion, under this clause Article 16(6) The 103rd Amendment, 2019, which went into effect on January 14, 2019, added clause (6) to Article 16 and gave the State the authority to reserve some positions for members of the Economically Weaker Sections (EWS) of society when they are appointed to government positions. But these clauses, in addition to the current reservations, have to stay below the 10% cap. ### **Important Committees for this Article** - **Kalelkar Committee** Affirmative action for the “Depressed Classes,” or the Scheduled Castes and Tribes, was implemented after India obtained its independence. This program helped the most marginalized and backward sections of Indian society. Nevertheless, no benefits were provided, nor was there a list of the other backward classes in the nation, which, while not as politically and socially backward as the ST/SCs, were nevertheless marginalized in society and lagged behind forwarding castes in the areas of economic development, employment, and education. In 1953, the nation’s first Backward Classes Commission was established under the leadership of Kaka Kalelkar to solve this issue. The Kalelkar Commission was another name for this. [\[7\]](#_ftn7) “*When the commission submitted its findings in 1955, it said that there were 2399 backward groups in India, of whom 837 were considered to be “most backward,” and that caste was the main indicator of backwardness”*. But the Union Government disregarded them because it wanted to eventually establish a casteless society. But this was Rejected by the Government due to some problems. - **Indra Sawhney[\[8\]](#_ftn8) Case known as Mandal Commission** In the well-known “Mandal Commission case,” Indra Sawhney v. Union of India, AIR 1993 SC 447, the Hon’ble Supreme Court carefully considered the parameters of Article 16(4) in this landmark decision. **The case’s facts were as follows:** - Under Article 340, the government appointed the second backward classes commission on January 1, 1979, with **Sri B.P. Mandal** serving as its chair. This Commission was tasked with looking into the socially and educationally disadvantaged groups living on Indian territory and recommending to the government ways to help them progress, including the need to set aside funds for them to be given preference for positions in state employment. - In December 1980, the Commission published its report, which classified 3743 castes as socially and educationally inferior groups. Additionally, the Commission suggested that the government give these classes a 27% reservation. - In the meantime, the Congress Party took control of the Centre when internal disputes caused the collapse of the Janta Dal Government. It wasn’t until 1989 that the Congress Party carried out the Mandal Commission’s recommendations. After defeating the Congress Party in the legislative elections in 1989, Janta Dal reestablished its hold on power and decided to carry out the Commission’s report’s recommendations as promised to the voters. - Based on the Mandal commission report, the Indian government subsequently issued the Office Memoranda (OM) on August 13, 1990, reserving 27% of seats for members of the underprivileged classes in the State and Government services. Following the nation’s approval of the Mandal Commission Report, there was a violent anti-reservation movement that lasted for about three months and claimed a great deal of lives and property. The Supreme Court Bar Association simultaneously filed a writ petition, arguing that the OM was invalid and requesting a stay of execution. The Five-Judge Bench of the Court halted the OM’s operations until the case’s resolution, which was rendered on October 1, 1990. **Judgement for this Case** - In rulings of 6:3 Justice B.P. Jeevan Reddy, C.J.I. M.H. Kania, M.N. Venkatachalam, A.M. Ahmadi, SR Pandian, and SB Sawant, along with the other members of the Supreme Court’s Constitution Bench, held that the Union Government’s decision to reserve 27% of government jobs for members of the lower classes was constitutionally valid as long as the socially advanced individuals—the creamy layer among them—were removed. - The Supreme Court clarified its position by ruling that seat reservations should be restricted to initial appointments only, not promotions, and that the overall reservation amount should not be more than 50%. The Congress Government’s OM, which reserved 10% of government posts for upper classes that were economically disadvantaged, was overruled by the Court. The majority also concurred that no more than 50% of the reservation should be made. - The scope and extent of Article 16(4) of the Indian Constitution were carefully scrutinized by the Court. It made clear the different points on which earlier courts had disagreed. The majority ruling of the Supreme Court can be summed up as follows: 1. Caste is not the only factor to be taken into account when identifying a backward class of individuals, as stated in Article 16 Clause 4; nonetheless, caste cannot be the exclusive foundation for consideration. 2. According to the majority, Article 16(4) of the Constitution is an independent clause rather than an exception to Article 16(1). Instead, similar to the Doctrine of Equality stated under Article 14, reservations may be made under clause (1) of Article 16 on the basis of reasonable classification. 3. It is necessary to remove the creamy layer from the lower grades. 4. It was found that the backward classes may be categorized as “backward and more backward” under Article 16(4) of the Constitution. The argument went on to say that classifying citizens as backward only on the basis of their economic status would undermine the very goal of Article 16(4), which is to give underrepresented groups adequate representation in state services to alleviate or elevate them as well as to give those who have been excluded from state power due to social, educational, and economic backwardness their rightful share. 5. Backward class reservations cannot be made for more than 50% of the total. 6. A provision enacted pursuant to Article 16(4) may only be implemented by executive order, subject to parliamentary approval. 7. Not to be reserved for promotions. 8. The Union government, State governments, and Union territories have appointed a permanent statutory committee to look into complaints regarding the inclusion or exclusion of certain groups, sectors, and classes from the list of other backward classes. 9. About the Mandal Commission Report, no viewpoint was voiced. 10. Rule laid down in this Article 11. Carry forward Rule In [\[9\]](#_ftn9)“**T. Devadasan v. Union of India**” the Supreme Court examined the application of Article 16(4) (1964). In this instance, the question was whether the government’s “carry forward rule,” which governed the appointment of members of the underprivileged classes to positions involving state services, was constitutionally valid. According to this rule, any unfilled positions would be considered unreserved and would be filled by newly available candidates if a sufficient number of candidates from the SC and ST classes were not available for appointment to the reserved quota. In addition to their reserved quota for the following year, a corresponding number of posts would be reserved for SCs and STs in the following year. As a result, the unused balance and open positions from the second and third years were carried over all at once. In reality, SCs and STs were allocated 68% of the available positions. The carry forward rule was declared unconstitutional by the Honourable Supreme Court, which ruled 4:1 that the government could not use its authority under Article 16(4) to deny members of classes other than the backward classes a reasonable opportunity in matters of public employment. *“The Hon’ble Supreme Court, in Indra Sawhney v. Union of India, overruled Devadasan v. Union of India on the point and held the “carry forward rule” valid as long as it did not, in a particular year, exceed 50 percent of vacancies.”* - **Catch Up Rule** [\[10\]](#_ftn10)Following the constitutional recognition of reservation in promotion, the reserved category candidates who were promoted ahead of their general class counterparts became their seniors due to their earlier promotion. The Hon’ble Supreme Court addressed this anomaly by introducing the concept of a catch-up rule in two cases: [\[11\]](#_ftn11)Union of India v. Virpal Singh (1995) and [\[12\]](#_ftn12)Ajit Singh v. State of Punjab (1996). According to this rule, the senior general category candidates who were promoted after SC/ST candidates would regain their seniority over general category candidates who were promoted earlier. Candidates in the reserved category can keep their seniority over their counterparts in the general category through consequential seniority. To put it another way, the State may stipulate that a candidate who was promoted ahead of time due to the reservation rule will not be entitled to seniority over his senior in the general category and that a general candidate who was promoted ahead of him will regain his seniority over the reserved candidate even if he is promoted later to the reserved candidate. The ideas of consequential seniority and the catch-up rule are neither implicit in Article 16 clauses (1) and (4), nor are they constitutional constraints. Neither are they constitutional requirements. Articles 14, 15, and 16 of the Constitution establish an equality law that remains unchanged even if these regulations are eliminated. Article 16’s clause (1) cannot stop the state from considering the compelling interests of the socially excluded. Article 16’s clause (4) relates to affirmative action through reservation, which allows the government to grant reserve if it determines that there is insufficient representation of underrepresented classes in the service based on verifiable statistics. ### **CONCLUSION & COMMENTS** The most significant fundamental right guaranteed to every person by the Indian Constitution is the right to equality. By elevating particular societal segments or classes, it seeks to accomplish social and economic fairness. Equal opportunity is guaranteed by Article 16 when it comes to hiring or appointment to positions in the government. The drafting committee did, however, substitute several measures for a reservation of government posts for members of the socially and educationally backward classes (SEBC) of society. By bringing them forward and offering them the chance to represent in state jobs, the same aimed to give opportunities to those who have always been in the dark (i.e., the vulnerable sections of society), who had previously been outside the state administration. The Indian Constitution was drafted with consideration for the inequality that existed at the time, which peaked in the 1990s. They saw that the nation was separated into two classes: the rich and the backward, and that these provisions were necessary to bring the two classes together and promote the nation’s general development. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. “The Constitution of India” 2. **Online Articles / Sources Referred** 1. 2. [https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution\_of\_india.pdf](https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf) 3. 4. 5. https://lawbhoomi.com/equality-of-opportunity-in-matters-of-public-employment-under-article-16/ 3. **Cases Referred** 1. Indra Sawhney v. Union of India, AIR 1993 SC 447 2. Devadasan v. Union of India, (1964) 4 SCR 680 3. Union of India vs Virpal Singh 1996 AIR 448 4. Ajeet Singh vs State of Punjab SLP (Crl.) no.147 of 2017) [\[1\]](#_ftnref1)[https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution\_of\_india.pdf](https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf) [\[2\]](#_ftnref2) Substituted by the Constitution 7th Amendment [\[3\]](#_ftnref3) Inserted by the constitution through 77th Amendment [\[4\]](#_ftnref4) Substituted By the Constitution through 85th Amendment [\[5\]](#_ftnref5) Inserted By the Constitution through 81st Amendment [\[6\]](#_ftnref6) Inserted By the Constitution through 103rd Amendment [\[7\]](#_ftnref7) [\[8\]](#_ftnref8) Indra Sawhney v. Union of India, AIR 1993 SC 447 [\[9\]](#_ftnref9) Devadasan v. Union of India, (1964) 4 SCR 680 [\[10\]](#_ftnref10) [\[11\]](#_ftnref11)Union of India vs Virpal Singh 1996 AIR 448 [\[12\]](#_ftnref12) Ajeet Singh vs State of Punjab SLP (Crl.) no.147 of 2017) **Categories:** Articles --- ### [Right to Trade, Commerce and Intercourse under Indian constitution - Article 19(1)(g) and Article 301](https://lawfoyer.in/right-to-trade-commerce-and-intercourse-under-indian-constitution-article-191g-and-article-301/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Posa Venkata Bhavya, Sri Padmavati Mahila Visva Vidyalayam

INTRODUCTION

The Indian constitution, through Article 19(1)(g) and Article 301, establishes the rights related to trade, commerce, and intercourse. These rights allow individuals to engage in business and professions of their choice, while also emphasizing the need to adhere to certain restrictions for the overall well-being and balance of these rights. The right to practice a profession is a fundamental right in the Indian constitution. It is important to ensure that those who have the qualifications and capabilities for a job are able to pursue it without being forced out. This is protected by Article 19(1)(g) of the constitution. Additionally, articles 301-307 address the freedom of trade, commerce, and intercourse and any restrictions related to these rights in the constitution of India. Keywords (Minimum 5): Trade, Commerce, Intercourse, Occupation, Fundamental right and Constitution of India.

Meaning, Definition & Explanation :-

Trade :- Trade involves the exchange of goods for profit, and according to Article 301, it includes any economic activity with a specific purpose and motive. It also requires a balance between exports and imports in a country. Commerce :- The commerce encompasses all modes of transporting goods on a large scale, including air, water, telephone, telegram, and other means. It involves the transportation and communication between individuals, businesses, and nations. Intercourse :- This refers to the movement of goods from one place to another, both commercially and non-commercially. It also involves the exchange and communication between individuals, often described as mutual dealings.

Historical Background :-

Trade and commerce in a country depend largely on geographical and environmental factors. In India, the rich resources, cultural diversity, and strategic location have made it a prominent player in trade throughout history. The trade routes connecting the west and east have enabled India to establish good relations along the Silk Routes. India's strong economy was evident even before the British era, with trade coins and products being exported globally. The Mauryan era saw development in infrastructure, such as road building and warehouses, which provided security to traders. During the Delhi Sultan period, India further expanded its international trade relations, enhancing social and economic connectivity. Agriculture has long been the backbone of India, with the development of crops like maize and tobacco leading to advancements such as mulberries and seri-culture. India's agriculture was more advanced than Europe's, and industrial development began with spinning, weaving, and manufacturing companies in Bombay exporting cotton and silk to large markets in America, Africa, Asia, and Europe in the 1750s. India's economic growth expanded through trade and commerce, with exports of precious stones, handmade products, and agricultural goods showcasing the country's trustworthiness, resourcefulness, integrity, and unique products that attracted traders from around the world. This led to a significant increase in India's growth. After the East India company established itself in India, the British controlled 2/3 of the country while the remaining 1/3 was ruled by native states through Princesses. Many states had varying degrees of sovereignty but within limits. The main purpose of Article 301 was to eliminate trade barriers and promote the flow of commerce. Between 1947 and 1950, the Princess states were merged and integrated, removing trade barriers across India. Under British rule, Indian markets shifted towards importing goods rather than exporting. India was known for its handmade products and natural resources before the British brought cheap, mass-produced items that quickly found favor with customers. Instead of continuing to take longer to produce the same products by hand, British cheap products began outpacing Indian products. To combat this, India initiated various movements to promote their own products and textiles and to deter the use of British and foreign products. The goal was to increase domestic trade and promote self-sufficiency in India. Additionally, in the 19th century, industries such as iron, steel, paper, and publication saw significant development in India with the implementation of industrial methods.

Articles on Trade, Commerce and Intercourse:-

Article (19)(1)(g) of the Indian Constitution is a fundamental right that outlines the rights of individuals, including the right to choose any profession or occupation. It is important to note that while this right exists, there are certain restrictions that must be followed. These restrictions should not be random or against the public interest; rather, they should support social values and needs. The freedom to engage in trade is not just about conducting business but also about safeguarding the interests of those involved in the business, as long as it is lawful and does not infringe upon the rights of others. Only citizens have the right to practice any occupation, trade, or business of their choice, as foreign companies do not possess this fundamental right. Citizens can seek legal recourse under Article 19(1)(g) of the Indian constitution if their profession is impeded. Economic unity and stability are vital for a nation's advancement, with free movement and absence of trade barriers elevating the economic standards. Case law :- TMA Pai Foundation Vs. State of Karnataka The case revolves around the right of private educational institutions to independently govern themselves without government interference in their rules, fees, administration, and staff selection. The institutions argue they have established their own self-governing bodies rather than following government directives to uphold their rights under the constitution. The opposing party believes the government should have a say in the operations of educational institutions to ensure fair and ethical management practices that uphold the integrity of the institutions. While private educational institutions may excel in technology, academic standards, innovation, and creativity, it is still necessary for them to adhere to government guidelines. The court emphasized the importance of transparent and merit-based admission criteria, fair fees structure, and the merit-based selection of staff. Educational institutions must also maintain accountability, fairness, and follow regulations to ensure a standardized and regulated system, despite having their own unique approach to teaching. Sukumar Mukherjee vs. state of West Bengal :- In this scenario, teachers employed in the West Bengal medical educational service were not allowed to practice privately. The restriction applied to teacher doctors specifically and not all doctors. Government employees were prohibited from engaging in private practice until they no longer held their government position, whether through suspension or retirement. This rule was in place to ensure that government employees followed the regulations and guidelines set forth by the government, requiring them to focus solely on their government role without engaging in outside work. Article 301 of the Constitution:- Article 301 of India's constitution guarantees freedom of trade, commerce, and communication within the country. This article can be utilized by citizens, non-citizens, or states in cases of discrimination or preference. All states in India should be considered as one when it comes to economic activities to benefit the country's economy. Each state should have equal rights, privileges, and responsibilities when conducting business in India. Additionally, Article 301 includes restrictions to protect public safety and the dignity of the country. This text discusses the importance of Article 301, which ensures the free movement of goods. It specifies that this article cannot be contested in relation to traffic regulations, vehicle licensing, marketing and health regulations, minimum wages, social and economic planning, or admission into educational institutions. Article 301 is a constitutional right that applies to the entire country, unlike Article 19(1)(g), which is a fundamental right specific to individual persons. Case law :- Atiabari Tea Co. Vs State of Assam The tea was taken to Calcutta via the Assam route where the Assam people imposed a tax on the transportation which hindered the free movement of goods, violating Article 301. Therefore, the tax imposed by the Assam people for allowing the goods to reach Calcutta was considered null and void. B.R. Enterprises Vs State of Uttar Pradesh The petitioner argued that the lotteries regulation act 1998, enacted by Uttar Pradesh, contravened Articles 301, 302, and 303 of the Indian Constitution. However, the Supreme Court stated that lotteries are akin to gambling and not a legitimate business based on effort and hard work. Therefore, Uttar Pradesh did not infringe on Article 301 of the Indian constitution. Article 301 of the Constitution outlines three main rules:
  1. The promotion of free trade, commerce, and communication within and between states is essential.
  2. Regional interests cannot be overlooked.
  3. The Union has the power to intervene in cases of crisis that may arise in any part of India.
It should be noted that while freedom of trade is important, there are restrictions and regulations in place. For example, when transporting goods on roads or bridges, additional fees may be required at checkpoints along the way. CONCLUSION & COMMENTS :- Trade and commerce have been prevalent in India since ancient times, starting from the Mauryan era, through the British era, and into the present day. Article 301 emphasizes the importance of free movement of trade without any barriers, aiming to unite India's many states into a cohesive national economy. Article 19(1)(g) grants individuals the freedom to choose their occupation, trade, and business. However, this right is subject to certain restrictions that are in place to ensure public safety and protect everyone's rights. If there are any disputes regarding the violation of this right in business or trade, individuals can seek remedy under Article 32 for violation of fundamental rights under Article 19(1)(g). On the other hand, Article 301 does not allow for a writ petition. The restrictions outlined in Article 19(1)(g) are covered under Article 19(6) of the Indian constitution, while those in Article 301 fall under Article 302-307.
  1. Books / Commentaries:-
  • The Constitution of India - D.J.DE ( Volume 1and 3)
  • The Constitution of India - MJL's volume 3
  • The Constitutional Law of India - H.M. Seervai.
  1. Online Articles / Sources Referred
    1. https://interstatecouncil.gov.in/wp-content/uploads/2015/06/CHAPTERXVIII.pdf
    2. https://www.centurylawfirm.in/blog/freedom-of-trade-commerce-and-intercourse-under-the-indian-constitution-1950/
    3. https://blog.ipleaders.in/freedom-trade-commerce-intercourse-articles-301-307-indian-constitution/
    4. https://www.legalserviceindia.com/legal/article-12002-trade-commerce-and-intercourse-arts-301-305-.html
    5. https://unacademy.com/content/upsc/study-material/polity/all-about-inter-state-trade-and-commerce/
    6. https://www.clearias.com/inter-state-trade-and-commerce/
  1. Cases Referred
  •  TMA Pai Foundation Vs State of Karnataka
  •  Sukumar Mukherjee versus state of West Bengal
  •  Atiabari Tea Co. Vs State of Assam
  •  B.R. Enterprises Vs State of Uttar Pradesh
  •  State of Bombay Vs R.M.D. Chamarbaugwalla
  1. Statutes Referred
    1. The Constitution of India
**Content:** **Author-Posa Venkata Bhavya, Sri Padmavati Mahila Visva Vidyalayam** ### **INTRODUCTION** The Indian constitution, through Article 19(1)(g) and Article 301, establishes the rights related to trade, commerce, and intercourse. These rights allow individuals to engage in business and professions of their choice, while also emphasizing the need to adhere to certain restrictions for the overall well-being and balance of these rights. The right to practice a profession is a fundamental right in the Indian constitution. It is important to ensure that those who have the qualifications and capabilities for a job are able to pursue it without being forced out. This is protected by Article 19(1)(g) of the constitution. Additionally, articles 301-307 address the freedom of trade, commerce, and intercourse and any restrictions related to these rights in the constitution of India. ***Keywords* *(Minimum 5)*: Trade, Commerce, Intercourse, Occupation, Fundamental right and Constitution of India.** ### **Meaning, Definition & Explanation :-** **Trade :-** Trade involves the exchange of goods for profit, and according to Article 301, it includes any economic activity with a specific purpose and motive. It also requires a balance between exports and imports in a country. **Commerce :-** The commerce encompasses all modes of transporting goods on a large scale, including air, water, telephone, telegram, and other means. It involves the transportation and communication between individuals, businesses, and nations. **Intercourse :-** This refers to the movement of goods from one place to another, both commercially and non-commercially. It also involves the exchange and communication between individuals, often described as mutual dealings. ### **Historical Background :-** Trade and commerce in a country depend largely on geographical and environmental factors. In India, the rich resources, cultural diversity, and strategic location have made it a prominent player in trade throughout history. The trade routes connecting the west and east have enabled India to establish good relations along the Silk Routes. India’s strong economy was evident even before the British era, with trade coins and products being exported globally. The Mauryan era saw development in infrastructure, such as road building and warehouses, which provided security to traders. During the Delhi Sultan period, India further expanded its international trade relations, enhancing social and economic connectivity. Agriculture has long been the backbone of India, with the development of crops like maize and tobacco leading to advancements such as mulberries and seri-culture. India’s agriculture was more advanced than Europe’s, and industrial development began with spinning, weaving, and manufacturing companies in Bombay exporting cotton and silk to large markets in America, Africa, Asia, and Europe in the 1750s. India’s economic growth expanded through trade and commerce, with exports of precious stones, handmade products, and agricultural goods showcasing the country’s trustworthiness, resourcefulness, integrity, and unique products that attracted traders from around the world. This led to a significant increase in India’s growth. After the East India company established itself in India, the British controlled 2/3 of the country while the remaining 1/3 was ruled by native states through Princesses. Many states had varying degrees of sovereignty but within limits. The main purpose of Article 301 was to eliminate trade barriers and promote the flow of commerce. Between 1947 and 1950, the Princess states were merged and integrated, removing trade barriers across India. Under British rule, Indian markets shifted towards importing goods rather than exporting. India was known for its handmade products and natural resources before the British brought cheap, mass-produced items that quickly found favor with customers. Instead of continuing to take longer to produce the same products by hand, British cheap products began outpacing Indian products. To combat this, India initiated various movements to promote their own products and textiles and to deter the use of British and foreign products. The goal was to increase domestic trade and promote self-sufficiency in India. Additionally, in the 19th century, industries such as iron, steel, paper, and publication saw significant development in India with the implementation of industrial methods. ### **Articles on Trade, Commerce and Intercourse:-** Article (19)(1)(g) of the Indian Constitution is a fundamental right that outlines the rights of individuals, including the right to choose any profession or occupation. It is important to note that while this right exists, there are certain restrictions that must be followed. These restrictions should not be random or against the public interest; rather, they should support social values and needs. The freedom to engage in trade is not just about conducting business but also about safeguarding the interests of those involved in the business, as long as it is lawful and does not infringe upon the rights of others. Only citizens have the right to practice any occupation, trade, or business of their choice, as foreign companies do not possess this fundamental right. Citizens can seek legal recourse under Article 19(1)(g) of the Indian constitution if their profession is impeded. Economic unity and stability are vital for a nation’s advancement, with free movement and absence of trade barriers elevating the economic standards. **Case law :- TMA Pai Foundation Vs. State of Karnataka** The case revolves around the right of private educational institutions to independently govern themselves without government interference in their rules, fees, administration, and staff selection. The institutions argue they have established their own self-governing bodies rather than following government directives to uphold their rights under the constitution. The opposing party believes the government should have a say in the operations of educational institutions to ensure fair and ethical management practices that uphold the integrity of the institutions. While private educational institutions may excel in technology, academic standards, innovation, and creativity, it is still necessary for them to adhere to government guidelines. The court emphasized the importance of transparent and merit-based admission criteria, fair fees structure, and the merit-based selection of staff. Educational institutions must also maintain accountability, fairness, and follow regulations to ensure a standardized and regulated system, despite having their own unique approach to teaching. **Sukumar Mukherjee vs. state of West Bengal :-** In this scenario, teachers employed in the West Bengal medical educational service were not allowed to practice privately. The restriction applied to teacher doctors specifically and not all doctors. Government employees were prohibited from engaging in private practice until they no longer held their government position, whether through suspension or retirement. This rule was in place to ensure that government employees followed the regulations and guidelines set forth by the government, requiring them to focus solely on their government role without engaging in outside work. **Article 301 of the Constitution:-** Article 301 of India’s constitution guarantees freedom of trade, commerce, and communication within the country. This article can be utilized by citizens, non-citizens, or states in cases of discrimination or preference. All states in India should be considered as one when it comes to economic activities to benefit the country’s economy. Each state should have equal rights, privileges, and responsibilities when conducting business in India. Additionally, Article 301 includes restrictions to protect public safety and the dignity of the country. This text discusses the importance of Article 301, which ensures the free movement of goods. It specifies that this article cannot be contested in relation to traffic regulations, vehicle licensing, marketing and health regulations, minimum wages, social and economic planning, or admission into educational institutions. Article 301 is a constitutional right that applies to the entire country, unlike Article 19(1)(g), which is a fundamental right specific to individual persons. **Case law :- Atiabari Tea Co. Vs State of Assam** The tea was taken to Calcutta via the Assam route where the Assam people imposed a tax on the transportation which hindered the free movement of goods, violating Article 301. Therefore, the tax imposed by the Assam people for allowing the goods to reach Calcutta was considered null and void. **B.R. Enterprises Vs State of Uttar Pradesh** The petitioner argued that the lotteries regulation act 1998, enacted by Uttar Pradesh, contravened Articles 301, 302, and 303 of the Indian Constitution. However, the Supreme Court stated that lotteries are akin to gambling and not a legitimate business based on effort and hard work. Therefore, Uttar Pradesh did not infringe on Article 301 of the Indian constitution. **Article 301 of the Constitution outlines three main rules:** 1. The promotion of free trade, commerce, and communication within and between states is essential. 2. Regional interests cannot be overlooked. 3. The Union has the power to intervene in cases of crisis that may arise in any part of India. It should be noted that while freedom of trade is important, there are restrictions and regulations in place. For example, when transporting goods on roads or bridges, additional fees may be required at checkpoints along the way. **CONCLUSION & COMMENTS :-** Trade and commerce have been prevalent in India since ancient times, starting from the Mauryan era, through the British era, and into the present day. Article 301 emphasizes the importance of free movement of trade without any barriers, aiming to unite India’s many states into a cohesive national economy. Article 19(1)(g) grants individuals the freedom to choose their occupation, trade, and business. However, this right is subject to certain restrictions that are in place to ensure public safety and protect everyone’s rights. If there are any disputes regarding the violation of this right in business or trade, individuals can seek remedy under Article 32 for violation of fundamental rights under Article 19(1)(g). On the other hand, Article 301 does not allow for a writ petition. The restrictions outlined in Article 19(1)(g) are covered under Article 19(6) of the Indian constitution, while those in Article 301 fall under Article 302-307. 1. **Books / Commentaries:-** - The Constitution of India – D.J.DE ( Volume 1and 3) - The Constitution of India – MJL’s volume 3 - The Constitutional Law of India – H.M. Seervai. 2. **Online Articles / Sources Referred** 1. https://interstatecouncil.gov.in/wp-content/uploads/2015/06/CHAPTERXVIII.pdf 2. https://www.centurylawfirm.in/blog/freedom-of-trade-commerce-and-intercourse-under-the-indian-constitution-1950/ 3. https://blog.ipleaders.in/freedom-trade-commerce-intercourse-articles-301-307-indian-constitution/ 4. https://www.legalserviceindia.com/legal/article-12002-trade-commerce-and-intercourse-arts-301-305-.html 5. https://unacademy.com/content/upsc/study-material/polity/all-about-inter-state-trade-and-commerce/ 6. https://www.clearias.com/inter-state-trade-and-commerce/ 3. **Cases Referred** - TMA Pai Foundation Vs State of Karnataka - Sukumar Mukherjee versus state of West Bengal - Atiabari Tea Co. Vs State of Assam - B.R. Enterprises Vs State of Uttar Pradesh - State of Bombay Vs R.M.D. Chamarbaugwalla 4. **Statutes Referred** 1. The Constitution of India **Categories:** Articles --- ### [RAPE](https://lawfoyer.in/rape/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Vartika Tripathi, Amity University, Lucknow

ABSTRACT

We have come a long way with are achivements building technology , reaching to moon and many more but still failing at the  safety of our women and providing them a free and safe environment .  you can add many reasons when you hear about a rape on news channels through social media , newspapers  and people around you ( society  can add many reasons for a rape attempted against a women may be “ she was wearing a short dresses” or “going late at night” but what would be the answer for a rape against a 6 months old child , a 6 year old girl going to school, a 12 year old girl being at her home  , a women going to a movie with her boyfriend and  a 75 year old lady being at her home , and sometimes it can be your family member  and just day before I am writing this heard about a gangrape against a women who came to see a different country and explore but later the trip made everything go change . Rape is the most comman  and heinous crime perpetuated  against a women  . The national crime records bureau (NCRB) reports shows  that a women is raped in every 16 minutes  the cases get increased by 4 % every year  32,033  rapes cases were registered across the country and  an average of 88 cases daily are being registered  . These are just the number , there are many cases which doesn’t come into light . Keywords – rape , criminal law , psychological effects , reasons etc .

INTRODUCTION

RAPE – ITS MEANING- “ as per Section 375 in The Indian Penal Code, 1860 defines rape as that if a  man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b)inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c)manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d)applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,under the circumstances falling under any of the following seven descriptions:— (First.)— Against her will. (Secondly.) — Without her consent. (Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly.) — With or without her consent, when she is under eighteen years of age. (Seventhly.) — When she is unable to communicate consent. Explanation 1.— For the purposes of this section, "vagina" shall also include labia majora Explanation 2.— Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.— A medical procedure or intervention shall not constitute rape. Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

 BHANWARI DEVI CASE 1992

According to Bhanwari Devi, at 6 pm on 22 September 1992, while she and her husband were working in their field, five men of her village attacked her husband Mohan Lal, leaving him unconscious. The five men whom she named were: Ram Karan, Ram Sukh, Gyarsa, Badri and Shravan Sharma. When she came to her husband's rescue, she said, Gyarsa and Badri raped her, while the other three pinned her down on the ground. Bhanwari reported the incident to Rasila Sharma, the pracheta (block-level worker), who took her to the Bassi police station to lodge a First Information Report (FIR). The FIR was lodged after surmounting police scepticism and indifference, a phenomenon several rape complainants have faced in the Indian context.

 JUGDEMENT

Five judges were changed, and it was the sixth judge who ruled that the accused were not guilty, stating inter alia that Bhanwari's husband couldn't have passively watched his wife being gang-raped. The judge infamously stated, “Since the offenders were upper-caste men and included a brahmin, the rape could not have taken place because Bhanwari was from a lower caste.” A state MLA organised a victory rally in the state capital Jaipur for the five accused declared not guilty, and the women's wing of his political party attended the rally to call Bhanwari a liar.The State Government decided to appeal against the judgment. The judgement led to a nationwide campaign for justice for Bhanwari Devi. However, by 2007, 15 years after the incident, the Rajasthan High Court held only one hearing on the case and two of the accused were dead.

THE NIRBHAYA CASE

A  23-year-old medical student was returning after a movie with her friend and took a bus. On the bus, she was gang-raped by six people and was brutally assaulted. After the rape, she along with her friend were thrown out of the bus naked. The girl died later . Judgment In this case, the Supreme The court awarded death penalty to four of the accused among six. One of them being a juvenile was convicted by the Juvenile Justice Board and sent to the correctional home. The other one committed suicide before the judgment was delivered. After this case, the need to amend certain provisions of Section 375 was felt so the Criminal Law (Amendment) Act, 2013 was brought into effect. Under the newly amended section, the punishment of rape is at least seven years which may extend to life imprisonment. Any man who is a police officer, medical officer, public officer, or public servant may be imprisoned for at least 10 years if commits rape. Where rape leads to the death of the victim or entered into a vegetative state the punishment of life imprisonment extending to death has been prescribed. The punishment for gang rape is at least 10 years.

THE KATHUA  RAPE CASE 2018

6 of the 7 men accused in the 2018 rape and murder of an 8-year-old girl in Kathua, J&K were convicted by a special court in Pathankot, Punjab.  The case involves an 8-year-old girl from Kathua, J&K who was abducted, drugged, raped and killed. Notably, the deceased is a Muslim girl and the accused are Hindus, which has made it an issue of communal politics. The formation of a group called the Hindu Ekta Manch in support of those arrested added to this. Also, the role played by members of the Bharatiya Janata Party, including two Ministers in the then J&K government, had added to the communal politics. The case was thus transferred from J&K to Punjab by the Supreme Court for a fair trial. JUDGEMENT Six of the seven men accused in the case were convicted. Three of the men got life term, and the other three got five-year imprisonment. The court sentenced to life imprisonment  the mastermind, Sanji Ram, a retired government official and priest of the temple where the crime took place ii. special police officer Deepak Khajuria iii. Ram’s nephew Parvesh Kumar Special Police Officer (SPO) Surender Verma, head constable Tilak Raj, and sub-inspector Anand Dutta were awarded 5 years in prison for destroying evidence. The court acquitted the seventh accused, Vishal  son of Sanji Ram, giving him the “benefit of doubt”. The crime branch filed the charge sheet against 8 persons, including a 'juvenile'. While the time , place , and age of the victims vary across these three cases one thing remains constant that is the act of rape and the perpetrators mindset . A sexual assaulter can be any kind of person . There isn’t one specific type who commits such kinds of crime . These men have diverse backgrounds , social status , different personalities and mentalities. What can actually be the motive behind them engaging in these kinds of act is the question which can't be answered easily.

Punishments according to law

Indian penal code section 376 (1) states about the punishment for rape “Indian penal code section 376 (2) states that if the persons in authority commit rape, they will also be liable to the same punishment. Indian penal code section 376 (3) states that if any person rapes a woman under the age of 16 years , he will be liable to be punished for twenty years, which may extend to Life Imprisonment” But as far as I see I observe few points which can be reasons
  • Lack of education ( the basic learning of morals , values and ethics )
  • A lack of empathy
  • Toxic masculinity (patriarchal conceptions of men control over women bodies )
  • Hostility towards women ( seeing women as sex object )
  • Sexual trauma
  • Westernizations
  • Society environment
  • Sex education
  • Gender gap ( in india if a women sits with a boy or if they sit together it is perceived in a inappropriate way and the intention of it is misjudged )
  • Misperceptions about women (“if she is wearing a short dress then definitely that means she wants sex”) but one similar view can also be like that if the women is walking alone at night , going to pubs getting drunk can be triggering point and a provoking step )
But then what about a rape against a 6 month old newborn ? does even clothes matter .
  • Attitudes towards law – the increase in the rape and crime against women the law against the culprits comes with several loop holes the court takes years to decide the punishment for a rapist which is evident
The change of escaping from the crime is high .this motivates them to do the crime.

The psychological aspects a women survivor faces

In Most of the cases the rapist makes sures that the women does not stay alive they make her condition worst as they can but if my luck she survives it gives her . A life time trauma, low self esteem , suicidal thoughts , self blame ,hatred etc.

Conclusion

There is a thought which prevails in the society that is “ I am powerful so I am right”. Which comes from the patriarchal society and still is prevailing . This toxic masculinity harms men , men and women are only different in terms of there physical and biological behavaiours The ability to love ,care be responsible is same We always feel that toxic masculinity only harms a women but greatly  it harms and affects  the man . Hence toxic masculinity which is in today’s  generation  being glamorised can be a main reason towards the growing rates of crime “Power benefits but humanity  loses” Once in a interview , activist kamla bhasin said “when she got raped ,people said I lost my honour .. but how did I lose my honour ? my honour is not my vagina .. which makes me think that How come this society sets parameter that if a girl is being raped her identity is lost , and that rape will define the honour of the community . It’s the rapist who’s indentity gets lost and his honour . The courts and laws need to get more strict and provide death sentence to such convicts in order to make the graph go down . the task of law agencies should get more responsible The legislature has to make any and every amendments if the rape laws are to be any deternce . Women have to be more strong and responsible,have to come forward and fight The education of both men and women get more and more to understand the both good and bad and what is actually right and wrong . “ tell your story to someone or to yourself. The more you tell it the less pain you feel”

References

**Content:** **Author-Vartika Tripathi, Amity University, Lucknow** ### ABSTRACT We have come a long way with are achivements building technology , reaching to moon and many more but still failing at the safety of our women and providing them a free and safe environment . you can add many reasons when you hear about a rape on news channels through social media , newspapers and people around you ( society can add many reasons for a rape attempted against a women may be “ she was wearing a short dresses” or “going late at night” but what would be the answer for a rape against a 6 months old child , a 6 year old girl going to school, a 12 year old girl being at her home , a women going to a movie with her boyfriend and a 75 year old lady being at her home , and sometimes it can be your family member and just day before I am writing this heard about a gangrape against a women who came to see a different country and explore but later the trip made everything go change . Rape is the most comman and heinous crime perpetuated against a women . The national crime records bureau (NCRB) reports shows that a women is raped in every 16 minutes the cases get increased by 4 % every year 32,033 rapes cases were registered across the country and an average of 88 cases daily are being registered . These are just the number , there are many cases which doesn’t come into light . **Keywords –** *rape , criminal law , psychological effects , reasons etc .* ### INTRODUCTION **RAPE** – ITS MEANING- “ as per Section 375 in The Indian Penal Code, 1860 defines rape as that if a man is said to commit “rape” if he— [(a)](https://indiankanoon.org/doc/31616571/) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or [(b)](https://indiankanoon.org/doc/32890307/)inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or [(c)](https://indiankanoon.org/doc/32992331/)manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or [(d)](https://indiankanoon.org/doc/7199582/)applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,under the circumstances falling under any of the following seven descriptions:— (First.)— Against her will. (Secondly.) — Without her consent. (Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly.) — With or without her consent, when she is under eighteen years of age. (Seventhly.) — When she is unable to communicate consent. Explanation 1.— For the purposes of this section, “vagina” shall also include labia majora Explanation 2.— Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.— A medical procedure or intervention shall not constitute rape. Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” #### **BHANWARI DEVI CASE 1992** According to Bhanwari Devi, at 6 pm on 22 September 1992, while she and her husband were working in their field, five men of her village attacked her husband Mohan Lal, leaving him unconscious. The five men whom she named were: Ram Karan, Ram Sukh, Gyarsa, Badri and Shravan Sharma. When she came to her husband’s rescue, she said, Gyarsa and Badri raped her, while the other three pinned her down on the ground. Bhanwari reported the incident to Rasila Sharma, the pracheta (block-level worker), who took her to the Bassi police station to lodge a [First Information Report](http://en.wikipedia.org/wiki/First_Information_Report) (FIR). The FIR was lodged after surmounting police scepticism and indifference, a phenomenon several rape complainants have faced in the Indian context. ### JUGDEMENT Five judges were changed, and it was the sixth judge who ruled that the accused were not guilty, stating inter alia that Bhanwari’s husband couldn’t have passively watched his wife being gang-raped. The judge infamously stated, “Since the offenders were upper-caste men and included a brahmin, the rape could not have taken place because Bhanwari was from a lower caste.” A state [MLA](http://en.wikipedia.org/wiki/Member_of_the_Legislative_Assembly_%28India%29) organised a victory rally in the state capital [Jaipur](http://en.wikipedia.org/wiki/Jaipur) for the five accused declared not guilty, and the women’s wing of his political party attended the rally to call Bhanwari a liar.The State Government decided to appeal against the judgment. The judgement led to a nationwide campaign for justice for Bhanwari Devi. However, by 2007, 15 years after the incident, the Rajasthan High Court held only one hearing on the case and two of the accused were dead. #### **THE NIRBHAYA CASE** A 23-year-old medical student was returning after a movie with her friend and took a bus. On the bus, she was gang-raped by six people and was brutally assaulted. After the rape, she along with her friend were thrown out of the bus naked. The girl died later . **Judgment** In this case, the Supreme The court awarded death penalty to four of the accused among six. One of them being a juvenile was convicted by the Juvenile Justice Board and sent to the correctional home. The other one committed suicide before the judgment was delivered. After this case, the need to amend certain provisions of Section 375 was felt so the Criminal Law (Amendment) Act, 2013 was brought into effect. Under the newly amended section, the punishment of rape is at least seven years which may extend to life imprisonment. Any man who is a police officer, medical officer, public officer, or public servant may be imprisoned for at least 10 years if commits rape. Where rape leads to the death of the victim or entered into a vegetative state the punishment of life imprisonment extending to death has been prescribed. The punishment for gang rape is at least 10 years. #### **THE KATHUA RAPE CASE 2018** 6 of the 7 men accused in the 2018 rape and murder of an 8-year-old girl in Kathua, J&K were convicted by a special court in Pathankot, Punjab. The case involves an 8-year-old girl from Kathua, J&K who was abducted, drugged, raped and killed. Notably, the deceased is a Muslim girl and the accused are Hindus, which has made it an issue of communal politics. The formation of a group called the Hindu Ekta Manch in support of those arrested added to this. Also, the role played by members of the Bharatiya Janata Party, including two Ministers in the then J&K government, had added to the communal politics. The case was thus transferred from J&K to Punjab by the Supreme Court for a fair trial. **JUDGEMENT** Six of the seven men accused in the case were convicted. Three of the men got life term, and the other three got five-year imprisonment. The court sentenced to life imprisonment the mastermind, Sanji Ram, a retired government official and priest of the temple where the crime took place ii. special police officer Deepak Khajuria iii. Ram’s nephew Parvesh Kumar Special Police Officer (SPO) Surender Verma, head constable Tilak Raj, and sub-inspector Anand Dutta were awarded 5 years in prison for destroying evidence. The court acquitted the seventh accused, Vishal son of Sanji Ram, giving him the “benefit of doubt”. The crime branch filed the charge sheet against 8 persons, including a ‘juvenile’. While the time , place , and age of the victims vary across these three cases one thing remains constant that is the act of rape and the perpetrators mindset . A sexual assaulter can be any kind of person . There isn’t one specific type who commits such kinds of crime . These men have diverse backgrounds , social status , different personalities and mentalities. What can actually be the motive behind them engaging in these kinds of act is the question which can’t be answered easily. #### **Punishments according to law** Indian penal code section 376 (1) states about the punishment for rape “Indian penal code section 376 (2) states that if the persons in authority commit rape, they will also be liable to the same punishment. Indian penal code section 376 (3) states that if any person rapes a woman under the age of 16 years , he will be liable to be punished for twenty years, which may extend to Life Imprisonment” But as far as I see I observe few points which can be reasons - Lack of education ( the basic learning of morals , values and ethics ) - A lack of empathy - Toxic masculinity (patriarchal conceptions of men control over women bodies ) - Hostility towards women ( seeing women as sex object ) - Sexual trauma - Westernizations - Society environment - Sex education - Gender gap ( in india if a women sits with a boy or if they sit together it is perceived in a inappropriate way and the intention of it is misjudged ) - Misperceptions about women (“if she is wearing a short dress then definitely that means she wants sex”) but one similar view can also be like that if the women is walking alone at night , going to pubs getting drunk can be triggering point and a provoking step ) But then what about a rape against a 6 month old newborn ? does even clothes matter . - Attitudes towards law – the increase in the rape and crime against women the law against the culprits comes with several loop holes the court takes years to decide the punishment for a rapist which is evident The change of escaping from the crime is high .this motivates them to do the crime. ### **The psychological aspects a women survivor faces** In Most of the cases the rapist makes sures that the women does not stay alive they make her condition worst as they can but if my luck she survives it gives her . A life time trauma, low self esteem , suicidal thoughts , self blame ,hatred etc. ### **Conclusion** There is a thought which prevails in the society that is “ ***I am powerful so I am right***”. Which comes from the patriarchal society and still is prevailing . This toxic masculinity harms men , men and women are only different in terms of there physical and biological behaviors The ability to love ,care be responsible is same We always feel that toxic masculinity only harms a women but greatly it harms and affects the man . Hence toxic masculinity which is in today’s generation being glamorized can be a main reason towards the growing rates of crime **“Power benefits but humanity loses”** Once in a interview , activist kamla bhasin said “when she got raped ,people said I lost my honour .. but how did I lose my honour ? my honour is not my vagina .. which makes me think that How come this society sets parameter that if a girl is being raped her identity is lost , and that rape will define the honour of the community . It’s the rapist who’s indentity gets lost and his honour . The courts and laws need to get more strict and provide death sentence to such convicts in order to make the graph go down . the task of law agencies should get more responsible The legislature has to make any and every amendments if the rape laws are to be any deternce . Women have to be more strong and responsible,have to come forward and fight The education of both men and women get more and more to understand the both good and bad and what is actually right and wrong . “ tell your story to someone or to yourself. The more you tell it the less pain you feel” ### **References** - [**www.indiankannon**](http://www.indiankannon) - [**www.google.in**](http://www.google.in) - **Indian penal code** **Categories:** Articles --- ### [CONDUCT OF ARBITRAL PROCEEDINGS](https://lawfoyer.in/conduct-of-arbitral-proceedings/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Rishita Khare, Rani Durgavati Vishwavidyalaya, Jabalpur

INTRODUCTION

Alternative Dispute Resolution mechanisms are becoming a more popular choice for parties, especially for commercial disputes. In India, these concepts are not new. This process had been practised traditionally by village councils. The Britishers created the Indian Arbitration Act of 1940. After independence, The Arbitration and Conciliation Act, 1996 was enacted to ensure speedy, flexible and efficient dispute resolution. This not only provides a less complicated procedure but also ensures expertise in giving decisions which could not be attained in traditional ligation. Keywords (Minimum 5): Arbitration, Conduct of Arbitration proceedings, Arbitration Procedure, Alternative Dispute Resolution (ADR), Arbitral Tribunal

Meaning of Arbitration

According to Section 2(1)(a) of the Arbitration and Conciliation Act, “arbitration means any arbitration whether or not administered by permanent arbitral institution.”[1] According to Halsbury—Arbitration means "the reference of dispute or difference between not less than two parties, for determination, after hearing both sides in a judicial manner, by a person or persons other than a Court of competent jurisdiction."[2] Arbitration is generally preferred over traditional court litigation. Parties agree to resolve disputes with a neutral third party in arbitration. Its decisions are binding and equivalent to the court judgments. It is regulated and enforced by the courts. Awards from arbitration can be challenged only under certain conditions.

Arbitration and Conciliation Act, 1996

The Arbitration and Conciliation Act, 1996 is a modern as well as a comprehensive enactment based on the UNCITRAL Model Law and Rules. It covers both domestic and international arbitration in India. The Act reduces court intervention in arbitration processes, allowing parties to choose laws, venues, and arbitrators freely. It mandates the tribunal to justify its awards and stay within its jurisdiction which did not exist in the previous laws of 1940. The Act requires the arbitral tribunal to provide reasons for its award and allows for the use of mediation and conciliation to settle disputes. Settlement agreements through conciliation have the same status as arbitral awards under this Act which is an improvement from the previous laws which lacked such options and flexibility. This act also allows the process of conciliation and mediation along with the arbitration process to settle disputes. This has made the settlement of disputes in India at par with global standards.

Kinds of Arbitration

The Arbitration and Conciliation Act provides 7 different kinds of arbitration.
  • Ad-hoc arbitration occurs when parties in a commercial transaction seek arbitration without prior agreement or involvement of a specific institution.
  • Institutional arbitration involves parties with a prior agreement to resolve disputes through a named institution.
  • Contractual arbitration includes an arbitration clause in any of its commercial agreements for dispute resolution.
  • Statutory arbitration is one which is mandatory and binding by law.
  • Domestic arbitration takes place within India under Indian law.
  • International arbitration involves a foreign element and can be governed by foreign or Indian law.
  • Foreign arbitration is conducted outside India, which results in any foreign award needing enforcement in India.
Each type of arbitration has its own unique process and rules, with parties agreeing to the terms based on their specific situation and requirements.[3]

Principles involved in the Conduct of arbitration proceedings

Arbitration proceedings are guided by key principles:
  • Independence, Impartiality, and Objectivity of arbitrators
  • Party Autonomy in setting arbitration rules
  • Equal Treatment for all parties
  • Confidentiality in dispute resolution
  • Finality of Awards.

CHAPTER 5- CONDUCT OF ARBITRAL PROCEEDINGS

SECTION 18- EQUAL TREATMENT OF PARTIES

According to section 18. “The parties shall be treated with equality and each party shall be given a full opportunity to present this case.” The principle of “the audi alteram partem rule which means ‘hear the other side’” is to be followed.[4] The principles of natural justice must be followed to conduct a fair procedure. These emphasize that a person cannot be a judge in their own case, and a person's defence must always be heard impartially. Even if the arbitrator is not bound by technical rules of procedure, it still cannot ignore principles of natural justice. Hence arbitrators must be impartial and unbiased. They have a binding obligation to ensure a fair trial in arbitration proceedings, going beyond just treating parties equally. Fair trial includes giving each party a reasonable chance to present their case. Parties must be aware of the evidence presented and given a chance to defend themselves against it. If any of the parties was not properly notified of the appointment of the arbitrator or arbitration proceedings an award from such a proceeding may be set aside per Section 34(2)(a)(ii) of the act. [5]

SECTION 19- DETERMINATION OF RULES OF PROCEDURE

Section 19 says that-“The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872)” Constraining the arbitral proceedings by the rigidity of the Evidence Act or the CPC is not the legislative intent of this act. Parties have the freedom to set rules for arbitration proceedings and allows them to customize it to their needs The arbitral tribunal has discretionary powers to determine the proceedings if they do not agree. This flexibility in choosing procedural rules is an appealing factor for parties that are considering arbitration for dispute resolution as held in Henry Sotheran Ltd. v. Norwich Union Life Assurance Society.[6] Section 19(4) of the Act gives the tribunal the discretion to conduct proceedings as it sees fit, including deciding on the admissibility, relevance, materiality, and weight of any evidence as held in Steel Authority of India Ltd. vs. Salzgitter Mannesmann international GMBH.[7] In Punjab State Industrial Development Corporation Ltd., vs. Sunil K. Kansal[8] it was held that while recording the evidence in a case the tribunal is not bound by the Indian Evidence Act. It can use a fair, equitable, and reasonable procedure. If evidence is needed, parties can submit affidavits and allow cross-examination of deponents on such affidavits. If no procedure is agreed upon, the Act's provisions apply to the proceedings.

SECTION 20- PLACE OF ARBITRATION

The place of arbitration is crucial as it determines the applicable laws for the arbitral process. Parties can choose the place of arbitration, and institutional rules may designate the seat of arbitration as well according to the convenience of the parties. The seat and place of arbitration differ: the place is the physical location, while the seat determines legal jurisdiction, governing law, and supervisory courts. Thus, the seat of the arbitration does not change even if the place of arbitration is changed. The place of arbitration has to be decided as per the terms of the contract.[9] In Enercon (India) Limited and others v. Enercon GMBH and another it held that “The Supreme Court held that “the location of the seat will determine the courts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the seat normally carries with it the choice of that country’s arbitration law”[10]

SECTION 21- COMMENCEMENT OF ARBITRAL PROCEEDINGS

According to Section 21, the arbitration process commences when the respondent receives a formal request to arbitrate that dispute unless agreed otherwise.[11] This means that if there is a disagreement between parties the process begins once the party being sought for arbitration receives a request. The request for arbitration does not have to be explicitly written; it can also be implied through the parties' conduct. However, the notice or request must be sufficient to prompt the other party to take action. Failure to receive or recognize this notice as a formal request for arbitration will prevent the commencement of arbitration proceedings. This principle was emphasized in the Nea Agrex SA vs. Baltic Shipping Co. Ltd. (1976) case, where the first notice demanding arbitration was deemed crucial in invoking Section 21.[12] It is important to determine the date of receipt, as outlined in Section 3 of the Act, which details how written communication is considered received. The commencement date plays a significant role in calculating time limits and adhering to time-bar clauses within arbitration agreements. The request for arbitration must clearly outline the dispute, initiating the formal arbitration proceedings. Ultimately, Section 21 ensures that arbitration proceedings officially start upon the respondent receiving a clear request, paving the way for resolution. The limitation for a counter-claim must adhere strictly to Section 43(1) of the Act with Section 3(2)(b) of the Limitation Act, 1963 as decided in Voltas Limited vs. Rolta India Limited. The date for figuring out the limitation period is when the arbitration request is made, especially when the respondent initiates the process and raises counterclaims.[13]

SECTION 22- LANGUAGE TO BE USED IN THE ARBITRAL PROCEEDINGS

“This section provides that parties can mutually agree on the language to be used in arbitration proceedings.” The arbitral tribunal shall decide the language to be used if no agreement is reached by the parties. All written submissions, hearings, awards, decisions, and all other communications from the tribunal will be affected accordingly in a dispute. The tribunal may also order the translation of documents into the agreed language. The tribunal must ensure impartiality and fairness in language determinations to guarantee understanding and fairness for all parties involved in the proceedings.

SECTION 23- STATEMENT OF CLAIM AND DEFENCE

Under Section 23 the claimant is required to submit a statement of claim with supporting facts, points at issue, and relief sought within the agreed timeframe. The respondent must then file a statement of defence addressing each claim and may provide additional information. Both parties can submit relevant documents with their statements or refer to them later. Parties can amend their pleadings unless rejected by the tribunal for causing delay in proceedings. The procedure allows for flexibility in timing and elements of pleadings, enabling parties to adopt rules from arbitral institutions or civil procedure codes. After the tribunal is established, parties exchange and file their pleadings to present their case and respond to each other's claims, ensuring a fair and transparent arbitration process.[14] The failure of a claimant to file a statement of claim within the specified time may result in the termination of proceedings by the arbitral tribunal, as per Section 25(a) of the 1996 Act. However, if the claimant provides a valid reason for the delay, the proceedings need not be terminated.[15]

SECTION 24- HEARINGS AND WRITTEN PROCEEDINGS

Section 24 of the Act, 1996 covers the conduct of hearings and written proceedings in arbitration. The arbitral tribunal decides whether oral hearings are necessary, but must hold them upon request unless agreed otherwise. The notice of hearings and meetings must be given to parties in advance and communication of statements and documents is required. Evidence can be presented in various forms, following guidelines from the Indian Evidence Act, 1872. Fair trial principles are emphasized throughout the process to ensure transparency and communication between parties and the tribunal. Overall, Section 24 aims to facilitate fair arbitration proceedings with opportunities for oral hearings, document inspections, and effective communication, guided by the principles of fairness and equity outlined in the Indian Evidence Act and the Arbitration and Conciliation Act.[16] In litigation, facts are proven through witness testimony and documentary evidence. In arbitrations, evidence is primarily presented through documents, which is considered more efficient. Documents not in the arbitration language require translations agreed upon by both parties. Witness evidence is usually taken under the arbitrator's direction, but written affidavits may be accepted to save time. Witnesses must speak to facts, not opinions. The arbitral tribunal has wide powers, including inspecting the subject matter and determining the admissibility of evidence. The burden of proof lies on the party wishing to present evidence, particularly if the fact is within their knowledge.[17] Application of production of documents and order passed therein by the arbitrator there cannot be interfered by the High Court by way of writ when alternative remedy is provided under Section 37 as held in Radiant Info Systems Ltd. vs. Karnataka SRTC Ltd.[18]

SECTION 25-DEFAULT OF A PARTY

Section 25 says that if the claimant fails to submit their statement of claim on time, then the tribunal can end the proceedings. Whereas, if the respondent fails to submit their statement of defence, the tribunal can still proceed without assuming that the allegations are true. If either party does not attend a hearing or provide evidence, the tribunal can still make an award based on existing evidence. Section 25 also outlines the repercussions of failing to do so without a valid excuse, promoting fairness and efficiency in the process.[19] After pleadings are completed, parties must present documentary evidence. If a party fails to appear at an oral hearing or provide evidence without cause, Section 25(c) allows the arbitral tribunal to proceed and make a decision based on existing evidence. This was seen in M/s. Auto Craft Engineers vs. Akshar Automobiles Agencies Pvt. Ltd.[20], decided by the Bombay High Court.

SECTION 26- EXPERT APPOINTMENT BY ARBITRAL TRIBUNAL

Section 26 of the Act allows the arbitral tribunal to appoint experts to help with technical issues. The arbitral tribunal can appoint one or more experts as per need since they are experts in specific fields. Experts can be asked to report on specific issues determined by the tribunal, with parties providing necessary information or access to documents, goods, or property. This helps the tribunal make informed decisions.  The appointed expert may participate in an oral hearing if requested by a party or deemed necessary by the tribunal, and parties can question the expert and present their own expert witnesses. The expert must make all relevant information available upon request. Hence, this section enables the tribunal to get technical assistance through expert appointments, ensuring a fair consideration of technical matters in arbitration proceedings.[21]

SECTION 27- COURT ASSISTANCE IN TAKING EVIDENCE

“Section 27 allows the arbitral tribunal or a party, with the tribunal’s approval, to seek court assistance in obtaining evidence.” The application to the court must detail the parties' names, claim nature, relief sought, and required evidence. The court can issue processes for evidence provision, penalizing witnesses for non-compliance. Processes" include summons and commissions for witness examination and document production. This section allows parties to ensure a fair arbitration process by involving the court in obtaining necessary testimony and documents for dispute resolution. Since it is the court only which can issue them. Non-compliance or contempt towards the tribunal may lead to consequences. Court assistance can be requested for recording evidence, with details like parties' names and claim nature required. While the court can assist in recording evidence, it cannot directly order production. If the arbitrator denies the court approach, objections can be filed under Section 34.[22]

CONCLUSION & COMMENTS

The Arbitration proceedings in the above act are driven by providing greater autonomy to the parties as well as allowing them to decide procedural aspects. This includes selecting the applicable laws, the place of arbitration and the language used to be used. The Arbitration and Conciliation Act of 1996 in India restricts judicial interference in arbitration which further emphasizes autonomy, confidentiality, and efficient dispute resolution. It empowers parties to customize the arbitration process to meet their unique requirements, promoting a more adaptable and effective resolution method beyond traditional legal modes of litigation.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. Sc Tripathi, Arbitration and Conciliation Act, 1996 (6th ed. Central Law Publications, 2012)
    2. The Arbitration and Conciliation Act, 1996 (Prepared by Chandrashekhar U, Senior Faculty Member, Karnataka Judicial Academy) (30.06.2022)
  2. Online Articles / Sources Referred
    1. Manupatra- Chapter 5 Conduct of Arbitration Proceedings http://student.manupatra.com/Academic/Abk/Arbitration-and-ADR/CHAPTER-5.htm
    2. Garg R and Law L, “Live Law” (Live Law, October 3, 2022)
    3. Parina Katyal, Order Passed by The Arbitrator Allowing Meetings As Per Convenience Of Parties, Would Not Change The Seat Of Arbitration: Delhi High Court, Live Law, 7 June 2022 2:00 PM, https://www.livelaw.in/news-updates/delhi-high-court-justice-v-kameswar-rao-arbitration-and-conciliation-act-arbitrator-ongc-201044?infinitescroll=1
    4. Priyanshi Bhageria Arbitral Tribunal’s Power To Recall: A Hasty Judicial Creation?RMLNLU Arbitration Law Blog
    5. https://www.indiacode.nic.in/
    6. https://indiankanoon.org/
  3. Cases Referred
    1. Henry Sotheran Ltd. v. Norwich Union Life Assurance Society. [1992] ADRLJ 245
    2. Authority of India Ltd. vs. Salzgitter Mannesmann international GMBH. 2012 (2) Arb LR 296 (Delhi).
    3. Punjab State Industrial Development Corporation Ltd., vs. Sunil K. Kansal2013 (1) Arb LR 327 (P&H) (DB)
    4. Enercon (India) Limited and others v. Enercon GMBH and another (2014) 5 SCC 1
    5. Nea Agrex SA vs. Baltic Shipping Co. Ltd. (1976) [1976] 2 All ER 842
    6. Voltas Limited vs. Rolta India Limited (2014) 4 SCC 516: 2014 (1) Arb LR 343 (SC): AIR 2014 SC 1772.)
    7. Bharat Heavy Electricals Ltd. vs. Jyothi Turbopower Services P. Ltd., 2017 (1) Arb LR 289 (Mad) (DB): (2016) 4 CTC 1
    8. Radiant Info Systems Ltd. vs. Karnataka SRTC Ltd. (2018) SCC Online Kar 1209
    9. M/s. Auto Craft Engineers vs. Akshar Automobiles Agencies Pvt. Ltd Arbitration Petition Nos. 556/2014 & 680/2014
  1. Statutes Referred
    1. Arbitration and Conciliation Act, 1996
[1] Arbitration and Conciliation Act, 1996 [2] DR. SC TRIPATHI, ARBITRATION AND CONCILIATION ACT, 1996 (6TH ed. CENTRAL LAW PUBLICATIONS, 2012) [3] DR. SC TRIPATHI, ARBITRATION AND CONCILIATION ACT, 1996 (6TH ed. CENTRAL LAW PUBLICATIONS, 2012) [4] https://kjablr.kar.nic.in/assets/articles/Arbitration%20and%20Conciliation%20Act,%201996.pdf [5] https://kjablr.kar.nic.in/assets/articles/Arbitration%20and%20Conciliation%20Act,%201996.pdf [6] [1992] ADRLJ 245 [7] 2012 (2) Arb LR 296 (Delhi). [8] 2013 (1) Arb LR 327 (P&H) (DB) [9] Parina Katyal, Order Passed by The Arbitrator Allowing Meetings As Per Convenience Of Parties, Would Not Change The Seat Of Arbitration: Delhi High Court, Live Law, 7 June 2022 2:00 PM, [10] (2014) 5 SCC 1 [11] Garg R and Law L, “Live Law” (Live Law, October 3, 2022) [12] [1976] 2 All ER 842 [13] Voltas Limited vs. Rolta India Limited. (2014) 4 SCC 516: 2014 (1) Arb LR 343 (SC): AIR 2014 SC 1772.) [14] https://indiankanoon.org/doc/1460737/ [15] Bharat Heavy Electricals Ltd. vs. Jyothi Turbopower Services P. Ltd., 2017 (1) Arb LR 289 (Mad) (DB): (2016) 4 CTC 1 [16] https://indiankanoon.org/doc/569211/ [17] https://kjablr.kar.nic.in/assets/articles/Arbitration%20and%20Conciliation%20Act,%201996.pdf [18] 2018 SCC Online Kar 1209 [19] Law VAPBSFEIA, “Arbitral Tribunal’s Power to Recall: A Hasty Judicial Creation?” (RMLNLU Arbitration Law Blog, May 24, 2023) [20] Arbitration Petition Nos. 556/2014 & 680/2014 [21] https://indiankanoon.org/doc/1752162/ [22]“Arbitration and ADR - Chapter 5 - Conduct of Arbitral Proceedings” **Content:** **Author-Rishita Khare, Rani Durgavati Vishwavidyalaya, Jabalpur** ### **INTRODUCTION** Alternative Dispute Resolution mechanisms are becoming a more popular choice for parties, especially for commercial disputes. In India, these concepts are not new. This process had been practised traditionally by village councils. The Britishers created the Indian Arbitration Act of 1940. After independence, The Arbitration and Conciliation Act, 1996 was enacted to ensure speedy, flexible and efficient dispute resolution. This not only provides a less complicated procedure but also ensures expertise in giving decisions which could not be attained in traditional ligation. ***Keywords* *(Minimum 5)*: Arbitration, Conduct of Arbitration proceedings, Arbitration Procedure, Alternative Dispute Resolution (ADR), Arbitral Tribunal** ### **Meaning of Arbitration** According to Section 2(1)(a) of the Arbitration and Conciliation Act, *“arbitration means any arbitration whether or not administered by permanent arbitral institution.”[**\[1\]**](#_ftn1)* According to Halsbury*—Arbitration means “the reference of dispute or* *difference between not less than two parties, for determination, after hearing* *both sides in a judicial manner, by a person or persons other than a Court* *of competent jurisdiction.”[**\[2\]**](#_ftn2)* Arbitration is generally preferred over traditional court litigation. Parties agree to resolve disputes with a neutral third party in arbitration. Its decisions are binding and equivalent to the court judgments. It is regulated and enforced by the courts. Awards from arbitration can be challenged only under certain conditions. ### **Arbitration and Conciliation Act, 1996** The Arbitration and Conciliation Act, 1996 is a modern as well as a comprehensive enactment based on the UNCITRAL Model Law and Rules. It covers both domestic and international arbitration in India. The Act reduces court intervention in arbitration processes, allowing parties to choose laws, venues, and arbitrators freely. It mandates the tribunal to justify its awards and stay within its jurisdiction which did not exist in the previous laws of 1940. The Act requires the arbitral tribunal to provide reasons for its award and allows for the use of mediation and conciliation to settle disputes. Settlement agreements through conciliation have the same status as arbitral awards under this Act which is an improvement from the previous laws which lacked such options and flexibility. This act also allows the process of conciliation and mediation along with the arbitration process to settle disputes. This has made the settlement of disputes in India at par with global standards. ### **Kinds of Arbitration** The Arbitration and Conciliation Act provides 7 different kinds of arbitration. - Ad-hoc arbitration occurs when parties in a commercial transaction seek arbitration without prior agreement or involvement of a specific institution. - Institutional arbitration involves parties with a prior agreement to resolve disputes through a named institution. - Contractual arbitration includes an arbitration clause in any of its commercial agreements for dispute resolution. - Statutory arbitration is one which is mandatory and binding by law. - Domestic arbitration takes place within India under Indian law. - International arbitration involves a foreign element and can be governed by foreign or Indian law. - Foreign arbitration is conducted outside India, which results in any foreign award needing enforcement in India. Each type of arbitration has its own unique process and rules, with parties agreeing to the terms based on their specific situation and requirements.[\[3\]](#_ftn3) ### **Principles involved in the Conduct of arbitration proceedings** Arbitration proceedings are guided by key principles: - Independence, Impartiality, and Objectivity of arbitrators - Party Autonomy in setting arbitration rules - Equal Treatment for all parties - Confidentiality in dispute resolution - Finality of Awards. ### **CHAPTER 5- CONDUCT OF ARBITRAL PROCEEDINGS** #### **SECTION 18- EQUAL TREATMENT OF PARTIES** According to section 18. *“The parties shall be treated with equality and each party shall be given a full opportunity to present this case.”* The principle of *“the audi alteram partem rule which means ‘hear the other side’*” is to be followed.[\[4\]](#_ftn4) The principles of natural justice must be followed to conduct a fair procedure. These emphasize that a person cannot be a judge in their own case, and a person’s defence must always be heard impartially. Even if the arbitrator is not bound by technical rules of procedure, it still cannot ignore principles of natural justice. Hence arbitrators must be impartial and unbiased. They have a binding obligation to ensure a fair trial in arbitration proceedings, going beyond just treating parties equally. Fair trial includes giving each party a reasonable chance to present their case. Parties must be aware of the evidence presented and given a chance to defend themselves against it. If any of the parties was not properly notified of the appointment of the arbitrator or arbitration proceedings an award from such a proceeding may be set aside per Section 34(2)(a)(ii) of the act. [\[5\]](#_ftn5) #### **SECTION 19- DETERMINATION OF RULES OF PROCEDURE** Section 19 says that-*“The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872)”* Constraining the arbitral proceedings by the rigidity of the Evidence Act or the CPC is not the legislative intent of this act. Parties have the freedom to set rules for arbitration proceedings and allows them to customize it to their needs The arbitral tribunal has discretionary powers to determine the proceedings if they do not agree. This flexibility in choosing procedural rules is an appealing factor for parties that are considering arbitration for dispute resolution as held in *Henry Sotheran Ltd. v. Norwich Union Life Assurance Society.*[\[6\]](#_ftn6) Section 19(4) of the Act gives the tribunal the discretion to conduct proceedings as it sees fit, including deciding on the admissibility, relevance, materiality, and weight of any evidence as held in Steel *Authority of India Ltd. vs. Salzgitter Mannesmann international GMBH.*[\[7\]](#_ftn7) In *Punjab State Industrial Development Corporation Ltd., vs. Sunil K. Kansal*[\[8\]](#_ftn8) it was held that while recording the evidence in a case the tribunal is not bound by the Indian Evidence Act. It can use a fair, equitable, and reasonable procedure. If evidence is needed, parties can submit affidavits and allow cross-examination of deponents on such affidavits. If no procedure is agreed upon, the Act’s provisions apply to the proceedings. #### **SECTION 20- PLACE OF ARBITRATION** The place of arbitration is crucial as it determines the applicable laws for the arbitral process. Parties can choose the place of arbitration, and institutional rules may designate the seat of arbitration as well according to the convenience of the parties. The seat and place of arbitration differ: the place is the physical location, while the seat determines legal jurisdiction, governing law, and supervisory courts. Thus, the seat of the arbitration does not change even if the place of arbitration is changed. The place of arbitration has to be decided as per the terms of the contract.[\[9\]](#_ftn9) In *Enercon (India) Limited and others v. Enercon GMBH and another* it held that *“The Supreme Court held that “the location of the seat will determine the courts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the seat normally carries with it the choice of that country’s arbitration law”[**\[10\]**](#_ftn10)* #### **SECTION 21- COMMENCEMENT OF ARBITRAL PROCEEDINGS** According to Section 21, the arbitration process commences when the respondent receives a formal request to arbitrate that dispute unless agreed otherwise.[\[11\]](#_ftn11) This means that if there is a disagreement between parties the process begins once the party being sought for arbitration receives a request. The request for arbitration does not have to be explicitly written; it can also be implied through the parties’ conduct. However, the notice or request must be sufficient to prompt the other party to take action. Failure to receive or recognize this notice as a formal request for arbitration will prevent the commencement of arbitration proceedings. This principle was emphasized in the *Nea Agrex SA vs. Baltic Shipping Co. Ltd. (1976)* case, where the first notice demanding arbitration was deemed crucial in invoking Section 21.[\[12\]](#_ftn12) It is important to determine the date of receipt, as outlined in Section 3 of the Act, which details how written communication is considered received. The commencement date plays a significant role in calculating time limits and adhering to time-bar clauses within arbitration agreements. The request for arbitration must clearly outline the dispute, initiating the formal arbitration proceedings. Ultimately, Section 21 ensures that arbitration proceedings officially start upon the respondent receiving a clear request, paving the way for resolution. The limitation for a counter-claim must adhere strictly to Section 43(1) of the Act with Section 3(2)(b) of the Limitation Act, 1963 as decided in *Voltas Limited vs. Rolta India Limited*. The date for figuring out the limitation period is when the arbitration request is made, especially when the respondent initiates the process and raises counterclaims.[\[13\]](#_ftn13) #### **SECTION 22- LANGUAGE TO BE USED IN THE ARBITRAL PROCEEDINGS** *“This section provides that parties can mutually agree on the language to be used in arbitration proceedings.”* The arbitral tribunal shall decide the language to be used if no agreement is reached by the parties. All written submissions, hearings, awards, decisions, and all other communications from the tribunal will be affected accordingly in a dispute. The tribunal may also order the translation of documents into the agreed language. The tribunal must ensure impartiality and fairness in language determinations to guarantee understanding and fairness for all parties involved in the proceedings. #### **SECTION 23- STATEMENT OF CLAIM AND DEFENCE** Under Section 23 the claimant is required to submit a statement of claim with supporting facts, points at issue, and relief sought within the agreed timeframe. The respondent must then file a statement of defence addressing each claim and may provide additional information. Both parties can submit relevant documents with their statements or refer to them later. Parties can amend their pleadings unless rejected by the tribunal for causing delay in proceedings. The procedure allows for flexibility in timing and elements of pleadings, enabling parties to adopt rules from arbitral institutions or civil procedure codes. After the tribunal is established, parties exchange and file their pleadings to present their case and respond to each other’s claims, ensuring a fair and transparent arbitration process.[\[14\]](#_ftn14) The failure of a claimant to file a statement of claim within the specified time may result in the termination of proceedings by the arbitral tribunal, as per Section 25(a) of the 1996 Act. However, if the claimant provides a valid reason for the delay, the proceedings need not be terminated.[\[15\]](#_ftn15) #### **SECTION 24- HEARINGS AND WRITTEN PROCEEDINGS** Section 24 of the Act, 1996 covers the conduct of hearings and written proceedings in arbitration. The arbitral tribunal decides whether oral hearings are necessary, but must hold them upon request unless agreed otherwise. The notice of hearings and meetings must be given to parties in advance and communication of statements and documents is required. Evidence can be presented in various forms, following guidelines from the Indian Evidence Act, 1872. Fair trial principles are emphasized throughout the process to ensure transparency and communication between parties and the tribunal. Overall, Section 24 aims to facilitate fair arbitration proceedings with opportunities for oral hearings, document inspections, and effective communication, guided by the principles of fairness and equity outlined in the Indian Evidence Act and the Arbitration and Conciliation Act.[\[16\]](#_ftn16) In litigation, facts are proven through witness testimony and documentary evidence. In arbitrations, evidence is primarily presented through documents, which is considered more efficient. Documents not in the arbitration language require translations agreed upon by both parties. Witness evidence is usually taken under the arbitrator’s direction, but written affidavits may be accepted to save time. Witnesses must speak to facts, not opinions. The arbitral tribunal has wide powers, including inspecting the subject matter and determining the admissibility of evidence. The burden of proof lies on the party wishing to present evidence, particularly if the fact is within their knowledge.[\[17\]](#_ftn17) Application of production of documents and order passed therein by the arbitrator there cannot be interfered by the High Court by way of writ when alternative remedy is provided under Section 37 as held in *Radiant Info Systems Ltd. vs. Karnataka SRTC Ltd.[**\[18\]**](#_ftn18)* #### **SECTION 25-DEFAULT OF A PARTY** Section 25 says that if the claimant fails to submit their statement of claim on time, then the tribunal can end the proceedings. Whereas, if the respondent fails to submit their statement of defence, the tribunal can still proceed without assuming that the allegations are true. If either party does not attend a hearing or provide evidence, the tribunal can still make an award based on existing evidence. Section 25 also outlines the repercussions of failing to do so without a valid excuse, promoting fairness and efficiency in the process.[\[19\]](#_ftn19) After pleadings are completed, parties must present documentary evidence. If a party fails to appear at an oral hearing or provide evidence without cause, Section 25(c) allows the arbitral tribunal to proceed and make a decision based on existing evidence. This was seen in *M/s. Auto Craft Engineers vs. Akshar Automobiles Agencies Pvt. Ltd*.[\[20\]](#_ftn20), decided by the Bombay High Court. #### **SECTION 26- EXPERT APPOINTMENT BY ARBITRAL TRIBUNAL** Section 26 of the Act allows the arbitral tribunal to appoint experts to help with technical issues. The arbitral tribunal can appoint one or more experts as per need since they are experts in specific fields. Experts can be asked to report on specific issues determined by the tribunal, with parties providing necessary information or access to documents, goods, or property. This helps the tribunal make informed decisions. The appointed expert may participate in an oral hearing if requested by a party or deemed necessary by the tribunal, and parties can question the expert and present their own expert witnesses. The expert must make all relevant information available upon request. Hence, this section enables the tribunal to get technical assistance through expert appointments, ensuring a fair consideration of technical matters in arbitration proceedings.[\[21\]](#_ftn21) #### **SECTION 27- COURT ASSISTANCE IN TAKING EVIDENCE** *“Section 27 allows the arbitral tribunal or a party, with the tribunal’s approval, to seek court assistance in obtaining evidence*.*”* The application to the court must detail the parties’ names, claim nature, relief sought, and required evidence. The court can issue processes for evidence provision, penalizing witnesses for non-compliance. Processes” include summons and commissions for witness examination and document production. This section allows parties to ensure a fair arbitration process by involving the court in obtaining necessary testimony and documents for dispute resolution. Since it is the court only which can issue them. Non-compliance or contempt towards the tribunal may lead to consequences. Court assistance can be requested for recording evidence, with details like parties’ names and claim nature required. While the court can assist in recording evidence, it cannot directly order production. If the arbitrator denies the court approach, objections can be filed under Section 34.[\[22\]](#_ftn22) ### **CONCLUSION & COMMENTS** The Arbitration proceedings in the above act are driven by providing greater autonomy to the parties as well as allowing them to decide procedural aspects. This includes selecting the applicable laws, the place of arbitration and the language used to be used. The Arbitration and Conciliation Act of 1996 in India restricts judicial interference in arbitration which further emphasizes autonomy, confidentiality, and efficient dispute resolution. It empowers parties to customize the arbitration process to meet their unique requirements, promoting a more adaptable and effective resolution method beyond traditional legal modes of litigation. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. Sc Tripathi, Arbitration and Conciliation Act, 1996 (6th ed. Central Law Publications, 2012) 2. The Arbitration and Conciliation Act, 1996 (Prepared by Chandrashekhar U, Senior Faculty Member, Karnataka Judicial Academy) (30.06.2022) 2. **Online Articles / Sources Referred** 5. Manupatra- Chapter 5 Conduct of Arbitration Proceedings http://student.manupatra.com/Academic/Abk/Arbitration-and-ADR/CHAPTER-5.htm 6. Garg R and Law L, “Live Law” (Live Law, October 3, 2022) 7. Parina Katyal, Order Passed by The Arbitrator Allowing Meetings As Per Convenience Of Parties, Would Not Change The Seat Of Arbitration: Delhi High Court, Live Law, 7 June 2022 2:00 PM, https://www.livelaw.in/news-updates/delhi-high-court-justice-v-kameswar-rao-arbitration-and-conciliation-act-arbitrator-ongc-201044?infinitescroll=1 8. Priyanshi Bhageria Arbitral Tribunal’s Power To Recall: A Hasty Judicial Creation?RMLNLU Arbitration Law Blog 9. https://www.indiacode.nic.in/ 10. https://indiankanoon.org/ 3. **Cases Referred** 1. *Henry Sotheran Ltd. v. Norwich Union Life Assurance Society.* *\[1992\] ADRLJ 245* 2. *Authority of India Ltd. vs. Salzgitter Mannesmann international GMBH.* *2012 (2) Arb LR 296 (Delhi).* 3. *Punjab State Industrial Development Corporation Ltd., vs. Sunil K. Kansal2013 (1) Arb LR 327 (P&H) (DB)* 4. *Enercon (India) Limited and others v. Enercon GMBH and another (2014) 5 SCC 1* 5. *Nea Agrex SA vs. Baltic Shipping Co. Ltd. (1976)* *\[1976\] 2 All ER 842* 6. *Voltas Limited vs. Rolta India Limited (2014) 4 SCC 516: 2014 (1) Arb LR 343 (SC): AIR 2014 SC 1772.)* 7. *Bharat Heavy Electricals Ltd. vs. Jyothi Turbopower Services P. Ltd., 2017 (1) Arb LR 289 (Mad) (DB): (2016) 4 CTC 1* 8. *Radiant Info Systems Ltd. vs. Karnataka SRTC Ltd.* *(2018) SCC Online Kar 1209* 9. *M/s. Auto Craft Engineers vs. Akshar Automobiles Agencies Pvt. Ltd Arbitration Petition Nos. 556/2014 & 680/2014* 4. **Statutes Referred** 1. Arbitration and Conciliation Act, 1996 [\[1\]](#_ftnref1) Arbitration and Conciliation Act, 1996 [\[2\]](#_ftnref2) DR. SC TRIPATHI, ARBITRATION AND CONCILIATION ACT, 1996 (6TH ed. CENTRAL LAW PUBLICATIONS, 2012) [\[3\]](#_ftnref3) DR. SC TRIPATHI, ARBITRATION AND CONCILIATION ACT, 1996 (6TH ed. CENTRAL LAW PUBLICATIONS, 2012) [\[4\]](#_ftnref4) https://kjablr.kar.nic.in/assets/articles/Arbitration%20and%20Conciliation%20Act,%201996.pdf [\[5\]](#_ftnref5) https://kjablr.kar.nic.in/assets/articles/Arbitration%20and%20Conciliation%20Act,%201996.pdf [\[6\]](#_ftnref6) \[1992\] ADRLJ 245 [\[7\]](#_ftnref7) 2012 (2) Arb LR 296 (Delhi). [\[8\]](#_ftnref8) 2013 (1) Arb LR 327 (P&H) (DB) [\[9\]](#_ftnref9) Parina Katyal, Order Passed by The Arbitrator Allowing Meetings As Per Convenience Of Parties, Would Not Change The Seat Of Arbitration: Delhi High Court, Live Law, 7 June 2022 2:00 PM, [\[10\]](#_ftnref10) (2014) 5 SCC 1 [\[11\]](#_ftnref11) Garg R and Law L, “Live Law” (Live Law, October 3, 2022) [\[12\]](#_ftnref12) \[1976\] 2 All ER 842 [\[13\]](#_ftnref13) Voltas Limited vs. Rolta India Limited. (2014) 4 SCC 516: 2014 (1) Arb LR 343 (SC): AIR 2014 SC 1772.) [\[14\]](#_ftnref14) https://indiankanoon.org/doc/1460737/ [\[15\]](#_ftnref15) Bharat Heavy Electricals Ltd. vs. Jyothi Turbopower Services P. Ltd., 2017 (1) Arb LR 289 (Mad) (DB): (2016) 4 CTC 1 [\[16\]](#_ftnref16) https://indiankanoon.org/doc/569211/ [\[17\]](#_ftnref17) https://kjablr.kar.nic.in/assets/articles/Arbitration%20and%20Conciliation%20Act,%201996.pdf [\[18\]](#_ftnref18) 2018 SCC Online Kar 1209 [\[19\]](#_ftnref19) Law VAPBSFEIA, “Arbitral Tribunal’s Power to Recall: A Hasty Judicial Creation?” (RMLNLU Arbitration Law Blog, May 24, 2023) [\[20\]](#_ftnref20) Arbitration Petition Nos. 556/2014 & 680/2014 [\[21\]](#_ftnref21) https://indiankanoon.org/doc/1752162/ [\[22\]](#_ftnref22)“Arbitration and ADR – Chapter 5 – Conduct of Arbitral Proceedings” **Categories:** Articles --- ### [Accident as defence under Law of torts: Meaning, Principles and Cases](https://lawfoyer.in/accident-as-defence-under-law-of-torts-meaning-principles-and-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Shruti Mayur, Amity University

INTRODUCTION

Tort is a wrongful act for which the defendant gives the compensation to the individual who have suffered harm or injury due to his/her actions. According to Salmond, “Tort is a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of a trust or other merely equitable obligation.” The word ‘tort’ derives from the Latin word ‘Tortum’ which means to twist. It is a violation of right in rem leading to legal injury and redressable by unliquidated damages. If a plaintiff sues a defendant for a specific wrongful act, providing the existence of all the essentials of that act as a tort, the defendant will be held liable. However, there are certain situations where the defendant can escape from his liability by taking the defences available. There are many defences in the law of tort which are categorized further in two parts i.e. General defences and Specific defences. Some of the general defences available for the tort are:
  1. Volenti non fit injuria
  2. Plaintiff, the wrongdoer
  3. Inevitable accident
  4. Act of God
  5. Private Defence
  6. Mistake
  7. Necessity
  8. Statutory Authority
This article deals with the topic of an accident as defence under the law of tort in detail. Keywords:  Tort law, Defences, Unavoidable, Inevitable accident, Liability. 

Meaning and Definition

An accident can be defined as an unforeseen incident, often sudden and unintentional event, that results in harm or injury to people property and the environment and may entitle the affected party to legal compensation, even if caused by carelessness lack of knowledge or a combination of factors. When the accident is an unforeseeable and unavoidable incident that results in harm then it is known as inevitable accident in the law of tort and used as defence by the defendant for which he is not held liable. It is a specific defence strategy used to completely absolve the defendant of responsibility for the accident’s consequences. Sir Federick Pollock defined accident as an inevitable accident “not avoidable by any such precautions as a reasonable man, doing such an act then there, could be expected to take.”

 Types of an accident:

The very first thought that comes to mind after hearing the word “accident” is a road accident. But there are many types of accidents such as:
  1. Motor vehicle accident
  2. Mechanical failure
  3. Pedestrian injury accident
  4. Workplace accident
  5. Fire safety accidents
  6. Collisions
  7. Falling
  8. Medical malpractice
  9. Repetitive stress injuries
  10. Slip and fall injuries etc.

Nature of an accident:

Causes: -    Accidents can be caused by various factors such as:
  1. Human error – It is the leading cause of accidents, often stemming from factors like negligence, recklessness, distracted behaviours and a lack of situational awareness.
  2. Mechanical failure - Such as malfunctions, defects, or improper maintenance in vehicles, machinery and other equipment is another significant contributor to accidents.
  3. Environmental factors- It includes natural disasters, adverse weather conditions and unsafe environments which can significantly increase the risk of accidents.
  4. Unforeseen events- Events such as sudden medical emergencies or unpredictable animal behaviour can sometimes trigger accidents even when beyond human control.
Foreseeability: -
  1. Foreseeable- These accidents are potentially foreseeable and preventable with the exercise of proper care and the implementation of appropriate safety measures.
  2. Unforeseeable- These accidents constitute truly unforeseeable events which are impossible to anticipate under the unique circumstances.
Intentionality: -
  1. Unintentional- These events occur in an unintentional manner, devoid of any premeditation or intent to inflict harm.
  2. Rarely intentional-In rare instances, accidents may stem from deliberate actions, often falling within the purview of criminal law rather than tort law.
Outcome: -
  1. Property damage- This involves damage to vehicles, buildings, or other belongings.
  2. Personal injury- This involves injuries ranging from minor to life threatening or fatal consequences.
  3. Emotional distress- Accidents can cause psychological trauma and emotional suffering.
  4. Financial loss-This can include medical bills, lost wages, and other costs associated with the accident.
Legal Implications: - Depending upon the nature of the accident, various legal considerations may arise, including: -
  1. Tort law- This legal domain focuses on resolving claims for compensation arising from injuries or losses caused by the negligence or misconduct of others
  2. Criminal law- In certain cases, criminal charges may be brought if the accident involved intentional acts or gross negligence.
For the defendant to use the accident as defence i.e., inevitable accident which is general defence in the law of tort, it is necessary to show the nature of the accident. Inevitable accident means the unavoidable accident that is harm or injury caused due to the unforeseeable circumstances and was not preventable. For example-
  1. If a man was driving a car and he was all in his senses and took all due care, but suddenly due to mechanical part failure his car loses his balance and hits a passer-by. In this case, a man would not be held liable as he took all precautions from his side. The accident was unavoidable.
  2. Sam was driving a car with all the reasonable care from his part. Suddenly due to heavy rain and storm the road collapsed and Sam’s car hit many pedestrians. Here also Sam would not be held liable as it was completely out of his hand.

Types of Inevitable Accident:

Inevitable accident may be classified into two categories: -
  1. Accidents which are caused by the elementary forces of nature apart from human agency or other causes. The term “Act of God” is used to describe such acts.
  2. Accidents which are entirely or partially the outcome of human agency, whether by the acts of commission or omission, misdeeds, or inactions or through any other causes unrelated to the action of natural agencies.

Principles/Essential of Inevitable accident:

  1. Unforeseeable- The accident must be impossible to predict or anticipate, beyond human control.
  2. Unavoidable- The accident could not have been prevented even with the reasonable care and safety measures. The defendant can argue that he exercised all reasonable care to avoid the accident, regardless of its ultimate outcome.
  3. No alternative action- The defendant, acting reasonably, had no alternative course of action available that could have prevented the accident.
Exceptions to Inevitable Accident: The defence of inevitable accident is inapplicable to: -
  1. Intentional torts - The wrongful acts such as assault, battery trespass are committed deliberately. In these acts intent is a key element, so the concept of an unavoidable accident or inevitable accident does not apply and the plaintiff bears burden of proof.
  2. Strict/Absolute Liability- The defence of inevitable accident is not applicable as the liability arises regardless of negligence, carelessness, intent to do the act, knowledge of the act and so on due to the inherently risky nature of the activity. Ex- keeping dangerous animals, engaging in abnormally dangerous activities like storing explosives or operating nuclear power plant. This doctrine was established in the case of M.C Mehta v. Union of India.
  3. Negligence- The defence of inevitable accident is inadmissible in negligence proceedings as the burden of proof lies with the plaintiff.
 Landmark cases: In the case, Holmes v. Mather, a runway horse incident on a public road caused an injury. The defendant’s servant, who was leading the horses, lost control of them when a dog barked. Despite the servant’s best efforts, the horses bolted and struck the plaintiff, causing serious harm. So, the court ruled that the accident was unavoidable or inevitable and the defendant was not held liable. In the case, Stanley v. Powell, the plaintiff and defendant were shooting members who went for a pheasant shooting party. The defendant aimed the gun to shoot at a pheasant, but the bullet was ricocheted by an oak tree and struck the plaintiff, who got injured. The plaintiff filed the case wherein the defendant argued and took the defence of inevitable accident. The court agreed, finding the defendant could not have predicted the bullets ricochet and the plaintiff’s injury. In the case, Brown v. Kendall, both Brown, the plaintiff and Kendall, the defendant owned dogs that got into a fight. Kendall tried to break them up by swinging a large stick. Brown who had been keeping his distance, walked behind Kendall as the dogs moved away. Unfortunately, Kendall didn't see brown and accidentally struck him in the eye with the stick during his swing, causing serious injuries. Brown sued Kendall for assault and battery to which court held that it was purely an inevitable accident and dismissed the case. In the case of Fardon v. Harcourt-Rivington, the defendant left a dog unattended inside a parked car. Despite the dog’s initial quiet demeanor, it became agitated and ultimately shattered a car window. Unfortunately, a passerby, the plaintiff, was struck in the eye by a shard of glass from the broken window and subsequently filed a lawsuit against the defendant seeking compensation for the injury. Lord Dunedin, however, ruled in favor of the defendant, finding them not liable for accident. His reasoning centered on the concept of remoteness and foreseeability. He stated that while individuals hold a responsibility to guard against reasonably anticipated dangers, they are not obligated to foresee and prevent entirely improbable occurrences. In this specific case, the court deemed the dog’s actions and the resulting injury to be so unlikely that they did not constitute a foreseeable danger. He further emphasized this distinction by declaring, “People must guard against reasonable probabilities, but they are not bound against fantastic probabilities.” In the case, Padmavati v. Dugganaika, two strangers accepted a ride in a Jeep. Tragically, during the journey, a critical malfunction occurred. A bolt securing the right front wheel to the axle became dislodged. this critical failure caused the jeep to loose control and overturn, resulting in severe injuries to both passengers, with one sadly succumbing to their wounds. The plaintiff’s, likely relatives of the deceased and injured passengers, filed a lawsuit against the driver and owner of the jeep, seeking compensation for the injuries incurred. However, the court ultimately ruled in favor of the defendants. The court’s reasoning centered on the nature of the accident, which they classified as a sheer accident. In simpler terms, the court determined that the event was entirely unforeseen and unavoidable. Critically, the defect that caused the accident, the loose bolt, was not reasonably detectable through standard maintenance procedures. Therefore, the court concluded that the driver and owner exhibited no negligence. Since they could not have foreseen or prevented the failure that caused the accident, they were not held liable for the unfortunate outcome.

CONCLUSION

In tort law, accident can be used as defence i.e. inevitable accident by proving the nature of an accident. The defendant can escape from his liability if the nature of the accident caused by him was unforeseeable, unintentional that could not be avoided despite all reasonable care by the defendant. Thus, the inevitable accident is significant defence in the law of tort which involves accidents that could not have been prevented by the parties although there was an exercise of reasonable care, caution, and skill. It is also known as unavoidable accident defence.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. R. K Bangia, Law of Torts (Allahabad Law Agency 2023)
  2. Online Articles / Sources Referred
    1. https://lawcorner.in/inevitable-accident-in-tort/#Types_of_Inevitable_Accident_in_Tort
    2. https://lawessential.com/miscellaneous/f/inevitable-accidents-in-law-of-torts?blogcategory=Miscellaneous#:~:text=Holmes%20v.,efforts%2C%20they%20injured%20the%20plaintiff.
    3. https://lawbhoomi.com/inevitable-accident/
    4. manupatra.com
    5. https://gemini.google.com/app
  1. Cases Referred
    1. Holmes v. Mather, (1875) LR 10
    2. Stanley v. Powell, 1 QB 86 (1891
    3. Brown v. Kendall,60 Mass.292 (1850)
    4. Fardon v. Harcourt-Rivington, (1932) 146 Lt 391
    5. Padmavati v. Dugganaika (1975)
**Content:** **Author-Shruti Mayur, Amity University** ### **INTRODUCTION** Tort is a wrongful act for which the defendant gives the compensation to the individual who have suffered harm or injury due to his/her actions. According to Salmond, “*Tort is a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of a trust or other merely equitable obligation*.” The word ‘tort’ derives from the Latin word ‘Tortum’ which means to twist. It is a violation of right in rem leading to legal injury and redressable by unliquidated damages. If a plaintiff sues a defendant for a specific wrongful act, providing the existence of all the essentials of that act as a tort, the defendant will be held liable. However, there are certain situations where the defendant can escape from his liability by taking the defences available. There are many defences in the law of tort which are categorized further in two parts i.e. General defences and Specific defences. Some of the general defences available for the tort are: 1. Volenti non fit injuria 2. Plaintiff, the wrongdoer 3. Inevitable accident 4. Act of God 5. Private Defence 6. Mistake 7. Necessity 8. Statutory Authority This article deals with the topic of an accident as defence under the law of tort in detail. ***Keywords*: Tort law, Defences, Unavoidable, Inevitable accident, Liability. ### **Meaning and Definition** An accident can be defined as an unforeseen incident, often sudden and unintentional event, that results in harm or injury to people property and the environment and may entitle the affected party to legal compensation, even if caused by carelessness lack of knowledge or a combination of factors. When the accident is an unforeseeable and unavoidable incident that results in harm then it is known as inevitable accident in the law of tort and used as defence by the defendant for which he is not held liable. It is a specific defence strategy used to completely absolve the defendant of responsibility for the accident’s consequences. Sir Federick Pollock defined accident as an inevitable accident “*not avoidable by any such precautions as a reasonable man, doing such an act then there, could be expected to take.”* ### **Types of an accident:** The very first thought that comes to mind after hearing the word “accident” is a road accident. But there are many types of accidents such as: 1. Motor vehicle accident 2. Mechanical failure 3. Pedestrian injury accident 4. Workplace accident 5. Fire safety accidents 6. Collisions 7. Falling 8. Medical malpractice 9. Repetitive stress injuries 10. Slip and fall injuries etc. ### **Nature of an accident:** Causes: – Accidents can be caused by various factors such as: 1. Human error – It is the leading cause of accidents, often stemming from factors like negligence, recklessness, distracted behaviours and a lack of situational awareness. 2. Mechanical failure – Such as malfunctions, defects, or improper maintenance in vehicles, machinery and other equipment is another significant contributor to accidents. 3. Environmental factors- It includes natural disasters, adverse weather conditions and unsafe environments which can significantly increase the risk of accidents. 4. Unforeseen events- Events such as sudden medical emergencies or unpredictable animal behaviour can sometimes trigger accidents even when beyond human control. **Foreseeability: –** 1. Foreseeable- These accidents are potentially foreseeable and preventable with the exercise of proper care and the implementation of appropriate safety measures. 2. Unforeseeable- These accidents constitute truly unforeseeable events which are impossible to anticipate under the unique circumstances. **Intentionality: –** 1. Unintentional- These events occur in an unintentional manner, devoid of any premeditation or intent to inflict harm. 2. Rarely intentional-In rare instances, accidents may stem from deliberate actions, often falling within the purview of criminal law rather than tort law. **Outcome: –** 1. Property damage- This involves damage to vehicles, buildings, or other belongings. 2. Personal injury- This involves injuries ranging from minor to life threatening or fatal consequences. 3. Emotional distress- Accidents can cause psychological trauma and emotional suffering. 4. Financial loss-This can include medical bills, lost wages, and other costs associated with the accident. **Legal Implications: –** Depending upon the nature of the accident, various legal considerations may arise, including: – 1. Tort law- This legal domain focuses on resolving claims for compensation arising from injuries or losses caused by the negligence or misconduct of others 2. Criminal law- In certain cases, criminal charges may be brought if the accident involved intentional acts or gross negligence. For the defendant to use the accident as defence i.e., inevitable accident which is general defence in the law of tort, it is necessary to show the nature of the accident. Inevitable accident means the unavoidable accident that is harm or injury caused due to the unforeseeable circumstances and was not preventable. For example- 1. If a man was driving a car and he was all in his senses and took all due care, but suddenly due to mechanical part failure his car loses his balance and hits a passer-by. In this case, a man would not be held liable as he took all precautions from his side. The accident was unavoidable. 2. Sam was driving a car with all the reasonable care from his part. Suddenly due to heavy rain and storm the road collapsed and Sam’s car hit many pedestrians. Here also Sam would not be held liable as it was completely out of his hand. ### **Types of Inevitable Accident:** Inevitable accident may be classified into two categories: – 1. Accidents which are caused by the elementary forces of nature apart from human agency or other causes. The term “Act of God” is used to describe such acts. 2. Accidents which are entirely or partially the outcome of human agency, whether by the acts of commission or omission, misdeeds, or inactions or through any other causes unrelated to the action of natural agencies. ### **Principles/Essential of Inevitable accident:** 1. Unforeseeable- The accident must be impossible to predict or anticipate, beyond human control. 2. Unavoidable- The accident could not have been prevented even with the reasonable care and safety measures. The defendant can argue that he exercised all reasonable care to avoid the accident, regardless of its ultimate outcome. 3. No alternative action- The defendant, acting reasonably, had no alternative course of action available that could have prevented the accident. **Exceptions to Inevitable Accident:** The defence of inevitable accident is inapplicable to: – 1. Intentional torts – The wrongful acts such as assault, battery trespass are committed deliberately. In these acts intent is a key element, so the concept of an unavoidable accident or inevitable accident does not apply and the plaintiff bears burden of proof. 2. Strict/Absolute Liability- The defence of inevitable accident is not applicable as the liability arises regardless of negligence, carelessness, intent to do the act, knowledge of the act and so on due to the inherently risky nature of the activity. Ex- keeping dangerous animals, engaging in abnormally dangerous activities like storing explosives or operating nuclear power plant. This doctrine was established in the case of M.C Mehta v. Union of India. 3. Negligence- The defence of inevitable accident is inadmissible in negligence proceedings as the burden of proof lies with the plaintiff. **Landmark cases:** In the case, **Holmes v. Mather**, a runway horse incident on a public road caused an injury. The defendant’s servant, who was leading the horses, lost control of them when a dog barked. Despite the servant’s best efforts, the horses bolted and struck the plaintiff, causing serious harm. So, the court ruled that the accident was unavoidable or inevitable and the defendant was not held liable. In the case, **Stanley v. Powell,** the plaintiff and defendant were shooting members who went for a pheasant shooting party. The defendant aimed the gun to shoot at a pheasant, but the bullet was ricocheted by an oak tree and struck the plaintiff, who got injured. The plaintiff filed the case wherein the defendant argued and took the defence of inevitable accident. The court agreed, finding the defendant could not have predicted the bullets ricochet and the plaintiff’s injury. In the case, **Brown v. Kendall**, both Brown, the plaintiff and Kendall, the defendant owned dogs that got into a fight. Kendall tried to break them up by swinging a large stick. Brown who had been keeping his distance, walked behind Kendall as the dogs moved away. Unfortunately, Kendall didn’t see brown and accidentally struck him in the eye with the stick during his swing, causing serious injuries. Brown sued Kendall for assault and battery to which court held that it was purely an inevitable accident and dismissed the case. In the case of **Fardon v. Harcourt-Rivington,** the defendant left a dog unattended inside a parked car. Despite the dog’s initial quiet demeanor, it became agitated and ultimately shattered a car window. Unfortunately, a passerby, the plaintiff, was struck in the eye by a shard of glass from the broken window and subsequently filed a lawsuit against the defendant seeking compensation for the injury. Lord Dunedin, however, ruled in favor of the defendant, finding them not liable for accident. His reasoning centered on the concept of remoteness and foreseeability. He stated that while individuals hold a responsibility to guard against reasonably anticipated dangers, they are not obligated to foresee and prevent entirely improbable occurrences. In this specific case, the court deemed the dog’s actions and the resulting injury to be so unlikely that they did not constitute a foreseeable danger. He further emphasized this distinction by declaring, “*People must guard against reasonable probabilities, but they are not bound against fantastic probabilities*.” In the case, **Padmavati v. Dugganaika,** two strangers accepted a ride in a Jeep. Tragically, during the journey, a critical malfunction occurred. A bolt securing the right front wheel to the axle became dislodged. this critical failure caused the jeep to loose control and overturn, resulting in severe injuries to both passengers, with one sadly succumbing to their wounds. The plaintiff’s, likely relatives of the deceased and injured passengers, filed a lawsuit against the driver and owner of the jeep, seeking compensation for the injuries incurred. However, the court ultimately ruled in favor of the defendants. The court’s reasoning centered on the nature of the accident, which they classified as a sheer accident. In simpler terms, the court determined that the event was entirely unforeseen and unavoidable. Critically, the defect that caused the accident, the loose bolt, was not reasonably detectable through standard maintenance procedures. Therefore, the court concluded that the driver and owner exhibited no negligence. Since they could not have foreseen or prevented the failure that caused the accident, they were not held liable for the unfortunate outcome. ### **CONCLUSION** In tort law, accident can be used as defence i.e. inevitable accident by proving the nature of an accident. The defendant can escape from his liability if the nature of the accident caused by him was unforeseeable, unintentional that could not be avoided despite all reasonable care by the defendant. Thus, the inevitable accident is significant defence in the law of tort which involves accidents that could not have been prevented by the parties although there was an exercise of reasonable care, caution, and skill. It is also known as unavoidable accident defence. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. R. K Bangia, Law of Torts (Allahabad Law Agency 2023) 2. **Online Articles / Sources Referred** 1. [https://lawcorner.in/inevitable-accident-in-tort/#Types\_of\_Inevitable\_Accident\_in\_Tort](https://lawcorner.in/inevitable-accident-in-tort/#Types_of_Inevitable_Accident_in_Tort) 2. . 3. 4. [manupatra.com](http://www.manupatra.com) 5. 3. **Cases Referred** 1. Holmes v. Mather, (1875) LR 10 2. Stanley v. Powell, 1 QB 86 (1891 3. Brown v. Kendall,60 Mass.292 (1850) 4. Fardon v. Harcourt-Rivington, (1932) 146 Lt 391 5. Padmavati v. Dugganaika (1975) **Categories:** Articles --- ### [SALE UNDER TRANSFER OF PROPERTY ACT: PROVISIONS, ESSENTIAL PRINCIPLE AND CASES](https://lawfoyer.in/sale-under-transfer-of-property-act-provisions-essential-principle-and-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Rituparna Panda, Birla Global University Bhubneswar

INTRODUCTION

The integral component of Indian Property Law is the Transfer of Property Act 1882. It supervises the transfer of ownership of immovable property by various means which includes sale. According to the Transfer of Property Act Sale succinctly means “Transfer of ownership in exchange for a price paid or promised, or part paid or part promised”[1]. If we bifurcate this definition, it highlights the three substantial elements of sale i.e., Transfer of ownership which means the person who sells the property voluntarily yields over the ownership of the said property to the purchaser, Second element that this definition put lights on is Price as the transfer is done some monetary value is received in return. Lastly it concentrates on the payment terms which says that the price of the purchase can be settled as a whole, in instalments, or can be partially paid with a remainder pledged for later. Following each sale, the buyer receives full ownership rights to the property as specified in the 'selling agreement'. Ideally, every sale is registered with the sub-registrar's office. A verbal contract is legal alongside the written contract, albeit it is not recommended. Stamp duty is incurred on each selling transaction, based on the selling price or sale value of the property.
  • Keywords (Minimum 5): Transfer of Property Act, 1882 (TPA), Sale of immovable property, Ownership transfer, Consideration (price), Registration of sale deed.

Historical Background / Evolution

Prior to the implementation of TPA 1882, property transfer in India was done in a very complicated procedure-
  • Personal Laws- As we know India is called the ‘Land of Diversity’, having various religious community like Hindu and Muslim and they having their own personal laws and rules regarding the transfer of property resulting in discrepancies and lack of standardization throughout the country.
  • Civil Procedure Code 1859- This code offered a primitive foundation for carrying out the court rulings which at a time involved property transfers. However, it somehow lacked behind in framing the regulations that will govern sales transaction.
  • Indian Contract Act 1872- This act was established to govern the principles of contract law, which also has some rules and regulations utilised for sale agreement to some extent. However it did not covered the specifics of property transfer.
This decentralised legal system led to ambiguity and discrepancies, making it challenging for the buyers and sellers to foresee the transaction outcomes. This resulted in a lot of disagreements ultimately leading to limitless lawsuits. This lead to an urge of having an universal laws that will facilitate secured property transactions across the country, thereby meeting the requirements for clarity and standardization. It was the time when British Colonial Administration came into the picture and adopted TPA 1882 to codify the existing laws and principle that regulates the property transfers. It streamlined the sales procedure by identifying the key aspects, rights and duties for both the parties involved. The TPA was designed in an uniform system for registering the sale deeds, that not only ensures the public record but also strengthens the legal protection. This key milestone in Indian property law, with subsequent revisions and court interpretations, forms the foundation of property transfer legislation today.

Comparison with other Countries

While TPA in India provides a codified framework, while other nations have their own legal frameworks for regulating the property sales. Here are some of ideas for comparison-
  • Property Transaction in common Law jurisdictions, such as England and the United States, are influenced by the common law concepts.
    • Fraud Statutes- These jurisdictions, like TPA, demand that certain transactions (like as land sales) be in writing.
    • Recording Systems-To provide openness and legal certainty, several countries establish public land registries.
  • Civil Law jurisdictions such as France and Germany.
  • Notarial System- Notaries are important in transfer of property in territories where civil law prevails.
  • Formalities- Strict procedure are often need to be followed for property transactions.
  • Publicity- The public record consists of the details about ownership of property.
  • Country Specific Practices-
  • United States- Each has a unique set of property laws, such as those governing sales, deeds and title transfers.
  • United Kingdom- The land registry handles property records, guaranteeing openness and efficiency in the conveyancing process.
  • Germany- Notaries regulates the property transfers, and registration is required for legal validity.

Types / Kinds 

There are two kinds of sale-
  • Conditional Sale
  • Sale with Leaseback
  • Conditional Sale- Certain criteria, such as getting government clearances or resolving title problems, must be met before the transaction may go through.
  • Sale with Leaseback- Under a lease arrangement, the seller leases the property to the buyer while retaining ownership for a set amount of time.

Forms / Modes 

The mode is dependent on the value of the property-
  • Registration- For immovable property worth Rs.100 or more, the sale needs to be registered under the Registration Act 1908 for lawfully transfer of ownership.
  • Delivery of Possession (Limited)- For the properties worth less than Rs. 100, an authorized sale can be accomplished merely by handling over the actual possession of the property to the purchaser. However, for greater legal protection registration act as a best safeguard.

Essentials / Elements / Pre-requisites

The Transfer of Property Act (TPA) defines numerous basic requirements for a legitimate sale of immovable property-
  • Competent Parties-
  • Seller (Transferor)- The seller must be legally authorized to transfer the ownership. This essentially means that they needs to be of sound mind, an adult (above 18 years of age), and must not be disqualified by any law.
  • Buyer (Transferee)- Similarly like the transferer the transferee requires to be competent to get involved in such kind of contract.
  • Transferrable Subject Matter-
The agreement to purchase involves immovable property, which includes land, buildings, and anything permanently linked to the earth.
  • Price (Consideration)-
The considerations needs to be first set and it needs to be determinable. Mostly the consideration is monetary in nature but it may also include other types of significant reimbursements, which needs to be agreed by both the parties.

Contract Of Sale-

A Contract for Sale under section 54 of TPA is defined as an agreement between an seller and buyer that a certain immovable property would be sold on the terms and conditions agreed upon between them. The aforementioned contract does not transfer the ownership of the property but instead it defines the parameters and circumstances for a future transfer.
  • Essentials-
  1. Competent Parties- Both the seller as well as buyer needs to be legally competent i.e., they must be of sound mind and must be above the age of 18, and must not be disqualified by any law.
  2. Transferrable Subject Matter- The immovable property means the property which are permanently linked to the earth like land, buildings etc, must be the subject matter of the agreement.
  3. Definite and determinable Price- The agreement made for the property must be in exchange of a definite amount of consideration which can be paid fully or in instalments.
  4. Terms and Conditions- The agreement needs to have the terms and conditions clearly-
  • The description of the property should be precise enough to identify it individually.
  • The timing and parameters under which the buyer will take physical possession of the property.
  • The agreement also specifies about who will be responsible for any loss or damages occurred in the property before the completion of the transaction.
  • Any extra criteria required needs to be completed before the sale took place. Like- getting permissions or resolving title difficulties etc.
  • Importance of Contract for Sale-
  • A well drafted contract gives the clarity and certainty that helps in protecting both buyer and seller, by clearly elaborating them their rights and duties and reducing the conflicts that may arise in future.
  • It also helps in legally enforcing, if either parties violates the term of the contract.
  • It helps in formally transfer of title upon registration and the provisions agreed upon acts as a foundation of the final sale deed.
It is a very critical task to analysis and recall that a contract of sale under this act generates ‘Right in Personam’[2] for the buyer which means it may be enforced against the seller only. The seller retains title of the property until the transaction is finalised by registering the selling deed, which creates a ‘Right in Rem’[3] that is enforceable against everyone.

Case Laws / Precedents / Overrulings

  • VIDYADHAR V. MANIKRAO (1999)[4] 
In this case the supreme court ruled that ‘a sale’ required the intention of the party to transfer the ownership of the property. The purpose is derived from the disclosures in the sale deed, the parties actions and the evidence on file.
  • COMMISIONER OF INCOME TAX V. M/S MOTOR AND GENERAL STORES (1967)[5]
In this case the Supreme Court held that the price, in the general terms refers to monetary gains for the sale of the property. It was also additionally determined that if any other consideration is retained, then the transaction will not be considered as a sale rather it will be determined as exchange or barter.
  • HAKIM SINGH V. RAM SNEHI (2001)[6]
In this case the Allahabad court held that insufficiency in payment is not a significant factor in sale. Even if the court discovers that the price or the consideration given is less than the property’s worth in the market, the sale nonetheless will be considered to be legitimate.

Doctrines / Theories 

While the TPA 1882 has not given any specific emphasis on the “doctrines” in relation to sale but here are some of the frequently referred doctrines which are applicable to sales-
  • Doctrine of Estopple-
This theory strictly prohibits a person from rejecting or contradicted to its opinion that they had already mentioned and if the other party acted according to it and had faced a huge damage as result of it. Under sale this may be very important in case where the seller makes any misleading claim regarding the property, causing the buyer to engage into the transaction and then attempting to back out from the same. In such circumstances this doctrine will act as a boon for the buyers as it will prevent the seller from refuting its representation because of buyer’s trust and possible loss.
  • Doctrine of Caveat Emptor-
This doctrine especially gives an idea which means “let the buyer beaware” typically expressing that the buyer will be responsible for investigating and ensuring the condition of the property that they are buying. While not specifically stated, the TPA's emphasis on "caveat venditor" (let the seller beware) through mandated disclosures and potential penalties for seller misrepresentations offers a framework that somewhat mitigates the strictness of "caveat emptor."
  • Doctrine of Election[7] -
This idea came into existence when the person has the right to claim the same property under two or more contradictory titles. Here the individual can select only one title, not entitle for both.

CONCLUSION & COMMENTS

The Transfer of Property Act 1882, is an important regulation in India that serves seamless and safely sale of immovable property. It safeguards the rights and interests of purchasers and sellers by setting an unambiguous structure for ownership transfer. Understanding the characteristics enables people to navigate the sales procedure with assurance and protect their interests. Further research into current events and upcoming trends might assist negotiate the intricacies of selling under the TPA.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. THE TRANSFER OF PROPERTY ACT BY-DR. R.K. SINHA
  2. Online Articles / Sources Referred
    1. https://www.coursehero.com/file/92741157/Sale-and-Exchange-under-Transfer-of-Property-Actdocx/
    2. https://blog.ipleaders.in/sale-under-transfer-of-property-act-1882/
  1. Cases Referred
    1. https://indiankanoon.org/doc/1332419/
    2. https://indiankanoon.org/doc/1798885/
    3. https://indiankanoon.org/doc/1898632/
    4. https://www.casemine.com/judgement/in/5767b11ae691cb22da6d3514
  2. Statutes Referred
    1. Transfer of Property Act 1882
    2. The Indian Contract Act 1872
[1] Section 54 of Transfer of Property Act 1882. [2] It gives the person rights against one person or party to the contract. [3] It gives the right that relates to a specific property and can be enforced against anyone who interferes with the property. [4] AIR 1999 SC 1441 [5] 1968 AIR 200 [6] (1908) ILR 30 ALI 248 [7] Section 40 of TPA 1882 **Content:** **Author-Rituparna Panda, Birla Global University Bhubneswar** ### **INTRODUCTION** The integral component of Indian Property Law is the Transfer of Property Act 1882. It supervises the transfer of ownership of immovable property by various means which includes sale. According to the Transfer of Property Act Sale succinctly means “Transfer of ownership in exchange for a price paid or promised, or part paid or part promised”[\[1\]](#_ftn1). If we bifurcate this definition, it highlights the three substantial elements of sale i.e., Transfer of ownership which means the person who sells the property voluntarily yields over the ownership of the said property to the purchaser, Second element that this definition put lights on is Price as the transfer is done some monetary value is received in return. Lastly it concentrates on the payment terms which says that the price of the purchase can be settled as a whole, in instalments, or can be partially paid with a remainder pledged for later. Following each sale, the buyer receives full ownership rights to the property as specified in the ‘selling agreement’. Ideally, every sale is registered with the sub-registrar’s office. A verbal contract is legal alongside the written contract, albeit it is not recommended. Stamp duty is incurred on each selling transaction, based on the selling price or sale value of the property. - ***Keywords* *(Minimum 5)*:** Transfer of Property Act, 1882 (TPA), Sale of immovable property, Ownership transfer, Consideration (price), Registration of sale deed. ### **Historical Background / Evolution** Prior to the implementation of TPA 1882, property transfer in India was done in a very complicated procedure- - Personal Laws- As we know India is called the ‘Land of Diversity’, having various religious community like Hindu and Muslim and they having their own personal laws and rules regarding the transfer of property resulting in discrepancies and lack of standardization throughout the country. - Civil Procedure Code 1859- This code offered a primitive foundation for carrying out the court rulings which at a time involved property transfers. However, it somehow lacked behind in framing the regulations that will govern sales transaction. - Indian Contract Act 1872- This act was established to govern the principles of contract law, which also has some rules and regulations utilised for sale agreement to some extent. However it did not covered the specifics of property transfer. This decentralised legal system led to ambiguity and discrepancies, making it challenging for the buyers and sellers to foresee the transaction outcomes. This resulted in a lot of disagreements ultimately leading to limitless lawsuits. This lead to an urge of having an universal laws that will facilitate secured property transactions across the country, thereby meeting the requirements for clarity and standardization. It was the time when British Colonial Administration came into the picture and adopted TPA 1882 to codify the existing laws and principle that regulates the property transfers. It streamlined the sales procedure by identifying the key aspects, rights and duties for both the parties involved. The TPA was designed in an uniform system for registering the sale deeds, that not only ensures the public record but also strengthens the legal protection. This key milestone in Indian property law, with subsequent revisions and court interpretations, forms the foundation of property transfer legislation today. ### **Comparison with other Countries** While TPA in India provides a codified framework, while other nations have their own legal frameworks for regulating the property sales. Here are some of ideas for comparison- - Property Transaction in common Law jurisdictions, such as England and the United States, are influenced by the common law concepts. - Fraud Statutes- These jurisdictions, like TPA, demand that certain transactions (like as land sales) be in writing. - Recording Systems-To provide openness and legal certainty, several countries establish public land registries. - Civil Law jurisdictions such as France and Germany. - Notarial System- Notaries are important in transfer of property in territories where civil law prevails. - Formalities- Strict procedure are often need to be followed for property transactions. - Publicity- The public record consists of the details about ownership of property. - Country Specific Practices- - United States- Each has a unique set of property laws, such as those governing sales, deeds and title transfers. - United Kingdom- The land registry handles property records, guaranteeing openness and efficiency in the conveyancing process. - Germany- Notaries regulates the property transfers, and registration is required for legal validity. ### **Types / Kinds** There are two kinds of sale- - Conditional Sale - Sale with Leaseback - Conditional Sale- Certain criteria, such as getting government clearances or resolving title problems, must be met before the transaction may go through. - Sale with Leaseback- Under a lease arrangement, the seller leases the property to the buyer while retaining ownership for a set amount of time. ### **Forms / Modes** The mode is dependent on the value of the property- - Registration- For immovable property worth Rs.100 or more, the sale needs to be registered under the Registration Act 1908 for lawfully transfer of ownership. - Delivery of Possession (Limited)- For the properties worth less than Rs. 100, an authorized sale can be accomplished merely by handling over the actual possession of the property to the purchaser. However, for greater legal protection registration act as a best safeguard. ### **Essentials / Elements / Pre-requisites** The Transfer of Property Act (TPA) defines numerous basic requirements for a legitimate sale of immovable property- - Competent Parties- - Seller (Transferor)- The seller must be legally authorized to transfer the ownership. This essentially means that they needs to be of sound mind, an adult (above 18 years of age), and must not be disqualified by any law. - Buyer (Transferee)- Similarly like the transferer the transferee requires to be competent to get involved in such kind of contract. - Transferrable Subject Matter- The agreement to purchase involves immovable property, which includes land, buildings, and anything permanently linked to the earth. - Price (Consideration)- The considerations needs to be first set and it needs to be determinable. Mostly the consideration is monetary in nature but it may also include other types of significant reimbursements, which needs to be agreed by both the parties. ### **Contract Of Sale-** A Contract for Sale under section 54 of TPA is defined as an agreement between an seller and buyer that a certain immovable property would be sold on the terms and conditions agreed upon between them. The aforementioned contract does not transfer the ownership of the property but instead it defines the parameters and circumstances for a future transfer. - Essentials- 1. Competent Parties- Both the seller as well as buyer needs to be legally competent i.e., they must be of sound mind and must be above the age of 18, and must not be disqualified by any law. 2. Transferrable Subject Matter- The immovable property means the property which are permanently linked to the earth like land, buildings etc, must be the subject matter of the agreement. 3. Definite and determinable Price- The agreement made for the property must be in exchange of a definite amount of consideration which can be paid fully or in instalments. 4. Terms and Conditions- The agreement needs to have the terms and conditions clearly- - The description of the property should be precise enough to identify it individually. - The timing and parameters under which the buyer will take physical possession of the property. - The agreement also specifies about who will be responsible for any loss or damages occurred in the property before the completion of the transaction. - Any extra criteria required needs to be completed before the sale took place. Like- getting permissions or resolving title difficulties etc. - Importance of Contract for Sale- - A well drafted contract gives the clarity and certainty that helps in protecting both buyer and seller, by clearly elaborating them their rights and duties and reducing the conflicts that may arise in future. - It also helps in legally enforcing, if either parties violates the term of the contract. - It helps in formally transfer of title upon registration and the provisions agreed upon acts as a foundation of the final sale deed. It is a very critical task to analysis and recall that a contract of sale under this act generates ‘Right in Personam’[\[2\]](#_ftn2) for the buyer which means it may be enforced against the seller only. The seller retains title of the property until the transaction is finalised by registering the selling deed, which creates a ‘Right in Rem’[\[3\]](#_ftn3) that is enforceable against everyone. ### **Case Laws / Precedents / Overrulings** - **VIDYADHAR V. MANIKRAO (1999)[\[4\]](#_ftn4)** In this case the supreme court ruled that ‘a sale’ required the intention of the party to transfer the ownership of the property. The purpose is derived from the disclosures in the sale deed, the parties actions and the evidence on file. - **COMMISIONER OF INCOME TAX V. M/S MOTOR AND GENERAL STORES (1967)[\[5\]](#_ftn5)** In this case the Supreme Court held that the price, in the general terms refers to monetary gains for the sale of the property. It was also additionally determined that if any other consideration is retained, then the transaction will not be considered as a sale rather it will be determined as exchange or barter. - **HAKIM SINGH V. RAM SNEHI (2001)[\[6\]](#_ftn6)** In this case the Allahabad court held that insufficiency in payment is not a significant factor in sale. Even if the court discovers that the price or the consideration given is less than the property’s worth in the market, the sale nonetheless will be considered to be legitimate. ### **Doctrines / Theories** While the TPA 1882 has not given any specific emphasis on the “doctrines” in relation to sale but here are some of the frequently referred doctrines which are applicable to sales- - Doctrine of Estopple- This theory strictly prohibits a person from rejecting or contradicted to its opinion that they had already mentioned and if the other party acted according to it and had faced a huge damage as result of it. Under sale this may be very important in case where the seller makes any misleading claim regarding the property, causing the buyer to engage into the transaction and then attempting to back out from the same. In such circumstances this doctrine will act as a boon for the buyers as it will prevent the seller from refuting its representation because of buyer’s trust and possible loss. - Doctrine of Caveat Emptor- This doctrine especially gives an idea which means “let the buyer beaware” typically expressing that the buyer will be responsible for investigating and ensuring the condition of the property that they are buying. While not specifically stated, the TPA’s emphasis on “caveat venditor” (let the seller beware) through mandated disclosures and potential penalties for seller misrepresentations offers a framework that somewhat mitigates the strictness of “caveat emptor.” - Doctrine of Election[\[7\]](#_ftn7) – This idea came into existence when the person has the right to claim the same property under two or more contradictory titles. Here the individual can select only one title, not entitle for both. ### **CONCLUSION & COMMENTS** The Transfer of Property Act 1882, is an important regulation in India that serves seamless and safely sale of immovable property. It safeguards the rights and interests of purchasers and sellers by setting an unambiguous structure for ownership transfer. Understanding the characteristics enables people to navigate the sales procedure with assurance and protect their interests. Further research into current events and upcoming trends might assist negotiate the intricacies of selling under the TPA. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. THE TRANSFER OF PROPERTY ACT BY-DR. R.K. SINHA 2. **Online Articles / Sources Referred** 1. 2. 3. **Cases Referred** 1. 2. 3. 4. https://www.casemine.com/judgement/in/5767b11ae691cb22da6d3514 4. **Statutes Referred** 1. Transfer of Property Act 1882 2. The Indian Contract Act 1872 [\[1\]](#_ftnref1) Section 54 of Transfer of Property Act 1882. [\[2\]](#_ftnref2) It gives the person rights against one person or party to the contract. [\[3\]](#_ftnref3) It gives the right that relates to a specific property and can be enforced against anyone who interferes with the property. [\[4\]](#_ftnref4) AIR 1999 SC 1441 [\[5\]](#_ftnref5) 1968 AIR 200 [\[6\]](#_ftnref6) (1908) ILR 30 ALI 248 [\[7\]](#_ftnref7) Section 40 of TPA 1882 **Categories:** Articles --- ### [MORTGAGE UNDER TRANSFER OF PROPERTY ACT](https://lawfoyer.in/mortgage-under-transfer-of-property-act/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Sushree Sangita Panda, Birla Global University, Bhubaneswar

INTRODUCTION

Mortgage is one of the most significant components of property law as it gives permission to people to receive funds or loans to purchase property. Simply Mortgage is something when a person gives a specific immovable property to another person and receives money against that property as a loan amount. That property acts as a security for the payment of future debt. It is a transfer of Partial interest for future payment which creates a pecuniary liability on the same. In India, Transfer of Property Act, 1882 governs the creation, redemption, enforcement, functions etc of the mortgage. Transfer of Property act 1882 also governs various typer of property transfer as well among which Mortgage is one. This research article dives into the elaborating description of the concept ‘MORTGAGE’ along with its principles, essentials, components, effects etc. The rules regulating mortgages under the TP Act incorporate important elements from property law, such as the redemption and priority principles. This study investigates key case laws and academic interpretations to gain insight into the actual implementation and interpretation of mortgage law under the TP Act. Keywords (Minimum 5): Mortgage, Transfer of Property Act, 1882, Property law, Immovable property, pecuniary Liability, Repayment of future debt.

Meaning, Definition & Explanation

According to section 58 of Transfer of Property Act 1882, “Mortgage is the transfer of an interest of an immovable property for the purpose of securing money in advanced, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.” Simply we can say mortgage is one kind of security given by the borrower who is also known as a Mortgager to another party which is known as Mortgagee, on for paying back the loan amount. This concept of Mortgage is only applicable in Immovable of property.  By giving Mortgage, the Mortgager does not transfer the ownership right but only Transfers some right over that specific immovable property to the Mortgagee like In case the borrower fails to pay back the loans the mortgagee has the right to the authority over that property or to sale it for receiving its debt back. Furthermore, more often Mortgage is subjected to certain legal requirements such as registration the instrument to assure their legitimacy and enforceability.

Historical Background / Evolution

The concept “mortgage” has very ancient historical roots which can be traced back in various ancient civilizations. In the clay tablets which were received from Ancient Mesopotamia Civilization has also some traces of Mortgage. In that era also people used to give their property as collateral for loans. This method was also way too much common in ancient Egypt civilization. In Egypt civilization people used to lent their property to temples or rich person to get loans and when they pay the amount back, they used to receive their property back. In 1750 BCE, in BABYLON there was the first legal system which had framed some rules which were related to security for Loans. In ancient India there was also the practice of Mortgage which has been traced in “ ARTHASHASTRA” which talks about different types of loans which were secured by some guarantees. Another Ancient legal sculptures known as “DHARMASASHTRA” also addresses the issue of Mortgage in it along with the rights and liability of Borrowers and Lenders. Thus, the ancient practice of Mortgage unfolds the utilization of property as a collateral for loans by representing the universal requirement of security against the loans.

Comparison with other Countries

A comparison of Mortgage statues in various countries indicates a wide diversity of legislative structure and methods of governing property financing and security arrangement for the same. Although the legislative framework for rules and regulation of every nation is different from each other and every nation has its own peculiarities and antecedents, but a strong yet deep examination of mortgage laws all across the globe reveals its universal concept and theme of the procedure. The followings are some brief details about Mortgage laws of different countries;
  • UNITED STATES
The Mortgage regulation in US is governed by state laws. But certain federal rules like TILA[1] and RESPA[2] also plays a pivotal role to governing those Mortgage laws. The extensive usage of mortgaged-backed securities and secondary mortgage market are two specific features which Distinguishes the US mortgage system from the mortgage system of other nations. The eviction procedure in US differs from state to state. Some states require judicial foreclosure while some states permit non judicial foreclosure as well.
  • UNITED KINGDOM
In UK mortgage laws are regulated by two statues The Law of Property Act 1925 and Land Registration Act 2002. In UK market there are various types of options available for Mortgages like fixed-rate mortgages, variable-rate mortgages, interest only Mortgages etc.  For safeguarding the rights of Borrowers, the foreclosure procedure in UK includes judicial hearings and strong regulatory rules.
  • CANADA
The Mortgage regulation in Canada is overseen by Provincial laws and some federal rules like CMHC[3] and Bank Acts etc also plays significant Role and Impact on Mortgage laws. The Canadian Mortgage market stands out from the crowd for its high percentage of Homeownership and a diverse range of mortgage which comprises of fixed-rate, variable rate and hybrid mortgages. The procedure of foreclosure in Canada is similar to US.
  • INDIA
The Mortgage laws in India is controlled by TPA[4] and SARFAESI[5] act. Mortgage market in India offers a variety of mortgage merchandise like basic mortgage, conditional sale mortgage, Usufructuary mortgage etc. In India the process of foreclosure includes both Judicial and non-judicial approaches.

ESSENTIALS OF MORTGAGES UNDER TP ACT

The Transfer of Property Act,1882 Defines a certain legislative framework to regulate the procedures of Mortgages. Hence, there are certain essential conditions which needs to be fulfilled for the transaction mortgage. Such as;
  • TRANSFER OF INTEREST
As per the definition under the Act, Mortgage is a transmission of stake(interest) of a specific immovable property from borrower(mortgager) to the lender(mortgagee) for a specific amount of consideration. This transfer does not mean the entire transfer of Ownership but it generates certain rights to the lender as a security interest. In case of default, the lender of money has the right to acquire or sale the property for foreclosure of the debt.
  • THERE SHOULD BE A SPECIFIC IMMOVABLE PROPERTY
The property which will be mortgaged should be the specific and immovable one. There should not be any ambiguous about which property is mortgaged. Everything should be crystal clear about that particular property.
  • RIGHT TO SALE
By transferring the rights, the borrower gives certain rights to the lender to exercise over that particular mortgaged property. This right also includes Right to sale for foreclosure of the amount.
  • REDEMPTION RIGHT
The Transfer of Property Act also Recognizes the right of the Mortgager to REDEEM his property after repaying the debt amount. When the mortgager will fully pay the debt amount, he has the right to claim his property back. This right protects the interest of Borrower from loosing their property permanently just because of their temporary financial problem.

TYPES OF MORTGAGES UNDER TP ACT

The Transfer of Property Act highlights different types of mortgages in India. Each of them is different from each other as per characteristics and everything. They are;
  • SIMPLE MORTGAGE
Simple mortgage is dealt under section 58(b) of TP act. This is the most prevalent category of mortgage in India in which the borrower keeps the control over the collateral with him while transferring the right to sale to the lender. In the event of default, the mortgaged property will be sold by the other party to recover the debt amount.  In this case property can also be sold with the permission of court while there is a default in payment of the debt.
  • MORTGAGE BY CONDITIONAL SALE
This type of Mortgage is dealt under section 58(c) of Transfer of Property Act 1882. Mortgage by conditional sale means temporary change of ownership of the specific property by mortgager to the mortgagee. When the party pays back the debt amount the mortgaged property will be reverted back to its original owner. Furthermore, any condition which will prevent the mortgager to redeem his property back, will be considered as invalid.
  • MORTGAGE BY DEPOSIT OF TITLE DEED
Under section 58(f) of TP Act deals with ‘Mortgage by deposit of title deed’ which is also known as an equitable mortgage. In this type of mortgage, the mortgager deposits the deed of title of the property to the mortgagee as security. However, the ownership still remains with the mortgager and the deposit of title doesn’t grant the permission to the mortgagee to right to sale the property, automatically. In case of default, the mortgagee can only sale the property if there is a separate deed about the sale. This method is primarily used for short term loans or temporary securities.
  • USUFRUCTUARY MORTGAGE
This type of mortgage is defined under section 58(d) of Transfer of Property act 1882. This is one of the less prevalent kinds of mortgage, which states that the mortgagee can obtain the possession over the mortgaged property within the loan period. In exchange the mortgagee receives the right to collect rent from that mortgaged property which he will use as an interest amount. Although, the risk of repayment of loan is borne completely by the mortgager.
  • ANOMALOUS MORTGAGE
This type of mortgage is dealt under section 58(g) of Transfer of Property Act,1882. This is one type of special arrangement which is made on the basis of specific agreement which is created between Mortgager and Mortgagee. Sometimes, this type of mortgage involves components of different types of mortgages within it. In short, those types of mortgages which are not been mentioned under any of the other above-mentioned types, those will be covered under this Anomalous mortgage category. In this type of Mortgage is it crucial understand rights and duties of each party as this type of mortgage is based special agreement between the two parties. So before entering into this type of mortgage, legal advice is a must.
  • ENGLISH MORTGAGE
This is a type of mortgage which has been defined under section 58(e) of Transfer of Property Act,1882. In this type, there is an absolute transfer of property to the mortgagee but there is a condition that the debt amount needs to be paid in one particular date and after the completion of this procedure the mortgagee will re-transfer the property back to the mortgagor. In this type of mortgage, the mortgager by giving the absolute right over property to the mortgagee creates a binding force upon himself to repay the debt within that decided period. And it is also necessary that the specific decided date should be mentioned in the contract o which the debt should be return back.

MODES OF COMPLETING MORTGAGES

The process of mortgage is simple both simple and crucial at the Same time. For completion there are various modes and methods through which the transaction needs to be passed for getting formalized and finalized. These methods or modes are generally dependable upon the rules and legal requirements of various jurisdiction. They are;
  • REGISTRATION
  • DELIVERY OF POSSESSION
  • DEPOSIT OF TITLE DEEDS
  • APPROVAL FROM REGULATORY AUTHORITY
REGISTRATION As we know as per the general rule of TP Act, every transaction of immovable property more than amount of 100 Rs need to be registered. But there is one exception to this which is ‘Mortgage by deposits of title deeds’. Except this type this general rule of registration applies to every other type of mortgage. When registration is necessary, the mortgage must be in writing and should be attested with 2 or more witnesses. It also needs to be signed and registered as per the provision of registration. DELIVERY OF POSSESSION Mere delivery of possession of the property is sufficient to constitute a valid mortgage. Delivery of possession is one of the ground which constructs a valid mortgage and it includes, delivery of possession from mortgagor to mortgagee. DEPOSIT OF TITLE DEEDS Mortgage where title deed is deposited, this type of mortgage doesn’t need registration. In this type of mortgage, a person takes some amount as a loan and deposits the title deed of the mortgaged property. This mode of transaction is generally done in the matters which are related to real estate or immovable property. APPROVAL OF REGULATORY AUTHORITY In certain cases, execution of mortgage involves approval from the regulatory authority as well. it generally happens when the transaction is involved in financial institutions or regulatory sectors.

CASE LAW

  • GLORY AND ANOTHER VS MURUGAN AND ANOTHER[6]
In this case it was held that it is necessary to mention in the mortgage dee that whether that particular transaction is for the mortgage or not. Or else the transaction will be treated as a sale, rather than a mortgage by conditional sale.
  • SYNDICATE BANK VS M. SIVARUDRAPPA[7]
In this case the mortgager has claimed that he has mortgaged his property by executing a memorandum of deposits of title deeds. But the Mortgagee, which is the bank, denied the same on the ground of discrepancy in signature of the witnesses who were there for attesting. In this case the Karnataka High Court held that, the suit for recovery of money is to be dismissed as the mortgagor failed to prove the originality and enforceability of the mortgage deed.

CONCLUSION & COMMENTS

Mortgage is one of the basic yet crucial type of transfer which is dealt under Transfer of Property Act, 1882. It is used in the everyday life of individuals, whenever they need financial help. Mortgage in itself is a very wide concept which gives rise to various rights and circumstances. For determining whether a transaction is a mortgage transaction or not, it need to examine properly that all the essential conditions of the mortgage transaction is fulfilled or not. Hence, in case of mortgage transaction another important factor is intention of the party. However, there is no transaction of ownership in mortgage but temporary possession is there.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. The Transfer of Property act by DR. R.K. SINHA
  2. Online Articles / Sources Referred
    1. https://www.legalserviceindia.com/legal/article-6078-mortgage.html
    2. https://blog.ipleaders.in/mortgage-and-charge-of-immovable-property-under-transfer-of-property-act-1882/
  3. Statutes Referred
    1. Transfer of Property Act, 1882
[1] Truth in Lending Act [2] Real Estate Settlement Procedure Act [3] Canada Mortgage and Housing Corporation [4] Transfer of Property Act,1882 [5] Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [6] AIR 2019 Mad 346 [7] AIR 2003 Kant. 210 **Content:** **Author-Sushree Sangita Panda, Birla Global University, Bhubaneswar** ### **INTRODUCTION** Mortgage is one of the most significant components of property law as it gives permission to people to receive funds or loans to purchase property. Simply Mortgage is something when a person gives a specific immovable property to another person and receives money against that property as a loan amount. That property acts as a security for the payment of future debt. It is a transfer of Partial interest for future payment which creates a pecuniary liability on the same. In India, Transfer of Property Act, 1882 governs the creation, redemption, enforcement, functions etc of the mortgage. Transfer of Property act 1882 also governs various typer of property transfer as well among which Mortgage is one. This research article dives into the elaborating description of the concept ‘MORTGAGE’ along with its principles, essentials, components, effects etc. The rules regulating mortgages under the TP Act incorporate important elements from property law, such as the redemption and priority principles. This study investigates key case laws and academic interpretations to gain insight into the actual implementation and interpretation of mortgage law under the TP Act. ***Keywords* *(Minimum 5)*:** Mortgage, Transfer of Property Act, 1882, Property law, Immovable property, pecuniary Liability, Repayment of future debt. ### **Meaning, Definition & Explanation** According to section 58 of Transfer of Property Act 1882, “Mortgage is the transfer of an interest of an immovable property for the purpose of securing money in advanced, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.” Simply we can say mortgage is one kind of security given by the borrower who is also known as a Mortgager to another party which is known as Mortgagee, on for paying back the loan amount. This concept of Mortgage is only applicable in Immovable of property. By giving Mortgage, the Mortgager does not transfer the ownership right but only Transfers some right over that specific immovable property to the Mortgagee like In case the borrower fails to pay back the loans the mortgagee has the right to the authority over that property or to sale it for receiving its debt back. Furthermore, more often Mortgage is subjected to certain legal requirements such as registration the instrument to assure their legitimacy and enforceability. ### **Historical Background / Evolution** The concept “mortgage” has very ancient historical roots which can be traced back in various ancient civilizations. In the clay tablets which were received from Ancient Mesopotamia Civilization has also some traces of Mortgage. In that era also people used to give their property as collateral for loans. This method was also way too much common in ancient Egypt civilization. In Egypt civilization people used to lent their property to temples or rich person to get loans and when they pay the amount back, they used to receive their property back. In 1750 BCE, in BABYLON there was the first legal system which had framed some rules which were related to security for Loans. In ancient India there was also the practice of Mortgage which has been traced in “ ARTHASHASTRA” which talks about different types of loans which were secured by some guarantees. Another Ancient legal sculptures known as “DHARMASASHTRA” also addresses the issue of Mortgage in it along with the rights and liability of Borrowers and Lenders. Thus, the ancient practice of Mortgage unfolds the utilization of property as a collateral for loans by representing the universal requirement of security against the loans. ### **Comparison with other Countries** A comparison of Mortgage statues in various countries indicates a wide diversity of legislative structure and methods of governing property financing and security arrangement for the same. Although the legislative framework for rules and regulation of every nation is different from each other and every nation has its own peculiarities and antecedents, but a strong yet deep examination of mortgage laws all across the globe reveals its universal concept and theme of the procedure. The followings are some brief details about Mortgage laws of different countries; - **UNITED STATES** The Mortgage regulation in US is governed by state laws. But certain federal rules like TILA[\[1\]](#_ftn1) and RESPA[\[2\]](#_ftn2) also plays a pivotal role to governing those Mortgage laws. The extensive usage of mortgaged-backed securities and secondary mortgage market are two specific features which Distinguishes the US mortgage system from the mortgage system of other nations. The eviction procedure in US differs from state to state. Some states require judicial foreclosure while some states permit non judicial foreclosure as well. - **UNITED KINGDOM** In UK mortgage laws are regulated by two statues The Law of Property Act 1925 and Land Registration Act 2002. In UK market there are various types of options available for Mortgages like fixed-rate mortgages, variable-rate mortgages, interest only Mortgages etc. For safeguarding the rights of Borrowers, the foreclosure procedure in UK includes judicial hearings and strong regulatory rules. - **CANADA** The Mortgage regulation in Canada is overseen by Provincial laws and some federal rules like CMHC[\[3\]](#_ftn3) and Bank Acts etc also plays significant Role and Impact on Mortgage laws. The Canadian Mortgage market stands out from the crowd for its high percentage of Homeownership and a diverse range of mortgage which comprises of fixed-rate, variable rate and hybrid mortgages. The procedure of foreclosure in Canada is similar to US. - **INDIA** The Mortgage laws in India is controlled by TPA[\[4\]](#_ftn4) and SARFAESI[\[5\]](#_ftn5) act. Mortgage market in India offers a variety of mortgage merchandise like basic mortgage, conditional sale mortgage, Usufructuary mortgage etc. In India the process of foreclosure includes both Judicial and non-judicial approaches. ### **ESSENTIALS OF MORTGAGES UNDER TP ACT** The Transfer of Property Act,1882 Defines a certain legislative framework to regulate the procedures of Mortgages. Hence, there are certain essential conditions which needs to be fulfilled for the transaction mortgage. Such as; - **TRANSFER OF INTEREST** As per the definition under the Act, Mortgage is a transmission of stake(interest) of a specific immovable property from borrower(mortgager) to the lender(mortgagee) for a specific amount of consideration. This transfer does not mean the entire transfer of Ownership but it generates certain rights to the lender as a security interest. In case of default, the lender of money has the right to acquire or sale the property for foreclosure of the debt. - **THERE SHOULD BE A SPECIFIC IMMOVABLE PROPERTY** The property which will be mortgaged should be the specific and immovable one. There should not be any ambiguous about which property is mortgaged. Everything should be crystal clear about that particular property. - **RIGHT TO SALE** By transferring the rights, the borrower gives certain rights to the lender to exercise over that particular mortgaged property. This right also includes Right to sale for foreclosure of the amount. - **REDEMPTION RIGHT** The Transfer of Property Act also Recognizes the right of the Mortgager to REDEEM his property after repaying the debt amount. When the mortgager will fully pay the debt amount, he has the right to claim his property back. This right protects the interest of Borrower from loosing their property permanently just because of their temporary financial problem. ### **TYPES OF MORTGAGES UNDER TP ACT** The Transfer of Property Act highlights different types of mortgages in India. Each of them is different from each other as per characteristics and everything. They are; - **SIMPLE MORTGAGE** Simple mortgage is dealt under section 58(b) of TP act. This is the most prevalent category of mortgage in India in which the borrower keeps the control over the collateral with him while transferring the right to sale to the lender. In the event of default, the mortgaged property will be sold by the other party to recover the debt amount. In this case property can also be sold with the permission of court while there is a default in payment of the debt. - **MORTGAGE BY CONDITIONAL SALE** This type of Mortgage is dealt under section 58(c) of Transfer of Property Act 1882. Mortgage by conditional sale means temporary change of ownership of the specific property by mortgager to the mortgagee. When the party pays back the debt amount the mortgaged property will be reverted back to its original owner. Furthermore, any condition which will prevent the mortgager to redeem his property back, will be considered as invalid. - **MORTGAGE BY DEPOSIT OF TITLE DEED** Under section 58(f) of TP Act deals with ‘Mortgage by deposit of title deed’ which is also known as an equitable mortgage. In this type of mortgage, the mortgager deposits the deed of title of the property to the mortgagee as security. However, the ownership still remains with the mortgager and the deposit of title doesn’t grant the permission to the mortgagee to right to sale the property, automatically. In case of default, the mortgagee can only sale the property if there is a separate deed about the sale. This method is primarily used for short term loans or temporary securities. - **USUFRUCTUARY MORTGAGE** This type of mortgage is defined under section 58(d) of Transfer of Property act 1882. This is one of the less prevalent kinds of mortgage, which states that the mortgagee can obtain the possession over the mortgaged property within the loan period. In exchange the mortgagee receives the right to collect rent from that mortgaged property which he will use as an interest amount. Although, the risk of repayment of loan is borne completely by the mortgager. - **ANOMALOUS MORTGAGE** This type of mortgage is dealt under section 58(g) of Transfer of Property Act,1882. This is one type of special arrangement which is made on the basis of specific agreement which is created between Mortgager and Mortgagee. Sometimes, this type of mortgage involves components of different types of mortgages within it. In short, those types of mortgages which are not been mentioned under any of the other above-mentioned types, those will be covered under this Anomalous mortgage category. In this type of Mortgage is it crucial understand rights and duties of each party as this type of mortgage is based special agreement between the two parties. So before entering into this type of mortgage, legal advice is a must. - **ENGLISH MORTGAGE** This is a type of mortgage which has been defined under section 58(e) of Transfer of Property Act,1882. In this type, there is an absolute transfer of property to the mortgagee but there is a condition that the debt amount needs to be paid in one particular date and after the completion of this procedure the mortgagee will re-transfer the property back to the mortgagor. In this type of mortgage, the mortgager by giving the absolute right over property to the mortgagee creates a binding force upon himself to repay the debt within that decided period. And it is also necessary that the specific decided date should be mentioned in the contract o which the debt should be return back. ### **MODES OF COMPLETING MORTGAGES** The process of mortgage is simple both simple and crucial at the Same time. For completion there are various modes and methods through which the transaction needs to be passed for getting formalized and finalized. These methods or modes are generally dependable upon the rules and legal requirements of various jurisdiction. They are; - REGISTRATION - DELIVERY OF POSSESSION - DEPOSIT OF TITLE DEEDS - APPROVAL FROM REGULATORY AUTHORITY ***REGISTRATION*** As we know as per the general rule of TP Act, every transaction of immovable property more than amount of 100 Rs need to be registered. But there is one exception to this which is ‘Mortgage by deposits of title deeds’. Except this type this general rule of registration applies to every other type of mortgage. When registration is necessary, the mortgage must be in writing and should be attested with 2 or more witnesses. It also needs to be signed and registered as per the provision of registration. ***DELIVERY OF POSSESSION*** Mere delivery of possession of the property is sufficient to constitute a valid mortgage. Delivery of possession is one of the ground which constructs a valid mortgage and it includes, delivery of possession from mortgagor to mortgagee. ***DEPOSIT OF TITLE DEEDS*** Mortgage where title deed is deposited, this type of mortgage doesn’t need registration. In this type of mortgage, a person takes some amount as a loan and deposits the title deed of the mortgaged property. This mode of transaction is generally done in the matters which are related to real estate or immovable property. ***APPROVAL OF REGULATORY AUTHORITY*** In certain cases, execution of mortgage involves approval from the regulatory authority as well. it generally happens when the transaction is involved in financial institutions or regulatory sectors. ### **CASE LAW** - GLORY AND ANOTHER VS MURUGAN AND ANOTHER[\[6\]](#_ftn6) In this case it was held that it is necessary to mention in the mortgage dee that whether that particular transaction is for the mortgage or not. Or else the transaction will be treated as a sale, rather than a mortgage by conditional sale. - SYNDICATE BANK VS M. SIVARUDRAPPA[\[7\]](#_ftn7) In this case the mortgager has claimed that he has mortgaged his property by executing a memorandum of deposits of title deeds. But the Mortgagee, which is the bank, denied the same on the ground of discrepancy in signature of the witnesses who were there for attesting. In this case the Karnataka High Court held that, the suit for recovery of money is to be dismissed as the mortgagor failed to prove the originality and enforceability of the mortgage deed. ### **CONCLUSION & COMMENTS** Mortgage is one of the basic yet crucial type of transfer which is dealt under Transfer of Property Act, 1882. It is used in the everyday life of individuals, whenever they need financial help. Mortgage in itself is a very wide concept which gives rise to various rights and circumstances. For determining whether a transaction is a mortgage transaction or not, it need to examine properly that all the essential conditions of the mortgage transaction is fulfilled or not. Hence, in case of mortgage transaction another important factor is intention of the party. However, there is no transaction of ownership in mortgage but temporary possession is there. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. The Transfer of Property act by DR. R.K. SINHA 2. **Online Articles / Sources Referred** 1. 2. 3. **Statutes Referred** 1. Transfer of Property Act, 1882 [\[1\]](#_ftnref1) Truth in Lending Act [\[2\]](#_ftnref2) Real Estate Settlement Procedure Act [\[3\]](#_ftnref3) Canada Mortgage and Housing Corporation [\[4\]](#_ftnref4) Transfer of Property Act,1882 [\[5\]](#_ftnref5) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [\[6\]](#_ftnref6) AIR 2019 Mad 346 [\[7\]](#_ftnref7) AIR 2003 Kant. 210 **Categories:** Articles --- ### [VICARIOUS LIABILITY](https://lawfoyer.in/vicarious-liability/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Innama Haider, Amity University

INTRODUCTION

Vicarious liability is a liability where one person instead of being liable himself  for his own faults  he or she will be liable for the wrongful act done  by another . For being liable for the torts committed by other , there should be  some existing relation between both the parties . The liability is joint and several. For example : The employer will be liable for the torts committed by his employee , parents are  liable for the tort committed by their children .Also for a person to be liable under vicarious liability the tort committed  should be under the course of employment. Keywords : Vicarious liability, torts ,master, servant, independent contractor, responsibility , unlawful , employment. Vicarious liability makes other person liable for the wrongful acts done by one person because that other person who is liable  is in superior state to prevent that harmful act which is caused by second person . There are certain relationships which are jointly liable for each other’s act  such as :
  • Principal and Agent
  • Master and servant
  • Employer and employee
Generally vicarious liability which involves cases in it in which one person is in the state of superiority and can exercise his or her control accordingly . In this liability one person gets blamelessly liable for the wrongs other person has committed . There are 2 maxims which are of utmost important in this concept of vicarious liability:  "Qui facit per alium facit per se" means "he who does an act through another is deemed in law to be have done it himself.” “Respondeat superior” is a legal doctrine, most commonly used in tort, that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.”  To be liable under vicarious liability , malicious intention is not always necessary. To be liable under vicarious liability the tort should be committed under the course of employment Course of employment includes :
  • Wrongful act should be authorized by master.
  • The mode in which act has been performed is unlawful .

Who is  a servant?

A servant is someone on whom the master can exercise his control , who is paid by the master  , can suspend or dismiss by his master , and on whom the master   has the power to select him .

Difference between Servant and Independent Contractor

  • A servant is someone who is bound by the orders of the master but independent contractor is someone who is bound by the terms of the contract .
  • A servant is someone who is controlled by master but independent contractor is not controlled by anyone .
  • A master is liable for the acts of the servant but not on independent contractor.

Course of employment

For making the master liable the servant should act under the course of employment Which involves that the servant should do the unauthorized act under the control of master and in an unlawful manner. There are various principal ways in which a master becomes  liable for the wrong done by servants in the course of their employment.

1)      “Wrong done as a natural consequence of an act by Servant for Master with due care

    2)Wrong due to Negligence of Worker

    3)Wrong by excess or mistaken execution of a lawful authority

  4)Wrong committed wilfully by a servant with the intention of serving the purpose of the master

 5)Wrong by Servant’s Fraudulent Act”

Vicarious liability in medical care

For any wrong which is done by the staff members of hospital under the course of employment such as any mistake done by lab assistant or any other employee of the hospital , any act which prove that they were negligent while performing their duty will make the doctor or the hospital vicariously liable .

Types of Liability:

Principal Liability: Where one person who is in a superior state in any act of business , and ask his agent or orders him to do any wrongful or any unlawful act will make the principal liable , because only the principal can prevent the agent or his servant to do any harmful act . But to make the principal liable for the faults of his agent , the wrongful act should be committed under the course of employment . Parental Liability Whereby any such circumstances of the case which proves that parents provided children with  any platform which make him do the wrongful act will make the parents vicariously liable for the acts of their children because it will be assumed that the particular act has been done under their supervision and the facts will prove the superior responsible because its only the superior who can prevent them doing that act. Government Liability In Torts Vicarious Liability of the State “The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what extend the administration would be liable for the torts committed by its servants is a complex problem especially in developing countries with ever widening State activities. The liability of the government in tort is governed by the principles of public law inherited from British Common law and the provisions of the Constitution. The whole idea of Vicariously Liability of the State for the torts committed by its servants is based on three principles:
  • Respondeat superior (let the principal be liable).
  • Quifacit per alium facit per se (he who acts through another does it himself).
  • Socialization of Compensation.”

Evolution in India

“As there is no legislation which specifies the vicarious liability of the state for the torts committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the right to file a suit comes from. Art. 300 gives the right to the public to sue the state. While it came into force after the implementation of the Constitution in 1950, similar provisions were also there in Government of India (hereafter GOI) Act of 1935 under article 176 which has similar provision as in GOI Act of 1915 and of 1858 under Articles 32 and 65 respectively. Article 65 of the GOI Act of 1865 read, “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.” As the Government succeeded the company in administration i.e. East Indian Company, the liability of the government similar as it was with the company before 1858.”

CONCLUSION & COMMENTS

Generally in law people are liable for their wrongful act but vicarious liability is a form of liability where one person is liable for the wrongful acts done by another . In this form of liability generally the superior party or the master is liable because he is the one on whose direction the servant works . But for this type of liability to arise there should be some sort of relation between both the parties  also the wrongful act should be done under the course of employment . Only the acts  of  servant or the employee makes the  master liable ,no act of an independent contractor will make the master liable. Vicarious liability is a type of joint and several liability.

REFERENCES

  1. Online Articles / Sources Referred
    1. https://www.law.cornell.edu/wex/respondeat_superior
    2. https://www.legalserviceindia.com/legal/article-6602-qui-facit-per-alium-facit-per-se.html
    3. https://blog.ipleaders.in/vicarious-liability-case-master-servant-relationship-tort-law
    4. https://www.lawctopus.com/academike/vicarious-liability-state/
    5. https://blog.ipleaders.in/constitutional-tort-law-deals-vicarious-liability-state/
  1. Cases Referred
    1. Baldeo Raj Verses Deowati
    2. Peninsular and Oriental Steam Navigation Company v. Secretary of State for India
  1. Statutes Referred
    1. Article 300 of the Indian Constitution ,1950
    2. Article 176 of the Government of India Act, 1935
    3. Articles 32 in the Government of India Act 1915
    4. Article 65 in the Government of India Act 1858
    5. Article 65 in the Government of India Act 1865
**Content:** **Author-Innama Haider, Amity University** ### **INTRODUCTION** Vicarious liability is a liability where one person instead of being liable himself for his own faults he or she will be liable for the wrongful act done by another . For being liable for the torts committed by other , there should be some existing relation between both the parties . The liability is joint and several. For example : The employer will be liable for the torts committed by his employee , parents are liable for the tort committed by their children .Also for a person to be liable under vicarious liability the tort committed should be under the course of employment. ***Keywords* : Vicarious liability, torts ,master, servant, independent contractor, responsibility , unlawful , employment.** Vicarious liability makes other person liable for the wrongful acts done by one person because that other person who is liable is in superior state to prevent that harmful act which is caused by second person . There are certain relationships which are jointly liable for each other’s act such as : - Principal and Agent - Master and servant - Employer and employee Generally vicarious liability which involves cases in it in which one person is in the state of superiority and can exercise his or her control accordingly . In this liability one person gets blamelessly liable for the wrongs other person has committed . There are 2 maxims which are of utmost important in this concept of vicarious liability: *“**Qui facit per alium facit per se**” means “he who does an act through another is deemed in law to be have done it himself.”* *“**Respondeat superior**” is a legal doctrine, most commonly used in* [*tort*](https://www.law.cornell.edu/wex/tort)*, that holds an employer or* [*principal*](https://www.law.cornell.edu/wex/principal) [*legally responsible*](https://www.law.cornell.edu/wex/liable) *for the wrongful acts of an employee or* [*agent*](https://www.law.cornell.edu/wex/agent)*, if such acts occur within the scope of the employment or agency.”* To be liable under vicarious liability , malicious intention is not always necessary. To be liable under vicarious liability the tort should be committed under the course of employment Course of employment includes : - Wrongful act should be authorized by master. - The mode in which act has been performed is unlawful . ### **Who is a servant?** A servant is someone on whom the master can exercise his control , who is paid by the master , can suspend or dismiss by his master , and on whom the master has the power to select him . ### **Difference between Servant and Independent Contractor** - A servant is someone who is bound by the orders of the master but independent contractor is someone who is bound by the terms of the contract . - A servant is someone who is controlled by master but independent contractor is not controlled by anyone . - A master is liable for the acts of the servant but not on independent contractor. ### **Course of employment** For making the master liable the servant should act under the course of employment Which involves that the servant should do the unauthorized act under the control of master and in an unlawful manner. There are various principal ways in which a master becomes liable for the wrong done by servants in the course of their employment. #### *1)* “***Wrong done as a natural consequence of an act by Servant for Master with due care*** #### ***2)Wrong due to Negligence of Worker*** #### ***3)Wrong by excess or mistaken execution of a lawful authority*** #### ***4)Wrong committed wilfully by a servant with the intention of serving the purpose of the master*** #### ***5)Wrong by Servant’s Fraudulent Act”*** ### ***Vicarious liability in medical care*** For any wrong which is done by the staff members of hospital under the course of employment such as any mistake done by lab assistant or any other employee of the hospital , any act which prove that they were negligent while performing their duty will make the doctor or the hospital vicariously liable . ### ***Types of Liability:*** ***Principal Liability:*** Where one person who is in a superior state in any act of business , and ask his agent or orders him to do any wrongful or any unlawful act will make the principal liable , because only the principal can prevent the agent or his servant to do any harmful act . But to make the principal liable for the faults of his agent , the wrongful act should be committed under the course of employment . ***Parental Liability*** Whereby any such circumstances of the case which proves that parents provided children with any platform which make him do the wrongful act will make the parents vicariously liable for the acts of their children because it will be assumed that the particular act has been done under their supervision and the facts will prove the superior responsible because its only the superior who can prevent them doing that act. ***Government Liability In Torts*** ***Vicarious Liability of the State*** *“The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what extend the administration would be liable for the torts committed by its servants is a complex problem especially in developing countries with ever widening State activities. The liability of the government in tort is governed by the principles of public law inherited from British Common law and the provisions of the Constitution. The whole idea of Vicariously Liability of the State for the torts committed by its servants is based on three principles:* - *Respondeat superior (let the principal be liable).* - *Quifacit per alium facit per se (he who acts through another does it himself).* - *Socialization of Compensation.”* ### **Evolution in India** “*As there is no legislation which specifies the vicarious liability of the state for the torts committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the right to file a suit comes from.* *Art. 300 gives the right to the public to sue the state. While it came into force after the implementation of the Constitution in 1950, similar provisions were also there in Government of India (hereafter GOI) Act of 1935 under article 176 which has similar provision as in GOI Act of 1915 and of 1858 under Articles 32 and 65 respectively. Article 65 of the GOI Act of 1865 read, “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.”* *As the Government succeeded the company in administration i.e. East Indian Company, the liability of the government similar as it was with the company before 1858.”* ### **CONCLUSION & COMMENTS** Generally in law people are liable for their wrongful act but vicarious liability is a form of liability where one person is liable for the wrongful acts done by another . In this form of liability generally the superior party or the master is liable because he is the one on whose direction the servant works . But for this type of liability to arise there should be some sort of relation between both the parties also the wrongful act should be done under the course of employment . Only the acts of servant or the employee makes the master liable ,no act of an independent contractor will make the master liable. Vicarious liability is a type of joint and several liability. ### **REFERENCES** 1. **Online Articles / Sources Referred** 1. [https://www.law.cornell.edu/wex/respondeat\_superior](https://www.law.cornell.edu/wex/respondeat_superior) 2. 3. 4. 5. 2. **Cases Referred** 1. Baldeo Raj Verses Deowati 2. Peninsular and Oriental Steam Navigation Company v. Secretary of State for India 3. **Statutes Referred** 1. Article 300 of the Indian Constitution ,1950 2. Article 176 of the Government of India Act, 1935 3. Articles 32 in the Government of India Act 1915 4. Article 65 in the Government of India Act 1858 5. Article 65 in the Government of India Act 1865 **Categories:** Articles --- ### [MARITAL RAPE- LEGAL CONCERNS](https://lawfoyer.in/marital-rape-legal-concerns/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Romika Narotra, Amity University, Noida

Introduction

The divine value of marriage is frequently utilised to cover up the horrifying reality:     marital rape. Although marital rape is a serious violation of bodily autonomy and dignity, it is still a legal grey area in India. Marital Rape is having sexual intercourse with a spouse without his/her consent. In India, the law does not clearly define marital rape as a crime. An exception to Section 375 of the Indian Penal Code (IPC) states that sexual intercourse between a man and his wife who is under 18 years of age is not rape. This law allows perpetrators of marital rape to go unpunished and separates victims from justice For centuries the institution of marriage in all the laws be it Hindu law, Muslim law etc, sexual intercourse after marriage has been seen as necessary and important for creation of family. Our society has developed a lot from many years but the image of importance of having a child after marriage and a husband showing all sexual rights over his wife has been so much normalised that even if a women is being forced to copulate after marriage has not been protected specifically under any law except the domestic violence act and under sec 375 IPC where forced sex after marriage is seen as a crime only when the women is below the age of 15 still in this 21st century India there is no law that fully criminalizes marital rape.

Background / Evolution

In ancient times, women were not considered separate legal entities and it was believed that if a woman married a man, he would accept this marriage. In the 19th century, feminists began challenging men's right to force their wives to have sex. Feminists have been campaigning against marital violence since the 1960s. In the United States, the state of Michigan criminalizes adultery only when a couple files for divorce and separation. South Dakota banned same-sex marriage from 1975 to 1977. These instances were the start that showed people’s awareness towards marital rape.

History of Marital Rape in India

The Delhi High Court has been hearing arguments in the case since 2015. In January 2022, two judges of the Delhi High Court started hearing the case. Inevitable demands from individuals and public organizations. By May 2022, they had reached a controversial decision. While one judge upheld marital rape because it violated a woman's right to consent, another objected, saying marriage "essentially" amounts to consent . Later, the issue was brought to the Supreme Court. The need to evacuate the marital rape exception was prior rejected by the Law Commission of India in 2000 . In 2012, the Justice JS Verma Committee was entrusted with proposing revisions to India's rape laws. Whereas a few of its suggestions made a difference shape the Criminal Law (Alteration) Act passed in 2013, a few proposals, counting that on marital rape, were not acted on. The issue has been brought up in Parliament as well. Upon being addressed in a Parliament session in 2015, the thought of criminalizing marital rape was rejected with the see that "marital rape cannot be applied within the nation since marriage was treated as a holy observance or sacrosanct within the Indian society". In September 2022, Supreme Court administering on women’s right to secure premature births notwithstanding of marital status held that for the purposes of the Medical Termination of Pregnancy Act, the definition of rape ought to incorporate marital rape. Government’s Stand: The Central Government at first protected the rape exception and afterward changed its stand and told the court that it was checking on the law, on which wider consultations are required on the issue. The Delhi government contended in support of holding the marital rape exception. The government’s contentions crossed from securing men from possible abuse of the law by wives, to protecting the institution of marriage

Legal provisions/ Challenges

The lack of legal protection against marital rape perpetuates a culture of impunity and silence. Victims often suffer physical and psychological damage due to silence, fear of stigma, family discrimination and legalization. Marital status and expectations of obedience make victims even more vulnerable, hindering their ability to seek help or report abuse. One of the biggest problems with the criminalization of marital violence in India lies in the basic principles of relationship and marital behaviour between men and women. Old ideas often  believing that women are the property of their husbands and are not free over their own bodies and choices. This patriarchal ideology normalises marital rape and prevented the development of law. In expansion, legitimate issues such as burden of confirmation and need of prove make genuine issues in prosecuting marital rape. The security of the marriage ceremony and the absence of witnesses make it difficult to recognize non-consensual sexual intercourse. Also, victims are hesitant to come forward due to fear of striking back or social backfire, making the lawful handle difficult. Criminalising marital rape is critical for the advancement of the rights and dignity of people in marriage. Usually an issue of gender equality, bodily autonomy and human rights. It gives a legitimate prepare for casualties to look for equity, get to support administrations and hold culprits accountable for their actions. Furthermore, criminalising marital rape is additionally in line with India's universal commitments and commitments beneath various conventions and agreements, including the Tradition on the Disposal of All Forms of Discrimination against Women (CEDAW). India's disappointment to criminalize marital rape has weakened its validity within the world and failed to convey on its commitment to combat gender-based violence.

Case law

In case of The Chairman, Railway Board v. Chandrima Das . The Supreme Court held that rape is not only an offense under the Indian Penal Code but also a crime that affects the entire society. Another case of Kharak Singh v. State of U.P  has adopted the implied protection of the right to privacy under Article 21. According to Article 21, the right to privacy includes the right to be free from intrusion and unreasonable access. Sexual freedom is an important part of this law and not all sexual intercourse is allowed to violate sexual privacy. The idea of ​​avoiding marriage through rape violates a woman's right to sexual privacy by forcing sexual intercourse against her will. In Independent Though v. Union of India , Delhi High Court in 1986 said that exemption of marital rape under Section 375 of the Indian Penal Code was unconstitutional. The document addresses the need to criminalize marital rape and provide legal protection to women within marriage. Another important case was Sakshi v. Union of India. In 1999, the Supreme Court of India upheld forced sexual intercourse by the husband. The court said that marriage does not necessarily imply consent to sexual intercourse and that women have the right to refuse sexual intercourse in marriage.

Why Marital Rape is not criminalised in India?

The new law, which will be published in July, does not criminalize marriage. The government said marital rape can lead to marital discord and become a tool to harm husbands. Exceptions to marriage are generally based on two views: Permanent consent, that is, when a woman gets married, she gives permanent consent and cannot withdraw it. Legislators reiterated that it is a woman's responsibility to have sexual intercourse with her husband and that the institution of marriage essentially waives a woman's right to consent. Consent is defined under the Crimes Act 2003 as “a person giving consent if he or she chooses to do so and is free and competent to make that choice.” Courts have made clear that consent is voluntary and does not require evidence of objection.

Conclusion:

As a result, legal recognition and criminalization of marital rape is important for solving the problem of gender-based violence in marriage. This should be achieved through a variety of means, including legal reform, public awareness and support for victims. Legislators, legislators, NGOs and communities must work together to create a society where all human rights and freedoms are respected and protected, regardless of care. Now is the time to make fair and equal decisions for everyone.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. IPC Bare Act
    2. Criminal Manuel
  2. Online Articles / Sources Referred
    1. Garg, S. and Singh, N. (2022) Marital rape: Historical and comparative analysis, My Lawman Socio Legal Review. Available at: https://mslr.pubpub.org/pub/vlo7anq8/release/1 (Accessed: 06 March 2024).
    2. Institute for the Sociology of Law A critical analysis of the standard of consent in rape law in India: Oñati Socio-Legal Series, A critical analysis of the standard of consent in rape law in India | Oñati https://opo.iisj.net/index.php/osls/article/view/1647/1992 (Accessed: 06 March 2024).
    3. Sachdev, V. (2022) Explained: Why marital rape is not a crime in India (yet),The Quint. https://www.thequint.com/news/law/marital-rape-not-recognised-as-crime-in-india-explainer (Accessed: 06 March 2024).
  3. Cases Referred
    1. The Chairman, Railway Board v. Chandrima Das
    2. Kharak Singh v. State of U.P.
    3. Independent Though v. Union of India
    4. Sakshi v. Union of India
**Content:** **Author-Romika Narotra, Amity University, Noida** ### **Introduction** The divine value of marriage is frequently utilised to cover up the horrifying reality: marital rape. Although marital rape is a serious violation of bodily autonomy and dignity, it is still a legal grey area in India. Marital Rape is having sexual intercourse with a spouse without his/her consent. In India, the law does not clearly define marital rape as a crime. An exception to Section 375 of the Indian Penal Code (IPC) states that sexual intercourse between a man and his wife who is under 18 years of age is not rape. This law allows perpetrators of marital rape to go unpunished and separates victims from justice For centuries the institution of marriage in all the laws be it Hindu law, Muslim law etc, sexual intercourse after marriage has been seen as necessary and important for creation of family. Our society has developed a lot from many years but the image of importance of having a child after marriage and a husband showing all sexual rights over his wife has been so much normalised that even if a women is being forced to copulate after marriage has not been protected specifically under any law except the domestic violence act and under sec 375 IPC where forced sex after marriage is seen as a crime only when the women is below the age of 15 still in this 21st century India there is no law that fully criminalizes marital rape. ### **Background / Evolution** In ancient times, women were not considered separate legal entities and it was believed that if a woman married a man, he would accept this marriage. In the 19th century, feminists began challenging men’s right to force their wives to have sex. Feminists have been campaigning against marital violence since the 1960s. In the United States, the state of Michigan criminalizes adultery only when a couple files for divorce and separation. South Dakota banned same-sex marriage from 1975 to 1977. These instances were the start that showed people’s awareness towards marital rape. ### History of Marital Rape in India The Delhi High Court has been hearing arguments in the case since 2015. In January 2022, two judges of the Delhi High Court started hearing the case. Inevitable demands from individuals and public organizations. By May 2022, they had reached a controversial decision. While one judge upheld marital rape because it violated a woman’s right to consent, another objected, saying marriage “essentially” amounts to consent . Later, the issue was brought to the Supreme Court. The need to evacuate the marital rape exception was prior rejected by the Law Commission of India in 2000 . In 2012, the Justice JS Verma Committee was entrusted with proposing revisions to India’s rape laws. Whereas a few of its suggestions made a difference shape the Criminal Law (Alteration) Act passed in 2013, a few proposals, counting that on marital rape, were not acted on. The issue has been brought up in Parliament as well. Upon being addressed in a Parliament session in 2015, the thought of criminalizing marital rape was rejected with the see that “marital rape cannot be applied within the nation since marriage was treated as a holy observance or sacrosanct within the Indian society”. In September 2022, Supreme Court administering on women’s right to secure premature births notwithstanding of marital status held that for the purposes of the Medical Termination of Pregnancy Act, the definition of rape ought to incorporate marital rape. Government’s Stand: The Central Government at first protected the rape exception and afterward changed its stand and told the court that it was checking on the law, on which wider consultations are required on the issue. The Delhi government contended in support of holding the marital rape exception. The government’s contentions crossed from securing men from possible abuse of the law by wives, to protecting the institution of marriage ### **Legal provisions/ Challenges** The lack of legal protection against marital rape perpetuates a culture of impunity and silence. Victims often suffer physical and psychological damage due to silence, fear of stigma, family discrimination and legalization. Marital status and expectations of obedience make victims even more vulnerable, hindering their ability to seek help or report abuse. One of the biggest problems with the criminalization of marital violence in India lies in the basic principles of relationship and marital behaviour between men and women. Old ideas often believing that women are the property of their husbands and are not free over their own bodies and choices. This patriarchal ideology normalises marital rape and prevented the development of law. In expansion, legitimate issues such as burden of confirmation and need of prove make genuine issues in prosecuting marital rape. The security of the marriage ceremony and the absence of witnesses make it difficult to recognize non-consensual sexual intercourse. Also, victims are hesitant to come forward due to fear of striking back or social backfire, making the lawful handle difficult. Criminalising marital rape is critical for the advancement of the rights and dignity of people in marriage. Usually an issue of gender equality, bodily autonomy and human rights. It gives a legitimate prepare for casualties to look for equity, get to support administrations and hold culprits accountable for their actions. Furthermore, criminalising marital rape is additionally in line with India’s universal commitments and commitments beneath various conventions and agreements, including the Tradition on the Disposal of All Forms of Discrimination against Women (CEDAW). India’s disappointment to criminalize marital rape has weakened its validity within the world and failed to convey on its commitment to combat gender-based violence. ### **Case law** In case of ***The Chairman, Railway Board v. Chandrima Das*** . The Supreme Court held that rape is not only an offense under the Indian Penal Code but also a crime that affects the entire society. Another case of ***Kharak Singh v. State of U.P*** has adopted the implied protection of the right to privacy under Article 21. According to Article 21, the right to privacy includes the right to be free from intrusion and unreasonable access. Sexual freedom is an important part of this law and not all sexual intercourse is allowed to violate sexual privacy. The idea of ​​avoiding marriage through rape violates a woman’s right to sexual privacy by forcing sexual intercourse against her will. In ***Independent Though v. Union of India*** , Delhi High Court in 1986 said that exemption of marital rape under Section 375 of the Indian Penal Code was unconstitutional. The document addresses the need to criminalize marital rape and provide legal protection to women within marriage. Another important case was ***Sakshi v. Union of India*. In 1999**, the Supreme Court of India upheld forced sexual intercourse by the husband. The court said that marriage does not necessarily imply consent to sexual intercourse and that women have the right to refuse sexual intercourse in marriage. ### **Why Marital Rape is not criminalised in India?** The new law, which will be published in July, does not criminalize marriage. The government said marital rape can lead to marital discord and become a tool to harm husbands. Exceptions to marriage are generally based on two views: Permanent consent, that is, when a woman gets married, she gives permanent consent and cannot withdraw it. Legislators reiterated that it is a woman’s responsibility to have sexual intercourse with her husband and that the institution of marriage essentially waives a woman’s right to consent. Consent is defined under the Crimes Act 2003 as “a person giving consent if he or she chooses to do so and is free and competent to make that choice.” Courts have made clear that consent is voluntary and does not require evidence of objection. ### **Conclusion:** As a result, legal recognition and criminalization of marital rape is important for solving the problem of gender-based violence in marriage. This should be achieved through a variety of means, including legal reform, public awareness and support for victims. Legislators, legislators, NGOs and communities must work together to create a society where all human rights and freedoms are respected and protected, regardless of care. Now is the time to make fair and equal decisions for everyone. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. IPC Bare Act 2. Criminal Manuel 2. **Online Articles / Sources Referred** 1. Garg, S. and Singh, N. (2022) Marital rape: Historical and comparative analysis, My Lawman Socio Legal Review. Available at: [https://mslr.pubpub.org/pub/vlo7anq8/release/1](https://mslr.pubpub.org/pub/vlo7anq8/release/1%20) (Accessed: 06 March 2024). 2. Institute for the Sociology of Law A critical analysis of the standard of consent in rape law in India: Oñati Socio-Legal Series, A critical analysis of the standard of consent in rape law in India | Oñati [https://opo.iisj.net/index.php/osls/article/view/1647/1992](https://opo.iisj.net/index.php/osls/article/view/1647/1992%20) (Accessed: 06 March 2024). 3. Sachdev, V. (2022) Explained: Why marital rape is not a crime in India (yet),The Quint. [https://www.thequint.com/news/law/marital-rape-not-recognised-as-crime-in-india-explainer](https://www.thequint.com/news/law/marital-rape-not-recognised-as-crime-in-india-explainer%20) (Accessed: 06 March 2024). 3. **Cases Referred** 1. *The Chairman, Railway Board v. Chandrima Das* 2. *Kharak Singh v. State of U.P.* 3. *Independent Though v. Union of India* 4. *Sakshi v. Union of India* **Categories:** Articles --- ### [CYBER CRIME : MEANING, HISTORY, TYPES, SECURITY MEASURES AND IMPORTANT CASES](https://lawfoyer.in/cyber-crime-meaning-history-types-security-measures-and-important-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Tanishka Saxena, Amity University, Lucknow

INTRODUCTION

CRIME is as old as human society, crime in any form which adversely affects the individuals living in the society is known as crime. In the era of digitalization, everything has been changed by the internet giving rise to criminal activities. The excessive use and reliance on the internet leads to an increase the criminal activities. The word “cybercrime” is used for criminal activities with the use of computers such as fraud, violating privacy, etc. Cybercrime affects people, companies, government and even threatens the national security of the country. Several illegal activities are committed over the internet by technically skilled criminals. Cybercrime is an uncontrollable evil based on the misuse of growing dependence on computers in modern life.

What is cybercrime

“Cyber” is a prefix that is used to describe a person, thing, or idea, as a part of a computer and information taken from the Greek word ‘kubernetes’. Cybercrime is also known as computer crime, the use of the computer as an instrument for illegal purposes such as hacking, cracking, fraud, stealing identities, child pornography, extortion, money laundering, intellectual property, etc. Cybercrime is the most prevalent crime playing a devastating role in modern India.

Historical Background

Cybercrime started in the 1960s and 1970s when there were only transistor-based computer systems which were smaller in size and less expensive than vacuum tube-based machines and crimes only related to the physical damage to computer systems and stored data in the computer. In the 1970s, the method and use of computers and data has been changed there was a major shift from Manual to computer-related fraud. The very FIRST and known incident of cybercrime was the creation of the CREEPER VIRUS which foretold the potential of viruses that come in the future and cause grave damage to computer systems. After the 1970s, the MORRIS WORM caused extensive disruption and made people aware of harmful cyber activities in the 1980s. In the 1990s, a significant increase in cybercrime was observed, and the infamous Melissa virus was a notable cyber incident during this period which infected over 100,000 computers from all over the world. Further advancement in cybercriminal advancement was observed in the early 2000s and cyber criminals started launching denial-of-service (DDOS) attacks and spamming mails. In the present era, cyber crimes are much more changed, and new highly sophisticated methods of committing crimes. This decade highlighted the importance of cybersecurity measures and awareness and the evolving threats posed by cybercrime.

TYPES OF CYBERCRIME

Some of the most common types of cybercrime:-
  1. HACKING –Without permission taking access to someone else’s computer systems or networks to steal or gain information or modify data.
  2. WEB HIJACKING – Web hacking means taking control of another person’s website, with the consent of the owner, and eventually the owner loses control.
  3. MALWARE – In malware, harmful software has been made to sneak around on someone else’s computer systems. This includes viruses, spyware, worms, etc. It can be used to gain bank details, sensitive business data, or information to conduct social engineering attacks.
  4. IDENTITY THEFT- To act like some other individual by Stealing their information such as their name, social security number, or financial details, for financial gain to commit fraud or crimes.
  5. CYBER STALKING AND HARASSMENT – Cyber Stalking means repeating the acts of harassing, threatening, or intimidating individuals by sending repeated or unwanted messages or distributing the personal information of the individual without the consent of the person by using the internet. Both kinds of Stalkers i.e., Online & Offline – have the desire to control the victim's life.
  6. ONLINE SCAMS AND FRAUD - Many Fraudulent schemes were conducted over the internet time such as investment scams, scams of lottery, fee fraud of advance rupees, fake websites, romance scams, credit card frauds, etc. to take money or valuable information.
  7. DATA BREACHES - People get the information without the permission of the owner of the website and get access to sensitive data stored by the person or institution such as personal information, financial records, or corporate secrets, resulting in the exposure of personal or financial information.
  8. PHISHING – Phishing is the sending of fraudulent messages that appear as real entities in emails and messages. That email directs the user to visit that website where they have to update certain sensitive information such as passwords, credit card numbers, or social security numbers which will be used for identity theft.
  9. CHILD EXPLOITATION – The use of the Internet for Child exploitation become a common practice. Child pornography and engaging minors in sexual activities and provided on the internet on various platforms.

PREVENTIVE MEASURES TO PROTECT FROM CYBER SECURITY:-

  • Keep software and operating system updated
  • Use any anti-virus software and keep it updated from time to time
  • Use strong passwords
  • Never open attachments in spam emails
  • Do not click on links in spam mail or untrusted websites
  • Be mindful of which website URLs you visit
  • Keep an eye on bank statements

IMPORTANT CASES OF CYBERCRIME

  1. Shreya Singhal vs Union of India [1]
In this case, The validity of section 66A of the Information Technology Act was challenged before the Supreme Court. The Supreme Court held that section 66A of the Information Technology Act is unconstitutional and violates article 19(1)(a) of the Indian constitution and the court upheld the importance of freedom of speech and expression and the need for clearly defined laws to prevent misuse and necessity to defined laws precisely to avoid the abuse and guarantee the protections of citizens right in the era of digitalization. This judgment set a significant precedent for online freedom of expression in India.
  1. Shankar vs State of Rep[2]
In this case, A charge sheet was issued against the petitioner under section 483 of CrPc. Petitioner approached the Supreme Court to quash this charge sheet. He secured unauthorized access to the protected system the legal advisor of the directorate of Vigilance and anti–corruption (DVAC). He was also charged under sections 66,70, and 72 of the Information Technology Act. The court held that the charge sheet filed against the petitioner could not be quashed by the law concerning the non-granting of sanction of prosecution under Section 72 of the IT Act.
  1. Shreekanth C. Nair vs Licensee/ Developer[3]
In this case, the issue revolved around a student of ASCL who encountered a website called ‘ www.incometaxpune.com.’ he led to a pornographic site. As a result, the complainant sought a court order to block the offensive website. This website is undoubtedly pornographic and must be shut down in the public interest as well as in contravention of section 67 of the IT Act. It raised concerns about the responsibility of website developers and operators for the content available on these websites. The court held that these types of websites should be blocked because they hold inappropriate content. This decision shows that the court wants to keep the internet safe for everyone, especially from harmful content. And also directed the owner to be aware of what is on their website and what they link to. This case is important because it shows how the law helps to protect people online.

CONCLUSION

Cybercrime is one of the complex and evolving issues that has a significant impact on individual organizations and society. It affects the individuals who fall victim to scams and frauds, and businesses that suffer heavy financial losses and even a threat to the government and national security. To deal with cybercrime we have to take certain measures like strong passwords, Keeping software and operating systems updated, Using any anti-virus software, etc. Certain efforts have to be made to strengthen cybersecurity, promote digital literacy, and enforce laws and regulations that can significantly reduce its prevalence and impact. everyone needs to remain vigilant adopt best practices for online security and stay informed about emerging threats to protect themselves and contribute to a safer digital environment.

[1]Shreya Singhal vs Union of India AIR 2015 SC 1523

[2] Shankar vs State of Rep Crl. O.P. No. 6628 of 2010 [3] Shreekanth C. Nair vs Licensee/ Developer Crl. Rev. Pet. No. 2900 of 2008 **Content:** **Author-Tanishka Saxena, Amity University, Lucknow** ### **INTRODUCTION** CRIME is as old as human society, crime in any form which adversely affects the individuals living in the society is known as crime. In the era of digitalization, everything has been changed by the internet giving rise to criminal activities. The excessive use and reliance on the internet leads to an increase the criminal activities. The word “cybercrime” is used for criminal activities with the use of computers such as fraud, violating privacy, etc. Cybercrime affects people, companies, government and even threatens the national security of the country. Several illegal activities are committed over the internet by technically skilled criminals. Cybercrime is an uncontrollable evil based on the misuse of growing dependence on computers in modern life. ### What is cybercrime “Cyber” is a prefix that is used to describe a person, thing, or idea, as a part of a computer and information taken from the Greek word ‘kubernetes’. Cybercrime is also known as computer crime, the use of the computer as an instrument for illegal purposes such as hacking, cracking, fraud, stealing identities, child pornography, extortion, money laundering, intellectual property, etc. Cybercrime is the most prevalent crime playing a devastating role in modern India. ### **Historical Background** Cybercrime started in the 1960s and 1970s when there were only transistor-based computer systems which were smaller in size and less expensive than vacuum tube-based machines and crimes only related to the physical damage to computer systems and stored data in the computer. In the 1970s, the method and use of computers and data has been changed there was a major shift from Manual to computer-related fraud. The very FIRST and known incident of cybercrime was the creation of the **CREEPER VIRUS** which foretold the potential of viruses that come in the future and cause grave damage to computer systems. After the 1970s, the **MORRIS WORM** caused extensive disruption and made people aware of harmful cyber activities in the 1980s. In the 1990s, a significant increase in cybercrime was observed, and the infamous Melissa virus was a notable cyber incident during this period which infected over 100,000 computers from all over the world. Further advancement in cybercriminal advancement was observed in the early 2000s and cyber criminals started launching denial-of-service (DDOS) attacks and spamming mails. In the present era, cyber crimes are much more changed, and new highly sophisticated methods of committing crimes. This decade highlighted the importance of cybersecurity measures and awareness and the evolving threats posed by cybercrime. ### **TYPES OF CYBERCRIME** Some of the most common types of cybercrime:- 1. **HACKING –**Without permission taking access to someone else’s computer systems or networks to steal or gain information or modify data. 2. **WEB HIJACKING –** Web hacking means taking control of another person’s website, with the consent of the owner, and eventually the owner loses control. 3. **MALWARE –** In malware, harmful software has been made to sneak around on someone else’s computer systems. This includes viruses, spyware, worms, etc. It can be used to gain bank details, sensitive business data, or information to conduct social engineering attacks. 4. **IDENTITY THEFT**– To act like some other individual by Stealing their information such as their name, social security number, or financial details, for financial gain to commit fraud or crimes. 5. **CYBER STALKING AND HARASSMENT –** Cyber Stalking means repeating the acts of harassing, threatening, or intimidating individuals by sending repeated or unwanted messages or distributing the personal information of the individual without the consent of the person by using the internet. Both kinds of Stalkers i.e., Online & Offline – have the desire to control the victim’s life. 6. **ONLINE SCAMS AND FRAUD** – Many Fraudulent schemes were conducted over the internet time such as investment scams, scams of lottery, fee fraud of advance rupees, fake websites, romance scams, credit card frauds, etc. to take money or valuable information. 7. **DATA BREACHES –** People get the information without the permission of the owner of the website and get access to sensitive data stored by the person or institution such as personal information, financial records, or corporate secrets, resulting in the exposure of personal or financial information. 8. **PHISHING –** Phishing is the sending of fraudulent messages that appear as real entities in emails and messages. That email directs the user to visit that website where they have to update certain sensitive information such as passwords, credit card numbers, or social security numbers which will be used for identity theft. 9. **CHILD EXPLOITATION –** The use of the Internet for Child exploitation become a common practice. Child pornography and engaging minors in sexual activities and provided on the internet on various platforms. ### **PREVENTIVE MEASURES TO PROTECT FROM CYBER SECURITY:-** - Keep software and operating system updated - Use any anti-virus software and keep it updated from time to time - Use strong passwords - Never open attachments in spam emails - Do not click on links in spam mail or untrusted websites - Be mindful of which website URLs you visit - Keep an eye on bank statements ### **IMPORTANT CASES OF CYBERCRIME** 1. **Shreya Singhal vs Union of India** [\[1\]](#_ftn1) In this case, The validity of section 66A of the Information Technology Act was challenged before the Supreme Court. The Supreme Court held that section 66A of the Information Technology Act is unconstitutional and violates article 19(1)(a) of the Indian constitution and the court upheld the importance of freedom of speech and expression and the need for clearly defined laws to prevent misuse and necessity to defined laws precisely to avoid the abuse and guarantee the protections of citizens right in the era of digitalization. This judgment set a significant precedent for online freedom of expression in India. 2. **Shankar vs State of Rep[\[2\]](#_ftn2)** In this case, A charge sheet was issued against the petitioner under section 483 of CrPc. Petitioner approached the Supreme Court to quash this charge sheet. He secured unauthorized access to the protected system the legal advisor of the directorate of Vigilance and anti–corruption (DVAC). He was also charged under sections 66,70, and 72 of the Information Technology Act. The court held that the charge sheet filed against the petitioner could not be quashed by the law concerning the non-granting of sanction of prosecution under Section 72 of the IT Act. 3. **Shreekanth C. Nair vs Licensee/ Developer[\[3\]](#_ftn3)** In this case, the issue revolved around a student of ASCL who encountered a website called ‘ www.incometaxpune.com.’ he led to a pornographic site. As a result, the complainant sought a court order to block the offensive website. This website is undoubtedly pornographic and must be shut down in the public interest as well as in contravention of section 67 of the IT Act. It raised concerns about the responsibility of website developers and operators for the content available on these websites. The court held that these types of websites should be blocked because they hold inappropriate content. This decision shows that the court wants to keep the internet safe for everyone, especially from harmful content. And also directed the owner to be aware of what is on their website and what they link to. This case is important because it shows how the law helps to protect people online. ### **CONCLUSION** Cybercrime is one of the complex and evolving issues that has a significant impact on individual organizations and society. It affects the individuals who fall victim to scams and frauds, and businesses that suffer heavy financial losses and even a threat to the government and national security. To deal with cybercrime we have to take certain measures like strong passwords, Keeping software and operating systems updated, Using any anti-virus software, etc. Certain efforts have to be made to strengthen cybersecurity, promote digital literacy, and enforce laws and regulations that can significantly reduce its prevalence and impact. everyone needs to remain vigilant adopt best practices for online security and stay informed about emerging threats to protect themselves and contribute to a safer digital environment. ### [\[1\]](#_ftnref1)Shreya Singhal vs Union of India AIR 2015 SC 1523 [\[2\]](#_ftnref2) Shankar vs State of Rep Crl. O.P. No. 6628 of 2010 [\[3\]](#_ftnref3) Shreekanth C. Nair vs Licensee/ Developer Crl. Rev. Pet. No. 2900 of 2008 **Categories:** Articles --- ### [Doctrine of Strict Liability and Absolute Liability](https://lawfoyer.in/doctrine-of-strict-liability-and-absolute-liability/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Velagada Mounika, Dr. B.R. Ambedkar College of Law, Andhra University

INTRODUCTION :

Generally, Strict liability and Absolute liability comes to play when there is a negligence resulting in causing environmental pollution. These liabilities are based on, No Fault Liability which means when a harm caused by a person ,who is liable to another person despite he is not negligent in causing harm or no intention to cause harm or he was careful. In 19th century (England) the principle of Strict liability was evolved in Ryland V. Fletcher case, the strict liability famously known as “The Rules in Ryland V. Fletcher case”[1]. And the evolution of absolute liability in Mc Mehta v. Union of India case here it raises the standard and decree of liability, making it an “absolute,” one. These civil law principles transforming environmental and constitutional principles, and also from recognition of civil rights to fundamental rights. This is why the no fault liability plays a important role in claiming compensation from the defendant.

KEYWORDS:

1.No fault liability 2.strict liability 3. absolute liability 4.Non natural use of land 5.Polluter pay 6.principal pay 7.Environmental pollution

STRICT LIABILITY:

Meaning:

It means that an individual who keeps  harmful substances or Dangerous thing in his place  then he will be liable for the damage of plaintiff if it is escapes from his premises in any manner. For the application of strict liability there are essentials if all are satisfied then it comes under the Strict liability. Historical Background : Strict liability is the  principle that, first foundation laid from the case  Ryland V. Fletcher[2] in the year 1868 FACTS OF THE CASE: In a place there were two men one is Ryland and another is Fletcher, who lived each  other. Fletcher who had a mill which requires Huge  energy to work. So, in his land Defendant constructed a reservoir and  he appointed a engineer. In Ryland's land there were old mine shafts which was unnoticed by the engineer. And due to the negligence of engineer later construction, water from the reservoir break out and rushed into the mine shafts of plaintiff. Ryland filed sue against fletcher in Trail court, Court held that Fletcher was unaware of the abandoned mine shaft and he is not negligent. So, fletcher is not liable. Then Ryland goes on appeal to the higher court. Issues:
  1. whether the respondent is held legally responsible for the act done by Servant and without his negligence?
  2. Whether the construction of reservoir in fletcher’s land comes under natural use of land ?
Judgement : The house of lords gave decision in favour of Plaintiff and held that the defendant is liable, And for the acts done by the servant, Master is liable. The construction of reservoir is not natural use of land. Sic utere tuo it alienum non laedas which means everyone should use his land for natural use so, that you don’t injure other people. Strict liability Principle was originated from this case and the Rule had essentials and exceptions. After this case many cases are solved under this Rule of strict liability. This principal says if there is no negligence on his side then the defendant has to prove his innocence and this burden always  lies on defendant.

Essentials / Elements / Pre-requisites

1.Dangerous thing : Here this word “dangerous” means that it may cause any harm if it is escapes from the premises of respondent. It simply states that liability for the damages on the defendant when the thing escaped from the  land or premises of the defendant should be dangerous thing In Ryland V. Fletcher case the water stored in the reservoir is considered as the dangerous thing on defendant’s land. So, this principle states that the dangerous thing can be any poisonous gases, venomous fumes electricity, Chemicals and so on can be termed as dangerous things.
  1. Escape :
It is the 2nd  Essential of strict liability, which plays a key role in the cases. Here escape means the thing causing harm must breakout or run out of the premises of the defendant premises. It means that the escaped object was outside the area and control of defendant. Ponting v. Noakes Case [3] Here  the ponting horse was entered into the Noake’s fence and ate few leaves from  yew trees, which is a venomous tree. And the plaintiff’s horse was died and he sued the defendant in the court. The bench had lay down that the defendant was not liable under Strict liability because there was a full confine of yew trees and There is no escape from the defendant’s land.   Read v. Lyons & Co., [4]     Similarly there  was no escape and, therefore, there was no liability under the rule. In this case, the plaintiff was an employee in the defendant’s ammunition factory. inside the defendant’s premises she was working, while performing her duties a shell, which was being Manufactured there, exploded.
  1. Non natural use of land :
Here in the  Ryland V. Fletcher case huge amount water stored  in reservoir is non natural use of land and the use of land should be in natural way like keeping water for domestic purpose. Sochacki v. Sas[5] In this case court held that the fire in a house in a grate is an ordinary purpose and every days natural use. If this fire spreads the neighbouring premises ,then there is no applicability of strict liability. T.C. Balakrishnan Menon v. T.R. Subramanian, [6] In this case court held that the use of explosives in open ground even on festival days .it come under the non natural use of land and the defendant held liable. The above are the three essentials of Strict liability. Act done by independent contractor: Generally, an employer is not liable for the wrong committed by the independent contractors. However it is not a defence in the rule of strict liability in which the damage caused by the independent contractor. In Ryland V. Fletcher Case court held that the defendant was held liable even though he get his work done by independent contractors.

Defences / Exceptions :

The following are the recognised exceptions or defences by the Ryland V. Fletcher case and they are:
  1. Plaintiff’s own default :
  It was a good defence for the defendant, if plaintiff entered voluntarily into the defendant’s land  and causes damage by himself then the defendant is not liable. In this case Ponting v. Noakes  court said that the horse itself entered into the defendant’s land and died due to nibbled of yew tree leaves and here in this the defendant is not held liable because there is no escape of any Harmful substance. 2. Act of God or vis major or Damnum fatale The Harm which directly results from the natural causes and that can’t be foreseen and controlled by human beings. In relevance to the principle of strict liability; if the act was unpredictable,  without any human intervention and  caused by some super natural forces then there is no liability on defendant. Winfield and Pollock : “Act of God may be defined as an operation of natural forces unexpected that no human foresight or skill could reasonably be expected anticipate it.” [7] Nichols v. Marsland,[8] Here  the defendant constructed a dam with a normal flow  on his land. That year’s rainfall was heavy and unforgettable . Due to heavy rains the embankment of lakes burst and rushed out into the plaintiff’s four bridges. And the plaintiff sued defendant. The court ruled that there was no liability on defendant. 3. Consent of plaintiff In this exception, where plaintiff agreed expressly or impliedly of bringing any Harmful thing on his land which cause injury to him  at a subsequent time. Then the defendant is not liable and it comes under the principle of Volenti non fit injuria  which means no wrong is done to the person who gave his consent voluntarily.
  • Common benefit
 When the injury  is caused to the petitioner by the act or escape of Dangerous thing which was Kept for the benefit of the both petitioner and Respondent then it is called as common benefit. Here the rule of strict liability is inapplicable because they both are benefiting from it. Hence they both are not liable. Anderson v. Oppenheimer [9] In this case the plaintiff lessees floor in the defendant house , the tank in the house was burst and flooded the floor. The defendant is not liable here because the tank is used for the benefit of both.
  • Act of third party
  It means that when damage is caused due to acts done by the third person and the defendant has no control over him; no Master and Servant relation. If the act done by the stranger can be predictable then the Respondent should take care to avoid damages Box v. Jab[10] Here In this case defendant had a reservoir  and a overflow Of water from it due to the blockage of water by the stranger. And hence court held  here the defendant is not liable.
  • Statutory Authority:
 It is considered as a strong defence But if the defendant while under statutory authority he  has any negligence on his part, it was not applicable. Green v. Chelsea co (1864) In this case the defendant had a  duty to continuous maintain of water supply and without any negligence of the company it’s main belonging was burst and the place of the plaintiff was flooded with water. Court decided that there no negligence on behalf of company, hence it is not liable. The above mentioned are the defences for the defendant from the Strict liability.

ABSOLUTE LIABILITY:

  1.Meaning:

  In simple  Absolute liability  =  Strict liability  - Exceptions or defences The enterprises which is engaged in hazardous or inherently dangerous activity, while operation of such hazardous or inherently dangerous activity results in damage or harm of anyone on account of an  accident. Then the enterprise is strictly and absolutely  liable and to compensate to all those who were affected by accident.

  1. Historical Background/ Evolution:

    The Rule of absolute liability is took reference from the strict liability , here supreme court made this principle more strict without the exceptions in M.C. Mehta v. Union of India case. This is a  turning point  case in Indian history. Facts of the case: In Delhi which is the capital city of India , In 1985 on 4th and 6th December there was a severe gas leakage and  This was happened in one of the unit of Shriram foods and fertilizers Industries which is belongs to the Delhi Cloth Mill limited. Due to this an advocate was died who is practicing in This Hazari Court  and many other people also affected by this incident. This action was brought by M.C. Mehta through public interest litigation. Judgement: A strong decision was taken by supreme court  to evolve a new principle which suitable for the present social and economic conditions of India. In this case the court ruled that the company had to pay 20 lakhs compensation. Supreme court explanation: Supreme court justified the rule of absolute liability on basis of two reasons: a.Any enterprise which is carrying hazardous activities with a motive of profits have social responsibility to compensate victims from any accident , the company should absorb such loss and take the responsibility.
  1. The enterprises should discover the resources which guard against the hazardous and dangerous.
The measure of the compensation is based on how larger and prosperous enterprise; if it is larger and more prosperous then the compensation is also greater for the harm caused by the dangerous or hazardous activity by accident. Union carbide corporation v. Union of India  (Bhopal Gas tragedy) It is considered as world’s worst industrial disaster. The new rule laid in  oleum gas leakage case was applied in the Bhopal Gas tragedy by supreme court. In the city of Bhopal which is in Madhya Pradesh, India had a union carbide corporation India limited plant for manufacture of pesticides. Here on 2nd December 1984 at night a sever leakage of methyl isocyanate and other gases.  The company was designed with unproven and untested technology. It is a multinational company of U.S.A and this tragedy resulted in death of 3000 people and many people were injured. Some people lost of their hearing sense , disorders relating to neurological, permanent loss of eyesight. And after this tragedy , the public insurance Act 1991 was passed with a purpose of  immediate relief for the victims without any delay. Which was caused by the enterprise handling with hazardous substances. Public insurance Act 1991: The main motive of this act is to provide immediate relief to the victims, who were affected by the hazardous substances which was handled by the enterprises. This act was totally based on no fault liability principle. This act speaks  , the owner who is dealing with Harmful substances should take insurance where the owner will get the insurance against the liability in case of any death or injury to the victim caused by hazardous substance. Hazardous substances means chemical or physic chemical substance which cause harm to the living beings as human beings, animals, micro organisms , plants, water air land and environment. Handling means  manufacturing, transporting, packing , storing and so on in relation with hazardous substances.

The Distinction between Strict liability and Absolute liability

                   Strict liability                Absolute Liability
1.In strict liability the rules are strict but not absolute in nature  because it has exceptions. 1. In absolute liability the rules are strict and absolute, both in nature because it doesn’t have any exceptions.
2.The damages awarded by the court are may be ordinary or compensatory. 2. The damages awarded by the court are exemplary.
3.The escape of dangerous thing is necessary from the premises of defendant. 3. The escape of hazardous or dangerous thing is not necessary from the premises of the defendant. Which means the person injured within the premises and outside the premises. The defendant will be liable.
4.There should be non natural use of land. 4. Here Even it dangerous substance may be a natural use of land ,if it escapes then the defendant is liable, and there is no compulsory requirement of non natural use of land.

Absolute liability and Environment pollution:

Indian council enviro- legal Action V. Union of India [11] In this case the court made compulsory of  Polluter pay principle which means that the polluter must pay for the pollution made by him and the compensation should be used to the improvement of environment and the local residential areas. In this case also the absolute liability principle was followed by the supreme court. Visakhapatnam Gas leakage Case(2020): (Andhra Pradesh State) In this case a styrene gas was exploded from L.G polymers enterprise due to this 11 people were died and thousands of  people are hospitalized. Here also Court applied absolute liability.

Maxims / Principles

  a.sic utere tuo it alienum non laedas  “Use your own property in such a way that you do not injured other people’s: a maxim often used in cases of nuisance. It is misleading, since only an unreasonable interference with a neighbour’s property is actionable as a nuisance..”[12] b.volenti non fit injuria “No wrong is done to one who consent”.[13]
  1. Damnum fatale
“Damage ordained by fate. Damage caused by a force majeure(greater force), such as war, shipwreck, or natural catastrophic ( natural disasters)”. Vis major a Latin word which means  a greater force.

CONCLUSION & COMMENTS

Any way  the rule of absolute liability is a turning point judgement and supreme court reached its milestone. In jurisprudence we study sources of law as legislation, precedent and custom. In these three legislation is the best source of law. So the absolute liability not only remain as precedent but also legislation should be made.  And the provisions will give the rights to the people which helps them in speedy justice. If the Legislation is made then it undergo all the problems and give solutions before arise of problem in the society.

 REFERENCES

  1. Books / Commentaries / Journals Referred
  •           DR. R.k. BANGIA
  • Dr. N. Maheshwara Swamy
  • P.S.A. PILLAI
2. Cases Referred 1.Ryland V. Fletcher UKHL 1, L.R. 3 H.L. 330. 2.M.C Mehta V. Union of India 3.Ponting v. Noakes1894-2 Q. B. 281 : (63 L. J. Q. B. 549) 4.Read v. Lyons & Co., (1974 )A.C. 156 5.Sochacki v. Sas (1947) 1 All E.R. 344 6.T.C. Balakrishnan Menon v. T.R. Subramanian A.I.R. 1968 Kerala, 151 7.Nichols v. Marsland(1876) 2 Ex. D. 1 8.Balak Glass emporium v. United India  insurance co ltd AIR 1993 Ker 342 9.Anderson v. Oppenheimer 1880 5 QB 602 10.Box v. Jab1879 4 Ex D76 11.Green v. Chelsea co (1864) 12.Indian council enviro- legal Action V. Union of India AIR 1996 SC 1446 13.Visakhapatnam Gas leakage Case 2020
  1. Statutes Referred
i.The public insurance Act 1991 [1] Ryland V. Fletcher UKHL 1, L.R. 3 H.L. 330. [2] UKHL 1, L.R. 3 H.L. 330. [3] Indian kanoon ; Ponting v. Noakes; 1894-2 Q. B. 281 : (63 L. J. Q. B. 549) [4] DR. R K. BANGIA; Read v J Lyons & Co(1974 )A.C. 156 [5] (1947) 1 All E.R. 344. [6] A.I.R. 1968 Kerala, 151. [7] https://onlyjudiciary.com/act-of-god-vis-major-general-defences-in-tort/ [8] (1876) 2 Ex. D. 1 [9] 1880 5 QB 602, P.S.A Pillai [10] 1879 4 Ex D76 [11] AIR 1996 SC 1446 [12] https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100504563 [13] Oxford law Dictionary **Content:** **Author-Velagada Mounika, Dr. B.R. Ambedkar College of Law, Andhra University** ### **INTRODUCTION :** Generally, Strict liability and Absolute liability comes to play when there is a negligence resulting in causing environmental pollution. These liabilities are based on, No Fault Liability which means when a harm caused by a person ,who is liable to another person despite he is not negligent in causing harm or no intention to cause harm or he was careful. In 19th century (England) the principle of Strict liability was evolved in Ryland V. Fletcher case, the strict liability famously known as “*The Rules in Ryland V. Fletcher case*”[\[1\]](#_ftn1)***.*** And the evolution of absolute liability in Mc Mehta v. Union of India case here it raises the standard and decree of liability, making it an “*absolute*,” one. These civil law principles transforming environmental and constitutional principles, and also from recognition of civil rights to fundamental rights. This is why the no fault liability plays a important role in claiming compensation from the defendant. #### **KEYWORDS:** 1.No fault liability 2.strict liability 3\. absolute liability 4.Non natural use of land 5.Polluter pay 6.principal pay 7.Environmental pollution ### **STRICT LIABILITY:** ### **Meaning:** It means that an individual who keeps harmful substances or Dangerous thing in his place then he will be liable for the damage of plaintiff if it is escapes from his premises in any manner. For the application of strict liability there are essentials if all are satisfied then it comes under the Strict liability. **Historical Background :** Strict liability is the principle that, first foundation laid from the case **Ryland V. Fletcher[\[2\]](#_ftn2)** in the year 1868 **FACTS OF THE CASE:** In a place there were two men one is Ryland and another is Fletcher, who lived each other. Fletcher who had a mill which requires Huge energy to work. So, in his land Defendant constructed a reservoir and he appointed a engineer. In Ryland’s land there were old mine shafts which was unnoticed by the engineer. And due to the negligence of engineer later construction, water from the reservoir break out and rushed into the mine shafts of plaintiff. Ryland filed sue against fletcher in Trail court, Court held that Fletcher was unaware of the abandoned mine shaft and he is not negligent. So, fletcher is not liable. Then Ryland goes on appeal to the higher court. **Issues:** 1. whether the respondent is held legally responsible for the act done by Servant and without his negligence? 2. Whether the construction of reservoir in fletcher’s land comes under natural use of land ? **Judgement :** The house of lords gave decision in favour of Plaintiff and held that the defendant is liable, And for the acts done by the servant, Master is liable. The construction of reservoir is not natural use of land. **Sic utere tuo it alienum non laedas** which means everyone should use his land for natural use so, that you don’t injure other people. Strict liability Principle was originated from this case and the Rule had essentials and exceptions. After this case many cases are solved under this Rule of strict liability. This principal says if there is no negligence on his side then the defendant has to prove his innocence and this burden always lies on defendant. ### **Essentials / Elements / Pre-requisites** **1.Dangerous thing :** Here this word “dangerous” means that it may cause any harm if it is escapes from the premises of respondent. It simply states that liability for the damages on the defendant when the thing escaped from the land or premises of the defendant should be dangerous thing In Ryland V. Fletcher case the water stored in the reservoir is considered as the dangerous thing on defendant’s land. So, this principle states that the dangerous thing can be any poisonous gases, venomous fumes electricity, Chemicals and so on can be termed as dangerous things. 2. **Escape :** It is the 2nd Essential of strict liability, which plays a key role in the cases. Here escape means the thing causing harm must breakout or run out of the premises of the defendant premises. It means that the escaped object was outside the area and control of defendant. ***Ponting v. Noakes Case [\[3\]](#_ftn3)*** Here the ponting horse was entered into the Noake’s fence and ate few leaves from yew trees, which is a venomous tree. And the plaintiff’s horse was died and he sued the defendant in the court. The bench had lay down that the defendant was not liable under Strict liability because there was a full confine of yew trees and There is no escape from the defendant’s land. ***Read v. Lyons & Co., [\[4\]](#_ftn4)*** Similarly there was no escape and, therefore, there was no liability under the rule. In this case, the plaintiff was an employee in the defendant’s ammunition factory. inside the defendant’s premises she was working, while performing her duties a shell, which was being Manufactured there, exploded. 3. **Non natural use of land :** Here in the Ryland V. Fletcher case huge amount water stored in reservoir is non natural use of land and the use of land should be in natural way like keeping water for domestic purpose. ***Sochacki v. Sas*[\[5\]](#_ftn5)** In this case court held that the fire in a house in a grate is an ordinary purpose and every days natural use. If this fire spreads the neighbouring premises ,then there is no applicability of strict liability. ***T.C. Balakrishnan Menon v. T.R. Subramanian, [\[6\]](#_ftn6)*** In this case court held that the use of explosives in open ground even on festival days .it come under the non natural use of land and the defendant held liable. The above are the three essentials of Strict liability. **Act done by independent contractor:** Generally, an employer is not liable for the wrong committed by the independent contractors. However it is not a defence in the rule of strict liability in which the damage caused by the independent contractor. In **Ryland V. Fletcher** Case court held that the defendant was held liable even though he get his work done by independent contractors. ### **Defences / Exceptions :** The following are the recognised exceptions or defences by the Ryland V. Fletcher case and they are: 1. **Plaintiff’s own default :** It was a good defence for the defendant, if plaintiff entered voluntarily into the defendant’s land and causes damage by himself then the defendant is not liable. In this case ***Ponting v. Noakes*** court said that the horse itself entered into the defendant’s land and died due to nibbled of yew tree leaves and here in this the defendant is not held liable because there is no escape of any Harmful substance. **2. Act of God or vis major or Damnum fatale** The Harm which directly results from the natural causes and that can’t be foreseen and controlled by human beings. In relevance to the principle of strict liability; if the act was unpredictable, without any human intervention and caused by some super natural forces then there is no liability on defendant. **Winfield and Pollock :** “Act of God may be defined as an operation of natural forces unexpected that no human foresight or skill could reasonably be expected anticipate it.” [\[7\]](#_ftn7) ***Nichols v. Marsland,*[\[8\]](#_ftn8)** Here the defendant constructed a dam with a normal flow on his land. That year’s rainfall was heavy and unforgettable . Due to heavy rains the embankment of lakes burst and rushed out into the plaintiff’s four bridges. And the plaintiff sued defendant. The court ruled that there was no liability on defendant. **3. Consent of plaintiff** In this exception, where plaintiff agreed expressly or impliedly of bringing any Harmful thing on his land which cause injury to him at a subsequent time. Then the defendant is not liable and it comes under the principle of **Volenti non fit injuria** which means no wrong is done to the person who gave his consent voluntarily. - **Common benefit** When the injury is caused to the petitioner by the act or escape of Dangerous thing which was Kept for the benefit of the both petitioner and Respondent then it is called as common benefit. Here the rule of strict liability is inapplicable because they both are benefiting from it. Hence they both are not liable. ***Anderson v. Oppenheimer* [\[9\]](#_ftn9)** In this case the plaintiff lessees floor in the defendant house , the tank in the house was burst and flooded the floor. The defendant is not liable here because the tank is used for the benefit of both. - **Act of third party** It means that when damage is caused due to acts done by the third person and the defendant has no control over him; no Master and Servant relation. If the act done by the stranger can be predictable then the Respondent should take care to avoid damages ***Box v. Jab[\[10\]](#_ftn10)*** Here In this case defendant had a reservoir and a overflow Of water from it due to the blockage of water by the stranger. And hence court held here the defendant is not liable. - **Statutory Authority:** It is considered as a strong defence But if the defendant while under statutory authority he has any negligence on his part, it was not applicable. ***Green v. Chelsea co (1864)*** In this case the defendant had a duty to continuous maintain of water supply and without any negligence of the company it’s main belonging was burst and the place of the plaintiff was flooded with water. Court decided that there no negligence on behalf of company, hence it is not liable. The above mentioned are the defences for the defendant from the Strict liability. ### **ABSOLUTE LIABILITY:** ### **1.Meaning:** In simple **Absolute liability = Strict liability – Exceptions or defences** The enterprises which is engaged in hazardous or inherently dangerous activity, while operation of such hazardous or inherently dangerous activity results in damage or harm of anyone on account of an accident. Then the enterprise is strictly and absolutely liable and to compensate to all those who were affected by accident. 2. ### **Historical Background/ Evolution:** The Rule of absolute liability is took reference from the strict liability , here supreme court made this principle more strict without the exceptions in **M.C. Mehta v. Union of India** case. This is a turning point case in Indian history. **Facts of the case:** In Delhi which is the capital city of India , In 1985 on 4th and 6th December there was a severe gas leakage and This was happened in one of the unit of Shriram foods and fertilizers Industries which is belongs to the Delhi Cloth Mill limited. Due to this an advocate was died who is practicing in This Hazari Court and many other people also affected by this incident. This action was brought by M.C. Mehta through public interest litigation. **Judgement:** A strong decision was taken by supreme court to evolve a new principle which suitable for the present social and economic conditions of India. In this case the court ruled that the company had to pay 20 lakhs compensation. **Supreme court explanation:** Supreme court justified the rule of absolute liability on basis of two reasons: a.Any enterprise which is carrying hazardous activities with a motive of profits have social responsibility to compensate victims from any accident , the company should absorb such loss and take the responsibility. 1. The enterprises should discover the resources which guard against the hazardous and dangerous. The measure of the compensation is based on how larger and prosperous enterprise; if it is larger and more prosperous then the compensation is also greater for the harm caused by the dangerous or hazardous activity by accident. **Union carbide corporation v. Union of India (Bhopal Gas tragedy)** It is considered as world’s worst industrial disaster. The new rule laid in oleum gas leakage case was applied in the Bhopal Gas tragedy by supreme court. In the city of Bhopal which is in Madhya Pradesh, India had a union carbide corporation India limited plant for manufacture of pesticides. Here on 2nd December 1984 at night a sever leakage of methyl isocyanate and other gases. The company was designed with unproven and untested technology. It is a multinational company of U.S.A and this tragedy resulted in death of 3000 people and many people were injured. Some people lost of their hearing sense , disorders relating to neurological, permanent loss of eyesight. And after this tragedy , the public insurance Act 1991 was passed with a purpose of immediate relief for the victims without any delay. Which was caused by the enterprise handling with hazardous substances. **Public insurance Act 1991:** The main motive of this act is to provide immediate relief to the victims, who were affected by the hazardous substances which was handled by the enterprises. This act was totally based on **no fault liability** principle. This act speaks , the owner who is dealing with Harmful substances should take insurance where the owner will get the insurance against the liability in case of any death or injury to the victim caused by hazardous substance. Hazardous substances means chemical or physic chemical substance which cause harm to the living beings as human beings, animals, micro organisms , plants, water air land and environment. Handling means manufacturing, transporting, packing , storing and so on in relation with hazardous substances. ### **The Distinction between Strict liability and Absolute liability** **Strict liability** **Absolute** **Liability**1.In strict liability the rules are strict but not absolute in nature because it has exceptions.1. In absolute liability the rules are strict and absolute, both in nature because it doesn’t have any exceptions.2.The damages awarded by the court are may be ordinary or compensatory.2. The damages awarded by the court are exemplary.3.The escape of dangerous thing is necessary from the premises of defendant.3. The escape of hazardous or dangerous thing is not necessary from the premises of the defendant. Which means the person injured within the premises and outside the premises. The defendant will be liable. 4.There should be non natural use of land.4. Here Even it dangerous substance may be a natural use of land ,if it escapes then the defendant is liable, and there is no compulsory requirement of non natural use of land.### **Absolute liability and Environment pollution:** **Indian council enviro- legal Action V. Union of India [\[11\]](#_ftn11)** In this case the court made compulsory of Polluter pay principle which means that the polluter must pay for the pollution made by him and the compensation should be used to the improvement of environment and the local residential areas. In this case also the absolute liability principle was followed by the supreme court. **Visakhapatnam Gas leakage Case(2020): (**Andhra Pradesh State) In this case a styrene gas was exploded from L.G polymers enterprise due to this 11 people were died and thousands of people are hospitalized. Here also Court applied absolute liability. ### **Maxims / Principles** **a.*sic utere tuo it alienum non laedas*** *“Use your own property in such a way that you do not injured other people’s: a maxim often used in cases of nuisance. It is misleading, since only an unreasonable interference with a neighbour’s property is actionable as a nuisance*..”[\[12\]](#_ftn12) **b.*volenti non fit injuria*** *“No wrong is done to one who consent”*.[\[13\]](#_ftn13) 1. ***Damnum fatale*** “*Damage ordained by fate.* *Damage caused by a force majeure(greater force), such as war, shipwreck, or natural catastrophic ( natural disasters)”. **Vis major** a Latin word which means a greater force.* ### **CONCLUSION & COMMENTS** Any way the rule of absolute liability is a turning point judgement and supreme court reached its milestone. In jurisprudence we study sources of law as legislation, precedent and custom. In these three legislation is the best source of law. So the absolute liability not only remain as precedent but also legislation should be made. And the provisions will give the rights to the people which helps them in speedy justice. If the Legislation is made then it undergo all the problems and give solutions before arise of problem in the society. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** - DR. R.k. BANGIA - Dr. N. Maheshwara Swamy - P.S.A. PILLAI **2. Cases Referred** 1.Ryland V. Fletcher UKHL 1, L.R. 3 H.L. 330. 2.M.C Mehta V. Union of India 3.Ponting v. Noakes1894-2 Q. B. 281 : (63 L. J. Q. B. 549) 4.Read v. Lyons & Co., (1974 )A.C. 156 5.Sochacki v. Sas (1947) 1 All E.R. 344 6.T.C. Balakrishnan Menon v. T.R. Subramanian A.I.R. 1968 Kerala, 151 7.Nichols v. Marsland(1876) 2 Ex. D. 1 8.Balak Glass emporium v. United India insurance co ltd AIR 1993 Ker 342 9.Anderson v. Oppenheimer 1880 5 QB 602 10.Box v. Jab1879 4 Ex D76 11.Green v. Chelsea co (1864) 12.Indian council enviro- legal Action V. Union of India AIR 1996 SC 1446 13.Visakhapatnam Gas leakage Case 2020 3. **Statutes Referred** i.The public insurance Act 1991 [\[1\]](#_ftnref1) Ryland V. Fletcher UKHL 1, L.R. 3 H.L. 330. [\[2\]](#_ftnref2) UKHL 1, L.R. 3 H.L. 330. [\[3\]](#_ftnref3) Indian kanoon ; Ponting v. Noakes; 1894-2 Q. B. 281 : (63 L. J. Q. B. 549) [\[4\]](#_ftnref4) DR. R K. BANGIA; Read v J Lyons & Co(1974 )A.C. 156 [\[5\]](#_ftnref5) (1947) 1 All E.R. 344. [\[6\]](#_ftnref6) A.I.R. 1968 Kerala, 151. [\[7\]](#_ftnref7) [\[8\]](#_ftnref8) (1876) 2 Ex. D. 1 [\[9\]](#_ftnref9) 1880 5 QB 602, P.S.A Pillai [\[10\]](#_ftnref10) 1879 4 Ex D76 [\[11\]](#_ftnref11) AIR 1996 SC 1446 [\[12\]](#_ftnref12)[ https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100504563](https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100504563) [\[13\]](#_ftnref13) Oxford law Dictionary **Categories:** Articles --- ### [Emergency provision under Indian Constitution](https://lawfoyer.in/emergency-provision-under-indian-constitution/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Naveena K., Chettinad School of Law

INTRODUCTION

The Indian Constitution[1] has the features of both federal and unitary, Emergency provisions are the unitary features. During the emergency situations the central government holds the power and it will demand the states to do the functions .Constitution of India Part XVII deals with the Emergency provisions[2] Article 352 to 360 these provisions enables the Central government to meet any abnormal situations effectively. Three  types of Emergency
  1. (Art 352)- National Emergency
  2. (Art 356)- State Emergency
  3. (Art 360)-Financial Emergency
The President has the power to imposing the all three emergencies. During this emergencies period the Fundamental rights has been suspended except Art 20 and 21. The kind of Political System is Federal during normal time and unitary during emergency. In this article, lets see about the Types of Emergencies,Ground of Proclamation of emergencies,Procedures of parliamentary approval and duration of emergencies,Revocation of emergencies, effects of emergencies and the related case laws and some doctrines. Keywords(Minimum5):Constitution,National Emergency, State Emergency,Financial Emergency,War, External aggression, Proclamation, Judicial Review, President.

TYPES OF EMERGENCIES

National Emergencies- Due to war ,external aggression or armed rebellion State Emergencies   -    Due to failure of constitutional machinery in states. Financial Emergencies- Unexpected situations that impact Financial stability. NATIONAL EMERGENCIES President of India can declare the national emergencies in the situation were the security of India or a part of India threatened by the war or armed rebellion or external aggression, before their actual occurrences. Emergency declared on external aggression known as external emergency, Emergency declared on armed rebellion known as internal emergency. A period of emergency may be proclaimed for the entire nation or just a part of it. Grounds of national emergencies:
  1. War- When a country declares war against India and violence by armed forces
  2. External aggression - When country attack the country without any formal declarations of war
  3. Armed rebellion-When a group of individuals rebel against the government and cause destruction of property and life.
Procedure for Proclamation of Emergency President can proclaim a national emergency only after receiving the recommendation from the cabinets ,means only on the concurrence of the cabinets not merely on the PM. 44th amendment 1978 introduced  safeguards to eliminate any possibilities of PM alone taking the regards. “Minervamills Case[3]” The Supreme Court ruled that there is no barrier to   Judicial review of the validity of a Presidential Proclamation. Thus, the Proclamation of Emergency can be challenged in court on the grounds of malafide, or the proclamation was founded entirely on false and irrelevant Parliamentary approval and duration: Originally the Proclamation of emergency was 2 month for approval by 44th amendment it has been reduced to 1 month. The Proclamation must be approved by both the house of Parliamentary within 1 month of date of issue. If the  Loksabha has been dissolved during the 1 month without approving the proclamation. After the reconstitution of loksabha the proclamation survives until 30 days from the 1st sitting. Once the parliament approved proclamation of emergency it shall remain in force for period of 6 months from the date of passing. Further extension of emergency beyond period of 6 months ,for about every six months approval of parliament is needed Every resolution approving POE ,& continuance must be done by either house of parliament by special majority process. Revocation of Emergency:
  • The President can revoke the emergency at any time , the parliamentary approval is not required.If the loksabha passes the resolution to disapproving its continuation the President must revoke the Proclamation.
  • 1/10 of the loksabha members should give a written notice to the speaker if the house in session , if houses in not in session to the President .Special sitting is held within 14 days of notice for the purpose of considering a resolution disapproving the continuation of proclamation.
Disapproval of proclamation Continuation of proclamation
Resolution passed by Loksabha Resolution passed by both house
Adopted by simple majority Adopted by special majority

Effects of Proclamation of emergency

1.Centre state relations: Extension of Center's Executive Power(353): During national emergency the power of the central extends, Central can direct the any state regarding manner which extends the power. State executive will not suspended .Central has complete control. Legislative(353 (b)) : During the national emergency centre can make law on state subjects, although the legislative power of states does not suspended. The law made by the parliament on the states subject during emergency becomes inoperative in 6 months. Financial Controls (354): President can make changes in distribution of revenues between centre& states, thus president can either reduce or cancel the transfer of finances.
  1. Effect of life of loksabha and the State assembly( 83 (2)):
During national emergency the term of loksabha has been extended beyond five years. and state legislative assembly can also have their extension of term.
  1. Effect of Fundamental rights:
There is no need of separate order to be passed to suspend the Fundamental Rights.The six Fundamental rights enshrined in Art 19 gets automatically suspended if the national emergency had been issued. Art 358 and Art 359 describes the effects of national emergency.
ARTICLE 358 ARTCLE 359
l   Fundamental Right guaranteed by Article 19 completely on Suspension. l  Automatically suspends l  Art 19 suspends up-to the emergency exists I l  Extends to entire country l  Operates in case of external emergency l  Suspension of  Other  Fundamental Rights (except 20 ,& 21) l  On the Presidents declaration of specified fundamental rights suspends. l  Fundamental rights suspended for the period specified by President. l  It may extends to entire country or the part of it. l  Operates in case of  both external and internal emergency.
MakkanSingh vs State of Punjab[4] Suspension of right to move court for the enforcement of Art 14,21,22, under the Proclamation of emergency during Indo-China war has been challenged. The SC ruled that the rights were suspended only for those who were legally detained, not those who were unfairly detained under the Prevention Detention Law. The Supreme Court stated that if a citizen's imprisonment was mala fide, he would not be deprived the right to petition the court for a writ of habeas corpus. M Jabalpur vs S.Shukla[5] The Supreme Court ruled in the case  that during national emergency an individual moving to the Court for enforcement of Fundamental rights is suspended. also, including right to life and liberty.

PRESIDENTS RULE

Presidents rules can be also termed as “Constitutional Emergency” or “ State Emergency” Grounds of Impositions: Art 356 -According to the President, there is a situation where the Governor cannot carry out the duties of the State Government in accordance with the provisions of the Constitution. Art 365 -Whenever State fails to comply with order of Centre the Presidents rule will arise. Parliamentary Approval and Duration: Proclamation of imposing President’s rule ,both the house of parliament must approve within 2 months  from the date of its issuance. At the time of proclamation loksabha dissolves or dissolution take places during the time period of 2 months , then the proclamation survive for about 30 days from the first sitting of loksabha after its reconstitution. Rajyasabha should approves it in the mean time Proclamation operates on period of six months, it can be extended only up to 3 years not beyond that. Every 6 months Parliament approval is required by simple majority. 44th amendment[6]- 2 Condition must be fulfilled to extended the President’s rule for 6 months.
  1. National Emergency operates in India, may be imposed in whole of territory or party of state.
  2. If there is report submitted that elections in the state assembly is not possible.
Revocation: The revocation do not require the approval of both the houses, The President can revoke at any time. This occurs when the leader of political party indicating the majority support for him in the assembly. SR bommai vs UOI[7] This case decided by the Supreme court of India, that the President’s Rule is subject to Judicial Review. Court can question and enquire about the grounds for imposing the Presidents rule. SC laid down the rules regarding Presidents rule  ,listed below;
  • President do not have an absolute power to dismiss the State Government.
  • President should use the power only after the approval of Parliament, until then president can suspend only the Legislative Assembly.
  • In case of Proclamation does not get approval by the both houses, it lapses after the 2 months and the dismissed government is revived. Suspended legislative assembly get reactivated.
  • These provisions should use only in the exceptional circumstances.
  • President’s Rule can be imposed on ground if the State Governor work against Secularism.
  • This provision under eye of judicial review it will the prevent arbitrariness.
Effect of President’s Rule :
  • The President will taken up the functions of State he become the deciding authority, and the power vested to governor.
  • The decisions will be taken by Parliament instead of a State Assembly.
  • During Presidents Rule the power of high court remains same. President cannot suspend the power of High Court.
  • President can also suspend the constitution provision relates to state if it is necessary.
  • President can also dismisses the State council of minister headed by CM. The State Administration can be carry out by the Governor on behalf of President.

FINANCIAL EMERGENCIES

Article 360 of Indian Constitution  says about the Financial Emergencies. This can be imposed by President on the approval of Parliament. 38th Amendment [8] states that the President's declaration of a financial emergency is final and conclusive, and can be challenged in court on any grounds. This was subsequently repealed by the 44th Amendment Act of 1978, which stated that the president's satisfaction is subject to judicial review. Ground of imposition: Art 360- Allows the President to declare a financial emergency in India if the country's financial stability is threatened. Approval and Duration :
  • The Proclamation of emergency it should be approved by the Both the houses of Parliament on on simple majority within in the 2 months from the date of issuance.
  • The loksabha dissolve during the period of 2 months without approving, after the reconstitution of loksabha from the 30 days of first sitting it must be approved. Rajyasabha should approve in its mean time.
Revocation: The emergency can be revoked by the president at any time. No maximum period is prescribed, for the continuation of emergency parliamentary approval is not needed. Effects of Financial Emergency: The center's executive jurisdiction extends to directing any state to follow such financial propriety standards. There is the reduction of salaries and allowances for the person serving in state. The president may reserve the money bill and financial bill  for considerations The salary and allowances of the person serving in the Union ( Judges of SC & HC)also reduced. Criticisms
  • President act as a dictator
  • The democratic foundation of the constitution will be shattered, and fundamental rights will become meaningless.
  • The federal nature of the constitution reduces and the union emerges all powerful.
  • The Union executive will have the exclusive power of state.
  • State Financial autonomy will be nullified.
There are some doctrines to be discussed in the Emergency Provision.
  • Doctrine of Sovereignty :The executive head of the state (President) has an power to declare the Emergency in certain situations. This is to protect the Sovereignty,unity, integrity, security of Constitution of India.
  • Doctrine of Unitary State : The federal structure becomes unitary when the emergency situation arises, the central government taken the power state government should comply with the law made by centre.
  • Doctrine of Judicial Review: Judicial review ensures that constitutional rights are upheld even during emergencies by acting as a check on possible abuses of emergency powers.

CONCLUSION & COMMENTS

India is a quasi federal country it is federal structure with unitary features, when it comes to the situation of emergency the President may Proclaim the emergency with the approval of both houses of Parliament, There are procedures for the approval and revocation of Emergencies. President do not hold the absolute power on the Emergencies. The fundamental rights of the citizen also suspended during the emergency , the fundamental rights and period are specified by the President. The Emergency provision under Judicial review to prevent the arbitrariness and malafide intention.

REFERENCES

Books / Commentaries / Journals Referred Constitution Law of India: Dr.J.N Pandey Indian Polity : M.Laxmikanth Online Articles / Sources Referred
  1. Emergency provisions. (n.d.). Drishti IAS. Retrieved March 16, 2024, from https://www.drishtiias.com/to-the-points/Paper2/emergency-provisions
  2. Prep, B. E. (2023, October 17). BYJU’S exam prep. BYJU’S Exam Prep. https://byjusexamprep.com/upsc-exam/emergency-provisions-in-indian-constitution
  3. Team, C. (2022, October 19). ClearIAS. ClearIAS. https://www.clearias.com/emergency-provisions/
Cases Referred
  1. Minerva mills vs UOI
  2. SR Bommai vs UOI
  3. Makkan Singh vs State of Punjab
  4. D.M Jabalpur vs S.Shukla
Statutes Referred
    1. Constitution of India 1949
[1] Enact on Nov 26  1949, enforcement on Jan 26 1950 [2] Influenced by  the country Germany [3] AIR 1980 SC 1789 [4] AIR 1964 SC 381 [5] AIR 1976 SC 1207 [6] 44th amendent act 1978 [7] 1994 3SCC 1 [8] 1975 **Content:** **Author-Naveena K., Chettinad School of Law** ### **INTRODUCTION** The Indian Constitution[\[1\]](#_ftn1) has the features of both federal and unitary, Emergency provisions are the unitary features. During the emergency situations the central government holds the power and it will demand the states to do the functions .Constitution of India Part XVII deals with the Emergency provisions[\[2\]](#_ftn2) Article 352 to 360 these provisions enables the Central government to meet any abnormal situations effectively. Three types of Emergency 1. (Art 352)- National Emergency 2. (Art 356)- State Emergency 3. (Art 360)-Financial Emergency The President has the power to imposing the all three emergencies. During this emergencies period the Fundamental rights has been suspended except Art 20 and 21. The kind of Political System is Federal during normal time and unitary during emergency. In this article, lets see about the Types of Emergencies,Ground of Proclamation of emergencies,Procedures of parliamentary approval and duration of emergencies,Revocation of emergencies, effects of emergencies and the related case laws and some doctrines. ***Keywords(Minimum5)*:**Constitution,National Emergency, State Emergency,Financial Emergency,War, External aggression, Proclamation, Judicial Review, President. ### **TYPES OF EMERGENCIES** **National Emergencies-** Due to war ,external aggression or armed rebellion **State Emergencies –** Due to failure of constitutional machinery in states. **Financial Emergencies-** Unexpected situations that impact Financial stability. **NATIONAL EMERGENCIES** President of India can declare the national emergencies in the situation were the security of India or a part of India threatened by the war or armed rebellion or external aggression, before their actual occurrences. Emergency declared on external aggression known as external emergency, Emergency declared on armed rebellion known as internal emergency. A period of emergency may be proclaimed for the entire nation or just a part of it. **Grounds of national emergencies:** 1. War- When a country declares war against India and violence by armed forces 2. External aggression – When country attack the country without any formal declarations of war 3. Armed rebellion-When a group of individuals rebel against the government and cause destruction of property and life. **Procedure for Proclamation of Emergency** President can proclaim a national emergency only after receiving the recommendation from the cabinets ,means only on the concurrence of the cabinets not merely on the PM. 44th amendment 1978 introduced safeguards to eliminate any possibilities of PM alone taking the regards. **“Minervamills Case**[**\[3\]**](#_ftn3)**”** The Supreme Court ruled that there is no barrier to Judicial review of the validity of a Presidential Proclamation. Thus, the Proclamation of Emergency can be challenged in court on the grounds of malafide, or the proclamation was founded entirely on false and irrelevant **Parliamentary approval and duration:** Originally the Proclamation of emergency was 2 month for approval by 44th amendment it has been reduced to 1 month. The Proclamation must be approved by both the house of Parliamentary within 1 month of date of issue. If the Loksabha has been dissolved during the 1 month without approving the proclamation. After the reconstitution of loksabha the proclamation survives until 30 days from the 1st sitting. Once the parliament approved proclamation of emergency it shall remain in force for period of 6 months from the date of passing. Further extension of emergency beyond period of 6 months ,for about every six months approval of parliament is needed Every resolution approving POE ,& continuance must be done by either house of parliament by special majority process. **Revocation of Emergency:** - The President can revoke the emergency at any time , the parliamentary approval is not required.If the loksabha passes the resolution to disapproving its continuation the President must revoke the Proclamation. - 1/10 of the loksabha members should give a written notice to the speaker if the house in session , if houses in not in session to the President .Special sitting is held within 14 days of notice for the purpose of considering a resolution disapproving the continuation of proclamation. **Disapproval of proclamation****Continuation of proclamation**Resolution passed by LoksabhaResolution passed by both houseAdopted by simple majorityAdopted by special majority### **Effects of Proclamation of emergency** 1**.Centre state relations:** Extension of Center’s Executive Power(353): During national emergency the power of the central extends, Central can direct the any state regarding manner which extends the power. State executive will not suspended .Central has complete control. Legislative(353 (b)) : During the national emergency centre can make law on state subjects, although the legislative power of states does not suspended. The law made by the parliament on the states subject during emergency becomes inoperative in 6 months. Financial Controls (354): President can make changes in distribution of revenues between centre& states, thus president can either reduce or cancel the transfer of finances. 2. **Effect of life of loksabha and the State assembly( 83 (2)):** During national emergency the term of loksabha has been extended beyond five years. and state legislative assembly can also have their extension of term. 3. **Effect of Fundamental rights:** There is no need of separate order to be passed to suspend the Fundamental Rights.The six Fundamental rights enshrined in Art 19 gets automatically suspended if the national emergency had been issued. Art 358 and Art 359 describes the effects of national emergency. ARTICLE 358ARTCLE 359l Fundamental Right guaranteed by Article 19 completely on Suspension. l Automatically suspends l Art 19 suspends up-to the emergency exists I l Extends to entire country l Operates in case of external emergency l Suspension of Other Fundamental Rights (except 20 ,& 21) l On the Presidents declaration of specified fundamental rights suspends. l Fundamental rights suspended for the period specified by President. l It may extends to entire country or the part of it. l Operates in case of both external and internal emergency. **MakkanSingh vs State of Punjab**[\[4\]](#_ftn4) Suspension of right to move court for the enforcement of Art 14,21,22, under the Proclamation of emergency during Indo-China war has been challenged. The SC ruled that the rights were suspended only for those who were legally detained, not those who were unfairly detained under the Prevention Detention Law. The Supreme Court stated that if a citizen’s imprisonment was mala fide, he would not be deprived the right to petition the court for a writ of habeas corpus. **M Jabalpur vs S.Shukla**[**\[5\]**](#_ftn5) The Supreme Court ruled in the case that during national emergency an individual moving to the Court for enforcement of Fundamental rights is suspended. also, including right to life and liberty. ### **PRESIDENTS RULE** Presidents rules can be also termed as “Constitutional Emergency” or “ State Emergency” **Grounds of Impositions:** Art 356 -According to the President, there is a situation where the Governor cannot carry out the duties of the State Government in accordance with the provisions of the Constitution. Art 365 -Whenever State fails to comply with order of Centre the Presidents rule will arise. **Parliamentary Approval and Duration:** Proclamation of imposing President’s rule ,both the house of parliament must approve within 2 months from the date of its issuance. At the time of proclamation loksabha dissolves or dissolution take places during the time period of 2 months , then the proclamation survive for about 30 days from the first sitting of loksabha after its reconstitution. Rajyasabha should approves it in the mean time Proclamation operates on period of six months, it can be extended only up to 3 years not beyond that. Every 6 months Parliament approval is required by simple majority. 44th amendment[**\[6\]**](#_ftn6)– 2 Condition must be fulfilled to extended the President’s rule for 6 months. 1. National Emergency operates in India, may be imposed in whole of territory or party of state. 2. If there is report submitted that elections in the state assembly is not possible. **Revocation:** The revocation do not require the approval of both the houses, The President can revoke at any time. This occurs when the leader of political party indicating the majority support for him in the assembly. **SR bommai vs UOI**[**\[7\]**](#_ftn7) This case decided by the Supreme court of India, that the President’s Rule is subject to Judicial Review. Court can question and enquire about the grounds for imposing the Presidents rule. SC laid down the rules regarding Presidents rule ,listed below; - President do not have an absolute power to dismiss the State Government. - President should use the power only after the approval of Parliament, until then president can suspend only the Legislative Assembly. - In case of Proclamation does not get approval by the both houses, it lapses after the 2 months and the dismissed government is revived. Suspended legislative assembly get reactivated. - These provisions should use only in the exceptional circumstances. - President’s Rule can be imposed on ground if the State Governor work against Secularism. - This provision under eye of judicial review it will the prevent arbitrariness. **Effect of President’s Rule :** - The President will taken up the functions of State he become the deciding authority, and the power vested to governor. - The decisions will be taken by Parliament instead of a State Assembly. - During Presidents Rule the power of high court remains same. President cannot suspend the power of High Court. - President can also suspend the constitution provision relates to state if it is necessary. - President can also dismisses the State council of minister headed by CM. The State Administration can be carry out by the Governor on behalf of President. ### **FINANCIAL EMERGENCIES** Article 360 of Indian Constitution says about the Financial Emergencies. This can be imposed by President on the approval of Parliament. 38th Amendment **[\[8\]](#_ftn8)** states that the President’s declaration of a financial emergency is final and conclusive, and can be challenged in court on any grounds. This was subsequently repealed by the 44th Amendment Act of 1978, which stated that the president’s satisfaction is subject to judicial review. **Ground of imposition:** Art 360- Allows the President to declare a financial emergency in India if the country’s financial stability is threatened. **Approval and Duration :** - The Proclamation of emergency it should be approved by the Both the houses of Parliament on on simple majority within in the 2 months from the date of issuance. - The loksabha dissolve during the period of 2 months without approving, after the reconstitution of loksabha from the 30 days of first sitting it must be approved. Rajyasabha should approve in its mean time. **Revocation:** The emergency can be revoked by the president at any time. No maximum period is prescribed, for the continuation of emergency parliamentary approval is not needed. **Effects of Financial Emergency:** The center’s executive jurisdiction extends to directing any state to follow such financial propriety standards. There is the reduction of salaries and allowances for the person serving in state. The president may reserve the money bill and financial bill for considerations The salary and allowances of the person serving in the Union ( Judges of SC & HC)also reduced. **Criticisms** - President act as a dictator - The democratic foundation of the constitution will be shattered, and fundamental rights will become meaningless. - The federal nature of the constitution reduces and the union emerges all powerful. - The Union executive will have the exclusive power of state. - State Financial autonomy will be nullified. There are some doctrines to be discussed in the Emergency Provision. - **Doctrine of Sovereignty** :The executive head of the state (President) has an power to declare the Emergency in certain situations. This is to protect the Sovereignty,unity, integrity, security of Constitution of India. - **Doctrine of Unitary State** : The federal structure becomes unitary when the emergency situation arises, the central government taken the power state government should comply with the law made by centre. - **Doctrine of Judicial Review:** Judicial review ensures that constitutional rights are upheld even during emergencies by acting as a check on possible abuses of emergency powers. ### **CONCLUSION & COMMENTS** India is a quasi federal country it is federal structure with unitary features, when it comes to the situation of emergency the President may Proclaim the emergency with the approval of both houses of Parliament, There are procedures for the approval and revocation of Emergencies. President do not hold the absolute power on the Emergencies. The fundamental rights of the citizen also suspended during the emergency , the fundamental rights and period are specified by the President. The Emergency provision under Judicial review to prevent the arbitrariness and malafide intention. ### **REFERENCES** **Books / Commentaries / Journals Referred** Constitution Law of India: Dr.J.N Pandey Indian Polity : M.Laxmikanth **Online Articles / Sources Referred** 1. *Emergency provisions*. (n.d.). Drishti IAS. Retrieved March 16, 2024, from 2. Prep, B. E. (2023, October 17). *BYJU’S exam prep*. BYJU’S Exam Prep. 3. Team, C. (2022, October 19). *ClearIAS*. ClearIAS. **Cases Referred** 1. Minerva mills vs UOI 2. SR Bommai vs UOI 3. Makkan Singh vs State of Punjab 4. D.M Jabalpur vs S.Shukla **Statutes Referred** 1. 1. Constitution of India 1949 [\[1\]](#_ftnref1) Enact on Nov 26 1949, enforcement on Jan 26 1950 [\[2\]](#_ftnref2) Influenced by the country Germany [\[3\]](#_ftnref3) AIR 1980 SC 1789 [\[4\]](#_ftnref4) AIR 1964 SC 381 [\[5\]](#_ftnref5) AIR 1976 SC 1207 [\[6\]](#_ftnref6) 44th amendent act 1978 [\[7\]](#_ftnref7) 1994 3SCC 1 [\[8\]](#_ftnref8) 1975 **Categories:** Articles --- ### [NATIONAL SECURITY LAWS OF INDIA & FUNDAMENTAL RIGHTS UNDER THE INDIAN CONSTITUTION: PROVISION, PRINCIPLES, PROCEDURES AND CASES](https://lawfoyer.in/national-security-laws-of-india-fundamental-rights-under-the-indian-constitution-provision-principles-procedures-and-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Rutvij Vyas, Faculty of Law, GLS University

 Introduction

National security or National defence is a comprehensive attempt of a government to ensure the security over its territory and its people through the application of economic, political, diplomatic and military power. National security includes the overall efforts of providing security to its citizens, economy, and its institutions. As per Chanakya’s arthashastra, It is the duty of government/state to ensure the safety and well beings of tis citizens. For that every government in all due course of time enacts several legislations to ensure the national security. This article explores the effort of State in enacting the laws for ensuring the security. There are 2 major types of National security i.e Internal and external security. Internal security refers to all the measures taken by the State to protect itself from threats originating within its territory. It includes protection of law and order and also removing and resolving conflicts as well as risks that threaten the nation’s sovereignty1. External security refers to all the measures taken by the Government to protect itself from all the threats originating from outside its territory, it was originally perceived as security against military attack from enemy state, however in reference to current times it also includes the external aggression from non- state actors, such as terrorists. The concept of external security includes tackling conflicts and risks emerging outside the territory2, the external security can be further classified to symmetric and asymmetric external security. The Constitution makers were well aware of the concept of internal and external security, and the constitution provides a dedicated framework for ensuring the internal and external security of a nation, including provisions for the defence forces (u/a:- 33, 34), emergency powers (u/a:- 352 to 360), security of the state as a reasonable restriction to a fundamental right, and the role of the government in ensuring security. As per notable Jurist, Harold laswell (1950), “The distinctive meaning of the national security means freedom from foreign dictation” thus it can be asserted in purview of national security, that the ultimate aim of national security is to secure the sovereignty of State.

Keywords:- National Security, preventive detention, Fundamental rights & Judicial Scrutiny

Fundamental Rights under the Indian Constitution vis-a-vis internal and external security

Fundamental rights enshrined under articles 12 to 35 (part 3) of the Constitution are the cornerstone of the Indian Constitution3, providing citizens with fundamental protections of rights and liberties. They guarantee individual freedoms and ensure the personal liberty, dignity, equality, and justice of each person4. This article explores the interplay between fundamental rights and the security concerns faced by India; We can observe a clear balance between national security and fundamental rights, as the State has the power to preserve its national interest and to maintain its national security, but the action of government must be ultra vires and shouldn’t be violative of fundamental rights (article 13). In the leading case of People's Union for Civil Liberties (PUCL) v. Union of India (2003)5 - The Hon’ble Supreme Court i.e. the Apex Court has emphasised that national security concerns should not be used as a pretext to violate fundamental rights. It was held that ‘any restrictions on fundamental rights must be necessary, proportionate, reasonable and conform to the principles of rule of law’. The Fundamental rights outline the reasonable restrictions in the interest of public order, sovereignty, and integrity of India, friendly relations with foreign states, and security of the state, however, such terms are subject to individual facts and circumstances, which makes the interpretation of courts important. In the case of K.S. Puttaswamy v. Union of India (2017)6- (also called as right to privacy verdict) The Supreme Court recognised that the right to privacy is a fundamental right under Article 21, as stated byJs DY Chandrachud, this rights are not an absolute right and can be restricted for legitimate state interests, such as national security, and such right would not be violated to take counterterrorism measures and to ensure the security and safety of the people. In the case of Romesh Thapper v. State of Madras (1950)7 , where a fundamental right of freedom of speech was at concern, the Supreme Court differentiated between ‘Security of State’ and ‘maintenance of public order’, and held that the liberty of the press is an essential part of freedom of speech and is foundation stone of all democratic functioning, and the state has no power to contravene it using the reasonable restrictions. The Constitution articles 352 to 360 (Part 18) deals with emergencies. As stated in Article 352, the President can declare a state of National emergency, if there is a threat of external aggression or internal- armed rebellion. The President, in the situation when the Governor of state proposes the collapse of constitutional government, might take over the affairs of that state by assumption, under Article 356. The Constitution, under Articles 358 and 359, allows for the suspension of fundamental rights during a state of emergency. However, the rights under articles 20 and 21 can’t be suspended during an emergency; in the landmark case of ADM Jabalpur v. Shiv Kant Shukla8 (1976), it was held that the right to life and personal liberty can be suspended during a national emergency. While this decision was then overturned by the court in subsequent judgements, it came to be later overruled under the 44th Amendment Act, 1978.

National Security Laws of India

National security laws play a crucial role in safeguarding the State’s security and territorial sovereignty. The Indian parliament has enacted numerous laws and legislations to ensure the security of every person living in the Country.
  1. The Foreigners Act, 1946 is a legislation that regulates & governs the entry, stay, and departure of non-citizens in India. Under section 3 of the act provides the power to the central government to make order with regards to the prohibition-restriction and regulation of the entry and departure of the foreigners. The Hon’ble Supreme Court of India in a leading case of Sarbananda Sonowal v. Union of India9 examined the issue of illegal immigration from People’s Republic of Bangladesh into the State of Assam and the constitutional validity of the Foreigners Act was also challenged. In the Majority judgement delivered by Js G.P. Mathur upheld the constitutional validity of the Foreigners Act.
  2. The Official Secrets Act, 1923 is a colonial anti-espionage law, it aims to protect sensitive information and prevent its unauthorised disclosure. This act was highly effected by the OSA,1911 and the scenario of ongoing Independence struggle during that times. The OSA, 1923 provides for non-liniant and stringent punishments for offences made under this act.
The Apex court in S. Nambi Narayanan V. Siby mathews & ors.10 (also called as ISRO espionage case) whereby a prominent ISRO scientist S. Nambi Narayanan was alleged in 1994 of committing cries under official secrets act. In the leading case, the apex court examined the importance of balancing concerns of Personal liberty over National Security & Professional integrity, furthermore, the bench led by the then CJI Dipak Mishra, held that this law should be used sensibly and arrests of the accused shouldn’t be made only on the grounds of suspicion.
  1. The Unlawful Activities (Prevention) Act (UAPA) is a crucial legislation enacted in 1967, later amended in 2019 as a substantial National security law and Anti-terror law designed & formulated to counter anti-national and unlawful activities that endanger the State’s security. This law empowers the Union government to declare any organisation or any person to be "unlawful" and to take any preventive action to combat their unlawful activities. In the landmark precedent of Arup Bhuyan v. State of Assam11 whereby the Supreme Court of India took upon the issue of constitutional validity of several sections of UAPA, which includes the arbitrary authority of Union government to ban any organisation or declare it to be unlawful which also makes granting bail difficult, which may be misused to attain political vendetta. The bench duly concluded, that this Act's provisions must be rigidly interpreted by judicial scrutiny and the provisions of UAPA do not violate the fundamental rights and henceforth the bench upheld the constitutional validity of UAPA. In recent times many notable persons were arrested under UAPA such as, Binayak Sen(Doctor and Human right activist), Arun Ferreira, mammal Khan, Kamran Yousuf (Photojournalist), Shoma Sen (Professor), Sudha Bharadwaj, Masrat Zehra, Meeran Haider, Umar Khalid, Stan Swamy (jesuit religious leader), Yasin Malik, Khurram Parvez.
  2. The Army Act 1950 is a law that regulates the Indian Army and other land security forces and also forms a well disciplined structure to administer the justice where martial law is declared, maintain discipline, and ensure effective conduct of all army personnel .This code provides a series of description of all kinds of offences, as well as the establishment of a procedure for trial by Military Court with their legal authority and structured Jurisdiction. This act is further supported by the Border Security Force Act, of 1968. In the latest verdict of Lt. Col. Prasad Shrikant Purohit v. Union of India12, the Apex Court has adjudicated on what extent armed forces personnel can be prosecuted for terrorism and insurgency-related offences.
  3. The Air Force Act 1950 is a crucial law which is responsible for the legal regulation of the Indian Air Force and other air security forces. This crucial legislation gave a well structured framework for the administration of justice where air force personnel are involved, this act also provides for maintenance of discipline and the conduct of Air Force personnel.
  4. The Indian Navy Act 1957, is the law of administration naval justice and this act also provides for well structured framework of naval security forces which ensures the discipline of naval officers. This act also lays a legal course for the hearings of naval crimes and other misconduct of Navy servicemen. The court in Union of India v. Rajbir Singh13 (2015) sought to test whether the military court martial could award capital punishment under offences committed by naval servicemen. A notable case related to crime done by Naval officer is commander Kavas Mankshaw Nanavati V. State of Maharashtra in 1960, whereby a naval officer was alleged of murder of lover of his wife.
  5. National Security Act, 1980- This is an important preventive detention legislation enacted in the year 1980, to ensure national security and Law and public order. As per a well accepted definition, Preventive Detention refers to an action of the state; confining an individual to prevent them from engaging in future criminal activities and/or evading future legal proceedings14. The National Security Act (NSA) empowers the Union and/or state governments to arrest or detain a person for acts that may endanger national security in addition to maintaining law and public order or ensuring the continuity of essential goods nd services of the area under the essential commodities act of 1955. In terms of imprisonment, the maximum period of imprisonment under the NSA is 12 months i.e. 1 year. This act also provides for the creation of a three-tier National Security Council (NSC) chaired by the prime minister, which includes a National Security Advisor, Chief of defence staff, Deputy National Security Advisors, Ministers of Home Affairs, Ministers of Defence, Minister of Finance, Vice Chairman of the NITI Aayog, Ministers of External Affairs. The NSA has been criticised by many scholars due to its lack of transparency, misuse of power, violation of human rights and limited effectiveness15. This act should be further read with, the National Investigation Agency Act, which was enacted in 2008, after the 26/11 terror attacks in Mumbai.
In the apex court’s precedent of Vijay Narain Singh V. State of Bihar16, Hon’ble Mr Js A.P Sen in their dissenting opinion said, “The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizens except under the procedure established by law.”
  1. Preventive Detention Act is an important law enacted in 1950, This is also a preventive legislation that was enacted in order to detain any person who may threaten or endangers the security of State or its citizen. In the leading case of AK Gopalan v. State of Madras17, whereby a Communist-Socialist leeader was detained, the Supreme Court in 5 judges bench agreed and upheld to the constitutionality of the Preventive Detention Act and the judgement delivered by Js. HJ Kania widened the scope of Article 22 of the Constitution in providing a well-structured and procedural safeguard for preventive detention to maintain law and order, harmony and internal security. Again when a socialist leader of UP was detained and the detention was questioned was raised before the Apex Constitutional court, Ram Manohar Lohia v. State of Bihar, the larger bench made a lucid-clear distinction between the words “security of the state”, “law and order” & “public order”. It was held that the legislative intent behind PDA was completely for maintaining law and order, and any other ground would make the detention order void.
  2. Armed Forces (Special Power) Act, 1958:- This is a crucial military legislation which traces its roots to the colonial law of Armed Forces (Special Power) Act of 1941. This law continues to be used by the Government in insurgency-ridden areas such as Kashmir,Northeast, etc. The Armed Forces (Special Powers) Act, of 1958 is an effective legislation to combat terrorism and organisations that support terrorism18. This law provides special powers to members of the armed forces in disturbed areas in the State of [Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura]. Under Section 3 of this act, which provides the power to declare any area, as a disturbed area to the governor, administrator, or the central government. In the aftermath of Inderjit Barua v.State of Assam19 , such agovernor order can’t be challenged on the grounds of the absence of legislative guidelines, and such absence of guidelines would not make this order arbitrary. In Naga People’s Movement of Human Rights v. Union of India20, the Supreme Court decided the time limit/ periodic review of this act as 6 months. This act provides all discretionary powers to the armed force, to maintain law and order, if the officer may feel necessary may also fire upon any person. The union government has established 3 major committees to review this act, i.e. Justice Reddy, Justice Hegde and Justice Verma Committee.

Conclusion

"Having survived numerous security challenges since independence, India is on course to emerge as a major power, however, the path would be difficult21 ”. To handle this difficulty, the parliament of India has made and enacted several legislations such as the Armed Forces (Special Powers) Act of 1958, The Police Act of 1861, The Data Protection Law, the National Security Act etc. When it comes to Police services, we rely on 19th-century legislation, and 20th-century weapons to solve 21st-century problems. To ensure national security, every district's safety is vital, and the police play a crucial role. Police reforms have been on the agenda of central & state Governments for almost 75 years, the police are seen as selectively efficient, and unsympathetic to the underprivileged & marginalised communities. It is further accused of criminalisation & politicisation22. As per a report, “ the security legislations have damaged constitutional constraints by making human rights abuses easier by the State, and to reinforce constitutional checks and balances, reforms are needed23”. Notwithstanding anything said in this report, the ordinary masses have no direct problem with the absence of checks and balances, what ordinary citizens are satisfied with, is our unified nation. Irrespective of the question of whether our national security laws are arbitrarily used by the state, they have successfully ensured our national security from various threats, such as the Khalistani movement, Kashmir terrorism, and other separatist forces.

REFERENCES

  1. Books / Commentaries / Journals Referred
  • Gupta A, How India Manages Its National Security (Penguin Random House India Private Limited 2018)
  • Chopra, S. (2016). National Security Laws in India: The Unraveling of Constitutional Constraints. Social Science Research Network.
  • Jaiswal A, ‘The Draconian AFSPA, 1958’ (International Journal of Law Management & Humanities) accessed 4 March 2024
  • Kartikay Agarwal and Arjun Sharma, ‘National Security Act, 1980 – Iniquitous Act and Constitutional Tyranny or a Justified Piece of Legislation’ (jurist.org2020) www.jurist.org/commentary/2020/05/agarwal-sharma-national-security-act-1980/>
  • Aditi Dhamdhere, ‘OVERVIEW of NATIONAL SECURITY ACT, 1980 by Aditi Dhamdhere – JOURNAL for LAW STUDENTS and RESEARCHERS’ (Journal for law students and researchers2020) jlsrjournal.in/overview-of-national-security- act-1980-by-aditi-dhamdhere/> accessed 4 March 2024
22 Ministry of Home Affairs, ‘Status Note on Police Reforms in India’ www.mha.gov.in/sites/default/ files/PoliceReforms%28E%29181013.pdf> 23 Chopra, S. (2016). National Security Laws in India: The Unraveling of Constitutional Constraints. Social Science Research Network.
  • Austin, Granville (1999). The Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press. p. 390. ISBN 0-19-564959-1
  • Tayal, B. B.;Jacob, A. (2005). Indian History, World Developments and Civics. Avichal Publishing Company.

2.      Online Articles / Sources Referred

  • NN Vora, ‘National Governance and Internal Security | Manohar Parrikar Institute for Defence Studies and Analyses’ (idsa.inMay 2008) www.idsa.in/jds 2_1_2008_NationalGovernanceandInternalSecurity_NNVohra> accessed 2 March 2024
  • Bhamati Sivapalan And Vidyun Sabhaney, ‘In Illustrations: A Brief History of India’s National Security Laws’ (The Wire 27 June 2019)

3.      Cases Referred

  • People's Union for Civil Liberties (PUCL) v. Union of India (2003)
  • KS Puttasamy V. Union Of India (2017)
  • Inderjit Barua v.State of Assam (1983)
  • Naga People’s Movement of Human Rights v. Union of India (1998)
  • Vijay Narain Singh V. State of Bihar
  • AK Gopalan V. State of Madras (1950)
  • Col. Prasad Shrikant Purohit v. Union of India
  • Union of India V. Rajbir Singh
  • Arup Bhuyan V. Sate of Assam
  • Sarbanada Sonowal V. State of Assam
  • Nambi Narayanan V. State of Kerala
  • Romesh Tahppar V. State of Madras (1950)
  • ADM Jabalpur v. Shiv Kant Shukla (1976)
**Content:** **Author-Rutvij Vyas, Faculty of Law, GLS University** ### Introduction National security or National defence is a comprehensive attempt of a government to ensure the security over its territory and its people through the application of economic, political, diplomatic and military power. National security includes the overall efforts of providing security to its citizens, economy, and its institutions. As per Chanakya’s arthashastra, It is the duty of government/state to ensure the safety and well beings of tis citizens. For that every government in all due course of time enacts several legislations to ensure the national security. This article explores the effort of State in enacting the laws for ensuring the security. There are 2 major types of National security i.e Internal and external security. Internal security refers to all the measures taken by the State to protect itself from threats originating within its territory. It includes protection of law and order and also removing and resolving conflicts as well as risks that threaten the nation’s sovereignty[1](#_3znysh7). External security refers to all the measures taken by the Government to protect itself from all the threats originating from outside its territory, it was originally perceived as security against military attack from enemy state, however in reference to current times it also includes the external aggression from non- state actors, such as terrorists. The concept of external security includes tackling conflicts and risks emerging outside the territory[2](#_3dy6vkm), the external security can be further classified to symmetric and asymmetric external security. The Constitution makers were well aware of the concept of internal and external security, and the constitution provides a dedicated framework for ensuring the internal and external security of a nation, including provisions for the defence forces (u/a:- 33, 34), emergency powers (u/a:- 352 to 360), security of the state as a reasonable restriction to a fundamental right, and the role of the government in ensuring security. As per notable Jurist, Harold laswell (1950), “The distinctive meaning of the national security means freedom from foreign dictation” thus it can be asserted in purview of national security, that the ultimate aim of national security is to secure the sovereignty of State. #### Keywords:- National Security, preventive detention, Fundamental rights & Judicial Scrutiny ### **Fundamental Rights under the Indian Constitution *vis-a-vis* internal and external security** Fundamental rights enshrined under articles 12 to 35 (part 3) of the Constitution are the cornerstone of the Indian Constitution[3](#_1t3h5sf), providing citizens with fundamental protections of rights and liberties. They guarantee individual freedoms and ensure the personal liberty, dignity, equality, and justice of each person[4](#_4d34og8). This article explores the interplay between fundamental rights and the security concerns faced by India; We can observe a clear balance between national security and fundamental rights, as the State has the power to preserve its national interest and to maintain its national security, but the action of government must be *ultra vires* and shouldn’t be violative of fundamental rights (article 13). In the leading case of People’s Union for Civil Liberties (PUCL) v. Union of India (2003)[5](#_17dp8vu) – The Hon’ble Supreme Court i.e. the Apex Court has emphasised that national security concerns should not be used as a pretext to violate fundamental rights. It was held that ‘any restrictions on fundamental rights must be necessary, proportionate, reasonable and conform to the principles of rule of law’. The Fundamental rights outline the reasonable restrictions in the interest of public order, sovereignty, and integrity of India, friendly relations with foreign states, and security of the state, however, such terms are subject to individual facts and circumstances, which makes the interpretation of courts important. In the case of K.S. Puttaswamy v. Union of India (2017)[6](#_26in1rg)– (also called as right to privacy verdict) The Supreme Court recognised that the right to privacy is a fundamental right under Article 21, as stated byJs DY Chandrachud, this rights are not an absolute right and can be restricted for legitimate state interests, such as national security, and such right would not be violated to take counterterrorism measures and to ensure the security and safety of the people. In the case of Romesh Thapper v. State of Madras (1950)[7 ](#_lnxbz9), where a fundamental right of freedom of speech was at concern, the Supreme Court differentiated between ‘Security of State’ and ‘maintenance of public order’, and held that the liberty of the press is an essential part of freedom of speech and is foundation stone of all democratic functioning, and the state has no power to contravene it using the reasonable restrictions. The Constitution articles 352 to 360 (Part 18) deals with emergencies. As stated in Article 352, the President can declare a state of National emergency, if there is a threat of external aggression or internal- armed rebellion. The President, in the situation when the Governor of state proposes the collapse of constitutional government, might take over the affairs of that state by assumption, under Article 356. The Constitution, under Articles 358 and 359, allows for the suspension of fundamental rights during a state of emergency. However, the rights under articles 20 and 21 can’t be suspended during an emergency; in the landmark case of ADM Jabalpur v. Shiv Kant Shukla[8](#_44sinio) (1976), it was held that the right to life and personal liberty can be suspended during a national emergency. While this decision was then overturned by the court in subsequent judgements, it came to be later overruled under the 44th Amendment Act, 1978. ### National Security Laws of India National security laws play a crucial role in safeguarding the State’s security and territorial sovereignty. The Indian parliament has enacted numerous laws and legislations to ensure the security of every person living in the Country. 1. **The Foreigners Act, 1946** is a legislation that regulates & governs the entry, stay, and departure of non-citizens in India. Under section 3 of the act provides the power to the central government to make order with regards to the prohibition-restriction and regulation of the entry and departure of the foreigners. The Hon’ble Supreme Court of India in a leading case of Sarbananda Sonowal v. Union of India[9](#_2jxsxqh) examined the issue of illegal immigration from People’s Republic of Bangladesh into the State of Assam and the constitutional validity of the Foreigners Act was also challenged. In the Majority judgement delivered by Js G.P. Mathur upheld the constitutional validity of the Foreigners Act. 2. **The Official Secrets Act, 1923** is a colonial anti-espionage law, it aims to protect sensitive information and prevent its unauthorised disclosure. This act was highly effected by the OSA,1911 and the scenario of ongoing Independence struggle during that times. The OSA, 1923 provides for non-liniant and stringent punishments for offences made under this act. The Apex court in S. Nambi Narayanan V. Siby mathews & ors.[10](#_3j2qqm3) (also called as ISRO espionage case) whereby a prominent ISRO scientist S. Nambi Narayanan was alleged in 1994 of committing cries under official secrets act. In the leading case, the apex court examined the importance of balancing concerns of Personal liberty over National Security & Professional integrity, furthermore, the bench led by the then CJI Dipak Mishra, held that this law should be used sensibly and arrests of the accused shouldn’t be made only on the grounds of suspicion. 3. **The Unlawful Activities (Prevention) Act** (UAPA) is a crucial legislation enacted in 1967, later amended in 2019 as a substantial National security law and Anti-terror law designed & formulated to counter anti-national and unlawful activities that endanger the State’s security. This law empowers the Union government to declare any organisation or any person to be “unlawful” and to take any preventive action to combat their unlawful activities. In the landmark precedent of Arup Bhuyan v. State of Assam[11](#_4i7ojhp) whereby the Supreme Court of India took upon the issue of constitutional validity of several sections of UAPA, which includes the arbitrary authority of Union government to ban any organisation or declare it to be unlawful which also makes granting bail difficult, which may be misused to attain political vendetta. The bench duly concluded, that this Act’s provisions must be rigidly interpreted by judicial scrutiny and the provisions of UAPA do not violate the fundamental rights and henceforth the bench upheld the constitutional validity of UAPA. In recent times many notable persons were arrested under UAPA such as, Binayak Sen(Doctor and Human right activist), Arun Ferreira, mammal Khan, Kamran Yousuf (Photojournalist), Shoma Sen (Professor), Sudha Bharadwaj, Masrat Zehra, Meeran Haider, Umar Khalid, Stan Swamy (jesuit religious leader), Yasin Malik, Khurram Parvez. 4. **The Army Act 1950** is a law that regulates the Indian Army and other land security forces and also forms a well disciplined structure to administer the justice where martial law is declared, maintain discipline, and ensure effective conduct of all army personnel .This code provides a series of description of all kinds of offences, as well as the establishment of a procedure for trial by Military Court with their legal authority and structured Jurisdiction. This act is further supported by the Border Security Force Act, of 1968. In the latest verdict of Lt. Col. Prasad Shrikant Purohit v. Union of India[12](#_1ci93xb), the Apex Court has adjudicated on what extent armed forces personnel can be prosecuted for terrorism and insurgency-related offences. 5. **The Air Force Act 1950** is a crucial law which is responsible for the legal regulation of the Indian Air Force and other air security forces. This crucial legislation gave a well structured framework for the administration of justice where air force personnel are involved, this act also provides for maintenance of discipline and the conduct of Air Force personnel. 6. **The Indian Navy Act 1957, is** the law of administration naval justice and this act also provides for well structured framework of naval security forces which ensures the discipline of naval officers. This act also lays a legal course for the hearings of naval crimes and other misconduct of Navy servicemen. The court in Union of India v. Rajbir Singh[13](#_2bn6wsx) (2015) sought to test whether the military court martial could award capital punishment under offences committed by naval servicemen. A notable case related to crime done by Naval officer is commander Kavas Mankshaw Nanavati V. State of Maharashtra in 1960, whereby a naval officer was alleged of murder of lover of his wife. 7. **National Security Act, 1980**– This is an important preventive detention legislation enacted in the year 1980, to ensure national security and Law and public order. As per a well accepted definition, Preventive Detention refers to an action of the state; confining an individual to prevent them from engaging in future criminal activities and/or evading future legal proceedings[14](#_3as4poj). The National Security Act (NSA) empowers the Union and/or state governments to arrest or detain a person for acts that may endanger national security in addition to maintaining law and public order or ensuring the continuity of essential goods nd services of the area under the essential commodities act of 1955. In terms of imprisonment, the maximum period of imprisonment under the NSA is 12 months i.e. 1 year. This act also provides for the creation of a three-tier National Security Council (NSC) chaired by the prime minister, which includes a National Security Advisor, Chief of defence staff, Deputy National Security Advisors, Ministers of Home Affairs, Ministers of Defence, Minister of Finance, Vice Chairman of the NITI Aayog, Ministers of External Affairs. The NSA has been criticised by many scholars due to its lack of transparency, misuse of power, violation of human rights and limited effectiveness[15](#_147n2zr). This act should be further read with, the National Investigation Agency Act, which was enacted in 2008, after the 26/11 terror attacks in Mumbai. In the apex court’s precedent of Vijay Narain Singh V. State of Bihar[16](#_3o7alnk), Hon’ble Mr Js A.P Sen in their dissenting opinion said, “T*he detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizens except under the procedure established by law*.” 8. **Preventive Detention Act** is an important law enacted in **1950**, This is also a preventive legislation that was enacted in order to detain any person who may threaten or endangers the security of State or its citizen. In the leading case of AK Gopalan v. State of Madras[17](#_23ckvvd), whereby a Communist-Socialist leeader was detained, the Supreme Court in 5 judges bench agreed and upheld to the constitutionality of the Preventive Detention Act and the judgement delivered by Js. HJ Kania widened the scope of Article 22 of the Constitution in providing a well-structured and procedural safeguard for preventive detention to maintain law and order, harmony and internal security. Again when a socialist leader of UP was detained and the detention was questioned was raised before the Apex Constitutional court, Ram Manohar Lohia v. State of Bihar, the larger bench made a lucid-clear distinction between the words “security of the state”, “law and order” & “public order”. It was held that the legislative intent behind PDA was completely for maintaining law and order, and any other ground would make the detention order void. 9. **Armed Forces (Special Power) Act, 1958:**– This is a crucial military legislation which traces its roots to the colonial law of **Armed Forces (Special Power) Act of 1941.** This law continues to be used by the Government in insurgency-ridden areas such as Kashmir,Northeast, etc. The Armed Forces (Special Powers) Act, of 1958 is an effective legislation to combat terrorism and organisations that support terrorism[18](#_41mghml). This law provides special powers to members of the armed forces in disturbed areas in the State of \[Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura\]. Under Section 3 of this act, which provides the power to declare any area, as a disturbed area to the governor, administrator, or the central government. In the aftermath of Inderjit Barua v.State of Assam[19](#_2grqrue) , such agovernor order can’t be challenged on the grounds of the absence of legislative guidelines, and such absence of guidelines would not make this order arbitrary. In Naga People’s Movement of Human Rights v. Union of India[20](#_vx1227), the Supreme Court decided the time limit/ periodic review of this act as 6 months. This act provides all discretionary powers to the armed force, to maintain law and order, if the officer may feel necessary may also fire upon any person. The union government has established 3 major committees to review this act, i.e. Justice Reddy, Justice Hegde and Justice Verma Committee. ### Conclusion “Having survived numerous security challenges since independence, India is on course to emerge as a major power, however, the path would be difficult[21 ](#_1v1yuxt)”. To handle this difficulty, the parliament of India has made and enacted several legislations such as the Armed Forces (Special Powers) Act of 1958, The Police Act of 1861, The Data Protection Law, the National Security Act etc. When it comes to Police services, we rely on 19th-century legislation, and 20th-century weapons to solve 21st-century problems. To ensure national security, every district’s safety is vital, and the police play a crucial role. Police reforms have been on the agenda of central & state Governments for almost 75 years, the police are seen as selectively efficient, and unsympathetic to the underprivileged & marginalised communities. It is further accused of criminalisation & politicisation[22](#_2u6wntf). As per a report, “ the security legislations have damaged constitutional constraints by making human rights abuses easier by the State, and to reinforce constitutional checks and balances, reforms are needed[23](#_19c6y18)”. Notwithstanding anything said in this report, the ordinary masses have no direct problem with the absence of checks and balances, what ordinary citizens are satisfied with, is our unified nation. Irrespective of the question of whether our national security laws are arbitrarily used by the state, they have successfully ensured our national security from various threats, such as the Khalistani movement, Kashmir terrorism, and other separatist forces. ### REFERENCES 1. **Books / Commentaries / Journals Referred** - Gupta A, *How India Manages Its National Security* (Penguin Random House India Private Limited 2018) - Chopra, S. (2016). National Security Laws in India: The Unraveling of Constitutional Constraints. *Social Science Research Network*. - Jaiswal A, ‘The Draconian AFSPA, 1958’ (*International Journal of Law Management & Humanities*) accessed 4 March 2024 - Kartikay Agarwal and Arjun Sharma, ‘National Security Act, 1980 – Iniquitous Act and Constitutional Tyranny or a Justified Piece of Legislation’ (*jurist.org*2020) - Aditi Dhamdhere, ‘OVERVIEW of NATIONAL SECURITY ACT, 1980 by Aditi Dhamdhere – JOURNAL for LAW STUDENTS and RESEARCHERS’ (*Journal for law students and researchers*2020) accessed 4 March 2024 [22](#_4f1mdlm) Ministry of Home Affairs, ‘Status Note on Police Reforms in India’ [23](#_4f1mdlm) Chopra, S. (2016). National Security Laws in India: The Unraveling of Constitutional Constraints. *Social Science Research Network*. - Austin, Granville (1999). *The Indian Constitution: Cornerstone of a Nation*. New Delhi: Oxford University Press. p. 390. ISBN 0-19-564959-1 - Tayal, B. B.;Jacob, A. (2005). Indian History, World Developments and Civics. Avichal Publishing Company. #### 2. Online Articles / Sources Referred - NN Vora, ‘National Governance and Internal Security | Manohar Parrikar Institute for Defence Studies and Analyses’ ([idsa.inMay](http://www.idsa.inmay/) 2008) accessed 2 March 2024 - Bhamati Sivapalan And Vidyun Sabhaney, ‘In Illustrations: A Brief History of India’s National Security Laws’ (The Wire 27 June 2019) ### 3. Cases Referred - People’s Union for Civil Liberties (PUCL) v. Union of India (2003) - KS Puttasamy V. Union Of India (2017) - Inderjit Barua v.State of Assam (1983) - Naga People’s Movement of Human Rights v. Union of India (1998) - Vijay Narain Singh V. State of Bihar - AK Gopalan V. State of Madras (1950) - Col. Prasad Shrikant Purohit v. Union of India - Union of India V. Rajbir Singh - Arup Bhuyan V. Sate of Assam - Sarbanada Sonowal V. State of Assam - Nambi Narayanan V. State of Kerala - Romesh Tahppar V. State of Madras (1950) - ADM Jabalpur v. Shiv Kant Shukla (1976) **Categories:** Articles --- ### [Constitutional Validity of Euthanasia and Right to Die: Analysis in Light of Constitutional Principles and Landmark Cases](https://lawfoyer.in/constitutional-validity-of-euthanasia-and-right-to-die-analysis-in-light-of-constitutional-principles-and-landmark-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Rachi Chavan, Amity University,Mumbai

INTRODUCTION

Every human being is entitled to human rights provided under the Universal Declaration of Human rights (UDHR). The rights are cornerstone of ethical and legal framework, inherent dignity of every individual. Whereas, fundamental rights guaranteed in the constitution of India specifically article 21 let an individual enjoy the right to life and right to die. Every aspect of this rights has been through various judicial scrutiny over the period of 75 years post-independence. Right to die is an interpreted right under Right to life. Thus so far, in the context of right to die, euthanasia is still a debatable topic. It poses a profound challenges to the right to life and human rights. At the heat of the debate, there lies a balance between both the rights and dignity of an individual. Euthanasia conscious ending of an individual’s life to reduce the suffering, raise morals, philosophical and legal questions which intersect with the rights enshrined in UDHR. In this article, we articulate the complex intersection of right to life and right to die in the context of Euthanasia. Various definitions, Historical background, different types, comparison with various countries, legal precedents and various interpretations. We aim to provide a deeper understanding of this topic which reflects on legal and moral compass of life and death. Keywords: Euthanasia, right to life, right to death, UDHR, fundamental rights, Article 21 etc.

DEFINITION

According to Black's Law Dictionary, “euthanasia is the act of causing or hastening the death of a person who is suffering from an incurable or terminal disease or condition especially a painful one, for reason for mercy.” According to Merriam-Webster dictionary, “Euthanasia means the act or practise of killing or permitting the death of hopelessly sick or injured individuals in a relatively painless way for reasons of mercy. It can be also seen as ‘mercy killing.” According to this practice, the patient or an individual or any other person oh the patient’s behalf, chooses death for himself for the colossal reason of medical condition. Euthanasia in simple terms means an act of ending an individuals’ life who is suffering from an incurable disease or in a situation where it is painful for an individual to stay alive. It common words, euthanasia means intentionally killing an individual who suffers from a painful disease by doing an act or omission of certain act.

EVOLUTION OF EUTHANASIA

‘It were better to die once and for all than to drag out my lingering days in anguish by Aeschylus (father of tragedy). Euthanasia is a classified under Applied Ethics, a branch of Philosophy. Applied ethics were introduced in 1970s’, when the philosophical and political actors begun to look into topics such as, euthanasia, abortion, cloning, etc. The words euthanasia is derived from two different words Greek origin “eu” and “Thanatos”, which in English means Euthanasia. It was prevalent in Greek society during the early period of renaissance. Greeks used to consider mercy killing or good death as an act of rationale, if an individual feel that the life is not useful. The increase in the advocacy of euthanasia throughout North America and European countries along with increasing awareness of human rights led to countries creating laws which penalized the suicide and abetment to suicide. Hence, Euthanasia was also declared unlawful. Over the years, understanding of euthanasia evolved and words like mercy killings, assisted dying, death with dignity, painless death, peace attaining, etc. were referred.

COMPARISON WITH OTHER COUNTRIES

History has been witness to the evolution of Euthanasia, it has gain momentum many times throughout history and it almost attained legal validity. There was eccentric pattern of euthanasia followed in different countries. Switzerland had most recent amendment in 2021 when “suicide machine” an euthanasia machine which was coffin shape hence the name suicide machine, which can be operated and was legalized.  Canada had legalized assisted suicide and euthanasia only in certain cases pertaining to factors such as physical conditions, mental conditions etc. which will ultimately led to an individuals’ death. In 2021 the scope was increased by considering the individuals sufferings from serious disability which will lead them to their death. Australia has four states in which euthanasia is legalised after 2017 and it was available to an individual who suffers from incurable and progressive disease and will die within one year. USA had legalized euthanasia in various states through judicial rulings and legislations. The process which is followed is a doctor has to write a prescription of the fatal drugs with the professional when the drugs are injected to the individuals. France had not legalised euthanasia as the bill was proposed in 2021 but palliative sedation is legal in France. In Netherlands assisted dying and euthanasia is legalised from individuals suffering from terminal illness and eventually die. In 2020 assisted dying was made legalised for children from the age of 1-12 years who are terminally ill.

TYPES / KINDS OF EUTHANASIA

  • BASED ON METHOD USED:
Passive Euthanasia: when an individual is abstain from the medical treatment necessary for his survival. It means, the professional who provides care, do not do the act which is necessary or stop providing the treatment which is necessary to keep the patient alive. In simple terms, passive euthanasia is an act which can be contented as a doctors not actively killing the patient; they are simply not doing anything to save the patient. Active Euthanasia: When medical personnel or anybody else purposefully performs a positive deed, like injecting a deadly dose of medication or overdosing the victim with medication, the victim dies a medicine would not have caused death if it weren't for the overdose, which caused the victim to pass away such act is called active euthanasia.
  • BASED ON CONSENT
Voluntary Euthanasia: The individual requests that euthanasia be carried out. The patient requests euthanasia verbally or in writing if they would rather die than live in agony. Thus, it is possible to carry out both passive and aggressive euthanasia upon voluntary request. Involuntary Euthanasia: This kind of an individual is incapable of giving their consent for euthanasia. As a result, this approach covers scenarios including coma patients, brain dead people, etc. Non-voluntary: In this case, an individual is making the decision to end their life is competent but does not consent to it. This is unquestionably direct homicide.

LEGAL PROVISIONS

In the constitution of India Article 21 as a fundamental is enshrined in Part III it has stated that every citizen has right to life along with rights such as right to privacy, right to dignity, right of autonomy, right to personal liberty etc. In fact, inclusion of right to die under article 21 was controversial and various case laws are proof of that, because sections such as section 306 and section 309 of Indian Penal Code, 1860 which has provisions which states that abetment to suicide or attempt is illegal  and punishable offence under the code.

LANDMARK JUDGEMENTS RELATED TO EUTHANASIA:

ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA The landmark judgment in  Aruna Shanbaug v. Union of India (2011) by the Supreme Court of India significantly advanced the legal discourse surrounding passive euthanasia in the country. This case analysis explores the Court's reasoning and its subsequent establishment of procedural guidelines for passive euthanasia applications. Factual Background Aruna Shanbaug, a nurse, was brutally attacked in the hospital where she worked, rendering her in a permanent vegetative state for 36 years. Ms. Pinki Virani, claiming to be Aruna's friend, petitioned the Court on the grounds that Aruna's right to die with dignity under Article 21 of the Indian Constitution was being violated due to her irreversible condition. Court's Reasoning and Decision The Court meticulously evaluated the medical reports and the definition of brain death enshrined in the Human Organ Transplant Act, 1994.  It concluded that Aruna was not brain dead,  demonstrating residual brain function through her ability to breathe unassisted and respond to stimuli.  Furthermore, the Court determined that Ms. Virani lacked the legal standing to make such a request on Aruna's behalf, as the decision-making authority resided with the KEM Hospital staff responsible for her care. While acknowledging the absence of hope for recovery, the Court distinguished between passive euthanasia (withdrawing life-sustaining treatment) and the withdrawal of nutrition and hydration, which Indian law did not equate with euthanasia.  Therefore, the Court dismissed the petition for euthanasia in Aruna's specific case. Significance and Procedural Guidelines Despite the denial of euthanasia in this instance, the Court's judgment held immense significance. It undertook a comprehensive examination of passive euthanasia, ultimately establishing a detailed framework for future applications.  This framework emphasizes stringent safeguards to prevent potential misuse. The established procedure mandates the filing of an application by a competent individual.  The relevant Chief Justice then constitutes a tribunal of at least two judges, empowered to authorize euthanasia orders.  This tribunal must also consult a three-member medical committee chosen in consultation with relevant medical professionals.  Following the committee's appointment, the judicial commission issues notices to the state, the patient's family (including parents, spouse, siblings, or friends in their absence), and accompanies these notices with the committee's report.  The final decision on granting euthanasia rests solely with the Supreme Court. The Aruna Shanbaug case serves as a pivotal precedent in India's legal landscape on passive euthanasia.  The Court's meticulous analysis and the subsequent creation of procedural guidelines offer a much-needed framework for navigating these complex and sensitive situations. MARUTI SHRIPATI DUBAL V. STATE OF MAHARASHTRA Factual Background A police officer, suffering from a documented history of mental illness including schizophrenia, depression, and instability, attempted suicide by self-immolation. He was subsequently charged under Section 309 of the Indian Penal Code (IPC) for attempting to take his own life. Legal Issue The Bombay High Court challenged the constitutionality of Section 309 of the IPC, raising the question of whether criminalizing attempted suicide violates Articles 14, 19, and 21 of the Indian Constitution. Reasoning of the Court The Court held that Section 309 was unconstitutional for the following reasons: Violation of Article 19:  The right to life under Article 19 encompasses a negative aspect, as recognized in precedents like Maneka Gandhi v. Union of India (1978), Kharak Singh v. State of Uttar Pradesh (1962), and Sunil Batra v. Delhi Administration (1980). This right encompasses personal liberty and the protection of life itself. Interconnectedness of Articles 19 and 21:  Articles 19 and 21 are to be interpreted together and in relation to each other. Violation of Article 14:  Section 309 lacks a legal definition of "suicide," leading to ambiguity. The concept carries varying interpretations across different groups, with some cultures even praising certain forms of suicide. The Court further distinguished between ending one's life "unnaturally" and due to the exhaustion of the will to live. The latter, the Court reasoned, could not be considered unnatural but rather an act of life arising from specific circumstances. The Court declared Section 309 unconstitutional due to its violation of Articles 14, 19, and 21 of the Indian Constitution. Consequently, the proceedings against the petitioner were dismissed, and he was acquitted of the charge under Section 309. GIAN KAUR V. STATE OF PUNJAB Factual information Gian Kaur and her husband were found guilty of assisting their daughter's suicide and were convicted under Section 306 of the Indian Penal Code, 1860. The trial court sentenced them to six years in prison and a fine of Rs. 2,000, with an additional nine months of imprisonment if the fine couldn't be paid. The plaintiff appealed the decision to the High Court, which upheld the conviction but reduced the prison sentence to three years. Issues raised The main issues before the court were whether Section 306 of the Indian Penal Code, 1860 is constitutionally valid and whether Section 309 of the Indian Penal Code, 1860 violates Articles 14 and 21 of the Constitution of India. In the case of Gian Kaur v. State of Punjab (1996), a five-judge Constitution Bench of the Supreme Court of India observed that the 'right to life' under Article 21 of the Indian Constitution does not include the 'right to die'. The court emphasized that the right to life also encompasses the right to live with dignity until death, and this should be accompanied by a natural and worthy dying process. The court made it clear that the 'right to die' with dignity at the end of one's life should not be confused with an unnatural 'right to die'. It held that any action that accelerates a person's natural death is unlawful under Section 21. The Supreme Court also addressed the constitutionality of Section 306 of the Indian Penal Code, 1860 and ruled that both attempted suicide and assisted suicide are punishable. The court stated that this provision serves to minimize the inherent risk associated with the absence of such a law, considering the greater good of society. Furthermore, in the case of P. Rathinam v. Union of India (1994), the court repealed the provisions of Sections 306 and 309 of the Indian Penal Code, 1860, thereby affirming their constitutionality and holding the accused liable for abetment of suicide. The Supreme Court concluded that Article 21, which pertains to the 'right to life', does not include the 'right to die'. The arguments based on Article 14 of the Indian Constitution were found to be inconsistent with the main issues of the case.

DOCTRINES RELATED TO EUTHANASIA IN INDIA

  • Doctrine of Parens Patriae: This doctrine states that, the state has right to intervene to protect the rights of an individuals who cannot make decisions for themselves. This doctrine is used for cases of euthanasia where the patients are unable to make the decisions for themselves.
  • Doctrine of Medical Ethics: Medical Council of India has provided medical ethics under four category that are principles of non-maleficence, beneficence, autonomy, and justice. These medical ethics makes sure that medical professional are unbiased and makes decisions which has best interest of patient.
  • Living will Doctrine: Living wills are document which stated the wishes of an individual regarding ending their lives under medical treatment. It is recognised by Supreme Court of India in 2018.
  • Doctrine of Sanctity of Life: This doctrines is based on religious and moral compass which upholds the value of life and its sanctity. It therefore, opposed the assisted dying or terminating lives of human beings on the ground that it disturbs and violated the sanctity of life.

Maxims

  • Volenti non fit injuria: “the one who is willing, no harm is done” it means that if the patients is willing then no harm is caused to him.
  • Salus aegroti suprema lex: “welfare of the patients is the highest law” it simply means whatever that is in the best interest of patient shall be considered legal and just.
  • Actus curiae neminem gravabit: “the act of court shall prejudice no one” it means that the court shall be unbiased and impartial while making decisions for the cases of euthanasia.

FUTURE IMPLICATIONS IF EUTHANASIA IS LEGALISED [NEGATIVES]

If euthanasia is legalised in India the impact of such act can be more of negative than positive as majority of human tendency is to seek benefit for ourselves than others. Hence, the consequences can be negative than positive. Some of them are: Corruption as many professionals can be of corrupt nature and hence can authorise euthanasia in return of money, Child killing foe example children who has some disability or disease which need to be taken care for can be victims of euthanasia, Organ selling is one of the biggest racket on going in India hence, euthanasia will only help it grow, Dowry deaths, mischiefs by any relative for some property, female child killings, high death rate of Senior citizens, etc.

 CONCLUSION & COMMENTS

In conclusion, the euthanasia has quite a legal battle ongoing which is deeply rooted by the principles of various fields such as ethics, morals, law, philosophical etc. Throughout historical judgements we can see that culture and legal system have grappled with the complexities of the euthanasia, while some individuals choose the rights to life some individuals choose right to die. Though many arguments and contentions were placed before various high court and Supreme Court we still do not have proper legislation for euthanasia but in the near future we can have a proper legal guidelines, laws and implementations of such laws.

REFERENCES

  1. Online sources
    1. AC.IN
    2. SCC ONLINE.COM
    3. COM
    4. IPLEADERS BLOGS.COM
    5. LEGAL SERVICES INDIA.COM
    6. RESEARCH GATE.COM
  2. Sources Referred
    1. NATIONAL LIBRARY OF MEDICINE: EUTHANASIA: AN INDIAN PERSPECTIVE
    2. CENTER FOR LAW & POLICY RESEARCH: EUTHANASIA AND THE RIGHT TO DIE IN INDIA
    3. VERYWELL HEALTH: EUTHANASIA AND ASSISTED SUICIDE HAVE IMPORTANT DISTINCTIONS
  3. Cases Referred
    1. ARUNA SHANBAUG V. UNION OF INDIA (2011)
    2. GIAN KAUR V. STATE OF PUNJAB (1996)
    3. COMMON CAUSE V. UNION OF INDIA (2014)
    4. CHANDRAKAMT NAYANROA TANDALE V. STATE OF MAHARASHTRA (2020)
    5. B. KARIBASAMMA V. UNION OF INDIA (2012)
  4. Statutes Referred
    1. CONSTITUION OF INDIA
    2. INDIAN PENAL CODE
    3. CODE OF CRIMINAL PROCEDURE
    4. THANSPLANTATION OF HUMAN ORGANS ACT
    5. UNIVERSAL DECLARATIO OF HUMAN RIGHTS
    6. INDIAN MEDICAL COUNCIL’S ACT
**Content:** **Author-Rachi Chavan, Amity University,Mumbai** ### **INTRODUCTION** Every human being is entitled to human rights provided under the Universal Declaration of Human rights (UDHR). The rights are cornerstone of ethical and legal framework, inherent dignity of every individual. Whereas, fundamental rights guaranteed in the constitution of India specifically article 21 let an individual enjoy the right to life and right to die. Every aspect of this rights has been through various judicial scrutiny over the period of 75 years post-independence. *Right to die* is an interpreted right under *Right to life*. Thus so far, in the context of right to die, euthanasia is still a debatable topic. It poses a profound challenges to the right to life and human rights. At the heat of the debate, there lies a balance between both the rights and dignity of an individual. Euthanasia conscious ending of an individual’s life to reduce the suffering, raise morals, philosophical and legal questions which intersect with the rights enshrined in UDHR. In this article, we articulate the complex intersection of right to life and right to die in the context of Euthanasia. Various definitions, Historical background, different types, comparison with various countries, legal precedents and various interpretations. We aim to provide a deeper understanding of this topic which reflects on legal and moral compass of life and death. ***Keywords*: Euthanasia, right to life, right to death, UDHR, fundamental rights, Article 21 etc.** ### **DEFINITION** According to Black’s Law Dictionary, “euthanasia is the act of causing or hastening the death of a person who is suffering from an incurable or terminal disease or condition especially a painful one, for reason for mercy.” According to Merriam-Webster dictionary, “Euthanasia means the act or practise of killing or permitting the death of hopelessly sick or injured individuals in a relatively painless way for reasons of mercy. It can be also seen as ‘*mercy killing.*” According to this practice, the patient or an individual or any other person oh the patient’s behalf, chooses death for himself for the colossal reason of medical condition. Euthanasia in simple terms means an act of ending an individuals’ life who is suffering from an incurable disease or in a situation where it is painful for an individual to stay alive. It common words, euthanasia means intentionally killing an individual who suffers from a painful disease by doing an act or omission of certain act. ### **EVOLUTION OF EUTHANASIA** *‘It were better to die once and for all than to drag out my lingering days in anguish by Aeschylus (father of tragedy).* Euthanasia is a classified under Applied Ethics, a branch of Philosophy. Applied ethics were introduced in 1970s’, when the philosophical and political actors begun to look into topics such as, euthanasia, abortion, cloning, etc. The words euthanasia is derived from two different words Greek origin *“eu”* and *“Thanatos”,* which in English means Euthanasia. It was prevalent in Greek society during the early period of renaissance. Greeks used to consider mercy killing or good death as an act of rationale, if an individual feel that the life is not useful. The increase in the advocacy of euthanasia throughout North America and European countries along with increasing awareness of human rights led to countries creating laws which penalized the suicide and abetment to suicide. Hence, Euthanasia was also declared unlawful. Over the years, understanding of euthanasia evolved and words like mercy killings, assisted dying, death with dignity, painless death, peace attaining, etc. were referred. ### **COMPARISON WITH OTHER COUNTRIES** History has been witness to the evolution of Euthanasia, it has gain momentum many times throughout history and it almost attained legal validity. There was eccentric pattern of euthanasia followed in different countries. *Switzerland* had most recent amendment in 2021 when “suicide machine” an euthanasia machine which was coffin shape hence the name suicide machine, which can be operated and was legalized. *Canada* had legalized assisted suicide and euthanasia only in certain cases pertaining to factors such as physical conditions, mental conditions etc. which will ultimately led to an individuals’ death. In 2021 the scope was increased by considering the individuals sufferings from serious disability which will lead them to their death. *Australia* has four states in which euthanasia is legalised after 2017 and it was available to an individual who suffers from incurable and progressive disease and will die within one year. *USA* had legalized euthanasia in various states through judicial rulings and legislations. The process which is followed is a doctor has to write a prescription of the fatal drugs with the professional when the drugs are injected to the individuals. *France* had not legalised euthanasia as the bill was proposed in 2021 but palliative sedation is legal in France. In *Netherlands* assisted dying and euthanasia is legalised from individuals suffering from terminal illness and eventually die. In 2020 assisted dying was made legalised for children from the age of 1-12 years who are terminally ill. ### **TYPES / KINDS OF EUTHANASIA** - ***BASED ON METHOD USED:*** Passive Euthanasia: when an individual is abstain from the medical treatment necessary for his survival. It means, the professional who provides care, do not do the act which is necessary or stop providing the treatment which is necessary to keep the patient alive. In simple terms, passive euthanasia is an act which can be contented as a doctors not actively killing the patient; they are simply not doing anything to save the patient. Active Euthanasia: When medical personnel or anybody else purposefully performs a positive deed, like injecting a deadly dose of medication or overdosing the victim with medication, the victim dies a medicine would not have caused death if it weren’t for the overdose, which caused the victim to pass away such act is called active euthanasia. - ***BASED ON CONSENT*** Voluntary Euthanasia: The individual requests that euthanasia be carried out. The patient requests euthanasia verbally or in writing if they would rather die than live in agony. Thus, it is possible to carry out both passive and aggressive euthanasia upon voluntary request. Involuntary Euthanasia: This kind of an individual is incapable of giving their consent for euthanasia. As a result, this approach covers scenarios including coma patients, brain dead people, etc. Non-voluntary: In this case, an individual is making the decision to end their life is competent but does not consent to it. This is unquestionably direct homicide. ### **LEGAL PROVISIONS** In the constitution of India Article 21 as a fundamental is enshrined in Part III it has stated that every citizen has right to life along with rights such as right to privacy, right to dignity, right of autonomy, right to personal liberty etc. In fact, inclusion of right to die under article 21 was controversial and various case laws are proof of that, because sections such as section 306 and section 309 of Indian Penal Code, 1860 which has provisions which states that abetment to suicide or attempt is illegal and punishable offence under the code. ### **LANDMARK JUDGEMENTS RELATED TO EUTHANASIA:** **ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA** The landmark judgment in Aruna Shanbaug v. Union of India (2011) by the Supreme Court of India significantly advanced the legal discourse surrounding passive euthanasia in the country. This case analysis explores the Court’s reasoning and its subsequent establishment of procedural guidelines for passive euthanasia applications. Factual Background Aruna Shanbaug, a nurse, was brutally attacked in the hospital where she worked, rendering her in a permanent vegetative state for 36 years. Ms. Pinki Virani, claiming to be Aruna’s friend, petitioned the Court on the grounds that Aruna’s right to die with dignity under Article 21 of the Indian Constitution was being violated due to her irreversible condition. Court’s Reasoning and Decision The Court meticulously evaluated the medical reports and the definition of brain death enshrined in the Human Organ Transplant Act, 1994. It concluded that Aruna was not brain dead, demonstrating residual brain function through her ability to breathe unassisted and respond to stimuli. Furthermore, the Court determined that Ms. Virani lacked the legal standing to make such a request on Aruna’s behalf, as the decision-making authority resided with the KEM Hospital staff responsible for her care. While acknowledging the absence of hope for recovery, the Court distinguished between passive euthanasia (withdrawing life-sustaining treatment) and the withdrawal of nutrition and hydration, which Indian law did not equate with euthanasia. Therefore, the Court dismissed the petition for euthanasia in Aruna’s specific case. Significance and Procedural Guidelines Despite the denial of euthanasia in this instance, the Court’s judgment held immense significance. It undertook a comprehensive examination of passive euthanasia, ultimately establishing a detailed framework for future applications. This framework emphasizes stringent safeguards to prevent potential misuse. The established procedure mandates the filing of an application by a competent individual. The relevant Chief Justice then constitutes a tribunal of at least two judges, empowered to authorize euthanasia orders. This tribunal must also consult a three-member medical committee chosen in consultation with relevant medical professionals. Following the committee’s appointment, the judicial commission issues notices to the state, the patient’s family (including parents, spouse, siblings, or friends in their absence), and accompanies these notices with the committee’s report. The final decision on granting euthanasia rests solely with the Supreme Court. The Aruna Shanbaug case serves as a pivotal precedent in India’s legal landscape on passive euthanasia. The Court’s meticulous analysis and the subsequent creation of procedural guidelines offer a much-needed framework for navigating these complex and sensitive situations. **MARUTI SHRIPATI DUBAL V. STATE OF MAHARASHTRA** Factual Background A police officer, suffering from a documented history of mental illness including schizophrenia, depression, and instability, attempted suicide by self-immolation. He was subsequently charged under Section 309 of the Indian Penal Code (IPC) for attempting to take his own life. Legal Issue The Bombay High Court challenged the constitutionality of Section 309 of the IPC, raising the question of whether criminalizing attempted suicide violates Articles 14, 19, and 21 of the Indian Constitution. Reasoning of the Court The Court held that Section 309 was unconstitutional for the following reasons: Violation of Article 19: The right to life under Article 19 encompasses a negative aspect, as recognized in precedents like Maneka Gandhi v. Union of India (1978), Kharak Singh v. State of Uttar Pradesh (1962), and Sunil Batra v. Delhi Administration (1980). This right encompasses personal liberty and the protection of life itself. Interconnectedness of Articles 19 and 21: Articles 19 and 21 are to be interpreted together and in relation to each other. Violation of Article 14: Section 309 lacks a legal definition of “suicide,” leading to ambiguity. The concept carries varying interpretations across different groups, with some cultures even praising certain forms of suicide. The Court further distinguished between ending one’s life “unnaturally” and due to the exhaustion of the will to live. The latter, the Court reasoned, could not be considered unnatural but rather an act of life arising from specific circumstances. The Court declared Section 309 unconstitutional due to its violation of Articles 14, 19, and 21 of the Indian Constitution. Consequently, the proceedings against the petitioner were dismissed, and he was acquitted of the charge under Section 309. **GIAN KAUR V. STATE OF PUNJAB** Factual information Gian Kaur and her husband were found guilty of assisting their daughter’s suicide and were convicted under Section 306 of the Indian Penal Code, 1860. The trial court sentenced them to six years in prison and a fine of Rs. 2,000, with an additional nine months of imprisonment if the fine couldn’t be paid. The plaintiff appealed the decision to the High Court, which upheld the conviction but reduced the prison sentence to three years. Issues raised The main issues before the court were whether Section 306 of the Indian Penal Code, 1860 is constitutionally valid and whether Section 309 of the Indian Penal Code, 1860 violates Articles 14 and 21 of the Constitution of India. In the case of Gian Kaur v. State of Punjab (1996), a five-judge Constitution Bench of the Supreme Court of India observed that the ‘right to life’ under Article 21 of the Indian Constitution does not include the ‘right to die’. The court emphasized that the right to life also encompasses the right to live with dignity until death, and this should be accompanied by a natural and worthy dying process. The court made it clear that the ‘right to die’ with dignity at the end of one’s life should not be confused with an unnatural ‘right to die’. It held that any action that accelerates a person’s natural death is unlawful under Section 21. The Supreme Court also addressed the constitutionality of Section 306 of the Indian Penal Code, 1860 and ruled that both attempted suicide and assisted suicide are punishable. The court stated that this provision serves to minimize the inherent risk associated with the absence of such a law, considering the greater good of society. Furthermore, in the case of P. Rathinam v. Union of India (1994), the court repealed the provisions of Sections 306 and 309 of the Indian Penal Code, 1860, thereby affirming their constitutionality and holding the accused liable for abetment of suicide. The Supreme Court concluded that Article 21, which pertains to the ‘right to life’, does not include the ‘right to die’. The arguments based on Article 14 of the Indian Constitution were found to be inconsistent with the main issues of the case. ### **DOCTRINES RELATED TO EUTHANASIA IN INDIA** - Doctrine of Parens Patriae: This doctrine states that, the state has right to intervene to protect the rights of an individuals who cannot make decisions for themselves. This doctrine is used for cases of euthanasia where the patients are unable to make the decisions for themselves. - Doctrine of Medical Ethics: Medical Council of India has provided medical ethics under four category that are principles of non-maleficence, beneficence, autonomy, and justice. These medical ethics makes sure that medical professional are unbiased and makes decisions which has best interest of patient. - Living will Doctrine: Living wills are document which stated the wishes of an individual regarding ending their lives under medical treatment. It is recognised by Supreme Court of India in 2018. - Doctrine of Sanctity of Life: This doctrines is based on religious and moral compass which upholds the value of life and its sanctity. It therefore, opposed the assisted dying or terminating lives of human beings on the ground that it disturbs and violated the sanctity of life. ### **Maxims** - *Volenti non fit injuria*: “the one who is willing, no harm is done” it means that if the patients is willing then no harm is caused to him. - *Salus aegroti suprema lex*: “welfare of the patients is the highest law” it simply means whatever that is in the best interest of patient shall be considered legal and just. - *Actus curiae neminem gravabit*: “the act of court shall prejudice no one” it means that the court shall be unbiased and impartial while making decisions for the cases of euthanasia. ### **FUTURE IMPLICATIONS IF EUTHANASIA IS LEGALISED \[NEGATIVES\]** If euthanasia is legalised in India the impact of such act can be more of negative than positive as majority of human tendency is to seek benefit for ourselves than others. Hence, the consequences can be negative than positive. Some of them are: Corruption as many professionals can be of corrupt nature and hence can authorise euthanasia in return of money, Child killing foe example children who has some disability or disease which need to be taken care for can be victims of euthanasia, Organ selling is one of the biggest racket on going in India hence, euthanasia will only help it grow, Dowry deaths, mischiefs by any relative for some property, female child killings, high death rate of Senior citizens, etc. ### **CONCLUSION & COMMENTS** In conclusion, the euthanasia has quite a legal battle ongoing which is deeply rooted by the principles of various fields such as ethics, morals, law, philosophical etc. Throughout historical judgements we can see that culture and legal system have grappled with the complexities of the euthanasia, while some individuals choose the rights to life some individuals choose right to die. Though many arguments and contentions were placed before various high court and Supreme Court we still do not have proper legislation for euthanasia but in the near future we can have a proper legal guidelines, laws and implementations of such laws. ### **REFERENCES** 1. **Online sources** 1. AC.IN 2. SCC ONLINE.COM 3. COM 4. IPLEADERS BLOGS.COM 5. LEGAL SERVICES INDIA.COM 6. RESEARCH GATE.COM 2. **Sources Referred** 1. NATIONAL LIBRARY OF MEDICINE: EUTHANASIA: AN INDIAN PERSPECTIVE 2. CENTER FOR LAW & POLICY RESEARCH: EUTHANASIA AND THE RIGHT TO DIE IN INDIA 3. VERYWELL HEALTH: EUTHANASIA AND ASSISTED SUICIDE HAVE IMPORTANT DISTINCTIONS 3. **Cases Referred** 1. ARUNA SHANBAUG V. UNION OF INDIA (2011) 2. GIAN KAUR V. STATE OF PUNJAB (1996) 3. COMMON CAUSE V. UNION OF INDIA (2014) 4. CHANDRAKAMT NAYANROA TANDALE V. STATE OF MAHARASHTRA (2020) 5. B. KARIBASAMMA V. UNION OF INDIA (2012) 4. **Statutes Referred** 1. CONSTITUION OF INDIA 2. INDIAN PENAL CODE 3. CODE OF CRIMINAL PROCEDURE 4. THANSPLANTATION OF HUMAN ORGANS ACT 5. UNIVERSAL DECLARATIO OF HUMAN RIGHTS 6. INDIAN MEDICAL COUNCIL’S ACT **Categories:** Articles --- ### [RIGHT TO PRIVATE DEFENCE UNDER CRIMINAL LAW: PROVISIONS, PRINCIPLES AND CASES](https://lawfoyer.in/right-to-private-defence-under-criminal-law-provisions-principles-and-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-M. Yesaswini Sai Nikitha, Dr.B.R.Ambedkar College of Law, Andhra University

INTRODUCTION-

In India, the Indian Penal Code, 1860 governs crimes, defences and punishments. The general defences and exceptions are explained by Sec.76 to 106 of Chapter –IV, IPC. The concept of right of private defence is also described with relevant provisions from Sec.96 to 106 extensively below the aforesaid chapter. The types, principles and limitations to right of private defence of the person and property were provided in this part of IPC. These sections permit the individuals to use required force against an assailant  or wrongdoer to safeguard their own body and property, as well as that of others, when rapid support from the public authorities can’t be taken. In such instances, the persons cannot be made liable for the acts done in self-defence. Self-Help is treated as the foremost principle in law governing crimes. The right of private defence is crucial for any citizen to secure his/her life, liberty or property which is diligently regulated by the law. Keywords : Right of Private Defence, Indian Penal Code,1860, concept of self-defence, In defence of person, In defence of property, limitations, defensive right, Sec.96 to 106 of IPC.

Meaning of the right of private defence :

Private Defence refers to using unlawful acts to protect oneself, another person, or property or to prevent criminal activity. The right of private defence is considered as inherent right of man. “The term “Body” refers to one’s own physical body or other person body, whereas the “property” indicates both movable and immovable possessions of oneself or of others.”[1] Sec.96 of the IPC elucidates the provision of things done in private defence. The acts done by the individual in the exercise of their right of private defence against the attackers are not considered as offences, only if they fall under the specified criteria. The aforesaid right can be exercised only when there is a forthcoming danger and when aid from the statutory authorities is unavailable. In simple terms, private defence refers to the exercise of actions which are prohibited but performed to protect oneself, another human being or property or to prevent any criminal activity. In this purview, the right of private defence is granted to Indian citizens to endure threats or dangers without delay and secure their bodies. Article-21 of the Constitution of India,1950 guarantees the right to life and personal liberty to all persons, in accordance of this fundamental right, a person can utilise the right of private defence under IPC,1860.

Nature of the right of private defence :

According to Eminent jurist, Bentham, “A man owes a duty to society to protect person and property of others. It concerns the public safety that every honest man should consider himself as the natural protector of every other.”[2] It is rightly said that the self- help is treated as the best help that a person could do for himself. The ultimate aim of a state is the welfare and protection of the people, but it cannot deploy police officers everywhere to safeguard its citizens from harm or injury. So the state empowers the people to save themselves through the right of private defence.  A fundamental duty is imposed on the state to secure public property and renounce public violence by Art.51(a)(i)[3] of the Constitution of India ,1950.  The protection of the body and property should often considered as his primary responsibility. In the exercise of his foremost duty, if the person commits any unlawful act it doesn’t generate a reciprocal right of private defence, if that illegal action taken by the defender is in genuine self-defence. In democratic countries, the citizens should be provided with the aforesaid privilege to protect themselves from unavoidable danger when state assistance is unavailable or no reasonable time to take recourse to police authorities.

Essential components of the right of private defence :

The elements of the right of private defence can be compiled under the following heads:
  • Apprehension of danger: The aforesaid right can be exercised where a reasonable fear of harm or danger arises to a person or other person or property, but the harm must be impending and not merely uncertain and hypothetical.
  • Unlawful act: The right of private defence can be invoked only in defence of an unlawful act by another person that includes assault, criminal trespass, housebreaking, mischief or robbery.
  • Proportionate force: The reasonable force used by a person to defend himself, should be in accordance with the threat faced and the person while defending himself should try to decrease the harm done to the assailant.
  • No alternative remedy: This privilege can be used in a situation when there is no time to take recourse from legal authorities or to seek protection from public authorities.
  • Continuity of the threat: This right can be invoked until the threat or harm continues to exist, but once the harm is ceased, its exercise beyond the threat is not justified.
  • Absence of aggression: While exercising this privilege, to protect oneself from impending danger or harm, the person should not do such acts in aggression and later plead for the right of private defence.
  • No excessive force: The reasonable force used by the defender should not exceed the required force to prevent imminent harm.

Interpretation of the Legal Provisions involved :

Sec.96 of IPC, 1860 – “Things done in private defence-Nothing is an offence which is done in the exercise of the right of private defence.”[4]

Under Sec.96 of IPC, it is explained that all citizens have the right of private defence. However, it is not absolute but qualified by Sec.99 which states that this right will not apply to the case in which more harm is caused than it is actually required to defend himself. The burden of proving that a particular act is done in self defence is on the person who pleads it. The accused can be absolved on the plea of aforesaid right even if not pleaded by the him. The right of private defence, as the name signifies, is an act of defence but not an act of offence. In a free quarrel, when the mutual parties fight, this right cannot be pleaded by any of the parties as both parties are responsible for their actions. Even if the act is result of the aggression of the accused then under the aforesaid privilege, the accused cannot be safeguarded. To know whether the act was committed under self-defence or aggression, the court has to look into the facts and incidents keenly, and should not rely on any unreasonable presumptions. The court may apply any limitations to the case if necessary. A person by merely assuming the probability of threat and without reasonable cause, cannot exercise the defensive right. The distance between the attacker and the accused can also be a deciding factor to determine whether the act is done under aggression or self-defence. There is no certain measuring stick to determine that distance, whether it is done based on the facts and circumstances of the case or not.
  • 97 of IPC,1860- “Right of private defence of the body and of property.—Every person has a right, subject to the restrictions contained in section 99, to defend—
(First)— His own body, and the body of any other person, against any offence affecting the human body; (Secondly)— The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, rob­bery, mischief or criminal trespass.”[5] Sec.97 of IPC, 1860 authorises all the citizens to protect themselves and others from any immediate danger. Further, this provision expressly states that a person can protect his body, property as well as others property, regardless of whether it is movable or immovable, by exercising this right. An individual can protect himself from offences including theft, mischief or criminal trespass, robbery or an attempt to commit the above said offences by exercising this right. Under this section, even a stranger can utilise this privilege to safeguard the body and property of others with whom he is not having any relationship before.
  • 98 of IPC,1860- “Right of private defence against the act of a person of unsound mind, etc.— When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.”[6]
Sec.98 of IPC, explains the factors, depending on which the defensive act is not considered as an offence, which would be considered as an offence under normal circumstances. “The determining factors are:
  • Youth
  • Lack of maturity of understanding
  • Unsoundness of mind
  • Intoxication
  • Any misconception existing on the part of the attacker.”[7]
So if the act is performed by an individual under the above factors, in such instances this right can be invoked. This section further states that in the exercise of this right, the physical or mental capacity of the person, against whom the right is exercised, is not considered as a bar to its exercise. Therefore, one can utilise this privilege against the attackers regardless of their motive, legal status or any other exception, only when there is an actual fear of threat or harm.
  • 99 of IPC,1860- “Acts against which there is no right of private defence.—
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.  Extent to which the right may be exercised.—The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.”[8] Limitations to exercise of the right of private defence: Sec.99 of IPC provides the extent to which the right can be exercised and the restrictions on exercise of this privilege. The limitations can be explained as: (1)“The right of private defence cannot be exercised if the act doesn’t result in real apprehension of death or grievous hurt. (2) This right can’t be invoked in the case where the act is done or attempted to be done by a public servant acting in good faith during his official duty. (3)The right of private defence cannot be exercised when the act is performed under the direction of public authority in good faith while discharging his lawful duty. (4)This right can’t be invoked when there is a reasonable time to take recourse to public authorities.”[9] In this section, good faith, defined under Sec.52[10] of IPC,1860, is treated as the deciding factor to consider whether the act done or attempted to be done by the statutory authority or under the direction of public authority falls under Sec.99 or not. The extent to which the right may be invoked is discussed in this section.
  • This privilege can be exercised only in a situation where the act by the attacker is treated as a specified offence under IPC,1860 or otherwise as stated under any other circumstances.
  • The right can be invoked in the case when the assailant’s act results in actual fear, threat or danger and that danger should be real, impending or resulting in criminal activity.
  • The privilege is itself defensive but not for the sake of imposing punishment or retribution.
  • This right cannot be exercised to shield an act of aggression of the accused.
  • This privilege cannot be invoked in a situation where there is reasonable means and time to seek protection from public authorities.

Sec.100 of IPC,1860- “When the right of private defence of the body extends to causing death.—

The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:— (First)— Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (Secondly)— Such an assault as may reasonably cause the apprehen­sion that grievous hurt will otherwise be the consequence of such assault; (Thirdly)— An assault with the intention of committing rape; (Fourthly)— An assault with the intention of gratifying unnatural lust; (Fifthly)— An assault with the intention of kidnapping or abduct­ing; (Sixthly)— An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. (Seventhly)— An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.”[11] Under Sec.100 of IPC, this privilege safeguards the accused whose defensive act resulted in death or grievous hurt to the assailant. “But this Sec.100 shall be applicable if it falls under the following circumstances:
  • Assault that reasonably causes the real apprehension of death.
  • Assault that reasonably causes the real apprehension of grievous hurt.
  • Assault to commit rape.
  • Assault to gratifying lust.
  • Assault with the intention of kidnapping or abducting.
  • An assault with the intention of wrongfully confining a person in the circumstances making the person not to take recourse to any public authority.
  • An act of throwing acid or attempt to administer the acid causing reasonable apprehension of grievous hurt.”[12]
Essentials of Sec.100 of IPC, 1860: To utilise this right under Sec.100, the essential factors are
  • The defender must not be at any fault like aggression while taking the self-defence.
  • There must be apprehension of imminent, actual and real harm or danger.
  • No other means and time to take recourse to statutory authorities.
  • There is no other option rather than defending the attacker.

Sec.101 of IPC, 1860- “When such right extends to causing any harm other than death.—

If the offence be not of any of the descriptions enu­merated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restric­tions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death”[13]. This section explains that if the prohibited act cannot be brought under the factors stated in the earlier provision, the right of private defence can’t be extended to an act causing death or grievous hurt, but extends to the acts other than causing death specified under Sec.99.

Sec.102 of IPC,1860- “Commencement and continuance of the right of private defence of the body.—

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the of­fence may not have been committed; and it continues as long as such apprehension of danger to the body continues.”[14] This section explains that the aforesaid privilege can be utilised as soon as the reasonable fear for the harm or injury of the act starts to exist, even if the act resulting harm was not yet committed. The self-defence can be exercised until the act inflicting harm ceases. But it is crucial that the actual attack must take place and the harm arising out of it must be immediate.

Sec.103 of IPC, 1860 –“When the right of private defence of property extends to causing death.—

The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—(First)— Robbery; (Secondly)— House-breaking by night; (Thirdly)— Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwell­ing, or as a place for the custody of property; (Fourthly)— Theft, mischief, or house-trespass, under such circum­stances as may reasonably cause apprehension that death or griev­ous hurt will be the consequence, if such right of private de­fence is not exercised.”[15] Sec.103 of IPC, 1860 provides the right of private defence of property extending to cause death. The act done in self-defence of property within the limitations specified in Sec.99 causing death of the attacker is allowed under this provision if the act can be brought under some conditions. These circumstances include robbery, house-breaking by night, mischief by fire committed on any building, tent or vessel that is considered as a human dwelling place, mischief, theft, or house-trespass that raises a rational fear of causing death or grievous hurt. Sec. 100 of IPC explains that the aforesaid right can be used by a person to secure his or some others body, whereas Sec.103 of IPC describes about right of an individual to defend his or others property.This right cannot be exercised against the person who has the title or possession over that property.

Sec.104 of IPC,1860-“When such right extends to causing any harm other than death.—

If the offence, the committing of which, or the attempt­ing to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.”[16] According to this section, the above said right upon property cannot be extended to cause death or grievous hurt, but applied in case of theft, criminal trespass and not under any conditions mentioned in the previous provision. However, it is subjected to the limitations prescribed under Sec.99. As per Sec.104, if the defender while utilising this privilege causes death or grievous hurt of the attacker then he is liable under Sec.304 of IPC.

Sec.105 of IPC,1860 - “Commencement and continuance of the right of private defence of property.—

The right of private defence of property commences when a reasonable apprehension of danger to the property com­mences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery contin­ues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal re­straint continues. The right of private defence of property against criminal tres­pass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.”[17] This section provides about that the commencement and continuance of right depends on the nature of the act. The time period for the privilege to be utilised and the specified acts for exercising the right are summarised as follows:
  • “In the case of criminal trespass or mischief, the right of private defence continues as long as the offender is engaged in the commission of trespass or mischief.
  • In the case of robbery, the right of private defence continues as long as the offender is causing or attempting to cause death, hurt, or wrongful restraint to any person.
  • In the case of theft, the right of private defence continues until the offender has retreated with the property, until assistance from public authorities is obtained, or until the property has been recovered.
  • In the case of house-breaking by night, the right of private defence continues as long as the house trespass, which began with the act of house-breaking, continues.”[18]
The right of private defence can be exercised only if there is no reasonable time to seek protection from statutory authorities, and once a trespasser gets the lawful possession of that property, the right of private defence can’t be exercised by the person who has the possession till then.

Sec.106 of IPC,1860- “Right of private defence against deadly assault when there is risk of harm to innocent person.—

If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.”[19] This provision empowers a citizen to protect himself by using this right against a group of attackers or a mob. This privilege can also be exercised by an individual even though the group consists of fault less people involving reasonable possibility of harm or injury to the defender. So causing harm to innocent people who are not involved in the attack is not a bar to the defender to save his life by exercising this right.

Relevant Case Laws :

  • 96 of IPC -
In Thangavel case[20], it is highlighted that the common proverb or principle that “necessity knows no law” cannot be applied to modern jurisprudence. It is also stated that even though the right of self defence is inherent it should not be utilised in such a way disturbing others rights. It prevents the persons from expressing their aggression against innocent people in the name of self-defence. In the case of Laxman Vs. State of Orissa[21], it was held that the aforesaid right is available only to one who is suddenly encountered with the prompt necessity of averting an imminent danger but not of his own creation. In the case of Gordhan Vs. State of Rajasthan[22] , the court ruled that the plea for the right of private defence should not be readily assumed merely because the accused had suffered meagre injuries.
  • 97 of IPC -
Right of private defence to be pleaded- In the case of Munshi Ram Vs. Delhi Administration[23], it is explained that generally, the accused must plead for the above said right, but even if he does not plead for self-defence, it is open to the court to consider the plea of private defence if it arises from materials on record. In defence of person – In the case of Sonelal Vs. State[24], the Apex Court held that the right of private defence begins when there is reasonable apprehension about the injury to the human body. In the case of Kishan Vs. State of M.P.[25], the court decided that Mere intimidation will not constitute a valid ground for the exercise of the right of private defence and to use this privilege he should not be an aggressor. In defence of property-The Supreme Court in the case of State of U.P. Vs. Niyami[26], ruled that the aforesaid right is used not only to protect oneself but also for securing the body or property of others.
  • 99 of IPC -
In the case of Emperor Vs. Mammun[27], a group of five individuals armed with weapons, who were accused in the present case, attacked a person who was cutting rice from their field, consequently, he got severely injured and died. The accused pleaded for the right of private defence, but the court dismissed it on the ground that there is a reasonable time to seek protection from police authorities under Sec.99.
  • 100 of IPC –
In the case of State of Orissa Vs. Nirupama panda[28], there was a quarrel took place between the accused and the deceased as he entered her house to rape her, consequently, she stabbed him and he died. The accused pleaded for the right of private defence and the court held she was not guilty of the offence.
  • 102 of IPC-
In the case of Sitaram Vs. Emperor[29], the court decided that the person could exercise this defensive right until he finds himself secured from danger.
  • 103 of IPC-
In the case of Jagan Ram Vs. State[30], the court ruled that the defender need not be the owner of the property in order to use this privilege, however the same can’t be pleaded when the act is done under aggression.

New Legislation in the recent period :

Recently the Bharatiya Nyaya Sanhita bill was passed by the Parliament in December, 2023 and it also received the President’s assent and was enacted in December, 2023. This Act will come into force from 1st July, 2024. This new Criminal Act replaces the Indian Penal Code which was enacted in 1860. After coming into force, this new act governs the offences, punishments, and exceptions in India. Chapter-3 of Bharatiya Nyaya Sanhita, deals with the General Exceptions. Under this part of General Exceptions, the right of private of defence is covered from Sec.34 to 44.

CONCLUSION-

In my opinion, this right of private defence can be considered like armour granted to the citizens by Indian Penal Code, 1860. But in this exercise of this right, the citizens must also be aware of its limitations so that the misuse of the privilege can be mitigated. The concept of “self-help is the best help” that a person can do to himself is strongly reflected in the concept  defensive right. There are some determining factors like reasonable apprehension of real harm or imminent danger by an attacker, no reasonable time to take recourse to the statutory authorities, and act should not be performed under aggression to use the aforesaid right. So, this right should be effectively utilised by the Indian citizens for defending themselves or their property or that of others. However, there are some difficulties in determining the case under this right, the proportionate force should be used while protecting and whether the act was performed in good faith or not. In spite of all this, the right of private defence is a good right granted to the people for their self-defence.

REFERENCES-

  1. Books / Commentaries / Journals Referred :
    1. N.V.Paranjape, Indian Penal Code ,p.no.143(Central Law Publications, 4th edition, Prayagraj, 2019).
  • S.N.Misra, Indian Penal Code, p.no.214 and 219 (Central Law Publications,12th edition, Allahabad,2004).
  1. Online Articles / Sources Referred :
    1. https://lawbhoomi.com/private-defence-in-ipc/
    2. https://www.legalserviceindia.com/article/l470-Private-Defence.html
    3. https://blog.ipleaders.in/to-what-extent-can-you-exercise-your-right-of-private-defence/
    4. https://indiankanoon.org/doc/1569253/
  2. Cases Referred :
    1. Thangavel Case.
    2. Laxman Vs. State of Orissa, AIR 1988 SC 83.
    3. Gordhan Vs. State of Rajasthan, 1987 Cri.L.J.541(Raj.)
    4. Munshi Ram Vs. Delhi Administration, AIR 1968 SC 702
    5. Sonelal Vs. State, AIR 1981 SC 1379
    6. Kishan Vs. State of M.P. , AIR 1975 SC 244
    7. State of U.P. Vs. Niyami , AIR 1987 SC 1652
    8. Emperor Vs. Mammun Case.
    9. State of Orissa Vs. Nirupama Panda , 1989 CRILJ 621.
    10. Sitaram Vs. Emperor, 1973 SC 473
    11. Jagan Ram Vs. State, 2014 CrLJ NOC 483.
  3. Statutes Referred :
    1. Indian Penal Code,1860
[1] Private Defence in IPC. (2023, June 24). LawBhoomi. Retrieved March 4, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [2] Principles of the Penal Code, p.269 [3] Art.51(1)(a). (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/854952/ [4] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/777353/ [5] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1499794/ [6] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1159920/ [7] Private Defences in IPC,1860. (2023, June 24). LawBhoomi. Retrieved March 13, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [8] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/650803/ [9] Indian Penal Code ,1860. (2023, June 24). LawBhoomi. Retrieved March 4, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [10] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1180351/ [11] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/714464/ [12] Private Defences in IPC,1860. (2023, June 24). LawBhoomi. Retrieved March 13, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [13] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/399205/ [14] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1985227/ [15] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/860501/ [16] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1409246/ [17] Indian Penal Code,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1944062/ [18] Indian Penal Code,1860. (2023, June 24). LawBhoomi. Retrieved March 4, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [19] Indian Penal Code ,1860. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1606852/ [20] Thangavel Case. (2023, June 24). LawBhoomi. Retrieved March 5, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [21] AIR 1988 SC 83 [22] 1987 Cri. L.J. 541 (Raj.) [23] AIR 1968 SC 702 [24] AIR 1981 SC 1379 [25] AIR 1975 SC 244 [26] AIR 1987 SC 1652 [27] Emperor vs. Mammun  Case. (2023, June 24). LawBhoomi. Retrieved March 5, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [28] 1989 CRILJ 621 [29] 1973 SC 473 [30] 2014 CriLJ NOC 483 **Content:** **Author-M. Yesaswini Sai Nikitha, Dr.B.R.Ambedkar College of Law, Andhra University** ### **INTRODUCTION-** In India, the Indian Penal Code, 1860 governs crimes, defences and punishments. The general defences and exceptions are explained by Sec.76 to 106 of Chapter –IV, IPC. The concept of right of private defence is also described with relevant provisions from Sec.96 to 106 extensively below the aforesaid chapter. The types, principles and limitations to right of private defence of the person and property were provided in this part of IPC. These sections permit the individuals to use required force against an assailant or wrongdoer to safeguard their own body and property, as well as that of others, when rapid support from the public authorities can’t be taken. In such instances, the persons cannot be made liable for the acts done in self-defence. Self-Help is treated as the foremost principle in law governing crimes. The right of private defence is crucial for any citizen to secure his/her life, liberty or property which is diligently regulated by the law. ***Keywords* :** Right of Private Defence, Indian Penal Code,1860, concept of self-defence, In defence of person, In defence of property, limitations, defensive right, Sec.96 to 106 of IPC. ### **Meaning of the right of private defence :** Private Defence refers to using unlawful acts to protect oneself, another person, or property or to prevent criminal activity. The right of private defence is considered as inherent right of man. “*The term “Body” refers to one’s own physical body or other person body, whereas the “property” indicates both movable and immovable possessions of oneself or of others.”[**\[1\]**](#_ftn1)* Sec.96 of the IPC elucidates the provision of things done in private defence. The acts done by the individual in the exercise of their right of private defence against the attackers are not considered as offences, only if they fall under the specified criteria. The aforesaid right can be exercised only when there is a forthcoming danger and when aid from the statutory authorities is unavailable. In simple terms, private defence refers to the exercise of actions which are prohibited but performed to protect oneself, another human being or property or to prevent any criminal activity. In this purview, the right of private defence is granted to Indian citizens to endure threats or dangers without delay and secure their bodies. Article-21 of the Constitution of India,1950 guarantees the right to life and personal liberty to all persons, in accordance of this fundamental right, a person can utilise the right of private defence under IPC,1860. ### **Nature of the right of private defence :** According to Eminent jurist, Bentham, “*A man owes a duty to society to protect person and property of others. It concerns the public safety that every honest man should consider himself as the natural protector of every other.*”[\[2\]](#_ftn2) It is rightly said that the self- help is treated as the best help that a person could do for himself. The ultimate aim of a state is the welfare and protection of the people, but it cannot deploy police officers everywhere to safeguard its citizens from harm or injury. So the state empowers the people to save themselves through the right of private defence. A fundamental duty is imposed on the state to secure public property and renounce public violence by Art.51(a)(i)[\[3\]](#_ftn3) of the Constitution of India ,1950. The protection of the body and property should often considered as his primary responsibility. In the exercise of his foremost duty, if the person commits any unlawful act it doesn’t generate a reciprocal right of private defence, if that illegal action taken by the defender is in genuine self-defence. In democratic countries, the citizens should be provided with the aforesaid privilege to protect themselves from unavoidable danger when state assistance is unavailable or no reasonable time to take recourse to police authorities. ### **Essential components of the right of private defence :** The elements of the right of private defence can be compiled under the following heads: - **Apprehension of danger**: The aforesaid right can be exercised where a reasonable fear of harm or danger arises to a person or other person or property, but the harm must be impending and not merely uncertain and hypothetical. - **Unlawful act**: The right of private defence can be invoked only in defence of an unlawful act by another person that includes assault, criminal trespass, housebreaking, mischief or robbery. - **Proportionate force:** The reasonable force used by a person to defend himself, should be in accordance with the threat faced and the person while defending himself should try to decrease the harm done to the assailant. - **No alternative remedy:** This privilege can be used in a situation when there is no time to take recourse from legal authorities or to seek protection from public authorities. - **Continuity of the threat:** This right can be invoked until the threat or harm continues to exist, but once the harm is ceased, its exercise beyond the threat is not justified. - **Absence of aggression:** While exercising this privilege, to protect oneself from impending danger or harm, the person should not do such acts in aggression and later plead for the right of private defence. - **No excessive force:** The reasonable force used by the defender should not exceed the required force to prevent imminent harm. ### **Interpretation of the Legal Provisions involved :** #### ***Sec.96 of IPC, 1860* –** “*Things done in private defence*–*Nothing is an offence which is done in the exercise of the right of private defence.”*[*\[4\]*](#_ftn4) Under Sec**.**96 of IPC, it is explained that all citizens have the right of private defence. However, it is not absolute but qualified by Sec.99 which states that this right will not apply to the case in which more harm is caused than it is actually required to defend himself. The burden of proving that a particular act is done in self defence is on the person who pleads it. The accused can be absolved on the plea of aforesaid right even if not pleaded by the him. The right of private defence, as the name signifies, is an act of defence but not an act of offence. In a free quarrel, when the mutual parties fight, this right cannot be pleaded by any of the parties as both parties are responsible for their actions. Even if the act is result of the aggression of the accused then under the aforesaid privilege, the accused cannot be safeguarded. To know whether the act was committed under self-defence or aggression, the court has to look into the facts and incidents keenly, and should not rely on any unreasonable presumptions. The court may apply any limitations to the case if necessary. A person by merely assuming the probability of threat and without reasonable cause, cannot exercise the defensive right. The distance between the attacker and the accused can also be a deciding factor to determine whether the act is done under aggression or self-defence. There is no certain measuring stick to determine that distance, whether it is done based on the facts and circumstances of the case or not. - ***97 of IPC,1860****– “**Right of private defence of the body and of property**.—Every person has a right, subject to the restrictions contained in section 99, to defend—* [*(First)*](https://indiankanoon.org/doc/116325044/)*— His own body, and the body of any other person, against any offence affecting the human body;* [*(Secondly)*](https://indiankanoon.org/doc/93777918/)*— The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, rob­bery, mischief or criminal trespass.”*[***\[5\]***](#_ftn5) Sec.97 of IPC, 1860 authorises all the citizens to protect themselves and others from any immediate danger. Further, this provision expressly states that a person can protect his body, property as well as others property, regardless of whether it is movable or immovable, by exercising this right. An individual can protect himself from offences including theft, mischief or criminal trespass, robbery or an attempt to commit the above said offences by exercising this right. Under this section, even a stranger can utilise this privilege to safeguard the body and property of others with whom he is not having any relationship before. - ***98 of IPC,1860- “**Right of private defence against the act of a person of unsound mind, etc.****— When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.”[**\[6\]**](#_ftn6)* Sec.98 of IPC, explains the factors, depending on which the defensive act is not considered as an offence, which would be considered as an offence under normal circumstances. “*The determining factors are:* - *Youth* - *Lack of maturity of understanding* - *Unsoundness of mind* - *Intoxication* - *Any misconception existing on the part of the attacker.”[**\[7\]**](#_ftn7)* So if the act is performed by an individual under the above factors, in such instances this right can be invoked. This section further states that in the exercise of this right, the physical or mental capacity of the person, against whom the right is exercised, is not considered as a bar to its exercise. Therefore, one can utilise this privilege against the attackers regardless of their motive, legal status or any other exception, only when there is an actual fear of threat or harm. - ***99 of IPC,1860****– “****Acts against which there is no right of private defence****.—* *There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public* *servant acting in good faith under colour of his office,* *though that direction may not* *be* *strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities*. ***Extent to which the right may be exercised****.—The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.”*[***\[8\]***](#_ftn8) **Limitations to exercise of the right of private defence:** Sec.99 of IPC provides the extent to which the right can be exercised and the restrictions on exercise of this privilege. The limitations can be explained as: ***(1)****“The right of private defence cannot be exercised if the act doesn’t result in real apprehension of death or grievous hurt.* ***(2)*** *This right can’t be invoked in the case where the act is done or attempted to be done by a public servant acting in good faith during his official duty.* ***(3)****The right of private defence cannot be exercised when the act is performed under the direction of public authority in good faith while discharging his lawful duty.* ***(4)****This right can’t be invoked when there is a reasonable time to take recourse to public authorities*.”[\[9\]](#_ftn9) In this section, good faith, defined under *Sec.52*[***\[10\]***](#_ftn10) *of IPC,1860*, is treated as the deciding factor to consider whether the act done or attempted to be done by the statutory authority or under the direction of public authority falls under Sec.99 or not. The extent to which the right may be invoked is discussed in this section. - This privilege can be exercised only in a situation where the act by the attacker is treated as a specified offence under IPC,1860 or otherwise as stated under any other circumstances. - The right can be invoked in the case when the assailant’s act results in actual fear, threat or danger and that danger should be real, impending or resulting in criminal activity. - The privilege is itself defensive but not for the sake of imposing punishment or retribution. - This right cannot be exercised to shield an act of aggression of the accused. - This privilege cannot be invoked in a situation where there is reasonable means and time to seek protection from public authorities. #### ***Sec.100 of IPC,1860**–*** *“**When the right of private defence of the body extends to causing death.**—* *The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—* [*(First)*](https://indiankanoon.org/doc/187894963/)*— Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;* [*(Secondly)*](https://indiankanoon.org/doc/76243000/)*— Such an assault as may reasonably cause the apprehen­sion that grievous hurt will otherwise be the consequence of such assault;* [*(Thirdly)*](https://indiankanoon.org/doc/107378943/)*— An assault with the intention of committing rape;* [*(Fourthly)*](https://indiankanoon.org/doc/37795711/)*— An assault with the intention of gratifying unnatural lust;* [*(Fifthly)*](https://indiankanoon.org/doc/142496480/)*— An assault with the intention of kidnapping or abduct­ing;* [*(Sixthly)*](https://indiankanoon.org/doc/40081502/)*— An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.* [*(Seventhly)*](https://indiankanoon.org/doc/139492157/)*— An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.”*[***\[11\]***](#_ftn11) Under Sec.100 of IPC, this privilege safeguards the accused whose defensive act resulted in death or grievous hurt to the assailant. *“But this Sec.100 shall be applicable if it falls under the following circumstances:* - *Assault that reasonably causes the real apprehension of death.* - *Assault that reasonably causes the real apprehension of grievous hurt.* - *Assault to commit rape.* - *Assault to gratifying lust.* - *Assault with the intention of kidnapping or abducting.* - *An assault with the intention of wrongfully confining a person in the circumstances making the person not to take recourse to any public authority.* - *An act of throwing acid or attempt to administer the acid causing reasonable apprehension of grievous hurt.”*[***\[12\]***](#_ftn12) **Essentials of Sec.100 of IPC, 1860:** To utilise this right under Sec.100, the essential factors are - The defender must not be at any fault like aggression while taking the self-defence. - There must be apprehension of imminent, actual and real harm or danger. - No other means and time to take recourse to statutory authorities. - There is no other option rather than defending the attacker. #### ***Sec.101 of IPC, 1860**–* *“When such right extends to causing any harm other than death.****—* *If the offence be not of any of the descriptions enu­merated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restric­tions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death”*[***\[13\]***](#_ftn13)*.* This section explains that if the prohibited act cannot be brought under the factors stated in the earlier provision, the right of private defence can’t be extended to an act causing death or grievous hurt, but extends to the acts other than causing death specified under Sec.99. #### ***Sec.102 of IPC,1860**–*** *“**Commencement and continuance of the right of private defence of the body**.—* *The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the of­fence may not have been committed; and it continues as long as such apprehension of danger to the body continues.”*[***\[14\]***](#_ftn14) This section explains that the aforesaid privilege can be utilised as soon as the reasonable fear for the harm or injury of the act starts to exist, even if the act resulting harm was not yet committed. The self-defence can be exercised until the act inflicting harm ceases. But it is crucial that the actual attack must take place and the harm arising out of it must be immediate. #### ***Sec.103 of IPC, 1860* *–“**When the right of private defence of property extends to causing death.****—* *The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—*[*(First)*](https://indiankanoon.org/doc/18959533/)*— Robbery;* [*(Secondly)*](https://indiankanoon.org/doc/194543591/)*— House-breaking by night;* [*(Thirdly)*](https://indiankanoon.org/doc/140301972/)*— Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwell­ing, or as a place for the custody of property;* [*(Fourthly)*](https://indiankanoon.org/doc/68694017/)*— Theft, mischief, or house-trespass, under such circum­stances as may reasonably cause apprehension that death or griev­ous hurt will be the consequence, if such right of private de­fence is not exercised.”*[***\[15\]***](#_ftn15) Sec.103 of IPC, 1860 provides the right of private defence of property extending to cause death. The act done in self-defence of property within the limitations specified in Sec.99 causing death of the attacker is allowed under this provision if the act can be brought under some conditions. These circumstances include robbery, house-breaking by night, mischief by fire committed on any building, tent or vessel that is considered as a human dwelling place, mischief, theft, or house-trespass that raises a rational fear of causing death or grievous hurt. Sec. 100 of IPC explains that the aforesaid right can be used by a person to secure his or some others body, whereas Sec.103 of IPC describes about right of an individual to defend his or others property.This right cannot be exercised against the person who has the title or possession over that property. #### ***Sec.104 of IPC,1860**-“**When such right extends to causing any harm other than death.****—* *If the offence, the committing of which, or the attempt­ing to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the* *voluntary causing to the wrong-doer of any harm other than death.”*[***\[16\]***](#_ftn16) According to this section, the above said right upon property cannot be extended to cause death or grievous hurt, but applied in case of theft, criminal trespass and not under any conditions mentioned in the previous provision. However, it is subjected to the limitations prescribed under Sec.99. As per Sec.104, if the defender while utilising this privilege causes death or grievous hurt of the attacker then he is liable under Sec.304 of IPC. #### ***Sec.105 of IPC,1860* *–*** *“**Commencement and continuance of the right of private defence of property.**—* *The right of private defence of property commences when a reasonable apprehension of danger to the property com­mences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery contin­ues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint* *or as long as the fear of instant death or of instant hurt or of instant personal re­straint continues. The right of private defence of property against criminal tres­pass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house-breaking by night continues as long as the* *house-trespass which has been begun by such house-breaking continues.”*[***\[17\]***](#_ftn17) This section provides about that the commencement and continuance of right depends on the nature of the act. The time period for the privilege to be utilised and the specified acts for exercising the right are summarised as follows: - *“In the case of criminal trespass or mischief, the right of private defence continues as long as the offender is engaged in the commission of trespass or mischief.* - *In the case of robbery, the right of private defence continues as long as the offender is causing or attempting to cause death, hurt, or wrongful restraint to any person.* - *In the case of theft, the right of private defence continues until the offender has retreated with the property, until assistance from public authorities is obtained, or until the property has been recovered.* - *In the case of house-breaking by night, the right of private defence continues as long as the house trespass, which began with the act of house-breaking, continues.”*[***\[18\]***](#_ftn18) The right of private defence can be exercised only if there is no reasonable time to seek protection from statutory authorities, and once a trespasser gets the lawful possession of that property, the right of private defence can’t be exercised by the person who has the possession till then. #### ***Sec.106 of IPC,1860**–*** *“**Right of private defence against deadly assault when there is risk of harm to innocent person.**—* *If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.”*[***\[19\]***](#_ftn19) This provision empowers a citizen to protect himself by using this right against a group of attackers or a mob. This privilege can also be exercised by an individual even though the group consists of fault less people involving reasonable possibility of harm or injury to the defender. So causing harm to innocent people who are not involved in the attack is not a bar to the defender to save his life by exercising this right. ### **Relevant Case Laws :** - **96 of IPC –** In ***Thangavel case[\[20\]](#_ftn20)***, it is highlighted that the common proverb or principle that “necessity knows no law” cannot be applied to modern jurisprudence. It is also stated that even though the right of self defence is inherent it should not be utilised in such a way disturbing others rights. It prevents the persons from expressing their aggression against innocent people in the name of self-defence. In the case of ***Laxman Vs. State of Orissa[\[21\]](#_ftn21)****,* it was held that the aforesaid right is available only to one who is suddenly encountered with the prompt necessity of averting an imminent danger but not of his own creation. In the case of ***Gordhan Vs. State of Rajasthan[\[22\]](#_ftn22)*** , the court ruled that the plea for the right of private defence should not be readily assumed merely because the accused had suffered meagre injuries. - **97 of IPC –** **Right of private defence to be pleaded**– In the case of ***Munshi Ram Vs. Delhi Administration[\[23\]](#_ftn23)***, it is explained that generally, the accused must plead for the above said right, but even if he does not plead for self-defence, it is open to the court to consider the plea of private defence if it arises from materials on record. **In defence of person** – In the case of ***Sonelal Vs. State[\[24\]](#_ftn24)****,* the Apex Court held that the right of private defence begins when there is reasonable apprehension about the injury to the human body. In the case of ***Kishan Vs. State of M.P.[\[25\]](#_ftn25)***, the court decided that Mere intimidation will not constitute a valid ground for the exercise of the right of private defence and to use this privilege he should not be an aggressor. **In defence of property**-The Supreme Court in the case of ***State of U.P. Vs. Niyami[\[26\]](#_ftn26)***, ruled that the aforesaid right is used not only to protect oneself but also for securing the body or property of others. - **99 of IPC –** In the case of ***Emperor Vs. Mammun[\[27\]](#_ftn27)***, a group of five individuals armed with weapons, who were accused in the present case, attacked a person who was cutting rice from their field, consequently, he got severely injured and died. The accused pleaded for the right of private defence, but the court dismissed it on the ground that there is a reasonable time to seek protection from police authorities under Sec.99. - **100 of IPC –** In the case of ***State of Orissa Vs. Nirupama panda[\[28\]](#_ftn28)***, there was a quarrel took place between the accused and the deceased as he entered her house to rape her, consequently, she stabbed him and he died. The accused pleaded for the right of private defence and the court held she was not guilty of the offence. - **102 of IPC-** In the case of ***Sitaram Vs. Emperor[\[29\]](#_ftn29),*** the court decided that the person could exercise this defensive right until he finds himself secured from danger. - **103 of IPC-** In the case of ***Jagan Ram Vs. State[\[30\]](#_ftn30)***, the court ruled that the defender need not be the owner of the property in order to use this privilege, however the same can’t be pleaded when the act is done under aggression. ### **New Legislation in the recent period :** Recently the **Bharatiya Nyaya Sanhita** bill was passed by the Parliament in December, 2023 and it also received the President’s assent and was enacted in December, 2023. This Act will come into force from 1st July, 2024. This new Criminal Act replaces the Indian Penal Code which was enacted in 1860. After coming into force, this new act governs the offences, punishments, and exceptions in India. **Chapter-3** of Bharatiya Nyaya Sanhita, deals with the General Exceptions. Under this part of General Exceptions, the right of private of defence is covered from **Sec.34 to 44**. ### **CONCLUSION-** In my opinion, this right of private defence can be considered like armour granted to the citizens by Indian Penal Code, 1860. But in this exercise of this right, the citizens must also be aware of its limitations so that the misuse of the privilege can be mitigated. The concept of “self-help is the best help” that a person can do to himself is strongly reflected in the concept defensive right. There are some determining factors like reasonable apprehension of real harm or imminent danger by an attacker, no reasonable time to take recourse to the statutory authorities, and act should not be performed under aggression to use the aforesaid right. So, this right should be effectively utilised by the Indian citizens for defending themselves or their property or that of others. However, there are some difficulties in determining the case under this right, the proportionate force should be used while protecting and whether the act was performed in good faith or not. In spite of all this, the right of private defence is a good right granted to the people for their self-defence. ### **REFERENCES-** 1. **Books / Commentaries / Journals Referred :** 1. N.V.Paranjape, Indian Penal Code ,p.no.143(Central Law Publications, 4th edition, Prayagraj, 2019). - S.N.Misra, Indian Penal Code, p.no.214 and 219 (Central Law Publications,12th edition, Allahabad,2004). 2. **Online Articles / Sources Referred :** 1. 2. 3. 4. 3. **Cases Referred :** 1. Thangavel Case. 2. Laxman Vs. State of Orissa, AIR 1988 SC 83. 3. Gordhan Vs. State of Rajasthan, 1987 Cri.L.J.541(Raj.) 4. Munshi Ram Vs. Delhi Administration, AIR 1968 SC 702 5. Sonelal Vs. State, AIR 1981 SC 1379 6. Kishan Vs. State of M.P. , AIR 1975 SC 244 7. State of U.P. Vs. Niyami , AIR 1987 SC 1652 8. Emperor Vs. Mammun Case. 9. State of Orissa Vs. Nirupama Panda , 1989 CRILJ 621. 10. Sitaram Vs. Emperor, 1973 SC 473 11. Jagan Ram Vs. State, 2014 CrLJ NOC 483. 4. **Statutes Referred :** 1. Indian Penal Code,1860 [\[1\]](#_ftnref1) *Private Defence in IPC*. (2023, June 24). LawBhoomi. Retrieved March 4, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [\[2\]](#_ftnref2) Principles of the Penal Code, p.269 [\[3\]](#_ftnref3) *Art.51(1)(a)*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/854952/ [\[4\]](#_ftnref4) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/777353/ [\[5\]](#_ftnref5) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1499794/ [\[6\]](#_ftnref6) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1159920/ [\[7\]](#_ftnref7) *Private Defences in IPC,1860*. (2023, June 24). LawBhoomi. Retrieved March 13, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [\[8\]](#_ftnref8) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/650803/ [\[9\]](#_ftnref9) *Indian Penal Code ,1860*. (2023, June 24). LawBhoomi. Retrieved March 4, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [\[10\]](#_ftnref10) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1180351/ [\[11\]](#_ftnref11) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/714464/ [\[12\]](#_ftnref12) *Private Defences in IPC,1860*. (2023, June 24). LawBhoomi. Retrieved March 13, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [\[13\]](#_ftnref13) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/399205/ [\[14\]](#_ftnref14) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1985227/ [\[15\]](#_ftnref15) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/860501/ [\[16\]](#_ftnref16) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1409246/ [\[17\]](#_ftnref17) *Indian Penal Code,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1944062/ [\[18\]](#_ftnref18) *Indian Penal Code,1860*. (2023, June 24). LawBhoomi. Retrieved March 4, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [\[19\]](#_ftnref19) *Indian Penal Code ,1860*. (n.d.). Indiankannon. Retrieved March 4, 2024, from https://indiankanoon.org/doc/1606852/ [\[20\]](#_ftnref20) *Thangavel Case*. (2023, June 24). LawBhoomi. Retrieved March 5, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [\[21\]](#_ftnref21) AIR 1988 SC 83 [\[22\]](#_ftnref22) 1987 Cri. L.J. 541 (Raj.) [\[23\]](#_ftnref23) AIR 1968 SC 702 [\[24\]](#_ftnref24) AIR 1981 SC 1379 [\[25\]](#_ftnref25) AIR 1975 SC 244 [\[26\]](#_ftnref26) AIR 1987 SC 1652 [\[27\]](#_ftnref27) *Emperor vs. Mammun Case*. (2023, June 24). LawBhoomi. Retrieved March 5, 2024, from https://lawbhoomi.com/private-defence-in-ipc/ [\[28\]](#_ftnref28) 1989 CRILJ 621 [\[29\]](#_ftnref29) 1973 SC 473 [\[30\]](#_ftnref30) 2014 CriLJ NOC 483 **Categories:** Articles --- ### [REMEDIES AGAINST DOMESTIC VIOLENCE UNDER PROTECTION OF DOMESTIC VIOLENCE ACT,2005](https://lawfoyer.in/remedies-against-domestic-violence-under-protection-of-domestic-violence-act2005/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Choppali Venkata Kalyani, Dr. B.R. Ambedkar College of Law, Andhra University

INTRODUCTION:

Simply, this act is called (DV) Domestic violence. It is not a social issue; doubtlessly, it considered as a violation of fundamental rights. Here, Right to life and personal liberty, ,Right to speech and expression  of the Indian Constitution are infringed. This act has 37 sections; it came into force on 26 October 2006. From Ancient days, it has existed in society. Women from every social background, disregarding of their religion, caste, or class, are victims of domestic violence. Most people think that it was not there in the society, but it is invisible. Mostly victims are coming from villages when compared to cities, a tiny of cases are reported. Married women face this kind of violence more than normal women. Lack of education and poverty are the main causes. In India, 30% of people are facing this Issue .The Vienna Accord of 1994 and Beijing Declaration of 1995 have suggested. When a woman is experienced to cruelty by her husband or relatives, it is considered an illegal/unlawful act. In order to protect women from domestic violence in society, the United Nations recommended the Committee on Convention and Elimination of all forms of Discrimination Against Women (CEDAW) suggested the act. It is responsibility to every state to safeguard female from this act. Then government introduced this act. This act provides remedies, medical facilities, shelter homes, and protection to the victims. It appoints service providers and protection officers to take care of the petitioners. It is a civil law. sections 18,19,20,21,22,23 speaks about remedies. Keywords(Minimum 5): Domestic Violence Women Fundamental rights Physical abuse Remedies Husband cruelty Human Rights

Meaning of Domestic violence:

When a woman is experienced to cruelty by her husband or relatives of her husband, it is called as domestic violence. It refers when one mate tries to take control of the other spouse, telling them what to wear, how to wear it, and where to go. It is also called as 'intimate partner violence.' It is a forcibly  action that happens inside the home  can apply to women, mothers, daughters, women those who are  in living relationships, and those in long-standing relationships with sex workers.

Definition of Domestic violence:

(a)Section 3 of the Domestic violence Act, 2005 defines as follows- Section 3 of DV speaks about it forms:
  • PHYSICAL ABUSE:
Any act which is done by a defendant against petitioner which must cause bodily pain, harm, endanger the life of the aggrieved person /likely to do it includes assault, criminal intimidation, criminal force.
  • SEXUAL ABUSE:
If anything done by a respondent against the petitioner which insults the character of women or violates the dignity of a woman it comes under sexual abuse.
  • VERBAL ABUSEAND EMOTIONAL ABUSE:
If any action done by the respondent /humiliates the woman and repeatedly he spoke about not to having a male child, if he creating any threat against petitioner /any person whom the petitioner is intrested.
  • ECONOMICAL ABUSE:
Destitution of all or economic, financial to which the aggrieved person is entitled. Throwing away the household effects any property whether it is movable /immovable, shares, fixed deposits which are belongs to the aggrieved person. Banning to continued access to facilities which are available to the aggrieved person which includes the shared house hold.
  1. Historical Background / Evolution:
In ancient days there is no separate act, remedies, legislations it is considered as a criminal law in previous days there is a relief in Indian Penal Code 1860 Section 498A speaks about cruelty by husband, it is considered as a civil law.
  1. Comparison with other Countries :
It is a universal problem faced by all over the world regardless their caste, creed, religion etc. The UN conducted a survey and revealed that it exists in 71 countries. It is a common problem in the United States, with one in four women and one in nine men meet domestic violence with their spouses. The US government has enacted the Violence Against Women Act (VAWA) for the protection of women from this social Evil .In the UK, two million adults experienced per year. They have also implemented laws for protection. The main causes of this are poverty, lack of education, and lack of understanding between partners. Causes : The main causes of DV are lack of education, poverty, misunderstandings between the spouses, societal attitude towards gender roles, mental health issues, substance abuse, lack of stringent punishments, cultural and social factors, dowry, alcoholism, historical causes, low IQ, etc.
  1. Forms :
 Section 3 of DV speaks about it forms:
  • PHYSICAL ABUSE:
Any act which is done by a defendant against petitioner which must cause bodily pain, harm, endanger the life of the aggrieved person /likely to do it includes assault, criminal intimidation, criminal force.
  • SEXUAL ABUSE:
If anything done by a respondent against the petitioner which insults the character of women or violates the dignity of a woman it comes under sexual abuse.
  • VERBAL ABUSEAND EMOTIONAL ABUSE:
If any action done by the respondent /humiliates the woman and repeatedly he spoke about not to having a male child, if he creating any threat against petitioner /any person whom the petitioner is intrested.
  • ECONOMICAL ABUSE:
Destitution of all or economic, financial to which the aggrieved person is entitled. Throwing away the household effects any property whether it is movable /immovable, shares, fixed deposits which are belongs to the aggrieved person. Banning to continued access to facilities which are available to the aggrieved person which includes the shared house hold.
  1. Legal Provisions and interpretations:
According to section 5 of the this act the aggrieved person can file a suit to claim which type of remedies are available to her like compensatory orders, monetary reliefs , protection orders, custody orders, residence orders. Section 18 protection order: If the court is satisfied that domestic violence has taken place, then the forum issues the protection order in favour of the aggrieved person. The magistrate gives a warning to the respondent that they are banned from certain actions: (a) performing any type of domestic violence, (b) assisting in acts of domestic violence, (c) the respondent does not have a chance to enter the  victims home, (d) the respondent should not communicate with the petitioner, (e) the respondent should not separate the property, bank lockers, or cheques that belong to the aggrieved person, and (f) the respondent should not cause any harm to the petitioners relatives .Case law: Smt.Rinamukharjee&Ors.v.state of West Bengal &Anr.AIR 2009(NOC)2841 (cal)[1] Section19 Residence orders:The magistrate can grant a residence order in favour of the aggrieved person. (a) stop the respondent from depriving the property which belongs to both. (b) The court commanded respondent to remove himself from the shared household. (c) The court directed the respondent should not enter the premise[2]s of the victim's home or any relatives of the victim. Not only this, the court imposes additional directions prohibiting certain actions against the petitioner as mentioned in the above section. Case law:Rakesh vs Rajnesh @Manto,2011(4) WLC (Raj) 21 Section 20 Monetary reliefs: The court may directed the respondent to pay monetary relief to meet the expenses which are occurred due to the act of domestic violence by the respondent, He should pay the compensation in the following cases:
  • if the petitioner lost their employment because of the domestic violence caused by the respondent, the replier should pay the expenses,
  • The petitioner should pay the medical expenses,
  • The loss happened because of the petitioner,
  • The respondent should pay the maintenance according to the section 12 of CRPC.
  • The monetary relief granted by the court it should be sufficient, equitable and reasonable.
  • The payments should pay by monthly basis, lumpsum, yearly basis.
  • The respondent should pay the expenses /maintenances under sub section(1).
  • If the respondent failed to pay the monetary relief which was granted by the court then the forum, ordered the employer of the replier and the salary was given to the aggrieved person/magistrate.
Case law:Rajesh kumarvs.safurabai&ors.AIR2009(NOC)813(chh.)[3] Section 21 Custody orders: The court provides the custody order for the child. If the respondent requests the magistrate during the hearing, then the magistrate may pass the order for visitation with the children. If such meet is dangerous to the children or petitioner, the forum can refuse such visits at any time. Case law:oliver Menezes v.Seritatheresemathias (2021) Section 22. Compensation orders: Furthermore the compensation order should be granted by the court application being made by the petitioner , the respondent should pay compensation, damages and injuries which are caused by the respondent.
  1. Power to grant interim and ex parte orders.—(1) “In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
 (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent”.[4] What is said in Section 23? If the court is satisfied that the application being made under Section 12 is proper, then the court can pass the interim order/ex parte order. If the court is satisfied that an act of domestic violence has really been done, then the court can pass the ex parte order/interim order against the respondent. Case law: Abhijit Bhikaseth Auti vs. state of maharastra&Anr.AIR 2009 (NOC) 808 (bom.)[5]
  • Essentials :
There should be control over the other spouse. (2) It includes a pattern of abusive Behaviour over the spouse by the respondent. (3) The respondent tries to gain power over the other spouse in a domestic relationship. (4) Both spouses should be in a domestic relationship; what type of  requirements are included in section 2(f) of the DV Act, 2005.

Case Laws :

(1)V.D. Bhanot vs. Savitha bhanot ,(2012): In the above case, they got married in the year 1980. The   wife ran off from her marital home. The respondent filed a suit under Section 12 of the DV Act. The magistrate granted interim relief to the replier, and the forum passed protection orders under Section 18. Again, the husband filed a suit to remove his wife from his quarters. The court room said that she has to reside on the 2nd floor while she is living on the 1st floor. The opinion of the bench did not satisfy the respondent. Therefore, she went for an appeal in the High Court, but the application was denied by the Sessions Court because the marriage was solemnized in 1980, while this act came into effect in 2005, and it does not have retrospective effect. Finally, the court of law held that the main intention of the act was to protect women from domestic violence, so the judgment was given in favour of the litigant. (2) Bibi parwanakhatoon vs. State of bihar,(2017) In this case, the wife died by being set on fire by her husband and her in-laws due to dowry demands. The suit was filed by the wife's family members against the husband and in-laws. According to the circumstances of the case, the High Court ruled in favour of the husband and in-laws. Again, the victim's sister-in-law appealed to the Supreme Court. Can “Neither it be proven, based on circumstantial evidence, that the Appellants had any common intention with the deceased’s spouse in the commission of the crime.formerly resided in a separate village.” Furthermore, it is abundantly obvious from the documented evidence.” (3) Inder raj malik vs. Sunitha  Malik(1986) Here, the wife has been ill-treated by her husband and mothers-in-law during festival days. They ordered the appellant to bring more and more money and items as dowry, and they tortured her especially during festivals. They demanded that she sell her property. The victims' relatives then filed a petition, and the court decided that, according to Section 4 of the Dowry Prohibition Act, 1961, and Section 498A of the IPC, the respondent is held guilty.

Amendments:

The Protection of Women from Domestic Violence Act was enforced by the parliament on October 26, 2006. Later, it was introduced by the parliament in the year 2022 but it remains as a bill. So, there have been no amendments to this act.

Statistical Analysis :

In India, 32% of married women are victims of domestic violence (sexual abuse 6%, verbal abuse, emotional abuse 14%) by their husbands during their lifetime. West Bengal state reported the highest number of cases of cruelty against women by their husbands in 2021, according to the NCB.

Future Implications:

There should be implications and formulations in the Domestic Violence Act of 2005. Even though we have stringent punishments, domestic violence is happening in society. We need to amend certain provisions in the DV Act of 2005. The punishments should be more stringent. There are many unreported cases; therefore, there should be a committee/commission to scrutinize the rural areas, because most domestic violence cases are reported in rural areas compared to urban areas.

CONCLUSION& COMMENTS:

I think this act has been working well in both rural and urban areas. When compared to urban areas, it must be formulated better in the rural areas. The remedies available to women, like monetary, compensatory, custody, should be implemented properly. The duties of the protection officers were not adequate; in fact, they are working really hard. The service providers' duty was very good. But the provisions of this act have been misused by some women in society, so I would like to determine if there are real victims or not. Some of the women are seeking revenge on their husbands by using the provisions of this act.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. bare act published  by the commercials law publishers (INDIA) pvt.ltd
    2. Crimes against women and children.
    3. Editors: Asha Shukla
    4. Jaya phooka
    5. Publications serials publications Pvt ltd.newdelhi ( India)
    6. 2015
    7. Law relating to women
  2. Online Articles / Sources Referred:
    1. https://blog.ipleaders.in/the-protection-of-women-from-domestic-violence-act-2005/
    2. https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf
    3. https://thelawcommunicants.com/domestic-violence-in-the-uk-usa-russia/v
    4. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10403108/#:~:text=In%20India%2C%2032%25%20of%20ever,%2C%20and%20sexual%20(6%25)
  1. Cases Referred:
  • rinamukharjee&Ors.v.state of westbengal&Anr.AIR 2009(NOC)2841 (cal)
  • Rakesh vs rajnesh @Manto,2011(4) WLC (Raj) 21
  • Rajesh kumarvs.safurabai&ors.AIR2009(NOC)813(chh.)
(4) oliver Menezes v.Seritatheresemathias (2021)
  • AbhijitBhikasethAuti vs. state of maharastra & Anr.AIR 2009 (NOC) 808 (bom.)
  • d. bhanot vs. savithabhanot ,(2012):
  • rajeshkumar&others vs.The state of up,2017.
(8) Bibi parwana khatoon vs. State of bihar,(2017)
  • inder raj malikvs.sunita malik(1986)
Statutes Referred :
    1. Domestic Violence Act,2005.
    2. Domestic Violence rules,2006.
    3. Code of Criminal procedure,1973.
    4. Indian Penal Code,1860.
[1]AIR 2009(NOC)2841 (cal)[1] [2] 2011(4) WLC (Raj) 21 [3] AIR 2009(NOC)813(chh.)[3] [4]https://indiankanoon.org/doc/207919/ [5]AIR 2009 (NOC) 808 (bom.)[5] **Content:** **Author-Choppali Venkata Kalyani, Dr. B.R. Ambedkar College of Law, Andhra University** ### **INTRODUCTION:** Simply, this act is called (DV) Domestic violence. It is not a social issue; doubtlessly, it considered as a violation of fundamental rights. Here, Right to life and personal liberty, ,Right to speech and expression of the Indian Constitution are infringed. This act has 37 sections; it came into force on 26 October 2006. From Ancient days, it has existed in society. Women from every social background, disregarding of their religion, caste, or class, are victims of domestic violence. Most people think that it was not there in the society, but it is invisible. Mostly victims are coming from villages when compared to cities, a tiny of cases are reported. Married women face this kind of violence more than normal women. Lack of education and poverty are the main causes. In India, 30% of people are facing this Issue .The Vienna Accord of 1994 and Beijing Declaration of 1995 have suggested. When a woman is experienced to cruelty by her husband or relatives, it is considered an illegal/unlawful act. In order to protect women from domestic violence in society, the United Nations recommended the Committee on Convention and Elimination of all forms of Discrimination Against Women (CEDAW) suggested the act. It is responsibility to every state to safeguard female from this act. Then government introduced this act. This act provides remedies, medical facilities, shelter homes, and protection to the victims. It appoints service providers and protection officers to take care of the petitioners. It is a civil law. sections 18,19,20,21,22,23 speaks about remedies. ***Keywords(Minimum 5)*:** Domestic Violence Women Fundamental rights Physical abuse Remedies Husband cruelty Human Rights ### **Meaning of Domestic violence:** When a woman is experienced to cruelty by her husband or relatives of her husband, it is called as domestic violence. It refers when one mate tries to take control of the other spouse, telling them what to wear, how to wear it, and where to go. It is also called as ‘intimate partner violence.’ It is a forcibly action that happens inside the home can apply to women, mothers, daughters, women those who are in living relationships, and those in long-standing relationships with sex workers. ### **Definition of Domestic violence:** **(a)Section** 3 **of the Domestic violence Act, 2005 defines as follows-** Section 3 of DV speaks about it forms: - PHYSICAL ABUSE: Any act which is done by a defendant against petitioner which must cause bodily pain, harm, endanger the life of the aggrieved person /likely to do it includes assault, criminal intimidation, criminal force. - SEXUAL ABUSE: If anything done by a respondent against the petitioner which insults the character of women or violates the dignity of a woman it comes under sexual abuse. - VERBAL ABUSEAND EMOTIONAL ABUSE: If any action done by the respondent /humiliates the woman and repeatedly he spoke about not to having a male child, if he creating any threat against petitioner /any person whom the petitioner is intrested. - ECONOMICAL ABUSE: Destitution of all or economic, financial to which the aggrieved person is entitled. Throwing away the household effects any property whether it is movable /immovable, shares, fixed deposits which are belongs to the aggrieved person. Banning to continued access to facilities which are available to the aggrieved person which includes the shared house hold. 2. **Historical Background / Evolution:** In ancient days there is no separate act, remedies, legislations it is considered as a criminal law in previous days there is a relief in Indian Penal Code 1860 Section 498A speaks about cruelty by husband, it is considered as a civil law. 3. **Comparison with other Countries :** It is a universal problem faced by all over the world regardless their caste, creed, religion etc. The UN conducted a survey and revealed that it exists in 71 countries. It is a common problem in the United States, with one in four women and one in nine men meet domestic violence with their spouses. The US government has enacted the Violence Against Women Act (VAWA) for the protection of women from this social Evil .In the UK, two million adults experienced per year. They have also implemented laws for protection. The main causes of this are poverty, lack of education, and lack of understanding between partners. **Causes :** The main causes of DV are lack of education, poverty, misunderstandings between the spouses, societal attitude towards gender roles, mental health issues, substance abuse, lack of stringent punishments, cultural and social factors, dowry, alcoholism, historical causes, low IQ, etc. 4. **Forms :** **Section 3 of DV** speaks about it forms: - PHYSICAL ABUSE: Any act which is done by a defendant against petitioner which must cause bodily pain, harm, endanger the life of the aggrieved person /likely to do it includes assault, criminal intimidation, criminal force. - SEXUAL ABUSE: If anything done by a respondent against the petitioner which insults the character of women or violates the dignity of a woman it comes under sexual abuse. - VERBAL ABUSEAND EMOTIONAL ABUSE: If any action done by the respondent /humiliates the woman and repeatedly he spoke about not to having a male child, if he creating any threat against petitioner /any person whom the petitioner is intrested. - ECONOMICAL ABUSE: Destitution of all or economic, financial to which the aggrieved person is entitled. Throwing away the household effects any property whether it is movable /immovable, shares, fixed deposits which are belongs to the aggrieved person. Banning to continued access to facilities which are available to the aggrieved person which includes the shared house hold. 5. **Legal Provisions and interpretations:** According to section 5 of the this act the aggrieved person can file a suit to claim which type of remedies are available to her like compensatory orders, monetary reliefs , protection orders, custody orders, residence orders. **Section 18 protection order:** If the court is satisfied that domestic violence has taken place, then the forum issues the protection order in favour of the aggrieved person. The magistrate gives a warning to the respondent that they are banned from certain actions: (a) performing any type of domestic violence, (b) assisting in acts of domestic violence, (c) the respondent does not have a chance to enter the victims home, (d) the respondent should not communicate with the petitioner, (e) the respondent should not separate the property, bank lockers, or cheques that belong to the aggrieved person, and (f) the respondent should not cause any harm to the petitioners relatives .**Case law: Smt.Rinamukharjee&Ors.v.state of West Bengal &Anr.AIR 2009(NOC)2841 (cal)[\[1\]](#_ftn1)** **Section19 Residence orders:**The magistrate can grant a residence order in favour of the aggrieved person. (a) stop the respondent from depriving the property which belongs to both. (b) The court commanded respondent to remove himself from the shared household. (c) The court directed the respondent should not enter the premise[\[2\]](#_ftn2)s of the victim’s home or any relatives of the victim. Not only this, the court imposes additional directions prohibiting certain actions against the petitioner as mentioned in the above section. **Case law:Rakesh vs Rajnesh @Manto,2011(4) WLC (Raj) 21** ***Section*** **20 Monetary reliefs:** The court may directed the respondent to pay monetary relief to meet the expenses which are occurred due to the act of domestic violence by the respondent, He should pay the compensation in the following cases: - if the petitioner lost their employment because of the domestic violence caused by the respondent, the replier should pay the expenses, - The petitioner should pay the medical expenses, - The loss happened because of the petitioner, - The respondent should pay the maintenance according to the section 12 of CRPC. - The monetary relief granted by the court it should be sufficient, equitable and reasonable. - The payments should pay by monthly basis, lumpsum, yearly basis. - The respondent should pay the expenses /maintenances under sub section(1). - If the respondent failed to pay the monetary relief which was granted by the court then the forum, ordered the employer of the replier and the salary was given to the aggrieved person/magistrate. **Case law:Rajesh kumarvs.safurabai&ors.AIR2009(NOC)813(chh.)[\[3\]](#_ftn3)** **Section** **21 Custody orders:** The court provides the custody order for the child. If the respondent requests the magistrate during the hearing, then the magistrate may pass the order for visitation with the children. If such meet is dangerous to the children or petitioner, the forum can refuse such visits at any time. **Case law:oliver Menezes v.Seritatheresemathias (2021)** **Section** **22. Compensation orders:** Furthermore the compensation order should be granted by the court application being made by the petitioner , the respondent should pay compensation, damages and injuries which are caused by the respondent. 23. *Power to grant interim and ex parte orders.—(1) “In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.* *(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent”.[**\[4\]**](#_ftn4)* What is said in Section 23? If the court is satisfied that the application being made under Section 12 is proper, then the court can pass the interim order/ex parte order. If the court is satisfied that an act of domestic violence has really been done, then the court can pass the ex parte order/interim order against the respondent. **Case law: Abhijit Bhikaseth Auti vs. state of maharastra&Anr.AIR 2009 (NOC) 808 (bom.)[\[5\]](#_ftn5)** - **Essentials :** There should be control over the other spouse. (2) It includes a pattern of abusive Behaviour over the spouse by the respondent. (3) The respondent tries to gain power over the other spouse in a domestic relationship. (4) Both spouses should be in a domestic relationship; what type of requirements are included in section 2(f) of the DV Act, 2005. ### **Case Laws :** **(1)V.D. Bhanot vs. Savitha bhanot ,(2012):** In the above case, they got married in the year 1980. The wife ran off from her marital home. The respondent filed a suit under Section 12 of the DV Act. The magistrate granted interim relief to the replier, and the forum passed protection orders under Section 18. Again, the husband filed a suit to remove his wife from his quarters. The court room said that she has to reside on the 2nd floor while she is living on the 1st floor. The opinion of the bench did not satisfy the respondent. Therefore, she went for an appeal in the High Court, but the application was denied by the Sessions Court because the marriage was solemnized in 1980, while this act came into effect in 2005, and it does not have retrospective effect. Finally, the court of law held that the main intention of the act was to protect women from domestic violence, so the judgment was given in favour of the litigant. **(2) Bibi parwanakhatoon vs. State of bihar,(2017)** In this case, the wife died by being set on fire by her husband and her in-laws due to dowry demands. The suit was filed by the wife’s family members against the husband and in-laws. According to the circumstances of the case, the High Court ruled in favour of the husband and in-laws. Again, the victim’s sister-in-law appealed to the Supreme Court. Can *“Neither it be proven, based on circumstantial evidence, that the Appellants had any common intention with the deceased’s spouse in the commission of the crime.formerly resided in a separate village.” Furthermore, it is abundantly obvious from the documented evidence.”* **(3) Inder raj malik vs. Sunitha Malik(1986)** Here, the wife has been ill-treated by her husband and mothers-in-law during festival days. They ordered the appellant to bring more and more money and items as dowry, and they tortured her especially during festivals. They demanded that she sell her property. The victims’ relatives then filed a petition, and the court decided that, according to Section 4 of the Dowry Prohibition Act, 1961, and Section 498A of the IPC, the respondent is held guilty. ### **Amendments:** The Protection of Women from Domestic Violence Act was enforced by the parliament on October 26, 2006. Later, it was introduced by the parliament in the year 2022 but it remains as a bill. So, there have been no amendments to this act. ### **Statistical Analysis :** In India, 32% of married women are victims of domestic violence (sexual abuse 6%, verbal abuse, emotional abuse 14%) by their husbands during their lifetime. West Bengal state reported the highest number of cases of cruelty against women by their husbands in 2021, according to the NCB**.** ### **Future Implications:** There should be implications and formulations in the Domestic Violence Act of 2005. Even though we have stringent punishments, domestic violence is happening in society. We need to amend certain provisions in the DV Act of 2005. The punishments should be more stringent. There are many unreported cases; therefore, there should be a committee/commission to scrutinize the rural areas, because most domestic violence cases are reported in rural areas compared to urban areas. ### **CONCLUSION& COMMENTS:** I think this act has been working well in both rural and urban areas. When compared to urban areas, it must be formulated better in the rural areas. The remedies available to women, like monetary, compensatory, custody, should be implemented properly. The duties of the protection officers were not adequate; in fact, they are working really hard. The service providers’ duty was very good. But the provisions of this act have been misused by some women in society, so I would like to determine if there are real victims or not. Some of the women are seeking revenge on their husbands by using the provisions of this act. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. bare act published by the commercials law publishers (INDIA) pvt.ltd 2. Crimes against women and children. 3. Editors: Asha Shukla 4. Jaya phooka 5. Publications serials publications Pvt ltd.newdelhi ( India) 6. 2015 7. Law relating to women 2. **Online Articles / Sources Referred:** 1. 2. [https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection\_of\_women\_from\_domestic\_violence\_act%2C\_2005.pdf](https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf) 3. 4. 3. **Cases Referred:** - rinamukharjee&Ors.v.state of westbengal&Anr.AIR 2009(NOC)2841 (cal) - Rakesh vs rajnesh @Manto,2011(4) WLC (Raj) 21 - Rajesh kumarvs.safurabai&ors.AIR2009(NOC)813(chh.) (4) oliver Menezes v.Seritatheresemathias (2021) - AbhijitBhikasethAuti vs. state of maharastra & Anr.AIR 2009 (NOC) 808 (bom.) - d. bhanot vs. savithabhanot ,(2012): - rajeshkumar&others vs.The state of up,2017. (8) Bibi parwana khatoon vs. State of bihar,(2017) - inder raj malikvs.sunita malik(1986) **Statutes Referred :** 1. 2005. Domestic Violence Act,2005. 2006. Domestic Violence rules,2006. 2007. Code of Criminal procedure,1973. 2008. Indian Penal Code,1860. [\[1\]](#_ftnref1)AIR 2009(NOC)2841 (cal)\[1\] [\[2\]](#_ftnref2) 2011(4) WLC (Raj) 21 [\[3\]](#_ftnref3) AIR 2009(NOC)813(chh.)\[3\] [*\[4\]*](#_ftnref4)*https://indiankanoon.org/doc/207919/* [\[5\]](#_ftnref5)AIR 2009 (NOC) 808 (bom.)\[5\] **Categories:** Articles --- ### [CRIMINOLOGY: MEANING, DEFINITION, PROVISION, PRINCIPLES AND IMPORTANT CASES](https://lawfoyer.in/criminology-meaning-definition-provision-principles-and-important-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Hiteishi Sharma, Smt. KG Shah Law School/SNDT University

INTRODUCTION

The field of Criminology primarily deals with understanding the characteristics, causes, and consequences of criminal behaviour, as well as the creation, assessment and evaluation of criminal justice policies and systems. Criminology and criminal justice are related fields that share some commonalities, but they have distinct focuses and approaches. Criminology primarily involves studying the underlying factors that contribute to crime, whereas criminal justice is more concerned with the systems and processes that address crime. Criminology involves developing theories to explain crime and its causes; criminal justice applies these theories into practice. Keywords (Minimum 5): Crime, legal maxims, Sections, Practice, Criminals, Reports, Victims,

Definition &Meaning

“Criminology is the analysis of the nature of crime, the perpetrators of crime, the causes of crime, the formulation of criminal laws and law enforcement and the ways that crime can be controlled[1]”

Nature

Different aspects often intertwine and complement each other in the pursuit of understanding crime and criminal behaviour:
  • Interdisciplinary: Criminology draws from various disciplines such as sociology, law, psychology, biology, economics, and anthropology, as each offers unique perspectives and insights into the complexities of crime and criminal behaviour.
  • Empirical: Empirical research is crucial in criminology, as it involves gathering real-world data and evidence to study criminal behaviour and the criminal justice system. This approach enables criminologists to identify patterns, test theories, and develop evidence-based policies and interventions.
  • Applied: Criminological research is often applied to real-world problems, aiming to improve public safety, inform criminal justice policies, and reduce recidivism.

Scope

Criminology is a complex and multifaceted field as it aims to understand the criminal behaviour its causes, and consequences. It also focuses on finding solutions to prevent and control crime. Here are three main areas mentioned below:
  • Causality of Crime: It involves examining the factors that contribute to criminal behaviour, such as biological, psychological, social, and environmental influences.
  • Penal System: Criminology looks after the functions of the criminal justice system, encompassing aspects of law enforcement, courts, and correctional facilities. It includes understanding the effectiveness of various policies and practices, such as probation and rehabilitation programs. Their goal is to improve the penal system and to make it more efficient, fair, and humane.
  • Criminal Reform and Crime Prevention: A significant part of criminology is dedicated to finding ways to prevent crime and reform criminals. This includes developing and implementing crime prevention strategies, such as community policing, education, and awareness programs.
  • Importance of criminology
  • Diminish criminality: "A disease known is half cured[2]". Criminology assesses the mindsets of criminals to understand the reasons behind their actions, and various factors that influence them. By understanding the reasons behind criminal behaviour, criminologists can develop effective strategies to potentially deter individuals from engaging in criminal activities, and appropriately allocate resource for crime control.
  • Reforms of criminals: Criminology indeed plays a significant role in developing effective rehabilitation programs for individuals who have committed crimes. Criminologist design tailored treatment plans that focus on reformation and rehabilitation. This ultimately contributes to reducing recidivism rates and helps to reintegrate criminals back in society and lead law abiding lives.
  • Reduction in crime: Studying crime is a crucial aspect of understanding its underlying factors and contributing elements. By analysing these causes, criminologists can aid policy makers develop more effective crime reduction policies and initiatives that address the root cause of crime, ultimately promoting a safer society.
  • Enhancing the Criminal Justice System: By examining various components of the system, like law enforcement, courts, prisons, rehabilitation programs, etc. criminologists help identify areas of improvement, develop efficient and fair methods, and promote fairness, fostering public trust and ensuring justice is both served and perceived as fair.
  • Criminological Theories
  • Demonic Perspective
Also known as the "Demonic Possession Theory", this was the very first theory of criminology, and was the only theory till the 17th century. People believed that crime was caused, not as a result of one's free will, but by supernatural forces, such as demonic possession. Extreme measures (torture/death) were carried out, in public, in the belief it would erase any trace of demonic influence, and re-align the community with God. A well-known case that involves demonic possession as a potential explanation for crime is the infamous case of the "Devil's Disciple" - Albert Fish was a notorious American serial killer, who admitted to committing heinous crimes such as child kidnapping, sexual assault, homicide, and cannibalism. He felt that he was controlled by demons, which led to his appalling behaviour
  • Classical Theory (Cesare Beccaria, 1764)
This hypothesis proposes that people endeavour to enhance their personal well-being, and reduce discomfort. They would abstain from engaging in criminal activities solely if the punishment was prompt, definite and stringent. For example, if the punishment for stealing a vehicle is severe enough, a potential thief would most likely not steal it. But if the punishment is perceived as too lenient, the individual might be more inclined to commit theft.
  • Positivist Theory (Cesare Lombroso, 1876)
Lombroso contended that minds of criminal are formed by heredity, and these individuals could be identified by physical characteristics and imperfection, i.e., people committed crimes because they were so called "genetic throwbacks" (this  is similar to racial profiling, which currently is present in the media and entertainment, wherein people of a certain skin colour are generally shown as criminals or "the bad guys").
  • Anomie Theory and Strain Theory (Merton, Rosenfeld & Messner, 1938)
The Anomie Theory suggests that crime occurs due to the nation's heightened emphasis on the economic aspects, as opposed to other values and principles. This hypothesis is supported by studies that demonstrated a correlation between lower crime rates in communities which prioritized other ideals, such as family, education and religion. Offenders are driven by financial achievements and cultural aspirations (which they could not achieve through conventional, legal means), and, at the same time, look legitimate. On the other hand, the Strain theory is quite the opposite - it suggests that people commit crimes due to their inability to achieve their objectives, but they are not driven by cultural aspirations and financial prosperity - they resort to crime as a last means in response to the strain being experienced at that time. For example, to provide for their family, or funds for medical treatment, etc. Indian movies are replete with scripts wherein a child commits theft (of food/money/medicine) to provide for his dear ones (Strain Theory), and later is motivated for monetary success (Anomie Theory)
  • Differential Association (Sutherland and Cressey, 1939)
This theory proposes that criminal behaviour is mainly passed on through personal communication and interactions between people. This theory is related to organized crime, seen with mobs, mafia and gangs. For example, children associating with other delinquent children tend to have a higher chance of adopting delinquent behaviour themselves, as they learn from such actions. The environment in which children are nurtured also influences criminality.
  • White Collar Crime (Sutherland, 1939)
Sutherland formally defined white-collar crimes as “a crime of deceit committed by a person of high social status and respectability in the course of his occupation.” White collar crime also encompasses offenses perpetrated by corporations and other legal entities also. Examples include fraud, money laundering and embezzlement.
  • Deterrence Theory (Stafford & Warr, 1968)
This theory is similar to classical theory, but the deterrent here is that offenders don't want to do with the punishment. There exist two different categories of Deterrence - Specific Deterrence is: when you commit a crime, you are punished, so you don’t repeat (for e.g., you are caught speeding, and are penalized. So, you avoid speeding the next time) General Deterrence is: when someone else commits a crime, that someone is punished, so you don’t commit that crime (for e.g., someone else is caught speeding and penalized; you observe this and eye your speedometer to ensure you are within the speed limit)
  • Broken Windows Theory (Wilson and Kelling, 1982)
This theory aims to explain the reasons why certain urban zones and residential districts experience an increase in criminal activities. The phrase "broken windows" symbolizes disarray in neighbourhoods, suggesting that minor disruptions and impolite behaviour within a community can result in more severe criminal activities in the future. According to this theory, when a window pane in a building is broken and remains unfixed for long duration of time, it signals that no one cares about the area, and does not discourage others from breaking more windows. Going further, it indicates that there is no one around, and encourages theft, and can also attract disreputable people. And so, the house spirals into decline. The theory suggests that if communities and law enforcement agencies focus on fixing broken windows, cleaning up litter, and addressing other signs of disorder, to deter disreputable people from coming in, it can create a sense of pride and safety among residents.
  • Collective Efficacy (Sampson, Raudenbush & Earls, 1997)
This theory is a form of informal social control, suggesting social cohesion and trust within a community would reduce crime - Crime would be higher in areas where there was low residential stability (for e.g., tenants living on rent, for short durations), vis-a-vis residents staying in the neighbourhood for long periods of time, and bonding together. This bonding translates into the willingness of neighbours to intervene in problematic situations, look out for one another, reporting suspicious activities and maintain a sense of order and safety. Routine Activities Theory (Cohen & Felson, 1979) This theory is based on the premise that a combination of three circumstances instigate criminal activity – a motivated perpetrator, a susceptible target and absence of competent guardianship. As the name says, Routine Activities Theory focuses on our routine. For example, if one routinely goes for a morning walk, this (routine) would increase his chances of being a suitable target. If the husband and wife both go to their daily jobs, this could be leveraged by an offender to commit a house theft. So, in this latter example, the house would be a prime target, while the absence of an anti-theft system would be the lack of capable guardianship. All that the intruder requires, is motivation!
  • Rational Choice Theory (Cornish & Clarke, 1986)
This theory considers people to be rational beings, and offenders take a rational decision, based on previous experience, reliable information, first hand surveillance, and weigh out pros and cons in deciding whether they want to engage in crime, and exactly what type of crime they want to engage in. This theory differs from classical theory, in that they make rational decisions based on facts, and weighing pros and cons vis-a-vis being deterred from offending because the  punishment is swift, certain and severe. For example, Rational Choice Theory, when applied to a bank heist, demonstrates the strategic and calculated approach of criminals, assessing various factors such as the potential rewards, risks involved, chances of success, and potential consequences.
  • Modern Evolutionary Theory (Ellish & Walsh, 1997)
According to this theory, certain advantageous traits and behaviour that enhance an individual's chances of survival and reproduction can evolve over generations. This may increase the likelihood of success in criminal activities, as these traits might provide a survival advantage in certain environments.
  • Radical Criminology (Schwendinger, 1970)
Based on Marxist idea, this theory states that laws are established by the influential individuals to serve their own advantage, by suppressing the general population, resulting in crime being caused due to the large difference in wealth and power.

Legal Provisions

  • The Indian Juvenile Justice (Care and Protection of Children) Act, 2015 The law emphasizes care, protection, and rehabilitation, treating juveniles differently from adults. It provides support like counselling, education, vocational training, and establishes separate Juvenile Justice Boards and Child Welfare Committees for handling juvenile cases. The aim is to rehabilitate and reintegrate them into society, fostering their potential as productive citizens.
  • CRPC Section 360 allows for probation in cases where an offense is committed by a person under the age of 21 years or a woman, and the offense is not punishable with life imprisonment or death penalty. Additionally, if there are no specific provisions for convictions, the court may grant probation for a maximum period of 3 years. This provision aims to provide a more lenient punishment and rehabilitation opportunity for those who fall under these categories.
  • CRPC Section 27 indeed states that if a person below the age of 16 years has committed an offense not punishable with life imprisonment or death penalty, they should be awarded a lenient punishment. This consideration is based on factors such as the individual's character, their history, and the circumstances that led to the commission of the offense. The purpose of this provision is to ensure that young offenders are treated with a certain degree of leniency and rehabilitation, taking into account their age, immaturity, and potential for reform.
  • The Law Commission Reports highlights the importance of addressing crime victims with empathy and understanding. The report suggests that the government should adopt the principle of offering aid and support to these victims using public funds. By doing so, the state can demonstrate its commitment to the welfare of those affected by criminal activities, fostering a more compassionate and just society
  • The Justice Malimath Committee Report focuses on crime victim concerns and criminal justice reforms. A key recommendation is to change the compensation system for victims. Earlier, under Section 357[3],compensation was given only upon successful conviction. The Committee suggests that victims should be compensated if known, regardless of offender identification, acquittal, or other outcomes, to support victims emotionally and make the justice system more empathetic.

Notable White-Collar Cases

  • Rana Ayyub v. Enforcement Directorate
CITATION : (2023) 4 SCC 357 Facts: Rana Ayyub initiated, and ran three crowdfunding campaigns, from 2020 to 2021. The defence argued that since money laundering took place under the jurisdiction of Mumbai, the Special Court, Ghaziabad could not exercise extraterritorial jurisdiction. Judgement: The Supreme Court determined that there is no territorial jurisdiction, implying that even if another court acknowledges a scheduled offense, the Ghaziabad Court should have exercised extraterritorial jurisdiction.
  • Balaji v. Karthik Desari
CITATION: (2023 SCC Online SC 645 Facts: From 2014 to 2015, accusations emerged about potential collusion amongst the officials within the Transport Department. These claims involved several prominent government personnel, including Senthil Balaji, a State Government Minister, who was alleged to have received unlawful benefits for facilitating appointments in the Public Transport Corporation. The petitioner's argument was that the identification of proceeds of crime served as a fundamental/jurisdictional prerequisite, and that the Enforcement Directorate could not  issue summons without same. Judgement: The Supreme Court dismissed the claim that the Enforcement Directorate's (ED) investigation lacked proper legal basis or jurisdiction, as they established that the funds involved were indeed connected to money laundering activities.

CONCLUSION & COMMENTS

To foster and maintain Criminology as a significant field of study and practice, collaborative efforts are essential to address gaps and issues. Key players like UGC, ICSSR, and existing institutions should work on establishing centres for excellence, involving government agencies in recruitment, and prioritizing criminology by the UGC and Ministry of Human Resource Development. Supporting organizations like the Indian Society of Criminology should lead initiatives, while separate fund allocation and standard syllabi development should be considered. This collective approach will strengthen Criminology's growth and relevance.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. Coleman & Clive Norris : Introducing Criminology,2000
  2. Online Articles / Sources Referred
    1. The Law Commission Reports
    2. The Justice Malimath Committee Report.
    3. https://www.scconline.com/blog/post/2024/01/08/10-important-white-collar-law-judgments-of-2023/
       3. Cases Referred
  • Rana Ayyub v. Enforcement Directorate
  • Balaji v. Karthik Desari
  1. Statutes Referred
    1. The Indian Juvenile Justice (Care and Protection of Children) Act, 2015
    2. Code of Criminal Procedure,1973.
[1] Coleman & Clive Norris : Introducing Criminology,2000 [2] Thomas Fuller [3] Code of Criminal Procedure, 1973 **Content:** **Author-Hiteishi Sharma, Smt. KG Shah Law School/SNDT University** ### **INTRODUCTION** The field of Criminology primarily deals with understanding the characteristics, causes, and consequences of criminal behaviour, as well as the creation, assessment and evaluation of criminal justice policies and systems. Criminology and criminal justice are related fields that share some commonalities, but they have distinct focuses and approaches. Criminology primarily involves studying the underlying factors that contribute to crime, whereas criminal justice is more concerned with the systems and processes that address crime. Criminology involves developing theories to explain crime and its causes; criminal justice applies these theories into practice. ***Keywords* *(Minimum 5)*:** Crime, legal maxims, Sections, Practice, Criminals, Reports, Victims, ### **Definition &Meaning** “*Criminology is the analysis of the nature of crime, the perpetrators of crime, the causes of crime, the formulation of criminal laws and law enforcement and the ways that crime can be controlled[**\[1\]**](#_ftn1)*” ### **Nature** Different aspects often intertwine and complement each other in the pursuit of understanding crime and criminal behaviour: - Interdisciplinary: Criminology draws from various disciplines such as sociology, law, psychology, biology, economics, and anthropology, as each offers unique perspectives and insights into the complexities of crime and criminal behaviour. - Empirical: Empirical research is crucial in criminology, as it involves gathering real-world data and evidence to study criminal behaviour and the criminal justice system. This approach enables criminologists to identify patterns, test theories, and develop evidence-based policies and interventions. - Applied: Criminological research is often applied to real-world problems, aiming to improve public safety, inform criminal justice policies, and reduce recidivism. ### **Scope** Criminology is a complex and multifaceted field as it aims to understand the criminal behaviour its causes, and consequences. It also focuses on finding solutions to prevent and control crime. Here are three main areas mentioned below: - **Causality of Crime**: It involves examining the factors that contribute to criminal behaviour, such as biological, psychological, social, and environmental influences. - **Penal System**: Criminology looks after the functions of the criminal justice system, encompassing aspects of law enforcement, courts, and correctional facilities. It includes understanding the effectiveness of various policies and practices, such as probation and rehabilitation programs. Their goal is to improve the penal system and to make it more efficient, fair, and humane. - **Criminal Reform and Crime Prevention**: A significant part of criminology is dedicated to finding ways to prevent crime and reform criminals. This includes developing and implementing crime prevention strategies, such as community policing, education, and awareness programs. - **Importance of criminology** - Diminish criminality: “*A disease known is half cured[**\[2\]**](#_ftn2)*“. Criminology assesses the mindsets of criminals to understand the reasons behind their actions, and various factors that influence them. By understanding the reasons behind criminal behaviour, criminologists can develop effective strategies to potentially deter individuals from engaging in criminal activities, and appropriately allocate resource for crime control. - Reforms of criminals: Criminology indeed plays a significant role in developing effective rehabilitation programs for individuals who have committed crimes. Criminologist design tailored treatment plans that focus on reformation and rehabilitation. This ultimately contributes to reducing recidivism rates and helps to reintegrate criminals back in society and lead law abiding lives. - Reduction in crime: Studying crime is a crucial aspect of understanding its underlying factors and contributing elements. By analysing these causes, criminologists can aid policy makers develop more effective crime reduction policies and initiatives that address the root cause of crime, ultimately promoting a safer society. - Enhancing the Criminal Justice System: By examining various components of the system, like law enforcement, courts, prisons, rehabilitation programs, etc. criminologists help identify areas of improvement, develop efficient and fair methods, and promote fairness, fostering public trust and ensuring justice is both served and perceived as fair. - **Criminological Theories** - ***Demonic Perspective*** Also known as the “Demonic Possession Theory”, this was the very first theory of criminology, and was the only theory till the 17th century. People believed that crime was caused, not as a result of one’s free will, but by supernatural forces, such as demonic possession. Extreme measures (torture/death) were carried out, in public, in the belief it would erase any trace of demonic influence, and re-align the community with God. A well-known case that involves demonic possession as a potential explanation for crime is the infamous case of the “Devil’s Disciple” – Albert Fish was a notorious American serial killer, who admitted to committing heinous crimes such as child kidnapping, sexual assault, homicide, and cannibalism. He felt that he was controlled by demons, which led to his appalling behaviour - ***Classical Theory (Cesare Beccaria, 1764)*** This hypothesis proposes that people endeavour to enhance their personal well-being, and reduce discomfort. They would abstain from engaging in criminal activities solely if the punishment was prompt, definite and stringent. For example, if the punishment for stealing a vehicle is severe enough, a potential thief would most likely not steal it. But if the punishment is perceived as too lenient, the individual might be more inclined to commit theft. - ***Positivist Theory (Cesare Lombroso, 1876)*** Lombroso contended that minds of criminal are formed by heredity, and these individuals could be identified by physical characteristics and imperfection, i.e., people committed crimes because they were so called “genetic throwbacks” (this is similar to racial profiling, which currently is present in the media and entertainment, wherein people of a certain skin colour are generally shown as criminals or “the bad guys”). - ***Anomie Theory and Strain Theory (Merton, Rosenfeld & Messner, 1938)*** The Anomie Theory suggests that crime occurs due to the nation’s heightened emphasis on the economic aspects, as opposed to other values and principles. This hypothesis is supported by studies that demonstrated a correlation between lower crime rates in communities which prioritized other ideals, such as family, education and religion. Offenders are driven by financial achievements and cultural aspirations (which they could not achieve through conventional, legal means), and, at the same time, look legitimate. On the other hand, the Strain theory is quite the opposite – it suggests that people commit crimes due to their inability to achieve their objectives, but they are not driven by cultural aspirations and financial prosperity – they resort to crime as a last means in response to the strain being experienced at that time. For example, to provide for their family, or funds for medical treatment, etc. Indian movies are replete with scripts wherein a child commits theft (of food/money/medicine) to provide for his dear ones (Strain Theory), and later is motivated for monetary success (Anomie Theory) - ***Differential Association (Sutherland and Cressey, 1939)*** This theory proposes that criminal behaviour is mainly passed on through personal communication and interactions between people. This theory is related to organized crime, seen with mobs, mafia and gangs. For example, children associating with other delinquent children tend to have a higher chance of adopting delinquent behaviour themselves, as they learn from such actions. The environment in which children are nurtured also influences criminality. - ***White Collar Crime (Sutherland, 1939)*** Sutherland formally defined white-collar crimes as “*a crime of deceit committed by a person of high social status and respectability in the course of his occupation.*” White collar crime also encompasses offenses perpetrated by corporations and other legal entities also. Examples include fraud, money laundering and embezzlement. - ***Deterrence Theory (Stafford & Warr, 1968)*** This theory is similar to classical theory, but the deterrent here is that offenders don’t want to do with the punishment. There exist two different categories of Deterrence – *Specific Deterrence* is: when you commit a crime, you are punished, so you don’t repeat (for e.g., you are caught speeding, and are penalized. So, you avoid speeding the next time) *General Deterrence* is: when someone else commits a crime, that someone is punished, so you don’t commit that crime (for e.g., someone else is caught speeding and penalized; you observe this and eye your speedometer to ensure you are within the speed limit) - ***Broken Windows Theory (Wilson and Kelling, 1982)*** This theory aims to explain the reasons why certain urban zones and residential districts experience an increase in criminal activities. The phrase “broken windows” symbolizes disarray in neighbourhoods, suggesting that minor disruptions and impolite behaviour within a community can result in more severe criminal activities in the future. According to this theory, when a window pane in a building is broken and remains unfixed for long duration of time, it signals that no one cares about the area, and does not discourage others from breaking more windows. Going further, it indicates that there is no one around, and encourages theft, and can also attract disreputable people. And so, the house spirals into decline. The theory suggests that if communities and law enforcement agencies focus on fixing broken windows, cleaning up litter, and addressing other signs of disorder, to deter disreputable people from coming in, it can create a sense of pride and safety among residents. - ***Collective Efficacy (Sampson, Raudenbush & Earls, 1997)*** This theory is a form of informal social control, suggesting social cohesion and trust within a community would reduce crime – Crime would be higher in areas where there was low residential stability (for e.g., tenants living on rent, for short durations), vis-a-vis residents staying in the neighbourhood for long periods of time, and bonding together. This bonding translates into the willingness of neighbours to intervene in problematic situations, look out for one another, reporting suspicious activities and maintain a sense of order and safety. ***Routine Activities Theory (Cohen & Felson, 1979)*** This theory is based on the premise that a combination of three circumstances instigate criminal activity – a motivated perpetrator, a susceptible target and absence of competent guardianship. As the name says, Routine Activities Theory focuses on our routine. For example, if one routinely goes for a morning walk, this (routine) would increase his chances of being a suitable target. If the husband and wife both go to their daily jobs, this could be leveraged by an offender to commit a house theft. So, in this latter example, the house would be a prime target, while the absence of an anti-theft system would be the lack of capable guardianship. All that the intruder requires, is motivation! - ***Rational Choice Theory (Cornish & Clarke, 1986)*** This theory considers people to be rational beings, and offenders take a rational decision, based on previous experience, reliable information, first hand surveillance, and weigh out pros and cons in deciding whether they want to engage in crime, and exactly what type of crime they want to engage in. This theory differs from classical theory, in that they make rational decisions based on facts, and weighing pros and cons vis-a-vis being deterred from offending because the punishment is swift, certain and severe. For example, Rational Choice Theory, when applied to a bank heist, demonstrates the strategic and calculated approach of criminals, assessing various factors such as the potential rewards, risks involved, chances of success, and potential consequences. - ***Modern Evolutionary Theory (Ellish & Walsh, 1997)*** According to this theory, certain advantageous traits and behaviour that enhance an individual’s chances of survival and reproduction can evolve over generations. This may increase the likelihood of success in criminal activities, as these traits might provide a survival advantage in certain environments. - ***Radical Criminology (Schwendinger, 1970)*** Based on Marxist idea, this theory states that laws are established by the influential individuals to serve their own advantage, by suppressing the general population, resulting in crime being caused due to the large difference in wealth and power. ### **Legal Provisions** - **The Indian Juvenile Justice (Care and Protection of Children) Act, 2015** The law emphasizes care, protection, and rehabilitation, treating juveniles differently from adults. It provides support like counselling, education, vocational training, and establishes separate Juvenile Justice Boards and Child Welfare Committees for handling juvenile cases. The aim is to rehabilitate and reintegrate them into society, fostering their potential as productive citizens. - **CRPC Section 360** allows for probation in cases where an offense is committed by a person under the age of 21 years or a woman, and the offense is not punishable with life imprisonment or death penalty. Additionally, if there are no specific provisions for convictions, the court may grant probation for a maximum period of 3 years. This provision aims to provide a more lenient punishment and rehabilitation opportunity for those who fall under these categories. - **CRPC Section 27** indeed states that if a person below the age of 16 years has committed an offense not punishable with life imprisonment or death penalty, they should be awarded a lenient punishment. This consideration is based on factors such as the individual’s character, their history, and the circumstances that led to the commission of the offense. The purpose of this provision is to ensure that young offenders are treated with a certain degree of leniency and rehabilitation, taking into account their age, immaturity, and potential for reform. - **The Law Commission** **Reports** highlights the importance of addressing crime victims with empathy and understanding. The report suggests that the government should adopt the principle of offering aid and support to these victims using public funds. By doing so, the state can demonstrate its commitment to the welfare of those affected by criminal activities, fostering a more compassionate and just society - **The Justice Malimath Committee Report** focuses on crime victim concerns and criminal justice reforms. A key recommendation is to change the compensation system for victims. Earlier, under **Section 357[\[3\]](#_ftn3)**,compensation was given only upon successful conviction. The Committee suggests that victims should be compensated if known, regardless of offender identification, acquittal, or other outcomes, to support victims emotionally and make the justice system more empathetic. ### **Notable White-Collar Cases** - **Rana Ayyub v. Enforcement Directorate** **CITATION : (2023) 4 SCC 357** **Facts**: Rana Ayyub initiated, and ran three crowdfunding campaigns, from 2020 to 2021. The defence argued that since money laundering took place under the jurisdiction of Mumbai, the Special Court, Ghaziabad could not exercise extraterritorial jurisdiction. **Judgement**: The Supreme Court determined that there is no territorial jurisdiction, implying that even if another court acknowledges a scheduled offense, the Ghaziabad Court should have exercised extraterritorial jurisdiction. - **Balaji v. Karthik Desari** **CITATION: (2023 SCC Online SC 645** **Facts**: From 2014 to 2015, accusations emerged about potential collusion amongst the officials within the Transport Department. These claims involved several prominent government personnel, including Senthil Balaji, a State Government Minister, who was alleged to have received unlawful benefits for facilitating appointments in the Public Transport Corporation. The petitioner’s argument was that the identification of proceeds of crime served as a fundamental/jurisdictional prerequisite, and that the Enforcement Directorate could not issue summons without same. **Judgement**: The Supreme Court dismissed the claim that the Enforcement Directorate’s (ED) investigation lacked proper legal basis or jurisdiction, as they established that the funds involved were indeed connected to money laundering activities. ### **CONCLUSION & COMMENTS** To foster and maintain Criminology as a significant field of study and practice, collaborative efforts are essential to address gaps and issues. Key players like UGC, ICSSR, and existing institutions should work on establishing centres for excellence, involving government agencies in recruitment, and prioritizing criminology by the UGC and Ministry of Human Resource Development. Supporting organizations like the Indian Society of Criminology should lead initiatives, while separate fund allocation and standard syllabi development should be considered. This collective approach will strengthen Criminology’s growth and relevance. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. Coleman & Clive Norris : Introducing Criminology,2000 2. **Online Articles / Sources Referred** 1. The Law Commission Reports 2. The Justice Malimath Committee Report. 3. https://www.scconline.com/blog/post/2024/01/08/10-important-white-collar-law-judgments-of-2023/ **3. Cases Referred** - Rana Ayyub v. Enforcement Directorate - Balaji v. Karthik Desari 4. **Statutes Referred** 1. The Indian Juvenile Justice (Care and Protection of Children) Act, 2015 2. Code of Criminal Procedure,1973. [\[1\]](#_ftnref1) Coleman & Clive Norris : Introducing Criminology,2000 [\[2\]](#_ftnref2) Thomas Fuller [\[3\]](#_ftnref3) Code of Criminal Procedure, 1973 **Categories:** Articles --- ### [Cruelty by husband and relatives, Section 498A](https://lawfoyer.in/cruelty-by-husband-and-relatives-section-498a/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Madhu Sri Chepuri, Sri Padmavati Mahila Viswa Vidyalayam

INTRODUCTION

  • Chapter XXA was inserted in the IPC in 1983 by the Criminal Law 2nd Amendment Act,1983.
  • It consists of only 1section that is 498A which deals with cruelty to a wife by the husband or his relatives and it is an offence under IPC.
  • It aims to prevent the torture to a married women and punish the persons responsible to that. It is an offence which is related to marriage.
  • Before this section was inserted it was covered by the general provisions of the IPC but due to increase in violence against women especially young,newly married women , bride burning it was felt that these provisions are not adequate to deal with the atrocities against women.
  • In order to deal with cruelty against married women 498A was introduced.
Keywords (Minimum 5):

Meaning, Definition & Explanation

  • Cruelty-
It is not possible for the Legislature to enumerate all acts amounting to cruelty or to put cruel conduct . The term cruelty is deliberately been left undefined by the statute. Cruelty includes both mental and physical cruelty and its effects may depend upon a number of factors.
  • The word relatives has not been defined. But the case laws reveals that generally, the parents, sisters,brothers of the husband have been prosecuted under 498A.
  • In Anil Kumar vs state of Punjab (1997) , it has been held that a person who is not a relative, but a friend, who is close to the family. [1]
  • According to explanation (a) , any wilful conduct which is likely to drive the woman to commit suicide or to Cause any devious hurt or mental or physical health of the woman is cruelty.
  • Explanation ( b), harassment of a woman, with a view to coerce her or her relatives, to meet unlawful demand for any dowry is also cruelty.

Historical Background / Evolution 

  • As day by day the violence has been increasing against the women and to tackle this problem,the parliament felt that changes were required at 3 levels.
  1. To define the substantive offence of cruelty to married women
  2. To introduce procedures which make investigation in case of women death as mandatory.
  3. To bring changes in the Evidence Act ,which will make the prosecution easier.
Accordingly, 498A and 304B were added to the IPC, creating separate offences in respect of acts of cruelty to a woman by a husband and relatives and dowry death respectively. In CrPC section 174 was amended and in IEA,1872 Section 113B was added. These 3 changes in the IPC,CrPC and Indian Evidence Act are an improvement to the earlier laws and are important to some extent to safeguard the rights of women.

Types / Kinds (if any)

The Types of cruelty may be: 1. Mental cruelty
  1. Physical cruelty

Essentials / Elements / Pre-requisites

  • For applying 498A, It’s essential that she should be a married woman.
  • That woman must have experienced either brutality or harassment.
  • Such brutal harassment should have been demonstrated by either the spouse or the husband’s family, if not both.

Nature of the offence

  • Conginable
  • Non bailable
  • Non compoundable.

Complaint under 498A

  • A woman who's been the victim of any form of cruelty can make a complaint firstly by filing an FIR .
  • Below is a description of the trial process in detail:
  • One must first file a police complaint or FIR (Initial Information Report) as the first step. The relevant provision of the Criminal Procedure Code is Section 154. An FIR initiates the legal process.
  • After the First Information Report (FIR) is filed, the Investigation Officer will conduct an investigation and submit a report.
  • The officer concludes the investigation and makes preparations for it after conducting all the necessary processes, including looking into the background of the case, gathering evidence, questioning potential witnesses, and so on.
  • The police then present the charge sheet before the magistrate. All of the criminal accusations against the defendant are included in the charge sheet.
  • After the parties have had an opportunity to present their cases and arguments before the Magistrate, the Magistrate will next define the charges and schedule a date for the trial.
  • Section 241 of the Code of Criminal Procedure, 1973 addresses the plea of guilty. When the charges have been framed, the accused may enter a plea of guilty. It is the judge’s job to ensure that the plea of guilty was entered voluntarily.
  • Conviction is at the discretion of the court.After the allegations have been laid out and the defendant has entered a plea of not guilty, the Prosecution presents its case in court, bearing the first (and usually greater) burden of proof.
  • Evidence can be presented orally or in writing. The magistrate can issue a witness summons to anyone and require that individual to bring in any evidence.
  • When prosecution witnesses are presented in court, the accused or his or her attorney will have the opportunity to cross-examine them.
  • At this point, the accused may submit any supporting evidence to the courts. He or she is being given the chance to bolster their argument.
  • However, the accused is not compelled to produce evidence because it is the prosecution, or the claimed victim, who has the burden of proof.
  • If the defence presents witnesses, the prosecution will conduct cross-examinations.
  • When all evidence has been given from both sides, the judge or court will reach a verdict.
  • The judgement is almost at hand, and the last stage is oral arguments. Final oral arguments are presented to the judge by both sides (the prosecution first, then the defence).
  • The court then renders a final decision after considering all of the arguments presented and the evidence presented in the case. The court then explains its decision to either exonerate or convict the defendant.
  • The ultimate verdict might result in either an acquittal or a conviction depending on whether or not the accused is found guilty.
  • If the defendant is found guilty, a hearing will be convened to determine the length of his or her sentence in the event of a conviction.
  • If the situation permits it, one may file an appeal with a higher court. The case can be taken all the way to the Supreme Court if the case is lost in the Sessions Court and the High Court.

Case Laws / Precedents / Overrulings 

Sushil Kumar Sharma vs. Union of India and others (2005) Facts
  • Under Article 32 of the Indian Constitution, a petition was filed seeking a declaration that Section 498A of the Indian Penal Code, 1860 is unconstitutional and ultra vires, or, failing that, for the establishment of guidelines to prevent the victimisation of innocent people by those with malicious intent.
  • A further petition asked that whenever the court reaches the verdict and the claims made regarding the conduct of an offence under Section 498A IPC were unsubstantiated, rigorous action should be taken against the individual who made the charges.
Arguments
  • The petitioner claimed that there was no prosecution but rather persecution in these situations.
  • Several judgements were relied upon, in which the rise in the number of fraudulent lawsuits was highlighted.
  • It was argued that the accusers carry more responsibility than the accused. Courts’ compassion in cases of alleged dowry torture is being abused by those who seek to profit from it.
Judgement
  • The Supreme Court of India did not find any merit in the argument that Section 498A does not have any validity in either the law or the Constitution. The court held that there have been numerous occasions where it was shown that the complaints were not genuine and had been made with ulterior motives.
  • Even if found not guilty at trial, the accused may nevertheless feel shame for their ordeal. Sometimes bad press from the media makes things even worse. Thus, the court must inquire as to what corrective steps might be implemented to stop the misuse of the provision.
  • The provision is valid but does not give anyone the authority to utilise it for retaliatory or harassment purposes.
  • Therefore, lawmakers may need to figure out how to effectively punish people who file baseless complaints or claims.
  • Until then, the problem must be handled within the current framework by the Courts.
Neelu Chopra & Anr. vs. Bharati (2009)
  • Appellants Neelu Chopra and Krishan Sarup Chopra are a married couple, and respondent Bharti was their daughter-in-law.
  • Bharati claims that her life as a married woman to Rajesh (appellants’ son) was rough due to his and his parents’ unreasonable expectations for doubt and misbehaviour.
  • Accordingly, Bharati sued her husband and in-laws in 1993 for violating Indian Penal Code Section 498A.
  • Since Rajesh passed away in 2006, his heirs are the sole parties involved in this dispute.
  • The Court noted that the complaint lacked specificity about which defendants were charged with which offences and what specific roles each appellant had in the commission of the alleged crimes.
  • The accusations were more specifically levelled at Rajesh, but he was no longer alive to defend himself.
  • It would be an abuse of process to continue prosecuting Rajesh’s elderly parents on the basis of a generalised complaint that did not specify the specific actions that gave rise to the charges.
  • As a result, the complaint was dismissed

Misuse of 498A

  • A large number of women have taken advantage of the enormous authority afforded to them by the implementation of Section 498A to harass their husbands and in-laws and to gain unfair benefits for themselves.
  • Women seeking vengeance against their spouses use Section 498A to threaten and blackmail their relatives.
  • The Hon’ble Supreme Court of India has recognised the increasing trend of males being falsely accused of violating Section 498A, calling it a “phenomenon” and “social ill.”
  • As the Supreme Court put it in the case of Sushil Kumar Sharma v. Union of India and Ors (2005), “Legal Terrorism” describes the abuse of Section 498A. In addition to the husband, innocent third parties like elderly parents or distant relatives are often unfairly implicated and made to undergo enormous hardship as a result of the criminal justice system’s misuse of Section 498A.

Future Implications

Proposals for Reform
  • Law commission of India has offered a couple of major proposals relating to 1. Bigamy
  1. Adultery
3.498A of IPC

CONCLUSION & COMMENTS

  • Violence against women at home is not only a violation of women’s human rights but also a crime under Indian law, which was created to protect the rights of all its citizens.
  • India has accepted several international conventions that recognise women’s unequal status and include special provisions for women to remedy this disparity, including the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW).
  • Domestic violence is prohibited in all contexts, including marriage and the family, by the Dowry Prohibition Act (DPA) and the Protection of Women from Domestic Violence Act (PWDA), Sections 498A and 304B of the IPC.
  • But this Section 498A’s exclusive remedy for females has become a contentious topic of discussion lately.
  • Without legislative action, this impasse will grow into a terrifying social menace.
  • For the sake of the public’s faith in the judicial system, this provision should be updated immediately.
  • Unfortunately, not all women who could benefit from this information or services will be aware of them, and even fewer will actually seek help for domestic violence.
  • Unscrupulous women will utilise this rule as another tool in their arsenal. Everyone who relies on a man will suffer if he is expelled from his own home due to charges of domestic violence or cruelty, whether or not those allegations are accurate.
  • The entire family should not be punished even if the accused man is abusive. It is a complex and significant concern that an innocent man and his relatives are often being subjected to unjust legal persecution through this provision.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. PSA Pillai's Criminal Law- Book Referred.
  2. Online Articles / Sources Referred
    1. Indian khanoon
    2. Ipleaders
    3. Casemine
  3. Cases Referred
    1. Anil Kumar vs state of Punjab (1997)
    2. Sushil Kumar Sharma v. Union of India and Ors (2005)
    3. Neelu Chopra & Anr. vs. Bharati (2009)
  1. Statutes Referred
    1. IPC,1860
    2. The Indian Evidence Act, 1872
    3. CrPC
[1] https://www.casemine.com/judgement/in/5a65cba84a93263320776c4d **Content:** **Author-Madhu Sri Chepuri, Sri Padmavati Mahila Viswa Vidyalayam** ### **INTRODUCTION** - Chapter XXA was inserted in the IPC in 1983 by the Criminal Law 2nd Amendment Act,1983. - It consists of only 1section that is 498A which deals with cruelty to a wife by the husband or his relatives and it is an offence under IPC. - It aims to prevent the torture to a married women and punish the persons responsible to that. It is an offence which is related to marriage. - Before this section was inserted it was covered by the general provisions of the IPC but due to increase in violence against women especially young,newly married women , bride burning it was felt that these provisions are not adequate to deal with the atrocities against women. - In order to deal with cruelty against married women 498A was introduced. ***Keywords* *(Minimum 5)*:** ### **Meaning, Definition & Explanation** - **Cruelty-** It is not possible for the Legislature to enumerate all acts amounting to cruelty or to put cruel conduct . The term cruelty is deliberately been left undefined by the statute. Cruelty includes both mental and physical cruelty and its effects may depend upon a number of factors. - The word relatives has not been defined. But the case laws reveals that generally, the parents, sisters,brothers of the husband have been prosecuted under 498A. - In *Anil Kumar vs state of Punjab (1997) , it has been held that a person who is not a relative, but a friend, who is close to the family.* [\[1\]](#_ftn1) - According to explanation (a) , any wilful conduct which is likely to drive the woman to commit suicide or to Cause any devious hurt or mental or physical health of the woman is cruelty. - Explanation ( b), harassment of a woman, with a view to coerce her or her relatives, to meet unlawful demand for any dowry is also cruelty. ### **Historical Background / Evolution** - As day by day the violence has been increasing against the women and to tackle this problem,the parliament felt that changes were required at 3 levels. 1. To define the substantive offence of cruelty to married women 2. To introduce procedures which make investigation in case of women death as mandatory. 3. To bring changes in the Evidence Act ,which will make the prosecution easier. Accordingly, 498A and 304B were added to the IPC, creating separate offences in respect of acts of cruelty to a woman by a husband and relatives and dowry death respectively. In CrPC section 174 was amended and in IEA,1872 Section 113B was added. These 3 changes in the IPC,CrPC and Indian Evidence Act are an improvement to the earlier laws and are important to some extent to safeguard the rights of women. ### **Types / Kinds (if any)** The Types of cruelty may be: 1. Mental cruelty 2. Physical cruelty ### **Essentials / Elements / Pre-requisites** - For applying 498A, It’s essential that she should be a married woman. - That woman must have experienced either brutality or harassment. - Such brutal harassment should have been demonstrated by either the spouse or the husband’s family, if not both. ### **Nature of the offence** - Conginable - Non bailable - Non compoundable. ### **Complaint under 498A** - A woman who’s been the victim of any form of cruelty can make a complaint firstly by filing an FIR . - Below is a description of the trial process in detail: - One must first file a police complaint or FIR (Initial Information Report) as the first step. The relevant provision of the Criminal Procedure Code is Section 154. An FIR initiates the legal process. - After the First Information Report (FIR) is filed, the Investigation Officer will conduct an investigation and submit a report. - The officer concludes the investigation and makes preparations for it after conducting all the necessary processes, including looking into the background of the case, gathering evidence, questioning potential witnesses, and so on. - The police then present the charge sheet before the magistrate. All of the criminal accusations against the defendant are included in the charge sheet. - After the parties have had an opportunity to present their cases and arguments before the Magistrate, the Magistrate will next define the charges and schedule a date for the trial. - Section 241 of the Code of Criminal Procedure, 1973 addresses the plea of guilty. When the charges have been framed, the accused may enter a plea of guilty. It is the judge’s job to ensure that the plea of guilty was entered voluntarily. - Conviction is at the discretion of the court.After the allegations have been laid out and the defendant has entered a plea of not guilty, the Prosecution presents its case in court, bearing the first (and usually greater) burden of proof. - Evidence can be presented orally or in writing. The magistrate can issue a witness summons to anyone and require that individual to bring in any evidence. - When prosecution witnesses are presented in court, the accused or his or her attorney will have the opportunity to cross-examine them. - At this point, the accused may submit any supporting evidence to the courts. He or she is being given the chance to bolster their argument. - However, the accused is not compelled to produce evidence because it is the prosecution, or the claimed victim, who has the burden of proof. - If the defence presents witnesses, the prosecution will conduct cross-examinations. - When all evidence has been given from both sides, the judge or court will reach a verdict. - The judgement is almost at hand, and the last stage is oral arguments. Final oral arguments are presented to the judge by both sides (the prosecution first, then the defence). - The court then renders a final decision after considering all of the arguments presented and the evidence presented in the case. The court then explains its decision to either exonerate or convict the defendant. - The ultimate verdict might result in either an acquittal or a conviction depending on whether or not the accused is found guilty. - If the defendant is found guilty, a hearing will be convened to determine the length of his or her sentence in the event of a conviction. - If the situation permits it, one may file an appeal with a higher court. The case can be taken all the way to the Supreme Court if the case is lost in the Sessions Court and the High Court. ### **Case Laws / Precedents / Overrulings** **Sushil Kumar Sharma vs. Union of India and others (2005)** Facts - Under Article 32 of the Indian Constitution, a petition was filed seeking a declaration that Section 498A of the Indian Penal Code, 1860 is unconstitutional and ultra vires, or, failing that, for the establishment of guidelines to prevent the victimisation of innocent people by those with malicious intent. - A further petition asked that whenever the court reaches the verdict and the claims made regarding the conduct of an offence under Section 498A IPC were unsubstantiated, rigorous action should be taken against the individual who made the charges. Arguments - The petitioner claimed that there was no prosecution but rather persecution in these situations. - Several judgements were relied upon, in which the rise in the number of fraudulent lawsuits was highlighted. - It was argued that the accusers carry more responsibility than the accused. Courts’ compassion in cases of alleged dowry torture is being abused by those who seek to profit from it. Judgement - The Supreme Court of India did not find any merit in the argument that Section 498A does not have any validity in either the law or the Constitution. The court held that there have been numerous occasions where it was shown that the complaints were not genuine and had been made with ulterior motives. - Even if found not guilty at trial, the accused may nevertheless feel shame for their ordeal. Sometimes bad press from the media makes things even worse. Thus, the court must inquire as to what corrective steps might be implemented to stop the misuse of the provision. - The provision is valid but does not give anyone the authority to utilise it for retaliatory or harassment purposes. - Therefore, lawmakers may need to figure out how to effectively punish people who file baseless complaints or claims. - Until then, the problem must be handled within the current framework by the Courts. **Neelu Chopra & Anr. vs. Bharati (2009)** - Appellants Neelu Chopra and Krishan Sarup Chopra are a married couple, and respondent Bharti was their daughter-in-law. - Bharati claims that her life as a married woman to Rajesh (appellants’ son) was rough due to his and his parents’ unreasonable expectations for doubt and misbehaviour. - Accordingly, Bharati sued her husband and in-laws in 1993 for violating Indian Penal Code Section 498A. - Since Rajesh passed away in 2006, his heirs are the sole parties involved in this dispute. - The Court noted that the complaint lacked specificity about which defendants were charged with which offences and what specific roles each appellant had in the commission of the alleged crimes. - The accusations were more specifically levelled at Rajesh, but he was no longer alive to defend himself. - It would be an abuse of process to continue prosecuting Rajesh’s elderly parents on the basis of a generalised complaint that did not specify the specific actions that gave rise to the charges. - As a result, the complaint was dismissed ### **Misuse of 498A** - A large number of women have taken advantage of the enormous authority afforded to them by the implementation of Section 498A to harass their husbands and in-laws and to gain unfair benefits for themselves. - Women seeking vengeance against their spouses use Section 498A to threaten and blackmail their relatives. - The Hon’ble Supreme Court of India has recognised the increasing trend of males being falsely accused of violating Section 498A, calling it a “phenomenon” and “social ill.” - As the Supreme Court put it in the case of *Sushil Kumar Sharma v. Union of India and Ors (2005),* “Legal Terrorism” describes the abuse of Section 498A. In addition to the husband, innocent third parties like elderly parents or distant relatives are often unfairly implicated and made to undergo enormous hardship as a result of the criminal justice system’s misuse of Section 498A. ### **Future Implications** **Proposals for Reform** - Law commission of India has offered a couple of major proposals relating to 1. Bigamy 2. Adultery 3.498A of IPC ### **CONCLUSION & COMMENTS** - Violence against women at home is not only a violation of women’s human rights but also a crime under Indian law, which was created to protect the rights of all its citizens. - India has accepted several international conventions that recognise women’s unequal status and include special provisions for women to remedy this disparity, including the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW). - Domestic violence is prohibited in all contexts, including marriage and the family, by the Dowry Prohibition Act (DPA) and the Protection of Women from Domestic Violence Act (PWDA), Sections 498A and 304B of the IPC. - But this Section 498A’s exclusive remedy for females has become a contentious topic of discussion lately. - Without legislative action, this impasse will grow into a terrifying social menace. - For the sake of the public’s faith in the judicial system, this provision should be updated immediately. - Unfortunately, not all women who could benefit from this information or services will be aware of them, and even fewer will actually seek help for domestic violence. - Unscrupulous women will utilise this rule as another tool in their arsenal. Everyone who relies on a man will suffer if he is expelled from his own home due to charges of domestic violence or cruelty, whether or not those allegations are accurate. - The entire family should not be punished even if the accused man is abusive. It is a complex and significant concern that an innocent man and his relatives are often being subjected to unjust legal persecution through this provision. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. PSA Pillai’s Criminal Law- Book Referred. 2. **Online Articles / Sources Referred** 1. Indian khanoon 2. Ipleaders 3. Casemine 3. **Cases Referred** 1. *Anil Kumar vs state of Punjab (1997)* 2. *Sushil Kumar Sharma v. Union of India and Ors (2005)* 3. *Neelu Chopra & Anr. vs. Bharati (2009)* 4. **Statutes Referred** 1. IPC,1860 2. The Indian Evidence Act, 1872 3. CrPC [\[1\]](#_ftnref1) [https://www.casemine.com/judgement/in/5a65cba84a93263320776c4d](http://https:/www.casemine.com/judgement/in/5a65cba84a93263320776c4d) **Categories:** Articles --- ### [Salient Features of the Indian Constitution: Important Provisions and Cases](https://lawfoyer.in/salient-features-of-the-indian-constitution-important-provisions-and-cases/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Kamaljeet Kaur, University Five Year Law College, University of Rajasthan

INTRODUCTION

"The Indian Constitution is a testament to the values of justice, liberty, equality, and fraternity, enshrining them as the guiding principles of our nation's governance." After a long haul of efforts and back breaking work,  the constitution of india was enacted finally on 26th January 1950, after a long period of 2year 11months and 18days, WE THE PEOPLE OF INDIA  laid down the fundamental framework for the functioning of the government, gaven the rights and duties to ourselves, directive principles of state policy (guidelines for state to  work in a manner). From the the Preamble to the accurate balance of powers between the branches of government, the Indian Constitution assures the commitment of justice, equality, and the rule of law. In its important provisions, the Indian Constitution delineates the salient features that form the intristic example for all other countries.The salient features of the Indian Constitution encompass a robust framework designed to uphold the values of justice, liberty, equality, and fraternity, and also provides ways for the resolution of disputes and the protection of individual liberties. Indian Constitution is centrally focused on important provisions, which provides the powers and responsibilities of the executive, legislative, and judicial branches of government. These provisions of the supreme law of india  establish a system of checks and balances, ensuring that no single entity may misuse and overuse their powers. The fundamental rights, guaranteeing every citizen certain liberties and protections against arbitrary state action. Additionally it lays down directive principles of state policy, and the objectives of  socioeconomic justice and the welfare of the people from which the constitution has been driven. In the que there is also directive principles of state policy that give guidelines to state authorities to not to rule on people but to rule for people. Keywords :Preamble,  Equality, Justice, Liberty, Fraternity

PREAMBLE

“We, the people…adopt enact and give to ourselves this Constitution” The Preamble of the Indian Constitution serves as a beacon of hope, indroductory statement, prologue. It serves as a outlining of the fundamental principles and objectives, also gives light to the provisions upon which the Constitution is based i.e. justice, liberty, equality, fraternity and brotherhood as core values to be upheld by the nation for all its citizens and thus declares india to be a sovereign, socialist, secular, and democratic republic. It abridges the ideals, aspiration, thinking and values of Constitution framers and Indian people, and thus  sought to uphold in the governance of the country. It has been interpreted by the judiciary in its various landmark judgements  ensuring that (Article 13) any amendments that violate its spirit and the basic structure of the constitution are deemed to be  unconstitutional and can be separated apart. It sets the tone and a base for the entire constitutional framework as a introduction to a chapter and serves as a milestone for assessing the constitutionality of laws and actions by the government. Thus preamble is also known as the ‘BACKBONE’ of the constitution due to all these reasons. The Indian Constitution's Preamble was amended in the one and only historic case of Kesavananda Bharati v. State of Kerala (1973), in which the Supreme Court upheld the concept of the "basic structure" of the document. That is to say while the Parliament can amend the Constitution it cannot alter any of its fundamental components or framework. In reaction to this lawsuit the 42nd Amendment Act of 1976 was passed which altered the Preamble for the first time in its history to include the terms socialist and secular in order to more accurately reflect the ideals of the Indian Constitution. .

FUNDAMENTAL RIGHTS

Citizens fundamental rights are the primary and most significant element of the Indian constitution. No one can imagine a state without the rights given to citizens otherwise it can be called as monarchy or autocracy. Fundamental rights assure citizens a safe a secure life. It  guarantees certain freedoms as a fellow human being and that the exercise of those freedoms is upon oneself with certain restrictions. It can be read in Part III of the Constitution. At the time of enforcement of the constitution there were a total of  7 FUNDAMENTAL RIGHTS given to the citizens, but after the 44th Constitutional Amendment  Article 31 (Right to Property) was removed as a fundamental right and only remained as a constitutional right or legal right  that can’t be enforced. Thereafter only 6 Fundamental Rights remained within the hands of the citizens. Those are :-
  • Right to Equality (Article 14-18)
  • Right to Freedom (Article 19-22)
  • Right against Exploitation (Article 23-24)
  • Right to Freedom of Religion (Article 25-28)
  • Cultural and Educational Rights (Article 29-30)
  • Right to Constitutional Remedies (Article 32)
The right to constitutional remedies is regarded as the fundamental component of the Indian constitution since it provides citizens with writs (Habeas Corpus Mandamus Certiorari Quo Warranto and Prohibition) as a means of redress in the event that their rights are infringed upon by an oppressive government. Along with protecting citizens rights over the government it also serves as a barrier against arbitrary state action. The judiciary which constitutes the fourth pillar of democracy has been instrumental in both interpreting the rights accurately over time and in broadening their scope through a number of significant rulings over the years. Thus, it protect and strengthen individual rights in India. Thus the legal or constitutional rights are not enforceable in court unlike the fundamental rights which are as in the case of the right to property after it is formed as a fundamental right (Article 31) to legal right (Article 300A). Within the historic Maneka Gandhi v. Union of India (1978) the supreme court established the notion of due process of law broadened the definition of the right to life and personal liberty and in a different case of A. K. Gopalan versus. The State of Madras Supreme Court (1950) outlined the parameters of Article 21 i. e. Right to Life and Personal Liberty and decided that the protection provided by Article 21 is only applicable to preventive measures taken by the executive branch and does not cover preventive measures taken by the legislature. October 2023: Following the Shafin Jahan v. constitutional bench case a five-judge panel declared that there is no such thing as a civil union and that there is no fundamental right to marry under the constitution. KK. m. Article 21s protection of the right to marry as one pleases extends to Asokan cases.

DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP)

In Dr. B. R. Ambedkar’s words, the directive principles are defined as a “new aspect”  of the Indian Constitution. The Directive Principles of State Policy are described in the Part IV of the Indian Constitution from article 36-51 that aim to direct the state and are guidelines in establishing a just society by promoting socioeconomic justice.  DPSP’s  are  not enforceable by courts, these are only fundamentals to govern and serve as a moral obligations for the state in likewise as money will not be concentrated in the hands of a small number of people and to end the big difference between rich and poor, thus aims to establish just, fair and equitable society. They include provisions for equal distribution of wealth, ensuring equal pay for equal work, promoting educational and cultural interests, protecting the environment, and striving towards a welfare state. It emphasize the state's duty to work towards achieving social and economic equality and improving the quality of life of its citizens, protection of enivornment, thereby reflecting the commitment of the Indian Constitution to social justice and welfare.. The four new articles of Directive Principles of State Policy were added by the 42nd amendment act 1976 i.e. Article 39, Article 39 A, Article 43 A, Article 48 A. Supreme court in its landmark judgement of “Raj Narain Singh v. Chairman, Patna Administration Committee (1955)” highlighted the duty of the state to implement DPSP and emphasized that DPSP are not only written declarations but are fundamental to the governance of the country, and the state has a duty to strive towards their good governance.

FEDERAL STRUCTURE WITH UNITARY SPIRIT

As per K C Wheare, the Indian Constitution is "government in structure however unitary in soul" and "semi bureaucratic." The division of abilities between the public government and the states, which finds some kind of harmony among decentralization and solidarity, recognizes the country's variety and provincial goals while maintaining the country's respectability and solidarity, and advances helpful federalism, characterizes the administrative arrangement of government laid out by the Indian Constitution. The bureaucratic design permits the two legislatures to work autonomously inside their particular areas of ward while likewise participating on issues of public significance or intergovernmental issues through establishments, for example, the Between State Committee and the Zonal Chambers, which cultivate coordination and collaboration between the national government and the state legislatures. The Constitution's Seventh Timetable depicts the allotment of abilities between the Association, or focal government, and the states government. The Constitution's Seventh Schedule delineates the allocation of powers between the Union, or central government, and the states. Significant clauses pertaining to the federal system are i. Article 245, which gives the Union and the states legislative authority ii. Article 246 which addresses the division of state and union legislative powers and iii. Article 356 addresses the president's authority in the event that state constitutional machinery malfunctions. Three lists are also included in the Constitution: 1. Union List: It includes topics like foreign policy, military, and currency over which the Union government alone has legislative responsibility. 2. State List: This comprises topics like agriculture, public health, education, communication and law enforcement where state governments alone possess the power to enact laws. 3. Concurrent List: It contains topics like bankruptcy, succession, adoption, wills, criminal law intestacy and marriage that are subject to both federal and state legislation. The Apex Court in a landmark case of  State of West Bengal v. Union of India (1963), held that  the Union government was not at all permitted to compel states to perform these functions against their will where the case was that the state challenged the constitutionality of an act passed by the parliament and. The Harla v. State of Rajasthan (1951) ruling also dealt with the interpretation of the doctrine of repugnancy between federal and state laws. It stated that federal law would take precedence over state law if there was a disagreement on a topic covered by the Concurrent List.

PARLIAMENTARY SYSTEM

India got the  parliamentary system of government by the constitution of india from the Part V of the Constitution that trifurcates, the State into three equal constituents’ viz. Executive, Legislature and Judiciary. The parliamentary system  can be said as a relationship between the executive and legislative and other branches of government but in contrast to that is a Presidential form of democracy whereby the executive does not form part of, nor is appointed by, the parliamentary or legislative body. This system is based on the “British model of governance” which means that ministers get their legitimacy from Parliament as it is continuing from the colonization. The parliamentary system of india can be said as based on the Westminster model in which the President is considered as the head of the state (the first man of the country), while the real executive power is vested in the Council of Ministers headed by the Prime Minister. Prime Minister is appointed by the President after the Lok Sabha Elections and should be the head of the majority or coalition .
  • The Rajya Sabha represents the states and union territories, with members elected by the state legislative assemblies
  • while the Lok Sabha members are directly elected by the people of India.
The parliament consists of The president and the two houses: The Lok Sabha and Rajya Sabha. The proceedings in the Parliament begins from introducing a bill in either of the house and later on to passing it as an act. The bill goes through several stages, including introduction- discussion-consideration by a committee-voting. For becoming a bill to law it must be passed by both the houses. The Articles related to parliamentary proceedings are as follows:-
  • The Article 118 of Indian constitution says about powers of  each house of Parliament to make rules for regulating its procedure and conduct of business.
  • Article 105 pertains to the privileges and immunities granted to Members of Parliament (MPs) concerning their speech and voting within the Parliament.
The Supreme Court clarified the governors function in a parliamentary democracy in the Rameshwar Prasad v. case especially with regard to the establishment of the government. Union of India (2006) and further held that the Governor should exercise serious consideration keeping in mind democratic and constitutional principles when using his or her discretionary power to invite a party or coalition to form the government..

JUDICIAL REVIEW

During judicial review a judge will determine the constitutionality of a law or decision made by a public body. Under articles 13, 32 and 226 of the Indian Constitution the judiciary is granted the authority to review or analyze laws. Article 226 specifically indicates that a person can approach high courts on similar grounds even though Article 32 allows a person to petition the Supreme Court for any violation or infringement of their fundamental rights. In this way by keeping an eye and ensuring for the protection of citizens, the judiciary also serves as a watchdog over the legislative and executive branches of government preventing abuse of authority. That is the reason the judiciary is regarded as the protector of the Constitution it makes sure that laws and government actions comply with its provisions and do not violate any citizens fundamental rights. The judiciary retains the power of reversing or overturning the  law or government action if it is found to be unconstitutional. India adheres and follows to the Rule of Law and consequently the Indian Constitution is regarded as the supreme law of the nation. . The scope of judicial review in India is broad it encompasses both the substantive and procedural aspects of laws including executive actions policies administrative decisions and government actions. As a result courts have the authority to assess not only the legitimacy of legislative and executive decisions but also their reasonableness and equity. Additionally the constitution grants courts the authority to issue writs to enforce other legal rights including fundamental rights. The judiciary which has consistently demonstrated through numerous significant rulings that it is the third pillar of democracy has been essential in interpreting the Constitution and defending citizens rights and liberties. By doing so it has strengthened Indias legal system settled constitutional disputes and preserved the values of justice equality and the rule of law. The ruling made by the Supreme Court in Mohammed Ahmed Khan v. By giving Muslim women who had divorced the right to maintenance under Section 125 of the Code of Criminal Procedure independent of their personal laws Shah Bano Begum (1985) demonstrated the validity of judicial review. This ruling demonstrated the Courts dedication to judicial review in defending fundamental rights by upholding the principles of gender justice equality before the law and the Rule of Law. In a separate Vishaka v. Since sexual harassment of women in the workplace violates their fundamental rights under Articles 14 19 and 21 of the Constitution the Supreme Court of the State of Rajasthan (1997) established guidelines to prevent such harassment. The ruling highlighted how the Court can use judicial review to enforce fundamental rights and correct societal injustices. .

CONCLUSION

"A constitution is not a mere lawyer's document, it is a vehicle of life, and its spirit is always the spirit of the age."                                                                            - by Dr. B.R. Ambedkar We the people of India provided a sense of unity according to the preamble of the Indian Constitution. The constitution which  has been  furnished after a great efforts stands as a bedrock of democratic governance, embodying a series of salient features that define its essence and character, justice, and equality. It reflects the aspirations and values of a diverse by embodying  a robust framework. Numerous notable authors and figures have expressed that the Indian Constitution is a dynamic document that adapts to the evolving needs of society while preserving the core principles it contains. This is so because the judiciary is thought of as the democarcys third pillar.This can be determined by carefully examining its significant provisions and historic judicial pronouncements by the courts. The Constitution is a representation of the aspirations and goals of a diverse country aiming for advancement and prosperity not just a set of legal guidelines. Preamble sets out the ideals and objectives of the Constitution and as a introduction part to the constitution, serving as a guiding light for governance and interpretation of law
  • Fundamental Rights are absolute and ensure the protection of individual liberties and freedoms, while Directive Principles of State Policy guide the state in promoting social and economic justice and are of obligatory nature only.
  • The federal structure balances powers between the Union and states, fostering cooperative federalism and regional autonomy but in the sense of unity in some circumstances.
This is not all but there are many salient features discussed that serves as a roadmap for governance, guiding the state in its duty to serve the people and uphold their rights and freedoms. The  salient features of the Indian Constitution are of  progressive nature, developing nature with tine  aiming to foster a just and equitable society and reflects the aspirations and values of a diverse nation. However, it is important to continue evaluating and evolving these features to address emerging challenges, changing with the need of the time  and ensure the effective functioning of the Constitution in the ever-changing socio-political landscape of the country.

REFERENCES

**Content:** **Author-Kamaljeet Kaur, University Five Year Law College, University of Rajasthan** ### **INTRODUCTION** *“The Indian Constitution is a testament to the values of justice, liberty, equality, and fraternity, enshrining them as the guiding principles of our nation’s governance.”* After a long haul of efforts and back breaking work, the constitution of india was enacted finally on 26th January 1950, after a long period of 2year 11months and 18days, WE THE PEOPLE OF INDIA laid down the fundamental framework for the functioning of the government, gaven the rights and duties to ourselves, directive principles of state policy (guidelines for state to work in a manner). From the the Preamble to the accurate balance of powers between the branches of government, the Indian Constitution assures the commitment of justice, equality, and the rule of law. In its important provisions, the Indian Constitution delineates the salient features that form the intristic example for all other countries.The salient features of the Indian Constitution encompass a robust framework designed to uphold the values of justice, liberty, equality, and fraternity, and also provides ways for the resolution of disputes and the protection of individual liberties. Indian Constitution is centrally focused on important provisions, which provides the powers and responsibilities of the executive, legislative, and judicial branches of government. These provisions of the supreme law of india establish a system of checks and balances, ensuring that no single entity may misuse and overuse their powers. The fundamental rights, guaranteeing every citizen certain liberties and protections against arbitrary state action. Additionally it lays down directive principles of state policy, and the objectives of socioeconomic justice and the welfare of the people from which the constitution has been driven. In the que there is also directive principles of state policy that give guidelines to state authorities to not to rule on people but to rule for people. ***Keywords* :**Preamble, Equality, Justice, Liberty, Fraternity ### **PREAMBLE** **“*We, the people…adopt enact and give to ourselves this Constitution”*** The Preamble of the Indian Constitution serves as a beacon of hope, indroductory statement, prologue. It serves as a outlining of the fundamental principles and objectives, also gives light to the provisions upon which the Constitution is based i.e. justice, liberty, equality, fraternity and brotherhood as core values to be upheld by the nation for all its citizens and thus declares india to be a sovereign, socialist, secular, and democratic republic. It abridges the ideals, aspiration, thinking and values of Constitution framers and Indian people, and thus sought to uphold in the governance of the country. It has been interpreted by the judiciary in its various landmark judgements ensuring that (Article 13) any amendments that violate its spirit and the basic structure of the constitution are deemed to be unconstitutional and can be separated apart. It sets the tone and a base for the entire constitutional framework as a introduction to a chapter and serves as a milestone for assessing the constitutionality of laws and actions by the government. Thus preamble is also known as the ‘**BACKBONE’** of the constitution due to all these reasons. The Indian Constitution’s Preamble was amended in the one and only historic case of Kesavananda Bharati v. State of Kerala (1973), in which the Supreme Court upheld the concept of the “basic structure” of the document. That is to say while the Parliament can amend the Constitution it cannot alter any of its fundamental components or framework. In reaction to this lawsuit the 42nd Amendment Act of 1976 was passed which altered the Preamble for the first time in its history to include the terms socialist and secular in order to more accurately reflect the ideals of the Indian Constitution. . ### **FUNDAMENTAL RIGHTS** Citizens fundamental rights are the primary and most significant element of the Indian constitution. No one can imagine a state without the rights given to citizens otherwise it can be called as monarchy or autocracy. Fundamental rights assure citizens a safe a secure life. It guarantees certain freedoms as a fellow human being and that the exercise of those freedoms is upon oneself with certain restrictions. It can be read in Part III of the Constitution. At the time of enforcement of the constitution there were a total of **7 FUNDAMENTAL RIGHTS** given to the citizens, but after the 44th Constitutional Amendment Article 31 (Right to Property) was removed as a fundamental right and only remained as a constitutional right or legal right that can’t be enforced. Thereafter only 6 Fundamental Rights remained within the hands of the citizens. Those are :- - Right to Equality (Article 14-18) - Right to Freedom (Article 19-22) - Right against Exploitation (Article 23-24) - Right to Freedom of Religion (Article 25-28) - Cultural and Educational Rights (Article 29-30) - Right to Constitutional Remedies (Article 32) The right to constitutional remedies is regarded as the fundamental component of the Indian constitution since it provides citizens with writs (Habeas Corpus Mandamus Certiorari Quo Warranto and Prohibition) as a means of redress in the event that their rights are infringed upon by an oppressive government. Along with protecting citizens rights over the government it also serves as a barrier against arbitrary state action. The judiciary which constitutes the fourth pillar of democracy has been instrumental in both interpreting the rights accurately over time and in broadening their scope through a number of significant rulings over the years. Thus, it protect and strengthen individual rights in India. Thus the legal or constitutional rights are not enforceable in court unlike the fundamental rights which are as in the case of the right to property after it is formed as a fundamental right (Article 31) to legal right (Article 300A). Within the historic Maneka Gandhi v. Union of India (1978) the supreme court established the notion of due process of law broadened the definition of the right to life and personal liberty and in a different case of A. K. Gopalan versus. The State of Madras Supreme Court (1950) outlined the parameters of Article 21 i. e. Right to Life and Personal Liberty and decided that the protection provided by Article 21 is only applicable to preventive measures taken by the executive branch and does not cover preventive measures taken by the legislature. October 2023: Following the Shafin Jahan v. constitutional bench case a five-judge panel declared that there is no such thing as a civil union and that there is no fundamental right to marry under the constitution. KK. m. Article 21s protection of the right to marry as one pleases extends to Asokan cases. ### **DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP)** In Dr. B. R. Ambedkar’s words, the directive principles are defined as a *“new aspect”* of the Indian Constitution. The Directive Principles of State Policy are described in the Part IV of the Indian Constitution from article 36-51 that aim to direct the state and are guidelines in establishing a just society by promoting socioeconomic justice. DPSP’s are not enforceable by courts, these are only fundamentals to govern and serve as a moral obligations for the state in likewise as money will not be concentrated in the hands of a small number of people and to end the big difference between rich and poor, thus aims to establish just, fair and equitable society. They include provisions for equal distribution of wealth, ensuring equal pay for equal work, promoting educational and cultural interests, protecting the environment, and striving towards a welfare state. It emphasize the state’s duty to work towards achieving social and economic equality and improving the quality of life of its citizens, protection of enivornment, thereby reflecting the commitment of the Indian Constitution to social justice and welfare.. The four new articles of Directive Principles of State Policy were added by the 42nd amendment act 1976 i.e. Article 39, Article 39 A, Article 43 A, Article 48 A. Supreme court in its landmark judgement of “*Raj Narain Singh v. Chairman, Patna Administration Committee (1955)”* highlighted the duty of the state to implement DPSP and emphasized that DPSP are not only written declarations but are fundamental to the governance of the country, and the state has a duty to strive towards their good governance. ### **FEDERAL STRUCTURE WITH UNITARY SPIRIT** As per K C Wheare, the Indian Constitution is “government in structure however unitary in soul” and “semi bureaucratic.” The division of abilities between the public government and the states, which finds some kind of harmony among decentralization and solidarity, recognizes the country’s variety and provincial goals while maintaining the country’s respectability and solidarity, and advances helpful federalism, characterizes the administrative arrangement of government laid out by the Indian Constitution. The bureaucratic design permits the two legislatures to work autonomously inside their particular areas of ward while likewise participating on issues of public significance or intergovernmental issues through establishments, for example, the Between State Committee and the Zonal Chambers, which cultivate coordination and collaboration between the national government and the state legislatures. The Constitution’s Seventh Timetable depicts the allotment of abilities between the Association, or focal government, and the states government. The Constitution’s Seventh Schedule delineates the allocation of powers between the Union, or central government, and the states. Significant clauses pertaining to the federal system are i. Article 245, which gives the Union and the states legislative authority ii. Article 246 which addresses the division of state and union legislative powers and iii. Article 356 addresses the president’s authority in the event that state constitutional machinery malfunctions. Three lists are also included in the Constitution: 1\. Union List: It includes topics like foreign policy, military, and currency over which the Union government alone has legislative responsibility. 2\. State List: This comprises topics like agriculture, public health, education, communication and law enforcement where state governments alone possess the power to enact laws. 3\. Concurrent List: It contains topics like bankruptcy, succession, adoption, wills, criminal law intestacy and marriage that are subject to both federal and state legislation. The Apex Court in a landmark case of State of West Bengal v. Union of India (1963), held that the Union government was not at all permitted to compel states to perform these functions against their will where the case was that the state challenged the constitutionality of an act passed by the parliament and. The Harla v. State of Rajasthan (1951) ruling also dealt with the interpretation of the doctrine of repugnancy between federal and state laws. It stated that federal law would take precedence over state law if there was a disagreement on a topic covered by the Concurrent List. ### **PARLIAMENTARY SYSTEM** India got the parliamentary system of government by the constitution of india from the Part V of the Constitution that trifurcates, the State into three equal constituents’ viz. Executive, Legislature and Judiciary. The parliamentary system can be said as a relationship between the executive and legislative and other branches of government but in contrast to that is a Presidential form of democracy whereby the *executive does not form part of, nor is appointed by, the parliamentary or legislative body*. This system is based on the “***British model of governance*”** which means that **ministers get their legitimacy from Parliament as it is continuing from the colonization**. The parliamentary system of india can be said as based on the **Westminster model** in which the President is considered as the head of the state (the first man of the country), while the real executive power is vested in the Council of Ministers headed by the Prime Minister. Prime Minister is appointed by the President after the Lok Sabha Elections and should be the head of the majority or coalition . - The Rajya Sabha represents the states and union territories, with members elected by the state legislative assemblies - while the Lok Sabha members are directly elected by the people of India. The parliament consists of The president and the two houses: The Lok Sabha and Rajya Sabha. The proceedings in the Parliament begins from introducing a bill in either of the house and later on to passing it as an act. The bill goes through several stages, including introduction- discussion-consideration by a committee-voting. For becoming a bill to law it must be passed by both the houses. The Articles related to parliamentary proceedings are as follows:- - The **Article 118** of Indian constitution says about powers of each house of Parliament to make rules for regulating its procedure and conduct of business. - Article 105 pertains to the privileges and immunities granted to Members of Parliament (MPs) concerning their speech and voting within the Parliament. The Supreme Court clarified the governors function in a parliamentary democracy in the Rameshwar Prasad v. case especially with regard to the establishment of the government. Union of India (2006) and further held that the Governor should exercise serious consideration keeping in mind democratic and constitutional principles when using his or her discretionary power to invite a party or coalition to form the government.. ### **JUDICIAL REVIEW** During judicial review a judge will determine the constitutionality of a law or decision made by a public body. Under articles 13, 32 and 226 of the Indian Constitution the judiciary is granted the authority to review or analyze laws. Article 226 specifically indicates that a person can approach high courts on similar grounds even though Article 32 allows a person to petition the Supreme Court for any violation or infringement of their fundamental rights. In this way by keeping an eye and ensuring for the protection of citizens, the judiciary also serves as a watchdog over the legislative and executive branches of government preventing abuse of authority. That is the reason the judiciary is regarded as the protector of the Constitution it makes sure that laws and government actions comply with its provisions and do not violate any citizens fundamental rights. The judiciary retains the power of reversing or overturning the law or government action if it is found to be unconstitutional. India adheres and follows to the Rule of Law and consequently the Indian Constitution is regarded as the supreme law of the nation. . The scope of judicial review in India is broad it encompasses both the substantive and procedural aspects of laws including executive actions policies administrative decisions and government actions. As a result courts have the authority to assess not only the legitimacy of legislative and executive decisions but also their reasonableness and equity. Additionally the constitution grants courts the authority to issue writs to enforce other legal rights including fundamental rights. The judiciary which has consistently demonstrated through numerous significant rulings that it is the third pillar of democracy has been essential in interpreting the Constitution and defending citizens rights and liberties. By doing so it has strengthened Indias legal system settled constitutional disputes and preserved the values of justice equality and the rule of law. The ruling made by the Supreme Court in Mohammed Ahmed Khan v. By giving Muslim women who had divorced the right to maintenance under Section 125 of the Code of Criminal Procedure independent of their personal laws Shah Bano Begum (1985) demonstrated the validity of judicial review. This ruling demonstrated the Courts dedication to judicial review in defending fundamental rights by upholding the principles of gender justice equality before the law and the Rule of Law. In a separate Vishaka v. Since sexual harassment of women in the workplace violates their fundamental rights under Articles 14 19 and 21 of the Constitution the Supreme Court of the State of Rajasthan (1997) established guidelines to prevent such harassment. The ruling highlighted how the Court can use judicial review to enforce fundamental rights and correct societal injustices. . ### **CONCLUSION** *“A constitution is not a mere lawyer’s document, it is a vehicle of life, and its spirit is always the spirit of the age.”* *– by Dr. B.R. Ambedkar* We the people of India provided a sense of unity according to the preamble of the Indian Constitution. The constitution which has been furnished after a great efforts stands as a bedrock of democratic governance, embodying a series of salient features that define its essence and character, justice, and equality. It reflects the aspirations and values of a diverse by embodying a robust framework. Numerous notable authors and figures have expressed that the Indian Constitution is a dynamic document that adapts to the evolving needs of society while preserving the core principles it contains. This is so because the judiciary is thought of as the democarcys third pillar.This can be determined by carefully examining its significant provisions and historic judicial pronouncements by the courts. The Constitution is a representation of the aspirations and goals of a diverse country aiming for advancement and prosperity not just a set of legal guidelines. Preamble sets out the ideals and objectives of the Constitution and as a introduction part to the constitution, serving as a guiding light for governance and interpretation of law - Fundamental Rights are absolute and ensure the protection of individual liberties and freedoms, while Directive Principles of State Policy guide the state in promoting social and economic justice and are of obligatory nature only. - The federal structure balances powers between the Union and states, fostering cooperative federalism and regional autonomy but in the sense of unity in some circumstances. This is not all but there are many salient features discussed that serves as a roadmap for governance, guiding the state in its duty to serve the people and uphold their rights and freedoms. The salient features of the Indian Constitution are of progressive nature, developing nature with tine aiming to foster a just and equitable society and reflects the aspirations and values of a diverse nation. However, it is important to continue evaluating and evolving these features to address emerging challenges, changing with the need of the time and ensure the effective functioning of the Constitution in the ever-changing socio-political landscape of the country. ### **REFERENCES** - **Books / Commentaries / Journals Referred** - Introduction to constitution of india by D.D. Basu - Indian polity by M. laxmikanth - **Online Articles / Sources Referred** 1. 2. 3. 4. com/legal/article-8793-salient-features-of-the-indian-constitution.html - **Cases Referred** - *Kesavananda Bharati v. State of Kerala (1973)* - *Maneka Gandhi v. Union of India (1978*) - *K. Gopalan v. State of madras (1950)* - *Raj Narain Singh v. Chairman, Patna Administration Committee (1955)* - *State of West Bengal v. Union of India (1963)* - *Harla v. State of rajasthan (1951)* - *Mohammed Ahmed Khan v. Shah Bano Begum (1985)* - *Rameshwar Prasad v. Union of India (2006* - *Vishakha v. state of rajasthan (1951)* - **Statutes Referred** 1. Articles of Indian Constitution Act,1950 **Categories:** Articles --- ### [ARTICLE-368 AMENDMENT OF THE CONSTITUTION](https://lawfoyer.in/article-368-amendment-of-the-constitution/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Priyanshu Tyagi, Mewar Law Institute

India's Dynamic Constitution: Amending for Change

The Constitution of India, as the keystone of the nation's legal system, upholds the necessity for adaptation in the dynamic societal circumstances. This adaptability is expediated by Article 368, which exactly prescribes the process for amending the Constitution. This article analyse the concept of constitutional amendments in India, delving into the  procedures established , types of amendments, their significance, and the criticisms against them. Keywords (Minimum 5):  Article -368 , Amendment Process , Special Majority , State Ratification , Basic Structure Doctrine , Federal Structure

Meaning, Definition & Explanation

  • A constitution's strength often lies in its ability to evolve alongside the society it governs. The Indian Constitution embodies this principle by allowing for amendments. This process involves adding, modifying, or repealing existing provisions while adhering to a well-defined procedure. Amending the Constitution ensures it remains a relevant document, capable of addressing new challenges while preserving its core values.
  • Article 368: The Cornerstone of Change
  • Recognizing the need for adaptability, the Indian Constitution integrated Article 368 in Part XX. This article establishes the framework for amending the Constitution, outlining the permissible extent and the procedure to be followed. It ensures that changes are made thoughtfully and legitimately.

The procedure: Amending India's Constitution

 Article 368 of the Indian Constitution establishes a well-defined procedure for prompting and enacting amendments. Let us discuss the key steps which outlines the established procedure :
  1. Initiation: The amendment procedure of the Indian Constitution under article-368 initiates with the introduction of a bill in either the Lok Sabha (lower house) or the Rajya Sabha (upper house) of the Parliament. The Parliament retains the sole authority to commence proposals for amending the Constitution.
  2. Presentation of bill: After its initiation, the amendment bill can be presented by either a minister in government of India or even a private member of the Parliament. It should be noted that prior approval from the President is not a required for such introductions.
  3. Passage Requirements in Both Houses of Parliament : For an amendment bill to be well enacted as law, it must secure a "special majority" vote in each house of the Parliament. This exacting  requirement sanctions approval from two key components:
  • Majority of Total Membership: The amendment bill must reserve a majority vote exceeding fifty percent of the total membership in each house.
  • Two-Thirds of Members Present and Voting: furthermore, it requires the approval of two-thirds of the members who are present and actively cast their votes in each house.
  1. Absence of a Joint Sitting Mechanism for Dispute Resolution: It is important to note that the Indian Constitution, unlike its approach to resolving disagreements on ordinary bills, does not provide any provision for a joint sitting of both houses of Parliament to address potential disputes concerning an amendment bill. This absence of a joint sitting mechanism signifies that resolving disagreements exclusively relies on negotiations between the houses or the potential desertion of the proposed amendment bill .
  2. State Ratification for Amendments Affecting Federal Structure : The amendment procedure under Article 368 recognizes the rare nature of certain provisions that precisely impact India's federal structure. For such amendments, a supplementary step beyond parliamentary approval is mandated. In these specific cases, the amendment bill requires ratification by a simple majority vote in the legislatures of at least half of the Indian states.
  3. Presidential Assent: Once the bill has well passed by both houses of Parliament and secured ratification by the states (if applicable), it is conferred to the President for assent.. The President is bound by law to grant assent and lacks the authority to withhold approval or return the bill for reconsideration.
  4. Becoming Law: Upon receiving presidential assent, the bill is transformed into a "Constitutional Amendment Act." This Act serves as the official mechanism for modifying the Constitution, accumulating the proposed changes and becoming an fundamental part of the supreme law of the land.

Three Methods for Amending India's Constitution

Article 368 empowers the Indian Parliament to amend the Constitution through three distinct methods, each tailored to the weight and nature of the proposed change:
  1. Simple Majority: Established provisions, governed by separate parliamentary procedures, can be modified by a simple majority vote in Parliament. This mark as approval by more than half (50%) of the members present and voting in each house. Examples include changes related to the creation or boundaries of states, or the establishment of legislative councils within states.
  2. Special Majority: For an extensive range of amendments, a more considerable level of approval is required. This "special majority" entails a subdivided requirement:
  • First, it requires the support of more than half of the total membership of each house of Parliament (Lok Sabha and Rajya Sabha).
  • Further , it must be approved by two-thirds of the members present and voting in each house of Parliament.
This kind of majority encloses amendments to Fundamental Rights, Directive Principles of State Policy, and numerous other provisions not covered by the other methods.
  1. Special Majority with State Ratification: Amending provisions regarding India's federal structure entails an additional step. Here, the special majority vote in Parliament must be supported by ratification from half of the state legislatures. Each state legislature votes by a simple majority, means more than half of the members of the parliament present and voted for the same need to approve the amendment.
By marking these three separate methods, Article 368 assures that the amendment process is precisely graded to the significance of the changes being proposed.

The Unshakeable Core: The Basic Structure Doctrine

The interpretation of the basic structure doctrine serves as a shield, safeguarding the crucial principles of the Indian Constitution from being significantly altered or eliminated through amendments established by Parliament. These fundamental elements constitute the very base of the Indian nation:
  • Supremacy of the Constitution: The Constitution reigns supreme as the highest law of the land.
  • Separation of Powers: Power is divided and balanced between the legislature, executive, and judiciary, preventing any one branch from becoming too powerful.
  • Federalism: India functions as a union of states, with power distributed between the central government and the states.
  • Secularism: The state treats all religions with equal respect and does not Favor any particular faith.
  • Democracy: The government derives its authority from the will of the people.
  • Rule of Law: Everyone, including the government, is subject to the law.
Any amendment in the Constitution of India results in  weakening the basic structure under this doctrine will smacked down by the apex court and declared as unconstitutional. The basic structure doctrine assures the Constitution remains a stable and enduring foundation for Indian democracy.

The Doctrine's Evolution

The approach regarding doctrine of basic structure has been consolidated through a series of landmark judgments by the Apex Court of India. These proclamations not only established the concept but also civilized its meaning over the period of  time. The following provides a glimpse into this historical evolution:
  • Shankari Prasad Case (1951): This case marked the first significant brief with the basic structure doctrine in the legal domain. While the Supreme Court recognised Parliament's authority to amend the Constitution under Article 368, it did not exactly limit that power. This led to the indication that Parliament could possibly modify any aspect, including fundamental rights. However, the case did not examined deeply the concept of a basic structure, which would be addressed in later judgments.
  • Golak Nath Case (1967): This landmark judgment laid a stronger foundation for the basic structure doctrine. The Supreme Court well-established a crucial principle inheriting the Parliament with power to amend the Constitution does not expand to fundamental rights. The court asserted that these rights are the core aspect of the Constitution and cannot be taken away or limited through amendments. This decision essentially limited Parliament's power and lead the way for a more persuasive understanding of the basic structure.
  • Kesavananda Bharati Case (1973): Considered as a landmark judgment, the case of  Kesavananda Bharati vs state of Kerala challenged the validity of the 24th Constitutional Amendment Act (1971) . This act intent to restrain judicial review  of constitutional amendments. The pivotal question before the court was whether the 24th CAA violated the basic structure doctrine and should be struck down.
  • In its historic ruling, the Supreme Court confirmed that Parliament has power to amend the Constitution but declared it to be limited. The constitutional bench of 13 judges officially introduced the concept of the "basic structure" and its significant role in safeguarding the Constitution's core principles.

The Enduring Relevance of the Amendment Power

India's vast and dynamic nature necessitates a constitution that can evolve alongside it. The amendment process empowers the constitution to remain relevant and effective in governing the country. Here's how this adaptability fosters a well-functioning democracy:
  • Ensuring Responsive Governance: Constitution guides governance needs updates for change. Amendments ensure responsive governance, protect emerging rights.  Safeguarding the emerging rights is essential for justice. It provides Reflection to society's evolving understanding.
  • Acknowledging and Protecting Emerging Rights: As the Society changes, the constitution must guard new rights. Amendment process ensures safeguarding of emerging rights in inclusive society. Embracing new rights is crucial for a fair society. Constitution should evolve with society's view on fundamental rights.
  • .Reflecting Evolving Legal Interpretations: Judicial interpretations of the constitution always evolving, uncovering the new rights within existing provisions. Modern interpretations of right to life and personal liberty expanding to include right to privacy. Amendment process allows formal changes in constitution to align with evolving legal interpretations. It Ensures constitution to stay relevant in changing social landscape.
  • .Addressing Unforeseen Challenges: State adapts to tackle unforeseen issues from rise of social media and online activism. Constitution can be amended to address challenges and safeguard citizens' rights. This Adaptability empowers state to respond to new realities not anticipated during constitution drafting.
  • Promoting Social Progress: Constitutional reforms break old practices and pave the way for a progressive society. Updates to the constitution reflect the changing values of the governed population. Reforming the constitution can bring about positive social changes. It is important for the constitution to adapt to the people's evolving aspirations.

Concerns Regarding Amending the Indian Constitution

While the amendment process allows the Constitution to adapt, it has also attracted criticism on several fronts:
  • Lack of a Specialized Body: Unlike some nations with dedicated bodies for constitutional amendments, India relies solely on its Parliament and, in specific cases, state legislatures. Critics argue for a dedicated and specialized body to ensure a more intentional and objective approach to amendments.
  • Procedural Similarities : The amendment process features the procedure for passing regular laws, with the exception of a special majority requirement. Critics argue that this correlation could lead to undervaluing constitutional amendments.
  • Limited Initiation Power: The exclusive power to introduce amendments lies with the Parliament itself. State legislatures can only propose amendments related to establishing or abolishing their legislative councils. This, according to critics, weakens the role of states in the amendment process.
  • Parliament's Dominance: A major portion of the Constitution can be amended solely by the Parliament, with state ratification needed only for specific provisions, and even then, only from half the states of India.
  • Deadlock Potential: The absence of a provision for a joint sitting of both houses of Parliament (Lok Sabha & Rajya Sabha) to resolve disputes related to amendment bills can lead to deadlocks situation ,conflicting the amendment process.
  • Uncertainties and Legal Challenges: The lack of definite procedures and details in some aspects of the amendment process leaves room for interpretation and potential legal disagreement . Critics advocated for a more well-defined framework to minimize uncertainties.

Important Amendments in Indian Constitution

AMENDMENTS PROVISIONS
1st  Amendment 1951   The first Amendment Act of 1951 played crucial role by combining the Ninth Schedule to the Constitution. This schedule inserted a list of Central as well as  State laws that are safeguarded  from being challenged in courts.
42nd  Amendment 1976   The 42nd Amendment Act 1976 allowing three new terms i.e. socialist ,secular and integrity to the preamble of constitution of India. Furthermore it also added part 4A Directive Principles of State Policy in the Constitution.
44th  Amendment 1978   The 44th Amendment Act of 1978 replaced the word internal disturbance with armed rebellion under Article-352 Additionally, this amendment removed the Right to Property as Fundamental Right  and made it a legal right under (Article 300A).
73rd  Amendment  1992 The 73rd Amendment Act of 1992 introduced provisions related to Panchayati Raj Institutions.
74th Amendment  1992 The 74th Amendment Act of 1992 introduced provisions related to Urban Local Bodies, such as Municipalities and Municipal Corporations
86th Amendment 2002 The 86th Amendment Act of 2002 assured that the State shall provide free and compulsory elementary  education to all children aged 6 to 14   years of age.
97th  Amendment 2011 The 97th Amendment Act of 2011 provided constitutional status and safeguarding the cooperative societies, recognizing their importance in the socio-economic development of the country.
 101st Amendment 2016 The 101st Amendment Act of 2016 proposed the Goods and Services Tax (GST), an enhanced indirect tax reform aimed at simplifying the tax structure and promoting economic integration and stability.
102nd Amendment 2018 The 102nd Amendment Act of 2018 presented Constitutional Status to the National Commission for the Backward Classes, strengthening the institution's role in safeguarding the rights and interests of backward classes.
103rd Amendment 2019 The 103rd Amendment Act of 2019 proposes a 10% reservation for Economically Weaker Sections (EWS)..
105th Amendment 2021 The 105th Amendment Act of 2021 reestablished the authority of the State Governments to identify Socially and Educationally Backward Classes (SEBCs).
106th Amendment 2023 The 106th Amendment Act of 2023 proposed allotment of one-third of all seats for women in Lok Sabha, State Legislative Assemblies, and the Legislative Assembly of the National Capital Territory of Delhi, including those reserved for SCs and STs.

Conclusion

  • The ability to amend the Indian Constitution stands as a keystone of its continued relevance and effectiveness. This process ensures the Constitution remains adaptable, tending progressive governance and inclusivity. By enabling the recognition of new rights, addressing unforeseen challenges, and facilitating social reform, amendments keep the Constitution in sync with the evolving needs and aspirations of Indian society.
  • These alterations are not mere twists , they shape the very fabric of India's legal framework and governance. They ensure that the Constitution should remain a dynamic document, reflecting the desires, challenges, and changing societal norms of its people. This adaptability guarantees the Constitution's continued significance and effectiveness for generations to come.

References

  1. Online Articles / Sources Referred
  2. net/articles/article-368
  3. org/doc/594125/
  4. ipleaders.in/the-amendment-of-the-constitution-article-368
  5. com/blog/amendment-of-the-constitution/
  1. Cases Referred
    1. Golaknath v. State Of Punjab (AIR 1967 1643 , 1967 SCR (2) 762)
    2. Sri Sankari Prasad Deo v. Union Of India (AIR 1951 S , SCR89)
    3. Kesavananda Bharati v. State Of Kerala (AIR 1973 4 SCC 225)
    4. Minerva Mills Ltd. v. Union Of India ( AIR 1980 SC 1789)
  2. Statutes Referred
    1. Article-368 The Constitution Of India , 1949
**Content:** **Author- Priyanshu Tyagi, Mewar Law Institute** ### **India’s Dynamic Constitution: Amending for Change** The Constitution of India, as the keystone of the nation’s legal system, upholds the necessity for adaptation in the dynamic societal circumstances. This adaptability is expediated by Article 368, which exactly prescribes the process for amending the Constitution. This article analyse the concept of constitutional amendments in India, delving into the procedures established , types of amendments, their significance, and the criticisms against them. ***Keywords* *(Minimum 5)*: Article -368 , Amendment Process , Special Majority , State Ratification , Basic Structure Doctrine , Federal Structure** ### **Meaning, Definition & Explanation** - A constitution’s strength often lies in its ability to evolve alongside the society it governs. The Indian Constitution embodies this principle by allowing for amendments. This process involves adding, modifying, or repealing existing provisions while adhering to a well-defined procedure. Amending the Constitution ensures it remains a relevant document, capable of addressing new challenges while preserving its core values. - **Article 368: The Cornerstone of Change** - Recognizing the need for adaptability, the Indian Constitution integrated Article 368 in Part XX. This article establishes the framework for amending the Constitution, outlining the permissible extent and the procedure to be followed. It ensures that changes are made thoughtfully and legitimately. ### **The procedure: Amending India’s Constitution** Article 368 of the Indian Constitution establishes a well-defined procedure for prompting and enacting amendments. Let us discuss the key steps which outlines the established procedure : 1. **Initiation:** The amendment procedure of the Indian Constitution under article-368 initiates with the introduction of a bill in either the Lok Sabha (lower house) or the Rajya Sabha (upper house) of the Parliament. The Parliament retains the sole authority to commence proposals for amending the Constitution. 2. **Presentation of bill:** After its initiation, the amendment bill can be presented by either a minister in government of India or even a private member of the Parliament. It should be noted that prior approval from the President is not a required for such introductions. 3. **Passage Requirements in Both Houses of Parliament** : For an amendment bill to be well enacted as law, it must secure a “special majority” vote in each house of the Parliament. This exacting requirement sanctions approval from two key components: - **Majority of Total Membership:** The amendment bill must reserve a majority vote exceeding fifty percent of the total membership in each house. - **Two-Thirds of Members Present and Voting:** furthermore, it requires the approval of two-thirds of the members who are present and actively cast their votes in each house. 4. **Absence of a Joint Sitting Mechanism for Dispute Resolution:** It is important to note that the Indian Constitution, unlike its approach to resolving disagreements on ordinary bills, does not provide any provision for a joint sitting of both houses of Parliament to address potential disputes concerning an amendment bill. This absence of a joint sitting mechanism signifies that resolving disagreements exclusively relies on negotiations between the houses or the potential desertion of the proposed amendment bill . 5. **State Ratification for Amendments Affecting Federal Structure** **:** The amendment procedure under Article 368 recognizes the rare nature of certain provisions that precisely impact India’s federal structure. For such amendments, a supplementary step beyond parliamentary approval is mandated. In these specific cases, the amendment bill requires ratification by a simple majority vote in the legislatures of at least half of the Indian states. 6. **Presidential Assent:** Once the bill has well passed by both houses of Parliament and secured ratification by the states (if applicable), it is conferred to the President for assent.. The President is bound by law to grant assent and lacks the authority to withhold approval or return the bill for reconsideration. 7. **Becoming Law:** Upon receiving presidential assent, the bill is transformed into a “Constitutional Amendment Act.” This Act serves as the official mechanism for modifying the Constitution, accumulating the proposed changes and becoming an fundamental part of the supreme law of the land. ### **Three Methods for Amending India’s Constitution** Article 368 empowers the Indian Parliament to amend the Constitution through three distinct methods, each tailored to the weight and nature of the proposed change: 1. **Simple Majority:** Established provisions, governed by separate parliamentary procedures, can be modified by a simple majority vote in Parliament. This mark as approval by more than half (50%) of the members present and voting in each house. Examples include changes related to the creation or boundaries of states, or the establishment of legislative councils within states. 2. **Special Majority:** For an extensive range of amendments, a more considerable level of approval is required. This “special majority” entails a subdivided requirement: - First, it requires the support of more than half of the total membership of each house of Parliament (Lok Sabha and Rajya Sabha). - Further , it must be approved by two-thirds of the members present and voting in each house of Parliament. This kind of majority encloses amendments to Fundamental Rights, Directive Principles of State Policy, and numerous other provisions not covered by the other methods. 3. **Special Majority with State Ratification:** Amending provisions regarding India’s federal structure entails an additional step. Here, the special majority vote in Parliament must be supported by ratification from half of the state legislatures. Each state legislature votes by a simple majority, means more than half of the members of the parliament present and voted for the same need to approve the amendment. By marking these three separate methods, Article 368 assures that the amendment process is precisely graded to the significance of the changes being proposed. ### **The Unshakeable Core: The Basic Structure Doctrine** The interpretation of the basic structure doctrine serves as a shield, safeguarding the crucial principles of the Indian Constitution from being significantly altered or eliminated through amendments established by Parliament. These fundamental elements constitute the very base of the Indian nation: - **Supremacy of the Constitution:** The Constitution reigns supreme as the highest law of the land. - **Separation of Powers:** Power is divided and balanced between the legislature, executive, and judiciary, preventing any one branch from becoming too powerful. - **Federalism:** India functions as a union of states, with power distributed between the central government and the states. - **Secularism:** The state treats all religions with equal respect and does not Favor any particular faith. - **Democracy:** The government derives its authority from the will of the people. - **Rule of Law:** Everyone, including the government, is subject to the law. Any amendment in the Constitution of India results in weakening the basic structure under this doctrine will smacked down by the apex court and declared as unconstitutional. The basic structure doctrine assures the Constitution remains a stable and enduring foundation for Indian democracy. ### **The Doctrine’s Evolution** The approach regarding doctrine of basic structure has been consolidated through a series of landmark judgments by the Apex Court of India. These proclamations not only established the concept but also civilized its meaning over the period of time. The following provides a glimpse into this historical evolution: - **Shankari Prasad Case (1951):** This case marked the first significant brief with the basic structure doctrine in the legal domain. While the Supreme Court recognised Parliament’s authority to amend the Constitution under Article 368, it did not exactly limit that power. This led to the indication that Parliament could possibly modify any aspect, including fundamental rights. However, the case did not examined deeply the concept of a basic structure, which would be addressed in later judgments. - **Golak Nath Case (1967):** This landmark judgment laid a stronger foundation for the basic structure doctrine. The Supreme Court well-established a crucial principle inheriting the Parliament with power to amend the Constitution does not expand to fundamental rights. The court asserted that these rights are the core aspect of the Constitution and cannot be taken away or limited through amendments. This decision essentially limited Parliament’s power and lead the way for a more persuasive understanding of the basic structure. - **Kesavananda Bharati Case (1973):** Considered as a landmark judgment, the case of Kesavananda Bharati vs state of Kerala challenged the validity of the 24th Constitutional Amendment Act (1971) . This act intent to restrain judicial review of constitutional amendments. The pivotal question before the court was whether the 24th CAA violated the basic structure doctrine and should be struck down. - In its historic ruling, the Supreme Court confirmed that Parliament has power to amend the Constitution but declared it to be limited. The constitutional bench of 13 judges officially introduced the concept of the “basic structure” and its significant role in safeguarding the Constitution’s core principles. ### **The Enduring Relevance of the Amendment Power** India’s vast and dynamic nature necessitates a constitution that can evolve alongside it. The amendment process empowers the constitution to remain relevant and effective in governing the country. Here’s how this adaptability fosters a well-functioning democracy: - **Ensuring Responsive Governance:** Constitution guides governance needs updates for change. Amendments ensure responsive governance, protect emerging rights. Safeguarding the emerging rights is essential for justice. It provides Reflection to society’s evolving understanding. - **Acknowledging and Protecting Emerging Rights:** As the Society changes, the constitution must guard new rights. Amendment process ensures safeguarding of emerging rights in inclusive society. Embracing new rights is crucial for a fair society. Constitution should evolve with society’s view on fundamental rights. - .**Reflecting Evolving Legal Interpretations:** Judicial interpretations of the constitution always evolving, uncovering the new rights within existing provisions. Modern interpretations of right to life and personal liberty expanding to include right to privacy. Amendment process allows formal changes in constitution to align with evolving legal interpretations. It Ensures constitution to stay relevant in changing social landscape. - .**Addressing Unforeseen Challenges:** State adapts to tackle unforeseen issues from rise of social media and online activism. Constitution can be amended to address challenges and safeguard citizens’ rights. This Adaptability empowers state to respond to new realities not anticipated during constitution drafting. - **Promoting Social Progress:** Constitutional reforms break old practices and pave the way for a progressive society. Updates to the constitution reflect the changing values of the governed population. Reforming the constitution can bring about positive social changes. It is important for the constitution to adapt to the people’s evolving aspirations. ### **Concerns Regarding Amending the Indian Constitution** While the amendment process allows the Constitution to adapt, it has also attracted criticism on several fronts: - **Lack of a Specialized Body:** Unlike some nations with dedicated bodies for constitutional amendments, India relies solely on its Parliament and, in specific cases, state legislatures. Critics argue for a dedicated and specialized body to ensure a more intentional and objective approach to amendments. - **Procedural Similarities :** The amendment process features the procedure for passing regular laws, with the exception of a special majority requirement. Critics argue that this correlation could lead to undervaluing constitutional amendments. - **Limited Initiation Power:** The exclusive power to introduce amendments lies with the Parliament itself. State legislatures can only propose amendments related to establishing or abolishing their legislative councils. This, according to critics, weakens the role of states in the amendment process. - **Parliament’s Dominance:** A major portion of the Constitution can be amended solely by the Parliament, with state ratification needed only for specific provisions, and even then, only from half the states of India. - **Deadlock Potential:** The absence of a provision for a joint sitting of both houses of Parliament (Lok Sabha & Rajya Sabha) to resolve disputes related to amendment bills can lead to deadlocks situation ,conflicting the amendment process. - **Uncertainties and Legal Challenges:** The lack of definite procedures and details in some aspects of the amendment process leaves room for interpretation and potential legal disagreement . Critics advocated for a more well-defined framework to minimize uncertainties. ### **Important Amendments in Indian Constitution** **AMENDMENTS****PROVISIONS*****1st Amendment 1951* *The first Amendment Act of 1951 played crucial role by combining the Ninth Schedule to the Constitution. This schedule inserted a list of Central as well as State laws that are safeguarded from being challenged in courts.****42nd Amendment 1976* *The 42nd Amendment Act 1976 allowing three new terms i.e. socialist ,secular and integrity to the preamble of constitution of India. Furthermore it also added part 4A Directive Principles of State Policy in the Constitution.****44th Amendment 1978* *The 44th Amendment Act of 1978 replaced the word internal disturbance with armed rebellion under Article-352 Additionally, this amendment removed the Right to Property as Fundamental Right and made it a legal right under (Article 300A).****73rd Amendment 1992****The 73rd Amendment Act of 1992 introduced provisions related to Panchayati Raj Institutions.* ***74th Amendment 1992****The 74th Amendment Act of 1992 introduced provisions related to Urban Local Bodies, such as Municipalities and Municipal Corporations****86th Amendment 2002****The 86th Amendment Act of 2002 assured that the State shall provide free and compulsory elementary education to all children aged 6 to 14 years of age.* ***97th Amendment 2011****The 97th Amendment Act of 2011 provided constitutional status and safeguarding the cooperative societies, recognizing their importance in the socio-economic development of the country.* ***101st Amendment 2016****The 101st Amendment Act of 2016 proposed the Goods and Services Tax (GST), an enhanced indirect tax reform aimed at simplifying the tax structure and promoting economic integration and stability.****102nd Amendment 2018****The 102nd Amendment Act of 2018 presented Constitutional Status to the National Commission for the Backward Classes, strengthening the institution’s role in safeguarding the rights and interests of backward classes.****103rd Amendment 2019****The 103rd Amendment Act of 2019 proposes a 10% reservation for Economically Weaker Sections (EWS)..****105th Amendment 2021****The 105th Amendment Act of 2021 reestablished the authority of the State Governments to identify Socially and Educationally Backward Classes (SEBCs).****106th Amendment 2023****The 106th Amendment Act of 2023 proposed allotment of one-third of all seats for women in Lok Sabha, State Legislative Assemblies, and the Legislative Assembly of the National Capital Territory of Delhi, including those reserved for SCs and STs.*### **Conclusion** - The ability to amend the Indian Constitution stands as a keystone of its continued relevance and effectiveness. This process ensures the Constitution remains adaptable, tending progressive governance and inclusivity. By enabling the recognition of new rights, addressing unforeseen challenges, and facilitating social reform, amendments keep the Constitution in sync with the evolving needs and aspirations of Indian society. - These alterations are not mere twists , they shape the very fabric of India’s legal framework and governance. They ensure that the Constitution should remain a dynamic document, reflecting the desires, challenges, and changing societal norms of its people. This adaptability guarantees the Constitution’s continued significance and effectiveness for generations to come. ### **References** 1. **Online Articles / Sources Referred** 2. *net/articles/article-368* 3. *org/doc/594125/* 4. *ipleaders.in/the-amendment-of-the-constitution-article-368* 5. *com/blog/amendment-of-the-constitution***/** 2. **Cases Referred** 1. *Golaknath v. State Of Punjab (AIR 1967 1643 , 1967 SCR (2) 762)* 2. *Sri Sankari Prasad Deo v. Union Of India (AIR 1951 S , SCR89)* 3. *Kesavananda Bharati v. State Of Kerala (AIR 1973 4 SCC 225)* 4. *Minerva Mills Ltd. v. Union Of India ( AIR 1980 SC 1789)* 3. **Statutes Referred** 1. *Article-368 The Constitution Of India , 1949* **Categories:** Articles --- ### [Volenti Non Fit Injuria as a Defence Under Law of Torts](https://lawfoyer.in/volenti-non-fit-injuria-as-a-defence-under-law-of-torts/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Chitra, University Five Year Law College, University of Rajasthan

INTRODUCTION

The expression" Volenti non-fit injuria" means “Injury isn't done to a willing person.” First, let's understand what a tort is. The term" tort" originates from the Latin term " Tortum," which means" to twist." therefore, a tort refers to conduct that's  crooked, crooked, and unlawful, original to the English term ‘wrong.’ Salmond states," Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which isn't  simply the breach of contract or the breach of a trust or other  simply  indifferent obligation." When the complainant initiates legal action against the defendant for a specific tort, establishing the actuality of all the essential rudiments of that tort, the defendant becomes liable. still, certain vittles can vindicate the defendant from liability, known as general defences. There are eight general defences in the law of torts, and “volenti non-fit injuria”  is one of them. This legal sentential guards defendants in tort cases, allowing them to argue that the complainant, by their own choice, willingly assumed the pitfalls associated with a particular exertion or circumstance. The operation of this doctrine depends on demonstrating that the complainant was apprehensive of the implicit detriment and freely accepted the associated pitfalls.

Meaning and Explanation

It is also known as Defence of Consent. The doctrine of Volenti non-fit injuria means that “no injury is done to a willing person.”  It implies that if a person willingly  warrants to the infliction of  detriment upon themselves, they aren't entitled to any remedies under the Law of Torts. Any  detriment suffered freely by an  existent doesn't amount to legal injury, and  thus, it isn't  practicable under the law of torts. When a complainant gives  concurrence to suffer  detriment upon themselves, they aren't entitled to remedies, and their  concurrence acts as a valid defence for the defendants. For  illustration, if A invites B to their home for  regale, A cannot sue B for trespass because A has willingly foisted  detriment upon themselves. still, it should be noted that an act causing  detriment mustn't exceed the limits of the  concurrence given. In the game of football, players  indicate  concurrence to the normal course of injuries, but it doesn't mean they cannot sue for deliberate injuries caused by other players. A person who freely agrees to the publication of  scandalous matter cannot bring an action for  vilification. No  existent can  apply a right that they've freely waived or abandoned. concurrence to waive one's right can be expressed or  inferred. For the defence of Volenti non-fit injuria to be available, the defendants must prove that the complainant was completely  apprehensive of the  pitfalls involved and their extent. Bare knowledge of the  threat isn't sufficient; the complainant must give  concurrence to sustain that  detriment. The defence of Volenti non-fit injuria was successfully invoked in the case of Padmavati v Dugganika. In this case, two  non-natives took a lift in a jeep while the  motorist was going to fill petrol. suddenly, one of the bolts fixing the right front wheel came out, performing in the two  nonnatives being thrown out of the jeep and seriously injured. One of them indeed  failed as a consequence of the incident. The court held that neither the  motorist nor the  proprietor of the jeep was liable for two reasons first, it was a clear accident, and second, the  non-natives freely entered the jeep, allowing the defence of Volenti non-fit injuria to be successfully  contended. Also, when a trespasser is  apprehensive of the presence of spring  ordnance, they aren't entitled to recover damages if they're injured by those spring  ordnance.

Essentials Elements of Volenti non-fit injura

  1. Defence of consent-
The defence of concurrence, also known as volenti non-fit injuria, is a legal principle where a person who freely warrants the threat of detriment cannot claim damages if they suffer any detriment as a result of the threat they deliberately and willingly accepted. For this defence to succeed, the defendant must prove that the descendant
  • Had full knowledge of the nature and extent of the threat involved
  • Freely accepted the threat with no pressure or compulsion
  • Wasn't under any disability or internal incapability
 Case Hall v. Brooklands Auto Racing Club In this case, the complainant attended a motor auto race held at Brooklands. During the race, a collision passed between two buses, and the observers, including the complainant, were hit, resulting in the complainant's injury. The defendant company that possessed the tracks was sued. The courts held that since the threat was nicely foreseeable, considering the dangerous nature of the sport, the defendant company isn't liable. Case Padmavathi and Ors. v. Dugganaika and Ors.( 1974)  In this case, two non-natives freely accepted a lift in a jeep. Suddenly, due to a mechanical disfigurement, the jeep stumbled, and they sustained injuries. The motorist and proprietor of the jeep were sued. The court held that since the complainants willingly took the lift and the accident wasn't nicely foreseeable, the defendants weren't liable.
  1. Consent Should Not have been given on the basis of Tort or under any compulsion- (i.e consent is not obtained by fraud)
Case:- R v. Williams The defendant, who was the teenage plaintiff's singing schoolteacher, engaged in sexual exertion with her, falsely claiming that his conduct was a system of remedying her breathing and perfecting her singing. The girl agreed to the exertion, under the belief that it was a medical or surgical intervention. The defendant was condemned to rape. He appealed the conviction, arguing that the plaintiff had acceded. The Court of Appeal upheld the conviction, stating that the defendant had deceived the plaintiff regarding the nature and quality of his conduct by leading her to believe they weren't sexual. thus, the plaintiff didn't give valid concurrence, as her concurrence was attained through fraud.
  1. No liability only for Consented Act
Take Lakshmi Rajan v Malar Hospital Ltd for example; A 40-year-old woman working at Malar Hospital Ltd found a lump in her pelvis. It does not affect the size of the uterus removed unprotected during surgery. The court said that nursing home officials were responsible for the deficiencies in services. It was also determined that her consent to the surgery was not her consent to the removal of her uterus.
  1. Limitations to this doctrine
  • Rescue Cases
It appears that the defence in this case is  the doctrine of "voluntary compensation", which is a legal right given to the person who receives a threat of damage, and cannot demand compensation for the damage. Disclosures of information are generally considered an exception to this protection. Because a person who enters a dangerous situation to save others during a rescue is not considered to have voluntarily assumed the risk of harm. Instead, the truck driver is deemed reasonable and reasonable and is generally not precluded from receiving compensation for any injuries they suffer. Case - Haynes v Harwood The complainant was police officer Bobby, who worked at a police station on a busy road that was often crowded with people, including children. The defendant had two wagons left on the same road. After the damaged truck, the driver pulled a rope to the bus. For some reason, they rushed out onto the busy road in a minibus, apparently because the grave was thrown onto the horses. Officer Bobby saw them at the police station, got out of his car and tried to stop them but was injured and demanded payment for the damage. The King's Bench ruled against the plaintiff. The defendant appealed to the Supreme Court. A no-injury verdict will not help Police Officer Bobby claim compensation for the injuries he suffered because he refused to acknowledge the threats but followed the legal bridge.
  • Scienti non-fit Injuria
Case -Smith v. Charles Baker and Sons The complainant was a contractor working for the defendant's construction company and was injured on the job. The monument was removed from the plan of the crane and the complainant left the street when he saw the men lift the monument over his head. A colleague began to raise concerns about the dangers of lifting the monument up, and the complainant himself told the crane operator that it was unsafe. Despite these warnings, the complainant hit the shaft while working on the drilling machine, causing serious injuries. There was no warning that the grave would lean in this direction. The plaintiff's complaint was that he was aiming for a hammer and that he was not in a position to protect himself. The tombstone was hung over his head negligently and did not receive enough attention, causing him to fall. At the hearing in the City Courthouse, the defendant's attorney argued that the plaintiff chose to do the job and was concerned about the problem that arose. still, the jury made several findings (1) the machine used for  rooting  the  monuments from the  slice wasn't suitable for the task; (2) the failure to  give an alarm system during gravestone lifting was a fault in the  system, job,  ministry, and planning; (3) the employer or any person responsible for addressing  similar issues was careless in not addressing the  disfigurement; (4) the complainant wasn't careless and didn't willingly accept the  parlous employment with knowledge of its implicit  detriment. The Court of Appeal upheld the appeal primarily because there was no  substantiation of wrongdoing on the part of the defendants. The complainant  also appealed to the House of Lords.

Conclusion

The doctrine of volenti non-fit injuria holds a significant position in the general defence within the realm of tort law. Defendants can  use this doctrine to  vindicate themselves of liability by demonstrating that the complainant willingly acceded to the same. still, certain essential conditions must be met for the doctrine to be successfully applied.   In conclusion, the defence grounded on this doctrine isn't comprehensive but rather has a limited  compass. There are situations where the  operation of volenti non-fit injuria can be  barred,  similar as when the defendant is careless. The limitations mentioned  over in the paper further  circumscribe its  connection. Overall, the defence of volenti non-fit injuria proves to be an effective means of escaping liability.

REFERENCES

Books- R.K. Bangia, The Law of torts E resources:- **Content:** **Author –** Chitra**, (University Five Year Law College, University of Rajasthan)** ### **INTRODUCTION** The expression*” Volenti non-fit injuria”* means **“Injury isn’t done to a willing person.”** First, let’s understand what a tort is. The term” tort” originates from the Latin term ” Tortum,” which means” to twist.” therefore, a tort refers to conduct that’s crooked, crooked, and unlawful, original to the English term ‘wrong.’ **Salmond** states,” Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which isn’t simply the breach of contract or the breach of a trust or other simply indifferent obligation.” When the complainant initiates legal action against the defendant for a specific tort, establishing the actuality of all the essential rudiments of that tort, the defendant becomes liable. still, certain vittles can vindicate the defendant from liability, known as general defences. There are eight general defences in the law of torts, and “volenti non-fit injuria” is one of them. This legal sentential guards defendants in tort cases, allowing them to argue that the complainant, by their own choice, willingly assumed the pitfalls associated with a particular exertion or circumstance. The operation of this doctrine depends on demonstrating that the complainant was apprehensive of the implicit detriment and freely accepted the associated pitfalls. ### **Meaning and Explanation** It is also known as Defence of Consent. The doctrine of Volenti non-fit injuria means that “no injury is done to a willing person.” It implies that if a person willingly warrants to the infliction of detriment upon themselves, they aren’t entitled to any remedies under the Law of Torts. Any detriment suffered freely by an existent doesn’t amount to legal injury, and thus, it isn’t practicable under the law of torts. When a complainant gives concurrence to suffer detriment upon themselves, they aren’t entitled to remedies, and their concurrence acts as a valid defence for the defendants. For illustration, if A invites B to their home for regale, A cannot sue B for trespass because A has willingly foisted detriment upon themselves. still, it should be noted that an act causing detriment mustn’t exceed the limits of the concurrence given. In the game of football, players indicate concurrence to the normal course of injuries, but it doesn’t mean they cannot sue for deliberate injuries caused by other players. A person who freely agrees to the publication of scandalous matter cannot bring an action for vilification. No existent can apply a right that they’ve freely waived or abandoned. concurrence to waive one’s right can be expressed or inferred. For the defence of Volenti non-fit injuria to be available, the defendants must prove that the complainant was completely apprehensive of the pitfalls involved and their extent. Bare knowledge of the threat isn’t sufficient; the complainant must give concurrence to sustain that detriment. The defence of Volenti non-fit injuria was successfully invoked in the case of Padmavati v Dugganika. In this case, two non-natives took a lift in a jeep while the motorist was going to fill petrol. suddenly, one of the bolts fixing the right front wheel came out, performing in the two nonnatives being thrown out of the jeep and seriously injured. One of them indeed failed as a consequence of the incident. The court held that neither the motorist nor the proprietor of the jeep was liable for two reasons first, it was a clear accident, and second, the non-natives freely entered the jeep, allowing the defence of Volenti non-fit injuria to be successfully contended. Also, when a trespasser is apprehensive of the presence of spring ordnance, they aren’t entitled to recover damages if they’re injured by those spring ordnance. ### **Essentials Elements of Volenti non-fit injura** 1. **Defence of consent-** The defence of concurrence, also known as volenti non-fit injuria, is a legal principle where a person who freely warrants the threat of detriment cannot claim damages if they suffer any detriment as a result of the threat they deliberately and willingly accepted. For this defence to succeed, the defendant must prove that the descendant - Had full knowledge of the nature and extent of the threat involved - Freely accepted the threat with no pressure or compulsion - Wasn’t under any disability or internal incapability **Case Hall v. Brooklands Auto Racing Club** In this case, the complainant attended a motor auto race held at Brooklands. During the race, a collision passed between two buses, and the observers, including the complainant, were hit, resulting in the complainant’s injury. The defendant company that possessed the tracks was sued. The courts held that since the threat was nicely foreseeable, considering the dangerous nature of the sport, the defendant company isn’t liable. **Case Padmavathi and Ors. v. Dugganaika and Ors.( 1974)** In this case, two non-natives freely accepted a lift in a jeep. Suddenly, due to a mechanical disfigurement, the jeep stumbled, and they sustained injuries. The motorist and proprietor of the jeep were sued. The court held that since the complainants willingly took the lift and the accident wasn’t nicely foreseeable, the defendants weren’t liable. 2. **Consent Should Not have been given on the basis of Tort or under any compulsion- (i.e consent is not obtained by fraud)** **Case:- R v. Williams** The defendant, who was the teenage plaintiff’s singing schoolteacher, engaged in sexual exertion with her, falsely claiming that his conduct was a system of remedying her breathing and perfecting her singing. The girl agreed to the exertion, under the belief that it was a medical or surgical intervention. The defendant was condemned to rape. He appealed the conviction, arguing that the plaintiff had acceded. The Court of Appeal upheld the conviction, stating that the defendant had deceived the plaintiff regarding the nature and quality of his conduct by leading her to believe they weren’t sexual. thus, the plaintiff didn’t give valid concurrence, as her concurrence was attained through fraud. 3. **No liability only for Consented Act** Take Lakshmi Rajan v Malar Hospital Ltd for example; A 40-year-old woman working at Malar Hospital Ltd found a lump in her pelvis. It does not affect the size of the uterus removed unprotected during surgery. The court said that nursing home officials were responsible for the deficiencies in services. It was also determined that her consent to the surgery was not her consent to the removal of her uterus. 4. **Limitations to this doctrine** - **Rescue Cases** It appears that the defence in this case is the doctrine of “voluntary compensation”, which is a legal right given to the person who receives a threat of damage, and cannot demand compensation for the damage. Disclosures of information are generally considered an exception to this protection. Because a person who enters a dangerous situation to save others during a rescue is not considered to have voluntarily assumed the risk of harm. Instead, the truck driver is deemed reasonable and reasonable and is generally not precluded from receiving compensation for any injuries they suffer. **Case – Haynes v Harwood** The complainant was police officer Bobby, who worked at a police station on a busy road that was often crowded with people, including children. The defendant had two wagons left on the same road. After the damaged truck, the driver pulled a rope to the bus. For some reason, they rushed out onto the busy road in a minibus, apparently because the grave was thrown onto the horses. Officer Bobby saw them at the police station, got out of his car and tried to stop them but was injured and demanded payment for the damage. The King’s Bench ruled against the plaintiff. The defendant appealed to the Supreme Court. A no-injury verdict will not help Police Officer Bobby claim compensation for the injuries he suffered because he refused to acknowledge the threats but followed the legal bridge. - **Scienti non-fit Injuria** **Case -Smith v. Charles Baker and Sons** The complainant was a contractor working for the defendant’s construction company and was injured on the job. The monument was removed from the plan of the crane and the complainant left the street when he saw the men lift the monument over his head. A colleague began to raise concerns about the dangers of lifting the monument up, and the complainant himself told the crane operator that it was unsafe. Despite these warnings, the complainant hit the shaft while working on the drilling machine, causing serious injuries. There was no warning that the grave would lean in this direction. The plaintiff’s complaint was that he was aiming for a hammer and that he was not in a position to protect himself. The tombstone was hung over his head negligently and did not receive enough attention, causing him to fall. At the hearing in the City Courthouse, the defendant’s attorney argued that the plaintiff chose to do the job and was concerned about the problem that arose. still, the jury made several findings (1) the machine used for rooting the monuments from the slice wasn’t suitable for the task; (2) the failure to give an alarm system during gravestone lifting was a fault in the system, job, ministry, and planning; (3) the employer or any person responsible for addressing similar issues was careless in not addressing the disfigurement; (4) the complainant wasn’t careless and didn’t willingly accept the parlous employment with knowledge of its implicit detriment. The Court of Appeal upheld the appeal primarily because there was no substantiation of wrongdoing on the part of the defendants. The complainant also appealed to the House of Lords. ### **Conclusion** The doctrine of volenti non-fit injuria holds a significant position in the general defence within the realm of tort law. Defendants can use this doctrine to vindicate themselves of liability by demonstrating that the complainant willingly acceded to the same. still, certain essential conditions must be met for the doctrine to be successfully applied. In conclusion, the defence grounded on this doctrine isn’t comprehensive but rather has a limited compass. There are situations where the operation of volenti non-fit injuria can be barred, similar as when the defendant is careless. The limitations mentioned over in the paper further circumscribe its connection. Overall, the defence of volenti non-fit injuria proves to be an effective means of escaping liability. ### **REFERENCES** Books- R.K. Bangia, The Law of torts E resources:- - - - [manupatra.com](http://www.manupatra.com) - **Categories:** Articles --- ### [Dina Nath Chamar & Ors vs State Of Bihar & Anr ](https://lawfoyer.in/dina-nath-chamar-ors-vs-state-of-bihar-anr/) **Published:** April 5, 2024 **Author:** LawFoyer **Content:** ## ABSTRACT / HEADNOTE This case analysis delves into the significant legal proceedings of “Dina Nath Chamar & Ors vs State Of Bihar & Anr.” The Patna High Court’s judgment, dated 7th March 2017, hinges on the critical interpretation and application of Section 311 of the Code of Criminal Procedure (Cr.P.C.). This landmark judgment highlights the court’s power to summon witnesses or documents at any trial stage to ensure a just decision, stressing the paramount importance of truth and justice in legal proceedings. Keywords: Dina Nath Chamar & Ors vs State Of Bihar & Anr, Section 311 Cr.P.C., Witness Summons, Judicial Discretion, Criminal Procedure, Fair Trial. ## CASE DETAILS i) Judgment Cause Title: Dina Nath Chamar & Ors vs State Of Bihar & Anr ii) Case Number: Criminal Miscellaneous No.3048 of 2016 iii) Judgement Date: 7 March 2017 iv) Court: High Court of Judicature at Patna v) Quorum: Shivaji Pandey vi) Author: Shivaji Pandey vii) Citation: \[2017\] INSC 184 viii) Legal Provisions Involved: Section 311 of the Code of Criminal Procedure ## INTRODUCTION AND BACKGROUND OF JUDGEMENT The High Court of Patna, in its judgment on the 7th March 2017, addressed the pivotal issue of the application of Section 311 of the Cr.P.C. in the case of Dina Nath Chamar & Ors versus the State Of Bihar & Anr. This provision grants courts discretionary power to summon or recall witnesses at any stage of a criminal trial, highlighting its utility in ensuring a fair trial. ## FACTS OF THE CASE The case originated from an incident on 8th June 1989, where an alarm was raised about dacoits entering a house in Chauri village. Ram Vinay Singh, while rushing to his home, noticed several individuals, including the petitioners, allegedly involved in the theft of a gun. The police, after investigation, charged the petitioners and commenced the trial as Sessions Trial No. 23 of 2014. During the trial, the prosecution sought to summon Gajadhar Singh, a witness, and exhibit his gun license under Section 311 Cr.P.C. ## LEGAL ISSUES RAISED i. The primary legal issue was the application of Section 311 Cr.P.C. for summoning a witness and a document (gun license) at a belated trial stage. ## PETITIONER/ APPELLANT’S ARGUMENTS i. The counsels for the Petitioners/Appellants argued against the late summoning of the witness and the document, stating it was an attempt to fill lacunae in the prosecution’s case, which is not permissible under law. ## RESPONDENT’S ARGUMENTS i. The State, supporting the summoning of the witness and document, argued that this action was necessary for a just decision, emphasizing the broader objective of Section 311 Cr.P.C. in uncovering the truth. ## RELATED LEGAL PROVISIONS i. Section 311 Cr.P.C. – Power to summon material witness or examine person present at any stage of any inquiry, trial, or other proceeding. ## JUDGEMENT a. RATIO DECIDENDI i. Justice Shivaji Pandey, analyzing Section 311 Cr.P.C., emphasized the court’s discretion and duty to summon any material witness or document when essential for a just decision. The judgment upheld the principle that the pursuit of truth and justice in criminal trials takes precedence over procedural lapses or delays. b. OBITER DICTA (IF ANY) i. The judgment reiterated that the power under Section 311 should not be used to compensate for the prosecution’s inefficiencies or to harass the accused unfairly. ## CONCLUSION & COMMENTS The judgment of Dina Nath Chamar & Ors vs State Of Bihar & Anr underscores the essentiality of Section 311 Cr.P.C. in the Indian legal system as a tool for ensuring justice. It emphasizes that the primary objective of any criminal trial is the discovery of truth and fair administration of justice, even if it requires recalling witnesses or documents at a late stage of the trial. ## REFERENCES a. Important Cases Referred i. Mohanlal Shamji Soni Vs. Union of India & Anr. \[1991\] INSC 280 ii. Rajendra Prasad Vs. Narcotic Cell \[1999\] INSC 350 iii. Zahira Habibullah Sheikh (5) & Anr. Vs. State of Gujarat & Ors. \[2006\] INSC 119 b. Important Statutes Referred i. The Code of Criminal Procedure, 1973, Section 311 **Categories:** Case Analysis, Criminal Law Cases --- ### [Schools of Jurisprudence](https://lawfoyer.in/schools-of-jurisprudence-2/) **Published:** April 5, 2024 **Author:** LawFoyer **Content:** ### Schools of Jurisprudence: An In-Depth Analysis #### Introduction Jurisprudence, the science or philosophy of law, encompasses various schools, each presenting a unique perspective on the legal framework. This analysis delves into the intricacies of different schools of jurisprudence, providing a comprehensive understanding of their foundational concepts and significant contributions. #### The Philosophical School of Jurisprudence **Hugo Grotius (1583-1645)** - **Concept of Natural Law**: Grotius, considered the father of the philosophical school, introduced the concept of natural law derived from man’s social nature and intrinsic sense of righteousness. - **Secularization of Law**: He played a pivotal role in detaching law from theology, emphasizing natural law as a product of eternal reason, independent of theistic beliefs. - **Key Principles**: His natural law focused on societal harmony, emphasizing principles like respecting others’ rights, fulfilling promises, and administering just punishment. **Emmanuel Kant (1724-1804)** - **Critical Method**: Kant’s approach marked a shift from empirical methods to focusing on human consciousness as the basis of rationality and morality. - **Categorical Imperative**: His concept emphasized ethical postulates, stressing the freedom of self-determination. **Johann Gottlieb Fichte (1762-1814)** - **Transcendental Idealism**: Fichte’s philosophy highlighted the role of human consciousness in shaping perceptions, advocating for human activism and the power of intelligence. - **Legal Philosophy**: He saw law as a means to harmonize individual freedoms, stressing mutual respect among free individuals. **George Del Vecchio** - **Law’s Concept vs. Ideal**: Del Vecchio distinguished between the concept of law (objective coordination based on ethical principles) and the ideal of law (its qualitative progress towards autonomy). - **Evolutionary Perspective**: He viewed law as a phenomenon of nature, emphasizing its evolution and individualization. **Hegel (1770-1831)** - **Evolutionary State and Law**: Hegel introduced the concept of evolution in social life, including law, as a dynamic process involving thesis, antithesis, and synthesis. - **Law as an Instrument of Freedom**: He argued that law facilitates freedom, not in the sense of unrestrained action but as a life governed by reason and respect for others. #### The Historical School of Jurisprudence **Friedrich Carl von Savigny (1779-1861)** - **Law as Organic Growth**: Savigny opposed codification, emphasizing law as a product of a nation’s spirit and a manifestation of the general consciousness. - **Stages of Legal Development**: He outlined the progression from spontaneous law development to jurists’ technical refinement. - **Opposition to Codification**: Savigny argued that codification hampers law’s natural growth, advocating for law to conform to popular consciousness. 1. **George Fredrick Puchta (1798-1856)** - **Evolution of Law**: Puchta expanded on Savigny’s theories, linking law’s origin to the conflict between individual and general will, eventually forming the state. - **Customary Law Superiority**: He regarded customary law as the truest expression of people’s convictions. **Joseph Kohler (1849-1919)** - **Cultural Aspect of Law**: Kohler emphasized law’s role in cultural evolution, advocating adaptability to changing societal conditions. - **Synthesis of Individualism and Collectivism**: He called for balancing individual freedom with social cohesion, recognizing the need for cooperative effort. #### The Analytical School of Jurisprudence 1. **John Austin** - **Law as Sovereign Command**: Austin defined law as a command from a sovereign, enforceable through sanctions. - **Generality of Law**: He emphasized that only general commands qualify as law. - **Critique of Austin’s Theory**: Critics argue that Austin’s theory overlooks customs, judge-made law, and lacks a place for laws conferring privileges. **Jeremy Bentham (1748-1832)** - **Founder of Modern Positivism**: Bentham introduced utilitarianism, defining law in terms of its utility in maximizing pleasure and minimizing pain. - **Codification and Legal Reforms**: He advocated for systematic law reform and codification, criticizing judge-made law. **H.L. Hart** - **Critique of Austin’s Conception**: Hart rejected the notion of law solely based on coercive orders, proposing a dual system of primary and secondary rules. - **Primary and Secondary Rules**: Primary rules impose duties, while secondary rules relate to the creation, change, and application of primary rules. - **Rule of Recognition**: Hart introduced this concept as a standard for identifying valid laws within a legal system. #### Conclusion The diverse schools of jurisprudence offer rich perspectives on understanding law and its evolution. From Grotius’ natural law to Hart’s rule of recognition, each school contributes significantly to our comprehension of legal systems. Their collective insights form a robust foundation for legal scholarship and practice, underscoring law’s dynamic and multifaceted nature. **Categories:** Articles, Jurisprudence --- ### [COPYRIGHT UNDER THE COPYRIGHTS ACT, 1957](https://lawfoyer.in/copyright-under-the-copyrights-act-1957/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Samruddhi Naik,St. Wilfred's College of Law, Panvel

INTRODUCTION

             Copyright is the sum of literary and artistic work. Intellectual creation of work such as electronic databases, music, literature, sculptures and paintings are protected with copyright. Copyright is the shield that defends the exclusive rights of the creator of the intellectual artistic work. It is an encouragement and relief to the artists, producers, composers and authors to create original work. Copyright is governed by the international convention i.e. Berne Convention, it is the oldest international convention providing protection to copyright. Keywords: copyright, exclusive rights, moral rights, intellectual property, original work, berne convention

 Meaning

    Copyright protects the rights of the inventors of artistic and literary work by providing them exclusive rights. Copyright protects the works which is novel and showcase the ‘expression of thoughts’. As mentioned above Copyright is regulated by ‘Berne Convention’ which was first assembled in 1886 to protect the work (artistic and literary) and rights of the authors. Copyright need not to be registered as it is protected upon its invention. Copyright tops the list of the other items which comprise Intellectual property. Copyright law provides various rights to the creator such as moral rights and economic rights.

International Agreements Concerning Copyrights

  • Berne Convention, 1886
Berne convention is a treaty that was first established in 1886, with the intention to protect the literary and artistic work along with derivative work. Under this convention, the work is protected for 50 years from the end of the year of the author’s death. But in the case of photographic work the term of protection is 25 years from the work created
  • TRIPS Agreement, 1994
As literary and artistic work is protected under Berne Convention, TRIPS Agreement ensures to protect the computer programs and provide guidelines to protect databases under Berne Convention.
  • WIPO Copyright Treaty (WCT), 1996
WCT is a special agreement under Berne Convention established to deal with protection of work and rights of authors in digital era.
  • The Marrakesh Treaty, 2013
The Marrakesh Treaty was established in the year 2013 by World Intellectual Property Organization (WIPO) with the intention of providing access of published work to the people who are visually impaired, blind or print disabled.

Essentials of Copyright

  • Novelty
Copyright only determines original work. No one can claim copyright in case of duplicate or similar work.
  • Expression of thoughts
As mentioned before, the expression of thoughts is the most essential element as the copyright focuses on protecting the ‘expression of thoughts’ and not just an ‘idea’.
  • Registration
Though the work is protected upon creation, it is always beneficial to register the work.

Types of work covered under copyright

  • Literary work i.e. Books, Novels, Articles etc
  • Artistic work i.e. Paintings, Sculptures etc
  • Derivative work i.e. Adaptations and Translations of existing copyrighted work
  • Musical compositions i.e. Songs, Tunes, Music albums
  • Computer programs & compilations i.e. Software, Databases etc

Rights protected by copyright

  • Economic rights- Economic rights are those rights through which the owner of rights can receive monetary benefit from the use of his work by others. They are transferable and can be assigned ownership rights to others for a sum of money or royalties.
  • Moral rights- Moral rights are the rights that always reside with the owner of the work. They are non-transferable, unlike economic rights. Moral rights protect the integrity of the author of the work.

Infringement of copyrights

Section 51 of the Act deals with infringement of copyright. Infringement of copyright means any person without any license exercises the rights of the owner of the work without taking him/her into consideration. Basically, un-authorized use of someone’s legitimate work is said to be infringement of work.

Remedies against infringement

The legal maxim ‘Ubi jus ibi remediem’ (where there is a right, there is a remedy) plays a vital role in justifying the remedies against infringement of copyright. There are 3 major remedies provided against infringement of copyright and they are as follows: -
  • Civil Remedies
  • Criminal Remedies
  • Administrative Remedies
In a Civil suit, the remedy is granted to the Copyright holder when the infringer is found guilty. Also, Infringement of copyright is not only a civil wrong, but it is an offence and hence, the legitimate holder of copyright can file a criminal suit in which the infringer can be punishable imprisonment or fine or both. Whereas the grant of administrative remedy vest with the Regulatory Copyright Authority.

CONCLUSION & COMMENTS

Copyright plays a vital role in the life of a creator. Creation of a tune, a literature or a software takes a lot of intellectual effort which needs to be protected. Among other items in the list of intellectual property, Copyright safeguards the rights of creators and encourage them to create original work. **Content:** **Author-Samruddhi Naik,St. Wilfred’s College of Law, Panvel** ### **INTRODUCTION** Copyright is the sum of literary and artistic work. Intellectual creation of work such as electronic databases, music, literature, sculptures and paintings are protected with copyright. Copyright is the shield that defends the exclusive rights of the creator of the intellectual artistic work. It is an encouragement and relief to the artists, producers, composers and authors to create original work. Copyright is governed by the international convention i.e. Berne Convention, it is the oldest international convention providing protection to copyright. ***Keywords*:** copyright, exclusive rights, moral rights, intellectual property, original work, berne convention ### **Meaning** Copyright protects the rights of the inventors of artistic and literary work by providing them exclusive rights. Copyright protects the works which is novel and showcase the ‘expression of thoughts’. As mentioned above Copyright is regulated by ‘Berne Convention’ which was first assembled in 1886 to protect the work (artistic and literary) and rights of the authors. Copyright need not to be registered as it is protected upon its invention. Copyright tops the list of the other items which comprise Intellectual property. Copyright law provides various rights to the creator such as moral rights and economic rights. ### **International Agreements Concerning Copyrights** - **Berne Convention, 1886** Berne convention is a treaty that was first established in 1886, with the intention to protect the literary and artistic work along with derivative work. Under this convention, the work is protected for 50 years from the end of the year of the author’s death. But in the case of photographic work the term of protection is 25 years from the work created - **TRIPS Agreement, 1994** As literary and artistic work is protected under Berne Convention, TRIPS Agreement ensures to protect the computer programs and provide guidelines to protect databases under Berne Convention. - **WIPO Copyright Treaty (WCT), 1996** WCT is a special agreement under Berne Convention established to deal with protection of work and rights of authors in digital era. - **The Marrakesh Treaty, 2013** The Marrakesh Treaty was established in the year 2013 by World Intellectual Property Organization (WIPO) with the intention of providing access of published work to the people who are visually impaired, blind or print disabled. ### **Essentials of Copyright** - **Novelty** Copyright only determines original work. No one can claim copyright in case of duplicate or similar work. - **Expression of thoughts** As mentioned before, the expression of thoughts is the most essential element as the copyright focuses on protecting the ‘expression of thoughts’ and not just an ‘idea’. - **Registration** Though the work is protected upon creation, it is always beneficial to register the work. ### **Types of work covered under copyright** - Literary work i.e. Books, Novels, Articles etc - Artistic work i.e. Paintings, Sculptures etc - Derivative work i.e. Adaptations and Translations of existing copyrighted work - Musical compositions i.e. Songs, Tunes, Music albums - Computer programs & compilations i.e. Software, Databases etc ### **Rights protected by copyright** - **Economic rights-** Economic rights are those rights through which the owner of rights can receive monetary benefit from the use of his work by others. They are transferable and can be assigned ownership rights to others for a sum of money or royalties. - **Moral rights-** Moral rights are the rights that always reside with the owner of the work. They are non-transferable, unlike economic rights. Moral rights protect the integrity of the author of the work. ### **Infringement of copyrights** Section 51 of the Act deals with infringement of copyright. Infringement of copyright means any person without any license exercises the rights of the owner of the work without taking him/her into consideration. Basically, un-authorized use of someone’s legitimate work is said to be infringement of work. ### **Remedies against infringement** The legal maxim ‘*Ubi jus ibi remediem*’ (where there is a right, there is a remedy) plays a vital role in justifying the remedies against infringement of copyright. There are 3 major remedies provided against infringement of copyright and they are as follows: – - **Civil Remedies** - **Criminal Remedies** - **Administrative Remedies** In a Civil suit, the remedy is granted to the Copyright holder when the infringer is found guilty. Also, Infringement of copyright is not only a civil wrong, but it is an offence and hence, the legitimate holder of copyright can file a criminal suit in which the infringer can be punishable imprisonment or fine or both. Whereas the grant of administrative remedy vest with the Regulatory Copyright Authority. ### **CONCLUSION & COMMENTS** Copyright plays a vital role in the life of a creator. Creation of a tune, a literature or a software takes a lot of intellectual effort which needs to be protected. Among other items in the list of intellectual property, Copyright safeguards the rights of creators and encourage them to create original work. **Categories:** Articles, Intellectual Property Law --- ### [SPECIAL MARRIAGE ACT,1954](https://lawfoyer.in/special-marriage-act1954/) **Published:** April 5, 2024 **Author:** LawFoyer **Excerpt:** Author-Masooma Naqvi, Amity University, Uttar Pradesh INTRODUCTION India is a country of replete history and culture, which often find themselves intertwined with each other. It is home to 7 major religions of the world and various others. With the kind of diversity that is prevalent in India, it will not be possible nor correct to establish boundaries for love and limit them to one's own religion. Unfortunately, so was not the mindset of the architectures of personal laws. Religion became one of the biggest barriers to love. In most personal laws, be it The Hindu Marriage Act, 1955 or Sharia which is the codified law for Muslims, inter-faith and even inter-cast marriages are prohibited and are not considered to be valid. These marriages are not formally recognized, which further adds to the deprivation of rights that a married couple is entitled to. Some of these rights include adoption, inheritance, etc. It was through the Special Marriage Act of 1954, that these restrictions were lifted to give love a fair chance. Keywords- Marriage, Inter-Faith, Inter-Caste, Certificate, Personal Autonomy

Meaning, Definition & Explanation

Special Marriage Act permits people belonging to different religions to come together into a bond of marriage. It also upholds the spirit of secularism which is laid down in the constitution and also instills the quality of tolerance among individuals. The Act was passed in 1954 and made on the lines of colonialism, as the legislation was first passed in 1872. Later, when India gained independence the Special Marriage Act of 1954 was passed for newly independent India. The act is a ray of hope for inter-faith couples especially those who struggle to get their marriages recognized by personal laws. The most distinctive feature of the act lies in its inclusivity. It is also open to intra-faith couples to register their marriages outside of their personal laws. It also seeks to give legal status and protection to the marriage of those who are barred by religion and caste. IMPORTANT PROVISIONS- The act extends to the whole of India. It also includes Indian citizens domiciled elsewhere. There are certain requirements that the act requires-                                                                Section 4 of the act talks about these requirements. The marriages do not require any specific religious ceremony to enter into a bond of marriage under this act, however, that choice is upon the individuals to decide. The marriage is entered into in the form of a civil contract. For the purpose of the act, the State Government has the power to appoint one or more marriage officers by notification in the official gazette as mentioned under Section 3 of the Indian Marriage Act of 1954. There are certain requirements that the act lays down                                                               Section 4 of the act talks about these requirements. these include the following:- a] Neither of the parties should have a "living spouse"- The first subclause states that the parties of this union must not already be married to someone who is alive. b] (i) Neither party is “incapable of giving a valid consent to it in consequence of unsoundness of mind[1]”- The parties to the union must be of sound mind in the sense that they should give their valid consent for the union.                                                              (ii) Neither party is though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; - The parties must be competent to enter into the union, in the sense that they must not be suffering from any mental disorder that deems them unfit for fulfilling their respective roles in the union., c] the male must be minimum 21 years of age and woman must be minimum 18 years of age d] the parties should not come under the spectrum of prohibited relationships. Prohibited relations are further defined under section 2(b) of the act. these include relationships between – a) Half blood and Full Blood and Uterine blood- When people have the same father and same mother, they are said to be a full blood relation. When people have the same father but different mothers, they are said to be in a half blood relation. when people have the same mother but different fathers they are said to be related by uterine blood. b) it also includes "illegitimate as well as legitimate blood relations"                                    c) It also includes relation by adoption. Section 5 of the act requires the parties to notify to the District Marriage Officer, and at least one of them have to be residing in the district 30 days prior to this notice. Section 7 of the allows any objection to the marriage from anyone in case it defies any provision mentioned in section 4 of this act, within the period of thirty days. Section 11 of the said act requires the parties and three other witnesses to sign a declaration form and further countersigned by the Marriage Officer. Section 13 of the act requires the Marriage Officer, after the marriage has been solemnized to enter the certificate in the Marriage Certificate Book. The certificate must be signed by the parties and three other witnesses. Section 14 says that if after notifying the marriage officer the marriage has not been solemnized within three months of issuing the notice, the notice shall lapse a new notice has to be filed. The Marriage Officer cannot solemnize the wedding under such circumstances. Section 15 lays down provisions even for those couples that have not been married under this act to get their marriages registered. However, they must fullfill the following conditions. i) They have had their nuptials and have been living together as a married couple since then. ii) They are both above 21 years of age at the time of registration. iii) Their relation is not prohibited. iv) They are of sound mind. v) The marriage should have been a monogamy. Section 23 and Section 27 talk about Judicial Separation and Divorce respectively under this act.

IMPORTANT CASES

Safia Sultana vs State of Uttar Pradesh[2]

The case was concerned with issues of privacy. The Special Marriage Act of 1954 required the parties to compulsorily notify about their marriage. The petitioner under this case pleaded that the above-mentioned subclause was a direct invasion of privacy and should be made a choice for the parties to take. The right to privacy comes within the ambit of the Right to Life and Liberty under Article 21 of the Indian constitution. This clause also invited unnecessary intervention from third parties to add hurdles to the process of marriage. The Allahabad High Court held that must not be mandatory for the parties to issue a public notice but a choice.

Lata Singh vs State of Uttar Pradesh[3]

This case laid emphasis on an individual’s right to choose a partner of their choice. The case revolves around the petitioner who by her own choice married a man, belonging to a different caste. This marriage was objected to by her brothers who even allegedly beat up the husband’s mother and uncle. The Supreme Court gave orders to the police to protect and arrest those who threatened the petitioner and her husband and they were protected under this act.

CONCLUSION & COMMENTS

The Special Marriage Act to this day continues to be a boon for people who want to enjoy the bliss of marriage but are rendered helpless by the societal barriers that exist. These barriers include not only caste and religion but also superstitions and judgments as well. It serves as a beacon of hope for tolerance and inclusivity in a country as diverse as India. Its inclusive nature is also seen in the fact that the act not only lays down provisions for couples married under this act but also for couples married under their respective personal laws to get their marriages registered. It gives people a chance to solemnize and register their marriages and also grants them protection from all that troubles them from their right to marital bliss. It seeks to protect the secular spirit of the country and also relieve the country from old prejudices. This act also proves to be a pioneering example of the social progress that is being brought in India.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. Special Marriage Act 1954- Universal/ Lexis Nexis
  2. Online Articles / Sources Referred
    1. https://www.drishtiias.com/daily-updates/daily-news-analysis/special-marriage-act-1954-4
    2. https://blog.ipleaders.in/special-marriage-act/
    3. https://www.indiacode.nic.in/bitstream/123456789/15480/1/special_marriage_act.pdf
  1. Cases Referred
  2. a) Safiya Sultana v State of UP (Uttar Pradesh) AIR 2021 All 56 b) Lata Singh vs State of Uttar Pradesh AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234
  3. Statutes Referred
    1. Constitution of India 1950
    2. Special Marriage Act 1954
    3. Hindu Marriage Act 1955
    4. Muslim marriage Act 1939
    5. Special Marriage Act 1954 Section 4
    6. Safiya Sultana v State of UP (Uttar Pradesh) AIR 2021 All 56
    7. Lata Singh vs State of Uttar Pradesh AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234
**Content:** **Author-Masooma Naqvi,** **Amity University, Uttar Pradesh** **INTRODUCTION** India is a country of replete history and culture, which often find themselves intertwined with each other. It is home to 7 major religions of the world and various others. With the kind of diversity that is prevalent in India, it will not be possible nor correct to establish boundaries for love and limit them to one’s own religion. Unfortunately, so was not the mindset of the architectures of personal laws. Religion became one of the biggest barriers to love. In most personal laws, be it The Hindu Marriage Act, 1955 or Sharia which is the codified law for Muslims, inter-faith and even inter-cast marriages are prohibited and are not considered to be valid. These marriages are not formally recognized, which further adds to the deprivation of rights that a married couple is entitled to. Some of these rights include adoption, inheritance, etc. It was through the Special Marriage Act of 1954, that these restrictions were lifted to give love a fair chance. ***Keywords*– Marriage, Inter-Faith, Inter-Caste, Certificate, Personal Autonomy** #### **Meaning, Definition & Explanation** Special Marriage Act permits people belonging to different religions to come together into a bond of marriage. It also upholds the spirit of secularism which is laid down in the constitution and also instills the quality of tolerance among individuals. The Act was passed in 1954 and made on the lines of colonialism, as the legislation was first passed in 1872. Later, when India gained independence the Special Marriage Act of 1954 was passed for newly independent India. The act is a ray of hope for inter-faith couples especially those who struggle to get their marriages recognized by personal laws. The most distinctive feature of the act lies in its inclusivity. It is also open to intra-faith couples to register their marriages outside of their personal laws. It also seeks to give legal status and protection to the marriage of those who are barred by religion and caste. **IMPORTANT PROVISIONS-** The act extends to the whole of India. It also includes Indian citizens domiciled elsewhere. There are certain requirements that the act requires- **Section 4** of the act talks about these requirements. The marriages do not require any specific religious ceremony to enter into a bond of marriage under this act, however, that choice is upon the individuals to decide. The marriage is entered into in the form of a civil contract. For the purpose of the act, the State Government has the power to appoint one or more marriage officers by notification in the official gazette as mentioned under Section 3 of the Indian Marriage Act of 1954. There are certain requirements that the act lays down **Section 4** of the act talks about these requirements. these include the following:- a\] Neither of the parties should have a “living spouse”- The first subclause states that the parties of this union must not already be married to someone who is alive. b\] (i) Neither party is “incapable of giving a valid consent to it in consequence of unsoundness of mind[\[1\]](#_ftn1)”- The parties to the union must be of sound mind in the sense that they should give their valid consent for the union. (ii) Neither party is though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; – The parties must be competent to enter into the union, in the sense that they must not be suffering from any mental disorder that deems them unfit for fulfilling their respective roles in the union., c\] the male must be minimum 21 years of age and woman must be minimum 18 years of age d\] the parties should not come under the spectrum of prohibited relationships. Prohibited relations are further defined under section 2(b) of the act. these include relationships between – a) Half blood and Full Blood and Uterine blood- When people have the same father and same mother, they are said to be a full blood relation. When people have the same father but different mothers, they are said to be in a half blood relation. when people have the same mother but different fathers they are said to be related by uterine blood. b) it also includes “illegitimate as well as legitimate blood relations” c) It also includes relation by adoption. **Section 5** of the act requires the parties to notify to the District Marriage Officer, and at least one of them have to be residing in the district 30 days prior to this notice. **Section 7** of the allows any objection to the marriage from anyone in case it defies any provision mentioned in section 4 of this act, within the period of thirty days. **Section 11** of the said act requires the parties and three other witnesses to sign a declaration form and further countersigned by the Marriage Officer. **Section 13** of the act requires the Marriage Officer, after the marriage has been solemnized to enter the certificate in the Marriage Certificate Book. The certificate must be signed by the parties and three other witnesses. **Section 14** says that if after notifying the marriage officer the marriage has not been solemnized within three months of issuing the notice, the notice shall lapse a new notice has to be filed. The Marriage Officer cannot solemnize the wedding under such circumstances. **Section 15** lays down provisions even for those couples that have not been married under this act to get their marriages registered. However, they must fullfill the following conditions. i) They have had their nuptials and have been living together as a married couple since then. ii) They are both above 21 years of age at the time of registration. iii) Their relation is not prohibited. iv) They are of sound mind. v) The marriage should have been a monogamy. **Section 23** and **Section 27** talk about Judicial Separation and Divorce respectively under this act. ### **IMPORTANT CASES** #### ***Safia Sultana vs State of Uttar Pradesh[\[2\]](#_ftn2)*** The case was concerned with issues of privacy. The Special Marriage Act of 1954 required the parties to compulsorily notify about their marriage. The petitioner under this case pleaded that the above-mentioned subclause was a direct invasion of privacy and should be made a choice for the parties to take. The right to privacy comes within the ambit of the Right to Life and Liberty under Article 21 of the Indian constitution. This clause also invited unnecessary intervention from third parties to add hurdles to the process of marriage. The Allahabad High Court held that **must not be mandatory** for the parties to issue a public notice but a choice. #### ***Lata Singh vs State of Uttar Pradesh[\[3\]](#_ftn3)*** This case laid emphasis on an individual’s right to choose a partner of their choice. The case revolves around the petitioner who by her own choice married a man, belonging to a different caste. This marriage was objected to by her brothers who even allegedly beat up the husband’s mother and uncle. The Supreme Court gave orders to the police to protect and arrest those who threatened the petitioner and her husband and they were protected under this act. ### **CONCLUSION & COMMENTS** The Special Marriage Act to this day continues to be a boon for people who want to enjoy the bliss of marriage but are rendered helpless by the societal barriers that exist. These barriers include not only caste and religion but also superstitions and judgments as well. It serves as a beacon of hope for tolerance and inclusivity in a country as diverse as India. Its inclusive nature is also seen in the fact that the act not only lays down provisions for couples married under this act but also for couples married under their respective personal laws to get their marriages registered. It gives people a chance to solemnize and register their marriages and also grants them protection from all that troubles them from their right to marital bliss. It seeks to protect the secular spirit of the country and also relieve the country from old prejudices. This act also proves to be a pioneering example of the social progress that is being brought in India. ### **REFERENCES** 1. **Books / Commentaries / Journals Referred** 1. Special Marriage Act 1954- Universal/ Lexis Nexis 2. **Online Articles / Sources Referred** 1. 2. 3. [https://www.indiacode.nic.in/bitstream/123456789/15480/1/special\_marriage\_act.pdf](https://www.indiacode.nic.in/bitstream/123456789/15480/1/special_marriage_act.pdf) 3. **Cases Referred** 4. a) Safiya Sultana v State of UP (Uttar Pradesh) AIR 2021 All 56 b) Lata Singh vs State of Uttar Pradesh AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234 5. **Statutes Referred** 1. 1. Constitution of India 1950 2. Special Marriage Act 1954 3. Hindu Marriage Act 1955 4. Muslim marriage Act 1939 5. Special Marriage Act 1954 Section 4 6. Safiya Sultana v State of UP (Uttar Pradesh) AIR 2021 All 56 7. Lata Singh vs State of Uttar Pradesh AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234 **Categories:** Articles, Family Law --- ### [Advent of AI and Need of Legislative Regulation of AI](https://lawfoyer.in/advent-of-ai-and-need-of-legislative-regulation-of-ai/) **Published:** April 2, 2024 **Author:** LawFoyer **Excerpt:** Author: Gaurav Katiyar, University of Lucknow

INTRODUCTION

Artificial Intelligence (AI) has marked a turning point in human history, offering ground-breaking improvements in many sectors, but posing some serious concerns on ethical, societal and legal grounds. The rapid growth of AI technologies and their extensive penetration into the everyday life necessitate strong regulatory systems that enable to address new risks and provide for protection of basic principles. There is no denying the fact that AI has changed various aspects of human life and holds great potential. However, the rapid spread of such AI technologies also poses serious concerns about democracy and cybersecurity. The challenge of artificial intelligence’s arrival is therefore dual; it advances in sectors like transportation, finance, and health on one side but threatens democratic principles as well as cyber security frameworks. AI is considered one of the main threats to democracy. These propaganda campaigns controlled by artificial intelligence which are capable to manipulate public opinion, cause disinformation and affect electoral outcomes can undermine democratic processes. Using tailored political messages from an individual perspective in social media platforms that target people through AI algorithms worsens polarization while undermining confidence in democracies. The rapid strides being made In AI technologies have posed hitherto unknown cyber security threats. Bad actors can use AI technology to create more refined malware that can evade the conventional security systems. Critical infrastructure, financial systems and personal data are all at high risk from AI driven malware, phishing scams or hacker-tools automatons. This proliferation of AI based cyber-threats underlines the necessity for strong regulatory frameworks that would ensure ethical development and deployment of these technologies. In order to deal with these issues holistically, it is necessary that we put in place comprehensive regulations that protect democratic ideals while at the same time strengthen cyber resilience. Policymakers can minimize risks associated with AI’s emergence by setting up guidelines for its ethical use; fostering international collaboration on cybersecurity projects and encouraging transparency in decision-making processes. Keywords: Artificial Intelligence, Chat GPT, Ethical concerns, Legal frameworks, Artificial Intelligence (AI), Democracy, Cybersecurity

Types of AI:

[AI can be classified into four types based on their capabilities and level of adaptation:
  1. Reactive AI: These systems optimise outputs based on specific inputs, but they lack memory or the ability to learn.
  2. Limited memory AI: This type of AI can adapt based on past experiences or new data. They have a limited memory capacity and update themselves to handle novel situations.
  3. Theory-of-mind AI: These AI systems have extensive learning capabilities and can retain past experiences. They are not self-aware or conscious.
  4. Self-aware AI: This type of AI is just a fiction yet. It would possess self-awareness and consciousness, recognizing its own existence raising ethical concerns of AI dominance in near future.]1

Impact and applications of AI

  • Healthcare: AI can play a vital role in the genome analysis, personalised medication, Early diagnosis hence significantly reducing mortality and morbidity.
  • Natural Language Processing: Various virtual assistants are powered by AI like Siri, Gemini, Alexa and provide features like voice recognition, voice command, service automation, language processing, etc. hence enhancing user experience and control.
  • Financial Services: AI can be useful in providing financial services like fraud detection, risk assessment; algorithmic trading, personalized financial advice etc. due to its enhanced data analysis and processing capabilities.
  • E-commerce and Marketing: AI helps organizations to improve their customer targeting and it is used by businesses to personalize customer experience, make product recommendations, optimize pricing practices and understand the behaviour of shoppers.
  • Education: AI helps in creating personalized learning experiences for students and remote teaching platforms for ease of access to digital education.
  • Agriculture: AI is used for crop monitoring, precision farming, and automated agricultural machinery. It can also play a vital role in the field of Genetically modified plants and organisms.
  • Cybersecurity: Al helps in detecting and responding to cyber threats by analyzing traffic and detecting potential risks like viruses, malware, data hijacking, DDOS attacks etc.

Need of Regulations: Major Areas of concern associated with AI

  1. AI- A threat to Republicanism and Democracy?
It is alleged that in the US presidential elections of 2016, political hackers from Russia, supposedly connected to the Russian Authorities targeted the Democratic National Committee (DNC) and Hilary Clinton’s presidential campaign. They managed to access emails and other classified files which they then distributed through platforms such as WikiLeaks. The purpose of these leaks was to undermine Clinton’s campaign and throw into question people’s trust in the system of conducting election. In a Democratic and Republic country like India, the advent of AI could impact the election process in ways similar to the impact of Russian hackers on the 2016 US elections which in turn could result in failure of Ideals of our nation. Here are some potential scenarios:
  • Disinformation Campaigns: These are manipulative campaigns that rely on AI technology to generate and spread a lot of false information, fake news, and propaganda on social media networks or platforms. In line with the Russian interference during the US elections, this can change public attitude, reduce trust for democratic institutions and alter voter conduct.
  • Micro-targeting and Persuasion: AI is able to scrutinize huge volumes of voter preference details, demographics as well as behaviour to tailor political messages directly towards them. If AI-driven campaigns could send different messages to every voter that were tailored based on their psychological profiles, they might effectively control then influence voting patterns.
  • Social Media Manipulation: Through amplifying divisive contents as well as spreading political propaganda by use of bots and automated accounts among others it leads to coordinated manipulation of online discourse. This may result into echo chambers, polarizing public debates thus distorting the information environment in favour of certain political actors or agendas.
  • Election Tampering: Election infrastructures such as electronic voting machines voter registration databases and tallying systems could be targets of cyber-attacks powered by Artificial Intelligence (AI). By exploiting flaws in these systems malevolent actors would interfere with voting processes perpetrate election fraud.

AI: A threat to humanity?

[“Mitigating the risk of extinction from A.I. should be a global priority alongside other societal-scale risks, such as pandemics and nuclear war,”]2 The unintended consequences of AI can be risky to humanity, such as job displacement, prejudiced decision making and autonomous weapon systems. Lack of care in management may see AI worsen societal inequalities, endanger privacy rights and democratic freedoms while destabilizing the world at large. There is indeed a rapid technological development in AI with limited ethical guidelines thereby leading to misuses, exploitations and unforeseen aftermaths. In order to prevent these risks associated with AI, proactive steps must be taken so that transparency, accountability and responsible use can minimize its likely harm while maximizing its positive aspects to mankind.

AI: an Unforeseen Challenge to Cybersecurity:

In India, AI’s ascent raises issues for cybersecurity:
  • AI-Powered Attacks: This enables AI to create complex cyberattacks that can bypass traditional protection measures.
  • Data Privacy: The use of AI in gathering data has raised privacy concerns.
  • AI System Vulnerabilities: Bad actors can manipulate AI algorithms, which puts critical infrastructure at risk.
  • Bias and Discrimination: Cybersecurity practices based on AI algorithms may have biased results.
  • Cybersecurity Talent Gap: The shortage of skilled personnel hinders the defense against this type of AI-induced threat.

CURRENT POSITION OF INDIA IN AI REGULATIONS

[In India, as of now, there are no specific provisions for AI but the Government is worried about this lack. Recently though, IT Minister Ashwini Vaishnaw acknowledged that in India, there are no regulations on Ai and it would be impossible to have regulation on Ai by Indian government due to many moral and ethical issues pertaining to development of Ai in India. The India government has also established a MeiTY (Ministry of Electronics and Information Technology) office in its own nation.]3 This means that there should be regulations guiding the introduction of AI considering how fundamentally it changes things and their risks for people, society and global stability. In this regard, as AI technologies continue to advance and spread across various sectors, robust regulatory frameworks are essential to make sure that these developments are in conformity with ethical considerations, safety standards and legal requirements. Effective regulation of AI calls for a multi-faceted approach that encompasses multiple aspects including; ethical use; safety standards; transparently , data privacy; bias reduction ; economic impact ; national security among others. To avoid the negative impacts that can arise from open-ended development of AI technology, regulators need to establish clear guidelines and mechanisms towards compliance. Moreover, regulatory interventions are imperative in fostering accountability among developers, users and adopters leading to risk mitigation and trust building around artificial intelligent systems. One can also bring about responsible AI practices via transparency requirements as well as mechanisms for auditing and oversight so that decision-making procedures remain susceptible to scrutiny. Moreover, the international community must come together to address the global consequences of AI governance because it is a multi-national issue. Harmonizing regulatory approaches and promoting cooperation between countries could enable the sharing of best practices, encourage common standards and limit regulatory arbitrage. Simply put, regulations are necessary for managing the responsible creation and application of AI tools in line with societal values, ethical principles and legal rules. Working towards a future where AI facilitates positive change in society but does not pose risks requires the adoption of a proactive collaborative regulation by all stakeholders concerned.

REFERENCES

                Online Articles / Sources Referred
  1. https://cloudacademy.com/blog/types-of-ai/#:~:text=What%20are%20the%204%20main,of%20mind%20and%20self%2Daware
  2. https://www.nytimes.com/2023/05/30/technology/ai-threat-warning.html
  3. https://www.legalserviceindia.com/legal/article-13111-laws-governing-ai-in-india-everything-you-should-know.html
Blogs referred:
  1. https://hbr.org/2021/09/ai-regulation-is-coming
  2. https://emeritus.org/in/learn/ai-and-ml-ai-regulation-trends/
**Content:** **Author: Gaurav Katiyar, University of Lucknow** ### **INTRODUCTION** Artificial Intelligence (AI) has marked a turning point in human history, offering ground-breaking improvements in many sectors, but posing some serious concerns on ethical, societal and legal grounds. The rapid growth of AI technologies and their extensive penetration into the everyday life necessitate strong regulatory systems that enable to address new risks and provide for protection of basic principles. There is no denying the fact that AI has changed various aspects of human life and holds great potential. However, the rapid spread of such AI technologies also poses serious concerns about democracy and cybersecurity. The challenge of artificial intelligence’s arrival is therefore dual; it advances in sectors like transportation, finance, and health on one side but threatens democratic principles as well as cyber security frameworks. AI is considered one of the main threats to democracy. These propaganda campaigns controlled by artificial intelligence which are capable to manipulate public opinion, cause disinformation and affect electoral outcomes can undermine democratic processes. Using tailored political messages from an individual perspective in social media platforms that target people through AI algorithms worsens polarization while undermining confidence in democracies. The rapid strides being made In AI technologies have posed hitherto unknown cyber security threats. Bad actors can use AI technology to create more refined malware that can evade the conventional security systems. Critical infrastructure, financial systems and personal data are all at high risk from AI driven malware, phishing scams or hacker-tools automatons. This proliferation of AI based cyber-threats underlines the necessity for strong regulatory frameworks that would ensure ethical development and deployment of these technologies. In order to deal with these issues holistically, it is necessary that we put in place comprehensive regulations that protect democratic ideals while at the same time strengthen cyber resilience. Policymakers can minimize risks associated with AI’s emergence by setting up guidelines for its ethical use; fostering international collaboration on cybersecurity projects and encouraging transparency in decision-making processes. ***Keywords*: Artificial Intelligence, Chat GPT, Ethical concerns, Legal frameworks, Artificial Intelligence (AI), Democracy, Cybersecurity** ### **Types of AI:** \[AI can be classified into four types based on their capabilities and level of adaptation: 1. **Reactive AI:** These systems optimise outputs based on specific inputs, but they lack memory or the ability to learn. 2. **Limited memory AI:** This type of AI can adapt based on past experiences or new data. They have a limited memory capacity and update themselves to handle novel situations. 3. **Theory-of-mind AI:** These AI systems have extensive learning capabilities and can retain past experiences. They are not self-aware or conscious. 4. **Self-aware AI:** This type of AI is just a fiction yet. It would possess self-awareness and consciousness, recognizing its own existence raising ethical concerns of AI dominance in near future.\]1 ### **Impact and applications of AI** - **Healthcare:** AI can play a vital role in the genome analysis, personalised medication, Early diagnosis hence significantly reducing mortality and morbidity. - **Natural Language Processing:** Various virtual assistants are powered by AI like Siri, Gemini, Alexa and provide features like voice recognition, voice command, service automation, language processing, etc. hence enhancing user experience and control. - **Financial Services:** AI can be useful in providing financial services like fraud detection, risk assessment; algorithmic trading, personalized financial advice etc. due to its enhanced data analysis and processing capabilities. - **E-commerce and Marketing:** AI helps organizations to improve their customer targeting and it is used by businesses to personalize customer experience, make product recommendations, optimize pricing practices and understand the behaviour of shoppers. - **Education:** AI helps in creating personalized learning experiences for students and remote teaching platforms for ease of access to digital education. - **Agriculture:** AI is used for crop monitoring, precision farming, and automated agricultural machinery. It can also play a vital role in the field of Genetically modified plants and organisms. - **Cybersecurity:** Al helps in detecting and responding to cyber threats by analyzing traffic and detecting potential risks like viruses, malware, data hijacking, DDOS attacks etc. ### **Need of Regulations: Major Areas of concern associated with AI** 1. **AI- A threat to Republicanism and Democracy?** It is alleged that in the US presidential elections of 2016, political hackers from Russia, supposedly connected to the Russian Authorities targeted the Democratic National Committee (DNC) and Hilary Clinton’s presidential campaign. They managed to access emails and other classified files which they then distributed through platforms such as WikiLeaks. The purpose of these leaks was to undermine Clinton’s campaign and throw into question people’s trust in the system of conducting election. In a Democratic and Republic country like India, the advent of AI could impact the election process in ways similar to the impact of Russian hackers on the 2016 US elections which in turn could result in failure of Ideals of our nation. Here are some potential scenarios: - **Disinformation Campaigns:** These are manipulative campaigns that rely on AI technology to generate and spread a lot of false information, fake news, and propaganda on social media networks or platforms. In line with the Russian interference during the US elections, this can change public attitude, reduce trust for democratic institutions and alter voter conduct. - **Micro-targeting and Persuasion:** AI is able to scrutinize huge volumes of voter preference details, demographics as well as behaviour to tailor political messages directly towards them. If AI-driven campaigns could send different messages to every voter that were tailored based on their psychological profiles, they might effectively control then influence voting patterns. - **Social Media Manipulation:** Through amplifying divisive contents as well as spreading political propaganda by use of bots and automated accounts among others it leads to coordinated manipulation of online discourse. This may result into echo chambers, polarizing public debates thus distorting the information environment in favour of certain political actors or agendas. - **Election Tampering:** Election infrastructures such as electronic voting machines voter registration databases and tallying systems could be targets of cyber-attacks powered by Artificial Intelligence (AI). By exploiting flaws in these systems malevolent actors would interfere with voting processes perpetrate election fraud. ### **AI: A threat to humanity?** \[“Mitigating the risk of extinction from A.I. should be a global priority alongside other societal-scale risks, such as pandemics and nuclear war,”\]2 The unintended consequences of AI can be risky to humanity, such as job displacement, prejudiced decision making and autonomous weapon systems. Lack of care in management may see AI worsen societal inequalities, endanger privacy rights and democratic freedoms while destabilizing the world at large. There is indeed a rapid technological development in AI with limited ethical guidelines thereby leading to misuses, exploitations and unforeseen aftermaths. In order to prevent these risks associated with AI, proactive steps must be taken so that transparency, accountability and responsible use can minimize its likely harm while maximizing its positive aspects to mankind. ### **AI: an Unforeseen Challenge to Cybersecurity:** In India, AI’s ascent raises issues for cybersecurity: - **AI-Powered Attacks:** This enables AI to create complex cyberattacks that can bypass traditional protection measures. - **Data Privacy:** The use of AI in gathering data has raised privacy concerns. - **AI System Vulnerabilities:** Bad actors can manipulate AI algorithms, which puts critical infrastructure at risk. - **Bias and Discrimination:** Cybersecurity practices based on AI algorithms may have biased results. - **Cybersecurity Talent Gap:** The shortage of skilled personnel hinders the defense against this type of AI-induced threat. ### **CURRENT POSITION OF INDIA IN AI REGULATIONS** \[In India, as of now, there are no specific provisions for AI but the Government is worried about this lack. Recently though, IT Minister Ashwini Vaishnaw acknowledged that in India, there are no regulations on Ai and it would be impossible to have regulation on Ai by Indian government due to many moral and ethical issues pertaining to development of Ai in India. The India government has also established a MeiTY (Ministry of Electronics and Information Technology) office in its own nation.**\]3** This means that there should be regulations guiding the introduction of AI considering how fundamentally it changes things and their risks for people, society and global stability. In this regard, as AI technologies continue to advance and spread across various sectors, robust regulatory frameworks are essential to make sure that these developments are in conformity with ethical considerations, safety standards and legal requirements. Effective regulation of AI calls for a multi-faceted approach that encompasses multiple aspects including; ethical use; safety standards; transparently , data privacy; bias reduction ; economic impact ; national security among others. To avoid the negative impacts that can arise from open-ended development of AI technology, regulators need to establish clear guidelines and mechanisms towards compliance. Moreover, regulatory interventions are imperative in fostering accountability among developers, users and adopters leading to risk mitigation and trust building around artificial intelligent systems. One can also bring about responsible AI practices via transparency requirements as well as mechanisms for auditing and oversight so that decision-making procedures remain susceptible to scrutiny. Moreover, the international community must come together to address the global consequences of AI governance because it is a multi-national issue. Harmonizing regulatory approaches and promoting cooperation between countries could enable the sharing of best practices, encourage common standards and limit regulatory arbitrage. Simply put, regulations are necessary for managing the responsible creation and application of AI tools in line with societal values, ethical principles and legal rules. Working towards a future where AI facilitates positive change in society but does not pose risks requires the adoption of a proactive collaborative regulation by all stakeholders concerned. ### **REFERENCES** **Online Articles / Sources Referred** 1. 2. 3. Blogs referred: 1. 2. **Categories:** Articles, Artificial Intelligence --- ### [Sedition under Section 124-A IPC](https://lawfoyer.in/sedition-under-section-124-a-ipc/) **Published:** April 1, 2024 **Author:** LawFoyer **Content:** #### Definition and Legal Status Sedition, a term not explicitly mentioned in Section 124-A of the Indian Penal Code (IPC), embodies actions aimed at inciting disaffection, hatred, or contempt against the government established by law. Sir James Stephen’s definition encapsulates this concept, highlighting the difference between seditious intention and legitimate criticism of the government for reformative purposes. #### Historical Context and Legal Interpretations Sedition has evolved from its common law roots, emphasizing the utterance or publication of seditious words or actions. In India, this law parallels the English law of sedition but diverges in treating abetment of war against the state on par with waging war itself (IPC Section 121). #### Judicial Perspectives on Section 124-A - **Ram Nandan v. State of U.P.** (AIR 1959 Alld. 101): Initially declared Section 124-A as ultra vires for impinging on free speech, but was overruled by the Supreme Court in **Kedarnath Das v. State of Bihar** (AIR 1962 SC 955). - **Tara Singh v. State of Punjab** (AIR 1950 SC 124): Struck down Section 124-A as unconstitutional, later counteracted by the constitutional 1st Amendment Act, 1951. #### Constitutional Compatibility and Public Order The Supreme Court, in **Kedarnath v. State of Bihar**, upheld Section 124-A as intra vires, aligning it with Article 19(1)(a) under reasonable restrictions for maintaining public order and state security. This judgement distinguishes between criticism for reform and acts inciting disaffection or violence. #### Essentials of Sedition 1. Actions inciting hatred, contempt, or disaffection towards the Government of India. 2. Such actions can be through spoken or written words, signs, or visible representations. #### Legal Nuances and Case Laws - **Satyaranjan Bakshi v. Emperor** (AIR 1927 Cal 698) and **Hanumanthaiya v. Govt of Mysore** (1948 52 Mys HCR 265): Emphasize the intention behind seditious speech. - **Paramanand v. Emperor** (AIR 1941 All 156 1941 All LJ 26 42 Cr LJ 46): Discusses the severity of spoken or written words in sedition. - **Naurang Singh** (1986 Cr LJ 846 P&H) and **Balwant Singh v. State of Punjab** (1995 3 SCC 214 1995 SCC (Cri) 432): Highlight the importance of context and intention behind seditious acts. #### Intention: The Core of Sedition The intention is pivotal in determining sedition. It must be proved that the accused intended to incite disaffection, hatred, or contempt against the government. The impact of seditious acts, regardless of whether they incite actual violence, is secondary to the intent behind them. #### Procedural Aspects - A proper complaint under Section 124-A must include the seditious material or its essence. - Section 196 of the Cr.P.C. 1973 mandates prior sanction from the central or state government for cognizance of sedition offenses, ensuring a check on the arbitrary application of this section. #### Concluding Remarks In summary, sedition in India is a complex interplay of the intention behind acts deemed seditious, their contextual interpretation, and the balance between freedom of speech and state security. The judiciary’s nuanced approach seeks to distinguish between constructive criticism and actions genuinely harmful to public order and the integrity of the state. Now, in Bharatiya Nyay Sanhita, 2023 the provision has been repealed with effect from 1st July, 2024. **Categories:** Articles, Constitutional Law, Criminal Law --- ### [THE DOCTRINE OF HARMONIOUS CONSTRUCTION](https://lawfoyer.in/the-doctrine-of-harmonious-construction/) **Published:** March 31, 2024 **Author:** LawFoyer **Content:** By – **PEULI CHAKRABORTY** (THE UNIVERSITY OF BURDWAN,WEST BENGAL) **INTRODUCTION** The Doctrine of Harmonious Construction is a monumental principle, when it comes to the interpretation of statutes . It intends to resolve out the disputation between the legal provisions or statutes and creates conformity between those. This principle guarantees the reasonable and fair application of the laws, by virtue of the Judiciary. Whenever a noteworthy imbroglio comes forward, either between two legal provisions or statutes, the court is supposed to overlook the controversy and establish a harmonisation between those. However, in case of a difficulty creating the harmonisation between the disputed provisions ( or statues), the Court must interpret those in a manner, so that the both the provisions remains resilient and proportional. ***Keywords:*** *The Doctrine of Harmonious Construction, Monumental Principle, Interpretation of Statutes, Resolve Disputation, Legal Provisions, Statutes, Create Conformity.* **SUB-HEADINGS** Meaning of the Doctrine of Harmonious Construction:[**\[1\]**](#_ftn1)** If any conflict arises, between two provisions ( or more than two) that fall under the similar Act or any inconsistency arises between two statutes, then the Court is required to interpret these two ( whether statutes or provisions) so that the harmonisation remains intact. In simple words, when any disputation is observable, either between two statutes or provisions, and both of these cannot be entertained together, then the Court is required to interpret these finely and by maintaining the harmony and consistency, so that the effect could be served to both of those. The doctrine of Harmonious Construction, is one of the crucial rules to the interpretation of statutes. **Historical Background / Evolution[**\[2\]**](#_ftn1)** This doctrine has been emerged from the notable case, Shankari Prasad v. Union of India, where a conflict was noticeable, between Part 3 and Part 4 of the Indian Constitution. However, the Apex Court exercised the Doctrine of Harmonious Construction and held that both the concept of Fundamental Rights as well as the Directive Principles of State Policy are required and indispensable for the public welfare. Afterwards the Apex Court resolved this conflict by employing the rule of Harmonious Construction. Besides that, in C.P and Berar General Clauses Act, the dispute sprung between entries 24 & 25 of the State List ( Indian Constitution). The Court employed the doctrine and interpreted these two in accordance with the predominant subject matter of the provisions. **The Objectives of the Doctrine[**\[3\]**](#_ftn1)** The predominant objectives of the doctrine have been enumerated down below: **•** The fundamental objective of this doctrine is to turn aside the conflict or disputation either between two statutes or provisions and to sustain the harmony or conformity between the controversial statues or provisions. This doctrine specifically emphasizes that the legislature does not create a crookedness in a statue or provision intentionally, so that it can turn out to be complicated. **•** Another objective is to be included that, the perplexities, arise, are not considered to be something intentional, rather that is required to be sanctified by virtue of the Doctrine of Harmonious Construction. **The Legal Principles underlying the Doctrine[**\[4\]**](#_ftn1)** The five principles underlying this doctrine had been expounded by the Hon’ble Supreme Court, in the case *CIT v. Hindustan Bulk Carriers (2003).* The principles have been enumerated down below: **1.** The Court is required to ignore the altercation between both the provisions (or statutes) and strive to reconcile those provisions, to constitute harmonisation. **2.** The provision laid down in a section cannot be utilised to dismiss the provision laid down in another section, unless and until the Court fails to sustain the conformity (i.e. harmony) between those. **3.** When the Court perceives that it’s implausible to sustain the conformity between the provisions, the Court is required to interpret the provisions in a manner, so that both the provisions get prioritised within the bounds of possibility. **4.** If, due to the Interpretation, carried out by the court, one of the controversial provisions remains ineffective, then that shall not be regarded as the application of Harmonious Construction, hence, that is supposed to be avoided. **5.** Harmonisation does not imply annihilating the significance of a statutory provision, thus the Court must take the matter into consideration, while interpreting. **The Application of the Doctrine:[**\[5\]**](#_ftn1)** The following dimensions are to be taken into account while employing this doctrine: a) Both the provisions or statutes are required to prioritised by the Court, by reading them as a whole, b) the intricacy and difficulty must be abated, c) if there is a broad and a narrow provision, then the broad provision ( i.e. the superior one) must be taken into consideration and search for any other consequence. If the consequence emphasizes harmonisation, then the scrutiny is not at all required anymore. **Latin Maxims related to this Doctrine:** - **Generalia Spacialibus Non Derogant[**\[6\]**](#_ftn1)** If any conflict arises between two statutes or provisions, then the latter shall nullify the initial or the previous one. Basically, the special provisions are more preferred by the Court, than general provisions and the literal meaning of this maxim is *general things do not go against special things.* - **Generalibus Specialia Derogant[**\[7\]**](#_ftn1)** In simple words, this particular latin maxim specifies that, general provisions are not entertained in a statute, if there is a presence of a special provision. Basically the general provisions in a statute/statutes are superintended by the special provisions. Theapplicability of the general provisions is referenced by the special provisions, in a statute. **The Landmark Judicial Interpretations pertaining to this Doctrine:** - **Venkatramana Devaru v. State of Mysore[**\[8\]**](#_ftn1)** There was a conflict, between Article 25(2)(b) and Article 26(b) of the Indian Constitution, pertaining to the Right to worship of all the Hindus, under the Madras Temple Entry Authorization Act, along with … The hon’ble Court interpreted this issue by sustaining the harmony between these two provisions and stated that denominational institutions are deemed to be public institutions and every individual, who is a Hindu, is permitted to enter into the sanctum of the temple, to worship. - **Raj Krushna v. Binod Kanungo[**\[9\]**](#_ftn1)** In this case, both the provisions, under the Representation of the People Act were in- controversy. Sec 33(2) of this Act denoted that a government servant can nominate or second an individual in election. Contrariwise, sec 123(8) displayed that a government servant is ineligible to assist any election candidate, unless and until he casts his vote. However, the doctrine of Harmonious Construction was employed by the Court and it was held that, the government servant is authorised to proceed in accordance with sec 33(2) of this, along with that, he reserves the right to vote as well. However it was held that the government servant cannot assist a candidate in any other manner. - **Union of India v. Dileep Kumar[**\[10\]**](#_ftn1)** In this case, the Hon’ble Supreme Court held that the provisions of the statutes are required to be gone through as a whole and harmoniously. Afterwards, if it is found to be extremely controversial and the conflict looks irreparable, then the superior or leading and the subordinate provisions are to be searched for and proceed accordingly. - **Shankari Prasad v. Union of India[**\[11\]**](#_ftn1)** The actual disputation in this renowned case was whether Article 13(2) of the Indian Constitution bars the power of parliament to amend the Part 3 of the Indian Constitution, as Article 368 doesn’t possess any exception on its own, in terms of amending the Constitution. The Supreme Court took this matter into account and harmoniously interpreted the provisions, stating that, the fundamental rights can be amended by Article 368, since there is no such exception with regard to this and it’s a sovereign power. However, Article 368 can neither take away nor diminish the fundamental rights, as guaranteed under the Indian Constitution. - **Kesavananda Bharati v. State of Kerala[**\[12\]**](#_ftn1)** This case does not require any introduction. It is considered to be the most landmark judgement in the Constitution of India. The Apex Court, in this case, stated that Art. 368 possesses the authority to amend the provisions of the Indian Constitution, however this authority cannot be exercised, when it comes to the basic structure of the Constitution. To facilitate, the basic structure of the Indian Constitution cannot be amended by Article 368. - **East India Hotels ltd. v. Union of India[**\[13\]**](#_ftn1)** The Apex Court held that an Act is required **to be read as a whole** and afterwards all the different provisions should be harmonised altogether. **CONCLUSION** The Doctrine of Harmonious Construction, being one of the most emergent doctrines to the Interpretation of Statutes, intends to relinquish the disputation between two statutes or provisions. Rather, it pays attention to creating the coordination and harmony between those conflicting statutes or provisions. It demonstrates that, the statutes or provisions are to be read as a whole, as the legislature, while embellishing it, had a specific purpose behind it. Therefore, on the arrival of any intricacy between those, that should not be considered to be a clamor, on the part of the legislature, which is deliberate. Hence, if any inconsistency arises, the judiciary is required to rectify the inconsistency, by employing the Harmonious Construction. --- [\[1\]](#_ftnref1) Ismail N, Legal Maxim – Generalibus Specialia Derogant, [(DOC) Legal Maxim – Generalibus Specialia Derogant | Ismail N – Academia.edu](https://www.academia.edu/10272106/Legal_Maxim_Generalibus_Specialia_Derogant), (Last visited on March 4,2024) [\[2\]](#_ftnref1) Glossary, Generalia specialibus non derogant, [Generalia specialibus non derogant | Practical Law (westlaw.com)](https://content.next.westlaw.com/practical-law/document/Id50051cae1b011e698dc8b09b4f043e0/Generalia-specialibus-non-derogant?viewType=FullText&transitionType=Default&contextData=(sc.Default)#:~:text=A%20Latin%20term%20literally%20meaning,the%20specific%20provision%20will%20prevail), (Last visited on March 4,2024) [\[3\]](#_ftnref1) Lawbhoomi, Doctrine of Harmonious Construction, [Doctrine of Harmonious Construction (lawbhoomi.com)](https://lawbhoomi.com/doctrine-of-harmonious-construction/#Application_of_the_Doctrine_of_Harmonious_Construction_in_in_Interpretation_of_Statutes), (Last visited on March 4,2024) [\[4\]](#_ftnref1) *Commissioner of Income Tax v. M/S. Hindustan Bulk Carriers* (2003)3 SCC 57 [\[5\]](#_ftnref1) Zara Suhail Ahmed, Doctrine of Harmonious Construction, [Doctrine of Harmonious Construction – Law Corner](https://lawcorner.in/doctrine-of-harmonious-construction/#google_vignette), (Last visited on March 4,2024) [\[6\]](#_ftnref1) Ashutosh Singh and Pruthvi Singh, All about the Doctrine of harmonious construction, [All about the Doctrine of harmonious construction – iPleaders](https://blog.ipleaders.in/all-about-the-doctrine-of-harmonious-construction/), (Last visited on March 4, 2024) [\[7\]](#_ftnref1) What is doctrine ofHarmonious Construction?, [Whatis doctrine of harmonious construction? Answer at BYJU’S IAS (byjus.com)](https://byjus.com/ias-questions/what-is-doctrine-of-harmonious-construction/#:~:text=According%20to%20this%20doctrine%2C%20a,so%20as%20to%20harmonize%20them), (Last visited on March 4,2024) [\[8\]](#_ftnref1) *Sri Venkataramana Devaru v. State of Mysore* (1958) SCR 895 [\[9\]](#_ftnref1) *Raj Krushna Bose v. Binod Kanungo & Ors.* (1954) SC 202 [\[10\]](#_ftnref1) *Union of India & Ors.v Dileep Kumar Singh* (2015) C.A. Nos. 2466-2467 [\[11\]](#_ftnref1) *Sri Sankari Prasad Singh Deo v. UOI* (1951) SC 458 [\[12\]](#_ftnref1) *Kesavananda Bharati Sripadagalvaru & Ors. v. the State of Kerala & Anr.* (1973) SC 1461 [\[13\]](#_ftnref1) *East India Hotels Ltd. & Anr v. UOI & Anr* (2001) SC 231 **Categories:** Articles, Constitutional Law, Interpretation of Statutes --- ### [CHIRANJIT LAL CHOUDHATMRY V. UNION OF INDIA AND OTHERS](https://lawfoyer.in/chiranjit-lal-choudhatmry-v-union-of-india-and-others/) **Published:** March 31, 2024 **Author:** LawFoyer **Content:** By – **MANSI** (UNIVERSITY FIVE YEAR LAW COLLEGE, UNIVERSITY OF RAJASTHAN, JAIPUR) **ABSTRACT / HEADNOTE** The case Chiranjit lal choudhary v. Union of India case is a critical case in Indian protected law. This case includes a shareholder of the Sholapur Turning and Weaving Company Restricted challenging the sacred legitimacy of the Bihar Arrive Changes Act, 1950. The Act pointed to cancel the zamindari framework and redistribute arrive to the tillers. The solicitor contends that the Act abuses their essential rights beneath Articles 14, 19(1)(f), and 31 of the Indian Structure. They fight that the Act sums to obligatory securing of their property without fair recompense. The case raises vital lawful issues with respect to the strife between principal rights of property possession and the state’s control to order arrive change enactment. The judgment of the court will decide the defendability of the Bihar Arrive Changes Act, 1950 and may have noteworthy suggestions for arrive change arrangements in India. **CASE DETAILS** *Judgement Cause Title***Chiranjit lal choudhary v. union of India and others*Case Number***72 of 1950*Judgement Date***4 December, 1950*Court***Supreme court*Quorum***Hiralal J. Kania, Saiyid Fazal Ali, B.K. Mukherjea*Author*** Hiralal J. Kania*Citation***1951 AIR 41, 1950 SCR 869, AIR 1951 SUPREME COURT 41, 1964 MADLW 47*Legal Provisions Involved***Article 31, 32, 14 and 19 of the constitution of India, Sholapur spinning company emergency act, indian companies act**INTRODUCTION AND BACKGROUND OF JUDGEMENT** This case is a noteworthy legitimate case that has cleared out an permanent check on the lawful scene of its time. This case, which begun in the mid-20th century, holds authentic and lawful significance due to its far-reaching suggestions and the crucial questions of law it looked for to address. The case, which came some time recently the court in 1950, included a request that raised basic issues relating to person rights, sacred elucidation, and the adjust of control between the government and its citizens. At the heart of this case lies a complex legitimate debate that captured the consideration of legitimate researchers, specialists, and the common open alike. The solicitors, who stay central figures in this lawful adventure, drawn nearer the court looking for change for what they accepted to be an encroachment upon their naturally ensured rights. Their request challenged the legitimacy of a particular law ordered by the government, contending that it abused their essential freedoms cherished in the constitution. The case not as it were dug into the translation of sacred arrangements but too touched upon broader questions of equity, value, and the limits of state specialist. The legitimate contentions put forward in this case activated a significant examination of sacred standards, requiring the court to hook with the fragile adjust between person rights and the state’s control to direct and govern. Throughout the course of this case investigation, we will dive into the complexities of the lawful contentions displayed, the court’s thinking, and the extreme choice rendered. By investigating the verifiable and legitimate setting, we point to shed light on the centrality of this case in forming lawful tenets and impacting ensuing jurisprudence. This case serves as a confirmation to the persevering control of the law and the significant affect that a single case can have on the lawful texture of a country. It stands as a update of the crucial part of the legal in defending person rights, guaranteeing protected amazingness, and maintaining the standards of equity and reasonableness. Through this investigation, we look for to disentangle the complexities of this point of interest case and look at its enduring bequest in the chronicles of legitimate history. **FACTS OF THE CASE** In Request the case of Chiranjit lal choudhary v. union of India case, the applicant, a shareholder of the Sholapur Turning and Weaving Company Constrained, challenges the protected legitimacy of the Bihar Arrive Changes Act, 1950. The Act pointed to annul the zamindari framework and disseminate arrive to the tillers. The solicitor fights that the Act damages their principal rights beneath Articles 14, 19(1)(f), and 31 of the Indian Structure. They contend that the Act sums to obligatory procurement of their property without fair compensation. **LEGAL ISSUES RAISED** 1. Issue raised here that whether the actions of the central government infringes the equality before law and equality of law Article and article 19 (1)(f) of Indian constitution. 2. The first issue raised here regarding the article 14 of Indian constitution. First, the act of central government was infringed the equality before law of holders of sholapur company. Secondly, the Petitioner was successful to show that the act of central government really contrary of article 14. **PETITIONER/ APPELLANT’S ARGUMENTS** The solicitor presents a few contentions challenging the protected legitimacy of the Bihar Arrive Changes Act, 1950: 1\. Infringement of Right to Uniformity (Article 14): The applicant contends that the Act abuses their right to balance some time recently the law. They fight that the Act treats shareholders of the Sholapur Turning and Weaving Company Restricted in an unexpected way from other landowners, subsequently making an subjective classification. The applicant states that such differential treatment is not based on any sensible basis and is, in this manner, unconstitutional. 2\. Infringement of Right to Hold and Arrange of Property (Article 19(1)(f)): The applicant contends that the Act encroaches upon their right to hold and arrange of property. They fight that the Act coercively takes absent their property rights without their assent. The applicant attests that the Act confines their flexibility to utilize, appreciate, and exchange their property, in this way damaging their essential right ensured beneath Article 19(1)(f) of the Indian Constitution. 3\. Need of Fair Emolument (Article 31): The solicitor contends that the Bihar Arrive Changes Act, 1950, falls flat to give for fair recompense. They fight that if the state looks for to procure their property for open purposes, it must give reasonable and satisfactory recompense. The solicitor states that the Act, in Its current shape, does not guarantee legitimate recompense for the seizure of their property, which damages their right to property as revered in Article 31 of the Indian Constitution. 4\. Procedural Inconsistencies: The solicitor may too raise contentions with respect to procedural inconsistencies in the sanctioning or execution of the Bihar Arrive Changes Act, 1950. They may point out any lacks in the authoritative prepare or procedural infringement that might affect the defendability of the Act. The applicant looks for a affirmation from the court that the Bihar Arrive Changes Act, 1950, is Illegal and void. They ask fitting help, counting an directive against the requirement of the Act and remuneration for the infringement of their essential rights. The petitioner’s contentions center on the assurance of their property rights and the affirmed insufficiencies in the Act’s arrangements. **RESPONDENT’S ARGUMENTS** The respondent, speaking to the Union of India, presents contentions protecting the protected legitimacy of the Bihar Arrive Changes Act, 1950. Whereas the particular points of interest of the respondent’s contentions are not accessible, a few common contentions that seem be raised include: 1\. Advancement of Social Equity: The respondent may contend that the Bihar Arrive Changes Act, 1950, pointed to advance social equity by nullifying the zamindari framework and redistributing arrive to the tillers. They might fight that the Act was sanctioned to address chronicled imbalances and guarantee impartial dissemination of arrive resources. 2\. SubstantialWork out of Authoritative Control: The respondent may attest that the Act falls inside the administrative competence of the state government. They might contend that arrive change enactment is a genuine work out of the state’s control to sanction laws for the welfare of the individuals and the improvement of society. 3.Sensible Confinements on Property Rights: The respondent may fight that the Act forces sensible limitations on the right to hold and arrange of property in the intrigued of the common open. They seem contend that arrive change measures are fundamental to address financial incongruities and accomplish social welfare goals. **RELATED LEGAL PROVISIONS** This judgement is related to following articles- 1. Article 31 It is related to “No person shall be deprived of his personal liberty.” 2. Article 14 It is related to “the state shall not deny to any persons equality before the law or the equal protection of the laws within the territory of India.” 3. Article 19(1)(f) It relates to “the right to acquire, hold and dispose of property.” 4. Article 32 The Petitioner filed a writ of mandamus under this article of Indian constitution. 5. Indian companies act : These acts deal with the regulation and policies of arbitrary companies. 6. Sholapur spinning and weaving company (emergency Provisions act),1950.This acts take off the regulation of sholapur company under the central government. **JUDGEMENT** **RATIO DECIDENDI** The court’s judgment in Request No. 72 of 1950 sets up the proportion decidendi, which is the lawful guideline or run the show upon which the choice is based. Be that as it may, since particular subtle elements of the case are not accessible, the correct proportion decidendi cannot be decided. **OBITER DICTA** Similarly, the obiter dicta, which alludes to explanations made by the court that are not specifically pertinent to the choice, cannot be decided without particular data approximately the case. **CONCLUSION & COMMENTS** In conclusion, the case of Chiranjit lal choudhary v. union of India includes a shareholder of the Sholapur Turning and Weaving Company Constrained challenging the protected legitimacy of the Bihar Arrive Changes Act, 1950. The solicitor contends that the Act abuses their principal rights, counting the right to correspondence, the right to hold and arrange of property, and the right to fair remuneration. The respondent, speaking to the Union of India, protects the Act, emphasizing its objective of advancing social equity and contending that it is a substantial work out of authoritative control. The particular judgment, counting the proportion decidendi and obiter dicta, cannot be given without nitty gritty data on the case. The court’s choice will decide the defendability of the Act and may have noteworthy suggestions for arrive change arrangements in India. **REFERENCES** 1. **Important Cases Referred** Army v. Dateziel Darnell v. Indianna 2. **Important Statutes Referred** Constitution of India Sholapur spinning company emergency Provisions act **Categories:** Case Analysis, Constitutional Law Cases --- ### [B.R. Enterprises Etc, Etc vs State of the U.P. And Grs. Etc: Etc ](https://lawfoyer.in/b-r-enterprises-etc-etc-vs-state-of-the-u-p-and-grs-etc-etc/) **Published:** March 30, 2024 **Author:** LawFoyer **Content:** By –**TANISHKA SAXENA** (AMITY UNIVERSITY, LUCKNOW) **ABSTRACT** In this case, an order was passed by the state of UP banning the state lotteries of the other state from using the power that was provided under section 5 of the impugned ordinance act. After the order affected states invigorated the provision in different state’s high courts. While the Gujarat High Court upheld the legality, the Guwahati High Court held that several of its sections were ultra vires. The Supreme Court quashed the high court’s decision and upheld the legality of the impugned provisions. The court applied the legal regulations of the 16th century and emphasized the need to perceive the legislation’s historical context purpose and intent. In this case, multiple parties and common issues resulted in a composite decision. The role of the union government was also highlighted particularly regarding with relation to Article 302’s requirement for demonstrable public interest. ultimately. the court resolved the legal dispute around state lotteries and Ultimately, the Court’s arrangement resolved the legal disputes surrounding state lotteries and declared the opposing provisions to be constitutional and lawful. **CASE DETAILS** ***i)*** ***Judgement Cause Title***B.R. Enterprises Etc, Etc v. State of U.P. and Grs. Etc: Etc***ii)*** ***Case Number***Appeal ( civil ) 2747 of 1999***iii)*** ***Judgement Date*** 07/05/1999***iv)*** ***Court***Supreme court***v)*** ***Quorum***K Venkataswami and A.P. Misra***vi)*** ***Author***K Venkataswami and A.P. Mishra***vii)*** ***Citation***1999 9 SCC 700***viii)*** ***Legal provisions involved****Lotteries (Regulation) Ordinance, 1997* *The Lotteries (Regulation) Act, 1998* *Section5 of The impugned Ordinance Act* *Constitution of India* *Article 14Article 19(g)Article 301Article 303***INTRODUCTION AND BACKGROUND OF THE JUDGMENT** In India, the lottery has been a continuous issue with other states because it is used as a source of revenue generation while also facing issues related to its legality and regulation. The case of B.R. Enterprises v. State of U.P. Etc sheds light on the dispute between states over the control and regulation related to lotteries and the constitutional legality of certain provisions in the Act of 1998 and the 1997 Lotteries (Regulation) Ordinance. This case raises questions about the extent of state freedom in these such matters, the impact of conflicting laws on inter-state trade and commerce, and the power of the union government to enact laws in this regard. ***The Lotteries*** ***(Regulation) Act, 1998, under Entry 40, List I of the Constitution of India*** “*A lottery organized by a state must be realized to refer to a lottery lawfully organized by a state, and if a lottery is not lawfully organized by a state, it would not fall within Entry 40 of List I but would fall under the heading ‘gambling’ under Entry 34 of List II, and the state legislature would then be empowered to legislate regarding the same. Where the State Legislature could thus legislate, the State Government could take executive action concerning lotteries organized by another state if they were unlawful.”*[***\[1\]***](#_ftn1) The legal arguments presented in this case revolve around the issue of constitutional provisions including articles 301, and 303 which govern trade, commerce, and restrictions on such activities between states. The case also touched on the historical context of lotteries in India, the difference between public and private states, and the implications of restrictions on lottery ticket sales organized by different states. Ultimately, the Supreme Court upheld the validity of the impugned provisions and the Act, quashing any contrary decisions or interim orders. The judgment expressed gratitude to the counsels for their contributions and imposed costs on the parties. **FACTS OF THE CASE** 1\. The State of Uttar Pradesh passed the order banning the state lotteries of other states by power which are entrusted under section 5 of the impugned ordinance Act. 2\. After this order, affected states opposed this ban in different high courts across the country. Then, the validity was upheld by the Gujarat High Court, and the Guwahati High Court declared its provisions to be Ultra vires 3\. The fundamental question that was raised in this case that what is the character of state lotteries and whether they could be considered as trade and business within the constitution of India. 4\. The arguments presented by the parties focused on the nature of lotteries, the impact of state authority on their pernicious nature, and the constitutional validity of the provisions under scrutiny. 5. The court considered the historical perspective on lotteries, the legal and regulatory environment around gaming, and the interpretation of important parts of the constitution, such as parts 301, 302, and 303. 6\. The issue focuses on the distribution of legislative power, discrimination, and the distinction between state and private lotteries about trade and commerce. 7\. Upon resolution of the case, the court ruled that the provisions of the Lotteries (Regulation) Act 1998 and the Lotteries (Regulation) Ordinance 1997 that were challenged were legitimate. **LEGAL ISSUES RAISED IN THE CASE** 1. Whether the character of state lotteries could be considered as trade and business. 2. Whether the provisions related to the validity of the Lotteries ordinance were acceptable with the Indian Constitution and the laws governing lotteries. **PETITIONER ’S ARGUMENTS** The petitioner’s counsel submitted that 1. A prohibition on lottery ticket sales violates basic rights, such as the freedom of trade and enterprise (Article 19(1)(g)) and the right to equality (Article 14). 2. The lotteries are only the responsibility of the Union Government, the state government is without the legislative authority to control or prohibit lotteries held by other states. 3. The ban on lotteries by the state of U.P. targets only some specific states and that is discrimination and violates the equality before the law. **RESPONDENT ARGUMENTS** Counsel for the Respondent submitted that 1. The state government has the authority to control lotteries on issues related to morals, public welfare, or revenue generation. 2. To safeguard its financial stability and commercial interests, the state government can govern, protect, and prohibit candidates from participating in lotteries in other states. 3. To prevent gambling-related problems and protect people from the harmful effects of lottery addiction, lotteries must be prohibited in other states. **Court’s Decision** The Supreme Court of India, after considering the arguments which were presented by the parties provided a comprehensive judgment. The court observed that in this case, various states and the Union Government were involved, and it decided to give judgment of all the petitions in a single judgment. The court determined the validity of the impugned section of the Lotteries (Regulation) Act 1998 and the Lotteries (Regulation) Ordinance 1997 and The court maintained the Gujarat High Court’s legality and overturned the Guwahati High Court’s decision, finding that multiple of its provisions were beyond the bounds of law. Any judgments or temporary orders that went against the Court’s decision were quashed. The various petitions transferred to the Court were disposed of in terms of the Court’s decision. The Court praised the experienced lawyers for their contributions to the case. There were also fees imposed on each of the parties. **RELATED LEGAL PROVISIONS** - India’s constitution - ***Article 14: (Equality before law):*** *“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”*[***\[1\]***](#_ftn1) - ***Article 19****: “*Protecting certain rights about freedom of speech and trade, etc*.”*[***\[2\]***](#_ftn2) - ***Article 301****: “Freedom of trade, commerce, and intercourse shall be free throughout the territory of India.”[**\[3\]**](#_ftn3) - **Article 303**: Restrictions on the Union’s and the State’s ability to enact laws of trade and commerce”.[\[4\]](#_ftn4) **JUDGEMENT** - The Supreme Court held that state lotteries are a form of trade and commerce and are protected under the Constitution of India. - The Lotteries (Regulation) Act of 1998 concluded that there was no discrimination and that Article 14 of the Constitution was not violated. - However, Section 5 of the impugned OrdinanceAct, which empowers the state to prohibit lotteries conducted by others, was found to violate Articles 301 and 303 of the Constitution. This section restricts free trade and commerce. - The authority granted to the state to prohibit lotteries operated by other states was deemed to be an excessive amount of delegation and without specific guidelines. **RATIO DECIDENDI** **1. Federalism and State Lotteries**: - In this case, several states argued over the legality of clauses about state lotteries. - The issue was confined to state lotteries under Entry 40, List I of the Seventh Schedule of the Constitution of India. - The Union Government also joined the issue with one such set of states for upholding this act **2.** **Validity:** - The Supreme Court held that the state lotteries are a form of trade and commerce and deserve constitutional protection. - The Lotteries (Regulation) Act, 1998, was found not to be discriminatory and did not violate Article 14 of the Constitution. **3.** **The Act’s Section 5**: - However, Section 5 of the Act, which empowers the state to prohibit lotteries conducted by others, was declared to violate Articles 301 and 303 of the Constitution. - The Court found this section to be an excessive delegation of power without clear guidelines. **OBITER DICTA** 1. **State Lotteries as a Form of Trade and Commerce**: - The Court emphasized that state lotteries are a legitimate form of trade and commerce. - This recognition was crucial in establishing their constitutional protection. - Overextending of Power** - The Court found Section 5 of the Lotteries (Regulation) Act, 1998 to be an instance of excessive delegation. - Another concern was the lack of clear regulations prohibiting lotteries conducted by others. - **Articles-301 and 303 - The Court invoked Articles 301 and 303 of the Constitution while assessing the validity of the Act. - These articles deal with freedom of trade and commerce and restrictions on state powers. **CONCLUSION** - The Court upheld the constitutional validity of the Lotteries (Regulation) Act, 1998, but declared Section 5 of the Act to be violative of Articles 301 and 303 of the Constitution - State lotteries have been recognized to be valid commercial activities deserving full constitutional protection. **REFERENCE** **Important Case References:** 1\. The State of Bombay vs. R.M.D. Chamarbaugwala[\[1\]](#_ftn1) 2\. H. Anraj & Ors. Vs. State of the Maharashtra[\[2\]](#_ftn2) 3 . Sesha Ayyar vs. Krishna Iyer [\[3\]](#_ftn3) **Important Statutes and Legal Provisions:** 1. The 1997 Lotteries (Regulation) Ordinance 2. Act of 1998 Regarding Lotteries (Regulation) 3\. The Constitution of India – Article 19(1)(g), Article 14, Article 301 and Article 303 --- [\[1\]](#_ftnref1) *The State Of Bombay vs R. M. D. Chamarbaugwala on 9 april, 1957*. (n.d.). Retrieved March 24, 2024, from https://indiankanoon.org/doc/212098/ [\[2\]](#_ftnref2) *H. Anraj and others etc vs state of maharashtra on 23 january, 1984*. (n.d.). Retrieved March 24, 2024, from https://indiankanoon.org/doc/358833/ [\[3\]](#_ftnref3) *H. Anraj and others etc vs state of Maharashtra on 23 January, 1984*. (n.d.). Retrieved March 24, 2024, from https://indiankanoon.org/doc/358833/ --- [\[1\]](#_ftnref1) Article 14, constitution of India (1950) [\[2\]](#_ftnref2) Article 19, constitution of India (1950) [\[3\]](#_ftnref3) Article 301, constitution of India (1950) [\[4\]](#_ftnref4) Article 303, constitution of India (1950) --- [**\[1\]**](#_ftnref1) **The Lotteries (Regulation) Act, 1998, under Entry 40, List I of the Constitution of India https://indiankanoon.org/doc/358833/ **Categories:** Case Analysis, Constitutional Law Cases --- ### [M/S. Shree Vishnu Constructions Vs. The Engineer in Chief Military Engineering Services & Ors.](https://lawfoyer.in/m-s-shree-vishnu-constructions-vs-the-engineer-in-chief-military-engineering-services-ors/) **Published:** March 30, 2024 **Author:** LawFoyer **Content:** By – **M. Yesaswini Sai Nikitha** (Dr.B.R.Ambedkar College of Law, Andhra University) **ABSTRACT** In the present case, both the appellant and the respondent entered into an agreement regarding the renovation of floors and modifications to be made to the mess in the Tech area, at Air Force Academy, Hyderabad. After finishing the work, the appellant furnished a final bill to the respondent. Later, the respondent settled the full bill in one year, and consequently, the appellant furnished a “no further claim certificate” to confirm that transaction. Later, the appellant served a notice to the respondent, invoking the arbitration clause mentioned within the agreement. The appellant filed an application before the High Court of Telangana to appoint an arbitrator under Sec.11(6) of the Arbitration and Conciliation Act, 1996 (herein after referred to as the Principal Act). But the High Court declined to nominate an arbitrator, held that the provisions of the Principal Act shall be applicable to the arbitration proceedings under Sec.21 and Sec.26, commenced before the Arbitration and Conciliation (Amendment) Act, 2015, (herein after referred to as the Amendment Act). So, the appellant approached the Supreme Court under appellate jurisdiction. The appellant pleaded that the above provisions of the Amendment Act, 2015 shall be applied to the present case and requested to nominate an arbitrator. The Supreme Court held that the provisions of the Principal Act shall be applied to the current matter. The Apex Court upheld the High Court decision in the present matter. ***Keywords*:** Appointment of arbitrator, Arbitral proceedings, Arbitration and Conciliation Act, The Supreme Court, Civil Appellate Jurisdiction, Secs.11(6),21,26. **CASE DETAILS** *Judgement Cause Title***M/S Shree Vishnu Constructions vs. The Engineer in Chief Military Engineering Services & Ors.*Case Number***CIVIL APPEAL NO. 3461 OF 2023*Judgement Date***09 May, 2023*Court***The Supreme Court of India*Quorum***C.T.RAVIKUMAR(J), M.R.SHAH(J)*Author***M.R.SHAH*Citation***2023 SCC Online SC 600*Legal Provisions Involved***The Arbitration and Conciliation Act,1996-Sec.11(6),Sec.21 The Arbitration and Conciliation (Amendment) Act,2015-Sec.11(6-A), Sec.26**INTRODUCTION AND BACKGROUND OF JUDGEMENT** In this case, Arbitration is the chief subject matter. In India, the process of arbitration is defined and regulated through the legislation of the Arbitration and Conciliation Act, 1996. Later the Arbitration and Conciliation (Amendment) Act, 2015 was enacted by making some changes. The method of Arbitration is defined under Sec.2(1)(a) of the Principal Act as *“arbitration means any arbitration whether or not administered by permanent arbitral institution*”[\[1\]](#_ftn1) The arbitration agreement is defined under Sec.7 of the Principal Act. The Supreme Court and the High Courts are empowered to designate, arbitral institutions, from time to time as provided in,Sec.11(3-A) of the aforesaid act and it is also provided that these Courts also have the competent jurisdiction to appoint the arbitrators under Sec.11 of the Principal Act . In case of any dispute, any of the parties by invoking The arbitration clause in the agreement,could approach the courts under the appropriate jurisdiction to get an arbitrator appointed under Sec.21 and 26 of the aforesaid Act. In the current matter, the petitioner had requested the High Court to appoint an arbitrator but the Court had dismissed the petition as the payment of the bill was made by the respondents in the due time and on the ground of accord and satisfaction. Then the petitioner appealed to the Supreme Court for the appointment of the arbitrator under Secs.11(6),21, and 26 of the Principal Act, and Sec.11(6-A) of the Amendment Act. The major issue is whether the provisions of The Principal Act or Amendment Act should be applied to this present case. **FACTS OF THE CASE** In this case**,** the factual matrix, is that the appellant and the respondent entered into a formal agreement on July 22nd , 2010 for the renovation to floors and modifications to senior non-commissioned officers mess in the tech area at Air Force Academy, Hyderabad. After completion of the work, the petitioner furnished a final bill on July 10th, 2012, the payment of that bill was paid to the appellant on April 29th, 2013; consequently, the appellant issued a “no further claim certificate.” Further, the petitioner sent a notice invoking the arbitration clause, to the respondent on December 20th, 2013 and, Subsequently he filed an application to nominate an arbitrator under Sec.11(6) of the Principal Act, before the Telangana High Court on April 27th,2016. The Court dismissed the application on the ground of “accord and satisfaction” and as the payment of the bill was already made to the appellant on 29th April ,2013. The Court denied to nominate an arbitrator under Sec.26 read with Sec.21 of the Principal Act and held that the provisions of the aforesaid Act shall be applied to the present matter. In this context, the petitioner had appealed the Supreme Court and requested to nominate an arbitrator in the current case under the provisions of Sec.11(6-A), Sec.26 read with Sec.21 of the Amendment Act. The challenged order is the subject matter of the present appeal. **LEGAL ISSUES RAISED** (1)Whether Sec.11(6-A) of the Amendment Act,2015 can be applied to the judicial and arbitral proceedings initiated before the amendment ? (2)Whether the provisions of the Principal Act or the Amendment Act can be applied for the arbitral proceedings initiated before the amendment? (3)How the Sec.26 of the Amendment act affect the proceedings initiated after the amendment? **PETITIONER/ APPELLANT’S ARGUMENTS** - It was submitted by the council for Petitioner, that in the view of the Amendment Act, through which Sec.11(6A) is incorporated, while deciding the application under Sec.11(6), the court will have very finite jurisdiction and should consider only that the agreement contains an arbitration clause or not, without any further inquiry. The learned counsel for the petitioner pleaded that the provisions of the Amendment Act are to be applied in the present matter. - The learned counsel for the appellant, Mr.K.Parameshwar, has strenuously submitted that the question of applicability of Sec.11 (6A) and other amended provisions to the proceedings initiated after the amendment are covered in the case[\[1\]](#_ftn1)**,** in which the Supreme Court ruled that the provisions of the Amendment Act shall be applied to the arbitral matters initiated before the amendment and that the provisions of this act can be applied prospectively. In the above case, the court also stated that the Sec.26 of the Act[\[2\]](#_ftn2) can be divided into two parts. The first part is related to the arbitral proceedings before the arbitrator and the second part applies to the judicial proceedings concerning arbitral matters. And the commencement date of these proceedings cannot be controlled by the application of Sec.21of the Principal Act. In this case, it was also held that Sec.21 of the Act[\[3\]](#_ftn3) forms the subject matter of the first part of Sec.26 and pleaded to consider the findings of this case. - It was submitted that by the council for appellant that in the case[\[4\]](#_ftn4) without observing the decision in the BCCI case, the court ruled that the date when the request for the appointment of an arbitrator was made is considered as the relevant date for applying Sec.26 of the Amendment Act. This decision was considered while deciding the case[\[5\]](#_ftn5),not following the judgement of the case[\[6\]](#_ftn6) as the context is related to Sec.11 and different from the context of the BCCI case. - The learned counsel for the appellant contended that in the case[\[7\]](#_ftn7) the court by following the judgement of the BCCI case highlighted that the provisions of the Amendment Act would be applied to court proceedings arising out of arbitral matters, irrelevant whether commenced, before or after the amendment. It is further submitted that the findings of the case[\[8\]](#_ftn8) were considered in deciding the subsequent cases of case[\[9\]](#_ftn9) and case[\[10\]](#_ftn10). The counsel for the appellantrequested to allow the current appeal considering the findings of the BCCI Case. **RESPONDENT’S ARGUMENTS** - The learned counsel for Respondent contended that as per Sec.26 read with Sec.21 of the Act[\[1\]](#_ftn1), the Amendment Act shall not apply to the arbitral proceedings as per Sec.21, if the commencement occurs before the amendment. - It was submitted by the counsel for the Respondent that the notice invoking the arbitration clause was furnished by the appellant much before, the Amendment Act and the application was filed under Sec.11(6) of the Principal Act, much after the amendment. It was further contended that the provisions of the Principal Act shall be applied to the present appeal, as under Sec.26 of the Amendment Act, the arbitral proceedings can be said to have initiated much before the amendment. - The learned counsel for the Respondent had contended that the BCCI Case and the subsequent cases which followed the judgement of the above case are related to the context of matters under Sec.34 and Sec.36 of the Principal Act and related to the court proceedings under Sec.26 of the Amendment Act, which is entirely distinct from the subject matter of the present appeal. - It was further submitted by the counsel for the Respondent, in the case[\[2\]](#_ftn2), the court ruled that the provisions of the Principal Act shall be applied when the issue was related to the application under Sec.11(6) of the aforesaid Act, where the notice was issued before the Amendment. This decision was followed in the subsequent case of Pradeep Vinod Construction Company. In the above case, the findings of case[**\[3\]**](#_ftn3) were considered. In reliance on the above judgements, the counsel for the respondent requested to dismiss the present appeal. **RELATED LEGAL PROVISIONS** - **The Arbitration and Conciliation Act,1996** - **Sec. 11(6*)-*** Appointment of Arbitrators-“*Where, under an appointment procedure agreed upon by the parties.* [*(a)*](https://indiankanoon.org/doc/234911/)*a party fails to act as required under that procedure; or* [*(b)*](https://indiankanoon.org/doc/1466040/)*the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or* [*(c)*](https://indiankanoon.org/doc/1758564/)*a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a \[the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court*, *in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be\] \[Substituted by Act No. 33 of 2019, dated 9.8.2019.\] to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.”*[***\[1\]***](#_ftn1) **Sec.21**–***Commencement of arbitral proceedings****.-“Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.”[**\[2\]**](#_ftn2)* **The Arbitration and Conciliation (Amendment) Act,2015** - **Sec.11(6-A)-** “[*(6A)*](https://indiankanoon.org/doc/63461877/)*\[ \*\*\*\] \[Omitted ‘(6A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement’ by Act No. 33 of 2019, dated 9.8.2019.\]”*[***\[3\]***](#_ftn3) - **Sec.26-Expert appointed by arbitral tribunal- *“*[*(1)*](https://indiankanoon.org/doc/815190/)*Unless otherwise agreed by the parties, the arbitral tribunal may* [*(a)*](https://indiankanoon.org/doc/1555811/)*appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and* [*(b)*](https://indiankanoon.org/doc/499421/)*require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection* [*(2)*](https://indiankanoon.org/doc/1664361/)*Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.* [*(3)*](https://indiankanoon.org/doc/138391/)*Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.”*[***\[4\]***](#_ftn4) **JUDGEMENT** **RATIO DECIDENDI** The Honourable Supreme Court first of all considered the issue of applicability of the Amendment Act, 2015 provisions to the present matter. In the case[\[1\]](#_ftn1)**,**the court observed that whether the Supreme Court or High Court while considering any application under Secs.11(4) to 11(6), is to confine itself to observe only whether the arbitration clause existed or not, nothing more, nothing less, leaving other issues to the arbitrator. The court in the BCCI Case, while interpreting Sec.26 of the Amendment Act, observed that the Amendment Act is prospective in nature and shall be applied to arbitral proceedings whether commenced on or after the Amendment Act,2015. The Supreme Court then referred to Parmar Construction Company Case, and analysed that when Sec.21 of the Principal Act read with Sec.26 of the Amendment Act, the provisions of the Amendment Act shall not apply to the arbitral proceedings initiated under Sec.21 of the principal Act unless the parties otherwise agree[\[2\]](#_ftn2), and further observed that without having recourse to the Amendment Act, the applications made under Sec.11(6) of the principle Act deserved to be examined with reference to the aforesaid act . The Supreme Court in this present case didn’t consider the case[\[3\]](#_ftn3) in the view that the context of that case is related to court matters under Secs.34 and 36 which is irrelevant to the current case. The Court also ruled that the decisions of the Parmar Construction Company Case andPradeep Vinod Construction Case cannot be said to be inconsistentwith the decision of BCCI Case. The Supreme Court considered the decisions of the Parmar Construction Company case, Pradeep Vinod Construction Company case and S.P. Singla Constructions Private Limited case to facts and findings in the present case, and held that *“the law prevailing prior to the Amendment Act,2015 shall be applicable and the High Court has rightly entered into the question of “accord and satisfaction” and has rightly dismissed the application under Sec.11(6) of the Arbitration and Conciliation Act,1996”[**\[4\]**](#_ftn4)*. The Court held that the provisions of the Principal Act shall be applicable in a case where the notice invoking arbitration clause is furnished before the amendment and the application under Sec.11 and Sec.21 of the aforesaid Act for the appointment of an arbitrator is filed after the amendment. Consequently, the Supreme Court had dismissed the appeal and upheld the judgement given by High Court as the issues on the ground of accord and satisfaction, is not necessary to be sent for arbitration. **CONCLUSION& COMMENTS** In this case, the main issues dealt with the applicability of the provisions of the Principal Act and Amendment Act. The Supreme Court held that the provisions of the Amendment Act cannot be applied to a dispute, when the arbitration clause is invoked by one of the parties, and the notice is furnished before the Amendment , under Sec.11(6) and Sec.21 of the Principal Act. The date when the notice is issued is considered as the commencement date of the arbitral proceedings under Sec.26 of the Principal Act. In my opinion, the Apex Court correctly upheld the judgement given by the High Court and dismissed the current appeal. REFERENCES** - Important Cases Referred** - Board of Control for Cricket in India (BCCI) Vs. Kochi Cricket Private Limited & ors.,(2018) 6 SCC 287 - Union of India Vs. Parmar Construction Company (2019),15 SCC 682 - Union of India Vs. Pratap Vinod Construction Company (2020),2 SCC 464 - Government of India Vs. Vedanta Limited , (2020) 10 SCC 1 - Patel Engineering Limited Vs. North Eastern Electric Power Corporation Limited ,(2020) 7 SCC 167 - Ssangyong Engineering & Construction Company Limited Vs. National Highways Authority of India, (NHAI),(2019) 15 SCC 131 - S.P.Singla Constructions Private Limited vs. State of Himachal Pradesh &Anr., (2019) 2 SCC 488 - Mayawati Trading Vs. Pradyut Debbarman, (2019) 8 SCC 714 - **Important Statutes Referred** - The Arbitration and Conciliation Act, 1996. - The Arbitration and Conciliation (Amendment) Act,2015 --- [\[1\]](#_ftnref1) Mayawati Trading Vs. Pradyut Debbarman (2019) 8 SCC 714 [\[2\]](#_ftnref2) (2019) 15 SCC 682 (See para 26) [\[3\]](#_ftnref3) BCCI Case [\[4\]](#_ftnref4) (2023) SCC Online SC 600 --- [\[1\]](#_ftnref1) *sec.11(6)*. (n.d.). indiankannon. Retrieved February 27, 2024, from https://indiankanoon.org/doc/605764/ [\[2\]](#_ftnref2) *sec.21 of arbitration and conciliation act,1996*. (n.d.). India Code. [\[3\]](#_ftnref3) *sec.11(6-A)*. (n.d.). indiankannon. Retrieved February 27, 2024, from https://indiankanoon.org/doc/1841764/ [\[4\]](#_ftnref4) *sec.26*. (n.d.). indiankannon. Retrieved February 27, 2024, from https://indiankanoon.org/doc/1752162/ --- [\[1\]](#_ftnref1) The Arbitration and Conciliation (Amendment) Act,2015 (Act 3 of 2016) [\[2\]](#_ftnref2) Parmar Construction Company Case [\[3\]](#_ftnref3)S.P.Singla Constructions Private Limited Vs. State of Himachal Pradesh & Anr. (2019) 2 SCC 488 --- [\[1\]](#_ftnref1) Board of Control for Cricket in India (BCCI) Vs. Kochi Cricket Private Limited & Ors.(2018) 6 SCC 287 (see paras 37 and 39) [\[2\]](#_ftnref2) The Arbitration and Conciliation (Amendment) Act,2015(Act 3 of 2016) [\[3\]](#_ftnref3) The Arbitration and Conciliation Act,1996(Act 26 of 1996) [\[4\]](#_ftnref4) Union of India Vs. Parmar Construction Company (2019) 15 SCC 682 (see paras 25-27) [\[5\]](#_ftnref5) Union of India Vs. Pratap Vinod Construction Company (2020) 2 SCC 464 [\[6\]](#_ftnref6) BCCI Case [\[7\]](#_ftnref7) Government of India Vs. Vedanta Limited (2020)10 SCC 1 [\[8\]](#_ftnref8) BCCI Case [\[9\]](#_ftnref9) Patel Engineering Limited Vs. North Eastern Electric Power Corporation Limited (2020) 7 SCC 167 (See para15) [\[10\]](#_ftnref10) Ssangyong Engineering and Construction Company Limited Vs. National Highways Authority of India (NHAI) (2019) 15 SCC 131 --- [\[1\]](#_ftnref1) *sec.2(1)(a)*. (n.d.). indiankannon. Retrieved February 27, 2024, from https://indiankanoon.org/doc/1804257/ **Categories:** Case Analysis, Constitutional Law Cases --- ### [State of Uttaranchal v. Balwant Singh Chaufal](https://lawfoyer.in/state-of-uttaranchal-v-balwant-singh-chaufal/) **Published:** March 28, 2024 **Author:** LawFoyer **Content:** **A) ABSTRACT / HEADNOTE** In ‘State Of Uttaranchal vs Balwant Singh Chaufal & Ors,’ the Supreme Court addresses constitutional nuances. Focusing on Advocate General appointment criteria, it delves into Articles 165 and 217. This judgment is a pivotal interpretation in public interest litigation, setting new legal precedents. Keywords: Constitution, Advocate General, Articles 165 and 217, Public Interest Litigation, Supreme Court. **B) CASE DETAILS** i) Case Title: State Of Uttaranchal vs Balwant Singh Chaufal & Ors. ii) Case ID: Civil Appeal Nos. 1134-1135 of 2002. iii) Judgment Date: 18th January 2010. iv) Venue: Supreme Court of India. v) Bench: Justices Mukundakam Sharma, Dalveer Bhandari. vi) Author: Justice Dalveer Bhandari. vii) Reference: AIR 2010 SC 2550, 2010 AIR SCW 1029. viii) Laws Involved: Indian Constitution, Article 165, Article 217. **C) INTRODUCTION AND BACKGROUND** The case explores Advocate General appointment rules. Uttaranchal State challenges High Court orders. These question appointing an Advocate General over 62 years. Central to this are Articles 165 and 217, shaping qualifications and tenure for Advocate General and High Court judges. **D) CASE FACTS** Originating from a Public Interest Litigation in Uttaranchal High Court. It questioned L.P. Nathani’s Advocate General role. The issue was his age, over 62, the High Court judge’s retirement age under Article 217. The High Court demanded a state response. **E) LEGAL ISSUES** Does a High Court judge’s age limit under Article 217 affect the Advocate General’s appointment as per Article 165? **F) PETITIONER/ APPELLANT’S ARGUMENTS** The State of Uttaranchal, represented by Shri Dinesh Dwivedi, emphasized past judicial interpretations which had established that the age limit for High Court judges does not apply to the Advocate General. The appellant referenced previous rulings including G.D. Karkare v. T.L. Shevde & Others (AIR 1952 Nagpur 330) and Atlas Cycle Industries Ltd. Sonepat v. Their Workmen (1962 Supp. (3) SCR 89), asserting the independence of the Advocate General’s office from age restrictions. **G) RESPONDENT’S ARGUMENTS** The respondents, by not appearing in the Supreme Court, displayed a lack of commitment to the case. This non-serious approach suggested a weak stance on their end regarding the challenged appointment of the Advocate General. **B) RELEVANT LAWS** i. Key legal provisions are Articles 165 and 217. Article 165 governs state Advocate General appointments. Article 217 defines High Court judges’ terms, including retirement age. **H) JUDGMENT** a. RATIO DECIDENDI i. The Supreme Court backed the appellant’s view. It clarified that the Advocate General’s appointment is not limited by the High Court judges’ age rule in Article 217. The court underscored the Advocate General’s unique, independent role. **b. OBITER DICTA** i. The court condemned public interest litigation misuse. It highlighted the strain such actions put on the judicial system, overshadowing genuine cases. **I) CONCLUSION & COMMENTS** The decision confirms the Advocate General’s independence from judiciary age limits. It reinforces constitutional separation of roles and warns against public interest litigation abuse. **J) REFERENCES** a. Case References i. G.D. Karkare v. T.L. Shevde, AIR 1952 Nagpur 330. ii. Atlas Cycle Industries v. Their Workmen, 1962 Supp. (3) SCR 89. iii. People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235. iv. M.C. Mehta v. Union of India, AIR 1987 SC 1086. v. Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652. b. Statute References i. Constitution of India, Articles 165 and 217. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Islamic Academy Of Education vs State Of Karnataka And Others (2003)](https://lawfoyer.in/islamic-academy-of-education-vs-state-of-karnataka-and-others-2003/) **Published:** March 28, 2024 **Author:** LawFoyer **Content:** ### A) ABSTRACT / HEADNOTE The case of *Islamic Academy Of Education vs State Of Karnataka And Others* (2003) delves into the nuanced interpretation of educational rights under Article 30 of the Indian Constitution. Central to the dispute is the autonomy of unaided minority educational institutions in setting admission criteria and fee structures, juxtaposed against regulatory measures by the State to uphold academic standards and prevent maladministration. This landmark judgment addresses the fine balance between institutional autonomy and governmental oversight, delineating the permissible extent of State intervention in the administration of private unaided educational institutions, including those established by minorities. **Keywords:** Autonomy, Unaided Institutions, Minority Rights, Educational Administration, State Regulation, Article 30, Admission Criteria, Fee Structure, Supreme Court Judgment. ### B) CASE DETAILS - **Judgement Cause Title:** Islamic Academy Of Education And … vs State Of Karnataka And Others. - **Case Number:** Writ Petition (civil) 350 of 1993. - **Judgement Date:** 14/08/2003. - **Court:** Supreme Court of India. - **Quorum:** V. N. Khare, S. N. Variava, K. G. Balakrishnan, Arijit Pasayat, S.B. Sinha. - **Author:** V. N. Khare. - **Citation:** 2003 6 SCC 697. - **Legal Provisions Involved:** Article 30 of the Indian Constitution, and related education laws and regulations. ### C) INTRODUCTION AND BACKGROUND OF JUDGEMENT The judgment in Islamic Academy Of Education vs State Of Karnataka emanates from the interpretation of the rights of minority educational institutions under Article 30 of the Indian Constitution. The roots of this case trace back to varying interpretations of the T.M.A. Pai Foundation judgment. Discrepancies in understanding led to diverse State regulations impacting the autonomy of unaided private educational institutions, particularly in admissions and fee structures. This case aimed to resolve these ambiguities, providing clarity on the extent of the regulatory authority of the State over unaided private and minority educational institutions. ### D) FACTS OF THE CASE The petitioners in this case, primarily unaided private educational institutions, contended that their autonomy was being unduly restricted by various state-imposed regulations. These included limitations on the administration’s freedom in student admissions and fee determination. The State, defending its regulations, argued for necessary oversight to maintain educational standards, prevent maladministration, and ensure access for economically weaker sections. This clash of interests between institutional autonomy and state control formed the crux of the case. ### E) LEGAL ISSUES RAISED 1. Whether unaided private educational institutions have complete autonomy in their administrative decisions, particularly in matters of student admissions and fee structures. ### F) PETITIONER/APPELLANT’S ARGUMENTS The petitioners argued for maximal autonomy for private unaided educational institutions. They emphasized their right to self-regulation in admissions and fee determinations, citing Article 30 of the Indian Constitution. The petitioners contended that state regulations imposed unfair limitations on their administrative freedom, contradicting the essence of being unaided institutions. ### G) RESPONDENT’S ARGUMENTS The State argued for the necessity of regulatory oversight over unaided educational institutions to ensure merit-based admissions, prevent capitation fees, and protect the interests of economically and socially disadvantaged students. The State asserted that such regulation was essential for maintaining educational standards and public interest. ### H) JUDGEMENT #### a. RATIO DECIDENDI The Supreme Court held that while unaided educational institutions, including minority institutions, enjoy autonomy, this right is not absolute. The Court upheld that regulatory measures by the State are permissible, provided they ensure fair and merit-based admissions and prevent profiteering. The judgment distinguished between the rights of minority and non-minority institutions, with minority institutions enjoying certain privileges under Article 30. However, it affirmed that both types of institutions must adhere to reasonable regulations ensuring educational standards. #### b. OBITER DICTA The Court observed the critical role of education in national development and the need for a balanced approach that safeguards institutional autonomy while ensuring educational quality and social justice. ### I) CONCLUSION & COMMENTS The Supreme Court’s judgment in Islamic Academy Of Education vs State Of Karnataka establishes a harmonious balance between the autonomy of unaided educational institutions and the State’s role in regulating educational standards. The decision underscores the principle that while autonomy is vital, it must coexist with accountability and adherence to norms ensuring quality education and social equity. ### J) REFERENCES #### a. Important Cases Referred - T.M.A. Pai Foundation vs State of Karnataka - St. Stephen’s College vs University of Delhi - Unni Krishnan, J.P. and Ors. vs State of Andhra Pradesh and Ors. - The Ahmedabad St. Xavier’s College Society vs State of Gujarat and Anr. #### b. Important Statutes Referred - The Indian Constitution, particularly Article 30. **Categories:** Case Analysis, Constitutional Law Cases --- ### [Frank Anthony Public School vs Union Of India](https://lawfoyer.in/frank-anthony-public-school-vs-union-of-india/) **Published:** March 28, 2024 **Author:** LawFoyer **Content:** **A) ABSTRACT** The Supreme Court, in Frank Anthony Public School vs Union Of India & Ors, tackled a crucial question. It examined whether sections 8 to 11 and 12 of the Delhi School Education Act, 1973, infringed upon Article 30 rights of unaided minority schools. The case struck a balance between self-administration rights of these institutions and the State’s regulatory role in education. The Court invalidated Section 12, highlighting that self-governance does not include mismanagement. Key Terms: Minority Educational Institutions, Delhi School Education Act, Article 30, Supreme Court, Unfair Discrimination, Education Quality, Regulatory Oversight. **B) CASE PARTICULARS** i) Case Title: Frank Anthony Public School vs Union Of India & Ors. ii) Case ID: Civil Writ Petition No. 587 of 1984. iii) Decision Date: 17th November 1986. iv) Court: Supreme Court of India. v) Bench: Justices O. Chinnappa Reddy and G.L. Oza. vi) Opinion by: Justice O. Chinnappa Reddy. vii) Reference: 1987 AIR 311, 1986 SCC (4) 707. viii) Legal Framework: Article 30, Indian Constitution; Sections 8-12, Delhi School Education Act, 1973. **C) CASE ORIGIN AND CONTEXT** The case emerged from Frank Anthony Public School Employees Association’s challenge. They claimed Section 12 of the Delhi School Education Act, 1973, was unconstitutional. This section exempted unaided minority schools from standard pay and employment terms. Such exemption caused salary and service condition disparities, prompting the Association to seek parity. **D) CASE FACTS** Frank Anthony Public School, a private minority institution, grappled with unequal pay and work conditions compared to public schools. This stemmed from Section 12’s exclusion of such schools from Delhi School Education Act’s sections 8-11. The petitioners sought equal pay and conditions, alleging Section 12’s unconstitutionality. **E) LEGAL ISSUES AT STAKE** The central legal query was whether Section 12 of the Delhi School Education Act violated Article 14’s equality principle and impinged on Article 30 rights for minorities. **F) PETITIONERS’ STANCE** Petitioners labeled Section 12 discriminatory, breaching Article 14. They argued that it caused unequal employee treatment in unaided minority schools. Their view was these sections didn’t infringe Article 30 rights, but were necessary regulatory measures for educational quality. **G) RESPONDENTS’ POSITION** Respondents defended Section 12 as a legitimate differentiation, preserving administrative autonomy under Article 30. They feared removing it could financially strain unaided minority schools like Frank Anthony Public School, forcing closure due to increased salaries and allowances. **H) COURT’S FINDINGS** **a. DECISION REASONING** The Court deemed Section 12 of the Delhi School Education Act unconstitutional and biased. It exempted unaided minority schools from crucial fair employment and education quality provisions. The verdict emphasized that self-administration doesn’t imply the right to mismanage. Imposing regulations for educational excellence and fair employment was considered appropriate and not in conflict with Article 30. **b. ADDITIONAL OBSERVATIONS** In its obiter dicta, the Court highlighted the intricate balance between minority institution autonomy and State educational oversight. It stressed that managing educational institutions, especially concerning teacher quality and employment terms, directly influences education quality. This is vital for public interest and national prosperity. **I) ANALYSIS & PERSPECTIVES** The Supreme Court’s judgment in Frank Anthony Public School vs Union Of India & Ors marks a pivotal clarification. It delineates permissible regulatory measures under Article 30 for minority institutions. The Court invalidated Section 12 of the Delhi School Education Act, advocating against discrimination and affirming the State’s responsibility in guaranteeing fair employment and consistent educational standards across all schools, including private minority ones. **J) SOURCES AND REFERENCES** **a. Key Case Citations:** - In re Kerala Education Bill, 1957 \[1958\] SCR 995. - Rev. Sidhajbhai Sabhai et al. v. State of Bombay et al. \[1963\] 3 SCR 837. - State of Kerala etc. v. Mother Provincial etc. \[1971\] 1 SCR 734. - The Ahmedabad St. Xaviers College Society & Anr. v. State of Gujarat & Anr. \[1975\] 1 SCR 173. - All Saints High School etc. v. Govt. of Andhra Pradesh A.I.R. 1980 SC 1042. **b. Relevant Statutes Referenced:** - Delhi School Education Act, 1973. - The Indian Constitution. **Categories:** Case Analysis, Constitutional Law Cases --- ### [ADR Drafting and Literary Society of Faculty of law, University of Lucknow, Lucknow, Uttar Pradesh are organizing 2nd National Law fest (Virtual)](https://lawfoyer.in/adr-drafting-and-literary-society-of-faculty-of-law-university-of-lucknow-lucknow-uttar-pradesh-are-organizing-2nd-national-law-fest-virtual/) **Published:** March 20, 2024 **Author:** LawFoyer **Content:** **About the University** The University of Lucknow or Lucknow University is a government-owned Indian research university based in Lucknow. Founded in 1867, the University of Lucknow is one of the oldest government-owned institutions of higher education in India. **About the Society** ADR, Drafting and Literary Society (ADLS) is an academic body that was constituted in 2022. It is a dedicated society that aims to provide a platform for students to enhance requisite skills. The Society conducts training programs and workshops, honing the drafting and argumentation skills of nascent legal minds. It organizes through its faculty and student body, various competitions, thereby enabling students to participate in external competitions organized both nationally and internationally. **About the event** The ADR, Drafting and Literary Society is going to host the Second National Law Fest, at the dawn of this summer, in virtual mode from 5th April to 7th April, 2024. **List of the competitions:** - Negotiation Competition - Client Counselling Competition - Debate - Article Writing Competition - Quiz **The brochure of the same is available through the link given below**: [https://lawfoyer.in/wp-content/uploads/2024/03/2nd-National-Online-Law-Fest2024-4.pdf-compressed-1.pdf](https://lawfoyer.in/wp-content/uploads/2024/03/2nd-National-Online-Law-Fest2024-4.pdf-compressed-1.pdf "Brochure") **Important Dates:** - **Last date to register** is **29th of March 2024** - **Date of Competition** is **5th to 7th April 2024** **Contact Info-** - **Nilansh Pathak–** 8765510008 - **Shreeya Singh-** 7355632380 - **Utkarsh Mishra –** 6388773916adr **Categories:** Events, Quiz --- ### [6th National Moot Court Competition by Gitarattan International Business School on 29th & 30th March 2024](https://lawfoyer.in/6th-national-moot-court-competition-by-gitarattan-international-business-school-on-29th-30th-march-2024/) **Published:** March 10, 2024 **Author:** LawFoyer **Content:** ![](https://lawfoyer.in/wp-content/uploads/2024/03/Flyer-1-1024x1024.jpg) [Download Brochure](https://lawfoyer.in/wp-content/uploads/2024/03/NMC-2024-Brochure-1.pdf) ## **ABOUT GIBS** Gitarattan International Business School was established in 2004 under the aegis of the Rohini Educational Society. The society is proudly running various other successful institutions in Delhi, like the Gitarattan Institute of Advanced Studies and Training, the Gitarattan Jindal Public School, and the Sovereign School. ## **ABOUT NATIONAL MOOT COURT COMPETITION** It gives us immense pleasure to announce that the ‘Courtroom- The Law Society of Centre for Legal Studies, Gitarattan International Business School is organizing **its 6th National Moot Court Competition on 29th & 30th March 2024**. It brings together students from different law schools of the country to compete in a fast-paced and challenging professional environment. It aims at giving exposure to law students on important issues arising in contemporary socio-economic and legal environments. Mooting is one of the most essential skills for any law professional. Moot courts or mock trials are usually based on hypothetical cases, involving emerging or unsettled areas of law. Law students, who participate in these activities, are given the opportunity to develop their research, legal writing and oral advocacy skills in a mock courtroom setting. Additionally, moot court presentation inculcates professional legal etiquettes in the students which equip them to adapt with courtroom practices. ## **Eligibility** Students pursuing their full-time 3-year LLB or 5-year LLB program (1 team per program per institute) from a university or Institute recognized by the Bar Council of India, are eligible to apply. ## **Date of Event** 29th and 30th March 2024 ## **Registration Fees** REGISTRATION FEE PER TEAM – 3000 Rs. /- (without accommodation ) **Please refer to the brochure for more details** **Last Date to Register- 16th March 2024** **Registration Link-** [**https://rzp.io/l/nmc2024**](https://rzp.io/l/nmc2024) **Brochure Link-** [**https://gitarattan.edu.in/wp-content/uploads/2024/03/NMC-2024-Brochure-1.pdf**](https://gitarattan.edu.in/wp-content/uploads/2024/03/NMC-2024-Brochure-1.pdf) ## **Awards and Rewards** **Winner Team-** Rs.35,000+ Trophy + Certificate of Merit + Hamper + Internship **Runner-Up Team –**Rs.25,000+ Trophy + Certificate of Merit + Hamper + Internship **Best Mooter –**Rs.10,000+ Trophy + Certificate of Merit + Internship **2nd Best Mooter-** Certificate of Merit **Best Researcher –**Rs.10,000+ Trophy + Certificate of Merit + A Free Publication in Journal **2nd Best Researcher –**Certificate of Merit **Best Memorial Petitioner –**Rs.5,000 + Trophy + Certificate of Merit + Internship **Best Memorial Respondant –**Rs.5,000 + Trophy + Certificate of Merit + Internship ## **Venue** Campus grounds of CLS GIBS in Rohini ## **Contact Information** In case of any queries, please mail us at nmc@gitarattan.edu.in Or Contact Bhumika Gupta (President)- +91 99719 34206 Ayush Sharma (Vice President)- +91 99539 43663 **Categories:** Events --- ### [Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SC 2299](https://lawfoyer.in/indira-nehru-gandhi-v-raj-narayan-air-1975-sc-2299/) **Published:** March 10, 2024 **Author:** LawFoyer **Content:** **NIGHILKUMAR M** (Government Law College, Dharmapuri) Affiliated to Tamil Nadu Dr Ambedkar Law University, Chennai, Tamil Nadu. **ABSTRACT / HEADNOTE** This paper is analysing the case *Indira Nehru Gandhi v. Raj Narain,* also known as election case*.* This case discusses the validity of 39th Constitutional Amendment Act, validity of Article 329A and the matter of electoral malpractice. The case is discussed by the Article 14, 31-B, 368, 329(A) of the Constitution of India and Section 123(7) of the Representation of People’s Act. Fact of this case is the Lok Sabha election was held in 1971. In this election Indira Gandhi was won and Raj Narain who is candidate against her, alleged against her for electoral malpractice. The case was filed before the High Court of Allahabad. The High Court was passed an order against Indira Gandhi that the election of Indira Gandhi is void on the ground of corrupt practice and she misused the Government vehicle. Indhira Gandhi was appealed before the Supreme Court of India against the judgment of High Court of Allahabad. The Apex Court after heard both side arguments passed the Judgment that the Article 329A which was inserted by 39th Constitutional Amendment Act, 1975, was repealed by the 44th Constitutional Amendment Act, 1978 and the election of Indira Nehru Gandhi is valid. ***Keywords*:** emergency case, election case, electoral malpractice, article 329A, indira gandhi, 39th amendment act, constituion of india, representative of peoples act, supreme court of india 1. CASE DETAILS** *Judgement Cause Title***Indira Nehru Gandhi v. Shri Raj Narain &Anr.*Case Number***Appeal (Civil) 887 of 1975*Date of Judgement***07.11.1975*Court***Supreme Court of India*Quorum***A.N. Ray (CJ) & H.R. Khanna & K.K. Mathew & M.H. Beg & Y.V. Chandrachud*Author***A.N. Ray*Citation***AIR 1975 SC 2299*Legal Provisions Involved***Article 14, 31-B, 368, 329(A) of the Constitution of India. Section 123(7) of the Representation of People’s Act.INTRODUCTION AND BACKGROUND OF JUDGEMENT** In this case dealing with the legal concept of constitutional validity of Article 329A and electoral malpractice or corrupt practice Article 329A says about Special Provision as to elections to parliament in the case of Prime Minister and Speaker. This Article speaks about no jurisdiction to exercise the matter of Prime Minister and Speaker and it was inserted in 39th Constitutional Amendment Act, 1975. After the judgment passed by the Court this provision was repealed by the 44th Constitutional Amendment Act, 1978. FACTS OF THE CASE** - In 1971, Lok Sabha General Election was conducted. Raj Narain was one of the candidates of that election who the political contender against Indira Gandhi for Rae Bareilly constituency. - In this election, Indira Gandhi and her party were won by securing 352 out of 518 seats. Raj Narain filed a case to nullify the election and against Indira Gandhi as accused for corrupt practise to her victory in that election. He alleged that Indira Gandhi used government vehicle, armed force and local police, distributed the liquor to vote for her. - Allahabad High Court declared that election of Indira Gandhi was void on the ground of corrupt practice and she misused the Government vehicle under Section 123(7) of Representative of People’s Act, 1951 and further she was barred from contesting the election for another six years.Indira Gandhi was aggrieved by the decision of High Court of Allahabad. She appeals to Supreme Court of India against the decision of that High Court and questioned about validity of Article 329A which amended by 39th Constitutional (Amendment) Act, 1975 was challenged, about Special provision as to elections to Parliament in the case of Prime Minister and Speaker. 1. LEGAL ISSUES RAISED** There are three main issues of this case to be framed by the Honourable Supreme Court of India as follows, 1. Whether clause 4 of Article 329A of the Constitution of India is constitutionally valid or not? 2. Whether Representation of People’s (Amendment) Act, 1974 and Election Laws (Amendment) Act, 1975 are constitutionally valid or not? 3. whether Indira Gandhi’s election is valid or not? APPELLANT’S ARGUMENTS** The counsels for Appellant submitted that, - The Attorney General, representing on behalf of the petitioner, argued that the ***Keshavnanda Bharti***case is not a relevant precedent to determine if judicial review is essential for ensuring free and fair elections. They emphasized that the aforementioned case focused on the amendment process of the Constitution, not the conduct of elections. - The said Article and Representation of People’s Act were passed for taking away the petitioner’s legal right. these acts were violating the free and fair election. Judiciary has power to interfere the election dispute. Amendments were violating the basic structure and especially, the principle of equality. So, these acts are unconstitutional. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that, - The respondent challenged the amendment act, arguing it violated the “basic structure doctrine” established by the Supreme Court in ***Kesavananda Bharati v. Union of India***. This doctrine limits Parliament’s power to amend the Constitution, ensuring it cannot alter its core principles. - The respondent further argued that while Article 368 grants Parliament the ability to amend the Constitution, this power is not absolute. The 39th Constitutional Amendment Act of 1975, by removing the courts’ jurisdiction over Prime Minister and Speaker elections, allegedly undermines the separation of powers enshrined in the Constitution. This separation is crucial, as the judiciary acts as the guardian of fundamental rights through judicial review, ensuring fair elections, a cornerstone of any democracy.Finally, the respondent contended that the amendment’s passage was illegal due to the detention of opposition MPs, violating the principle that even a two-thirds majority cannot grant Parliament the power to exercise executive or judicial functions. RELATED LEGAL PROVISIONS** - Article 329A of the Constitution of India denote that Special Provision as to elections to parliament in the case of Prime Minister and Speaker. – Repealed. - Article 14, 31-B, 368, 329(A) of the Constitution of India. - Section 123(7) of the Representation of People’s Act. JUDGEMENT** The Honourable Supreme Court of India pronounced the judgment of this case by majority that, *Amendment Act, 1951 and 1974 and Clause 4 of Article 329A of the Constitution of India is void:* - The Amendment Act, 1951 and 1974 were violated the basic structure of the Constitution. So, these amendment acts were struck down on the grounds that takes the power of jurisdiction of the court of law and hampers the judicial review. Clause 4 of Article 329A also struck down because of, The issue falls outside the scope of Parliament’s authority as it impinges upon the core, basic structure of the Indian Constitution. - This Honourable Supreme Court of India declared that Article 329A (4) of the Constitution of India is constitutionally void by using the landmark case ***Kesavananda Bharati***. *Indira Gandhi election is valid:* - Indira Gandhi was filed nomination on 1st February, 1971. Yashpal Kapoor was work under the government service. he terminated his job on 13th January, 1971. After on that date, he gave his speech in favour of Indira Gandhi and violated the provision of the Act, 1951. The Court observed that he delivered his speech after terminated his job on 13th January and so it does not part of corrupt practice under the Act, 1951. - The court cited Section 77(b) of the Representation of the People’s Act, 1951, clarifying that a political party’s election expenses are not the candidate’s individual expense. This section also specifies that government services used under Section 123(7) are not considered authorized by the candidate. Therefore, the court argues that Indira Gandhi, the contesting candidate, cannot be solely held liable for Shri. Yashpal Kapoor’s speech. - The Representative of the People’s Act of 1974 (Amendment) and the Election Laws Act of 1975 (Amendment) Act are consistent with the Constitution and are considered legal without any weakness. - Indira Gandhi elections in the Rae Bareli constituency was considered to be valid. CONCLUSION & COMMENTS** Indeed, this case is celebrated and land mark case. also known as election case. Again, and again court has proved that protection of rights of citizen or people by the Constitution of India, rule of law and especially ensured that the citizens are not deprived of free and fair elections. 1. REFERENCES** 1. Important Cases Referred** - Indira Nehru Gandhi v. Raj Narain[\[1\]](#_ftn1) - Kesavananda Bharati v. State of Kerala[\[2\]](#_ftn2) - Important Statutes Referred** - Constitution of India, 1950. - Representation of the People (Amendment) Act, 1974. - Election Laws (Amendment) Act, 1975. **Categories:** Case Analysis, Constitutional Law Cases --- ### [MATHEWS J.NEEDUMPARA AND OTHERS VS UNION OF INDIA AND OTHERS]  2023 SCC ONLINE SC 1339](https://lawfoyer.in/mathews-j-needumpara-and-others-vs-union-of-india-and-others-2023-scc-online-sc-1339/) **Published:** March 10, 2024 **Author:** LawFoyer **Content:** **CHOPPALI .VENKATA KALYANI, (DR. B R AMBEDKAR COLLEGE OF LAW, ANDHRA UNIVERSITY**) 1. **ABSTRACT / HEADNOTE** This case was related to rights and privileges of senior advocates as well as the designation of senior advocates. Articles 14, 19, and 21 of the Indian Constitution are involved in this case. Sections 16 and 23(5) of the Advocates Act, 1961, are involved in this case. Here, the petitioner is practicing as an advocate in the Supreme Court of India. He argued that all are equal before the law according to the Indian Constitution, so why should special privileges and rights be given to Senior Advocates? Needumpara and other advocates who are practicing as advocates filed a writ petition under Article 32 of the Indian Constitution for a declaration that the designation of advocates as senior advocates under Section 16 and 23(5) of the Advocates Act, 1961, as well as under Rule 2 of Order IV of Supreme Court Rules, 2013, creating special rights, privileges, and status not available to ordinary advocates, is unconstitutional and violative of Article 14 of the Indian Constitution. It will also affect meritorious lawyers. According to the Advocates Act, 1961, advocates can be classified into 2 types: senior advocates and other advocates. Those who are working in the Supreme Court and High Court confer senior designation. Section 2(a) of the Advocates Act, 1961 d”an advocate as a person who has enrolled in any bar” according to this act. On May 19, 1961, this act was passed by the parliament. This act has 60 sections and contains 7 chapters. This case dealt with the Supreme Court Rules, 2013, Rule 2 of Order IV of the Supreme Court Rules, 2013. ***Keywords*:** *Section 16, section 23(5) of advocates act 1961, Article 14 of the Indian constitution, Article 19 of the Indian constitution, Article 21 of the Indian constitution, Designations , Rights and privileges of senior advocates, Advocates, The supreme court rules, 2013, The contempt of courts act,1971* 1. CASE DETAILS:** *Judgement Cause Title***Mathews j.Needumpara and others vs. .union of India and others*Case Number***Writ petition Number (c):32 of 2023*Judgement Date***16/10/2023*Court***Supreme court of India*Quorum\\* Justice Mr.Sanjaykishankushal Justice Mr.Ravikumar Justice Mr.Sudhanshu Dhulia *Author***Justice Mr.Sanjaykishankushal*Citation***2023 SCC Online SC1339*Legal Provisions Involved***Article 14 and 32 of Indian constitution, Section 16 and 23(5) of Advocates Act ,1961 ,Rule 2 of Order Ⅳ of the Supreme court Rules,2013.1. INTRODUCTION AND BACKGROUND OF JUDGEMENT:** This case was totally dealt with Articles 14, which speak about the right to equality. In simple words, it speaks about all the citizens, 19, 21 of the Indian Constitution. It dealt with the Advocates Act, 1961, the Supreme Court Rules, 2013, and the Contempt of Courts Act, 1971. It speaks about rights, designations, and privileges of the Advocates Act, 1961. The petitioner contended that in the case of Indira Jaisingh vs. Supreme Court of India, the court said that there must be implications and formulations regarding sections 16, 23(5) of the Advocates Act, 1961. The petitioner was sentenced for 2 years for doing a wrong act, and the court imposed a sentence on him. The constitutional validity has been challenged regarding fundame td **.**of this court said that if any decision we said that classification is proper then it must be based on the reason but not arbitrary if we are taking the second hand the reason need not be a good one and it is immaterial. And the court again observed that the legislation had a broad discretion in the matter of legislation. This act does not discriminate the advocates .ntal rights in the case of State of A.P. v. McDowell & Co. \[(1996) 3 SCC 709\]. What type of classification was made by the court in the previous judgments is now settled in the catena of decisions in the case of Union of India v. Nitdip Textile processors l. The court stated that if a decision asserts a classification is proper, it must be based on reason rather than being arbitrary. When considering the second classification, the reason does not have to be good, and it is immaterial. The court also noted that the legislation had broad discretion in the area of legislation. This act does not discriminate against advocates. 1. FACTS OF THE CASE:** Here The petitioner is practicing as an advocate in the Supreme Court of India. They argued that everyone is equal before the law according to the Indian Constitution, so why should special privileges and rights be given to senior advocates? Needumpara and other advocates practicing as advocates filed a writ petition under Article 32 of the Indian Constitution for a declaration that designating advocates as senior advocates under Section 16 and 23(5) of the Advocates Act, 1961, as well as under Rule 2 of Order IV of the Supreme Court Rules, 2013, creating special rights, privileges, and status not available to ordinary advocates, is unconstitutional and violates Article 14 of the Indian Constitution. This will affect meritorious lawyers. According to the Advocates Act, 1961, advocates can be classified into two types: senior advocates and other advocates. Those working in the Supreme Court and High Court receive senior designation.Section 2(a) of the Advocates Act,1961 defines Advocate A person who has enrolled in any bar according to this act is known as advocate. On May 19 ,1961 this act was passed by the parliament. This act has 60 sections and it contains 7 chapters. This case dealt with the Supreme court Rules,2013 Rule 2 of order Ⅳ of Supreme court Rules,2013. LEGAL ISSUES RAISED:** 1. Whether the classification of Advocates under Section 16 and 23(5) of Advocates act, 1961 ,rule 2 of Order Ⅳ of Supreme rules,2013 is the violative of Article 14 Indian constitution ? 2. Whether the act really showed any variation between senior and junior advocates ? 3. Whether this act has given any special status to senior advocates as mentioned by the petitioner? **PETITIONER/ APPELLANT’S ARGUMENTS:** The petitioner stated that the Designation of senior advocates under section 16 .23(5) of Advocates act, 1961 o**f** the Act was illegal and unconstitutional and it is a clear violation of fundamental rights (Article 14,19,21) of the Indian constitution.It was also stated that special privileges and status was provided only for the a class of advocates which are not available to all the ordinary advocates making it unconstitutional in nature.So this eventually resulted in dominance class of advocates over the other laudable advocates leaving them behind unfair treatment. - The petitioner stated that the Supreme court in the previous case of **Indira Jai Singh vs UOI** through secretary general and others one, upheld the provisions of the aforesaid act designation of advocates as a senior advocates.it could further in the reliance of aforesaid provisions which is unfair in nature would amount to the enactment of judicial legislation. - The petitioner contended that we cannot adopt the English law or Roman law which is feudal in nature which was followed back from 18th century. - It is further contended by the petitioner destroyin the foremost of the afore said act which aims single unified bar for the entire country. - The petitioner contended that the lawyers have lost the faith in the system of merit ,character knowledge found that granted by the court them a title of senior advocate is alone treated by them as a sign of prosperity in their profession. - Even politicians and other high ranking bureaucrats have their desire to get their kinfolk as senior Advocates. - The petitioner also submitted that the present petition is filed for ensuring the judicial transparency sought to take over the proceedings initiated by the petitioners. - The Above act was come into existence to smoothen the working of legal system. And the act is completely destroys the laudable purpose .The Lawyers shouldn’t go extreme dishonor of having to apply for the designation. **RELATED LEGAL PROVISIONS: **A)Legal provisions involved in this case:** **THE CONSTITUTION OF INDIA-** ***ARTICLE14:****“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”* ***ARTICLE 19:****Freedom of Speech and Expression: “Article 19 of the Constitution provides freedom of speech which is the right to express one’s opinion freely without any fear through oral/written/electronic/broadcasting/pres”* *“**SECTION 16**. Senior and other advocates.—* *(1) There shall be two classes of advocates, namely, senior advocates and other advocates. *(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability \[standing at the Bar or special knowledge or experience in law\] he is deserving of such distinction* *“ (i) senior advocates shall have pre-audience over other advocate.* *(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.* *(4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate: \[Provided that where any such senior advocate makes an application before the 31st December, 1965, to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly.”* ***SECTION 23****. Right of pre-audience.— (5) Subject as aforesaid—* *ates, and (ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority.”* ***SECTION 24A****: “It states that a person, who is convicted of an offence which involves moral turpitude, cannot be enrolled as an advocate. This applies till two years of elapsing since the expiry of the sentence. While this is a disqualification for enrolment, the Supreme Court has held that if the disqualification is incurred after enrolment then the advocate must be disbarred for two years.”* ***SECTION 29****: “This Section states that advocates are the only recognised class of persons who are entitled to practise law. From the day they are appointed, only the class of ‘advocates’ are allowed to practise the profession of law.”* ***SECTION 30****: “This Section defines the right of advocate to practise. This Act allows an advocate, the right to practise throughout the territory, before all the courts and tribunals.”* ***SECTION 35****: “This Section defines the punishment of advocates for misconduct. It states that when a receipt of a complaint is submitted or a State Bar Council has* *reason to believe that any advocate on its roll has been guilty of professional or other misconduct, then it shall refer the case for disposal to its Disciplinary Committee. The Disciplinary Committee of a State Bar Council would then fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.”* **JUDGEMENT:** The court said that in the case of Indira Jai Singh vs. Supreme Court of India, what type of provisions are mentioned in this act regarding the designation of senior advocates and advocates that are provided illegally, leading to judicial activism. Not only this, but there should also be alterations and changes in the above-mentioned act. The court also stated that the petitioner’s argument was inappropriate. The petitioner’s arguments completely discriminate against the lawyers and the working system of lawyers; he insults the entire judiciary system. It was alleged that the lawyers in the post-liberalization period were not recognized for their knowledge and skills but for their wealth and connections. The petitioner did not stop his allegations on lawyers; the bench had lost its patience as well as self-reliance. The petitioner not only accuses advocates but also government officials and bureaucrats. He continues to blame meritious lawyers. It is not at all correct to spoke like this about advocates and senior advocates, it is a duty of every citizen should give respect the others. Petitioner had crossed his limits here the court was ready to take action against petitioner under the Contempt of courts act,1971 and the court declared ineligible and he doesn’t had chance to argue in the court. The court found that the arguments made by the petitioner completely lack value and apology; the petitioner made allegations against all kinds of professionals and bureaucrats. Due to his allegations, people think that there is no justice happening in the courts. No one is ready to enter the legal profession, as they don’t show interest. This will impact the youngest lawyers, some of whom come from national universities and schools. If any provision violates the fundamental rights or any provision of the Indian Constitution, it may affect people and not just the provision. The court referred to this point in the case of Public Services Tribunal Bar Association VS. State Of UP and State Of A.P. vs. Mcdowell. The classification of advocates and senior advocates under section 16 should be made by the legislature. The legislature has all powers to make any law for such classifications; the classification must have a reason, though the reason does not need to be a good one. The court dismissed the petition without any costs awarded. **RATIO DECIDENDI :** - The court said that in the case of **Indira Jai Singh vs Supreme Courtof India**, what type of provisions said in this act regarding designation of senior advocates and advocates which are provided illegally and that leads to judicial activism. Not only this but also there should be alterations and wording in the above said act. The court also stated that arguments of the petitioner was in inappropriate way. The arguments of the petitioner completely discriminating the lawyers and the working system of lawyers he insults the entire judiciary system. It was alleged that the lawyers in the post liberalisation period there not found for their knowledge and skills but for the manifestation wealth and propinquity. - The court found that the arguments made by the petitioner completely lack of value and apology, made allegations on all kinds of professionals and bureaucrats. because of his allegations people think that there is no justice happen in the courts . And no one is ready to enter into legal profession they doesn’t show interest to enter into legal profession. It will impact on youngest lawyers and some of them come from nation la universities and schools. Classification of advocates doesn’t violates the principles the Indian constitution. - The court dismissed the petition with no order as to costs. **CONCLUSION& COMMENTS:** In my opinion, there is no classification between advocates and senior advocates in the Advocates Act, 1961. I would like to recommend that there should be a committee/commission to take action against this kind of petitioners. I think the classification of advocates does not violate the provisions of the Indian Constitution. These types of lawyers should be dismissed by the Bar Council of India, but it will not affect The Supreme Court Rules, 2013. I would request all lawyers not to raise such petitions because it will affect future generations of lawyers. People do not believe in lawyers and the legal profession. - **REFERENCES** - **Important Cases Referred:** - Indira jaisingh vs supreme court of india wp(c) no. 454 OF 2015 - Public services tribunal bar association vs State of up wp No.803(sb) of 1998 - State of ap vs MC Dowell 1996 (3) JT (sc) 679 - Important Statutes Referred** - The Advocates act,1961. - The contempt of courts act, 1971. - The supreme court rules,2013. - The Indian constitution. **Categories:** Case Analysis, Constitutional Law Cases --- ### [National Legal Service Authority v. Union of India, AIR 2014 SC 1863](https://lawfoyer.in/national-legal-service-authority-v-union-of-india-air-2014-sc-1863/) **Published:** March 10, 2024 **Author:** LawFoyer **Content:** **JAHNVI GOEL** (AMITY UNIVERSITY, LUCKNOW) ABSTRACT / HEADNOTE** This particular case was a landmark decision that assured and gave guarantee to the rights and protection of the transgender community in India for the very first time and discussed “gender identity” and “third gender” at great length. The first petition was filed by the National Legal Services Authority of India (NALSA) to give legal recognition to people who tend to fall outside the classification of male/female gender binary, including persons who identify themselves as “third genders”. The court recognizes the discrimination and violation of rights in this case faced by transgender individuals on an everyday basis due to societal norms and lack of public awareness. Also, the violation of rights guaranteed by Articles 14, 15, 16, 19, and 21 of the Indian Constitution. The court mandated and held the right to gender identification beyond the given traditional binary system, legally recognizing the existence and identity of a third gender and providing legal protections and opportunities for this marginalized group. The identification of one’s gender identity for one’s pride and human dignity was directed and followed by courts. It referred to the international human rights, such as the Yogyakarta Principles which gives light to gender orientation and identity at great length. Overall, the judgment ensured responsibilities for both Governments (state and central) to ensure the rights of the TG community are being maintained and respected in the society and also to provide equal status and protection to them. To recognize the unified importance of the right to privacy and the right to gender identity, and maintain equality and inclusion for all under the law, the court held a precedent. ***Keywords*:** Transgender persons, gender identity, right to life, human rights. Marginalized community, equality under the law. INTRODUCTION AND BACKGROUND OF JUDGEMENT** To safeguard and emphasize the rights of persons belonging to the transgender community in India two writ petitions were filed by the National Legal Services Authority. The first petition (Writ Petition No. 400 of 2012) was submitted by the National Legal Services Authority, formed under the Legal Services Authority Act, 1997. Following this, a second petition (Writ Petition No. 604 of 2013) was filed by the Poojya Mata Nasib Kaur Ji (Women Welfare Society), an association dedicated to safeguard the rights of the Transgender ( kinnar) persons. Moreover , Laxmi Narayan Tripathi, who also identified himself as Hijra, was involved in the case and therefore, approached the court as well. Laxmi Narayan Tripathi brought to light that as a Hijra, his rights guaranteed under Articles 14 and 21 of the Indian Constitution were being infringed. He encouraged the court to take a step to put a stop to more discrimination against himself and other vulnerable members of the marginalized community. FACTS OF THE CASE** Tracing the historical background of the third gender identity in India and the position accorded to them in the Hindu Mythology, Vedic and Puranic literatures, and the prominent role played by them in the royal courts of the Islamic world etc, the first reference to transgenders in Hindu mythology is Mohini, the female avatar of Vishnu, who appears in the Mahabharata and Vishnu Purana, also mentioned in the Ramayana, transgender individuals (hijras) demonstrate loyalty to Lord Rama during his exile, leading him to grant them the power to confer blessings on auspicious occasions. They are further mentioned in the Mahabharata, where Aravan is put forward as a sacrifice for victory in the battle of Kurukshetra war, he was the son of Ulupi and Arjuna in the historical text (Mahabharata), Lord Krishna, who disguised himself as Mohini, offers to marry Aravan,thus, arriving to the tradition of transgenders (hijras) in Tamil Nadu calling themselves as Aravanis. Therefore , Hindu mythology always held and accepted transgender persons in a status equal to other genders and showed them equal respect and importance. In this particular case, two writ petitions were filed to safeguard and protect the rights of the transgender persons in India. The first petition was put forward by the National Legal Services Authority (NALSA), Following this petition, another petition was submitted by the Poojya Mata Nasib Kaur Ji, from Women Welfare Society, which fights for the rights and protection of the transgender community, especially the “kinnar” community. Lakshmi Narayan Tripathi, also urged the court to take a step to end the discrimination against the community for good since his rights under article 14 and 21 are being violated. As a result, the TG community was recognized and legally entitled to fundamental rights under Articles 14, 15, 16, 19(1)(a), and 21 of the Indian Constitution, with a special reference to international human rights treaties such as the Yogyakarta Principles which specifically recognize freedom of sexual orientation and identity as part of human rights, The Court further held that certain programs were required to be set up for public awareness and consciousness to tackle and prevent the stigma and societal notions against the TG community and gave importance to the recognition of the “third gender” in official government documents. Moreover, the court addressed the state and central governments to provide opportunities and resources in education and public sectors and to set up social welfare schemes for the upliftment of the transgender community. LEGAL ISSUES RAISED** 1. Whether non-recognition of the gender identity of the members of the transgender community result in the infringement of their rights as guaranteed by Article 14, Article 15, Article 16, Article 19 and Article 21 of the Constitution? 2. Whether persons who do not fit under the traditional male/female gender binary can be legally acknowledged as “third gender” persons? **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioners submitted that: 1. Binary gender norms infringe upon fundamental rights such as the Right to Equality (Article 14), Right to Life and Personal Liberty (Article 21), and Freedom of Expression (Article 19). 2. Due to the non-identification of individuals as the third gender, the basic human dignity of such individuals is violated which marginalizes them and forces them to live on the fringes of society for no fault of theirs. 3. The right to choose one’s gender identity is integral to the right to lead a dignified life, which is guaranteed by Article 21 of the Constitution of India. 4. Legal recognition of gender identity should not be contingent upon medical procedures like sex reassignment surgery or sterilisation or hormonal therapy, nor should individuals be pressured to conceal, suppress or deny their sexual orientation or gender identity. 5. Transgender persons should have the right to choose their gender classification, whether male, female, or transgender, within established rules, regulations or protocols. 6. Legal Recognition of Third Gender is essential as it enabled transgender persons to assert their identity in official documents and access government welfare schemes and entitlements since the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable. RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that: 1. The state had already established an “Expert Committee on Issues Relating to Transgender” to address all kinds of opinions and concerns and to improve the lives of transgender individuals. The expert Committee aimed to initiate a number of diverse opinions, including petitioners, to further implement and form comprehensive policies and structures. 2. Several states and union territories have already taken steps for the betterment of the lives of the transgender community. 3. The problems highlighted by transgender individuals in the petitions are regarded as sensitive human rights issues and the Ministry of Social Justice and Empowerment is responsible for addressing these concerns and will consider input from the Expert Committee and petitioners during the consultation process. **JUDGEMENT** - **RATIO DECIDENDI** The Supreme Court, in response to NALSA’s submissions, affirmed the gender neutrality of Article 14 and Article 19(1)(a) also the provisions under Articles 15, 16, and 21 of the Indian Constitution, applying to all individuals, including transgender persons. The Court mandated and directed to prevent discrimination against the marginalized community, considering it an infringement of rights guaranteed by Articles 15 and 16. - **OBITER DICTA** Constitutional provisions, particularly Articles 19 (freedom of expression) and 21 (right to life and dignity), were interpreted to protect gender identity as part of the right to dignity and freedom.The Court acknowledged the umbrella term “transgender” encompassing various identities and experiences, including pre-operative, post-operative, and non-operative individuals and historical discrimination against transgender communities, such as Hijras, Eunuchs, Kothis, Aravanis, Jogappas, and Shiv-Shakthis, was acknowledged. Public awareness programs, social welfare schemes, improved medical care, and the implementation of the Expert Committee’s recommendations were among the directives provided by the Court.International instruments like the Yogyakarta Principles, affirming the right to privacy regardless of sexual orientation or gender identity, were cited. The State was directed to recognize transgender persons’ self-identification and as the ‘third gender’ and acknowledge their right to be treated with the same fundamental rights, also to extend reservations for their social and educational backwardness in the eyes of the law and address issues like sexual and mental health. CONCLUSION& COMMENTS** Since India has historically lacked awareness regarding gender identity and issues, transgender persons have always faced a certain denial of their rights as evident in societal attitudes and legal framework. This is a landmark decision where issues like right to identify as a “third gender” was cleared and a set of guidelines were maintained and looked into for the first time. The case not only helped legalize non binary gender identities but also the fundamental rights the community deserves. Both the central and the state government took certain measures to protect and safeguard the rights of transgender persons as a part of the Court’s judgment. 1. **REFERENCES** 1. **Important Cases Referred** 1. Shivani Bhat vs State Of Nct Of Delhi & Ors on 5 October, 2015 1. 1. Arunkumar vs The Inspector General Of Registration on 22 April, 2019 1. Important Statutes Referred** 1. Constitution of India- Article 14, 15, 16, 19(1)(a), and 21 1. Universal Declaration of Human Rights (UDHR)- Article 6 1. International Covenant on Civil and Political Rights (ICCPR)- Article 16 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Pavana Dibbur v. Enforcement Directorate, Criminal Appeal NO.2779 OF 2023](https://lawfoyer.in/pavana-dibbur-v-enforcement-directorate-criminal-appeal-no-2779-of-2023/) **Published:** March 10, 2024 **Author:** LawFoyer **Content:** **Rajita** (VMS College of Law) **ABSTRACT:** The case of Pavana Dibbur v. Enforcement Directorate, Criminal Appeal No. 2779 of 2023 is an example of the legal issues nearby the actions of the Enforcement Directorate (ED) of India. Pavana Dibbur, who is filing this appeal, objected to the provisions imposed by the ED. The document does not clearly state the specific nature of these measures or the grounds on which Pavan’s appeal is made. However, it may be inferred that this appeal is probably concerned with allegations about procedural improprieties, legal mistakes or constitutional breaches committed by Enforcement Directorate. This outcome has implications for regulatory enforcement practices and individual liberties within its jurisdiction because; depending on how the court decides this matter, this process could affect procedural standards and legal boundaries that govern enforcement agencies whereby both governmental authority and individual protections are then involved. This case underscores why a balance should exist between regulatory oversights as well as protection of rights in individuals subjected to enforcement actions with potential broader implications beyond the facts surrounding this appeal to wider legal and regulatory frameworks. **Keywords:** *Pavana Dibbur, Enforcement Directorate, Criminal Appeal, Procedural irregularities, Regulatory enforcement.* ###### CASE DETAILS ***i)****Judgement Cause Title***Pavana Dibbru v. The Directorate of Enforcement***ii)****Case Number***Criminal Appeal No.27779 OF 2023***iii)****Judgement Date***November 29, 2023***iv)****Court***SUPREME COURT OF INDIA***v)****Quorum***Pankaj Mithal, Abhay S.oka***vi)****Author***Abhay S.oka***vii)****Citation***Criminal Appeal No.2779 of 2023***viii)****Legal Provisions Involved***Prevention of Money Laundering Act (PMLA), Section 3–Criminal Procedure Code, 1973, Section 482–Income Declaration Scheme, 2016–Indian Penal Code , 1860, Section 120-B ###### INTRODUCTION AND BACKGROUND OF JUDGEMENT The appeal arose out of a complaint filed by the Enforcement Directorate under the PMLA in a case titled Pavana Dibbur v. Enforcement Directorate. The issue in dispute here revolves around whether the appellant’s acquisition can be labeled as “proceeds of crime”. It also raises relevant concerns about an individual’s involvement in money laundering without any apparent conviction during the initiation of substantive criminal charges.. Further, this case involves interpretation in relation to scheduled offenses under PMLA, particularly read with Section 120-B of the IPC. The court’s analysis is an important milestone in understanding the PMLA in India as it provides essential insight into the major arguments, judicial interpretations and implications that followed that decision. Remarkably, the appellant emerges victorious in the end. ###### FACTS OF THE CASE In the above legal case the respondent Pavana Dibbur v. Enforcement Directorate started by filing a complaint alleging Pavana Dibbur that she has violated the Act under the jurisdiction of Bangalore. The events were as follows: Pavana Dibbur acquired another property from Alliance Business School in 2011 and another property from Madhukar Angur in 2019. Then again, in 2017 Madhukar Angur was sued for obtain by force money from students. It is to the point to note that the appellant held the post of Vice-Chancellor in the University during those years in the middle of 2011 to 2015. In 2020, the ED begin a instance against Madhukar Angur and others for money laundering. This resulted in the attachment of the assets and in 2021 a complaint was filed against Pavana Dibber under the case, alleging her involvement in Madhukar Angur’s involvement in fraudulent bank accounts through which she funded her universities. Transacted money related to the financial condition of and thereby involves him in activities which are claimed to be illegal. On March 17, 2022, therefore as a result, the Special Court heard the objection and thus the appellant filed a discharge petition under Section 482 Cr.P.C. before the Karnataka High Court. On September 27, 2022 however; The High Court discharge his application to quash the complaint. Presently, the appellant is in appeal against that settlement of the High Court to quash the criminal proceedings begin against her under the Prevention of Money Laundering Act, 2000. ###### LEGAL ISSUES The raised questions are as follows: 1. Do the appellant’s acquired properties fall within the definition of “proceeds of crime” as per the law? 2. Can someone be accused of money laundering while not being specifically mentioned in initial criminal charges? 3. What is the legal position on charging those who are not indicted in the underlying criminal act? 4. Is there any relevance and validity for a list of scheduled offences stipulated under Prevention of Money Laundering Act, which is applicable to this case? ###### APPELLANT’S ARGUMENTS Counsel for the appellant advanced several arguments before the Apex Court in response to the case made by the respondent. It was held that none of the two properties in question fall within the definition of “proceeds of crime” under the Prevention of (PMLA). The appellant clarified that the first property was brought to the crime before he scheduled it. Secondly, it was claim on behalf of the appellant that in relation to the reply to the police blotter filed by the respondent, in reality no case was made out against the appellant under Section 3 PMLA and more distant, the appellant was also not named as an accused. Was done A person subject to any scheduled offense under PMLA. Thirdly, it was contended that the offense in respect of which the main charge of conspiracy was framed in the charge sheet related to only one of the four scheduled offenses under Section 120-B of the Indian Penal Code. Essential to the offense was the allegation that the accused had conspired to commit an offense under any of the four specified Scheduled offences, and such a charge under the PMLA would not lie unless so alleged in the charge sheet. ###### RESPONDENT ARGUMENTS On behalf of the respondent, it was contended that the learned representative of the Enforcement Directorate is now contesting the arguments made by the appellant in the National Court. Also appeared before the Supreme Court as Additional Solicitor General. The first submission is whether the appellant had the financial ability to acquire the second property cannot be determined at this stage . The alleged proceeds of crime were not per se “tainted” but it cannot be denied that they were not used to acquire other property. It should have been seen at the trial stage. Further, they added that it is now re-settled that if the appellant is in possession of any property involved in the offense under Section 201 IPC, he shall be prosecuted as an offense under Section 3 of the PMLA. Can shall be committed, even if he is not guilty of the original offense caused by the above. Thirdly, on the appellant’s plea on interpretation of Scheduled Offenses under PMLA, it was submitted that the Scheduled Offenses have to be read as they are and cannot be read to remove or alter them. Counsel contended that there is no warrant to interfere with the contempt order. ###### RELATED LEGAL PROVISIONS The legal provision regarding commission of the offence of money laundering by a person not accused in a ground offense is under Section 3 of the Prevention of Money Laundering Act, 2002 (PMLA), which reads as under: “Whosoever right or incidentally attempts to spoil or knowingly assists or deliberately is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, purchase or use and projecting or claiming it as unstained property shall be guilty of offence of money-laundering.” This provision successfully means people can be charged with money laundering even when they have not been an. accused in the original criminal offense that generated the proceeds of crime. It widen liability under PMLA to try the accused involved in the laundering of proceeds of crime even when they were not directly involved in the primary criminal activity. ###### JUDGEMENT The main dispute being made is that if all the people accused of a crime are found not guilty or if the charges for a specific crime are dissolve, then that crime no longer exists. Therefore, according to this outlook, nobody can bring actin against under Section 3 of the Prevention of Money Laundering Act (PMLA) because there are no taking from criminal activities. However, the rival view argues that an individual who is accused in a PMLA case and is involved in hiding or using money obtained from criminal activities can still be prosecuted under the PMLA as long as the original crime is still valid. Therefore, the argument that the appellant (the person appealing the case) was not mentioned as an accused in the chargesheets for the original crimes is rejected. Besides, the argument based on the explanation of the Schedule is addressed, stating that there is no claim of a criminal conspiracy for any offense in the organize beyond Section 120B of the Indian Penal Code. Therefore, it is state that the crime does not exist, and as a result, the appellant cannot be seek redress under Section 3 of the PMLA. ###### RATIO DECIDENDI Ratio is the decisive legal principle or reasoning that the court uses to make its decision. In this particular case, the ratio decidendi is likely to relate to how the court make clear and applies the provisions relating to determined by law under “Proceeds of Crime”. Prevention of (PMLA), and their relationship with Section 120-B of the (IPC). The court’s final decision on these matters forms the main legal basis for its decision. ###### CONCLUSION & COMMENTS The final decision of the Courts in the case of Pavana Dibbur v. Enforcement Directorate has rejected two contentions of the appellant. Emphasizes the importance of the third argument raised by his legal representative. The order provides an interpretation of the term “proceeds of crime” and lists specific offenses under the Prevention of (PMLA) in relation to Section 120(B) of (IPC). This in-depth examination not only clarifies the appellant’s position but also represents a significant advance in understanding how the specified offense and criminal conspiracy are linked within the money laundering law. This judgment marks a development in shaping the changing landscape of jurisprudence on PMLA. **REFERENCES** ###### Important Cases Referred 1. [](https://indiankanoon.org/doc/43352147/) - 1https://main.sci.gov.in/supremecourt/2022/42568/42568\_2022\_8\_1501\_4865 7\_Judgement\_29-Nov-2023.pdf ###### Important Statutes Referred 1. Prevention of Money Laundering Act, 2002 - Indian Penal Code,1860 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Association for Democratic Reforms v/s Union of India](https://lawfoyer.in/association-for-democratic-reforms-v-s-union-of-india/) **Published:** March 6, 2024 **Author:** LawFoyer **Content:** **Author: Hiteishi Sharma, KG Shah Law School / SNDT University** **ABSTRACT / HEADNOTE** *“If the people who are elected are capable and men of character and integrity….. If they are lacking in these, the Constitution cannot help the country ….. , and India needs today nothing more than a set of honest men …[**\[1\]**](#_ftn1)“* Yes, the founding fathers of the Indian Constitution and the initial Members of Parliament did aim to establish a strong and just democratic system. However, the Indian citizens were not made aware of the background of the candidates contesting for elections, which stands to be their fundamental right by Article 19(1)(a)[\[2\]](#_ftn2). This contributed to the Indian democracy seeing a steady increase in the level of criminalization creeping into the politics. This “criminalization of politics”, over time, limited the choice of voters to elect a suitable candidate, affected good governance, affected the integrity of public servants, and introduced a culture of violence in society. Today, the public faith in the efficacy of India’s democratic process has diminished, and accepted criminalization in politics as an unavoidable circumstance. This issue is further aggravated by the inadequacy of legal frameworks to prohibit convicted criminals from engaging in elections. To regain the trust of the citizens, it is crucial to strengthen the existing laws, ensure stricter enforcement, promote transparency in political funding and the decision-making processes, and promote accountability among political leaders. The Association for Democratic Reforms highlights the need for transparency in an election candidate’s criminal background, making this information accessible to the public, print, and electronic media to facilitate a more informed electorate and potentially encourage cleaner politics. ***Keywords*:** *Election Commission, democratic reforms, Constitution, information, criminal, candidate.* **CASE DETAILS** *Judgement Cause Title***Association for Democratic Reforms V/S Union of India*Case Number***Civil appeal 880 of 2017*Judgement Date***2nd November, 2002*Court***Delhi High Court*Quorum***Anil Dev Singh*Author***Anil Dev Singh*Citation***AIR 2001 DELHI 126, 2000 (57) DRJ 82, AIR 2001 DELHI 126, (2001) 1 PUN LR 54, (2001) 57 DRJ 82, (2001) 99 DLT 291*Legal Provisions Involved***Article19(1)(a) of the Indian Constitution, Article 324 of the Indian Constitution. Section 4A of Representation of the People Act, 1951.**INTRODUCTION AND BACKGROUND OF JUDGEMENT** Due to high costs associated with contesting elections, political powers looked up to criminals for funding. Subsequently, the criminal themselves joined the election fray and often even got elected. This situation not only undermined the democratic values but also threatened the well-being of society – the rapid spread and growth of criminalization of politics resulted in: - Criminal gangs, drug Mafias, smuggling groups, and other illicit entities establishing a vast network of connections with local government officials, politicians, and strategically placed individuals in the non-government sector. This significantly jeopardized the smooth functioning of the administration and the safety of life and property of the common man - The big smuggling syndicates, with their extensive international connections, permeating and contaminating numerous economic and financial undertakings, inflicting severe harm to the economic fabric of the nation. - Narcoterrorism networks emerging in regions like the north-western states of India - The Bombay bomb blast case and the subsequent communal riots in Surat and Ahmedabad have highlighted the concerning exploitation of India’s underworld by foreign entities, such as Pakistan’s ISI and international networks. These incidents have brought to light the intricate connections between the underworld and various sectors of Indian society Despite the valid concerns raised by government bodies and influential individuals, successive governments have not taken any significant action. Therefore, an NGO named **Association for Democratic Reforms** filed a petition in the Delhi High Court to compel implementation of certain recommendations regarding how to make the electoral process in India more fair, transparent and equitable. **FACTS OF THE CASE** - The Vohra Committee Report[\[3\]](#_ftn3) studied the problem of the nexus among criminals, politicians and bureaucrats in India.. - The Parliament had shown a great deal of concern about the increasing criminalization of politics (special session, August, 1997) - The Election Commission, issued an order under **Article 324 of the Constitution**, that all candidates for elections to Parliament and State Legislatures to file affidavits about their convictions in cases covered by Section 8 of the Representation of the People Act, 1951. It also suggested to disqualify persons from standing in the elections charged with serious offences. - The Commission illustrated the case of a rapist, convicted and sentenced to ten years imprisonment, being disqualified only for six years and being free to contest elections, even while in prison serving the last four years of his sentence[\[4\]](#_ftn4). - In the 1957 general elections, repoll was ordered only in 65 booths, in 1989 it was ordered in 1670 booths2. - In 1991, Bihar alone repoll was ordered in 1046 booths and in 2173 booths in 19962. - In 1984, Lok Sabha elections 33 persons were killed – this figure rose to 130 in 1989 and 198 for the 1991 Lok Sabha Poll.[\[5\]](#_ftn5) - A pre-assembly election report (1996), prepared by a top police official, identified 136 gangs of criminals, 55 of which were patronized by political parties. Almost 500 of the candidates who contested had criminal backgrounds. - The Election Commission revealed that in August 1997, 40 sitting MPS and 700 MLA’s had criminal records. - The Supreme Court in **Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil**, has also lamented the criminalization of politics which is the result of growing influence of money power during elections. **LEGAL ISSUES RAISED** 1. Whether Election Commission is empowered to issue directions as ordered by the High Court? 1. Whether the right to information of electoral candidates is under fundamental right to freedom of expression or not? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. The counsels for Petitioner seek a direction to insert a new **Section 4-A Representation of the People Act, 1951[**\[6\]**](#_ftn6)**, as the Election Commission cites it is not empowered to do so. 2. The Petitioner submitted that inter alia seeks an informed right of voting for the voters of this country based on information and knowledge about candidates seeking election to Parliament and in order to direct respondent No. 2 to put together the information on criminality of all the candidates for an election and make this information available to public and print and electronic media for wide dissemination. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent have expressed their inability to make the suggested amendments at this time and can neither commit to a specific timeline for doing so. However, they assure that they will work towards introducing a comprehensive Electoral Reforms Bill. 1. Electoral Reforms acknowledges receiving a message from the Ministry of Home Affairs concerning the necessity for candidates to disclose their assets, as well as those of their immediate family members.. **RELATED LEGAL PROVISIONS** **Constitution of India.** - Article 19(1)(a): *“Right to freedom of speech and expression”.* It comprehends right to know- right to receive information regarding matters of public concern. - Article 324: *“Superintendence, direction and control of elections to be vested in an Election Commission”* **Representation of the People Act,1951** - Section 4-A.: A person shall not be qualified to file his nomination forcontesting any election for a seat in the House of the People, the Council of States, Legislative Assembly or Legislative Council of a State unless he or she files – (a) a declaration of all his assets (movable/immovable) possessed by him/her, his/ her spouse and dependent relations, duly supported by an affidavit, and (b) a declaration as to whether any charge in respect of any offence referred to in Section 88 has been framed against him by any Criminal Court. **JUDGEMENT (RATIO DECIDENDI)** The High Court mandated the Election Commission to obtain and disclose to the public background information relating to candidates running for office, including information on their assets, criminal records, and educational background. **CONCLUSION & COMMENTS** For a healthy democracy, it is essential that the voter is knowledgeable about the background of the candidates. so that he can make an informed decision in casting his vote. **REFERENCES** 1. Important Cases Referred** Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil. Indian Express Newspapers (Bombay) Private Ltd. v. Union of India. - Important Statutes Referred** Constitution of India, Book by S.S Gill on *“Pathology of Corruption”* Representation of the People Act, 1951. --- [\[1\]](#_ftnref1)India’s first President, Dr. Rajendra Prasad’s remark in his valedictory address to the Constituent Assembly [\[2\]](#_ftnref2)Right to receive information regarding matters of public concern. \[**Article 19(1)(a): “Right to freedom of speech and expression”.**\] [\[3\]](#_ftnref3) The **Vohra Committee Report** was submitted by the former Indian Home Secretary, N. N. Vohra, in October 1993 [\[4\]](#_ftnref4) letter written by the Chief Election Commissioner to the then Prime Minister in Sept. 1997 [\[5\]](#_ftnref5) Book titled “**The Pathology of Corruption**”, S.S. Gill [\[6\]](#_ftnref6) In consonance with the recommendations of the Law Commission contained in its 170th Report **Categories:** Case Analysis, Constitutional Law Cases --- ### [Sondur Gopal v. Sondur Rajini](https://lawfoyer.in/sondur-gopal-v-sondur-rajini/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **AUTHOR: HEMANT JARWAL, UNIVERSITY OF FIVE YEAR LAW COLLEGE, UNIVERSITY OF RAJASTHAN** **ABSTRACT / HEADNOTE** In the present case, The husband (Appellant) and the Wife (Respondent) got married and left for Sweden. They were granted Sweden citizenship and In the same year, they moved to Mumbai, and then they shifted to Sydney and stayed there for about 3 years. After losing his job, the Husband moved back to Sweden with his family and after getting a new job in Sydney, the couple along with their children stayed in Australia from January to December 2003. then after some time the Wife, along with the children, came back to India and refused to return to Sydney. Then the Wife filed a Petition before the Family Court, Bandra seeking judicial separation and custody of the children and the Husband questioned the maintainability of the Petition and contended that the couple was a citizen of Sweden, domiciled in Australia, which was their domicile of choice, and hence, the jurisdiction of any of the Indian Courts was barred under Section 1(2) of The Hindu Marriage Act, 1955. Therefore the Family Court on the same grounds and reasoning held that the Petition of the Wife was not maintainable. Aggrieved by the decision of the Family Court, the Wife further filed an appeal in the High Court. However, None of these convinced the Supreme Court, and the Appeal was thereby dismissed. SC held, “In the absence of acquiring citizenship it is difficult to accept that the Appellant-Husband and his family decided to reside permanently in Australia” Thus, the High Court was correct and shifting residence to Australia with mere citizenship and lack of property in Sweden reverted domicile from what was in truth irrevocable Swedish, to the original Indian. Thereby the writ petition for judicial separation by the respondent’s wife is maintainable. ***Keywords* *(Minimum 5)*:** Indian Constitution, Hindu Marriage Act, 1955 , Domicile, Judicial separation, Custody of children, Maintainability, Jurisdiction, Marriage. **CASE DETAILS** *Judgement Cause Title***Sondur Gopal v. Sondur Rajini*Case Number***Civil Appeal No. 4629 of 2005*Judgement Date***15th July 2013*Court***Supreme Court of India*Quorum***The bench consisted of two judges, namely V. Gopala Gowda and Chandramauli Kr. Prasad.*Author***Justice Chandramauli Kr. Prasad.*Citation***AIR 2013 SC 2678*Legal Provisions Involved***Constitution of India — *A*rticle 245(2) Hindu Marriage Act, 1955— Section 1(2), 2(1), 10, 19. **INTRODUCTION AND BACKGROUND OF JUDGEMENT** In India,The Hindu Marriage Act guides Hindus to be in a systematic marriage bond. It gives meaning to marriage, cohabiting rights for both the bride and groom and safety for their family and children so that they do not suffer from their parental issues. The laws governing Hindu marriage, restitution of conjugal rights, judicial separation, divorce, annulment of marriage, maintenance, and guardianship are included in the Hindu Marriage Act, of 1955, which was passed by the legislature. The Hindu Marriage Act is an Act of the Indian Parliament that was approved on May 18, 1955. The Hindu Marriage Act, of 1955 was passed to protect the legal rights of Hindu brides and grooms who are joined by the holy bond of marriage. A person may have no home but he cannot be without a domicile. In order to make the rule effective, law assigns a domicile of origin to every person at birth. This prevails until a new domicile has been acquired – the domicile of choice. The only intention required for a proof of a change of domicile is an intention of permanent residence. In other words, what is required to be established is, the person who is alleged to have changed his domicile of origin has voluntarily fixed the habitation of himself and his family in the new country, not for a mere special or temporary purpose, but with a present intention of making it his permanent home and Residence alone, unaccompanied by this state of mind, is insufficient proof. 1. **Applicability of Hindu Marriage Act:** Section 2 of the Hindu Marriage Act 1955 states that this act applies to any person who is a Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or Arya Samaj. Any person who is a Buddhist, Jain, or Sikh also comes under this act. It also applies to any person living outside this territory except who is a Muslim, Christian, Parsi, or Jew by religion or it is proved that such person is being governed by Hindu law**.** The Hindu Marriage Act of 1955 applies to Hindus by religion, including those who are Buddhists, Jains, and Sikhs. It applies to any person who is a Hindu by birth or who has converted to Hinduism. The Act also applies to any person who is a Hindu under the definition provided in the Act. This holds even if they are not Indian citizens or reside outside India. The Act covers marriages where both parties are Hindus. It also covers marriages where one party is a Hindu, and the other party is not a Muslim, Christian, Parsi, or Jew. It is important to note that the Act does not apply to marriages of Muslims, Christians, Parsis, or Jews. They are governed by their respective personal laws. The Act applies to all Hindu marriages solemnized in India or abroad as long as they fulfill the conditions specified in the Act. It applies to both men and women. It provides provisions for divorce, maintenance, custody of children, and other related matters. 2. **Domicile:** A person is said to have a domicile in a country in which he/she is considered to have his/her permanent home. A person cannot have more than one domicile. Domicile is the country in which a person has a permanent residence. In terms of domicile, the residence does not relate to the physical aspect of maintaining a house or residence. It relates to the intention of a person to remain in a place forever unless circumstances should occur to change his/her intentions. Hence, maintenance of a residence or home does not serve to establish domicile, though it could add credence. For instance, if an Indian person moved to the USA temporarily on an H1B visa for employment purposes, his/her domicile would continue to be India, as the permanent residence of the person is still India. 3. Types of Domicile:** 4. **Domicile by Birth:** Domicile by birth or origin is the domicile of a person that he/she acquires it at birth from parents. The domicile of birth or origin is involuntary and continues to be the domicile of the person until the person chooses to create a permanent residence elsewhere. Most persons retain domicile by birth as their domicile, even long after moving abroad for job or education purposes. 5. **Domicile by Choice:** A person can take on a domicile by choice by taking up fixed residence in a country different from the domicile of birth. If an Indian national moves to the USA temporarily on an H1B visa, and then obtains citizenship or Green Card to stay in the USA indefinitely with no intention of returning to India, then it could be said that he/she has adopted a new domicile by choice. The person is required to prove his/her intention by acts or declaration for changing domicile. Hence, a forced residence abroad as a political refugee, fugitive, or for any other reason does not require to change in the domicile of the person, unless it is followed by voluntary adoption of the new domicile. **FACTS OF THE CASE The factual matrix, in this case, is that the Appellant Husband and the Respondent Wife got married on 25th of June, 1989 according to the Hindu rites at Bangalore. It was registered under the provision of the Hindu Marriage Act also. After the marriage the husband left for Sweden in the first week of July, 1989 followed by the wife in November, 1989. They were blessed with two children namely, Natasha and Smyan. Natasha was born on 19th of September, 1993 in Sweden. She is a down syndrome child. The couple purchased a house in Stockholm, Sweden in December, 1993. Thereafter, the couple applied for Swedish citizenship which was granted to them in 1997. In June, 1997, the couple moved to Mumbai as, according to the wife, the employer of the husband was setting up his business in India. The couple along with child Natasha lived in India between June, 1997 and mid 1999. In mid 1999, the husband’s employer offered him a job in Sydney, Australia which he accepted and accordingly moved to Sydney, Australia. The couple and the child Natasha went to Sydney on sponsorship visa which allowed them to stay in Australia for a period of 4 years. While they were in Australia, in the year 2000, the husband disposed of the house which they purchased in Stockholm, Sweden. The second child, Smyan was born on 9th February, 2001 at Sydney. The husband lost his job on 7th July, 2001 and since he no longer had any sponsorship, he had to leave Australia in the second week of January, 2002. The couple and the children shifted to Stockholm and lived in a leased accommodation till October, 2002 during which period the husband had no job. On 2nd of October, 2002, the husband got another job at Sydney and to join the assignment he went there on 18th of December, 2002. But before that on 14th of December, 2002, the wife along with children left for Mumbai. Later, on 31st of January, 2003, the wife and the children went to Australia to join the appellant- husband. However, the wife and the children came back to India on 17th of December, 2003 on a tourist visa whereas the husband stayed back in Sydney. According to the husband, in January, 2004 he was informed by his wife that she did not wish to return to Sydney at all and, according to him, he came back to India and tried to persuade his wife to accompany him back to Sydney. According to the husband, he did not succeed and ultimately the wife filed petition before the Family Court, Bandra inter alia praying for a decree of judicial separation under Section 10 of the Hindu Marriage Act and for custody of the minor children Natasha and Smyan. But the Husband questioned the maintainability of the Petition and contended that the couple was a citizen of Sweden, domiciled in Australia, which was their domicile of choice, and hence, the jurisdiction of any of the Indian Courts was barred under Section 1(2) of The Hindu Marriage Act, 1955. The Family Court on the same grounds and rationale held that the Petition of the Wife was not maintainable. Aggrieved by the decision of the Family Court, the Wife further filed an appeal in the High Court. **LEGAL ISSUES RAISED** 1. Whether the Hindu Marriage Act apply to all Hindus from around the world, irrespective of their domicile? 2. Whether the claim of the husband that the marriage cannot be dissolved under HMA due to Swedish domicile is right? 3. Whether by Considering the proofs brought by the Husband to the court, the Husband can be said to be domiciled in India or not? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. The counsels for Appellant submitted that he was served with notice of judicial separation and he then filed a counter-petition in the family court in Bandra, saying that such notice was by itself void as it was not maintainable. 2. Learned counsel of the appellant contended that they had Indian citizenship but were later domiciled in Sweden, and while he was currently residing in Australia his citizenship of Sweden along with similar conditions for his family members existed. 3. He contented that with no proper residence in India and a mix of other citizenship’s, there existed no Indian domicile. This unique point of view expounded in court was that the domicile of the husband would be the domicile of the wife and that moving away by choice from India after marriage, the provisions of the Hindu Marriage Act no longer applied. 4. Learned counsel for the appellant stated that the judicial separation offered under Section 10, along with custody of children, was void and he was not looking to domicile in India. 5. Things got a little subjective and personal, and the husband declared in an affidavit that he had premarital been fascinated by Stockholm, Sweden and that he had established in his mind that this would be his land of choice unto death, thereby making it his domicile irrefutably, (at least at first). He also argued that on a different and chronologically isolated note, following his wife’s (initial and alleged) desire to move to an English-speaking country, he retained his Swedish citizenship but almost immediately shifted domicile to Australia. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that the domicile of the family remained Indian even though they moved to Sweden and then Australia. 1. The learned counsel for the respondent stated that the Hindu Marriage Act itself shall apply to all Hindus irrespective of domicile. 1. The learned counsel for the respondent contended that even if the respondent’s domicile had Also changed to Swedish then their move to Australia and residence there cancels said domicile out reverting the original place of birth as ‘domicile’. **RELATED LEGAL PROVISIONS** 1. Constitution of India —** ***A*****rticle 245(2):** It states that “No law made by Parliament shall be deemed to be invalid on the ground that it would have the extra-territorial operation”. 1. Hindu Marriage Act, 1955— Section 1(2):** It states that “It extends to the whole of India except the State of Jammu and Kashmir , and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories”. 1. Hindu Marriage Act, 1955— Section 2(1):** It states that “This Act applies: 2. to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana, or Arya Samaj, 3. to any person who is a Buddhist, Jaina or Sikh by religion, and 4. to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi, or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation. The following persons are Hindus, Buddhists, Jainas , or Sikhs by religion, as the case may be: (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas, or Sikhs by religion; (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina, or Sikh by religion and who is brought up as a member of the tribe, community, group, or family to which such parent belongs or belonged; and (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina, or Sikh religion”. 1. Hindu Marriage Act, 1955— Section 10:** It states that “Judicial separation.- (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a divorce petition might have been presented. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so” - Hindu Marriage Act, 1955— Section 19:** It states that “Court to which petition shall be presented.- Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction: (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for seven years or more by those persons who would naturally have heard of him if he were alive”. . **JUDGEMENT (RATIO DECIDENDI)** 1. The First thing which the Honorable Court decided on was that the Hindu Marriage Act applies only to Hindus who are domiciled within the territory of India. Section 1(2) of the Act has an extra-territorial operation. It, however, would make no sense if the applicability of the Act was so wide that it could be enacted even when the issue had no nexus with India. It was hence, held that the Act would have an application beyond the Indian territory only when the necessary party(ies) have an Indian Domicile. This is the ‘Doctrine of Territorial-Nexus’ which lays down that it is not necessary that the parties must be physically located within the territories, but that the Act must have a sufficient territorial connection. And in the case of **Prem Singh v. Sm. Dulari Bai and Anr**. There is a relevant portion where of read as follows: “On a fair reading of the above provisions, it seems clear from the first section that the Act is in operation in the whole of India except in the State of Jammu and Kashmir and applies also to Hindus, domiciled in the territories to which this Act extends, who are outside the said territories. This section read with Section 2(1)(a)(b) makes it equally clear that as regards the inter-territorial operation of the Act it applies to all Hindus, Buddhists, Jains, or Sikhs irrespective of the question of whether they are domiciled in India or not.” And this case was also take as a reference which was **Nitaben v. Dhirendra Chandrakant Shukla & Anr.** Here it was said that that section 1 of the Act refers to the extension of the Act to the whole of India except the State of Jammu and Kashmir and also to the territories to which the Act is applicable, and further to all those persons who are domiciles of those territories but who are outside the said territories. Yet another decision to which reference has been made is the judgment of the Rajasthan High Court in **Varindra Singh & Anr. v. State of Rajasthan** where it was said that Clause (a) of Sub-section (1) of [Section 2](https://indiankanoon.org/doc/1922953/) of the Act of 1955 makes the Act of 1955 applicable to all persons who are Hindu by religion irrespective of the fact where they reside. Therefore, Section 2 of the Act of 1955 is very wide enough to cover all persons who are Hindu by religion irrespective of the fact where they are residing and whether they are domiciled in Indian territories or not” Lastly, learned Senior Counsel has placed reliance on a judgment of the **Kerala High Court in Vinaya Nair & Anr. v. Corporation of Kochi.** Such a law is valid and is saved by Article 245(2) of the Indian Constitution. - The court also held that the contention of the appellant was specifically that Australia was his domicile of choice: The appellant to establish Australia as the domicile of choice relied on a residential tenancy agreement for 18 months; the enrollment of his child to a school; and the commencement of proceedings for permanent resident status. None of these however convinced the SC and the Appeal was thereby dismissed.Therefore SC held, “In the absence of acquiring citizenship it is difficult to accept that the Appellant-Husband and his family decided to reside permanently in Australia”. - Thus the Supreme Court held that The High Court was correct and shifting residence to Australia with mere citizenship and lack of property in Sweden reverted domicile from what was in truth irrevocable Swedish, to the original Indian. Thereby the writ petition for judicial separation by the respondent’s wife is maintainable. **CONCLUSION & COMMENTS** Therefore it was concluded that both the husband and wife were considered to be the domicile of India and in furtherance of that they were covered by the provisions of the Hindu Marriage Act, 1955, and the petition for judicial separation was entertained. And in My Opinion the case correctly states that If the marriage has been Solemnized as per the provisions of a particular Act, then that Act would continue to apply for as long as the marriage exists. It is a universally recognized rule that applies and also affects the personal status of a person who must continue to be governed by the same law, irrespective of factors like his change in citizenship or residence. If this were not to apply, then the husband would be able to reject every petition by the wife by changing his domicile status leaving the wife with no judicial remedy, which goes against the basic structure of our constitution. The court also laid down that it would be unjust if one party could escape the petition merely because he/she has changed his domicile by his/her ‘unilateral decision’. Only if one of the parties in the case has changed the domicile doesn’t mean that it will take away the jurisdiction of the Indian Courts. **REFERENCES** 1. Important Cases Referred** AIR 1973 Cal 425. I (1984) D.M.C.252. RLW 2005(3) Raj. AIR 2006 Ker. 275 - Important Statutes Referred** The Constitution of India, 1950, Art. 245(2). See The Hindu Marriage Act, 1955, § 1 (2). See The Hindu Marriage Act, 1955, § 2 (1). See The Hindu Marriage Act, 1955, § 10. See The Hindu Marriage Act, 1955, § 19. **Categories:** Case Analysis, Constitutional Law Cases --- ### [GOVT. OF ANDHRA PRADESH V. CH. GANDHI](https://lawfoyer.in/govt-of-andhra-pradesh-v-ch-gandhi/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **AUTHOR: AYUSHI MAHAWAR, VES COLLEGE OF LAW, MUMBAI** **ABSTRACT** In the case of the Government of Andhra Pradesh and Others v. Ch. Gandhi, disciplinary actions were taken against Ch. Gandhi, a senior accountant, that led to his demotion and the suspension of further promotions. Whether the penalty is in line with the Andhra Pradesh Civil Services Rules, especially in light of the revisions, and whether the new rules may be enforced retroactively are the main legal questions. The case explores the rights of employees in disciplinary situations as well as the substantive and procedural components of such processes. In the end, the Supreme Court upheld the disciplinary proceedings, concluding that the penalty was appropriate in light of the new guidelines. **KEYWORDS Disciplinary proceedings, Andhra Pradesh Civil Services Rules, Retrospective application, Vested rights. **CASE DETAILS** *Judgement Cause Title***The Government of Andhra Pradesh and Others Vs. Ch. Gandhi*Case Number***Civil Appeal No. 1427-1428 of 2013*Judgement Date***FEBRUARY 19, 2013*Court***Supreme Court Of India*Quorum***K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.*Author***DIPAK MISRA, J.*Citation***\[2013\] 2 S.C.R. 20*Legal Provisions Involved***Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991**INTRODUCTION AND BACKGROUND OF JUDGEMENT-** The case Government of Andhra Pradesh and Others v. Ch. Gandhi is where the disciplinary actions were taken against the Sub-Treasury Senior Accountant, Ch. Gandhi. As a consequence of the disciplinary action, Ch. Gandhi was demoted to the position of Junior Accountant for a two-year term, with any future increments being suspended during this term. The High Court reversed the punishment after the State Administrative Tribunal affirmed this decision, leading to an appeal to the Indian Supreme Court. Whether Ch. Gandhi’s punishment was in line with the unamended or amended Rules was the main issue in this case. Although the punishment was given under the replaced sub-rule (vii) of Rule 9 of the Andhra Pradesh Civil Services (Classification, Control, and Appeal) Rules, 1991[\[1\]](#_ftn1), the disciplinary procedures were started under the unamended Rules. Gandhi maintained that the punishment he received was unfair and against the law, while the State Government maintained that the sentence was lawful and consistent with the regulations. The Court had to decide whether the penalty may be applied in line with the unamended or amended Rules, taking into account the legal guidelines about procedural and substantive legislation as well as the retroactive impact of the Rule substitution. The disciplinary processes, and the nature of the allegations against Ch. Gandhi, the decision of the authority to impose the punishment, and the ensuing legal challenges that resulted in the Supreme Court appeal are all thoroughly examined before giving the judgment. The case brings up significant issues regarding the enforcement of disciplinary policies, the retroactive implementation of rule amendments, and the rights of employees during disciplinary actions. **FACTS OF THE CASE** 1\. A disciplinary hearing was held against Ch. Gandhi, a senior accountant at the Office of the Sub-Treasury, Nakrekal, in accordance with Rule 5 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991[\[2\]](#_ftn2). 2\. Ch. Gandhi was accused of the following: a. Being absent during a surprise inspection conducted by the Deputy Director of the District Treasury in Nalgonda. b. Not keeping up with the mandatory maintenance of the movement register and signing the attendance register. c. Neglecting to endorse transactions and keep up to date the money chest book. d. Passing checks, challans, and invoices without the required authorization. e. Poor upkeep of the strong entrants’ registry. f. Giving shared custodian keys to third parties so they can access the monetary chest. g. Not submitting daily sheets and currency chest slips to the Reserve Bank of India. 3\. The accusations against Ch. Gandhi were verified in the report provided by the Enquiry Officer who was assigned to look into the matter. 4\. The disciplinary authority imposed the penalty of demoting Ch. Gandhi to the position of Junior Accountant for two years with a postponement of future increments. 5\. Ch. Gandhi, who felt unfairly punished, filed a complaint with the State Administrative Tribunal in O.A. No. 923 of 2006, contesting the start of the investigation, the way it was carried out, and the appropriateness of the penalty. 6\. The Tribunal discovered no illegality or irregularity in the way the investigation was carried out, the accusations that were made, or the disciplinary action that was started. It further ruled that the penalty was appropriate given the seriousness of the accusations. 7\. The Tribunal rejected Ch. Gandhi’s first plea, which sparked further legal actions and an appeal to the Indian Supreme Court. The disciplinary actions against Ch. Gandhi and the subsequent legal challenges regarding the imposition of the penalty under the Andhra Pradesh Civil Services Rules are highlighted in the case of The Government of Andhra Pradesh and Others v. Ch. Gandhi. These facts serve as the basis of the legal dispute. **LEGAL ISSUES RAISED** 1. Whether the punishment given to Ch. Gandhi comply with the Andhra Pradesh Civil Services Rules? 2. Whether the amended rules can be applied retrospectively to the disciplinary action initiated under the unamended rules. 3. Whether Ch. Gandhi had a vested right to a specific punishment under the unamended rules. 4. Whether the reversion penalty and the postponement of future increments were appropriate to the accusations made against Ch. Gandhi. **PETITIONER/ APPELLANT’S ARGUMENTS** 1. The counsel for Petitioner/Appellant submitted that Ch. Gandhi was punished in line with the Andhra Pradesh Civil Services Rules, 1991 by being demoted to Junior Accountant for two years and having his future raises delayed. This is consistent with the disciplinary action permitted under the Rules. 1. The counsel for Petitioner/Appellant submitted that the amended rules can be applied retrospectively to the disciplinary action initiated under the unamended rules. The imposition of the penalty under the substituted sub-rule (vii) of Rule 9 of the amended Rules was justified and lawful. 1. The counsel for Petitioner/Appellant submitted that in accordance with the unamended rules, Ch. Gandhi had no legal claim to a particular penalty. The disciplinary authority was within its powers to apply the penalty in accordance with the modified Rules, as Rule 9(vii) allowed for a new kind of penalty. 1. The counsel for Petitioner/Appellant submitted that the reversion penalty, along with delaying further increases, was appropriate to the charges against Ch. Gandhi. Given the seriousness of the accusations, the disciplinary penalty was appropriate and a valid response. **RESPONDENT’S ARGUMENTS** 1. The counsel for the Respondent submitted that Ch. Gandhi’s penalty was not in accordance with the Andhra Pradesh Civil Services Rules of 1991. The contention was that the fine was unlawful under the Rules since it amounted to two substantial punishments. 2. The counsel for the Respondent submitted that the amended rules should not be applied retrospectively to the disciplinary action initiated under the unamended rules. The disciplinary proceedings were initiated before the amendment, and therefore, the punishment should have been in accordance with the unamended Rules. 3. The counsel for the Respondent submitted that under unamended rules Ch. Gandhi had a vested right to a specific punishment. The regulations that were in effect at the time of the offense should have guided the disciplinary action. 4. The counsel for the Respondent submitted that the reversion penalty, along with the postponement of future increments, was disproportionate to the charges against Ch. Gandhi. Considering the seriousness of the alleged misbehavior, it seems that this punishment was excessive and unjustified. **RELATED LEGAL PROVISIONS** 1. Andhra Pradesh Civil Services (Classification, Control, and Appeal) Rules, 1991: Rule 9- Deals with major penalties and disciplinary actions, and Rule 11- Pertains to imposing penalties in disciplinary proceedings[\[3\]](#_ftn3). 2. Article 309 of the Constitution of India deals with recruitment and conditions of service of persons serving the Union or a State[\[4\]](#_ftn4). **JUDGEMENT** **a. RATIO DECIDENDI:** In Government of Andhra Pradesh and Others v. Ch. Gandhi, the court ruled that the disciplinary authority’s decision to punish Gandhi by reverting him to the position of Junior Accountant for two years and delaying his subsequent promotions complied with the Andhra Pradesh Civil Services Rules, 1991. Since the revised Rule 9(vii) was legally replaced and directed the disciplinary action’s consequences, the changed rules can be applied retroactively to the disciplinary action that was started under the original rules. Under the unaltered rules, Ch. Gandhi had no legal claim to a particular punishment, and the disciplinary authority had good reason to apply the penalty in accordance with the revised Rules. The amended rules can be applied retrospectively to the disciplinary action initiated under the unamended rules, as the amended Rule 9(vii) was lawfully substituted and guided the consequences of the disciplinary action. Under the unamended rules, Ch. Gandhi had no legal claim to a particular punishment, and the disciplinary authority had good reason to apply the penalty in accordance with the revised Rules. Taking into account the severity of the wrongdoing and the revised Rules, it was decided that the punishment of reversion with a postponement of future increments was proportionate to the charges against Ch. Gandhi. **b. OBITER DICTA:** There are no particular obiter dicta referenced in the ruling in this instance. The judgment mainly focuses on three points: the penalty’s proportionality, the applicability of the revised rules to the disciplinary proceeding that were initiated under unamended rules, and the lack of vested rights for a particular punishment under the unamended regulations. **CONCLUSION** The Supreme Court affirmed the disciplinary proceedings against Ch. Gandhi in Government of Andhra Pradesh and Others v. Gandhi, wherein the latter was demoted to the position of Junior Accountant for two years and further increments were postponed. The Court decided that the modified Andhra Pradesh Civil Services Rules, 1991 warranted the imposition of this punishment. The disciplinary authority operated within its jurisdiction in applying the penalty in compliance with the revised rules, since it was found that Ch. Gandhi had no vested entitlement to a specific punishment under the unamended regulations. **REFERENCES** **Important Cases Referred:** - *Union of India and Others v. K.V. Jankiraman and Others* (1991)[\[5\]](#_ftn5) - *Delhi Development Authority v. H.C. Khurana* (1993)[\[6\]](#_ftn6) - *Union of India and Others v. Sangram Keshari Nayak* (2007)[\[7\]](#_ftn7) - *Marripati Nagaraja and Others v. Government of Andhra Pradesh and Others* (2007)[\[8\]](#_ftn8) **Important Statutes Referred:** 1. Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991[\[9\]](#_ftn9) 2. Article 309 of the Constitution of India[\[10\]](#_ftn10) 3. Various statutory provisions and rules governing disciplinary proceedings and service conditions were also referred to in the judgment to determine the legality and applicability of the penalties imposed on Ch. Gandhi. --- [\[1\]](#_ftnref1)‘APCS(CCA) Rules, 1991.Pdf’ <> accessed 27 February 2024. [\[2\]](#_ftnref2) ‘APCS(CCA) Rules, 1991.Pdf’ <> accessed 27 February 2024. [\[3\]](#_ftnref3) ibid. [\[4\]](#_ftnref4) ‘Article 309 in Constitution of India’ <> accessed 27 February 2024. [\[5\]](#_ftnref5) ‘Union Of India Etc. Etc vs K.V. Jankiraman Etc. Etc on 27 August, 1991’ accessed 27 February 2024. [\[6\]](#_ftnref6) ‘Delhi Development Authority vs H.C. Khurana on 7 April, 1993’ accessed 27 February 2024. [\[7\]](#_ftnref7) ‘Union Of India & Ors vs Sangram Keshari Nayak on 27 April, 2007’ accessed 27 February 2024. [\[8\]](#_ftnref8) ‘Marripati Nagaraja & Ors vs The Government Of Andhra Pradesh & Ors on 12 October, 2007’ accessed 27 February 2024. [\[9\]](#_ftnref9) ‘APCS(CCA) Rules, 1991.Pdf’ (n 2). [\[10\]](#_ftnref10) ‘Article 309 in Constitution of India’ (n 4). **Categories:** Case Analysis, Constitutional Law Cases --- ### [SAJJAN SINGH Vs. STATE OF RAJASTHAN](https://lawfoyer.in/sajjan-singh-vs-state-of-rajasthan/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **AUTHOR: ANURUPA PAL, TECHNO INDIA UNIVERSITY, KOLKATA** **ABSTRACT / HEADNOTE** The “Sajjan Singh vs State Of Rajasthan” case is centred on the legitimacy of the Constitution (Seventeenth Amendment) Act of 1964, which tried to protect the legality of legislative provisions related to agricultural reform that were being challenged. The petitioners contended before the Supreme Court that the Seventeenth Amendment Act was legally unsound. They claimed that the procedural procedures indicated in the proviso to Article 368, which required ratification by a particular number of states, should have been observed since the powers outlined in Article 226 (relating to the powers of high courts) were likely to be affected. The court ruled that the Amendment Act fits within the substantive portion of Article 368 and fails to activate the proviso. It held that the amendment’s impact on Article 226 was subsidiary and of minor relevance, as the Act sought to remove obstacles to executing a socioeconomic programme. ***Keywords:*** *Article 368, Fundamental Rights, Constitutional Validity, Land Legislation, Judicial review, Constitutional amendments, The Constitution of India, Supreme Court of India* **CASE DETAILS** ***Judgement Cause Title***SAJJAN SINGH Vs. STATE OF RAJASTHAN***Case Number***AIR 1965 SC 845***Judgement Date***31st MARCH 1965***Court***THE SUPREME COURT OF INDIA ***Quorum***Chief Justice P.B Gajendragadhkar Justice K.N. Wanchoo Justice M. Hidayatullah Justice Raghubar Dayal Justice J.R Mudholkar***Author***Chief Justice P.B Gajendragadhkar ***Citation***1965 AIR 845, 1965 SCR (1) 933, AIR 1965 SUPREME COURT 845, 1965 (1) SCR 933, 1965 (1) SCJ 377, 1965 (1) SCWR 593 ***LegalProvisions Involved***Article 368 of the Constitution Of India The 17th ( Seventeenth) Amendment Act 1964 Article 31 A and Article 31 B**INTRODUCTION AND BACKGROUND OF JUDGEMENT** The main background of the case deals with the First Constitution Amendment Act 1951 which was challenged in the case of [\[1\]](#_ftn1)***Shankari Prasad Vs. Union Of India*** where during the judgement Article 31(A) and Article 31(B) were added to the Constitution Of India thereby restricting the individual’s Right To Property. Another major decision was that any law under the 9th schedule of the Constitution would be immune to judicial review. Mr. Shankari Prasad challenged the amendment stating that the basic Fundamental rights must not be allowed to be amended since they are a vital part of the constitution. This case paves the way for the Particular case we are dealing with which includes[\[2\]](#_ftn2) ***Sajjan Singh Vs. State of Rajasthan*** **FACTS OF THE CASE** During the year 1964, the Rajasthan Government passed the Land Reforms Act which was later also followed by the parliament with the 17th Constitutional Amendment Act under Article 31(A) expanded the legal term “estate”. Due to this amendment the power to acquire the land also increased and was eventually put under the 9th schedule because any law under it cannot be challenged in front of the courts. Here is our petitioner Sajjan Singh, the ruler of the princely state of Rajasthan which was later added to the Indian Union. In the year 1949 Sajjan Singh signed an agreement with the Indian Government which granted him certain privileges including an amount for the monarch”s expenses. However, after the changes, the right to hold a certain amount of land was also added to a ceiling amount. Sajjan Singh challenged the validity of the 17th Amendment Act in the Supreme Court saying that it violated the Fundamental rights guaranteed to him under the Indian Constitution. Later many Landlords also challenged the same and filled a writ petition using Article 32 in front of the Supreme Court. **LEGAL ISSUES RAISED** i) Whether the Parliament can amend the Fundamental Rights using Article 368? ii) Whether the parliament can bring a constitutional amendment voiding Fundamental rights using Article 368? iii)Whether a constitutional amendment comes under the meaning of “Law” given in Article (2)? **PETITIONER/ APPELLANT’S ARGUMENTS** 1. The counsels for Petitioner / Appellant submitted that the powers under Article 368 were misused to overpower the rights given to the state judiciary ( High Courts) through Article 226 of the Indian Constitution. 2. All laws relating to the possession of “land” are matters included under the state list. However, the union legislature has dismissed the same by amending the fundamental rights of people. 3. The petitioner asserted that the 26th Amendment Act was not justiciable since it was a constitutional amendment and thus outside the purview of judicial review. The petitioner said that the change was a matter of political expediency and policy and that the courts had no authority to intervene with it. 4. The petitioner asserted that abolishing privy purses infringed the basic right to property protected by Article 31 of the Constitution. The petitioner contended that the privy purses were part of the past monarchs’ property, and their removal represented coercive seizure without compensation. **RESPONDENT’S ARGUMENTS** 1. The counsels for Respondent submitted that the privileges which were given to the petitioner were given to him due to his birth status which violated one major fundamental right of equality before law, thus this step was taken to at least try to follow the democratic structure of the country. 2. They also argued that the clauses were signed by the British Government and not by the Indian Government post-independence hence, the Indian Government was not bound to continue these privileges after the union of the princely into an Indian Union. 3. The respondent argued that the abolition was a necessary step and it did not violate the fundamental rights under the Constitution of India. These could not be considered as rights, as a result of which abolition did not violate any fundamental right of the petitioner. **RELATED LEGAL PROVISIONS** 1. ***Article 368*** – deals with the power of the parliament to deal with any change in the constitution 2. ***17th (Seventeenth)Amendment Act*** – To preserve the legality of several agricultural reform-related laws, this Act, added 44 Acts to the Ninth Schedule and changed Article 31A of the Indian Constitution. 3. ***Article 31A –***This provision, which was inserted into the Constitution by the 1951 Constitution (First Amendment) Act, protects Acts listed in the Ninth Schedule from ever being declared void and invalid. 4. ***Article 31B*** -states that no act included in the 9th Schedule shall be deemed invalid because it infringes against Part III rights, and no judicial review shall be available. The actions listed in the schedule are applicable retroactively. **JUDGEMENT** ***Ratio Decidendi*** 1. The Supreme Court of India passed the judgement through a 3:2 majority decision. They also mentioned that constitutional amendment is not included in the term “law” given under Article 13 and if the parliament wanted they could bring some changes through constitutional amendments. Land Reforms Act is constitutionally valid. 2. The Supreme Court disagreed with the argument of the appellant that the 17th Amendment Act violates the rights of the High Court under Article 226. 3. It also mentioned that the Central Government only intended to protect the state acts on the said matter from Judicial review by putting them in the 9th Schedule through the 17th Amendment Act. 4. The Supreme Court of India finally stated that Fundamental Rights can be amended through Constitutional amendments. ***Obiter Dicta*** 1. There were two important dissenting opinions from the bench out of five members two had a different opinion which included Justice M. Hidayatullah and Justice J.R Mudholkar 2. Justice M. Hidayatullah mentioned that “ Fundamental rights cannot be amended by Constitutional Amendment s they are a basic necessity for humans and parliament can’t play with them. 3. Justice J.R Mudholkar mentioned that “Every constitution has some basic elements which cannot be amended”. 4. Both of them gave the opinion that Constitutional Amendments can also form a part of the “law” under Article 13 of the Indian Constitution. **CONCLUSION & COMMENTS** The petitioners presented several defences against the Act’s legality under the Seventeenth Amendment. They contested that the special procedure should be followed when altering basic rights and potentially affecting the High Court’s authority under Article 226. They also questioned the applicability of Article 368 and its proviso. The petitioners also said that the Act was unconstitutional because it allegedly gave Parliament the power to enact laws about land, a power they did not think Parliament had. They expressed concerns over the Act’s ability to overrule decisions made by competent courts, which they believed to be unconstitutional. This case also became the background structure for[\[3\]](#_ftn3)***I.C. Golaknath Vs. State Of Punjab*** and [\[4\]](#_ftn4)***Kesavananda Bharti Vs. State of Kerala.*** These two cases were highly influenced by this particular case. --- [\[1\]](#_ftnref1) *Sri Sankari Prasad Singh Deo vs Union Of India And State Of Bihar(And … on 5 October, 1951*, . [\[2\]](#_ftnref2) *Sajjan Singh vs State Of Rajasthan(With Connected … on 30 October, 1964*, [\[3\]](#_ftnref3) [\[4\]](#_ftnref4) **Categories:** Case Analysis, Constitutional Law Cases, Uncategorised --- ### [Kithota Hollohan V. Zachillhu, AIR 1993 SC 412](https://lawfoyer.in/kithota-hollohan-v-zachillhu-air-1993-sc-412/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **AUTHOR: ANIRUDH YADAV, UNIVERSITY FIVE YEAR LAW COLLEGE** **BACKGROUND OF THE CASE** A constitution can be defined as a written document containing rules, laws and regulations in order to govern a country. The Indian Constitution is considered as the supreme or “grundnorm” law of the land. Its preamble is about the sovereignty of people, democratic polity, justice, liberty, equality and fraternity assuring the dignity of the individual and the unity and integrity of the nation. The Preamble is said to be adopted from Nehru’s principles which became the basis of the formation of the constitution. After the constitution was created, it did not take long for political functionaries to manipulate Indian framers. Following the departure of Nehru, the country witnessed a fall in political morality and an unfortunate growth of varying types of political corruption. The unruly floor crossing was a blow to the electorate system and undermined the three organs of the government. Greed for power, position and money were behind these defections. The observation made was that disturbance of the socio-economic processes has a devastating impact on cultural processes in politics. It was thus discouraged and attempts were made to eradicate this through the Constitutional Amendment Bills of 1973 and 1978. In early 1985, however, the government initiative gaining the opposition support worked and the Parliament enacted the Constitution (Fifty-Second Amendment) Act outlawing defections to maintain democratic structure. The reason the author is writing this paper is to analyse the views expressed by the Supreme Court judges in this case. **CASE DETAILS :** 1. COURT – Supreme court of india 2. CITATION- 1992 SCR (1) 686, 1992 SCC Supl. (2) 651 3. CASE TITLE – Kihoto Hollohan vs Zachillhu And Others 4. APPELANT- KIHOTO HOLLOHAN 5. RESPONDENT- ZACHILLHU AND OTHERS 6. BENCH- Sharma, L.M. (J), Venkatachalliah, M.N. (J), Verma, Jagdish Saran (J), Reddy, K. Jayachandra (J), Agrawal, S.C. (J) **INTRODUCTION AND BACKGROUND OF JUDGEMENT**– 1. In the case of Kihoto Hollohan vs. Zachillhu, it was contended that the anti-defection law is incompatible with freedom of speech, dissent, and conscience. The Supreme Court concluded that the statute is intended to handle unprincipled defections that are not protected by freedom of conscience, right to dissent, or intellectual liberty. As a result, while this rule has certain unintended implications, it is vital in today’s world when dealing with political issues. The decision in Kihoto Hollohon vs. Zachillhu and others addresses a few questions and problems raised by this law. The court subsequently decided that the law did not violate any free speech rights or the parliamentary popular government’s essential structure. 2. The court emphasized that the managing official is the lone person with authority over the selection, and that the final decision is contingent on legal audit once the selection is defined and affected. 3. It was held in the case of Ravi S Naik v. Union of India2 that “deliberately abandoning membership has greater significance.” A conclusion can also be made from the member’s regulation that he has voluntarily renounced his party membership.” The Court rejected the argument that failing to comply with the disqualification conditions constituted a violation of constitutional obligations. Elevating norms to the status of constitutional provisions, they believed, should be disallowed. The disqualification rules were devised by the Speaker in the exercise of his responsibilities under Article VIII of the Constitution, hence they cannot be compared to constitutional regulations. **FACTS OF THE CASE-** 1. In this situation, many applications were heard at the same time. 2. In the case of Kihota Hollohon v. Zachilhu and Ors., the validity of the Tenth Schedule established by the Constitution (Fifty Second Amendment) Act, 1985 was questioned. The Constitution (Fifty-second Amendment) Act replaced four articles of the Constitution with the tenth schedule, namely 101(3)(a), 102(2), 190(3)(a). 3. In a 3:2 decision, the Supreme Court confirmed the Anti-Defection Law’s constitutional constitutionality. The majority was made up of Justices M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal, while the minority was made up of Justices L.M. Sharma and J.S. Verma. 4. At the same time, the Supreme Court determined that the speaker’s orders under the legislation prohibiting an MLA from serving due to defection are subject to Judicial Review. **E) LEGAL ISSUES RAISED –** 1. Is it true that the Speaker should have such broad powers only if there is always a reasonable chance of prejudice? 2. Are the modifications to the 52nd Amendment constitutionally valid? 3. Whether or not Judicial Review is available before a decision is made by the Speaker/Chairman. 4. Does Judicial Review apply to the Rules outlined in the tenth schedule. **ARGUMENTS OF THE PETITIONERS** 1. The petitioners contended that every person in the Parliament must have the right to follow his own spirit and sense of judgment and not necessarily with the policy of his political party. This according to the petitioners is deemed to be a fundamental principle of parliamentary democracy, freedom of speech and the right to dissent and the freedom of conscience. 2. The right of a parliamentarian is not an absolute right and is thus can be subjected to reasonable restrictions. The right of a parliamentarian to the freedom of speech is provided for under Article 105(2). This, as contended by Shri Sharma, arguing on the side of the petitioners, is places even above the fundamental right as guaranteed under Article 19(1)(a) of the Constitution. Political defections induced to grab power and money is also a corrupt practice, and therefore does not fall within the immunity granted to a member of the house. 3. Another contention raised by counsel for petitioners is that the distinction between ‘defection’ and ‘split’ in the Tenth Schedule is very minimal. The differences on which the distinction rests are indeed outrageous defiance of logic. In response to the arguments made by the petitioners, the Court gave the opinion that the rule for exemption of split is advocated for because of the fact that 1/3rd members at the same time cannot be driven towards dishonest intentions. 4. The petitioners also referred to paragraph 7 to substantiate the point that in terms and in effect brings about a change in the operation and effect of Articles 136, 226 and 227 thus attracting the clause (2) of the Article 368 needing ratification. The court after looking at it has given an opinion that the words of paragraph 7 have wide interpretations and leave no viable choices. The same idea is reinforced by going through the history of the defection law and the debates in the house which suggests that paragraph 7 was introduced with the very purpose of restricting jurisdiction. The court has distinguished the present case from the cases of **Shankari Prasad Singh Deo v. Union of India and State of Bihar**[\[1\]](#_ftn1)and **Sajjan Singh v. State of Rajasthan**[\[2\]](#_ftn2) that were relied upon to urge that there is no relation to the clause (2) of the Article 368. 5. The petitioners claimed that the ‘finality clause’, under the paragraph 6 of the 10th Schedule, excludes the court’s jurisdiction which made the speaker immune from Judicial Review. In India, the position is such that whatever authority resolves disputes must be vested with some sort of judicial authority. Looking at the present case, the authority to decide impugned disqualification under para 6(1) is pre-eminently a judicial complexion. In the present case, the majority has held that the Speaker or the chairman is tribunal and that the finality clause does not oust the jurisdiction of the courts under Articles. 136, 226 and 227. Instead, the finality clause just limits them. **ARGUMENTS OF THE RESPONDENTS** 1. Being in favour of the constitutionality of the Amendment, the respondents urged that the Tenth Schedule creates a non-justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition. New rights and obligations are created for the first time inflate by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes. These rights, obligations and remedieswhich are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the non-inclusion of this area is constitutionally upheld by ensuring a sense of finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the Houses of Legislature of the States envisaged in Articles 122 and 212, respectively, and also by explicitly excluding the Courts’ jurisdiction under Paragraph 7. 2. In constitutional and legal theory, it is observed that there is really no removal of jurisdiction of Courts or of Judicial Review as the subject-matter itself by its inherent character and complexities is not agreeable to and outside judicial power and that the restriction towards jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non-amenability of the subject-matter to the judicial power of the State, the analogy of which is that the Speaker or the Chairman, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a tribunal with statutory backing, but as a section of the State’s Legislative branch. It is urged that no question of the discharge of jurisdiction of the Courts would at all arise in the first place, having regard to the political nature of the issues, the subject-matter is itself not amenable to judicial power. It is understood thatthe last pointis about the Constitution, and the fact that the Legislature is entitled to deal with it exclusively. 3. The Tenth Schedule is part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one “coherent document”. learned Counsel for the petitioners accordingly say that the Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain inevitable democratic events cannot co-exist. In clarifying the processes of the fundamental law, the Constitution must be valued as a whole. A constitutional document explains only broad and general principles that can be easily subjected to flexible application to adapting circumstances – a distinction which differentiates a statute from a Charter under which all statutes are made. Cooley on “Constitutional Limitations” has said that:“Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly.” 4. The respondents’ counselreferred to the points contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a blatant violation of those fundamental principles and values which are basic to the survival of the systematic uprising of a parliamentary democracy. The Tenth Schedulenegates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience. It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted. The Tenth Schedulemirrors the meanderings of a troubled conscience on issues of political morality and to punish an elected representative for what gives way to an expression of conscience quashesthe very democratic principles which the Tenth Schedule is supposed to preserve and sustain. The advocates also referred to the famous Speech to the Electors of Bristol, 1774, by Edmund Burke to substantiate this point. **JUDGEMENT** **1. The Preponderance of the Evidence** Speakers/Chairmen are the protectors of the House’s rights and privileges, and they play an important role in Parliamentary democracy. They are expected to, and do, make key decisions in a Parliamentary democracy. Because they have been given the power to decide questions under the Tenth Schedule, they should not be considered exceptionable. **2. Minority Point of View:** The Speaker’s tenure as the authority to decide this disagreement under the Tenth Schedule is conditional on the House’s ongoing support, hence he does not fit the qualification for such **an independent adjudicatory power.** **3. It was also determined that paragraph 6 of the Tenth Schedule** does not create a non-justiciable zone. The Speaker/power Chairman’s to resolve disagreements can also be viewed as judicial. **4. The Election Commission took a similar approach**, based on the views of Justices L.M. Sharma and J.S. Verma. In 1977, it made recommendations and suggested that defection-related disqualifications be referred to the Election Commission for an opinion to be extended to the President or Governor, as the case may be, and that the President or Governor act on the Election Commission’s similar opinion, as was the case with other disqualifications related to articles 102 and 191 of the constitution. **CONCLUSION** In the case of *Kihoto Hollohan vs.Zachillhu* (supra), it was argued that the anti-defection law is against freedom of speech, the right to dissent and the freedom of conscience. Supreme Court ruled that the law is targeted at addressing unprincipled defections, which cannot be protected under freedom of conscience or the right to dissent or intellectual freedom. Therefore, this law has certain dysfunctional consequences however it is necessary in the present era when dealing with political corruption is an important area of electoral reforms. **REFERENCES** - *Kihota Hollohon*v. *Zachilhu and Ors*., AIR 1993 SC 412. - *Shankari Prasad Singh Deo v. Union of India and State of Bihar,* 1951 AIR 458, 1952 SCR 89. - *Sajjan Singh v. State of Rajasthan,* 965 AIR 845, 1965 SCR (1) 933.*Ravi S. Naik v. Union of India*, 1994 AIR 1558, 1994 SCR (1) 754. - *Cohens v. Virginia*, 5 L. Ed. 257, 291 (1821). - *State of Madras v. V.G. Row*, 1952 SCR 597. - *Brundaban Nayak v. Election Commission of India*, 1965 AIR 1892, 1965 SCR (3) 53. - *Union of India v. Jyoti Prakash Mitter*, 1971 AIR 1093, 1971 SCR (3) 483. - *Mayawati v. Markandeya Chand & Ors.,*1998 INSC 493.D*r. Kashinath G. Jalmi&Anr. v. The Speaker &Ors.,* 1993 AIR 1873, 1993 SCR (2) 82 --- [](#_ftnref1) [](#_ftnref2) **Categories:** Case Analysis, Constitutional Law Cases --- ### [Rai Sahib Ram Jawaya Kapur And Ors. Vs The State Of Punjab (1955) 2 SCR 225](https://lawfoyer.in/rai-sahib-ram-jawaya-kapur-and-ors-vs-the-state-of-punjab-1955-2-scr-225/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **Author: Aish, RIMT School Legal Studies, RIMT UNIVERSITY** **ABSTRACT / HEADNOTE** No right is absolute in nature. This does not only apply to the citizens of the country but also to the governing body such as administrative agencies and governments as well. This is important to ensure that there is no arbitrariness during the administration of justice. Similarly, article 19 (1) (g) of the Indian Constitution shall also be subject to restrictions under 19(2). It is also provided that whenever there is a question of public interests and for the welfare of the people arises, the private rights are brought back little while interpreting the matter concerned. This analysis deals with one such landmark judgement , Rai Sahib Ram Jawaya Kapur & Ors v. State of Punjab (1955) , issue where the private right was said to have been infringed by the government. But, the court found otherwise and dismissed the case. ***Keywords*:** *Writ petition, Freedom to trade, Constitution of India, Article 32, Ultra/Intra Vires* **CASE DETAILS** *Judgement Cause Title***Scope and Extent of Executive powers*Case Number***71 to 77 and 85 of 1955.*Judgement Date***12 April , 1955.*Court***SUPREME COURT OF INDIA*Quorum***Hon’ble Justice C.J Mukherjee , Justice V Bose , Justice Jagannadhadas , Justice V Ayyar , Justice Imam.*Author***Hon’ble Justice C.J Mukherjee*Citation***AIR 1955 SUPREME COURT 549*Legal Provisions Involved***Article 19(1)(g) , 19(1)(6) , 31(2) , 32 , 33 , 73 , 162 , 202 , 203 , 204 , 266 (3) , 298 , **INTRODUCTION AND BACKGROUND OF JUDGEMENT** With respect to the first question on whether there was a violation of fundamental rights of the petitioners through the act by the state government, the court refused to accept the petitioners argued that there was a violation of fundamental rights under article 19(1) (g). It observed that, when it comes to school books, it is the school who should suggest the kind of books, and it is not the right of publishers to insist the students or school for acceptance of their books as textbooks. It noted that when a trader is lucky enough in the market, his goods would be secured, but if he loses any such trade, then he or she shall not state that his or her fundamental right to have the customers has been violated. Thus, it stated and held that the scopes of such chances are incidental to each business, and there is no fundamental right in the present case. Lastly, With respect to the second issue, the court firstly the importance of articles 73 and 162 of the Indian Constitution as it deals with executive powers and the extent to which parliament and state powers are executed. In that way, it was observed by the court that a modern state should be expected to engage in all the activities that are required for the welfare of the people of the country. It also observed that in order to carry on particular trade or business, it is indeed required that special legislation is enacted for additional requirement of powers other than what has been provided to an executive as per law. In that situation, special legislation would be required to encroach upon the privacy rights, for that matter. As the question of whether there was a violation of the fundamental rights of petitioners was dismissed, it is also immaterial to state whether the government could, in a way, have powers to establish a monopoly without law under article 19(6) of the constitution shall remain immaterial as well. Thus the petition was dismissed by the Supreme Court of India. **FACTS OF THE CASE** 1. This is a petition under Article 32 of the Constitution, preferred by six people, who imply to carry on the business of preparing, printing distributing and selling course books for various classes in the schools of Punjab, especially for the primary and middle classes, under the name and style “Uttar Chand Kapur and Sons. 2. It is affirmed that the Education Department of the Punjab Government has incompatibility of their purported strategy of nationalization of reading material given a progression of notices beginning around 1950 in regards to the printing, publication and sale of these books which have not just positioned inappropriate limitations upon the freedoms of the applicants to carry on their business yet have essentially removed them and other individual brokers from the business out and out. 3. In the State of Punjab, all perceived schools must follow the course of review supported by the Education Department of the Government and the utilization, by the students, of the reading material endorsed or approved by the Department is a condition point of reference to the allowing of acknowledgement to a school. 4. For an extensive stretch before 1950, the technique took on by the Government for determination and endorsement of course readings for perceived schools were usually known as the elective strategy and the method followed was right away this: Books on significant subjects, by the standards set somewhere near the Education Department, were ready by the distributors with their own cash and under their plans and they were submitted for endorsement of the Government. 5. The Education Department later appropriate examination chose books numbering somewhere in the range of 3 and 10 or significantly to a greater degree toward each subject as elective reading material, passing on it to the carefulness of the Head Masters of the various schools, to choose any of the elective books on a specific subject out of the endorsed list. 6. The Government fixed the costs just as the size and substance of the books and when these things were done it was passed on to the distributers to print, distribute and offer the books to the students of various schools as indicated by the decision made by their particular Head Masters. 7. Authors, who were not distributers, could likewise submit books for endorsement and on the off chance that any of their books were supported, they needed to make plans for distributing something similar and as a rule, they used to choose a person of the distributors currently on the line to accomplish the work. 8. This procedure, which was in vogue since 1905, was altered in material particulars on and from May 1950. 9. By specific goals of the Government passed approximately that time, the entire of the region of Punjab, as it stayed in the Indian Union later parcel, was isolated into three Zones. The reading material on specific subjects like farming, history, social examinations, and so on, for every one of the zones, were ready and distributed by the Government without welcoming them from the publishers. 10. Concerning the leftover subjects, offers were as yet welcomed from “distributers and writers” yet the elective framework was surrendered and just a single reading material regarding each matter for each class in a specific zone was chosen. One more change presented as of now was that the Government charged, as to eminence, 5% on the deal cost of the relative multitude of supported course readings. 11. Changes of an undeniably more extreme person anyway were presented in the year 1952 by a notice of the Education Department gave on the ninth of August, 1952 and it is against this notice that the protests of the solicitors are chiefly coordinated. This warning discarded “publishers” out and out and welcomed just the “author” and others” to submit books for endorsement by the Government. 12. These “authors and others, ” whose books were selected, had to enter into agreements in the form prescribed by the Government and the principal terms of the agreement were that the copyright in these books would vest absolutely in the Government and the “authors and others” would only get a royalty at the rate of 5% on the sale of the textbooks at the price or prices specified in the list. **LEGAL ISSUES RAISED** 1. What is the Scope and Extent of Executive powers ? 2. Whether the Government of a state has the power under the constitution of India to carry on a trade or business without any legislative sanction? 3. Whether the Government of Punjab , is creating a monopoly in the business of printing and publishing school textbooks , violated the Fundamental Rights of the petitioners enshrined under Article 19(1)(g) ? **PETITIONER/ APPELLANT’S ARGUMENTS** The counsels for Petitioner / Appellant submitted that the actions of the Government of Punjab without the prior sanction of legislative were incompetent and violative of the article 19(1)(g) and was ultra vires to the power vested in the public authority. **RESPONDENT’S ARGUMENTS** The counsels for Respondent submitted that activity was covered under the ambit of their inferred leader powers as attributable to the evolving period , the chief currently has an expanded ambit of abilities and capacities instead of the customary capacity of keeping up with the state security and respectability. The counsel further contended that they acted under the procedure required and hence not only making it completely intra vires their power but also in the line with the fundamental rights of the petitioner. **JUDGEMENT** The Judge said that as in our view, the solicitors have no key directly in the current case which can be said to have been encroached by the activity of the Government, the request will undoubtedly bomb on that ground. This being the position, the other two focuses raised by Mr Pathak don’t need to be thought by any means. As the candidates have no major right under **Article 19(1)(g)** of the Constitution, whether or not the Government could build up an imposing business model with no regulation under **Article 19(6)** of the Constitution is by and largely insignificant. Again, a simple possibility or prospect of having specific clients can’t be supposed to be a right to property or any interest in an endeavour inside the importance of **Article 31(2**) of the Constitution and no inquiry of instalment of remuneration can emerge because the candidates have been denied of something similar. The Appeal was dismissed with costs **RATIO DECIDENDI** While managing the issues of the case , the court neede to answer the idea of the leader power and the degree of the elements of chief. To decide the idea of chief influence , the court alluded to the two Australian instances of The Commonwealth and the Central wool Committee Vs The Colonial Combing , Spinning and Weaving Co. Ltd. , and Attorney-General for Victoria Vs. The Commonwealth. According to the Court , the Australian Constitution explicitly characterizes chief influence to incorporate just upkeep of the constitution and the laws of the Commonwealth. **CONCLUSION& COMMENTS** This case is to be sure a significant one in India with regards to understanding the constitutions administrative constructions and division of power among the 3 wings of the government , i.e , the Legislature , Executive and Judiciary. The case is likewise significant for understanding the extension to which an executive body can meddle in a private right with next to no particular official support. The doctrine of separation of power, in contemporary occasions, isn’t limited to the severe division of power among different organs of the State yet remembers the exercise of such power for the standard of “Governing rules” implying the way that none of the organs of Government ought to usurp the fundamental elements of different organs. The case encourages the comprehension of the division of force by securing those demonstrations of an organ that may seem to infringe upon the powers and elements of different organs yet is simply accidental to its fundamental powers or capacities. Henceforth, despite the fact that it takes into account a circumstance where an organ may infringe upon the powers of the other, it maintains the freedom of every organ too. This comprehension of the connection between the three organs of the State becomes pertinent in contemporary occasions all through the world attributable to the increment in the intricacy of elements of every one of the organs. **REFERENCES** Important Cases Referred** 1. 1\. The Commonwealth and the Central wool Committee Vs The Colonial Combing , Spinning and Weaving Co. Ltd. 31 C.L.R 421 2\. Attorney-General for Victoria Vs. The Commonwealth 52 C.L.R 533 3\. Motilal Vs. The Government of State of Uttar Pradesh AIR 1951 AII 257 Important Statutes Referred** Constitution of India , 19(1)(g) , 19(1)(6) , 31(2) , 32 , 33 , 73 , 162 , 202 , 203 , 204 , 266 (3) , 298 **Categories:** Case Analysis, Constitutional Law Cases --- ### [State Of Bihar and Ors vs Chandreshwar Pathak](https://lawfoyer.in/state-of-bihar-and-ors-vs-chandreshwar-pathak/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **AMAN TYAGI, UFYLC, JAIPUR, RAJ.** **ABSTRACT / HEADNOTE –** This case analysis scrutinizes the Supreme Court judgement in State of Bihar and Ors vs Chandreshwar Pathak. The case includes the termination of Chandreshwar Pathak from the post of constable in Bihar police , which he had secured temporarily in 1988 without undergoing any selection process or advertisement as mandated by law henceforth violating basic constitutional principles like Article 14 and 16 . The case also raises issues about the constitutional validity of backdoor appointments made without adhering to the established norms of equality and non-discrimination . It also explores whether employees like Mr. Pathak who have been appointed through improper/illegal means can invoke principles of equity and natural justice to retain their jobs based on years served. (Which in the present case was 16 years ) The Supreme Court in its final judgement ruled that Pathak’s appointment was void ab initio and unconstitutional in nature . Hence his termination order was valid . The court opined that years of service cannot validate what is fundamentally illegal and unjust . The judgement served as a crucial precedent against backdoor hiring specially in government jobs and also emphasised on adhering to the constitutional principles of equality and non-discrimination it also advocated to follow the requisite rules of appointment while employing any individual in the public sector . **CASE DETAILS** *Judgement Cause Title***State Of Bihar and Ors vs Chandreshwar Pathak*Case Number***Civil Appeal No. 7392*Judgement Date***7th August , 2014*Court***Supreme Court of India*Quorum***Division Bench – Adarsh Kumar Goel, TS Thakur.*Author***Adarsh Kumar Goel*Citation***AIR 2014 SC 3752*Legal Provisions Involved***Article 14 of the Constitution (Right to Equality) Article 16 of the Constitution (Equality of opportunity in matters of public employment) Article 311 (Procedural safeguards relating to dismissal )**INTRODUCTION AND BACKGROUND OF JUDGEMENT-** - This particular case deals with the validity of the appointment and subsequent termination of Chandreshwar Pathak as a constable in Bihar Police . It raises important questions such as the constitutional requirements for employing an individual while refereeing Article 14 and 16 which deals with ‘right to equality’ and ‘prohibition of discrimination in employment in any government office’ respectively . - This case also serves as an example of blatant disregard of the acceptable employment practises .As we see the temporary appointment of Chandreshwar Pathak as a constable by the Inspector General of police on **14.01.1998** was made without any due process of advertisement and selection , henceforth showing a disregard for employment practises and constitutional principles. **FACTS OF THE CASE** - On **14.01.1988** , Chandreshwar Pathak was temporarily appointed as a constable by the inspector General of police , Criminal investigation department , Patna , Bihar without following the due process of advertisement or selection. - On **04.09.2000**, The Department of Home (Police), Government of Bihar issued directions to police headquarters, Bihar to review irregular appointments made without following any due process of law such as backdoor appointments and remove such appointees from service from immediate effect. - On **10.09.2003** , After thorough investigation a show cause notice was issued to Chandreshwar Pathak (Respondent) asking why his appointment should not be cancelled . Despite his reply , an order was passed on **26.09.2003** terminating his services . - Mr. Pathak challenged his termination order before the High Court by filing a writ petition . On **09.04.2010** , the learned single bench judge of the high court dismissed Pathak’s writ petition . - Mr. Pathak subsequently appealed against the single bench order . On **05.01.2012**, the division bench allowed Pathak’s appeal and quashed the earlier passed termination order . - Aggrieved by the division bench judgment , State of Bihar (Appellant) appealed to the Supreme Court. The major issue before the Supreme court was whether the temporary appointment of Mr. Pathak on **14.01.1988** without following any due process of selection or advertisement was valid or not . - On **07.08.2014** , the supreme Court allowed the appeal of the State of Bihar , set aside the order of the division bench of the High Court , and restored the single judge order dismissing Pathak’s writ petition against his termination . **LEGAL ISSUES RAISED** 1. The primary legal issue was whether Mr. Pathak’s initial appointment as a constable in 1988 without any advertisement or selection process was valid and constitutionally permissible under Article 14 (Right to Equality) and Article 16 ( Prohibition of discrimination in matter of public employment ) . 1. The case also raised the issue of backdoor appointments and how this is a clear example of violation of constitutional principles and non-adherence to already established selection process . 2. This case also examined whether Mr. Pathak’s appointment , being irregular , was protected under Article 14 (equality before law ) and Article 311 ( Procedural safeguards relating to dismissal ) of the constitution . 3. One more major issue raised was whether employees who were illegally/improperly appointed, but worked for many years (In the present case for 16 years) , could claim reinstatement (being taken back to service) on grounds of natural justice, despite their initial appointment itself being illegal. **PETITIONER/ APPELLANT’S ARGUMENTS-** The arguments made by the petitioner’s side to substantiate their point with regards to the illegal/improper appointment of Mr. Pathak and also to quash the division bench order are stated as follows – The present case was a blatant backdoor appointment of the respondent(Mr. Pathak ) without any advertisement or selection process. The appointment order itself mentions that it was temporary in nature which could be terminated without serving a notice . The Petitioner’s counsel also relied on the Hemkant Jha case, presenting the important details of the case – *“It was a group of identical matters in front of the Patna High Court on termination of services of police constable without any selection process , the High Court upheld the termination noting that the appointments were backdoor without following procedures in rules for selection the court observed that such backdoor appointments do not confer any rights and the court cannot confer benefits like regularisation or reengagement , Even the SLPs filed against the judgement of the High court were dismissed by the supreme court .” [**\[1\]**](#_ftn1)* The petitioner counsel also contested that the High Court erred in not considering that the respondent’s appointment was illegal and without following any due process as required under Article 14 and 16 of the constitution to substantiate this point the counsel relied on another case law State of Orissa v. Mamta Mohanty, presenting the important details of the case – *“The Supreme court held that no valid appointments can be made without inviting applications from eligible candidates through advertisements .Calling names form employment exchange alone is not sufficient , advertisement is mandatory as per Article 14 and 16 . Such appointment without due process deprives eligible candidates from being considered and a person so employed is not entitled to any relief like salary. Compliance with equality clause in Article 16 requires every appointment to be made through open advertisement to allow all eligible persons to compete on merit.”[**\[2\]**](#_ftn2)* **RESPONDENT’S ARGUMENTS-** The primary argument on the basis of which the respondent’s counsel argues against the termination of his client (Mr. Pathak) is statedas **“***Learned counsel for the respondent supported the impugned order and submitted that having regard to the fact that the respondent had already served for 15 years, termination of his services was not called for*.”[\[3\]](#_ftn3) So essentially the respondent’s counsel argued that though his client’s initial appointment was illegal /improper , he should be allowed to continue in service considering the long duration of 16 years that he had already served .This argument seems to be based on the principle of natural justice and equity. **RELATED LEGAL PROVISIONS-** 1. Article 14 –***“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”* **[**\[4\]**](#_ftn4)** 1. Article 16** – Article 16 of the Indian constitutiontalks about the right of equal opportunity in the matters of public employment. It states that:-“1*. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.* *2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.* *3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.* *4. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.* *(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which in the opinion of state are not adequately represented in the services under the State.* *(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.* *5. Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”[**\[5\]**](#_ftn5)* ***(iii) Article 311*** *–* This article specifically deals with the dismissal , removal or reduction in rank of persons employed in civil capacities under the state or union *.*It states that *–* *“(1)No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a Slate shall be dismissed or removed by an authority subordinate to that by which he was appointed.* *(2)No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges;* *Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:* *Provided further that this clause shall not apply–* *(a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or* *(b)where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or* *(c)where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.* *(3)If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.”[**\[6\]**](#_ftn6)* **JUDGEMENT-** The Supreme court allowed the appeal filed by the State of Bihar , set aside the order of division bench of the Patna High court dated 05.01.2012 , and restored the order of the single judge of the High Court dated 09.04.2010 dismissing the writ petition filed by Chandreshwar Pathak challenging his termination from service . In its conclusive ruling, the Supreme Court affirmed the dismissal of Pathak’s employment, pointing out that his initial appointment as a constable in 1988 violated constitutional principles outlined in articles 14 and 16. The Court emphasized the absence of any advertisement or proper selection process during his initial hiring, thereby reinforcing the violation. **RATIO DECIDENDI** 1. Public posts should be filled through a rigorous process, adhering to the constitutional requirement of equality in public employment. 2. Appointments made without proper advertisement or a selection process are illegal and void ab initio (no legal effect from inception) . Individuals appointed through such means have no entitlement to the position. 3. Those unlawfully appointed cannot seek protection under Article 14 (Right to Equality) or 311 (safeguards against dismissal) of the constitution. 4. The duration of service after an unlawful appointment is inconsequential and does not grant the employee the right to seek remedies such as absorption, regularisation, or reinstatement. 5. CONCLUSION & COMMENTS-** The case, being an order of the apex court, sets a precedent for deciding cases with a similar set of facts or issues. This case involves the violation of basic constitutional principles such as Article 14 and 16, which also form part of the fundamental rights guaranteed to us by our constitution. Furthermore, the case delves into the issue of backdoor appointments and how they can significantly impact the selection process. Finally, the case also engages in a discussion on natural justice and its potential role as a basis for reappointment in the present case. I believe the apex court did justice to this case by permitting the appeal filed by the State of Bihar and ultimately deciding the cases based on merits rather than relying on irrelevant facts or issues. The court, in reinstating the judgment of the single judge bench and subsequently overturning the order of the division bench, contributed to instilling faith in the apex judiciary and its legal wisdom. **REFERENCES-** **Important Cases Referred-** 1. Secretary, State of Karnataka vs. Uma Devi \[(2006) 4 SCC 1\] 1. Delhi Development Horticulture Employees’ Union v. Delhi Admn. \[Citation not provided\] 1. State of Haryana v. Piara Singh 1. Excise Supdt. v. K.B.N. Visweshwara Rao 1. Arun Tewari. v. Zila Mansavi Shikshak Sangh 1. Binod Kumar Gupta v. Ram Ashray Mahoto \[(2005) 4 SCC 209\] 1. National Fertilizers Ltd. v. Somvir Singh 1. Telecom District Manager v. Keshab Deb 1. State of Bihar v. Upendra Narayan Singh 1. State of M.P. v. Mohd. Ibrahim 1. Amrendra Singh vs. State of Bihar \[1999 (3) PLJR 984\] 1. Hemkant Jha etc. etc. vs. The State of Bihar & Ors. \[L.P.A. No. 625 of 2003 etc. decided on 18.7.2007\] 1. Sudhir Kumar case 1. State Of Orissa & Anr vs Mamata Mohanty **Important Statutes Referred** 1. Article 14 of the Constitution of India (Deals with the Right to Equality) 2. Article 16 of the Constitution of India (Deals with Equality of Opportunity in Public Employment) 3. Article 311 of the Constitution of India (Deals with Safeguards against Dismissal of Government Employees) --- [\[1\]](#_ftnref1) *Hemkant Jha And Ors. Etc. Etc. vs The State of Bihar And Ors. on 18 July, 2007* (no date). Available at: (Accessed: 26 February 2024). [\[2\]](#_ftnref2) *State Of Orissa & Anr vs Mamata Mohanty on 9 February, 2011* (no date). Available at: (Accessed: 26 February 2024). [\[3\]](#_ftnref3) *State Of Bihar and Ors vs Chandreshwar Pathak on 7 August, 2014* (no date). Available at: (Accessed: 26 February 2024). [\[4\]](#_ftnref4) *Article 14 in Constitution of India* (no date). Available at: (Accessed: 26 February 2024). [\[5\]](#_ftnref5) *Article 16 of the Indian Constitution* (no date). Available at: (Accessed: 26 February 2024). [\[6\]](#_ftnref6) *Article 311 in Constitution of India* (no date). Available at: (Accessed: 26 February 2024). **Categories:** Case Analysis, Constitutional Law Cases --- ### [RMDC V/S UNION OF INDIA](https://lawfoyer.in/rmdc-v-s-union-of-india/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **Author: Advait Sharma, University Five Year Law College, Jaipur** **ABSTRACT:** The case of R.M.D. Chamarbaugwalla v. Union of India, commonly known as the RMDC case, was a landmark judgment by the Supreme Court of India in 1957. The case involved a constitutional challenge to the Bombay Prevention of Gambling Act, which prohibited certain forms of gambling in the state of Bombay. The Supreme Court held that the Act was valid and did not violate the fundamental rights guaranteed under the Indian Constitution. The Court reasoned that the Act was enacted to protect public morals and prevent social evils associated with gambling. It also noted that the state had the power to regulate activities that were considered harmful to society. This case case highlighted the delicate balance between individual rights and societal interests in the context of legislative regulation. It underscored the importance of upholding public welfare while respecting fundamental rights, setting a significant legal precedent in Indian jurisprudence. **CASE DETAILS:** Case TitleR. M. D. Chamarbaugwalla vs Union of India \[RMDC vs Union of India\]Citation1957 AIR 628, 1957 SCR 930Date of Judgement09/04/1957CourtSupreme Court Of IndiaAppellantR. M. D ChamarbaugwallaRespondentThe Union of IndiaBenchCJI Sudhi Ranjan Das, Bhuvaneshwar P. Sinha, P. B. Gajendragadkar,T. L. Venkatarama Iyer.ReferredArticle 19 (1),(6), Prize Competition Act,1955 **INTRODUCTION AND BACKGROUND OF THE CASE:** The case involved M/S R.M.D.C., who had been operating prize competitions in Mysore since 1948 under the Mysore Lotteries and Prize Competitions Control and Tax Act, 1951. Section 2(d) of the act was challenged. A central legislation called the Prize Competition Act, 1955 was subsequently enacted following appeals from various states, including Mysore, which welcomed the act. However, the State of Mysore later passed an ordinance to amend certain provisions of the act and assume taxation powers. R.M.D.C., the petitioners, argued that the State’s action was beyond its legislative competence and constituted colourable legislation. They contended that the State of Mysore was indirectly trying to control prize competitions by appropriating taxation powers. The constitutional validity of Article 19(6) of the Indian Constitution was also questioned in the case. The respondents countered the petitioners’ claims by arguing that the lottery and gambling business conducted by R.M.D.C. did not fall under trade and therefore did not violate any fundamental rights under Part III of the Constitution. The case was presented before the Apex Court, with Mr. Palkhivala representing the petitioners and Mr. Seervai representing the respondents. Both parties presented their arguments and contentions. The issue of severability, determining the validity of different parts of the Prize Competition Act, was a crucial aspect of the case. In summary, the case involved the challenge to the State of Mysore’s amendment of the Prize Competition Act and the constitutional validity of Article 19(6) in relation to prize competitions. The arguments focused on legislative competence, colourable legislation, and the classification of the lottery and gambling business under trade. **FACTS OF THE CASE:** A petition is filed by the applicant on the ground of their violation of the fundamental rights under Article 32 of the constitution challenging that Article 19(6) has been violated as a restriction is imposed on carrying on their business by the respondents. Further it was contended: - A petition is filed by the applicant on the ground of their violation of the fundamental rights under Article 32 of the constitution challenging that Article 19(6) has been violated as a restriction is imposed on carrying on their business by the respondents. - Further it was contended by the respondents that Section 2(d) of the Prize Competition Act, 1955 doesn’t cover the competitions related to the gambling but the petitioners were of the view that the definition of prize competition under Section 2(d) of the Act is very wide and it not only covers the competitions of the gambling nature but also those in which success depended to a substantial degree on skill, which was a part of the petitioner’s business. - Further, On behalf of the Union of India this was controverted and it was contended by the respondents that the definition, properly construed, meant and included only such competitions as were of a gambling nature, and even if that was not so, the impugned provisions, being severable in their application, were valid as regards gambling competitions. **LEGAL ISSUES RAISED:** The issues raised in R. M. D. Chamarbaugwalla vs Union of India were: - Whether the provisions of the Prize Competitions Act (42 of 1955) apply to competitions requiring substantial skill, not falling under the category of gambling, as per the definition of “prize competition” in Section 2(d). - If the Act does apply, whether the provisions of Section 4 and 5, along with Rule 11 and 12, which are conceded to be invalid, can be enforced selectively through the principle of doctrine of severability in the context of competitions categorized as gambling. **APPELLANT’S ARGUMENTS:** - The counsels for the Appellant submitted that they were actively involved in promoting and conducting prize competitions across various Indian states, contested the constitutionality of Sections 4 and 5 of the Prize Competitions Act (42 of 1955), along with Rules 11 and 12 framed under Section 20 of the Act. - Their argument rested on the interpretation of “prize competition” as defined in Section 2(d), asserting that it encompassed not only gambling competitions but also those reliant on a substantial degree of skill. - They contended in RMDC vs Union of India that these provisions infringed upon their fundamental right to conduct business under Article 19(6) of the Constitution. Additionally, they argued that the provisions formed a single inseverable enactment, necessitating the entire Act’s invalidation. **RESPONDENT’S ARGUMENTS:** The counsels for the Respondent submitted that that the definition, when properly construed, only included competitions of a gambling nature. - The respondents argued that ‘prize competition’ as defined in s. 2(d) of the Act, properly constructed, means and includes only competitions in which success does not depend to any substantial degree on skill and gambling activities are not trade or business. - The petitioners cannot file the petition under Article 32 as there has been no violation under Art. 19(1)(g), and that accordingly the petitioners are not entitled to invoke the protection of Art. 19(6). - It was contented by the respondents even if some part of the Prize Competition Act is invalid that should be removed but the valid part should stand valid and the whole Act should not be entirely void. **JUDGEMENT:** In R.M.D.C. v. Union of India case, the issue revolved around Section 2(d) of the Prize Competition Act, 1955 whether that section provided there covers all kinds of competitions including the gambling which the petitioners owned. In this case, the violation of Art. 19(6) was contended by the petitioners because of some of the impugned provisions in this Act. The Apex Court said that the question of violation of the fundamental rights would not stand valid as the gambling is not covered under the trade and hence no violation of the fundamental right. The Apex Court considering all aspects held that the doctrine of severability would apply here and the provisions which are invalid would be excluded from the Act and the valid part will been forceable. Giving this judgment the court laid down the various rules on the doctrine of severability that were a part of American Courts as how to judge and draw a line between the valid and invalid parts of the statute. Rules laid down for Severability: - If the valid and invalid provisions are totally mixed up with each other and hence cannot be separated then the whole Act would be invalid. - The determining factor in deciding whether the valid part of the statute can be separated from the invalid parts or not, is the intention of the legislature only. - If the valid and invalid parts of the statute are different and can be separated then the valid part which remains can form a complete code independent of the rest, will be checked. Then only it will be upheld. - Even when the provisions which are valid, are distinct and separate from those which are invalid form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. - When the valid and invalid parts of the Statute are independent and do not form any part of the Scheme but what is left after excluding the invalid part is so thin and curtailed as to be in substance different from what it was when it emerged out of the legislature then also the entire part will be rejected. - The severability of the valid and invalid provisions of the Statute does not rely on whether the provisions are enacted in the same or different, it is not the form but the substance of the matter that is material and that has to be ascertained on the examination of the Act as a whole and of the settings of the relevant provisions therein. - If after the invalid part is obliterated from the statute, and what is left cannot be enforced without making the modifications and alterations, then the whole Act would be declared as void otherwise it would lead to judicial legislation. - To determine the legislative intent on the question of severability, it would be authorized to consider the history of the legislation, title, preamble and the purpose of it. **Conclusion:** In the landmark case of RMDC v. Union of India, the petitioner challenged the constitutionality of provisions in the Prize Competitions Act (42 of 1955) related to gambling competitions. The court, following the precedent set in The State of Bombay v. R. M. D. Chamarbaugwala, held that the restrictions under Sections 4 and 5 were not challengeable under Article 19(6) of the Constitution, as gambling did not fall under Article 19(1)(g). The court interpreted the Act to apply specifically to gambling competitions and ruled that even if it included skill-based contests, the contested provisions were severable, valid for gambling competitions, and not void. **References:** R.M.D.C. v. Union of India, (1957) AIR SC 628 A.K Gopalan v. State of Madras, (1950) AIR SC27 State of Bombay v. F.N Balsara, (1951) AIR SC 318 Minerva Mills v. Union of India, (1980) AIR SC 178 Kihoto Hollohan v. Zachillhu, (1992) SCR (1) 686 State of Bombay v. The United Motors (India Ltd), (1953) AIR 252 D.S. Nakara v. Union of India, (1983) AIR SC 130 Chintaman Rao v. State of Madhya Pradesh, (1951) AIR 118 Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd, (1894) AC 535 **Categories:** Case Analysis, Constitutional Law Cases --- ### [Common Cause a Regd. Society vs Union of India 2023 SCC OnLine SC 99](https://lawfoyer.in/common-cause-a-regd-society-vs-union-of-india-2023-scc-online-sc-99/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **Author: Masooma Naqvi, Amity University, Uttar Pradesh** **ABSTRACT / HEADNOTE-** The following case includes the appellant which is Indian Society of Critical Care Medicine, who sought to seek clarifications on the judgement given in ***Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1.*** The matter was referred to a five-judge bench in the Supreme Court and was filed under Article 32 of the Indian Constitution. The applicant argued that the guidelines laid down in the 2018 judgement were cumbersome and needed streamlining. In the following case the learned bench made numerous modifications with the intention to ease the process of administering passive euthanasia to terminally ill patients, who have no hope to recover and make it less time consuming. The Court also made clarifications on the question of Advance Directives. It further stated that as opposed to the guidelines of 2018 which required attestation by the judicial magistrate for a living will, the new guidelines would require a notary, or a gazetted officer to validate a living will. The case was disposed of by the Supreme court. ***Keywords*–** Passive Euthanasia, Writ Petition, Supreme Court, Article 21, Terminally Ill Patients, Two- tiered process, Advance Medical Directives **CASE DETAILS** *Judgement Cause Title***Supreme court, Common Cause vs Union of India 2023*Case Number***MA No. 1699/ 2019 in WP (C) No. 215/ 2005*Judgement Date***24th, January, 2024*Court***Supreme Court*Quorum***C.T. Ravikumar, Hrishikesh Roy, Aniruddha Bose, Ajay Rastogi, K.M. Joseph*Author***K.M. Joseph*Citation***SCC OnLine SC 99*Legal Provisions Involved***Article 21, Article 32, Constitutuion of India, 1950.**INTRODUCTION AND BACKGROUND OF JUDGEMENT** We must first understand what Advanced directives are. “Advance Directives is a general name for several kinds of documents you can sign to help ensure that your wishes about medical treatment is known and respected if you are unable to communicate for yourself.”[\[1\]](#_ftn1) In 2005, Common cause which is a registered society approached the Supreme court under article 32, praying to recognize the right to die with dignity within the ambit of article 21 of the Indian Constitution. Article 21 speaks about ‘Right to Life and Liberty’. The petitioner argued that the patients who have had prolonged treatment going on, and have no hope to improve their condition must have the right to die with dignity, through Passive Euthanasia. “Passive euthanasia is the act of withholding or withdrawing medical treatment, such as withholding or withdrawing life support, with the intention of allowing a person to die.”[\[2\]](#_ftn2) Later, Indian Society of Critical Care Medicine filed an application before the supreme court to get clarification of the judgment reported in ***Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1.*** **FACTS OF THE CASE** The petition seeks to modify some of the guidelines prescribed in the 2018 Judgement, to ease the procedure for terminally ill patients to exercise their right to die with dignity as the procedure mentioned in the act was rather complicated. The right to Die with Dignity was first recognized in Common Cause vs Union of India in its 2018 Judgement. The main takeaway was that a person should not be given further medical care if they do not demand. Although this issue was initially brought before a three-judge Bench, where it was transferred to a Constitution Bench because of conflicting precedents about the law governing the right to die in India. In the present case, the applicant came before the court to sought clarifications on some of the guidelines and praying to modify some of these guidelines as the process was very slow paced and cumbersome. **LEGAL ISSUES RAISED** 1. “Whether the Court should issue suitable directions or set in place norms to provide for what is described as Advance Directives? 2. Whether even in the absence of Advance Directives, when a person is faced with a medical condition with no hope of recovery and is continued on life support system/medicines, life support system should be withdrawn?”[\[3\]](#_ftn3) **PETITIONER/ APPELLANT’S ARGUMENTS** Since Common Cause a Regd. Society vs Union of India 2023 SCC OnLine SC 99 is based on the guidelines issued in its original application of 2018, it becomes important for us to also briefly touch upon the 2018 judgement arguments as well. The counsels for Petitioner / Appellant in the original case of Common Cause vs Union of India 2018 submitted that every individual has the autonomy to decide to continue or discontinue their life, provided they are terminally ill, on prolonged medications, and have no hope to recover. This is applicable in cases where a person has reached a permanent irreversible state where death is not far away. The petitioner also argued that Death with dignity is a far better option that allowing a person to continue to suffer in their vegetative state. Further the petitioners argued that individual autonomy or the right to decide comes within the ambit of Right to Privacy and hence should be sustained. In the case of Common Cause vs Union of India 2023 SCC OnLine SC 99, the applicant held that the difficulties due to the nature of the guidelines of 2018 were being voiced by a large numbers of doctors as well and hence it became a matter of importance for the court to address. **RESPONDENT’S ARGUMENTS** The counsels for Respondent in the original case of Common cause vs Union of India 2018 submitted that- 1. The right to Life and Liberty mentioned under Article 21 of the Indian Constitution does not include the Right to die as its facet, but rather means availability of food, shelter, and health. Protecting the life of the people is believed to be the primary function of the state, and hence including the right to die with dignity will directly go against the basic right mentioned in the Constitution. 1. The Counter Affidavit in Common Cause a Regd. Society vs Union of India 2023 SCC OnLine SC 99 submitted that *“As we have noticed, this is an application seeking clarification. Ordinarily, be it an MA No. 1699/ 2019 in WP (C) No. 215/ 2005 application lodged in this Court blessed as it is with powers under Article 142 of the Constitution of India, we would have thought that the application should not receive further consideration. However, we notice that there has been a subsequent development. The development is in the form of orders evidencing an attempt being made by the respondent also to evolve/agree to certain changes.”*[\[4\]](#_ftn4) **RELATED LEGAL PROVISIONS** Section 92, Indian Penal Code 1860. Article 21, Indian Constitution 1950. **JUDGEMENT** **RATIO DECIDENDI** 1. The learned bench made several modifications in the 2018 case with the intention of making the process less cumbersome and time consuming. 1. With regards to issue 1 “198.2.1. It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.” 1. With regards to issue 2, the court held that “It is necessary to make it clear that there will be cases where there is no Advance Directive. The said class of persons cannot be alienated. In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed: 199.1. *“In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the MA No. 1699/ 2019 in WP (C) No. 215/ 2005 patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.”* 199.2. “*In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.”* 1. In 2018, the Court declared Section 309 IPC ultra vires and held that it deserved to be effaced from the statute book to humanize our penal laws. “Delving into the facet of committing suicide, the larger Bench observed that when a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to or be included within the protection of the right to life under Article 21.” In the case of ***Common Cause vs Union of India 2023 SCC OnLine SC 99,*** the Hon’ble court made certain modifications of the guidelines issued in the 2018 case, some of which include the following- A) Para 198.3.1 which earlier required a Judicial Magistrate of First Class appointed by the concerned Judicial Magistrate, to countersign the documents, signed by two independent witnesses, it now has been amended. The condition now requires countersign by notary and official gazette as appointed by the concerned judicial magistrate. B) Para 198.4.5 Which earlier talked about a single medical board now talk about 2 Medical Boards, Primary and Secondary Medical Boards. “The primary medical board certifies that the instructions contained in the advance directives ought to be carried out, the hospital shall them immediately constitute a Secondary Medical board comprising one registered practitioner nominated by the Chief Medical Officer of the District atleast two subject experts with atleast five years of experience.” Para .198.6.4 Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the medical board constituted by the collector and for appropriate consideration on the advance directive. It now stands amended. Now the persons mentioned in the advance directive may ask the hospital to refer the case to the secondary medical board. These are some of the modifications that were made. The reasoning behind it was to make the process more speedy and hassle free. **CONCLUSION & COMMENTS** The amendment of the guidelines established by the court in 2018 was necessary as Right to Die with Dignity is not only based on the right to choose for oneself and personal autonomy but it prolongs the sufferings of the terminally ill people. It however is not limited to the terminally ill people themselves but also extends to their families. There is a constant financial pressure on them and they suffer themselves seeing their loved ones in peril. Hence, the process of passive euthanasia should be convenient, hassle free and speedy. **REFERENCES** **Important Cases Referred** *Common Cause (A Registered Society) vs Union of India*[\[5\]](#_ftn5) *Gian Kaur V. State of Punjab case[**\[6\]**](#_ftn6)* **Important Statutes Referred** *Article 21, Indian Constitution, 1950* *Section 92, Indian Penal Code 1860* *Law Commission’s 241st report – ‘Passive Euthanasia’* --- [\[1\]](#_ftnref1) “Understand and Complete Your Advance Directives” (*The Joint Commission*) [\[2\]](#_ftnref2) “SC Eases Norms for Passive Euthanasia” (Drishti IAS) [\[3\]](#_ftnref3) Explained| Supreme Court’s Order Modifying Guidelines given in 2018 Euthanasia Judgment | SCC Times” (*SCC Times*, February 4, 2023) [\[4\]](#_ftnref4) Common Cause (A Regd. Society) Director ..vs Union Of India (A) Ministry Of Health 2023. [\[5\]](#_ftnref5) AIR 2018 SUPREME COURT 1665, AIR 2018 SC (CIV) 1683, (2018) 3 MAD LJ 503, (2018) 4 SCALE 1, (2018) 1 CRIMES 184, (2018) 1 CURCC 448, 2018 (5) SCC 1, 2018 (2) KLT SN 47 (SC), 2018 (1) KCCR SN 65 (SC) [\[6\]](#_ftnref6) 1996 AIR 946 1996 SCC (2) 648, JT 1996 (3) 339 1996 SCALE (2)881 **Important Online Sources Referred** *[https://www.livelaw.in/pdf\_upload/79-common-cause-v-union-of-india-24-jan-2023-457290.pdf](https://www.livelaw.in/pdf_upload/79-common-cause-v-union-of-india-24-jan-2023-457290.pdf)* **Categories:** Case Analysis, Constitutional Law Cases --- ### [State (Through CBI ) v Santosh Kumar Singh](https://lawfoyer.in/state-through-cbi-v-santosh-kumar-singh/) **Published:** March 5, 2024 **Author:** LawFoyer **Content:** **Author: Nida, Christ (deemed to be) University Lavasa, Pune** ## INTRODUCTION This judge’s decision to let the accused go free in the Priyadarshini Mattoo case shows that our justice system is not working properly. People are upset because it seems like powerful people can get away with crimes. Corruption and political influence have made our courts unfair. It’s like when someone says that having a lot of power can make people do bad things. It’s strange that even though the Judiciary is supposed to be really powerful, they can still be influenced by wealthy and persuasive people.[\[1\]](#_ftn1) It’s sad that most of the rules and protections against judges doing bad things are no longer working. ## FACTS A long time ago, a girl named Priyadarshini Mattoo was killed in her uncle’s home in Delhi. The police found out that she had been hurt badly and someone had choked her. They suspected Santosh Kumar Singh, who was a senior of Priyadarshini at college, to be the person who did it. Priyadarshini had told the police before that Singh had been following and bothering her. At first, the police didn’t do a good job investigating the case. But later, the Central Bureau of Investigation took over and looked into it. In 1999, Singh was cleared of the charges by a lower court because there wasn’t enough proof. But the CBI didn’t agree and appealed the decision in the Delhi High Court. In 2006, the High Court found Singh guilty of both assault and murder, and he was sentenced to death. Singh didn’t agree with the High Court’s decision and appealed again. In 2010, the High Court upheld Singh’s conviction, but changed his punishment to life imprisonment instead of death. An FIR was filed at the Vasant Kunj Police Station under [\[2\]](#_ftn2)Section 302 of the Indian Criminal Code (IPC). According to the statement recorded under Section 161 of the Cr.PC[\[3\]](#_ftn3), the deceased’s mother, Rajeshwari Mattoo, suspected the offender and so joined the inquiry. ## LEGAL ISSUES - Whether the police do a good job at first when they were investigating Priyadarshini Mattoo’s murder, even though they made some mistakes? - whether it worry us that someone older and more powerful at school might have hurt Priyadarshini, and that this could happen because of how people with power can sometimes behave badly? - Whether they remember when Priyadarshini Mattoo told people that someone was bothering her and following her? This shows that we should do more to stop this from happening and make sure people are safe. - Can the police get in trouble if they forget to record what an important witness says? - Can a DNA test prove if someone is guilty or not? - If we can prove without a doubt that the accused person is guilty and there is enough evidence to support it, should they be found guilty of the crime they committed? ## ANALYSIS The prosecution in the trial had a hard time because the investigation was done poorly and the evidence was tampered with. But they were able to prove that Santosh hurt himself and broke his helmet when he attacked Mattoo. Mattoo also complained to the police many times about Santosh bothering her, and people saw Santosh near Mattoo’s house before she was killed. The accused tried to say his injuries were old, but a doctor said they looked recent. The court didn’t agree with the prosecution’s evidence and let the accused go free. [\[4\]](#_ftn4)This made a lot of people angry and they protested for justice. The media also found problems with the case and showed how Mattoo didn’t get the justice she deserved. The public demanded that the case be looked at again, and the CBI filed an appeal in a higher court. Finally, in 2006, Santosh was found guilty and sentenced to death. But later, his sentence was changed to life in prison. This case shows that justice may have been delayed, but it was not denied. ## CONCLUSION Abuse can occur when any institution, whether legislative, executive, judicial, or bureaucratic, exceeds its legal jurisdiction and powers. In certain circumstances, such as judicial activism, extra-legal actions might really be beneficial. Along with the media trial, like revolutionary sting operations, is a praiseworthy effort to monitor police investigations and acts. However, it must maintain self-restraint and prioritize fair trials and judicial procedures, with a sense of responsibility. The media should acknowledge that their content has a huge impact on the audience. While television journalism has improved in terms of audience interaction and response, there are still issues around agenda setting. Citizens or news media. As watchers, we might easily succumb to the media’s influence and follow its predefined path of involvement. Media impact may be subtle, especially when the cause appears noble. When democracy fails, the media’s role in public involvement should be carefully considered. The channels’ promises of justice and empowerment often rely on media power, which may be vague and confusing. The judicial and the media are separate bodies with distinct functions that do not overlap. Both parties should not rely on each other to fulfill their commitments. The media should only carry out journalistic duties and not act as a special agency for the court. Prejudiced media coverage undermines freedom of speech and expression because it interferes with the delivery of justice. The media has a moral obligation to deliver the truth at the right time. Print media has reached saturation and adheres to legal and ethical requirements, whereas electronic media is still in its early stages of experimentation. Use the “trial and error” method to determine what to exhibit and what not to expose. There will come a day when electronic media will be strictly managed by self-censored conventions, and we will still have a “totally free press.” ## RELEVANT PROVISIONS ## *The Indian Penal Code, 1860*[***\[5\]***](#_ftn5) **•Section 302** According to Section 302 of the Indian Penal Code, 1860, a person who commits murder shall be punished with the death penalty or a life sentence in jail as well as a heavy fine. No one is exempted from the crime of murder under the IPC **•Section 354** Anyone who assaults or uses unlawful force on a woman with the intent to offend or knowing that doing so will likely offend her modesty is punishable by imprisonment of either kind for a time that may extend to two years, by fine, or by both. **•Section 376: Punishment for rape** Those who commit rape, except for those covered by subsection (2), are subject to fines and imprisonment of either kind for a duration that may not be less than seven years but maybe for life or for a term that may extend to ten years. If the victim of the rape is the offender’s wife and she is not under the age of twelve, he or she is subject to imprisonment of any description for a term that may extend to two years. With the caveat that the court may impose a sentence of imprisonment for a term of less than seven years for sufficient and unique grounds to be indicated in the ruling. ## *The Code of Criminal Procedure, 1973*[***\[6\]***](#_ftn6) **•Section 313: Power to examine the accused** 1\. in every inquiry or trial, to enable the accused personally to explain any circumstances appearing in the evidence against him, the Court- 2\. May at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; 3\. shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). 4 The accused shall not render himself liable t