At the beginning stage, it is crucial to define what Straight-Through Processing (“STP”) is, as under the SEBI guidelines. STP refers to and includes a mechanism that automates the end-to-end processing of transactions of financial instruments. It involves the use of a single system to process or control all elements of the work-flow of a financial transaction, including what is commonly known as the Front, Middle, and Back office, and General Ledger. It refers to electronically capturing and processing transactions in one pass, from the point of first ‘deal’ to final settlement.
In order to reduce the human intervention in writing and maintaining the documents relating to company transactions, SEBI has introduced this mechanism to prevent the costly multiple data re-entry from paper documents and other sources which are easily susceptible to errors, discrepancies, delays and possible fraud in the transactions of the company and also to ensure the accuracy of information.
This process was introduced in India when the global securities market drastically changed on account of high expectations from the customers. This dramatic change was brought about by the technological advancement in the world to prevent manual errors in the global securities industry and to provide effective solutions to several business-related problems.
STP usage in contemporary company practices ensures that orders are processed, confirmed, cleared and settled in a shorter time period, more cost-effectively, and with fewer errors. Apart from compressing the clearing and settlement time, STP also provides a flexible, cost-effective infrastructure, which enables e-business expansion through real-time processing and access to enterprise data.
Using STP in the international markets have given highly significant results in maintaining the accuracy of the flow of information regarding the transactions of the company. Therefore, SEBI mandated all the listed entities to follow STP in their regular transactions since 2004 and also prescribed several guidelines to be followed at the time of using messaging to communicate transaction details. This has also not imposed any standards on interoperability between the companies. Further, it is interesting that rarely have companies accepted STP at the broader level; most of them have adopted this at managerial levels and the organisational level. One reason for this is that there is a high probability of data leakage; rarely have attempts been made from the global securities markets to reduce this fear among companies.
Advantages of STP
Provides proper and short time framework for settlement cycle.
Strengthens transparency
Prevents manual errors in the work and also avoids costly duplication of work
Reduces errors and risks in the work related to transactions
Facilitates effective data capturing mechanism and generates an accurate report
Generates market cost-effective.
Regulates effectively through systematic audit trial.
And finally, effectively increases the overall efficiency of the company.
History of STP in India
On 19th February 2002, SEBI had constituted a committee to estimate the viability and suitability STP system in the Indian marketing field. The committee has undertaken a comparative study of the process which is an integral part of the trade cycle, both in India and at international level and recognised some of the areas which required to be automated on the priority basis.
In order to start STP in India, the committee has recommended some areas to be taken under STP to see the feasibility and viability of the Indian marketing and some of them will be as follow.
Firstly, it recommended facilitating On-line Connectivity between the depositories to permit easier settlement.
Secondly, it suggested for Recognition of electronic contract notes as a legal document as an alternative to paper-based contract notes.
Thirdly, it recommended for the paperless form of data and records in the company transactions and also suggested to change regulations, bylaws, and other statutory provisions for accommodating paperless mechanism in all spheres and transactions of the company.
And finally, it requested SEBI to adopt ISO 15022 standards for financial messaging with Digital Signature using PKI.
On account of the suggestions from the committee, SEBI on third of OCTOBER 2002 had introduced STP into the Indian markets on a voluntary basis.[1] However, this system could not nourish in the initial stages on account of Lack of Inter-operability between all the STP Service Providers. To address the several problems along with the Lack of Inter-operability between all the STP Service Providers, SEBI had constituted a committee by all the existing STP providers headed by NSDL to rectify the problems and suggest the solutions for preventing them.
Constitution of this committee had identified several problems with the system and suggested some solutions to prevent them. SEBI latter had accepted most of them and gained experience in effective using of STP.
Now let us discuss some E-forms which are needed to be processed under STP. This indicates that submitted forms cannot be processed by the RoC user for automatic approval of some forms again.
forms 2 and 3 which deals with the return of allotment of shares
forms such as 8 and 17, which mostly deals with the charges (other than condonation of delay cases)
form number 18 regarding the change in registered office by an incorporated and existing company
Form number 32 which deals with the change in directors and others by the presently functioning company
Form number 1A for name availability by a new company this included simplification of the Name Availability Guidelines as well. This form will be taken without the intervention by the RoC to save time and also for the public inspection.
Finally, forms such as Annual forms like 20B, 23AC & 23ACA
Recently in order to simplify the process, with the view to dispose the E Forms in timely and to avoid the penal consequences for not complying under section 448 and 447, the MCA had clarified through the notification that even Form MGT-14 which deals All cases except for change of Name, change of object, resolution for further issue of capital and conversion of companies will be STP Mode.[2]
Above stated e-forms filed by companies with the Ministry of Corporate get direct approval once a practising professional (CA/CS/CWA) certifies the document.
Consequences, punishments and penalties for late submissions of Straight Through Processing E forms
Failing to submit the form on Return of Allotment under section 39 (5) enables authorities to penalise company & officer in default: Rs. 1000/- per day or 1 lakh, whichever is less.
If a company fails to Intimate alteration of Capital within the prescribed period, such company will be liable under section 64(2) according to which such company and every officer who is in default shall be liable to a penalty of one thousand rupees for each day during which such default continues, or five lakh rupees whichever is less.]]
The company should file information regarding section 66 of the companies act which deals with Reduction of share capital and in case of non-compliance the company will be liable under clause 11 of the same section which says that If a company fails to comply with the provisions of sub-section (4), it shall be punishable with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees and officer shall be liable under section 447.
Late filing of documents relating to charges attracts section 86 of the companies act and according to which the rate of penalty and punishment, Company: Rs. 1 lakh to 10 lakh and Officer: Imprisonment up to 6 months and/or fine of Rs. 25000/- to 1 lakh
Incorrect or late submission of forms related Annual Return will be penalised under clause 5 of section 92 and according to this Company has to pay Rs. 50,000/- to 5,00,000 and Officer either have to pay Rs. 50,000/- to 5,00,000/- or imprisonment of 6 months.
Late Filing of resolutions has been dealt under Section 117 (2) where Company has to pay Rs. 5 Lakh to 25 Lakh and Officer have to pay Rs. 1 Lakh to 5 Lakh.
Late submission of form relating to Intimation of DIN would be dealt under Section 157 (2) and according to this Company needs to pay Rs. 25,000/- to Rs. 1 lakh and Officer has to pay Rs. 25,000/- to Rs. 1 lakh.
Although this is not yet a complete list, this makes us aware of the stringent provisions of the Companies Act relating to forms which we need to submit under STP for the smooth functioning of the company.
References
SEBI vide letter dated October 03, 2002[1] (Ref: FITTC/FII/19320/2002) mandated introduction of STP for electronic trade processing with a common messaging standard with effect from December 02, 2002
General Circular 28-2014, File No.U9-2013- CL-VDSCN0214, Government of India, Ministry of Corporate Affairs
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
This article is written byPratibha Bansal, a student of Banasthali Vidhyapith, Rajasthan, she has tried to explain the whole concept of writ under Indian Constitution in her article, along with some landmark judgment and decided case laws and procedure of filing writs in High Courts and Supreme Court.
Introduction
I would like to begin my article by quoting some lines of King Martin Luther as “Injustice anywhere is a threat to justice everywhere”.
Which means that, if anywhere in this world, any wrongful act is committed or injustice has been done to anybody then it will spread like a virus and can’t be tolerated anywhere. Therefore, all the justice done will be spoiled and everyone else has to wonder, what it would take for that same injustice to be done with them. Moreover, there arises a need to provide justice to all and remove the bias from the system. Hence the concept of writ were introduced in Common Law for keeping a judicial eye on the work of administration.
In ancient times, this unique development of writ were done by Anglo-Saxon monarchy that consist of brief administrative order, basically for land revenue purposes. During that time writs were the documents issued by the King’s Chancellor against the landowner whose villeins(feudal tenant) complained to the king about an injustice done with them. This document was only issued after the summons from the sheriff to comply deemed fruitful.
Later William took the concept of writs by making just two differences
Writ were issued in latin instead of Anglo-Saxon, and
Writs will be covering more command other than only land related commands
By 5 March 1133 writs became available to private individuals for seeking justice.there were two main forms of writs-
Open- available for all to read.
Letters close- available for one or more specific individuals only.
What is a writ
A writ is a written official order issued by the court. The formal order may be in form of warrant, direction, command, order etc. Writs can only be issued by the High Court Under Article 226 of Indian Constitution,1950 and by The Supreme Court under Article 32 of Indian Constitution,1950. Indian constitution has adopted the concept of prerogative writs from English common law. Writs was first used to describe a written command of the King. Whereas, these writs are now available to a person aggrieved by the decision of the inferior courts or administrative body in England.
Differentiating between writs and order it can be said that writs can be issued to provide extraordinary remedy i.e in cases where the aggrieved person is seeking for an extraordinary remedy usually against an administrative action, whereas, order can in passes in any matter. There are 5 different types of writ provided under law, whereas, no such classification for orders has been made.
Hence, all the writs can be called as order but all order can’t be called writs, because the ambit of order is larger than writs.
Types of Writ
There are 5 types of writes specified under Indian constitution law.
Habeas corpus
Writ of habeas corpus can be issued for preserving the liberty of a person, who is being illegally detained. It can be invoked against the state as well as against the person within whose custody the aggrieved person is. It came into the picture for preserving the rights and liabilities of
Writ of habeas corpus is a powerful weapon available before a common man who has been wrongfully detained by the person or state. This writ provides a fast and powerful remedy against illegal detention.
This writ is an order calling the person who was arrested or jailed the alleged person for producing the aggrieved before the court, for knowing the grounds of his detention and if not found any legal ground for his detention then let the aggrieved be free from arrest and let him enjoy his freedom.
This case is known as habeas corpus case, here it is explained, what is a writ of habeas corpus mean? Quoting Justice Khanna “writ of habeas corpus is a process of securing the liberty of an aggrieved person by providing an adequate method for immediate relief from wrongful or illegal detention. Whether the person kept in wrongful custody is in prison or under private custody of an individual.” and after the enquiry regarding the cause of his imprisonment by the High Court and the judges of that court, if it is found that there is no legal jurisdiction for that incarceration, the aggrieved person is ordered to be released from custody.
Features
There will be a total of 15 features of this writ of habeas corpus that will be making its whole concept more clear.
Writ of habeas corpus is a process by which any person who has been wrongfully arrested or detained may be set free from such illegal internment.
Purpose
It is in the form of an order delivered by the High Court or Supreme Court for calling upon the person who made the arrest of the aggrieved person. Commanding to produce such person before the court, for hearing the grounds on which his arrest was made.and if there is no legal ground observed by the court in making his arrest the person making such arrest is ordered to release the aggrieved immediately.
Justice Bhagwati held that the main aim of this writ is preserving the liberty and freedom of the person subjected to illegal detention and allow him to enjoy his liberty at the fullest. In extension to this aim, his(person alleged to be illegally apprehended) production before the court is ancillary.
Whereas, under English law production of an alleged person body, for determining the legality of his detention, is not required. And under before US Courts also the same principle is followed.
Who may file an application
Application for habeas corpus can be filed by the person himself whose detention was alleged wrongful and can also be filed any other person ( can be a mother, father, wife, brother, sister or even friends) on his behalf, subject to the rules constructed by different High Court in this respect.
Supreme Court declares that an application for the writ of habeas corpus can be filed by the person illegally jailed or can also be filed by any other person on his behalf provided that such any person must not be totally a stranger to the person wrongfully detained.
Duty of Applicant
Application for writ of habeas corpus must be filed along with
An affidavit
Declaring the grounds of his detention,
Circumstances in which his arrest has been made, and
Nature of his detention.
Therefore, it became the duty of the person making an application to disclose all the facts of the case in that application/petition to the best of his knowledge.
Under English law, it is stated that it becomes the duty of the state to place before the Court all the relevant and material facts relating to such an impugned action truly and fairly, whenever any arrest or detention is challenged before the court.
Procedure
On receipt of the application, if the court is satisfied that there arises a prima facie case for granting the prayer then, the court will issue a show cause notice(rule nisi) calling the opposite party who detained the applicant on the specified day for presenting their side of the case.
On the specified day court after analysing all the point made by both the applicant as well as by the opposite party will look into the merits and pass an appropriate order. If it is viewed by the court that the detention is unjustified, it will order the authority who detained the applicant for immediate release of the convicted person. Whereas, if the detention is justified according to the court, the show cause notice must be discharged.
In the above-stated case, it was held by the Supreme Court of India that the court before which the case is pending for disposal has the power to grant interim bail. But in the usual course of working grant of interim bail by the court is not preferred.
This a recent judgment of 2008 by the Supreme Court of India disclosing that as per general principle writ of habeas corpus can be issued only once the person has been arrested whereas, there are exceptional circumstances in which a petition for writ of habeas corpus is maintainable even if the person is not actually detained. Such an exercise is undertaken by writ- court with extreme care and caution.
If certain conditions are satisfied then it will become absolutely clear that detention can’t be prima facie illegal:-
Article 21 of the Indian Constitution declares that “every detention must be according to the procedure provided under the law”. Meaning that there a given valid law allowing the authorities to convict the person accused of some offence and the procedure prescribed must be strictly followed by the person making such arrest. The following procedure must be fair, reasonable and just.
The conviction must not be followed by infringement of any of the conditions provided under Article 22 of The Indian Constitution. Hence any person not produced before a Magistrate within 24 hours from his arrest (excluding travelling time) shall be entitled to be released on a writ of habeas corpus.
This is a landmark judgment in which Justice T.S.Thakur has laid down 11 which are supposed to be followed by the person making an arrest of an accused person. These guidelines include production of the person before any magistrate within 24 hours from the time of his arrest and held that in case if these guidelines are not being followed by the court then person detained must be entitled to be released on the same grounds on a writ of habeas corpus.
The legislature which is making law in regards to a man, depriving him from his personal liberty must also be empowered to make laws under Article 246 making knots with the distribution of legislative power.
Writ of habeas corpus can only be issued if there is illegal restrain and the person is entitled to be released on a petition of habeas corpus. Question asked by the court on a petition of habeas corpus is whether the detention is lawful or not and if it is answered positively then such a writ will not be issued and if answered negatively then the writ must be issued.
In the given case application for a writ of habeas corpus was filed for the discharge of Robert Soblen, as here before the court, the question was, whether the detention of Mr Robert is lawful or not? As he is not in a condition to be held in prison, medically. His surgeon at the hospital also didn’t allow any legal documents to be served to him until july 3.
Therefore, considering the facts of the case writ of habeas corpus was granted.
In case it is visible that detaining authority has acted mala fidely or with the intention to deceive the arrested person or there are any personal grudges involved then a writ of habeas corpus will lie.
The petition was filed under article 32 before the Supreme Court of India.writ of habeas corpus was filed against his detention in Madras jail mentioning all the dates since December 1947, under ordinary criminal law. His detention was made under preventive detention act IV of 1950.
Petitioner challenges the legality of the given act ass it contravenes the provisions of article 13,19 and 21 and provision of preventive detention act are not in consonance of article 22 of Indian Constitution also. And challenged the validity of the order stating that the order passed against him is mala fide.
Held- Court will not interfere on the question of malafide unless it is proved by the petitioner that the authorities have used their power in a mala fide manner or the grounds of his detention are not justified. It is also declared by the court that though the provisions of the act are harsh or rigid, but those do not take away the rights provided under chapter III, Article 21 and 22 of Indian, therefore provision of preventive detention act can’t be held illegal or ultra vires and impugned order was upheld by the court.
According to the general principle of law, writ of habeas corpus will not lie if the person is undergoing imprisonment on a sentence passed by a court in any criminal trial on the ground of wrongfulness of his detention. That implies writ can’t be issued when the person is not convicted or is clearly visible that his detention is done for the execution of a sentence on any criminal charge. While the conviction is taking place an application of issuance of the writ can’t be filed along with it.
In the given case it was held by the supreme court that whenever a person is convicted of a criminal charge and sentence of his conviction is passes by the criminal trial court then such detention can’t be challenged on the ground of the erroneousness of the conviction.
Successive Application
There is no right to file a successive application for grant of habeas corpus writ to different judges of the same court.
Whereas, till many years in England an unsuccessful applicant is allowed to approach one or more Judges of the same court or any other court successively. An applicant can also get his application renewed on the earlier pieces of evidence and on the same grounds for issuance of this writ.
It was held by Lord Atkin, justice of the Supreme Court of Nigeria, that issuance of a writ of habeas corpus must be followed by proper procedure. The subject has the right to question the validity of his detention again and again by moving an application before different judges for the same facts and it became the duty of the court to guard the freedom of the subject.
Hence an applicant can move from one judge to another until his application is satisfied. But in Hastings (No.2) re, in 1959this principle of English Law was overruled.
Currently, the applicant has no right of successive application.
Under this case, the Supreme Court has given a ruling relating to the successive application of habeas corpus and held that an applicant has no right to file a successive application of habeas corpus on the same grounds and on the same evidence. Whereas, if there arise fresh or new grounds then an application for the same can be filled and will not be barred under this rule.
In India appeal may lie against an order relating to grant or dismissal of the application for issuance of the writ of habeas corpus before the Supreme Court under Article 132, 133, 134 or 136. On the other hand under English Law once an order for the discharge of a person on the writ of habeas corpus is passed then there lies no appeal against such order.
In this case, the applicant has entered the premises of the state illegally and he was from India. Therefore, he got arrested there only and detained in prison. His deportation was pending and he requested the authority to release him for some time as he has to get married before departing for India. And authorities did him to get married and there stated that his discharge is allowed on the application made by him and such discharge is not appealable.
One of the effective ways to get an immediate release from unlawful detention is via a writ of habeas corpus, irrespective of whether the person is detained in prison or in private custody of an individual. Detention does not make physical confinement mandatory. It just means that the person is restricted from performing some task and is in control of some authority i.e custody and control are sufficient for lodging an application for the writ of habeas corpus.
If a child is forcibly kept away from his parents or any other person is forcefully deprived of his liberty, the court will always issue the writ of habeas corpus to the person who has custody of the aggrieved person and order the person to bring the aggrieved person before the court on the application of habeas corpus order the person in and if found that the alleged person is deprived of his personal liberty without any lawful ground then, or for immediate release of the person is passed by the court and the aggrieved must be set free.
For example- if a child is taken away from the lawful custody of her mother by the father and he is not allowing the child to move out or meet her mother then for the release of the child from the custody of his father writ of habeas corpus can be issued.
Whereas, no writ of habeas corpus can be issued if it is sought against a parent for the custody of the child.
Article 226 of Indian constitution states that in case any application is issued before the high court for issuance of a writ of habeas corpus, then house of legislature does not possess any power for questioning or objecting on the jurisdiction of the high court to entertain such applications just because the detention in question is made on the order of the legislature.
It was held by the supreme court of India that thought the speaking or general warrant has been issued by the house directing the detention of the party in contempt but, the High Court has jurisdiction to entertain a Writ Petition for habeas corpus under Art. 226, Thus, the dispute really centers around the jurisdiction of the High Court to entertain a habeas corpus petition and it also has the power to pass an order of interim bail.
Compensation
Ordinarily, a writ court will not award compensation while exercising their power under Article 32 or Article 226 of the Constitution. While in certain cases the court may award monetary compensation to the person who has been illegally detained.
Whenever an order for release of a person from illegal detention is passed by the court under Article 32 (Supreme Court) or Article 226 (High Court) and detaining authority claim that the person has also been released, but the fact of such release are not found and the person detained is not traceable the court may order the payment of compensation by the detaining authority.
Lastly, it is claimed the writ of habeas corpus can only be issued after the person is detained and not to prevent a person from getting arrested.
In the given case the whole concept of writs were explained by Justice C.K. Thakker and Altamas Kabir. It was said by the judges that writ of habeas corpus is the first security of civil liberty and has a great constitutional privilege. While explaining the whole principle of writ of Habeas corpus in this case it was held by the court that thought this writ is issued to secure an individual from illegal detention but, but once the detention is made then only such writs can be issued only on an order of detention writ of habeas corpus can’t be enforced.
Mandamus
History of this writ say that it is a command, issued in the name of the crown by the court of king’s bench to the subordinate court, inferior tribunal, board or to any person requiring it for him to perform a public duty imposed by law. Therefore, a writ of mandamus is a command given by any high court or supreme court to the lower court or any tribunal or board or to any other public authority to perform their public duty imposed upon them by law. It’s primary objective is to supply defects of justice and prevent rights of the citizen.
In the given case high court has issued a writ of mandamus directing the public service commission to include the names of the six petitioners in the list prepared by the Commission under Rule 9(2) of the Rules for appointment to the cadre of Munsiffs. In the view of the High Court the appointment of ten candidates whose names were included in the list under R. 9(2) as fit for promotion could not be disturbed, yet the six applicants should be added to the list and appointments should be made out of that list.
Such direction as given by the high court to public service commision can also be issued against any person or body corporate also to perform their public duty.
Writ of mandamus have several highlighting features, as explained below:-
Writ of mandamus is a judicial remedy in the form of an order from a superior court to any government body, court, corporation or public authority to do or not to do some specific act that the government body, court, corporation or public authority are bound to perform or not to perform under law, as the case may be. These acts must be performed as a part of their public duty or statutory duty.
Writ of mandamus cannot be issued by the higher authority to force their lower departments to act or do something which is against the law.
So, basically this writ is a command to do and also command not to do a particular act against the law, as the case may be.
Writ of mandamus can only be issued when there exists a legal right without a legal right it can’t be issued. A person be called aggrieved person only when he is denied a legal right by any person, court or board who has a legal duty to do something and abstains from doing it.
In the given case Justice Ray A.N.given a definition of an aggrieved person” a person is said to be an aggrieved only when his legal rights has been denied by someone who has a legal duty to do something or denied from doing something. The denied legal right must be a legally enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus.
Existence of Legal Right
Any person seeking for writ of mandamus must show that he has a legal right to overpower the opponent against whom writ will be issued, to do or not to do some specific act. Legal right of the petitioner is a condition precedent. Legal right must be a legally enforceable right as well as a legally protected right before claiming for mandamus. Existence of legal right is the foundation of jurisdiction of a writ court to issue mandamus.
In the given case Dr. saran has challenged the order of the High Court by a special leave of appeal before the Supreme Court of India.
From the facts of the case it was observed by the court that Dr. saran was not eligible for appointment at the time the decision was taken by the High Court i.e. on March 31, 1965. Whereas, respondents 5 and 6 were so eligible and therefore, Dr. Saran, had no right to ask for a writ of mandamus. It was pointed out by the court that the purpose of mandamus is to force the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved person had a legal right under the Statute to enforce its performance. Therefore, the appeal was dismissed by the court and writ of mandamus was not issued.
Supreme court held that the applicant must have a legal right to compel the performance of some duty cast on the opponent by The Constitution or any other statute. And the duty must possess three qualities
Duty must be of Public Nature
Must not be a discretionary one
And duty if discretionary then the power must have been conferred by the authority and statutory provisions are made for it.
Supreme Court held that high court has the power to issue writs of mandamus in case the authority or government body has failed to exercise their discretionary duty or has wrongly exercised the discretionary conferred on them by the statue.
Against whom writ of mandamus does not lie
Will not lie against the president or governor of a state for the performance of their duty or exercise of their power-Article 361
Will not lie against the state legislature for preventing them from considering laws pleaded to be violative of constitutional provision.
In the above stated case the Sale Tax Deputy Commissioner has told one of a bidder in an auction of Indian made foreign liquor that such liquor will be exempted from tax whereas, such exemption was not granted by the States Government and here, the Supreme Court held that court can’t issue writ to the State Government for performing their legislative powers and neither ask legislature to make change in any law and ask execution for not performing the imposed laws.
Will not lie against an inferior or ministerial officer who has to obey the order of his superior according to law.
Neither to be issued against inferior or ministerial officer bound to obey the order of a competent authority, and even can’t compel him to do something which is a part of his duty in that capacity.
Will not lie against a private individual or any private company
Justice Shelat held that an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character, nor can such an application be maintained to secure performance of an obligation owed by a company registered under the Companies Act, 1956 towards its workmen or to resolve any private dispute.
Court held that if a writ of mandamus could not lie against a company which is neither a statutory company nor one having public duties or responsibilities imposed upon it by a statute, no relief could also be given by granting a declaration on the court of the agreement between the company and its workman being illegal.
Special remedy available before any person whose rights are being infringed under article 223 and 32 does not intended to overrule the modes of obtaining relief by an action in civil court or by any other court. Issuance of writ under these articles is discretionary power of the court and especially in the case of issuance of writ of mandamus.
As a general principle it is stated that if there is any unreasonable delay in seeking for this extraordinary remedy then, remedy of mandamus may not be made available.
On the other hand, even if there is no such delay, and a prima facie triable issue as regards the availability of such relief on the merits of grounds like limitation is raised before the Court, should ordinarily refuse to issue the writ of mandamus.
For issuance of writ of mandamus, one of the essential requirements is that there must be a demand by the person seeking relief and the same demand must have been refused by the concerned authority.
In “Halsbury’s Law of England” it is stated that:-
As a general rule party seeking a writ of mandamus must know that what was the actual requirement, for considering whether or not he should comply, and it must be proved by evidence that the demand was distinct by the part and that demand is met with a refusal therefore, prerequisite for mandamus is the acknowledgment of the person seeking mandamus is must, about what he was required to do.
In the given case petitioner kamini kumar was charged with an act of interdisciplinary by disobeying the orders of D.C.E and also for being disloyal to state government of West Bengal and for not making perfunctionay search and not collecting other information and received a suspension from the department.
Petitioner filed an appeal but the same was dismissed by the commissioner of police as he felt himself competitive enough to deal with it.
The main point raised by the petitioner are two:-
He was and always will be a member of west bengal police and not calcutta police.
Deputy commissioner of police was a lower authority in rank than authority of petitioner and there was a violation of article 311(1)
Writ of mandamus is not a writ of right and a person invoking the special jurisdiction of the court, for the extraordinary remedy by way of a writ was required to be diligent. Therefore, lastly it was held that the writ of mandamus is a discretionary writ. And the charges against the petitioner was such that even if he shows any technical flaw then also one would refuse to interfere.
Petitioner in the above mentioned case is seeking for writ of mandamus claiming that let him be the poojari of Sri Chelliamman cum Ayyanar temple, situated in Koonancherry Village, LPulla Boothangudi (PO), Papanasam Taluk, Thanjavur District. As his ancestors are serving as poojari in that temple since last 300 years.
Madras High Court held that writ of mandamus can’t be issued in this case as the temple is under the authority of Tamil Nadu Hindu Religious and Charitable Endowment and there is no demand made by the petitioner to the appropriate authority. Therefore, petitioner is ordered to move an appropriate application before an appropriate authority.
The court to which application is made for issue of writ of mandamus must not consider itself as a court of appeal for deciding the matters of administrative authority. The court should not examine the correctness or any other considerable point of the case on merits.
Court can’t even question the discretion of the administrative authorities whereas, when such discretion is illegal or given in case of excess jurisdiction or with malafide intent or the authority making such decisions are influenced by external contents or materials, then the court may do so.
In this case emphasis has been laid down on Article 19(1)(g) on the right to practice any profession, or to carry on any occupation, trade or business, subject, of course, as laid down in Article 19(6), to any reasonable restrictions in the interests of the general public as may be placed on it. Here the district court has refused the grant of licence to the applicant on the ground other than licensing authority can legitimately take into consideration.
Therefore, a misuse of the power by licencing authority by not renewing the licence on illegal grounds and misusing their discretionary power can frustrate the very purpose of the welfare State established by the Constitution of this Country.
Though on the discretion of administrative authorities court can’t raise any question but where it is seen that such discretion is illegal then a writ of mandamus can be issued against the inferior authority.
Hence, it was held by the Allahabad High Court that order of the District Magistrate, Kanpur of refusing to renew the petitioner’s licence will be quashed, and a writ in the nature of mandamus will be issued to the District Magistrate, Kanpur, directing him to consider the application of the petitioner for the renewal of his licence on its merits.
Bombay High Court has given its observation on the main and principal object of a writ of mandamus and held that writ of mandamus is issued to compel Government or its officers to carry out their statutory obligation and before issuing this writ court has to check that, Government or its officers do not overstep the limits and the bounds that the statute has prescribed for the exercise of their power.
Wherever there are certain conditions attached by the legislature with the power, without which such powers can’t be exercised and the officer possessed with the power even without satisfying the condition there also court can intervene and prevent officer from acting contrary to law.
Ultra vires act of Administrative Authorities
Mainly the writ of mandamus is issued whenever an administrative authorities acted ultra vires and also for preventing the government or any law making body from enforcing any unconstitutional act or notification. That is to say that whenever any administrative authority perform any work beyond their power or any government /legislative authority enforcing any law or notification which is unconstitutional then the writ of mandamus may be issued to stop the authorities from doing so.
Facts- Respondent no.1 is an education society of bombay running as a recognised Anglo- Indian School named Barnes High School at Deolali. This education society receives aid from State of Bombay. The state of Bombay issued an order dated 6th jan 1954. Mainly the operative part of the order states that no primary or secondary school shall from the date of issue of this order take admission to the class where enlgish is used as a language of delivering instruction to any pupil other than pupil belonging to a section of citizens whose language is english only like Anglo-Indians and citizens of non-Asiatic descent.
So, one citizen of indian of chritian community let say A claiming that English is the mother tongue of his daughter and on the other side there was another Indian citizen lets say Z claiming that gujrati is the mother tongue of his son, both of them were denied admission on the grounds of aforesaid order of their respective wards.
Therefore, two faculty from the society filed a writ petition under Article 226 before the High Court of Bombay for the issue of writ of mandamus praying that state of Bombay and its officers must be restrained from enforcing the aforesaid order and alloying the society to take admission of non anglo Indian citizens or citizens from asiatic descent and educate them all through the medium of english and the similar application was made by A&Z for allowing the admission of their wards. Both the applications were heard together and accepted by the High Court and ordered in favour of the petitioner as prayed.
State of Bombay moved to Supreme Court on appeal.
There were two important questions raised on the aforesaid order-
Rights of the students of non anglo Indian or asiatic descent community to get admission in Respondent society.
Right of the education society to admit non-Anglo- Indian students and students of Asiatic descent.
Held- Supreme Court held that –
Impugned order issued by the state government of Bombay is void, as it violates the Fundamental right of non anglo-Indian students and students of non-Asiatic descent guaranteed to all the citizens under Article 29(2) of the Indian Constitution,1950. Article states the right of every citizen to get admission in educational institutions aided or maintained by the state.
As the provisions of the said article is applicable to all the citizens whether they belong to a majority or minority community and protection given under said article extent against state or anybody who violate the right conferred.
Clause 2 of Article 337 of Indian Constitution impose obligations on the Anglo-Indian schools to make 40% reservation in annual admission for non Anglo-Indian students. Hence, there is an obligation imposed on the Barnes High School to take admission of at least 40% non Anglo- Indian students and with the impugned order this can’t be possible and also for receiving grants from the government 40% admission of non Anglo- indian is condition precedent. Therefore, the impugned order is unconstitutional as violative of Article 337 and Article 29. The said impugned order is preventing the Anglo-Indian schools from performing their constitutional duties and exposes them to the risk of for-feiting their constitutional right to the special grant.
From this decision of the High Court and Supreme Court it was made clear that writ of mandamus was issued against State of bombay and its authority for preventing them from issuing an unconstitutional order which is violative of Article 29 and Article 337 of Indian Constitution which imposes right to education to all the students in government aided or maintained institution and imposes a legal obligation on the Anglo-Indian educational institution to take admission of non Anglo-Indian students as requirement for seeking grant respectively.
Facts– in 1954 government of Bihar notify an industrial dispute between the management of Bata shoes co. Patna and their 31 workmen under the powers conferred in said Government by section 7 read with section 10 of Industrial Disputes Act, 1947. Subject-matter of dispute was regarding the dismissal of the workmen in question was justified or not and if such dismissal was not justified then whether they will be entitled to some reinstatement or any other relief?an industrial tribunal was constituted with a single member.
Then in january 1955, also another similar case was referred by the government of Same Bata shoes co. Ltd. and its 29 other workers to the same tribunal which was previously constituted.
While the proceedings of these two references were pending before the tribunal, the government of Bihar issued third notification on september,1955. By this third notification government proposed to supplant the two earlier notifications, by which it combined the two disputes together, ad bata mazdoor union to the dispute and refer it for adjudication before the tribunal. Question involved in the referred dispute was regarding justification of dismissal of 60 workmen, and for what relief they are entitled to? No receipt of third notification tribunal cancelled the hearing of prior two references and direct that files for said references should be closed.
After that Bata co. and its workmen filed two separate application before the High Court under Article 226 and 227 for quashing the third notification claiming it be illegal and “ultra vires”. Patna High Court on 4 April 1956 held that government has no power to supplant the earlier notifications in lieu of which quashed the third notification and issued a writ of certiorari also issued a writ in the nature of mandamus directing the industrial tribunal to proceed in the first two references made to it and provide a conclusion in according to law.
Two appeals were filled by State of Bihar before the Supreme Court urging that the order of the High Court was erroneous.
Supreme Court confirm the findings of the High Court of Patan, that cancellation of first two notification by the government is illegal and ultra vires. It was held that in making a reference under section 10(1) by appropriate government is an administrative act and the preliminary step to their function under this section is to form an opinion in regard to the actual existence of industrial dispute. Therefore court find more appropriate to issue a writ of mandamus against the ultra vires act of the appellant in respect of third impugned notification. And appeals were dismissed by the court.
Special Judicial Remedy
Writ of mandamus is a special judicial remedy and issuance of this writ requires attention to the claim asserted and no delay. Thought the law of limitation does not apply on writ proceeding but doctrine of delay and laches applies to such proceedings.
Continuing Mandamus
Primary object of writ of mandamus is to issue a command for directing the authority to do some work or abstain from doing some act. Whereas, in cases where it is shown to the court that mere issuance of order will not fulfill the purpose unless there is any monitoring of court, then in such cases instead of issuing any final order or direction and disposing the case, court may issue an interim direction from time-to-time and the authorities to whom such directions are issued, have to follow them. This whole process of issuing interim order/direction is known as “continuing Mandamus”.
Mostly issued in environmental cases, particularly in public interest litigation.
Allegations raised in this writ petition filed in public interest under Article 32 were that
Governmentagencies likethe CBI and the revenue authorities had failed to perform their legal duties similarly as they had failed to investigate matters arising out of the seizure of the “Jan diaries”;
That the prosecution of terrorists had led to the discovery that there is financial support to them through politician via illegal means using tainted fundsobtained through `hawala’ transactions
This investigation had also disclosed a connection between politicians, bureaucrats and criminals, the politicians who after getting into the power forget all the promises they made to the public for seeking vote after receiving the seat and money they wrongfully use their power to receive money from unlawful sources and given the same money for unlawful consideration
The CBI and other Government agencies had failed to investigate the matter i.e. they failed to perform their duties well, take it to its logical conclusion and prosecute all persons who were found to have committed and offence as just because of their leniency such alleged offences are being committed by Higher officers
That this leniency by CBI and other authorities, was done with a view to protect the persons involved, who were very influential and powerful so that these authorities are protected from bad effects of their unlawful use of power.
That the matter discloses the connectivity between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation corruption and crime go hand in hand
That probity in public life, the rule of law, in the interest of justice and for the preservation of democracy required that the Government agencies must be compelled to duly perform their legal obligations and to proceed in accordance with law against.
Prayed reliefs were that
That alleged offences must be investigated in accordance with law.
An appropriate officer must be appointed to make required inquiry.
The procedure adopted by the court to investigate the matter properly and deliver justice was of “Continuing Mandamus” and issued directions to the CBI regarding investigation and order not to report the progress of the investigation to officers holding high post in politics, such a direction is given just to maintain fairness in investigation and also to maintain credibility. During the proceedings of the case were pending before the court, continues investigation is going on and Attorney General is directed to report the progress of the investigation from time to time in order to have faith in agencies making investigation and ensuring that those agencies were not continuing to drag their feet. With the issuing of the writ of “continuing mandamus” agencies perform their statutory duties.
In this case only path of writ of continuing mandamus was a new tool found because of the requirements of the case.
Court held that there are ample number powers covered under Article 32 read with Article 142. Issuing a formal order does not satisfy the purpose of the Article. Every court must issue such direction under Article 32 which satisfy its purpose. Therefore, court issued guidelines and directions. Laid guidelines require rigid compliance, till legislature step into the matter and substitute those guidelines with proper laws.
To achieve the object of the writ a fair, honest and expeditious investigation was demanded, Investigation into every person’s accusation or person reasonably be suspected of crime. Duty of the court was to make sure that the CBI and other government agencies perform their duties in accordance with law. Court did not require to go into the merits of the case in continuing mandamus proceedings.
In the view of the proceedings of this case there is an urgent need for state government to set up rigid and credible mechanism for selection of police chief and other officers because the problem raised in this case is increasing and getting more serious day by day.
Most Popular Writ
This writ is the most popular writ amongst all in India. Mandamus is a supplementary means of substantial justice, when there is no specific legal remedy available before any person for protection of their rights given by law and the court is satisfied that the administrative authorities have not acted according to the law then the writ may be issued.
Good Faith
And lastly it can be said that the application for writ of mandamus must have been made in good faith and not with ambiguous motive and ulterior purposes. Purpose of application should be grant of justice and not to harass the respondent. And it may not be refused only on the ground of availability of alternative remedy.
Appellant in this case represent a company named- C. Parakh and company India Ltd. which is a registered company under the provisions of the Indian Companies Act, 1913. Its head office is situated in bombat, and several other branches in the state of M.P. business of appellant company was that of cotton. Appellant co. sells cotton bales to several mills and individuals in many places of M.P. and Bombay, under the system regulated by textile commissioner at Bombay. These cotton bales are sent by rail under insurance.
Under the Central Provinces and Berar Sales Tax Act, 1947 (Act I XXI of 1947), cotton was declared liable to sales tax on the 11th of April, 1949, and since that date the appellant commenced paying the tax in respect of the purchases made by it til december 1950. Further he declined to pay tax, because he realised that payment of tax could not be made liable in state of Madhya Pradesh because the transaction done in State of M.P. are not the transaction within state and for transactions done outside the state, State Government does not possess the power to make laws in respect of such transactions.
In this writ petition it was alleged by the appellant before the hon’ble court was that an unjust and illegal imposition acts an an illegal restriction on trade and violates Fundamental Rights. It was alleged that section 2(g)(presently this provision is repealed) of the Central Provinces and Berar Sales Tax Act, 1947 was illegal and ultra vires. This contention was explained with certain valid points in the arguments stating that under Constitutional law sales tax could only be collected in the state where the goods whose sales were being done, were delivered for consumption.
High Court in spite of all these findings refused to issue the writ of mandamus under Article 226 on the ground explaining that writ of mandamus can only be issued to compel an authority to do or abstain from doing some act, in cases where the action of authority is dependent upon some action of petitioner as in this case. The petitioner had not even made his return and no demand for the tax could be made from him.
Then, in the petitioner before the hon’ble court contention raised were that set out the provision 2(g) from the act was declared ultra vires.
It was held by the court that his infringement of fundamental right under Article 19(1)(g) was entitled to relief under Article 226 of the Constitution. It was also held by the court with reference to a judgment of State of Bombay v The United Motors (India) Ltd. that the principle that court will not issue writ when adequate alternative remedy was available could not apply in this case because when any person comes before the court with an allegation to infringement of fundamental right, the remedy provided by the Act is of an onerous and burdensome character and therefore, could not be denied in such cases.
Prohibition
Writ of prohibition is as old as common law. Initially it was used to limit the jurisdiction of ecclesiastial by restraining them from acting without or in excess of their jurisdiction and later it is used by common law courts.
Before the enactment of the Constitution of India, there were three charters under which court use to exercise their power and after the enforcement of the constitution High Court and Supreme Court exercise the power to issue this writ.
It is an extraordinary writ of preventive nature. It prevents courts, tribunal, quasi judicial bodies and other officers from exercising their power beyond their jurisdiction or exercising those powers which are not vested on them.
Following features must be noted for this writ:-
Purpose
Writ of prohibition is issued to the court or any tribunal to bar them from doing something what they are about to do. This bar is applied whenever a subordinate court or tribunal hears the matter beyond their jurisdiction or on matters on which they have no jurisdiction.
In the given case an observation is given by the Supreme Court that writ of prohibition is an order directing inferior courts and tribunals to stop from proceeding therein on the ground that the proceeding are taking place with excess jurisdiction or lack of jurisdiction.
In this case the Supreme Court has explained the jurisdiction of the court for grant of a writ of prohibition. It says that power to issue writ of prohibition is primarily supervisory and the main object for behind the writ of prohibition is to restrain inferior courts or tribunals from exceeding their jurisdictional limits. It is well settled law derived from decided cases that writ of prohibition lies not only in case of excess of jurisdiction or for abuse of judicial power but writ lies also in cases of where the actions are taken in contravention to the rules of Natural Justice.
But the writ does not lie to correct the course, practice or procedure of inferior courts or tribunal, also to correct the wrong decision of inferior court on the merits because issue can be issued only when the subject matter of the plea is a question of law.
Writ of prohibition can’t be issued when there is an error of law unless such error makes it go outside its jurisdiction. Therefore it is clear from this case that if there is want of jurisdiction then the matter is coram non judice and a writ of prohibition is lie otherwise on any other ground other than on point of jurisdiction writ of prohibition can’t be issued.
Grounds for issuing writ of prohibition
Absence or excess of jurisdiction– where there is an absence of jurisdiction or total lack of lack of jurisdiction.
Violation of natural justice– In case where the principle of natural justice have not been observed or if observed there is a violation of those principles. For example, if the opposite party have not been served with the notice and not been heard. Then the writ of prohibition can be issued.
Unconstitutionality of Statute– whenever any tribunal or court proceed to act under law which is ultra vires or unconstitutional, a writ of prohibition can be issued against the proceedings.
Infringement of Fundamental Right– where the impugned action is infringing any fundamental right of the petitioner then the writ of prohibition can be issued.
Error of law Apparent on the face of Record
Nature
Prohibition is writ of right not a writ of course and is of preventive nature rather than corrective. The main object of this writ is to prevent unlawful assumption of jurisdiction. Therefore, writ does not lie in case of irregularity in exercise of jurisdiction or jurisdiction has been exercised improperly or erroneously. Availability of an alternate remedy does not create an absolute bar on issuance of a writ of prohibition.
This writ can be issued during the proceedings are pending before a judicial and quasi-judicial body and if the proceedings have been terminated and authority became functus officio then in such cases writ of prohibition can’t be issued. In such cases writ of certiorari may be issued.
In this case appellant and respondent 1 to 5 were nominated for Lok Sabha election from some constituency in Madhya Pradesh. After that respondent 4 &5 withdrawn from election. Election result declared stating that respondent 1 secured highest no. of seats followed by appellant.
Issued against
Writ of prohibition is much in common with certiorari in its scope as well as in the rules of its governance. Therefore both these writs lies against a judicial and quasi- judicial body and not against any executive authorities. Both these writs are concerned mainly with Public Law.
Distinction between Certiorari and Prohibition
These two writs are that both these are issued at different stages of proceedings. One is issued to the inferior court when such court acted without any jurisdiction then the person against the proceedings are taking place can move to the superior court for a writ of prohibition, whereas on the other hand for a writ of certiorari court have to hear the matter and gives decision on that and the aggrieved party can move to the superior court of issuance of writ.further the order may be passed for quashing the decision on the ground of want of jurisdiction.
In cases where inferior court might have passed the order but the same does not completely dispose of the case so it might be necessary to apply both the writs- certiorari for quashing the decided issues and prohibition for barring further proceedings for continuing the case and deciding left issues. Like in cases where interim orders had been passed.
In the above case supreme court held that in cases where there is a requirement for prayer of certiorari as well as prohibition and the in the application not prayer of certiorari has been made then it would be open to the court to issue the writ and stop further proceedings which are affecting the decision.
But in case the proceedings have ended then seeking for prohibition will be too late and writ of certiorari must be a proper remedy for quashing. Clearing on the point it was also held that writ of prohibition will lie when the proceeding are pending to a large extent and writ of certiorari will be issued when then case has been terminated in a final decision.
Where the proceedings of inferior courts are partly within the jurisdiction and partly without it, then the writ of prohibition will lie to the extent of excess of jurisdiction.
It was held that the Central Government may, from time to time, by notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or byland goods of any specified description into or out of India across any customs frontier as defined by the Central Government.” and the High Court may issue writ of prohibition for prohibiting the customs authorities from enforcing the invalin conditions without the consult of the Central Government.
In case of Bengal Immunity Co. v State of Bihar it was observed by the Supreme Court that the existence of an alternative remedy that is adequate and equally effective remedy may be a matter that can be taken into consideration by the High Court in granting the writ. It is a writ of right not a discretionary writ and nature of writ of prohibition is much of corrective one rather than preventive.
Presence of an alternate remedy does not impose an absolute bar on issuing writ of prohibition.But presence of an alternate remedy will be more relevant in context of certiorari.
Certiorari
Writ of certiorari has been defined as one of the most effective and efficient remedies taken from common law. Certiorari means “to certify”. It is an order issued by the High Court to an inferior court or any authority exercising judicial or quasi-judicial functions.
The main object of this writ is to keep the inferior courts, judicial and quasi-judicial authorities within their limits of jurisdiction and if the act in access of their jurisdiction their decision will be quashed by the High Court and Supreme Court by issuing a writ of certiorari.
Lord Atkin stated that writ of certiorari may be issued “wherever any body of person having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority.” This statement has been approved by the Supreme Court in many cases like in Province of Bombay v Khushaldas and held the four components of this writ that are-
Body of persons
Such body is having some legal authority
Legal duty for determining the question affecting the rights of the subjects
Duty to act judicially
Nature
It is a great corrective writ by which superior court may exercise supervisory power on inferior courts and judicial or quasi-judicial tribunals. By exercising such power their records and proceedings are brought under review and the sole object become to prevent abuse of law.
Earlier writ of certiorari was used as a writ of error. It was invoked only in criminal matters and later on was also used in civil cases.
Writ of certiorari may not be issued against
an individual
company
Private authority
An association or tribunals having no judicial or quasi-judicial powers.
Also can’t be issued for making declaration that an act or statute is ultra virus or unconstitutional.
Grounds
A writ of certiorari may be issued on the following grounds:-
Want or Excess of Jurisdiction
When an inferior court or tribunal act in excess of jurisdiction or act without jurisdiction or fails to act then, Writ of Certiorari come into the picture for correcting the errors of jurisdiction.
Wherever there is a defect in jurisdiction or power writ of certiorari must be issued. In case of Rafiq Khan v State of U.P.
Facts of the case- section 85 of Uttar Pradesh Panchayat Raj Act, 1947 a sub-divisional Magistrate does not have power to modify the order or sentence of Panchayati Adalat. Whereas, he can either quash the order or cancel the jurisdiction panchayati Adalat. In this case sub- Division Magistrate has modified the order by maintaining the conviction of the accused in one of the offences and quashed his conviction in respect of the other offences, in this manner the order passed by the Panchayati Adalat has been modified by sub- Division Magistrate.
Held- Allahabad High Court held that order of sub- Divisional Magistrate is contrary with the provision of section 85 and quased the same order by issuing a writ of certiorari.
Therefore, by reviewing this case it is clear that want of jurisdiction may arise from the nature of the subject matter of the proceeding and court can’t decide some of its parts and let the other be untouched. Enquiry of the whole case should be conducted together.
Similarly in cases where the inferior courts have wrongfully denied to exercise jurisdiction vested in it, writ of certiorari may be issued to quash the decision of inferior court and decide the case falling within their jurisdiction.
In cases of conditional powers i.e there are certain powers vested in the court that can be exercised only when certain jurisdictional facts exist otherwise if court or tribunal exercised those powers without availability of those jurisdictional facts, even the assumption of jurisdiction by the court that such facts exists would not be supported and can be removed by a writ of certiorari.
In this case the question on which the jurisdiction industrial tribunal decided was whether the dispute is an industrial dispute or an non- industrial one? The Supreme Court held that if the industrial tribunal assumes to have jurisdiction over a non- industrial dispute then it can be challenged before the High Court and the High Court has the power to issue a writ of certiorari for the same question.power to issued an appropriate writ of High Court is not subject to any question.
Violation of Procedure or Disregard of principle of Natural Justice
To set aside any decision given in violation of the principle of natural justice, writ of certiorari will be issued.
There are two principles of natural justice recognised by law:-
Audi alteram partem( hear the other side)– means that both sides must be given equal opportunity of hearing i.e both the side should be given full and fair chance to present their side of the case. Every judicial or quasi- judicial body must give equal and reasonable opportunity to the parties to make their representation. In other words it can be said that the party whose civil rights are affected in any proceeding before the court must have reasonable notice of the case he has to meet with and an opportunity of stating his case. This rule commands the authority deciding the case to give both the parties to the case an equal opportunity for presenting their case and to correct and contradict any relevant statement.
The collector of customs in this case passed an order of confiscation of goods without any notice and enquiry, The Madras High Court held that order passed by the collector was without hearing and knowing all the key points of the case and held that the same is contrary to the principles of natural justice and hence, Under Article 226 High court issue a writ of certiorari to quash the order of customs collector.
Supreme Court held that fundamental principle of natural justice states that both the parties to the case be given equal opportunity to make their representation but where it is expressly provided in the act a right to a personal hearing then the authority deciding the case must hear the case personally.
The procedure followed in the instant case whereby the Home Secretary, in charge of Transport, himself aparty to thedispute, heard the objections and the Chief Minister decided them, violated those principles, and the order of the State Government approving the scheme, therefore,must be quashed.
Further a sub- rule to this principle states that every decision of tribunal must be accompanied with a reason for giving such decision whereas this rule does not apply in English Common- Law. and in India also this rule is not a universally established rule though in certain cases in rigidly followed. Where a rule or any provision is laid down in the for giving reasons then the judicial or quasi-judicial authority must obviously provide the same and give reasoned decisions in all the cases.
Usually reasoned decisions or duty to give reasons arises where the statute provides an appeal, review or revision against the order passed. But those reasons given by the tribunal or inferior court, would become easier for the court to make further decision and the reason will make give a clear picture of the authority given the decision.
Bias and interest– the second principle of Natural Justice states that no one should be a judge in its own case. Elaborating the statement means that the judges deciding the case does not have any interest in the case in which he providing his decision because it is a human tendency that a person can be wrong in his own eyes therefore biasness will emanate and aim for fair justice to all could not be reached.
So, there are two principles for governing this doctrine of bias and interest
No one shall be judge in its own case.
Just should be manifestly and undoubtedly seem to be done.
Any judicial entity as “subject to bias” when he is in favour or against any party to the dispute or where it can be assumed that bias exist then he should not take part in the decision. Also where there exists any pecuniary interest(or any other interest) of the person sitting to provide justice to all will become reason for his disqualification in giving decision in that case.
Reason given for this principle in the case of A.P. SRTC v Satyanarayana Transport by The Supreme Court is that while delivering judgement and providing justice to the parties, the person delivering the judgment must give his adjudication with a free and independent mind without any indication of bias towards either side of the case. Neither there should be any pressure on his that will divert him from delivering justice and mislead him while fulfilling the purpose of his seat.
In this case appellant was an advocate, who was alleged of misconduct for which bar council tribunal was appointed to make an enquiry, tribunal consist of 3 members, one of them was chairman who has given his Vakalatnama on behalf of the opposite party in proceeding under section 145 of CrPC and argued the case on the same date on behalf the the opposite party only and appellant act as a pleader to the proceedings.
The appellant raised the point that the tribunal was not properly constituted as the chairman of the tribunal conducting the inquiry of his case is arguing the matter on behalf of the opposite party and will clearly be assumed and believed that there must be some bias. The tribunal given its judgment on which appellant was convicted and therefore he filed an appeal before the supreme court for issuing a writ of certiorari to quash the judgment of tribunal.
Therefore after going through the facts of the case supreme court issue a writ of certiorari for quashing the decision of tribunal on the ground of violation of the principle of Natural Justice.
Error of law apparent on the face of the record
It means that there is either a clear ignorance of law or the provisions of law are wrongly interpreted. An error of fact though may be grave but can’t be corrected by writ of certiorari. Power of high court to issue a writ of certiorari is a supervisory jurisdiction and while exercising such jurisdiction court is not entitled to act as an appellate court.
Error of law can’t be established if it was not self-evident and the same is demanding an argument or examination for establishing. In the other words error of law must be seen with open eyes and for establishing such an error there should be no need of any examination or further enquiry or argument in the case.
Error of law usually occur when there are two possible interpretations of the provision and the subordinate court has chosen one among them, the error occurred may be cross or patent. Whereas, this test afford satisfaction in majority of cases but not infallible. An error that might be considered by one judge as self-evident might not be considered by another due to which a clear and exhaustive definition of error can’t be put forth, each case has different facts and upon those facts only its determination must be done.
Facts- Respondent and appellant are business rivals. The transport appellate tribunal, mainly focused its decision on believe that the appellant had a workshop at one terminus of the route in question, and the respondent only has its business and workshop at intermediate station of the route, and issued permit to the appellant. Respondent moved an application to the High Court for a writ of certiorari on the ground that tribunal while making the decision failed to consider material evidence adduced by him as believing that he does not workshop at the terminus and on the same ground High Court quashed the decision of tribunal.
Whereas, on application to the Supreme Court it is found that the question raised in the case before the high court was a pure question of facts and The High Court has no jurisdiction to interfere in the matters decided on facts by the tribunal. If there is a failure in considering the material evidence by the tribunal then that will become eroor on the face of record.
It was held by Justice Gajenderagadkar that by a writ of certiorari error on the face of record can be correct but not an error of fact.
Cases where error of fact might be impugned on the ground of error of law:-
Mistakenly refuse to admit material evidence, those can be admitted.
Admitted evidences that are not admissible and the same influenced the findings of the case.
There was a finding of facts without any evidence.
Judicial order passed by The High Court in respect of the proceedings pending before it can’t be corrected by a writ of certiorari. The supreme court also is not competent to issue a writ of certiorari for protection a person’s fundamental right. In other words a plea stating that the order passed by the court is affecting his or any person’s fundamental rights can’t be entertained by the supreme court in a petition under Article 32.
A writ of certiorari can also be issued for declaring any act or ordinance unconstitutional. And therefore those acts or ordinance will be quashed and declared invalid.
Supreme Court held that Certiorari can only be issued by the High Court for quashing the decisions of subordinate court. But by this writ High Court can’t quash decision of other high court or of its own bench.
This case in respect of the judgment given in Surya Dev Rai v Ram Chander Rai. “order given in that case was that an order of a civil court can be amended in a writ jurisdiction under Article 226”. And in the present case court has expressed his disagreement in regard to this view.
insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned. Under Article 227 of the Constitution, the High Court can not issue a writ of certiorari. Article 227 of the Constitution imposes power in the High Courts of superintendence which is to be very rarely exercised, only to keep tribunals and courts within the bounds of their authority.
Under this Article only, orders of both civil and criminal courts can be examined only in exceptional cases when their is continues miscarriage of justice has been occasioned. Such power, can not be exercised to correct a mistake of fact and of law.
In this case the distinction between the exercise of powers of Article 226 and 227 is made.
The alleged statement of surya case in the present case is that the judicial order passed by civil courts can be reversed or amended by the writ under Article 226 via exercising the power under a writ of certiorari. Therefore with this view appellant moved before the hon’ble court with a special leave petition contending that writ petition under Article 226 against a civil court order is not maintainable.
So with all the contentions of surya case and the arguments of the petitioner by referring other case like rupa ashok case( landmark case of curative petition)it was observed by the court that
A well settled principle states that technicalities of prerogative writ in english law has no role to play in our constitutional law.
Writ of certiorari can be issued by the superior court to an inferior court to certify its record for examination.
A High Court can’t issue a writ to another High Court.neither from one bench of the High Court to another bench of the same court.
As high courts are constituted as inferior courts in our constitution framework.
And with all the arguments and evidences it was held by the hon’ble court that-
Judicial orders of civil court can’t be amended or reversed by a writ issued under Article 226 of the constitution.
Also it was made clear that jurisdiction under Article 226 is different from Jurisdiction under Article 227
And the decision given in the present case by the court is contrary to the decision of Surya Dev Rai case hence the views made in that case was overruled by this case.
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Quo Warranto
Writ of quo warranto have following features:-
Object– prevent the person from wrongfully or forcefully holding any office or from continuing the office. By writ of quo warranto court has the authority to ask the holder of the office that by what authority he is holding the office.
Earlier in England this writ was issued by the king or on his behalf against any person who claim or take any office, or privileges of The Crown. And later this writ was misused by the authorities that led to substitution in proceedings by way of information.
Writ can be issued only if the office in question is a public office and any person claiming a writ must establish this fact first. Also it needs to be proved that the office in question is usurped without legal authority. Therefore that lead to an enquiry that the person claimed to be usurped the office is appointed legally or not.
Facts- respondent claim that appointment of appellant no. 2 is illegal as he does not fulfill the first condition mentioned in the advertised inviting application. In respect of which High Court issued the writ of quo warranto and held the appoint of respondent no. 2 (Anniah Gowda) illegal. Appellant raise an appeal before the Supreme Court. The decision of the High Court was held incorrect by the court, as High Court didn’t take into consideration the Degree of Master of Arts of the Durham University obtained by Anniah Gowda.
It was held that the High Court is correct in finding that Anniah did not possess a high second class degree of an Indian University but he did possess the alternative qualification of Master of Arts of a foreign University.
The writ of quo warranto acts as a weapon for judiciary to control the execution from making appointments to public office against law. It also protects a citizen from being deprived of public office to which he has a right.
Public Office- any office in which there is some interest of public is known as public offices.
In this case the office of speaker of a legislative assembly is held a public office and writ of quo warranto can be issued for inquiring the appointment made.
It can also lie to question the appointment of a High Court judge.
In the given case writ petition was filed under article 226 before the Punjab and Haryana High Court by municipality requesting an order in the nature of quo warranto, enquiring the elected member of municipality, and on the inquiry it was found that 10 elected members of Municipality Board were appointed wrongfully and their seats were declared vacant.
Delay
Question of delay does not arises in presenting a petition for this writ in which person to function in certain capacity is challenged. Cause of action for a writ of quo warranto is continuing as if the appointment of an officer is made illegally then every day of his office will lead to a new cause of action therefore due to which petitions can’t be rejected on the ground of delay.
Nature- Issuing a writ of quo warranto is discretionary in nature and it is not necessary in all cases the writ can be issued by the court. In case where the person is holding the office from a long time and there was no complain against him in the past and the writ of quo warranto is causing annoyance then High Court or Supreme Court in its discretion may refuse to issue the writ of quo warranto.
Nature of office for which writ is claimed- Office in respect of which writ of quo warranto is claimed must be of substantive character and should not be of Private nature.
Writ petition was moved to the High Court by the petitioner against the members of the working committee of Bihar Raj Aryan Pratinidhi i.e is a private religion association. Court dismissed the petition on the ground that a writ of quo warranto can’t be issued against a private association.
Who can apply
An application for writ of quo warranto can be made by a private person challenging the legality of appointment in public office even though the person may not have any personal interest in that or may not be aggrieved by such appointment directly.
Application for writ of quo warranto is not regarding any non- performance of duty by the authority appoint neither it seek to enforce any right. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office. In other words the question dealt by this writ is whether the appointment made for the questioned public office is legal or not.
As any citizens apply for a writ of quo warranto, may not be having any personal interest in the matter, there he possesses the position of a relater.
Conditions- Before issuing the writ of quo warranto certain conditions needs to be fulfilled:-
Office in question must be of public nature
It must be of a substantive character
Office must be of Statutory Nature
Actual occupancy- the person holding the public office must have been in the actual occupancy of the office and assert his right to claim it.
Alternative Remedy
If there is an availability of any alternative and effective remedy to the applicant, the court may not issue writ of quo warranto and assign her to seek for that remedy. Therefore it can be concluded that a writ of quo warranto can be refused on availability of an alternative remedy by making an election petition available to the petitioner/applicant. But in case the objection raised by the petitioner falls outside the statutory remedy then alternate remedy can’t become a ground for rejection for a writ of quo warranto.
Prerogative Writs
Prerogative means an extra privilege. In English Law, prerogative means a discretionary power that exceeds and is unaffected by any other power; the special prominence that the monarch has over and above all others, as a consequence of his or her sovereignty.these writs are especially associated with the king.
All the five writs we have discussed above are known as prerogative writs. Earlier these writs are known as prerogative writs whereas, nowadays they are known as extraordinary remedies.usually these writs are issued on the strength of inner power of the court and to grant justice to all. These writs have been issued as a remedy in case of any violation of fundamental rights of the citizens.
When the prerogative writs originated it was said that writs are peculiar to the king himself and this theory is valid in certain obsolete and obsolescent writs-
Writde non procedendo rege inconsulto, as “not to proceed to judgement if the King has not been consulted.” The purpose of this writ is to quashes any order which was passed without the consultation of king
Scire faciasa latin maxim meaning make known this writ was issued for the purpose of cancelling the royal grants, charter and franchises. Now this writ has almost become obsolete and was abolished by the crown proceedings act, 1947.
Ne exeat regnoliteral meaning of this latin maxim is that “let him not leave the kingdom”. This writ is issued by the king to restrain a person from leaving the kingdom. Lord Eldon in case of Tomlinson v Harrison (1802) 8 Ves. 32 at 33 called it a ‘high prerogative writ’ which was applied on the cases of private rights always with great caution and jealousy. Nowadays this writ is issued only under the provisions of section 6 of the debtors act, 1869.
In history there were only four prerogative writs of habeas corpus was not be treated separately. So, before going into the details of each writ there were certain characteristics of the writs as follows:-
Those writs were not writ of course
Court has discretion in giving award of the writs.
These writs were awarded prominently out of the court of the king’s bench.
In common law these prerogative writs would go to exempt jurisdictions, to which the king’s writ normally does not lie.
Certiorari was a royal demand for information by the king demand necessary information that is to be provided to him. As the king wishes to be more informed of allegations or extortion made by his subjects. It is one of the king’s own writs which was used by him for general governmental purposes.
From the late 14th century till the end of the 17th century following purposes were being served by the writ of certiorari-
Supervised the proceedings of inferior courts of specialised jurisdiction.
Writ is issued for obtaining the information for any administrative purpose
To bring before the court of common-law, judicial records and any other formal documents. Judgments of inferior courts were obtained through this writ
Writ was also issued for removing the indictments of particular interest.
After 1660’s writ of certiorari acquired a new importance by creating new administrative duties on justices and ad hoc authorities.
In the Leading case of Groenevelt v burwell(1700) 1 Ld. Raym. 454 at 459 it was held that the writ of certiorari would lie to review disciplinary decisions by censors of college and C.J. Holt said that all the proceedings can be returned by writ of certiorari and same to be examined before the supreme court or higher court.
Prohibition is one of the oldest writs whose primary function was to limit the jurisdiction of inferior courts. Later under common law courts it was used as a weapon in their conflicts of court of chancery(court of equity) and admiralty(maritime courts). Disobedience of writ of prohibition was conceived as contempt of crown.
This was a modern case on prerogative writs and in that case it was said that grounds for grant of prohibition is not that the individual applying for the same has suffered the damage or not but whether the royal power infringe upon by reason of the prescribed order of the administration of justice having been disobeyed. That implies that a complete stranger could also have the writ.
Writ of Mandamus that appeared in earlier law books was not concerned about private grievances at all. Till 1578 there was no case found that was reported, and serving a purpose similar to the modern writ. History of mandamus begam with Bagg’s case (1615) 11 Co.Rep. 93b it was held in this case Bagg, a capital burges of plymouth, was unjustly removed from his office by the head of the town (Mayor) and commonalty, and they were ordered by the court to restore his remove until they showed the court a good reason for their conduct. Both of them failed to satisfy the court for their conduct and therefore, writ of mandamus was issued to restore Bagg.
In Montagu’s words, prerogative writs were the one which concerns about the king’s justice to be administered to his subjects and the king must have an account of all his subjects those were imprisoned. Habeas corpus was considered as the most beneficent remedy it value was enhanced during the 17th century as during that time struggle for the constitution was going on. Writ of habeas corpus provide a beneficial remedy.
In 1759 all four writs were collectively designated as prerogative writs for the first time on record.
Before manfield no one has tried to classify writs as a group but the relationship between the writs exists at least a century before.
Writ Jurisdiction
In India only the Supreme and High Courts have writ jurisdiction and judicial review of all the government activities by these courts are known as writ jurisdiction. Writ jurisdiction is exercised to control the vast discretionary power of administrative authorities as those powers become subjects in the absence of guidelines for exercising those powers. To ensure that “rule of law” exists in all the government action, there arises a need to control the discretionary powers of administrative authorities. Judicial review of administrative actions is important to ensure that all the actions taken by the administrative authorities are legal, rational, fair, just and as per the provisions of law.
Article 32 and 226 of Indian Constitution provides power to Supreme Court and High Court simultaneously of judicial review of administrative actions and also designed for the enforcement of fundamental rights, in the form of writs.
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High Court (Article 226)
Article 226 of Indian Constitution empowers The State High Courts to issue a direction, order or writ for enforcement of fundamental rights, or for reviewing administrative actions. This power can be used by the High Court not only for enforcement of fundamental right but also lie for non- fundamental rights. The power conferred to every High Court under Article 226 to issue writ shall not be in derogation to the power conferred under clause (2) of article 32 on the Supreme Court.
In this recent case of March 2019, Supreme Court has tried to define the scope of Article 226 of the Indian Constitution.
It was held that-
Administrative actions are subject to judicial review under Article 226 on the ground of illegality, rationality, want of power or irregularity in the procedure.
The decision of the administrative authorities may also be quashed on the of illegality or there is an error of law on the face of the decision by the High Court under Article 226.
Judicial review under Article 226 of Indian Constitution, 1950 not only directed against any order or decision but also directed against a decision making process.
A further appeal does not lie before the court exercising the power under article 226 neither does it passionately adjudicate disputed question of facts.
The remedy under Article 226 of Indian Constitution,1950 is available only when there is a violation of some statutory duty on the part of the statutory authority.
While exercising its power under Article 226 High Court can only either annul the order/decision or quash the same whereas, under Article 227 High Court apart from annulling the proceedings, can also substitute the impugned decision by the decision which the inferior court should have passed.
Exercise of Article 227 Of Indian Constitution,1950 is restricted to only those cases where there is a grave failure in fulfilling the duty and there was immoral abuse of fundamental principles of law.
In the case of purely contractual rights writs under Article 226 can’t be invoked.
While exercising its power under Article 226 High Court can’t proceed adjudication upon affidavit or on questions of facts.
Lastly its is said that power of Judicial Review Conferred upon High Court under Article 226 is a basic essential feature of Indian Constitution and legislature including Armed Forces Act,2007 also can’t overrides the jurisdiction of the High Court under this section.
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Supreme Court (Article 32)
Under Article 32 of Indian constitution, 1950 any person can move to the Supreme Court of India for enforcement of his Fundamental Rights conferred under part III of the Indian Constitution.
Article 32 empowers Supreme court to issue a direction, order or writ of any of its five types for enforcement of fundamental right.
Writ can also be issued on any application if such application include violation of social welfare laws. As it was held in Bandua mukti morcha case by the Supreme Court.
Though supreme court jurisdiction to issue a writ under Article 32 is less wider than that of High Court conferred under Article 226 because Supreme court can only issue writ for protection of fundamental rights of the person seeking protection whereas, High Court can also issue writ for protection of any legal right but for that High Court has Discretionary power.
Writ Jurisdiction of High Court
Public Law Remedy of Immense Scope
The power conferred under article 226 of the constitution empowers the High Courts to issue to any person or authority any order or writs in form of habeas corpus, certiorari, mandamus, prohibition and quo warranto for enforcement of rights conferred under part III of Indian Constitution and also for enforcement of any other legal right. These five writs in English Law are known as Prerogative Writs, as they are originated from the king’s prerogative power of superintendence over his subjects.This power can also be exercised against the legislature in appropriate cases.
In India before the commencement of the constitution, only three chartered were competent to issue the writs were High Court of Bombay, Calcutta and Madras and that too within some specified limits and the other high courts could not exercise this power at all. But now all the high court has the same power to grant the remedy via issuing prerogative writs.
Language used in article 226 and in article 32 is very broad and does even provides for any rigid procedure. The power not only extent to issuing of writs but also extends to issuing of direction, orders and writ also. The scope of prerogative writs is wider in India than England.
In this case, petitioner was an organisation addressed the issue by a letter stating that there are bonded labour practices being followed in the country before justice Bhagwati. Treating the letter as a writ petition and appointed a commission for making an enquiry into the allegations made. After the enquiry commission pointed out certain points in its report such as-
Dusty atmosphere, very difficult to breathe in it.
Forced labour, workmen were not allowed to leave work
No pure drinking water is provided to workmen therefore, they are forced to drink dirty water.
No proper shelters were provided to workers
Many of them were suffering from chronic disease
Whenever any labour got injured during work no compensation is paid to him
No medical facilities for workers and their families neither there were any schooling facilities for children of workers.
These were the certain points highlighted by the commission in its report of inquiry. Whereas, respondent took the defence that article 32 can’t be applied in this case as there was no violation of fundamental rights of referred petitioner neither the letter which was addressed to the court be treated as a writ petition. In the proceedings of article 32 court does not have power to appoint commission and many other contentions which were raised by the respondent.
Court rejected all the contentions of respondent and held that if any citizen of the country brings an application on behalf of the large number of people subjected to any cause the same complaint or application can be treated as a writ petition. Moreover, it was held that when the petition contain such crucial points then it can’t be rejected on the ground that it is not violative of fundamental right of workmen.
Interpretation of Article 21 given in Mullen’s case state that every individual of this country has the right to live with dignity and free from exploitation. And this article has its roots in Directive Principles of State Policies Article 39 clause (e) and (f) and article 41 and article 42. According to these articles, state is obligated to ensure that there is no violation of fundamental rights of any person, especially when it comes to weaker section of the society.
It was also held that jurisdiction under Article 226 exercised by High Courts is also a new constitutional jurisdiction and conferred in similarly wide manner as the jurisdiction under article 32 over Supreme Court is conferred.in facts jurisdiction of the High Court is much wider under article 226 as high court are required to exercise jurisdiction for enforcement of fundamental as well as legal rights. Also for the protection of any right created by statute conferred on poor and disadvantaged people of contrary that require protection vigorously as fundamental rights.
In case of Babubhai Jamnadas Patel v State of Gujarat it was held that the High Court cannot order police investigation merely on the basis of suspicion but in combination with article 227, High Court can order for an investigation to be done for its smooth working and for getting a conclusion on time without any delay.
Territorial Extent of Writ Jurisdiction
Clause (1) of article 226 provides a two folded territorial limitation on the power of a High Court to issue writs.
Writs issued by the high court must lie in its territorial limits i.e a High Court of Andhra Pradesh can’t issue a writ for protection of a right of person permanent resident. And the power to issue writ by the High Court must be exercised throughout the territory to which it exercise jurisdiction.
Writ can only be issued by High Court against the authority or person within the territorial limits of the High Court i.e. High Court of Punjab and Haryana can’t issue a writ against the chief minister of Uttar Pradesh.
These two contentions on territorial limits of High Court makes it clear that the jurisdiction to issue a writ can either be decided by residence or location within those territories.
In this case respondent filed an application to issue a writ under Article 226 before the Madras High Court for restraining the election commission from inquiring into his alleged disqualification for membership of the assembly. Permanent office of election commission is situated in New Delhi.
It was held by the Supreme Court on appeal before it that High Court of Madras has no power to issue Writ against Election Commision as its permanent office is located in New Delhi. It was observed by the court that mere functioning of a tribunal or authority, having permanent office located elsewhere is not sufficient to create High Court jurisdiction under Article 226 to issue writ. Neither the cause of action arose in jurisdiction limits will be enough to create jurisdiction on High Court regarding the matter to issue writ under Article 226.
Whereas, after the 15th amendment of Indian Constitution in 1963 it was permitted that cause of action can become a ground for arising jurisdiction to issue writ under Article 226 by the high court in whose jurisdiction cause of action has partly or completely has taken place or arises. Mere declaration on the ground that issue may be more effectively dealt by other High Court can’t be justified.
Discretionary Remedy
Power conferred under article 226 confer discretion on High Court. High court will only exercise jurisdiction in accordance with judicial considerations and well established principle of laws. Exercise of jurisdiction on any irrelevant consideration will make such an order or writ invalid.
In this case of 1993 High Court had earlier quashed the FIR even though the said F.I.R discloses the offence committed by the accused, on the assumption that it has the power to quash the F.I.R under Article 226.whereas, it was contended by the Additional Solicitor General that the F.I.R cannot be quashed if the allegations made in it do make a prima facie case. Therefore it was held that high court has the power to quash a F.I.R only in cases where the F.I.R prima facie does not disclose any offence being committed and also there are certain other points mentioned in Bhajan lal case.
While exercising its discretionary power High court can pass an order in public interest and in terms of equity and the court can also refuse to provide remedy if it was found that petitioner seeks to invoke jurisdiction with wrongful or fraudulent intention for any unjust gain or for securing any dishonest perpetrator.
Discretionary Remedy provided under this article is for doing justice and correcting injustice and not for any other purpose.while exercise its discretionary power High Court must follow the well recognised principle of law.
In case of public interest Litigation court can even go beyond the case and can also grant remedies beyond what is prayed by the parties.as in the case of Padma v Hiralal Motilal Desarda writ petition appearing to the one in public interest, challenging the procedure adopted by the respondent for disposal of the land. High Court has extended its jurisdiction under Article 226 via order of enquiry on certain questions of facts by scrutinizing governmental files and coming to a conclusion that there is a huge irregularity in the matter of allotment of land and found that the policy formed was erroneous and cause injustice to public interest.
Supervisory Power
Power conferred under Article 226 is supervisory in nature as the High Court does not act as a court of appeal while exercising its power under Article 226. The only work of the High Court is to examine whether the challenged action is lawful or not. In respect of lawfulness also law is more clear on the point of actions affecting and exceeding the jurisdiction and clear on supervisory power of High Court under Article 226. While exercising its supervisory power court can’t go into the merits of the controversy as an appellate court can.
In the given case it was held by the Supreme Court that while exercising the power under this Article court can not interfere in the policy decisions of the government unless their decisions or clearly opposing the constitutional laws.
Principles for Exercise of Jurisdiction
There are eight principles which regulate the exercise of jurisdiction under Article 226:-
Alternative remedy
As we have discussed above that Article 226 provides for a discretionary remedy and high court has the power to refuse the grant of any writ if its is satisfied that the aggrieved party have adequate alternative remedy. Remedies provided under this article can’t be used as a substitute for other remedies. So, therefore it can be said that a writ under Article 226 can’t be issued by the High Court in the case where there exists an equal, efficient and adequate alternative remedy unless there is any exceptional reason for dealing the matter under Article 226.
Where there is a right to appeal available before the person seeking writ jurisdiction then in such cases High Court can refuse to exercise its writ jurisdiction the ground of availability of efficient alternative remedy
In several cases different High Courts refused to issue writ where the person seeking for writ has remedy available, like in the case of Firm Hari pd v STO AIR 1959 All 246 Allahabad High Court has refused to issue a writ where the aggrieved assessee had a remedy against assessment made by sales tax officer by way of appeal to the appellate authority.
Moreover in case, where an alternate remedy which is available before the applicant is not adequate then, the High Court can’t refuse to issue writ because it is clear from the various judgments of Supreme court that High Court can only exercise its discretionary jurisdiction and refuse to exercise its writ jurisdiction only when there is availability of equal, adequate and efficient alternative remedy.
In this case petitioner was a member of the Municipal Board and he was removed from his position on Objectionable grounds under section 40(3)of Uttar Pradesh Municipalities Act, 1916 elections for fresh appoint were likely to be conducted within a few months and the petitioner though has an alternative remedy available as to file a suit in civil court but the final decision in civil case could not be obtained before election due to large number of cases listed in those courts and that will debar him from contesting elections.
Therefore, Allahabad High Court held that the alternate remedy available before the petitioner is not an adequate one hence, writ jurisdiction can’t be refused and he can seek relief by way of writ petition under Article 226.
Delay
Provision of Limitation Act does not apply to a petition under Article 226 neither there is any specified limitation period for filing a writ petition in Indian Constitution also or in any other law. Whereas, exorbitant delay in filing the petition can be an appropriate ground for refusing to grant relief by The High Court. And if the delay is explained properly to satisfy the court then it can’t be refused by the court on that ground.
It was a well established principle that a writ of certiorari can’t be issued in case there is negligence on the part of the applicant to assert his right.
Suppression of facts
If the applicant while filing a writ under Article 226 is aggrieved of the suppression of material facts in his application are tried to mislead the court, then the court should thereby reject his application and such refusal be considered as a refusal on merits.
The petitioner in this case has deliberately given misstatement of facts in his petition application with an intention to mislead the court and on the same misstatement obtained a rules of nisi prohibiting the state from taking certain actions. Misstatement by the petitioner is itself a sufficient ground for refusing the writ petition.whereas, a mere mistake in the name of the parties by the person filing the petition does not affect its maintainability.
Futile writ
If the applied writ is not serving any fruitful purpose then High Court in its discretion reject the application of the person seeking the writ on the same ground.
In this case, the applicant applied for a writ of certiorari against the order of Revenue Minister of State. The impugned order was directing the collector to make references under section 8 of the Land Acquisition Act, 1894.
It was held by the Rajasthan High Court that the Revenue Minister had no jurisdiction to make such impugned order. In this case the actual order was not inferred with, if the party had come before the high court then it would only be given the relief which was already given to him by the Revenue Minister.
In this case the Supreme Court has refused to issue the writ on the ground of futility and held that during the pendency of the proceedings validity period of contract has expired.
Disputed question of facts
Proceeding of Article 226 is of Summary nature as it is seen in the above referred case “purushottam chandra ” that there is an availability of alternate remedy but the case needs to be decided early and fast therefore, petitioner seek remedy under Article 226. Therefore, proceeding under this Article are not suitable for making any arguments on questions of facts.
Petition under Article 226 is filed by Ramani Kanta in his petition he pleaded that he was the Founder-Secretary of the Governing Body of Bholanath college at Dhubri. And his two wards were also the students of the same college. This college was governed by this governing body only and its principle is also the ex- member of this body and at present, he is also the joint secretary. Members were elected from the teaching staff and from the guardian for the students.
The Executive council of Gauhati university in the meeting held on july 1950, held that governing body of all non-law colleges in the State of Assam must be re-organized. And by an order directed all the principles of non-government colleges to re-organize their government body.whereas, governing body of Bholanath college could continue to function till 1952.
It is urged that direction given by Executive Council to re-organisation of governing bodies of non-governmental colleges constitutes infringement of the fundamental rights of the governing body of Bholanath college on Linguistic minorities under article 30 clause(1) of Indian Constitution, 1950. Also it was argued that the scheme introduced by the Executive Council is ultra vires of the university.
So, the main question which was raised in this case was that, whether the petitioner, who was discharged from the service, was made permanent or not is totally a question of fact and therefore on that ground by exercising its discretionary power, High Court refused to interfere in the case via a writ under Article 226. In this case no question of jurisdiction of the High Court was raised it was just a matter of discretion of High Court to exercise its power given under Article 226.
Perpetuation of illegality
In case of A.M. Mani v Kerala SEB, AIR 1968 Ker 76 it was held that writ under Article 226 will not be issued if its effect is leading to a continuation of some illegal order.
Dismissal of limine
If it is found by the High Court that the claims made in the petition are frivolous, vexatious, reckless or Prima facie unjust, then the court may refuse to entertain such claims on the ground of its being unlawful.whereas, dismissal in limine without a speaking order will not be considered as a proper dismissal. High Court must have to pass a reasoned orders.
Joinder of parties
Writ under Article 226 ought not to be heard by the High Court if the person getting affected by the decision of the High Court is not made a party to the case. It was stated by the Supreme Court in case of Prabodh Verma v State of U.P that In cases where the number of people affected by the decision is too big then those should be represented by any such person who has the capacity to represent them all.
Res judicata
Res judicata means the matter already decided.
So, there are certain essential conditions which are required to be fulfilled for applying this principle of Res judicata according to section 11 of civil procedure code
The matter in which this principle is applied must be similar to the previous matter.
Between the same parties
Parties must be adjudicating under the same title in both the case
Court decided the earlier case was competent to try it.
The matter in issue was heard in earlier case.
In the case of Daryao v state of U.P. it was held by the Supreme Court of Indian that once the matter has been “heard and decided” the High Court under Article 226 further the writ under Article 32 is barred by the principle of Res Judicata and therefore could not be entertained.
Object of this doctrine
No man shall be held before the court twice for the same cause(nemo debet bis vexari pro una et eadem causa)
To put an end to a litigation, in the interest of state (interest reipublicae ut sit finis litium)
Judicial decision once delivered must be accepted as correct (res judicata pro veritate occipitur)
Therefore, these general principles of the doctrine of res judicata applies to writ petitions under Article 226 and 32.
It says that when the same question has been decided by the High Court under Article 226 and conclude the matter with an order that no relief is granted to the petitioner then such decision of the High Court act as res judicata in subsequent petitions for similar relief.
In this case it was held by the Supreme Court of India that even a wrongful decision of the High Court on question of law relating to the facts in issue will operate as res judicata. Only condition requisite for applying the principle of res judicata is that the matter adjudicated must be decided on the merits of the case. If the matter was dismissed in limine then the principle of res judicata will not bar filing of fresh petition. For example, a non- speaking order of dismissal will not operate res judicata.
Principle of res judicata will not apply on the writ petition of Habeas corpus under Article 32. Therefore, a writ petition of habeas corpus once dismissed by the High Court under Article 226 can also be filed under Article 32 Before the Supreme Court on the same facts but in the same High Court as a successive application is allowed.
It was held by the Supreme Court that power of Special Leave to appeal before the Supreme Court under Article 136 does not operate as res judicata for a writ application under Article 226. It was also observed in this case that refusal of special leave does not come stand in a way of petitioner a principle of res judicata file filing a writ petition under Article 226 before the High Court.
Interim relief
Relief cannot be barred by the statute
Earlier it was believed that Power conferred under Article 226 can’t be taken away from the High Court by any way other than amendment of the constitution. But the power of judicial review can’t be taken away even by amendment because judicial review is the basic feature of our constitution and basic feature of the constitution not subject to any amendments.
Writ of mandamus, certiorari and prohibition can’t be issued against legislature. Whereas, writ of habeas corpus can be issued against a legislative body. Under Article 226 if any person is detained by the order of legislature in any case then the aggrieved person may move to High Court for a writ of habeas corpus in case if he can prove that his detention is wrongful and the order given by legislative body was mala fide. In India no legislative body can claim immunity by a writ jurisdiction of High Court by issuing an unreasonable warrant.
This matter is entirely of executive branch of the government in regards to the introduction of particular legislature. And in this case, it was held that a writ under Article 226 can be issued against any legislative body for enforcing any legislature in this case only it was also declared that it is a settled point that court under Article 32 and Article 226 can treat a letter containing any public issue as a writ petition .
Who may apply
Ordinarily, a person whose legal rights or any other legally protected interest are affected may approach to the court under Article 226 for seeking remedy. Although this article does not specify any person who can approach the court under it but, as the article provides a public remedy therefore,the provision locus standi as applied in Article 32 will be applied. It is not required that the person should wait till the actual infraction of his right; door will open for a person to seek remedy under Article 226 as in when there arises an imminent threat to such infraction.
Existence of right would be a sufficient condition for exercising jurisdiction under this section, subject to certain conditions:-
For a writ of habeas corpus under certain circumstances an application for writ can be filed by a friend or relative of the person whose arrest has been made.
An application for writ of quo warranto it is not necessarily required that the person seeking for remedy have suffered some personal injury .
For example- i. a university professor can seek remedy under Article 226 for any illegality even though he is not affected by that.
A student of some college completed his course can also apply for writ petition for the illegalities followed by that college or any person known about those illegalities can file a petition before the court for seeking redressal.
To whom writs may be issued
Writs can be issued against any person or authority included in each case by the High Court under Article 226 and Article 32 by Supreme Court. The required condition for issuing writ under Article 226 is that the case must fall within the territorial limits of the court. Writs can only be issued against any person or authority engaged with some public work that is to say a writ under Article 226 can’t be issued against a private individual excluding certain exceptions in respect of issuing habeas corpus or mandamus.
Issued to executive authorities or government machinery, bound to do some act.
Issued to inferior courts, tribunals or to any judicial or quasi-judicial body.
Can’t be issued to legislative bodies except in cases where any public interest is involved.
Also can’t be issued against legislative bodies but there is no exception to that condition.
Writ is issued in the form of a command
Issued as a direction for officer or judge of an inferior court or tribunal.
Can be issued against statutory bodies only having administrative functions.
Can’t be issued against such statutory bodies.
Command given to government, court, corporation or public authority to do or not to do some specific act.
It requires records of the proceedings of some cause shall be transmitted to superior court.
Writ Petition
A writ petition is a filing that an aggrieved party makes with an appeals court in order to get speedy review his case which was already tried by an inferior court.
A writ petition is a plea before any higher court for extraordinary review. Person seeking writ petition requests the court to intervene in the decisions of inferior courts.
A writ petition can be filed by any aggrieved person whose Fundamental Rights are violated under article 226 before the High Court or under Article 32 before the Supreme Court. Writ jurisdiction of the High Court is wider than that of the Supreme Court as it extent to grant remedies in case of violation of any other constitutional or legal right also.
Writ petition can also be directly filed to the High Court without approaching the lower court first.
There are five types of writs named- Habeaus corpus, Certiorari , Mandamus, Prohibition, Quo warranto. All of them have already been discussed above in detail.
Who can file a writ petition
Any person whose Fundamental Rights or any other legal or constitutional rights have been Violated by the order of inferior court.
Curative Petition
Curative means possessing the ability to cure and petition means making a written request for judicial action before the court. Therefore, the literal meaning of curative petition can be interpreted as “petition filed before the authority having ability to cure the miscarriage of justice”. It is a new concept in Indian legal system and was evolved recently in the case of Rupa Ashok Hurrah v Ashok Hurrah and Anr. in the year 2002.
It is a last judicial resort available before a person for seeking remedy. Curative petition can be against any judgment or decision of Supreme Court. Under Article 137 Supreme Court has the ability to review its own Judgments, subject to some rules made under the provisions of Article 145 as given under the provisions of article only.
Question involved in this case was, whether the person whose review petition has been denied by the Supreme Court had any other relief available before him against the final decision of the Supreme Court.
Answering to the question Court held that in order to prevent abuse of procedure nad law and cure the gross coducted by miscarriage of justice, the Supereme Court has reconsidered its Power for this purpose, and therefore, discovered this new concept of curative petiton.
There are certain conditions specified by the court to entertain the curative petition in India.
Procedure for Filing Curative Petition
Petitioner must make a declaration stating that the grounds specified in curative petition were also mentioned in the review petition
Review petition filed earlier must have been dismissed by circulation.
Petitioner have to prove that principles of natural justice were violated and it was believed by him that judge has delivered that judgment with bias intention.
Certification of the above mentioned points must be done by a Senior Advocate(senior counsel or State counsel).
Curative petition filed by the petitioner must have to be circulated to three senior most judges
Along with those who delivered the impugned order(if available).
If the petitioner’s plea lacks in merits then it can be the discretion of the court to impose “exemplary cost”.
Unlike other review petitions, curative petition can’t be decided in an open court. For deciding a curative petition in an open court judges must have to first decide that there are some merits in the case and therefore, those must be decided in the open court.
Before the decision of this case, a question that always strike to my mind is that, whether the supreme court can issue a writ to itself or not? Before the Judgement of this by the court it was believed that there is no provision for intra court appeal before the supreme court and therefore this legal doctrine ‘actus curiae neminem gravabit’ meaning act of the court shall prejudice no one, was followed.
In this case petition was filed by Shoukat Hussain Guru under Article 32 for writ of Habeas corpus with the contention that detention of petitioner is violative of Article 21 of the Constitution.
Review petition before the Supreme Court was dismissed on 22nd september 2005 and the person aggrieved by such dismissal filed a curative petition before the court. Contentions raised by the petitioner in his petition was that he was detained under section 123 of Indian Penal Code(herein referred to as IPC) for which he was not charged. His contention was not only regards to the point that the court has given a decision without jurisdiction but also in regards to that, such a decision was given totally in contravention of the principle of Natural Justice as he was not provided with the opportunity to defend himself for an offence under section 123 of IPC. Therefore, the decision is liable to be set aside.
prerequisite conditions mentioned in Landmark judgement of “Rupa Ashok” that are required to be satisfied to proceed with a curative petition were not fulfilled by the petition as it is required that the curative petition must be placed before the three senior most judges and also to the judge who initially delivered the judgement and after due consideration by all the judges curative petition be petitioner was rejected on January 2007.
Limitation Period
As there is no time limit specified for filing a curative petition and also it is more clearly stated that filing of curative writs will not be governed by the provisions of the Limitation Act. It is only specified that the petition must be filed within a reasonable period. Whereas such reasonable period is not defined anywhere. Whereas, order XL in part VIII of Supreme Court rules, 1966, state that review application by a petition shall be filed within 30 days from the date of judgment sought to be reviewed.
Difference between review petition and curative petition
Grounds
Review Petition
Curative petition
For which decision petition can be filed ?
Decision of the High Court and Supreme Court can be reviewed.
Filed only against the decision of the Supreme Court. It is the last slot available before an individual for seeking redressal
Before which court?
Review petition is filed before the same court and goes to the same bench of judges that delivered the impugned judgment.
petition is filed before the same court but not before the same bench of judges, who already reviewed the judgment delivered by them.
Under which article petition can be filed?
Article 137 impose power on Supreme court to review any of the judgment or order pronounced by it.
Filed under Article 137 only subject to the rules made under Article 145 but after the case once reviewed by the judges delivered the judgment or order.
When it can be filed?
Review petition can be filed subject to the rules made under article 145.
After dismissal of review petition on such petitions can be filed subject to certain conditions specified in the “Rupa ashok case”.
Limitation period
According to supreme court rules, 2013 review petition needs to be filled within 30 days from the date of judgment or order.
No time limit specified for filing a curative petition neither in any rule nor in any provision of law.
Prerequisite requirement
There is no prerequisite requirement for filing review petition. Only there are certain grounds specified under law that need to be fulfilled for filing such petition.
Prerequisite requirement for filing this petitionis, a certification from three senior advocate stating the all the requirements for filing a curative petitions are fulfilled.
How to file a writ petition in High Court
Writ petition in the High Court has to be filed under Article 226, no matter, whether it is a criminal or criminal case. Procedure for filing a writ petition before the High Court is simple.
Steps to be followed:-
A writ petition must contain supporting affidavit, facts of the case, question of law, annex the documents that the petitioner wishes to rely upon to substantiate his case, along with notice of motion to the other party and lastly prayer.
This petition is filed at a filing counter in the High Court.
In ordinary cases before issuing notice to the opposite party court first hear from the petitioner his side of the case.
Incase after hearing the case if it was found by the court that there are no relevant ground for admitting the case and rejected the petition on the first hearing than that will be an end of the whole endeavour.
On the other hand once the case is admitted by the court, notice to the opposite party will be send, based on the motion of notice specified in the petition.
Admission of petition does not imply that petition is worthy of relief prayed.it just mean that court found the petition worthy for hearing.
Petition after admission can still be dismissed at any time by the court.
Curt fees is subjective and there are always alternate dispute redressal fora available in case the petitioner is not capable of appointing a lawyer.
How to file a writ petition in Supreme Court
Writ petition before the Supreme Court is an application for enforcement of Fundamental Rights under Article 32 of the Indian Constitution, 1950. Point that is to be kept in mind before filing a writ petition before the Supreme Court is that the subject matter of the petition must be related to more than one state or the decision of which should have relevance in more than one state, because petition containing subject matter related to one state only can be filed before the High Court under Article 226 of Indian Constitution.
General Procedure for filing this petition before the Supreme Court:-
Every citizen of the country has right under Article 32 to file a writ petition for protection of their fundamental rights.
Writ petition under Article 226 shall be filed in writing.
It the petition involved substantial question of law regards to interpretation of the constitution then it should be heard by Division bench of not less than 5 judges
On the other hand if the case does not involve any substantial question of law may be heard by division bench of less than 5 judges.
All the interlocutory application and miscellaneous applications filed along with writ petition can be heard and decided by division bench of less than 5 judges.
No court fees shall be imposed on writ petition of habeas corpus or any other petition arising out of criminal proceedings.
Procedure for filing a writ petition of habeas corpus-
Writ petition of habeas corpus must be accompanied by an affidavit of the person whse detention has been made stating that the petition has been made at his instance along with that mentioning the circumstances of his restrain.provided that in case the person who has been detained is unable to make affidavit owing his restrain then the petition must be accompanied by the affidavit of any other person acquainted with the facts of the case, specifying the reason why the person detained, unable to make his affidavit.
Petition shall also state that weather the petitioner has moved to the concerned High Court before for the same relief or not and if yes than what was its result.
For preliminary hearings petitioner must be produced before the court, and after that if the court is of the view that a prima facie case for granting petition is made out, then the court must issue rule of nisi for calling the opposite party to be present on the next date fixed by the court and provide the court with the inferences that why such order should not be passed and the person illegally detained must also be produced on that day before the court for proceedings according to the law.
On the set date if no cause is shown by the opposite party then, court must pass an order for releasing of the petitioner at liberty.
Procedure to be followed in case of other four writs or for any order or direction;-
These writs must be set out in the name and description of the petitioner, stating the nature of infringed fundamental rights, relief sought to get and the grounds on which such relief is sought along with an affidavit of petitioner verifying the facts of his case.
Atleast three copies of this petition must be filed in the registry.
Petition shall also state that weather the petitioner has moved to the concerned High Court before for the same relief or not and if yes than what was its result.
On the admission date of petition petitioner must be present before the court for a preliminary hearing and for order to issue notice to the opposite party, on the same day if the court finds that there is no infringement of any fundamental rights guaranteed by the constitution or found any other reasonable ground for rejecting the petition, the court shall dismiss the petition and on the other hand any reasonable ground id found then issue rule of nisi calling upon the respondent to appear on the next fixed date.
After receipt of the notice, respondent must file his reply within 30 days from the date of receipt of the notice or before 2 weeks from the date appointed for next hearing whichever is earlier or within any other time period specified by the court.
Upon issuing the rule of nisi the court has power to grand ad- interim relief to the petitioner in the light of justice as it may be required.
This is the whole procedure followed by the writ courts to lodge a writ petition by any person whose fundamental rights are being infringed by any judicial or quasi- judicial order, direction or judgement.
Difference between Writ Jurisdiction of the High Court and Supreme Court
Writ Jurisdiction of Supreme Court
Writ Jurisdiction of High Court
Given under Article 32 of Indian Constitution.
Given under Article 226 of Indian Constitution.
Power to issue writ is specific to only one subject matter
Wider power to deal with the issues of writ petition
Exercise its writ jurisdiction for enforcement of fundamental rights only
Exercise its writ jurisdiction for enforcement of fundamental rights and other constitution and legal right also
Territorial jurisdiction is applicable throughout the country
Writs have validity only in the territory under the authority of the High Court or where the cause of action has arisen.
Exhaustion of alternative remedies before moving to High Court
Constitutional Courts in India have time and again held that in case there is an availability of an alternate remedy before the petitioner then the writ petition before the High Court or Supreme Court is not maintainable.
In the instance case, suit was filed by the appellant for recovery of money from the principal debtor as well as the guarantors. As the case relates to recovery of debts therefore, it got transferred to Debt Recovery Tribunal, Calcutta. The case was decided by the tribunal against the principal debtor as well as against the guarantors.
Then, respondent filed a writ petition under Article 227 before the Calcutta High Court.court allowed the petition on observing that the subject-matter of the case falls within the territorial limits of the court and delivered its judgment, on which appeal before this hon’ble court was filed.
the act of the Recovery of Debts Due to Banks and Financial Institutions was enacted to provide special procedure for recovery of bank debts and debts due to the financial institutions, and there is a proper hierarchy of appeal procedure provided under the act and such procedure should not be diverted either by the recourse procedure under Article 226 and 227 nor by filing a civil suit, which is expressly barred.
Where there is an alternate remedy available judicial prudence demands that the court should refrain itself from exercising its jurisdiction under the said constitutional provision.
In this case high court must not have exercised its jurisdiction and must have directed the respondent to take recourse to the appeal mechanism provided by the Act.
So, the decision of this case, clear the meaning of this principle “exhaustion of alternative remedies before moving to the High Court” which says that for High Court prerequisite condition for exercising its jurisdiction is to check the availability of alternative remedy available before the petitioner which provide him equal , just and effective remedy in case those remedies are exhaustive then the High Court have to exercise its jurisdiction under the said section for issuing the writ petition.
When writ of habeas corpus may be refused
There are certain conditions under which the writ of habeas corpus may be refused which are as follows:
when the imprisonment is in consonance with the order or decision passed by the court,
On any other grounds not specified by law for issuing such writ.
when the person detained or the person making such detention does not fall within the territorial jurisdiction of the court before which application of writ petition has been filed,
when the detenu has already been set free from the custody, during the writ filing procedure or before it,
when the detention has been validated by removal of defects,
whenever the writ is sought during emergency situations, in suction situations right to move to the court has also been taken away from the people,
when the petition has been dismissed by a competent court after looking into the merits.
To secure the release of the person whose ground for detention is made by a court of law on criminal charges.
When there is a proceeding for contempt by the court of record or by parliament.
This list of ground is not exhaustive in itself.
Role of writs under Administrative Actions
Enforcement of discretionary powers by administrative authorities has been accepted as important phenomena of modern administrative and constitutional machinery. Law making authorities can enact the laws on any subject to serve the public interest and while enacting such laws, it has become inevitable to provide for discretionary powers that are subject to judicial review.
Condition precedent attached with such discretionary power is only that such discretionary power has to be exercised in good faith. The purpose behind this discretion is prescribed under this act along with certain limitations. The Courts have to exercise their writ jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on two grounds;
Firstly whether the statute in question is substantively valid piece of legislation or not and,
Secondly whether the statute provides procedural safeguards to all.
If these grounds are not found in any statue then the law is declared ultra vires and violative of Article 14 of the Constitution.
Furthermore, the court also controls the discretionary power of executive bodies that are being exercised by them after the statute is enacted or come into force.it is the duty of executive authorities to exercise their power within limitations prescribed under the act to achieve its objective. This discretionary powers of executive bodies play substantial role in administrative decision making and for immediate settlement of principles of administrative law trap the exercise of powers.
In case where such discretionary powers are not exercised in accordance with law, or there is any kind of abuse and misuse of such powers by the executives or take any inappropriate benefits for which they are not entitled to take or simply misdirect administrative agencies in applying the proper provision of law, then such power exercised in discretion will become void. When it is found by the court that executive authorities have acted in accordance with law and maintain reasonable standards while giving their decision then such decisions are not subject to Judicial Review.
The Executive have to reach their decisions by taking into account relevant considerations. They can neither refuse to consider relevant matter nor can they take into consideration accounts which are fully irrelevant or extraneous with the facts of the case and law.
Authorities must not misdirect themselves on the points of law. Only those decisions will be lawful and relevant which were decided in accordance with law. The courts have the power to keep an eye on the actions of executive bodies and to keep a check that these bodies acts lawfully.
These bodies cannot avoid court’s scrutiny, in situations where they failed to provide the reason for their actions and in case the reason given by them is not satisfactory to the court then court is provided with the authority to give direction for reconsideration of the matter in the light of relevant matters and already decided case.
Though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.”
The role of writs is also sensibly laid down in a famous PADFIELD’S CASE
In the earlier days, courts in England, usually refused to interfere in the matters where the Government or the concerned officer passed a non-speaking order (an order which on the face of it did not specify the reasons for the orders). Once a speaking order was passed, the Court”s duty was to find out and consider whether the reasons given for the order or decision were relevant reasons.
On the other hand in case of a non-speaking order they used to say that it was like the face of the Sphinx in the sense that it was incurable and therefore hold that they could not consider the question of the validity of the order.
Even in England also like India the Courts have travelled very far since those days. They no longer find the face of the Sphinx inscrutable.
Conclusion
The first and foremost goal of the Preamble of the Constitution is to secure social, economic and political justice to all its citizens. Preamble of the constitutionIt is the guiding principle of the nation as it sets out the main aims which legislature intended to achieve. The social changes which were contemplated by the makers of the Constitution, in the Constitution was sought to be achieved through the exercise of fundamental rights by the individuals and by following the direction of the policy by the state towards the goals set up in the Chapter IV of the Constitution i.e. specifies directive principles of state policy.
For effective working of these principles and goals in real life and to prevent misuse of these rights and liberties the judiciary was constituted in the Constitution.It is a trite saying and a latin maxim ubi jus ibi remedium which means that wherever there is wrong committed law provides remedy for the same. Therefore, judiciary was constituted to satisfy this principle well and when a remedy is given for infringement of any right then that will make the right more effective.
To facilitate access to justice, the judiciary relaxed the rule of locus standi in favour of a person acting bonafide and having sufficient interest in the proceedings of Public Interest Litigation (here in after referred as PIL). Supreme court have entertained petitions filed by law students, law teachers, NGOs, public-spirited individuals and good Samaritans. for protection of the rights of an individual.
Furthermore, the Supreme Court and the High Court have admitted the letters, postcards, telegrams, and even newspaper items as writ petitions under Article 32 and 226 respectively of Indian Constitution. These petitions provide extraordinary judicial relief to the person whose rights are being infringed by any judicial or quasi- judicial order. PIL has an important role to play in the justice system; it affords a ladder to justice to the disadvantaged sections of the society, some of which might not even be well-informed about their rights.
Constitution law itself states that law is a supreme body and no one can be above the law. Even the judges of the supreme court are bound by the decision given by them in accordance with the law. And the constitution remedies provided under the law acts as a check and balance for the whole system. Thus, the writ jurisdictions act as judicial restraints of policy decisions which are unreasonable, unfair and against the public interest.
Power to issue writ, though is discretionary yet unbounded in its limits and such discretion can be exercised only on sound legal principles. Absence of arbitrary power is the first essential for the principle of rule of law upon which the whole constitutional system is based.
This article is written by Amanat Raza, a student of the Faculty of Law, Aligarh Muslim University. In this article, he has discussed the critical analysis of the office of the CJI, power, and removal of CJI and Supreme Court Judge, discussed NJAC, and Collegium System.
History
To better know the position, status and everything about the Chief Justice of India, we first have to know about how the concept of justice has evolved in India and who used to give that justice. With the passing of time, the method of providing justice has changed and the authority who was giving justice has also changed.
In ancient times, the principle of justice was linked with religion. Most of the Kings’ courts disbursed justice according to ‘dharma’, a set of everlasting laws rested upon the individual duty to be accomplished in four stages of life (ashrama) and status of the individual in line with his popularity or status (varna). He has become the apostle of justice and so the best decider or the highest judge in the kingdom. With the advent of British colonial administration, India witnessed a judicial system introduced on the idea of Anglo-Saxon jurisprudence. Hence, now the method of justice and the person who was providing justice is changing according to the situation of the society.
With the commencement of Mayor’s Court, the story of the modern Indian judiciary begins. A Mayor’s court was established by the British East India Company under the Royal Charter of 1661. The people of two presidencies i.e., Madras and Surat were judged by the Governor-in-Council of that province. Another creation of the Mayor’s court in the presidency of Bombay, Madra, and Calcutta under the Charter Act of 1726. These newest court were of the King of England. And now the judging power of each presidency goes in the hand of the king. Till this time judiciary was suffering from lack of legal knowledge, the overburden of the executives, lack of local judges to provide justice to the citizens or the people of the presidency.
Now, it is time for the establishment of a separate authority that deals with the principle of just and provides justice to the people. In 1774, the Supreme Court of Fort Williams was established at Calcutta through the Charter Act of 1773. The Supreme Court comprises of a Chief Justice and the three judges (later on this number of judges reduced to two) who were appointed by the Crown acting as King’s Court. Sir Elijah Impey was the Chief Justice of this court. This court was embellished with the power to punish for its contempt, to try civil and criminal cases, and many more powers. Then, after the Render’s court was established followed by the Mofussil Adalat. The system of the judiciary had undergone changes beneath Lord Cornwallis in 1787, 1790, and 1793. He very well reorganized the civil and criminal justice system in Bengal, Bihar, and Orissa and introduced the principle of management or administration in step with regulation. After that, the system of providing justice has expanded and a High Court was established in 1861 through the Indian High Court Act, 1861. High Courts also consist of Chief Justice and various judges aiding him in making any decision. The Government of India Act 1935 established a Federal Court at Delhi. This court served as an immediate precursor to the cutting-edge ideal courtroom of India. It is composed of the Chief Justice and not more than six judges. It had an original, appellate, and advisory jurisdiction. The constituent assembly that was made at the time of freedom of India passed the resolution to abolish the Privy Council and because of this, the Supreme Court gets to the top of the Judiciary system in India. Generally, the Federal court that was established earlier doing the work of Supreme court from 1937 to 1950 and after that the Supreme Court as being the individual authority having top judicial power established on 28th January 1950.
Chief Justice of India
The Chief Justice of India is the head of the Indian Judiciary and the Supreme Court of India. Administrative functions are also headed by him. As the head of the Superior courtroom i.e., the Supreme Court, the Chief Justice is answerable for the allocation of instances and appointment of constitutional benches which addresses crucial subjects of law. According to Article 145 of the Constitution of India and the preferred Supreme Court Rules of Procedure of 1966, the Chief Justice allocates all work to the other judges who are bound to refer the problem lower back to him or her (for re-allocation) in any case where they require it to be looked into by means of a bigger bench of greater judges. At the administrative facet, the Chief Justice contains out the following features like protection of the roster, the appointment of courtroom officers and trendy and miscellaneous matters relating to the functioning and administration of the Supreme Court. It has been an unbroken conference for decades now, to hire the senior-most judge of the Supreme Court as the CJI. From January 1950, the year when the constitution came into effect and the supreme court came into existing, Ranjan Gogoi is the 46th CJI since 3 October 2018. He succeeded Justice Dipak Misra on 2 October 2018 and would remain in office till 17 November 2019, the day he retires on turning sixty-five years in age.
Appointment of Supreme Court Judge
How precisely are judges of the preferred court of India appointed? Does the government get a say of their appointment? These questions have seen a long and bizarre history, that noticed the Judiciary face off against what they perceived as an attempt by the executive to intrude, in order to claim their independence. Article 124 of the Constitution of India gives for the way of appointing judges to the Supreme Court. The Constitution of India under Article 124(1) states that there shall be a Supreme Court of India inclusive of a Chief Justice of India (CJI) and 30 judges. Article 124(2) of the Constitution of India states that the appointment of judges should be by the President of India. The following way listed below shows how a Supreme Court get assign:
Whenever a vacancy is expected to arise inside the office of a judge of the Supreme Court, the Chief Justice of India will initiate a proposal and forward his advice to the Union Minister of Law, Justice and Company Affairs to refill the emptiness.
The Chief Justice of India opined that the appointment of a judge of the Supreme Court should be formed in consultation with a collegium of the four senior-most puisne Judges of the Supreme Court. If the successor Chief Justice of India is not one of the four senior-most Judges who are sub, he would be made a part of the collegium as he ought to have a hand in the selection of Judges who will function during his term as Chief Justice of India.
The Chief Justice of India would determine the perspectives of the senior-most Judge in the Supreme Court, who hails from the High Court from where the individual endorsed comes, but if he does not have any expertise of his deserves and demerits, the next senior-most judge in the Supreme Court from the same High Court has to be consulted.
The requirement of consultation with a judge of the Supreme Court might not be limited to that judge only who has that High Court as a parent High Court, consequently, might no longer exclude Judges who have, on transfer, occupied the office of a judge or Chief Justice of the High Court.
The opinion of contributors of the collegium in recognizing of every of the recommendation as well as the senior-most judge in the supreme court from the high court, from which a potential candidate comes, would be made in writing and the Chief Justice of India, in all instances, have to transmit his opinion as additionally the opinion of all concerned to the Government of India as part of record. If the Chief Justice of India or the alternative member of the collegium obtains views, specifically those from the non-Judges, the consultation need not be in writing but he, who obtains the opinion, have to make a memorandum thereof and its substance in contemporary terms or in general terms which ought to be conveyed to the Government of India.
After the release of the concluding recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will confer the recommendations to the Prime Minister who will advocate the President in the matter of appointment.
As soon as the appointment is approved, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of India and obtain a certificate of physical fitness signed by a Civil Surgeon or a District Medical Officer from the selected person. The Medical Certificate is to be collected from all persons who have been selected for an appointment whether they are at the time of appointment in the service of the State or not. The certificate needs to be in the form of an attachment.
The Secretary to the Government of India in the Department of Justice will announce the appointment and issue the important notification in the Gazette of India as soon as the certificate of appointment is signed by the President.
Appointment of Chief Justice of India
Although the procedure for appointment of Chief Justice of India is not given in our Indian Constitution but there are certain conventions that are used in appointing a Chief Justice. Our constitution under Article 124(1) only talks about that there shall be a Supreme Court which consists of a Chief Justice of India. It does not talk about how a Chief Justice of India should be appointed. However, Article 126 of the Indian Constitution, which talks about the appointment of an acting Chief Justice of India, is somewhat close to the appointment of Chief Justice of India. The following convention for the appointment of Chief Justice of India is given as follows:
There is a Memorandum of Procedure (MoP) between the government and the judiciary, which talks about the procedure to select or appoint the next Chief Justice of India.
The senior-most judge of the Supreme Court who was considered fit for the post of Chief Justice of India should be appointed at this post. The Union Minister of Law, Justice and Company Affairs should ask the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice at his place. The Ministry can ask for recommendations at the time near the retirement of the previous judge.
Whenever there is any doubt about the fitness of senior-most Judge or it is found that he is not fit for holding the office of Chief Justice of India, then as prescribed under Article 124(2) of the Indian Constitution that there should be consultation with senior judge of the same court for appointment of a new judge at the post of Chief Justice of India.
After the Union Minister of Law, Justice and Company Affairs got the receipt of the recommendation for the post of Chief Justice of India, he will put up that recommendation to the Prime Minister who then advises the President in the matter of appointment for that post.
Then the President administers an oath of office to the new Chief Justice of India.
Does the government have the power to interfere in the appointment of Chief Justice of India?
The government does not have any say in the appointment of the Chief Justice of India except for the Law Minister who has the power to take the recommendation of the required CJI and forward it to the Prime Minister.
What is the difference between the appointment of a Supreme Court Judge and a Chief Justice of India?
The main difference between the appointment of a CJI and a Supreme Court Judge is that in appointing a CJI the government cannot send the recommendation of CJI back for later consideration but in the case of Supreme Court judge appointment the government can send the recommendation for later consideration.
Since the establishment of Supreme Court in 1950, the procedure mentioned above for appointing a Chief Justice of India has been followed till now except in the appointment of two Judge i.e., Justice AN Ray and Justice MH Beg. These exceptions took place when Indira Gandhi was the Prime Minister of India.
NJAC
The NJAC also pronounced as the National Judicial Appointment Council was introduced through the National Judicial Commission Act, 2014. Through this one new Article has been added in the Indian Constitution as Article 124A. This Article talks about that there shall be National Judicial Appointment Commission which consists of Chief Justice of India, two senior-most judges of Supreme Court, Union Minister of Law and Justice, and two other eminent person nominated by a committee consisting of Prime Minister, Chief Justice of India and Leader of the Opposition in the Lok Sabha and if no such a leader is there then the leader of the single largest Opposition party in the Lok Sabha. NJAC Act regulates the procedure which NJAC has to follow for recommending the appointment of a Supreme Court Judge and High Court Judges along with their transfer.
Background of NJAC
Earlier, the appointment of Judges and their transfer had to be made in accordance with Article 124, 217 and 222 of the Indian Constitution. Before the NJAC, the appointment and transfer of judges were to be made by the President in consultation with the Chief Justice and other Judges. The collegium system of appointing and transfer of a judge was fully established by the three constitutional cases which we refer to as the judges cases. There are three judges cases which help the collegium to take stronghold in appointment and transfer of judges. But, because of the several defects and drawbacks in this system of appointing a new system has emerged which we called as NJAC through the Constitutional (Ninety-Ninth Amendment) Act, 2014. The Supreme Court with a majority of 4-1 has declared this amendment as void and unconstitutional after one year of its establishment. This ruling was given by five-judge Constitution Bench headed by Justice JS Khehar on a petition filed by Supreme Court Advocates on Record Association and others. The Court held that the integrity and importance of the judiciary is the ‘Highest Importance’ not only to the judge but to the citizens who seek resort from the court of law.
The three judges cases that confirm the stronghold of collegium system in appointing a judge are:
S.P. Gupta v. Union of India [1] also known as the First Judges Case: In this case, the court ruled that the opinion of Chief Justice is not Primacy and the Union Government is not bound to act in accordance with the opinion of constitution functionaries.
Advocates on Records v. Union of India [2] also known as the Second Judges Case: in this case, the decision of the first judge case was overruled by the nine-judge bench who held that in the matter of disagreement in the process of consultation, the viewpoint of the judiciary will be primal. This verdict also gives birth to the Collegium System.
Third judges case[3]: In this case, it has been held by the court that the collegium should be expanded which includes Chief Justice of India and four most senior judge of the Supreme Court after CJI.
Procedure for selection of a Supreme Court Judge by NJAC
The NJAC shall recommend the name of senior most judge of the Supreme Court to hold the post of Chief Justice of India, provided that he is fit for the post.
The NJAC shall recommend names on the basis of merit, ability and other criteria specified in the regulation.
The NJAC shall not recommend an appointment if any of the two members is not agreed with the names recommended.
NJAC v/s Collegium
To know which is better from the NJAC and the Collegium System, firstly, we have to know about the pros and cons of these two systems.
Pros of NJAC and Collegium System
NJAC
Collegium System
In NJAC, members have veto power.
This system of appointing judges is free from the interference of political authority. This is the way of making the judiciary independent.
2. It consists of three members of the judiciary and three members outside the judiciary which shows the transparency in appointing a judge. No judge can favor his or her candidates.
2. It upholds the seniority of candidates and abides by the principle of separation of power in the Indian Constitution.
3. The collegium system does not provide adequate tenure for Chief Justice of the High Court. The process of consultation is secretive and unknown to the common public so when a meritorious candidate from the Bar is denied of opportunity the reason of denying is undisclosed.
3. It minimizes the interference of the executive in dispensing of the justice system. It is so because the judicially trained mind has the ability to search for who are capable in law to become a judge of the court.
Cons of NJAC and Collegium System
NJAC
Collegium System
NJAC would endanger the independence of the judiciary system given by the collegium system.
Collegium system was not proposed by the Indian Constitution. It has evolved from the two Supreme Court judgment.
2. This commission was against the basic structure of our constitution.
2. From Article 217 of the Indian Constitution, it can be concluded that the executive is empowered to appoint a judge in consultation with the judiciary. So it is not following the constitution properly.
3. NJAC has not laid down an objective procedure for the appointment of a judge.
3. On the constitutional ground, it has been criticized by the 214th law commission.
From the pros and cons of both the system, it can be concluded that none of the two systems of appointing the president is best. Although many of the judges have said that the Collegium system is better than the NJAC but still there is some loophole in this system which needs to be full. The NJAC bill was passed by the government in a hurry. I don’t know why they were in a hurry while passing this act as this act does not stand to prove essential for the appointment.
Removal of Supreme Court Judges
The judges of the Supreme Court can be removed by the order of President of India. Judges Inquiry Act of 1968 regulates the procedure related to the removal of judges of the Supreme Court by the process of impeachment. An impeachment motion can be initiated in either of the houses. These procedures are as follows:
To initiate the proceeding of impeachment initially two conditions need to be followed:
i) at least 100 members of the Lok Sabha give notice to the speaker signed by them.
ii) at least 50 members of the Rajya Sabha give a signed notice to the chairman
After consulting with the individuals, the speaker or the chairman will decide either to admit the motion or to refuse it.
Now, if the motion is admitted then the speaker or the chairman who receive the motion will form a three-member committee which consists of a Supreme Court Judge, Chief Justice of High Court and a distinguished jurist to look into the complaint. The same committee will frame a charge on the basis of that investigation and then one copy of the charge will be forwarded to the justice on whom the complaint has been filed for presenting a written defense.
After the investigation is concluded, then the committee will submit its report to the speaker or the chairman, who then lay this report to the relevant house of Parliament. If the reports record a finding of misbehavior or incapacity then the motion for removal will be taken up in consideration and then they debated on this matter.
The motion for removal is required to be adopted by both the Houses of Parliament by certain special majority i.e., (i) there should be a majority of the total membership of that House; and (ii) there should be a majority of at least two-thirds of the members of the House present and voting. If the same majority is gained, then the motion is sent to the other house for adoption.
Once the motion is adopted in both the house, it is sent to the President and now President will issue an order for the removal of judges.
Removal of Chief Justice of India
A person appointed as Chief Justice of India or any other judge of a Supreme Court can be removed from his office on the ground of “proved misbehavior or incapacity.” The criteria to remove a Supreme Court judge is same for removing a Chief Justice of India. Article 124(4) of the Indian Constitution states: “A judge of the Supreme Court can not be removed from his office until and unless the President passed an order for removal of CJI or any judge of the Supreme Court on the ground of proved misbehavior or incapacity.”
Name of the judges on whom the impeachment proceedings were initiated
Justice V. Ramaswamiwas the first judge against whom the proceeding of impeachment was initiated. He was caught in a controversy that he was spending too much on his office residence during his tenure as the Chief Justice of Punjab and Haryana High Court during 1990. But when the motion brought in the Lok Sabha, it failed to secure two- thirds of the majority due to this reason it seems dubious that it is the first case of impeachment against a judge.
Justice Soumitra Sen was the judge of the Calcutta High Court whoresigns from his post before he could become the first person to be impeached during his tenure. He found guilty of misappropriating Rs.33.23 lakhs under his custody as a court-appointed receiver when he was a lawyer.
Justice P. D. Dinakaran of the Sikkim High Court resigned in July 2011 before his impeachment proceeding. He was having charges of Corruption, land grab and abuse of judicial office.
Justice J.B. Pardiwala of the Gujarat High Court impeached in the year 2015. A group of 58 Rajya Sabha MPs moved an impeachment notice against him on the ground that he has said something wrong about the reservation. He has said that if he were asked to name two things which stopped India to progress in the right direction. He will take the name of ‘reservation’ and ‘corruption’. The MPs said that he comment on the reservation of Scheduled Tribes and Scheduled Cast while giving a ruling in case against Patidar leader Hardik Patel. He has given the same statement that Dr. B. R. Ambedkar has said about the reservation. He has said that while giving reservation it was estimated that it will only for 10 years after Independence but today in India it is still prevailing.
Recently, a case of allegation against Chief Justice of India was in news which was considered a threat to the judiciary by the Chief Justice. CJI was accused of sexual harassment and abuse of power by former Supreme Court staffer. There is a panel appointed by the Supreme Court who found that there is nothing which shows the allegation is true. The committee was set up for in house inquiry. The investigation raised the credibility of the judiciary. It has been said about this case that it was the only case in which justice is not delivering justice. This allegation was raised because there was no male judge in the panel but after that Justice Indu Malhotra was appointed instead of N. V. Ramana. The allegation that was made against the CJI was cleared and he was found not guilty of sexual abuse.
There is a maxim which Supreme Court always tells us i.e., ‘Fiat justitia ruat caelum’ which means ‘let justice be done through the heaven fall’. The same Supreme Court has stopped a lawyer to file a complaint. While staying on the transparency, the court repeatedly said that ‘sunlight is the best disinfectant’. But the same court has refused to make its final report to the public. In doing so that is working against its own statement, the Supreme Court has laid down the meaning of Judiciary down in the eyes of the people who thinks it as the supreme authority of justice or who has faith in it. For years citizens and lawyers looked up the judiciary as the protector of the constitution but because of certain activities happening in India lowering faith in the Judicial System. If the Judge would do that kind of mistake then who would be the protector of our Constitutional Fundamental rights. These judges who were impeached have done mistake that he has to not do while sitting on the post of a judge. The same thing is happening with our country judge nowadays as well. Case of sexual harassment on Chief Justice of India, Ranjan Gogoi.
Powers of Chief Justice of India
It has been often said that the Chief Justice of India having a powerful position within the judiciary of India. The Constitution of India clearly lays down the broad power of Chief Justice of India. These powers are:
The President of India and the Governor of every state are sworn in by the Chief Justice of India.
The President must have to consult with CJI for appointing a judge of the Supreme Court or a High Court.
Article 127 of the Indian Constitution gives CJI the power to appoint ad hoc Supreme Court judges.
Article 128 gives the power to the CJI to appoint the retired judges at the sitting of the Supreme court with the approval of the President.
Article 130 talks about that power of CJI under which it can sit the Supreme court outside the Delhi after the approval of the president.
Article 146 gives the power to appoint the officers and servant of the court.
Article 222 give CJI the power to transfer the High Court judges.
Article 257, 258 and 290 gives the power to the CJI to resolve certain type of financial dispute which arises between the Centre and the States by appointing an arbitrator.
He has the power to punish for contempt of court whether it is civil or criminal.
He is having the power of Judicial Review.
He has the authority to examine the conduct and behaviour of UPSC members.
The Chief Justice of India has also got some powers which are not mentioned in the Constitution. These are the additional power which they get from either judicial decision or judicial practices. These are:
He has the power to appoint justice for different benches.
Most letter of PILs goes for first round of filtering at the office of Chief Justice and then it goes for a second round filtering to the Registrar’s PIL office. In this process, the office of CJI is the only place of justice that will come in contact with these letter of a petition before the go the PILs office.
Has the power to decide which and when the cases to be heard.
He is also having the power as ‘Master of the Roster’. The power that are associated with this title are: (i) only the Chief Justice of India has got the right to direct the formation of a bench to hear any case. (ii) the Chief Justice of India has the power to allocate cases to the judge, in other words, we can also say that he has the power to decide which judge hears which case and when. (iii) the exclusive domain of the Chief Justice of India includes the Roaster of the Supreme Court.
Why it has been confirmed that the Chief Justice of India has the power as Master Roster?
On 12 January 2018 four senior judges of the Supreme Court held a press conference in which they have said that the situation in the court is not in order as it has to be. Why they have said this? They have raised the issue of “allocation of case by the CJI”. This was the mysterious death of special CBI judge BH Loya, who was hearing the sensitive Sohrabuddin Sheikh encounter case. They have written in seven-page letter to the CJI that Chief Justice is only first among equals. The petition against the backdrop of the press conference filed in the supreme court challenging the sole authority of the Chief Justice of India to roaster of judges for allocation of cases in the apex court. The Supreme Court while hearing the PIL, held that CJI is the master of roaster and alone has the power to allocate cases.
Critical analysis of the office
The most overworked constitutional functionaries in India is the Chief Justice of India. There are almost 59,695 cases are pending in the Supreme Court which is of civil as well as a criminal matter. Some are writ petition on a constitutional issue. This number of pending cases are of Supreme Court but, we don’t know how many of the cases are pending in different High Courts and Districts court. It might be more than that of Supreme Court cases. The Chief Justice of India has got the sole privilege or power to decide which cases to be solved by forming a bench or which cases can be solved without forming the bench or by disposing the case by listening. Which case should be given priority to solve first was different by different Chief Justice. For example, some Chief Justice created special bench to hear criminal cases while others focus on tax and commercial cases because of their important revenues implication. The Chief Justice of India has also got the power to decide which cases should be given to larger bench to hear cases of Constitutional importance. Here, even different consideration influence different justice as we can see the matter of 2016. To hear the petition on privacy a nine-judge bench has not been created on repeated request of petitioner but, during the same period a nine-judge bench was constituted to hear on the Constitutionality of levy of entry taxes.
Apart from handling the pending cases every Chief Justice of India has to look after a number of thousand cases filed in the Supreme Court every month. Majority of the cases initially got disposed off without giving it too much importance as it is filed by the litigators only to try their luck. However, these cases get combined with the backlog cases of the court until they are disposed off. It is on the Chief Justice of India discretion which cases should be given how much time to tackle.
Providing fairly justice to the citizens
There are complex and heterogeneous responsibilities of Chief Justice of India. Interestingly, this responsibility is a matter of convention which concentrate the power in one Individual. The Second Judges and the Third Judges cases through which a collegium was established the court marked the importance of diffusion of power and of intra-court consultation. There is a strong reason why a collegium has introduced. It should be understood as the way Chief Justice of India dispense or exercise their powers substantially affects how the Supreme Court dispense justice and thus it should not depend on one individual because it is believed that the individual might misuse that power. However, loss of credibility during the CJI Dipak Misra’s term is still recovering and it need more new solution to recover. And it will be best if those solutions were worked out as an institution rather than an individual. The diffusion of administrative power is key to give justice fairly. So, one can be satisfied by NJAC as it has included the administrator in choosing the judge of a court. Also it gives a kind of transparency that the citizens want to know everything about judiciary.
List of Chief Justices
Chief Justice of India
Important notes about these Justice
1.
H. J. Kania
(26 January 1950 to 6 November 1951)
1. After the India get republic Justice Harilal Jekisundas Kania was the first Chief Justice of India.
2. Dr. Rajendra Prasad has appointed him who was the President of India at that time.
3. In 1930 he became the acting judge in Bombay High Court after that he was appointed at the post of Additional Judge and serve at this post from June 1931 to March 1933.
4. On 14 August 1947, he succeeded the then head of the Federal Court, Patrick Spens.
5. In 1951, at the age of 61, H.J. Kania died due to a heart attack in his office.
2.
M. Patanjali Sastri – 16 November 1951 to 3 January 1954 ( until he got retired from the post)
He was the second Chief Justice of India. Appointed by the then President of India, Dr. Rajendra Prasad
2. Got appointed as the Chief justice from the Madras High Court Bar Association..
3. When Sastri worked in the bench of Madras High Court, he used to deal with complicated cases along with the British judge who served in the Indian Civil Service whose name was Sidney Wadsworth. These cases that they dealt with were followed after passing of Madras Agriculture Debt Relief Act.
4. He became the first Tamil person to reach at the post of Chief Justice of India.
3.
Mehr Chand Mahajan – 4 January 1954 to 22 December 1954 (until he got retired from the post)
Justice Mahajan was appointed by the President of India of that time who was a very famous man or the lawyer of that time. He is Dr. Rajendra Prasad and he appointed Mehr Chand as the third Chief Justice of India.
This man was elected as the Chief Justice of India from the Punjab and Haryana Bar.
The Radcliff Commission, who have decided the boundaries of India and Pakistan welcome him as the nominee of Indian National Congress.
During the rule of Maharaja Hari Singh, Mehr Chand became the Prime Minister of Jammu & Kashmir and in the accession of Jammu and Kashmir to India he also played a key role.
After the independence of India Mehr Chand served as the first Judge of Supreme Court from 4 October, 1948 to 3 January, 1954.
4.
Bijan Kumar Mukherjea
(23 December, 1954 to 31 January, 1956)
Bijan Kumar Mukherjea became the fourth Chief Justice of India and he took his oath under the office of Dr. Rajendra Prasad who was the President of India at that time.
Calcutta High Court Bar gave his name for the post of Chief Justice of India and he was elected as the CJI
Initially, Bijan joined the Calcutta bar as a Junior Government Pleader in 1914 and after that he was appointed as the Senior Government pleader in 1934 then he appointed at the post of Judge in 1396 at the Calcutta High Court.
Bengal Boundary Commission has also made him as its member.
5.
Sudhi Ranjan Das
(1 February, 1956 to 30 September, 1959)
Justice Sudhi Ranjan Das was appointed as fifth Chief Justice of India and took the oath for his office under the First President of India Dr. Rajendra Prasad.
In 1942 he was appointed at the post Additional Judge of Calcutta High Court and then in 1944 he became as the permanent Judge of Calcutta High Court.
He served as the Chief Justice of Punjab High Court for two consecutive years that is from 1949 to 1950.
Before some days of commencement of a new Constitution which has been made by known and intellectual personality of that time, he was appointed at the post of Chief Justice of India in the Supreme Court in 1950.
Before appointing as the Chief Justice of India he had held at the office of Acting Chief Justice of India twice.
He has been at the post of Chief Justice of India for over three years and retire on September 30, 1959.
6.
Bhuvaneshwar Prasad Sinha (1 October, 1959 to 31 January, 1964)
Justice Bhuvaneshwar Prasad Sinha was the Sixth Chief Justice of India appointed from the Patna High Court Bench. He got appointed at this post by the then President of India.
From April 1965 to February 1967 he also served as President of Bharat Scouts and Guides.
From 1922 to 1927 i.e., approx four years he worked as a lawyer in the Patna High Court then from 1927 onwards he worked as an advocate till 1935 during these years he was also lectured at Government Law College, Patna.
He was a member of the Faculty of Law and of the Board Of Examiners in Law in Patna University and also was a member of Banaras Hindu University.
From 1935 to 1939 he worked as a Government Pleader and he was also been at the post of Assistant Government Advocate from 1940 to 1942
He was appointed at the post of Judge of Patna High Court and serve this office from 1943 to 1951, then he was appointed as the Chief Justice of Nagpur High Court and serve this office from 1951 to 1954.
After that in 1954 he was appointed as a Judge of the Supreme Court and serve at this post for six years then after that he was elevated at the post of Chief Justice of India and on 31st january 1964 he got retired from this post.
7.
P. B. Gajendragadkar
(1 February 1964- 15 March 1966)
Justice P. B. Gajendragadkar served as the seventh Chief Justice of India hold his office under the presidentship of Sarvepalli Radhakrishnan who was elected as the second President of India. On the birthday of this president we celebrate teachers day.
From Bombay High Court Bar and Bench he was elected at the post of Chief Justice of India.
He served as the Judge of Bombay High Court for twelve years from 1945 to 1957 and after that he got appointed as a Judge of the Supreme Court of India in 1957. Then he got elevated from the post of judge and became Chief Justice of India.
He became Vice Chancellor of the University of Mumbai in 1961 after his retirement from the post of Chief Justice of India.
He was the awardee of Padma Vibhushan which he got from the Government of India.
8.
Amal Kumar Sarkar
(16 March 1966- 29 June 1966)
Justice Amal Kumar Sarkar was the eighth Chief Justice of India who held this office after he got elected from the Bar and Bench of the Calcutta High Court. He took the oath of his office under the presidentship of Dr. Sarvepalli Radhakrishnan
In his initial stage he started as a practice advocate and joined the Calcutta High Court to practice.
After that he became a Judge of the Calcutta High Court in 1949 and till march 1957 he went on to practise.
9.
Koka Subba Rao
(30 June 1966 to 11 June 1967)
Justice Koka Subba Rao was ninth Chief Justice in the list of the Supreme Court judge to hold this office of Chief Justice of India.
He was appointed at the office of Chief Justice of India by the then President of India Dr. Sarvepalli Radhakrishnan. He was got elevated at this from the Bar Council of the Madras High Court.
Initially, he was appointed as a District Munsif in Bapatla, a small district of Guntur.
He was appointed as the first Chancellor of Sri Venkateswara University and he remained at the position of Chancellor until the University Act has not been amended. After this amendment other person had succeeded him at the post of Chancellor.
He became a Judge in the Supreme Court after 31 January 1958. Before this post he was holding the office of Judge as well as Chief Justice in the Madras High Court.
In his most famous case of Golaknath v. State Of Punjab, he had given the judgement that Fundamental rights which we have got from the Constitution of India cannot be amended.
Judgment: (i) If the Article 245, 246, and 248 read with entry 97 of the List 1 then the power to amend the Constitution is found in Article 368. (ii) The fundamental rights that are guaranteed under Part III of the Constitution can not be taken away or bridge through this amendment. (iii) the amending law is also a law within the meaning of Article 13(2) of the Indian Constitution,
The theory in the judgment was overruled by the Doctrine Of Prospective, the decision given by him will have the only possible operation and there is no rights conferred on the Parliament to abridge Fundamental Rights from the date of Judgement.
10.
Kailas Nath Wanchoo (12 April 1967 to 24 February 1968)
Justice Kailas Nath Wanchoo was the tenth Chief Justice of India who was appointed by the President Dr. Sarvepalli Radhakrishnan. He was elevated to the post of Chief Justice of India from the Bar of Allahabad High Court.
He was appointed at the post of judge in Allahabad High Court and holds the office from February 1947 to January 1951. After that he was appointed as the Chief Justice of the Rajasthan High Court and serve the office from 1951 to 1958.
He had also held various positions. He was holding the position of Chairman in Uttar Pradesh Judicial Reform Committee Chairman from 1950 to 1951. In Indore Firing Inquiry Commission he was appointed as a sole member in 1954. He became the Law Commission Member in the year 1955 and also became the chairman of the commission that was made in the Dholpur Succession Case in the year 1955.
Kailash Wanchoo with Justice K Subbarao have also delivered Judgement in the case of Golaknath as a Judge.
11.
Mohammad Hidayatullah
(12 April 1967- 24 February 1968)
Hidayatullah was considered as one man army who was having many skills such as he is regarded as an eminent jurist, lawyer, scholar, educationist, author and linguist person.
Mohammad Hidayatullah was the eleventh Chief Justice of India and was appointed by Zakir Hussain at this post who was the third President of India. He was elevated at this post from the Bar of Bombay High Court.
He was also served the office Vice-President of India by becoming sixth Vice President of India and served from 31 August 1979 to 30 August 1984. He had also held the post of acting President of India twice from 20 July 1969 to 24 August 1969 and from 6 October 1982 to 31 October 1982.
He has given a number of landmark Judgements after becoming part of the Supreme Court for a long tenure. His has given judgment for the two most famous case i.e., Golaknath and Ranjit D. Udeshi. These cases which dealt with the law of obscenity had displayed a flair for literature which was not so common among judges in that time.
In 2003, a law university was established in his hometown, Raipur whose name was Hidayatullah National Law University and a national moot is organized by Chhattisgarh University every year in Chhattisgarh in his memory known as ‘Justice Hidayatullah Memorial National Moot Court Competition’.
He was honored with various awards and had also written many books.
He was a member of various committees, councils, and trust etc. for example in Nagpur Municipal Committee he was member from 1932 to 1933, as an Academic and Executive Council he became the member of Nagpur University from 1934 to 1953, and he became a member of Nagpur Improvement Trust from 1943 to 1945 in addition to this he also hold a position in Member of Nagpur Bar Council from 1943 to 1946.
He took teaching as a profession in 1935 and taught at University College Of Law until 1943, and after that he served as Dean in the faculty of law, Nagpur University from1949 to 1953. In addition, he also served as Pro-Chancellor in many other University like in Delhi University, Also became Chancellor in Jamia Millia Islamia and Chancellor of Hyderabad University. He had became the president of three big institutions. From 1963 to 1970 he had been at the post of President in the Indian Law Institute, From1968 to 1970 he was appointed at the post of President in the International Law Association and also became President of the Indian Society in International Law from 1969 to 1970.
12.
Jayantilal Chhotalal Shah
(17 December 1970 to 21 January 1971)
Justice Jayantilal Shah was the twelfth Chief Justice of India who served this office from 17 December 1970 to 21 January 1971 and he was appointed by Varahagiri Venkata Giri by the then President of India. He got elevated at the post of Chief Justice of India from Bombay High Court Bar.
There was a Commission set up by the Central Government under the Commission of Inquiry Act 1952 which was headed by Jayantilal Shah after his retirement and this Committee was known as the Shah Committee.
Shah was a practicing lawyer in the court of Allahabad, after that he moved to the Bombay High Court and there he became a judge and serve under the post of Judge for 10 years from 1949, then he was appointed as a Judge of the Supreme Court in October, 1959 and then appointed at the post of Chief Justice of India in December, 1970.
In Gandhi Assassination Case he was also a part of the legal team who prosecuted Nathuram Godse and other defendants.
13.
Sarv Mittra Sikri (22 January 1971 to 25 April 1973)
Justice S.M. Sikri was the thirteenth Chief Justice of India who hold this office and he was appointed at this office by the President V.V. Giri. He was elevated at this post from the Bar of Lahore High Court.
In 1930, from Lahore High Court he started his legal career as a practitioner. Then, he served the office of Assistant Advocate General in Punjab High Court in 1949 and was elevated at the post of Advocate General in the same court in 1951 and serve this office for thirteen years.
In January 1971 he became the Chief Justice of India before appointment of this post to him he served as the Judge of the Supreme Court of India.
Landmark Judgement: He had given judgment in famous case of Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr. Justice S. M. Sikri has also fought for the freedom of the individual and also held that this freedom needs to be preserved. The Fundamental Rights that is given in Part III of the Constitution of India cannot be taken by anyone, though there were some reasonable consideration of those rights and these could be affected. He laid down the principle of ‘Doctrine of Basic Structure’ which stated that if any amendment is to be done in the Constitution then it should follow the basic objectives of the Constitution and this basic structure could not be harmed.
14.
Ajit Nath Ray
(26 April 1973 to 27 January 1977)
He was the fourteenth Chief Justice of India and was appointed by the President V.V. Giri. He was appointed to this post from the Bar of Calcutta High Court.
A.N Ray appointment day as Chief Justice of India was called as the blackest day in Indian democracy because his appointment was the most controversial one as this appointment has done after superseding the three senior-most Judges. The protest against the appointment of A.N Ray at the post of Chief Justice of India continued for many months.
15.
Mirza Hameedullah Beg (28 January 1977 to 21 February 1978)
He was the fifteen Chief Justice of India appointed by the then President of India Fakhruddin Ali Ahmed. He was elevated to the post of Chief Justice of India from the Bar of Allahabad High Court.
Before his appointment at the post of the Chief Justice of India, he served as the Chief Justice of Himachal Pradesh High Court in January 1971.
Landmark Judgement: (i) In case of Habeas Corpus M.H. Beg was also involved. After that Beg had also served as the chairman of the Minorities Commission of India from 1981 to 1988.
16.
Yeshwant Vishnu Chandrachud
(22 February 1978- 11 July 1985)
Justice Y V Chandrachud was the sixteenth Chief Justice of India and was appointed by the President Neelam Sanjiva Reddy. He was elevated to the post of Chief Justice of India from the Bar of Bombay High Court.
Notable Judgement: (i) He has given judgment in a famous case of Habeas Corpus during Emergency period from 1975 to 1977 at the time of Indira Gandhi.
(ii) Minerva Mills Case, earlier this case there was no classification in the interpretation of Doctrine of Basic Structure but through this case now the SC provided clarification on the interpretation of Doctrine of Basic Structure. The Parliament has no power to exercise its limit beyond the constitution.
(iii) Shah Bano Case, in this case the Supreme Court invoked a provision of CrPC in the year 1973 because they wanted an order to be secular for maintenance compensation to those Muslim women who have been divorced. Due to this case the government of Rajiv Gandhi had to pass Muslim Women Act, 1986 with a great majority.
17.
Prafullachandra Natwarlal Bhagwati
(12 July 1975 to 20 December 1986)
Justice Bhagwati was appointed as the seventeenth Chief Justice of India by the President Gyani Zail Singha and was elevated at the post of Chief Justice of India from the Gujarat High Court.
He along with Justice Krishna J. Iyer was the person behind the introduction of Judicial Activism or they can be called as the pioneer of Judicial Activism because the concept of Public Interest Litigation and Absolute Liability in India that was introduced by him somewhat related to Judicial Activism or it can be also said that these are the roots of Judicial Activism.
He was appointed at the post of Judge in Gujarat High Court Judge in the year 1960 and was elevated at the post of Chief Justice of the Gujarat High Court in 1967. He was also appointed at the post of Governor in Gujarat. He was appointed as judge of Supreme Court in 1973 and got elevated at the post of Chief Justice of India after some time.
Notable Judgement: (i) During the emergency period he faced criticism by giving judgment in ADM Jabalpur v. Shivkant Shukla case. He supported the Government of Indira Gandhi which was opposed by the people and also Justice Hans Raj.
(ii) Maneka Gandhi v. Union of India: In this case Maneka Gandhi was requested to return passport within seven days in “public interest” from a Regional Passport Office through an official letter. Maneka Gandhi filed a writ petition in the Supreme Court under Article 21 of the Constitution of India which says that no person is deprived of the right to life and personal liberty.
18.
Raghunandan Swarup Pathak
(21 December to 18 June 1989)
He was appointed as the eighteenth Chief Justice of India under this office by the President Gyani Zail Singh and was elevated at this post from the Bar of Allahabad High Court.
He was one of the Judge among the four judges of India who have been appointed in the International Court of Justice in the Hague.
In 1962 he was appointed at the office of Judge in Allahabad High Court, then in 1972 he became the Chief Justice of the Himachal Pradesh Court, and in the year 1978 he became the Judge of Supreme Court 1978.
He was appointed as a judge to hear the case of Bhopal Gas Tragedy that took place in the year 1984. He made settlement between the Government of India and Union Carbide Corporation after the british judge has refer this case to the Indian Court.
19.
Engalaguppe Seetharamaiah Venkataramani
(19 June 1989 to 25 September 1990)
He was appointed as the nineteenth Chief Justice of India by the President Venkataraman and was earlier working in the Karnataka High Court Bar and got elevated to the post of Chief Justice of India.
He was appointed as the Judge of Karnataka High Court in 1970, after that he became the Judge of Supreme Court and also became the first person to be elected from Karnataka at the post of Chief Justice of India.
The Collegium of Judges have nominated him for the post of CJI.
20.
Sabyasachi Mukherjee
(18 December 1989 to 25 September 1990)
Sabyasachi Mukherjee was appointed as twentieth Chief Justice of India by the President of India Shri. Venkataraman and got elected at this post from the Calcutta High Court.
In 1963 he served as acting Chief Justice of Calcutta High Court.
He also became a member of the 8th Finance Commission and worked for it.
21.
Ranganath Misra (26 September 1990 to 24 November 1991)
Justice Ranganath Misra was the twenty-first Chief Justice of India appointed by the then President of India Shri Venkataraman and got elevated at this position from the Bar of Odisha High Court.
He was appointed as Governor of Odisha in 1963 and served this office for three years and also became the first Chairman of the National Human Right Commission.
He was also serve as the acting Chief Justice of the Odisha High Court and later on he became permanent Chief Justice of the Odisha High Court.
He became a judge of the Supreme Court of India in the Year 1983 and became Chief Justice of India later on.
22.
Kamal Narain Singh
(25 November 1991 to 12 December 1991)
He was appointed as twenty-second Chief Justice of India by the then President of India Venkataraman and got elevated at this post from the Bar of Allahabad High Court.
In 1970 he was appointed as Additional Judge of the Allahabad High Court and in the year 1972 he became Permanent Judge of the Allahabad High Court. In 1861 he appointed as a Judge of the Supreme Court of India and later on in the year 1991 he was appointed at the post of Chief Justice of India.
23.
Madhukar Hiralal Kania
(13 December 1991 to 17 November 1992)
Justice Hiralal Kania appointed as twenty-third Chief Justice of India by the President of India Shri Venkataraman and was elevated at this post from the Bombay High Court.
He was appointed as Judge of the Bombay High Court in 1971, and appointed as the Judge of Supreme Court in 1987 and served on this post for four years. Later on, in the year 1991 he became the Chief Justice of India.
24.
Lalit Mohan Sharma
(18 November to 11 February 1993)
Lalit Mohan Sharma was appointed as the twenty-fourth Chief Justice of India and was appointed by the then President of India Shri Shankar Dayal. He got elevated at this post from the Bar of Patna High Court.
He became a judge of the Patna High Court in the year 1973 and serving at this post for fourteen years he was appointed as a judge of the Supreme Court of India in the year 1987.
25.
Manepalli Narayana Rao Venkatachaliah
(12 February 1993 to 24 October 1994)
Justice Narayana Rao Venkatachaliah was the twenty-fifth Chief Justice of India and appointed at this post by the then President of India Shri Shankar Dayal. He got elevated to the post of CJI from THE Bar of Karnataka High Court.
He was bestowed many honored like Padma Vibhushan given by the Government of India, and many Doctorate degree from the University known as Rani Channamma University such as Doctor of letters, Doctor of Laws and Honorary Doctorate.
He served as the chairman of National Human Rights Commission and headed National Commission for reviewing the working of the constitution.
He was appointed as permanent Judge of Karnataka High Court and then in 1987 was elevated as Judge of SC.
26.
Aziz Mushabber Ahmadi
(25 October 1994 to 24 March 1997)
Justice Aziz Mushabber Ahmadi was appointed by the President of India named Shankar Dayal Sharma at the post of Chief Justice of India and was twenty-sixth CJI. He was elevated to the post of CJI from the Bar of Gujarat High Court.
He served as the Chancellor of Aligarh Muslim University and also been appointed at the post of Judge at the Gujarat High Court. Later on, in 1988 he was appointed as a Judge of the Supreme Court of India.
In 1995 he has attain Foreign recognition and became a member of the American Inn of Laws, He was nominated for various International Committees such as Committees on Human Rights Violation in East Timor, Committee to assist the Judiciary in Liberia and got a degree in Doctor of Laws conferred by a recognized University in England.
27.
Jagdish Sharan Verma
(25 March 1997 to 17 January 1998)
Justice Jagdish Sharan Verma was appointed as twenty-seventh Chief Justice of India by the then President of India Shri Shankar Dayal Sharma. He was elected at this post from the Bar of Madhya Pradesh High Court.
In June 1972 he was appointed as the Judge of Madhya Pradesh High Court and also in September 1986 he served as Chief Justice of the Rajasthan High Court. Also acted or worked at the office of Governor of Rajasthan twice. First time in the year 1986 and second time he serve in the year 1989.
He delivered a judgment regarding the Juvenile that any Juvenile if murder someone then he should be convicted by making a separate Act such as Juvenile Justice Act of 1986 and tried through this Act only.
He was the first judge who rejected the Government’s order of Emergency that had given over Right to life and personal liberty which is incorporated in the Article 21 of the Indian Constitution.
Notable Judgement: (i) K Veeraswami v. UOI: Justice Verma digressed saying that the Parliament as a ‘Public Servant’ had not intended a higher judiciary members. He recognized that corruption should be dealt with appropriate mechanism by joining the members from the Judiciary in that committee.
(iii) Nilabati Behera v. State of Orissa & Ors: Justice Verma argued in this case that a defense in relation to compensation as a remedy to Public Law which the principle of sovereign immunity provide is not acting. He also said that this compensation as a constitutional remedy should be given for violation of Fundamental Rights.
(iv) Jamaat-e-Islami v. Union of India: In this case Justice Verma stated that a necessary subjective judgment can not made by the tribunal. He coined the term ‘greater probabilities’ in his judgment and never explained it.
(v) Other Landmark Cases:-
Hindutva Judgement
Vishakha & others v. State Of Rajasthan
AFSPA Judgement
T N GodavarmanThirumulkpad v. UOI & Ors.
Jain Hawala Case
Second Judge Transfer Case
Ayodhya Judgement:- in this case, SC elaborated meaning of Indian Secularism
S.R Bommai v. Union of India: This case was related to Presidential decree for dissolving Karnataka Legislative Assembly under Art 356(1) of the Emergency Provision of Constitution of India.
28.
Madan Mohan Punchhi
(18 January 1998 to 9 October 1998)
M.M. Punchi was appointed as twenty-eighth Chief Justice of India by the then President of India Kocheril. He was elevated at this post from the Bar of Punjab and Haryana High Court.
In the year 1955 he was appointed as Judge of Punjab and Haryana High Court. In 1982, he was appointed as a judge of the Supreme Court and became Chief Justice of India in the year 1998.
The matters related to centre and state relation was dealt by the Punchhi Committee and this Committee was initiated by the M.M Punchhi, the Chief Justice of India at that.
29.
Adarsh Sein Anand
(10 October 1998 to 31 October 2001)
Adarsh Sein was appointed as twenty-ninth Chief Justice of India by the then President of India Mr. Kocheril. He got elevated at the post of Chief Justice of India from the Bar of Jammu and Kashmir High Court.
On 11th of May 1975 he was appointed as an Additional Judge of Jammu and Kashmir High Court, later on, in November 1, 1985, he was transferred to the Madras High Court.
Notable Judgement: (i) There was a case of Nilabeti Behera which held in 1993, he was appointed as judge in this case and gave his judgment on the right to compensation in case of custodial deaths. This judgment hailed as an important contribution to the protection of the Rights of the Humans.
(ii) In case of D.K Basu, the Rights of Prisoners were safeguarded as Adarsh Sein Anand laid down safeguards against the torture that has been done in the custody to the accused.
(iii) In Judgment of V.C Mishra Case, the Chairman of the Bar Council of India was initially sentenced by the Supreme Court of India for the Contempt of Court and after that he was suspended from practicing.
30.
Sam Piroj Bharucha
(1 November 2001 to 5 May 2002)
Justice Sam Piroj Bharucha the thirtieth Chief Justice of India was appointed by the President K.R Narayan. He was elected at this post from the Bar of Bombay High Court.
In 1960 he started practising as an advocate in the Bombay High Court, after that in 1977 he became an Additional Judge in the Bombay High Court, and then he was appointed as Chief Justice of Karnataka High Court
He has also delivered many significant legal decisions. He was a member of the Constitutional Panel in 2001 which consisted of five members who delivered a judgment regarding the dismissal of J. Jayalalithaa as the Chief Minister of Tamil Nadu. Till date, this was the first and only dismissal of a Chief Minister.
31.
Bhupinder Nath Kirpal
(6 May 2002 to 7 November 2002)
Justice Bhupinder was the thirty-first Chief Justice of India appointed at this office by the then President of India K.R. Narayan. He was elevated at this post from the Bar of Delhi High Court.
In the year of 1962 he practised as an advocate in the Delhi High Court, then after that he was appointed as a Judge in Delhi High Court in 1979 and serve this post from November 1979 to December 1993, and in 1993 he was appointed as the Chief Justice of Gujarat High Court then later on he became the Chief Justice of India.
After retirement he remained at the post of President of the Indian Forest Commission.
32.
Gopal Ballav Pattanaik
(8 November 2002 to 18 December 2002)
Justice Gopal Pattanaik was the thirty-second Chief Justice of India and was appointed by the Missile Man of India who was also at the post of President of India at that time, he was none other than Dr. A.P.J Abdul Kalam. He was elevated at this post from the Bar of Odisha High Court.
He enrolled as an advocate in Odisha High Court in 1962 and practised there until he became a counsel for the Government of Odisha in the year 1971. In 1974 he became Additional Advocate General and later on he became Advocate General.
He became a permanent Judge of The Patna High Court in 1983 and in 1995 he was appointed as Chief Justice of the Patna High Court.
During his judicial tenure he made many allegations against members of the higher judiciary for misconduct.
Landmark Judgment: (i) he has also given the judgment in the Narmada Dam Project (where SC gave clearance that they can increase the height of the and and also for certifying rehabilitation).
(ii) He denied giving permission to the Central Government of India through which the government was going to grant permission to Hindu organization to perform ceremonies at the Babri Masjid which was disputed site in Ayodhya.
(iii) A landmark judgment in the Daniel Latifi v. Union of India, 2001. Justice Pattnaik held that the liability arises against the Muslim husbands to pay maintenance to his divorced wife under Section 3(1) of the Act. This judgment upheld the right of Muslim women in India.
33.
V.N. Khare
(19 December 2002 to 1 May 2004)
He was thirty-third Chief Justice of India appointed under the office of the President of India Dr. Abdul Kalam. He was elected at this post from the Bar of Allahabad High Court.
He was appointed as Chief Standing Counsel for Government of Uttar Pradesh, on 25 June 1983, and after that he was appointed as a Judge of Allahabad High Court. Later on, in 1996, he was appointed as the Chief Justice of Calcutta High Court.
In 1975 Khare represented the Prime Minister of India Smt. Indira Gandhi in her case against Raj Narain for alleging electoral malpractice during the emergency.
Gujarat Violence after the Godhra train burning incident was a failure of his justice system. His Best Bakery Case was reopened and later in 2012 he gave an interview giving details of this case.
34.
S. Rajendra Babu
(2 May 2004 to 31 May 2004)
He was thirty-fourth Chief Justice of India appointed under the President of India Dr. Abdul Kalam. He was elevated at this post from the Karnataka High Court.
He interpreted the provision of the Muslim Women Act 1986 which talks about the Protection of Rights on Divorce.
He was appointed as Karnataka High Court in February 1988.
35.
Ramesh Chandra Lahoti
(1 June 2004- 31 October 2005)
Justice Lahoti was the thirty-fifth Chief Justice of India appointed by the President of India Dr. Abdul Kalam. He was appointed from the Madhya Pradesh High Court Bar.
In 2004 Justice Lahoti broke the grounds with many of the predecessors stating Indian Judiciary to be clean.
He upheld the population control laws of Haryana which allowed only two children per family. He rejected the argument based on the right to Privacy and religion.
He was appointed as the thirty-sixth Chief Justice of India by the then President of India Dr. A.P.J Abdul Kalam. He was elevated at this post from the Delhi High Court.
He started his legal career as a practising advocate for the Delhi administration. He had also represented Delhi in the Bar Council of India. In November 1986 he was appointed at the post of Additional Judge in the Delhi High Court, later in February 1999 he was appointed as the Chief Justice of Bombay High Court.
Notable Judgements: (i) Justice Yogesh Kumar Sabharwal in the year 2005 headed a constitutional bench which held the dissolution of Bihar assembly unconstitutional and paved the way for the fresh election.
(ii) In 2006 Justice Sabharwal had not given relief to the Delhi Sealing Drive because this drive has demolished thousands of constructors across the Delhi.
(iii) If any cases violates the Fundamental Rights under the ninth schedule then the cases will be an open challenge in the court. This judgement was held by nine judge constitutional bench in 2007 which also include the Chief Justice Yogesh Kumar Sabharwal.
37.
K.G Balakrishna
(14 January 2007 to 12 May 2010)
Balakrishna was the thirty-seventh Chief Justice of India appointed by the then President of India Dr. A.P.J Abdul Kalam. He was elevated at this post from the Kerala High Court.
On 7th of July 2010, he was appointed as the Chairperson of the National Human Right Commission and also he was the first person to appoint at the post of Chief Justice of India from the Bar of the Kerala High Court.
He was appointed as judge of Kerala District Court in the year 1997 and after that he was transferred to Gujarat High Court and he was appointed at the post of Chief Justice of Gujarat High Court in 1999.
He had been at the post of Governor of Gujarat for a few months and also as the general council of the Gujarat National Law University.
Notable Judgement: (i) There was an incident of Hartal by the political parties on the judgment of Kerala High Court. He was the man who abolished that Hartal.
(iii) In 2010 Narco Analysis in the interrogations were abolished by him. He was also the part of the Supreme Court bench in Lalu Yadav’s Case.
38.
S.H. Kapadia
(12 May 2010 to 28 September 2012)
He was the thirty-eighth Chief Justice of India appointed under the office of first female President Pratibha Patil. He was elected at this post from the Bombay High Court.
In 1993 he was appointed as a permanent Judge of the Bombay High Court, and later on, in 2003 he became Chief Justice of Uttarakhand High Court.
Notable Judgement: (i) his judgment on quashing the appointment of Central Vigilance Commissioner made severe embarrassment for the government and also apologization of the error in the appointment by PM Manmohan Singh.
(ii) He had given a dissented judgment in the case of Lalu Prasad Yadav’s Bail cancellation under income tax appellate tribunal order.
39.
Altamas Kabir
(29 September 2012 to 18 July 2013)
He was the thirty-ninth Chief Justice of India appointed by the then President of India Pranab Mukherjee. He was elevated at this post from the Calcutta High Court.
On 14 January 2010 he was appointed as an executive chairman of NALSA.
He was also appointed as a Judge in the Jharkhand High Court and then became Chief Justice of India.
Landmark Judgement:– (i) He also laid down his judgment in the Domestic Violence Act. Earlier through this Act husband relatives were not be liable for the crime but now they will be liable for the crime.
(ii) His landmark judgement was that to end Haj Subsidy by the year 2022.
(iii) He granted bail to Syed Mohammed Ahmed Kazmi, who was a journalist and was arrested for alleged involvement in vehicle blast at Israeli Embassy.
40.
P. Sathasivam(19 July 2013 to 26 April 2014)
When he became Chief Justice he was already holding the post of Governor of Kerala in office since 2014.
He was fortieth Chief Justice of India appointed under the office of President Pranab Mukherjee. He was elevated at this post from the Bar of Madras High Court.
He was the second Judge from Tamil Nadu to become Chief Justice of India and also the first Judge of Supreme Court to be appointed as a Governor of a State.
He started his legal career as a practising advocate in Madras High Court, after that he was appointed as the Additional Government Pleader in the Madras High Court and then hold a position of Special Government Pleader.
He became a permanent Judge in Madras High Court on 8 January 1996 and later on, in 2007 he was transferred to Punjab and Haryana High Court.
He was also appointed as the Chairman of the General Council of the Gujarat National Law University.
Notable Judgement By P. Sathasivam: (i) In 2010 he had given judgment in Reliance Gas Judgment, in this case he highlighted the use of natural resources through public sector undertakings.
(ii) He also held Triple Murder Case in which he upheld the conviction of Dara Singh.
(iii) He also delivered judgment on Jessica Lal Murder Case on 29 April 1999.
(iv) He also delivered judgment on the Mumbai Blast case and sentenced Sanjay Dutt imprisonment for five years.
41.
Rajendra Mal Lodha
(27 April 2014 to 27 September 2014)
Justice Lodha was the forty-one Chief Justice of India appointed by President Pranab Mukherjee. He was elected from Rajasthan High Court Bar.
He served as Chief Justice of Patna High Court and also appointed as the Judge in Rajasthan High Court and Bombay High Court.
Justice Lodha headed a committee in Supreme Court on 14 July 2015 and also suspended the owners of Rajasthan Royals and Chennai Super Kings from IPL tournament for two years for involvement in betting.
He started his career from Jodhpur Bar Council of Rajasthan in February 1973 and later on moved to Jaipur in 1977. And in 1990 he was appointed as Central Government counsel at the Rajasthan High Court.
42.
H.L. Dattu
(28 September 2014 to 2nd December 2015)
Justice HandyalaLakshminarayanaswamy Dattu was forty-second Chief Justice Of India was appointed under the office of President of India Pranab Mukherjee. He was appointed as the Chief Justice of India or elevated at this post from the Bar of Karnataka High Court.
He also served as Chief Justice of Kerala High Court and Chhattisgarh High Court, and he was also appointed as the Chairman of National Human Rights Commission and serve this office for a long time.
In 1995 Dattu was appointed as the Judge of the Karnataka High Court.
In February 2014, Dattu was nominated by Chief Justice of India P Sathasivam as a nominee to five-member panel to appoint Lokpal.
Justice Dattu was part of two highlighted Controversy, (i) he was charged up for corruption. (ii) Justice Dattu was also involved in 2G Spectrum case.. 2G Spectrum was a scam by the politicians and government officials which was alleged under the United Progressive Alliance Government.
43.
T.S. Thakur
(3 December 2015 to 3 January 2017)
Justice T.S Thakur was the forty-third Chief Justice Of India appointed under the office by the then President of India Pranab Mukherjee. He was appointed to this post from the Bar of Jammu and Kashmir High Court.
He was a former Governor of Assam and later in 1990 he was appointed as the Judge of Jammu and Kashmir High Court, he has also been at the post of Senior Advocate in the Jammu and Kashmir High Court. He was also appointed as Additional Judge of Jammu & Kashmir on 16 February 1994 and upgraded as Judge to the Karnataka High Court in March 1994. Again in July 2004, he was transferred to Delhi High Court as Judge and in 2009 he was appointed at the position of Chief Justice of Punjab and Haryana.
44.
Jagdish Singh Khehar
(13 September 2011 to 27 August 2017)
Justice Jagdish Singh Khehar Ahluwalia was the forty-fourth Chief Justice of India and was the first to be appointed as CJI from Sikh Community. He was appointed by the then President of India Pranab Mukherjee.
His Landmark Judgement were given in the case of Triple Talaq and Right to Privacy.
Some of the notable Judgement By J S Khehar:
(i) Justice Kehar led the five-judge constitution bench in case of S.C Advocates on Record v. Union of India, this case was also known as the second judges case through which the Collegium System continued and quashed NJAC Act and declared 99th Amendment unconstitutional.
(ii) In case of Nabam Rebia & Bamang Felix Deputy speaker & others, Justice Khehar headed a historic judgment that held action against Governor for violation of the Constitution and reinstalled Arunachal Pradesh Government.
(iv) In the case of State of Punjab v. Jagjit Singh, Justice Khehar gave a significant verdict which was applicable to those who engaged in daily wagers. This verdict was on the ‘Equal pay for Equal work’.
(v) Justice Khehar was also a member of the bench in case of Sahara Chief Subrata Roy.
(vi) Justice Khehar upheld the practice of validity of Triple-Talaq, it was in the ratio of 3:2 majority.
45.
Dipak Misra
(28 August 2017 to 2 October 2018)
Justice Misra was the forty-fifth Chief Justice of India appointed by President Ram Nath Kovind, he was elevated at this post from the Odisha High Court Bar.
Before the appointment of him as CJI he was the Chief Justice of Patna and Delhi High Court.
He started his career as a practicing lawyer in the Odisha High Court, then in 1996 he was appointed as an Additional Judge at the Odisha High Court, later on he was transferred to Madhya Pradesh High Court where he became permanent judge. In December 2009 he became Chief Justice of Patna.
Justice Misra has served this post till 2 October 2018.
Most notable Judgement by Justice Misra:
(i) Justice Misra upheld the constitutionality of criminal defamation. He was part of seven benches of Supreme Court in case of justice C.S. Karnan of Calcutta High Court on whom the contempt of court accusation was filed and sentenced him for six months.
(ii)His landmark Judgement was confirming death penalty to the four convicts in Nirbhaya Case.
(iii) In the case, on Reservation in Promotion, Allahabad High Court judgment was upheld by Justice Misra and Justice Dalveer on the reservation in promotion only if there exists sufficient data and evidence is present to justify the need and the bench rejected the Uttar Pradesh Government decision to provide reservation on the grounds that it failed to furnish sufficient valid data.
(iv) In Case of Own Motion v. State, Justice Misra delivered judgment where Delhi Police has to upload FIR (First Information Report) on their website within 24hrs so that the accused can file appropriate application before the court for redressal.
(v) In 2016, he headed a bench of the Supreme Court that made mandatory playing of the National Anthem in Cinema Hall.
(vi) He deliver a judgment making Section 497 of the IPC unconstitutional.
(vii) The 1965 rule of the Kerala Government that legally stopped women to enter in the Sabarimala Temple was declared unconstitutional by the Supreme Court which was headed by Chief Justice Dipak Misra.
(viii) One of the last judgments of Dipak Misra was live streaming of the proceedings of the Supreme Court. Misra also held that this would bring transparency in the judicial proceedings and accountability to the judicial process. It is a step towards the public interest.
6. The two big controversies that ruins the the Justice Dipak Misra tenure as CJI. These are: (a) The Medical Council of India scam; and (b) Master of the Roaster case after the four senior judge of the Supreme Court held the press conference.
46.
Ranjan Gogoi
(3 October 2018 – incumbent)
He is the 46th Chief Justice of India.
First Chief Justice of India from the NorthEast region.
He is one of those judges who criticise the previous Chief Justice of India, Dipak Misra in the press conference.
A Supreme Court judgment that prohibits photographs of top politicians, other than the Prime Minister, President and Chief Justice, from featuring in government advertisements was headed by Chief Justice Ranjan Gogoi and this judgment was partially ruled.
When Markandey Katju showed great displeasure from the judgment made by CJI Ranjan Gogoi in the case of Saumya rape and Murder case. Katju was served with the Contempt of Court notice by Ranjan Gogoi. But after the apology made by Katju in written, Gogoi has taken back his notice.
Justice Gogoi as a member of the judicial bench send Justice Karnan of High Court to jail for contempt of court.
Justice Ranjan Gogoi is the main behind the updation of National Register of Citizens in Assam that aimed to tackle the grave issue of illegal infiltration.
In 2019 Gogoi was accused of sexual harassment by a former Supreme Court employee. Later on he was given a clean chit.
Conclusion
In a democratic country, the appointment of judges is exclusively in the hands of the judiciary. It doesn’t mean that the judiciary is free from any bounding for the appointment of judges. If the judiciary was free from any type of intervention it will misuse that power and transparency of the judiciary will not been left with any meaning. In starting we came to know about why there need of judiciary arises and how the system of providing justice to the public changes with the change in the government. Initially, the justice was provided by an individual legally authorized body and it was partial in nature but nowadays, our judiciary provide or guarantee the rights of each and every citizen. After that we came to know about the establishment of a Supreme Court in 1950, which is the supreme authority in providing justice to people.
Days passes but still many people were not knowing how the main judge, whom we say as the Chief Justice of India and judges of the Supreme Court appointed. This has been known after the Collegium system introduced in India from the Second Judges case and the Third Judges case. These cases shows that who will appoint the judges. Next, after much debate and discussion on this topic the government has passed an act called NJAC act in which the executive interference has also been included but then in 2015, this NJAC has been considered as unconstitutional and void by the Supreme Court.
We also came to know about how the judges of the Supreme Court and the High Court was removed from his post. It also required majority of both houses of the parliament. Some judges have been impeached also. These are Justice V. Ramaswamy and Justice Soumitra Sen. Before they could impeached they have resign from their post.
Some of the most important power have been given to Chief Justice of India through Constitution as well as through judicial proceeding or the judgement. One of those powers is of Master of Roaster which includes three things. Firstly, the power to establish the bench to hear any case. Secondly, the power to choose which judge would hear which case and also when he hear that case. Thirdly, it is the exclusive domain of Chief Justice of India to be as the Master of the Raster. After critical analysis of the office of Chief Justice of India it can be concluded that there are many cases pending in the Supreme Court or the High Court or the Ground Level Court and the CJI has to look into this matter to decide various pending cases by making many arbitration decisions. Various petitions filed by the advocate for trying their luck were rejected and put in for pending case. Lastly, every Chief Justice of India has done something great in their life that is why they have sat on that place.
This article is written by Akash R. Goswami, student of the faculty of law, Aligarh Muslim University. In this article, he has done a complete analysis of the Dying Declaration with relevant Case Laws.
Introduction
Whenever any offence has been committed, there is always the two persons, who voraciously knew what actually happened i.e. the Accused, who commit the offence and the other one is Victim, with whom offence had been committed.
In order to prove their positions, and make one’s story to be true, they give Statements to judge but their story one can not rely on the veracity of statements which they made to support their stories, as it may be prejudiced or untrue so generally, the role of Witness becomes crucial to determine the truth.
But there is a condition when the statement made by the person to be treated as true evidence in spite of the fact that he made the statement in his own favour and hardly any doubt behind the reason for that statement. That condition is Dying Declaration.
Dying Declaration is a statement made by the person while he was dying and states the reason for his death. The statement given by the dying person can be circumstantial or tells the cause for his death. Hence, the only statement given just before the death of a person is called Dying Declaration. The person who is conscious of Compos Mentis and knows that death is about to happen can make a declaration and state the cause of his death and that statement will be Admissible and treated as Evidence in the Court. Declaration made by the deceased person can be in oral, written and by conduct. The word Dying Declaration explain the word itself.
Definition
In Section 32 (1) of Indian Evidence Act defines when the statement is made by the person as the cause of his death, or as any of the circumstances of the transaction which resulted in his loss of life, in cases in which the cause of that person’s death comes into question. Such statements made by the person are relevant whether the person who made them was alive or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
The statement made by the deceased person will be treated as Evidence and Admissible in a Court of law. The reason behind this can be followed by Latin maximNemo Mariturus Presumuntur Mentri which means that “Man Will Not Meet His Maker With Lying On His Mouth. More precisely in our Indian law, it is the fact that the dying man can never lie or Truth sits on the lips of dying man. Hence, the Dying Declaration is Admissible and considered as Evidence in Court, and can be used as a weapon to punish the culprit.
Types of Dying Declaration
There is no particular form to be employed in making the Dying Declaration. it can be Oral, Written, Gestures & Signs, Thumb impression, Incomplete and can also be in the form of Question Answer. However, there must be a distinct and definite assertion on the part of the person who produces the statement. Possibly the declaration should be in written form in the exact words stated by the person who made the statement. When a magistrate records the dying declaration, then it should be in Question-Answer form as the magistrate will opt the maximum information rightly, as in some cases dying declaration becomes the sole way to help in the conviction of the accused.
Let us discuss some of the types in the elaborative form:
Gesture and Signs
In the case of Queen-Empress v. Abdullah[1] the appellant was charged with the offence of murder before the court of session. That he had murdered one DULARI, a prostitute by cutting her throat through RAZOR. It seems that one-morning dulari with her throat cut was taken to the police station and from there to the dispensary. She was alive till the morning. The post-mortem report shows that the windpipe and the anterior wall of the gullet had been cut through. When Dulari was taken to the police station, she was questioned by her mother in the presence of a sub-inspector. She was again questioned by the sub-inspector, deputy magistrate and subsequently by the assistant surgeon.
She was unable to speak but conscious and able to make gestures and signs. Magistrate asked dulari, as who had wounded her, but due to the injured condition dulari was unable to speak. After that, The magistrate mentioned several names one by one and asked if they had wounded her. Dulari moves her hand forward and backwards and made negative and affirmative signs. Subsequently, the magistrate asked whether Abdullah had wounded her, for that dulari waved her hand made the sign in the affirmative, the magistrate recorded the statement. After that question was put to her that if she been wounded with a knife or sword. In this regard, dulari makes a negative sign, again magistrate asked her if she had been wounded with the RAZOR. She in answer to this made an affirmative sign.
In this way, the magistrate records the dying declaration of Dulari and the same was accepted as evidence to prosecute Abdullah.
Similarly, in the recent “Nirbhaya’s Rape Case,” Dying Declaration was made by her in the form of sign and gesture.
The dying declarations made by Nirbhaya were recorded.
The first declaration was recorded by the doctor when she was admitted in the hospital on the night of December 16, 2012 and the second on December 21 by the sub-divisional magistrate during which she gave exact details of the mishappening.
The third declaration was recorded by the metropolitan magistrate on December 25 and was mostly by gestures. The bench said that as far as the third dying declaration is concerned, this court has already held that the dying declaration made through signs, gestures or by nods are admissible as evidence.
Oral and written
When the person gives the name of the murderer to a person present and written by any of them then it is a relevant dying declaration. However, people may dispose of the name of the mugger orally.
An oral dying declaration is admissible in evidence as an exception to the general rule of evidence that hereby evidence is no evidence in the eyes of law. The oral dying declaration made before his wife, father-in-law and other near relatives were made in the conscious state.
In the case of Amar Singh v. State Of Rajasthan[2]. The deceased’s mother and brother gave the evidence, that the deceased made the statement month prior to the incident of suicide by her that the appellant, her husband used to taunt the deceased saying that she had come from a hunger house and the appellant himself go to the house of deceased and asked for 10.000/-. It was held that the dying declaration and appellant were convicted under section 304B and 498A of IPC. The Court referred to Pakala Narain Swamy v. Emperor[3]. in which Lord Atkin: held that the circumstances of the transaction which resulted in the death of the declarant will be admissible if such transaction has some proximate effect.
Incomplete Dying Declaration
Dying declaration made by the person, which is found to be incomplete can not be admissible as evidence. When the condition of the deceased is grave and at his own request a statement made by him in the presence of the doctor was later taken by the police but could not be completed as the deceased fell into a coma from which he could not recover. It was held that the dying declaration was not admissible in court as the declaration appears to be incomplete on the face of it. But the statement, though it is incomplete in the sense but conveys the declarant all necessary information or what he wanted to state, yet stated as complete in respect of certain fact then the statement would not be excluded on the ground of its being incomplete.
The deceased stated, “I was going home when I came near the house of Abdul Majid, Sohail shot me from the bush. He ran away. I saw.” this was the dying declaration made by the deceased and further was unable to answer the questions. It was held that there is no question of incompleteness so far as the context of the case is concerned. In the case of Muniappan v. State of Madras[4]. The deceased made the dying declaration as follows :
“Sir,
This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan of kamnav-kurechi stabbed me in my body with a knife.”
Soon the deceased died after the statement. His thumb impression was taken after he was dead. This declaration against Muniappan was complete and admissible.
Question- Answer form
Dying Declaration can be made in the form of Question-answer. the deceased, in some of her statement, did not state the actual part played by the appellant. She merely answered the questions put to her. The court held that when questions are put differently then the answer will also appear to be different. At first glance, the detailed description of the offence may appear to be missing but the statement of the deceased construed reasonably. However, when the magistrate records the dying declaration, it must be preferred to be recorded in the form of a question-answer must be preferred. If there is nothing to doubt that the person who records the statement made by the deceased exact word to word, would not make any difference merely because the same was not recorded in the form of question and answer.
Reason for admitting dying declarations in evidence
A dying declaration is admitted in evidence that is truly based on the principle of “Nemo moriturns proesumitur mentiri (man will not meet his maker with a lie in his mouth). Dying declaration does not require any corroboration as long as it creates confidence in the mind of the Court and free from any form of tutoring. In case Uka Ram v. State of Rajasthan[5]. Court held that dying declaration is admitted upon consideration is made in extremity; when the maker of the statement is at his bed end, every hope of this world is gone; and every motive of falsehood is silenced and mind induced to speak only truth. Indian law recognises this fact that “a dying man seldom lies”.
Fitness of the declarant should be examined
At the time of giving a declaration, the person who’s making the statement must be in a fit state of mind. If the court has the slightest doubt about the mental soundness of the maker of dying declaration, it is unsafe and unfair for the base on such a statement.
The mere fact that the victim in his dying declaration did not make any reference to injuries received by the accused is not a genuine ground that decides the merit of dying declaration. Where the dying declaration was recorded by the doctor who himself certified that the patient was in a fit condition for giving the statement, his non-mentioning that the patient was in a fit mental condition and throughout remained conscious would be of no consequence. In case State of M.P. v. Dhirendra kumar[6]. The mother-in-law of the deceased was in the position to reach the upstair within 5 to 6 minutes after hearing the cry of the deceased. According to the opinion of the autopsy surgeon, the deceased was able to speak about 10-15 minutes. The Supreme Court did not agree with the view of the High Court that the deceased is not in a position to make the dying declaration, as it was reaffirmed by the autopsy report and circumstances of the case that the deceased was in a fit state of mind to talk when her mother-in-law reached the place where the deceased was dying.
Whereas in the case State of Orissa v. Parasuram Naik[7]. The accused, the husband was alleged that he poured petrol on the body of his wife and lit a fire. Whereof extensive burn injuries were sustained by the deceased wife. It was held that the oral dying declaration to her mother can not be accepted because there was no certificate by medical officer certifying that the deceased was medically fit to make a statement.
It is improper to reject the dying declaration on the ground that the fitness of the maker depends solely on the certificate of the doctor and the magistrate himself did not require independently as to whether the deceased was in a fit state to make a dying declaration.
As in the case of Arvind Kumar v. State of Rajasthan[8]. The accused is charged with an offence under Sections 304B and 498A of IPC. The dying declaration was recorded by Naib-Tahsildar but did not take any certificate from the doctor regarding the fit state of mind of the deceased nor there was any endorsement by the doctor. The doctor testified that the dying declaration was recorded by the reader of Naib-Tahsildar. No preliminary questions were asked from the deceased before recording his statement. The naib-Tahsildar also stated that he did not seal the recorded statement of the deceased and carbon copies provide instead of the original copy of dying declaration of the deceased during cross-examination. The mother of deceased categorically refused to put a signature or thumb impression on dying declaration which showed that the dying declaration made in the hospital room was a lie. All these facts created doubt and truthfulness of dying declaration and held that the alleged dying declaration could not be admissible and reliable document as it suffered from a number of infirmities. However, the accused were convicted on the basis of entire evidence.
In case Dhanraj and other v. State of Maharashtra[9]. The dying declaration was challenged on the ground that no medical certificate was attached to the condition of the deceased. However, the deceased went to the hospital all alone by changing different vehicle in the way. The statement of doctor and magistrate was on record to indicate that the deceased was in a fit state of mind to give a statement. Such circumstances can be used as supporting evidence about the mental condition of the deceased.
When the deceased made a dying declaration and while stating that fell into a coma before completing the statement, it would have a serious effect on his capacity to make such a statement. Certificate of fitness given by the doctor with regard to this condition of the deceased. Such an opinion should be accepted by the court. If the circumstances so demand, such opinion must be carefully balanced with all other surrounding facts and circumstances.
In a case Rajeev Kumar v. State of Haryana[10] medical opinion shows that the deceased larynx and trachea were charred by heat. It was clarified that when larynx and trachea are charred, the person can not speak but when they are in the process of being charred, he can speak. The second medical opinion was if the vocal cords or larynx is charred of a person, he may be able to speak but not clearly and it will be difficult to understand. The medical report of two is not in variance with the ocular evidence that the deceased was in a position to speak when dying declaration was recorded and the court can rely on such dying declaration.
Who should record the dying declaration?
Any person can record the dying declaration made by the deceased, but the person who is recording the dying declaration must have some nexus with the deceased either circumstantially or by some fact. However, the doctor or police officer hold more value as compared to the normal person. As far as the dying declaration is concerned the magistrate entrusted to record the dying declaration, as the statement recorded by him is considered more evidential rather than statement recorded by the doctor, police officer and by the normal person.
The Supreme Court has found this to be true in law, at least in cases where the person dies of burn injuries. Court hold the opinion that “The law on the issue can be summarized to the effect that law does not give any direction that who can record a dying declaration but just provided that magistrate is above all the person in subject for recording the statement, nor is there any definite form, format or procedure for the same,” said a bench of Justices B S Chauhan and Dipak Misra while quashing the high court order in the case of dowry death acquittal case.
The person who records the dying declaration must be satisfied that the maker is in a fit state of mind and conscious while making the statement.
Moreover, a dying declaration can be recorded by a person, or even by the police officer, but if it is recorded by the judicial magistrate that it will have more credential value and reliability.
Recorded by a normal person
A dying declaration can be recorded by a normal person. As in some circumstances where the judicial magistrate, police officer and doctor is not available, the Court can not reject the dying solely statement made before the normal person. But the person who records the statement must show that the deceased was in a fit state of mind and conscious while making the statement no matter if the statement is not recorded by Judicial Magistrate, doctor and police officer. The statement is admissible in a court of law.
Recorded by the doctor or a police officer
If there is no time to call the magistrate keeping in the mind the deteriorated condition of the declarant, the statement can be recorded by the doctor or by a police officer. But one condition must be coupled with it that while recording the statement there shall one or two-person present there as a witness otherwise the Court may find the statement to be suspicious. Moreover, the statement record by the doctor, later endorses that the declarant was not in a stable condition and his statement would not be considered as evidence, rectify by the witness that the deceased was in a fit state of mind and conscious to make the declaration. It was held in the case of N. Ram v. State[11] that the medical opinion can not wipe out the direct testimony of an eye witness which states that the deceased was in a fit mental condition and able to make a dying declaration.
Recorded by the magistrate
When the deceased statement recorded by the competent magistrate has deemed to be considered as reliable and attracts the evidentiary value as he presumed to know how the dying declaration should be recorded and he is a neutral person. Moreover, the magistrate has empowered to record the dying declaration under 164 of Cr.P.C.
Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate to record the statement of the dying person, no matter whether he has jurisdiction over that case or not, and in case where the statement recorded by the magistrate who has no jurisdiction in that case subsection (6) will apply. Here the word “statement” does not confine to only the statement by the deceased and witness but also include a statement of the accused, in order to satisfy himself, but the accused statement will not amount to a confession.
Subsection (1) states that: any judicial magistrate and metropolitan magistrate shall have the power to record the dying statement made by the dying person, whether the magistrate has jurisdiction in that particular case or not, he will be able to record the state provided under this chapter or by any other law for the time being enforced, or at the time before the commencement of trial and investigation.
Section 164 provides a warning. Under this provision the magistrate who record the statement should tell the accused that he has to made only statement which shall not be amount to confession, but if he did so, then the confession can be used against him for the purpose of conviction. This is the sine qua non for recording confession. The other important requirement is that the Magistrate must raised questions from the wrongdoer to satisfy himself that the confession made by the accused was voluntary so as to enable him to give the requisite certificate under subsection(4) of this chapter. The judicial magistrate here tell the accused that he is not bound to make a confession, but he did not ask the question from the accused in order to satisfy in question, whether the statement made by the accused is voluntary or not.
In Mahabir Singh v. State of Haryana[12] the Court held that, Where the Magistrate did not clear the rule that the statement made by the accused should not be amount to confession, if he does so then it will be used as evidence against him, can not be considered. The Magistrate must satisfy himself that the statement made by the accused voluntary, no pressure or force was used on the accused while making the confession. Any mark of the person of the accused to vitiate the voluntary character of the confession. When was held not only inadmissible under the section but it could not be used under the other provision of Indian Evidence Act such as sections 21 & 29.
Language of the statements
As far as the language of the statement is concerned, it should be recorded in the language of the deceased in which he is fluent or may possible than in Court language. The court cannot reject the dying statement on the basis of the language in which it was made. It can be recorded in any language. Even if the dying declaration is made by the deceased in Urdu, Hindi, Punjabi languages, it was considered that statement could not be denied on the ground of language in which it was made solely or on the ground that it was recorded in Urdu. When the statement was given by the deceased in Urdu and the magistrate recorded it in English than in that case precaution should be taken while in explaining every statement to the deceased by another person, it was declared that the statement was the valid dying declaration.
Statements made in different languages
When two dying declaration was recorded in two different languages on is in Marathi and the other is in Hindi and the deceased were proficient in both the language the statement could be the basis of conviction as it was held in the case of Amar Singh Munna Singh Suryavanshi v. State of Maharastra[13].
Points to remember
Dying declaration made by the deceased can be recorded in any language.
If the statement was recorded in another language than the one which magistrate recorded, then precautions should be taken to explain each and every aspect and phrase.
The court cannot deny or discard the dying declaration only on the ground of language.
In Biju Joseph v. State Of Kerala[14] it was observed by the court that only ground that the statement of the deceased made was in her own language can not reduce it value of the dying declaration. It was given by the High Court Of Kerala:
“Presumed that the statement made by the deceased when he was dying recorded in his language in which he has command or fluent, does not vitiate it value and court can not denied or rejected on that basis. Judicial magistrate entrusted with the duty to convert the statement in court language. And such translation process would not affect the credibility that dying declaration”.
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Multiple dying declarations
Supreme Court Of India in concern to multiple dying declarations, it can be considered upon without corroboration if there is no breakdown of fact in all the dying declaration. If all the dying declarations are similar to each other and state correctly the cause of death, and there is no contradiction between the statement it can be admissible But if the dying declaration is different from each other and there is a contradiction between them, then court will cross-examine the facts of the case or can examine the statements of other witnesses to determine the truth and sanctity of statement regarding the case.
The statement of the deceased should match the facts and circumstances of the case. It is very important to understand the character of multiple dying declarations. Points to be considered in multiple dying declarations:
There should be regularity in all the dying declaration.
If all the dying declaration does not match or say overlap, then the court will examine the facts of the case with the dying declaration Or examine the witnesses.
In Kushal Rao v state of Bombay[15] that case Court set the importance rules for dying declaration and what is the right process or manner to record it. In this case, if the dying statement made by the deceased. That it should be recorded in the form of question answer form, shall be endorsed/supported by the doctor that the deceased was in good mental state, can be recorded by the person who is legally entitled to record, if there are multiple dying declarations than it should be consistent, so that the court can rely on it.
The Supreme Court has held that multiple dying declarations can be reliable when it made without corroboration if consistency is maintained throughout the statement. Otherwise, the courts would have to cross-examine the statements of other witnesses to determine the truth in a criminal trial.
Expectations of death is not necessary
Under English Law, the victim should not be under any expectation of death. Evidence Act has taken this law from English law. If the statement has been made even when no cause of death had arisen then also the statement will be relevant. It is not important at all that the statement recorded should be just before the death of the victim.
In Pakala Narayan Swami v Emperor[16], it was held that the letter given by the deceased to his wife before going to the place where he was killed was relevant. The court said that the statement made must be at any rate near death or the circumstances of the transaction explaining his death is relevant under section 32 of Evidence Act. In this case, the court stated that dying declaration can be any statement that explains the cause of death or the circumstances of the transaction explaining his death. Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included.
F.I.R as a dying declaration
In a situation where a person dies after, when a F.I.R was lodged and stating that his life was in danger, it is relevant to be recorded as circumstantial dying declaration.
In the case of Munnu Raja and another v. State of M.P[16] the Supreme Court Of India observed that statement made by injured person recorded as FIR can be deemed as dying declaration and such declaration is admissible under Section 32 of Indian Evidence Act. It was also observed by the court that dying declaration must not shows the whole incident or narrate the case history. Corroboration is not necessary in this situation, Dying declaration can be declared as the exclusive evidence for the purpose of conviction.
If the declarant does not die
When the dying declaration given by the deceased is recorded. But the question arises that after the dying declaration was recorded and the deceased is still alive, was the statement holds the same effect. In that situation, the deceased now turned to be a witness against the accused to narrate what the actual story was. As the dying declaration itself mentioned the word dying, so it is necessary that there must be an expectation of death on the part of the declarant.
Criticism of dying declaration doctrine
Since the nineteenth century, critics have questioned the credibility of dying declarations. In a state court case, the Wisconsin Supreme Court considered the issue of a dying declaration. The defense pointed out that “this kind of evidence is not regarded with favor.” The defense argued that several factors could undermine the reliability of dying declarations.
Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence.
Dying Declaration in India
Dying declarations are admissible as evidence in Indian courts if the dying person is conscious of his or her danger, he or she has given up some hope of recovery, the death of the dying person is the subject for the changing nature of the dying declaration, and if the dying person was capable of to justify a sense of accountability to his or her Maker.
Distinction between Indian and English law
The distinction between English law and Indian law on the subject of dying declaration has been elaborately dealt in the case of Rajindra Kumara v. State[17] Under English law, the essentials of a dying declaration are as follows:
The declarant should have been in actual danger of death at the time when they were made the dying declaration.
He should have had a full apprehension of his death is near.
Death should have ensued.
These conditions must be proved for the satisfaction of the judge before considered it as a dying declaration than it can be received. Both in England and America, dying declaration is not admissible as evidence whether any civil cases or in criminal cases; it is not admissible upon charges other than homicide, or as to homicides other than that of the declarant.
However, these conditions are not provided in Section-32 Of the Indian Evidence Act. It is not required for a declarant to be in expectation of actual death while making such a declaration nor is it restricted in the cases of homicide. Because of this structure, it becomes increasingly necessary to know that the dying person speaks the truth because if he does not die than still declaration can be used as evidence against the accused. Moreover, dying declaration can be considered as relevant evidence in both criminal and civil proceedings, whenever the cause of his or her death comes into question.
Requirements of dying declaration
According to section 32 clause (1) of Indian Evidence Act, the requirement of dying declaration is as follows:
The statement made by the deceased may be oral or written. But in some cases it can be made with sign and gesture depends on the condition of the deceased
The statement must be as:
Cause of death- when the statement is made by the person as to the cause of his death or as to any of the circumstances of the transaction which was the reason for his death not cover all the incident which are not relevant in order to determine the cause
Circumstances of the transaction- the statement made by the deceased is only related to the circumstances of the transaction will result in the death of the deceased, remoteness or having no nexus which can not be connected with the transaction have no value.
Resulted in the death- the deceased statement should have the cause and circumstances that will clearly reason for his death or ultimately result in his death.
The deceased was a man of about 40. He had been a peon in the dewan of Pithapur. Pakala Narain Swami, the accused, was married to one of the daughters of dewan of pithapur. After marriage pakalana narain swami and his wife went to live at Berhampur about 250miles away from pithapur. In the year of 1993, they came back to pithapur and where they stayed with the dewan. They seemed at that time to have been in need of money, and during 1936 the wife of the accused borrowed money from the deceased at various times an amount of Rs. 3,000. On Saturday 18th March 1937, the deceased received a letter from the accused inviting him to come that day or the next day to Berhampur. The deceased left his house in order to go there and catch the train of Berhampur. He did not come back. On 23rd March 1937, the body of the deceased was found in steel trunk in the third class compartment at puri. The body has been cut into seven portions. The body of the deceased was identified by his widow. The accused was tried and convicted for murder and was sentenced to death.
During the trial, the widow of the deceased stated before the court that on the day her husband showed her a letter and said that he was going to Berhampur as the appellant’s wife had written to him to come and receive payment of his dues.
The lordship of the privy council held that the statement related to the circumstances of the transaction which resulted in the death of the deceased so it was relevant. They also held that the statement made by the deceased that he was proceeding to the spot where he was killed or as to his reason for proceeding or that he was going to meet him would each of them be circumstances of the transaction. However, circumstances must have some proximate relation to the actual cause and must be related to the transaction which resulted in death. For instance, in case of prolonged poisoning, they may be related to date at the considerable distance from the date of the actual fatal date. It is not necessary that there should be a known transaction other than the death of the declarant has ultimately been caused comes into question. In the present case the cause of death comes into question, the transaction is one in which the deceased was murdered on 21th march or22nd march, the statement that he was setting out the place where the accused lived and to meet a person, the wife of the accused, who lived together with the accused’s appears to be clear statement as of some transaction which resulted in his death.
Note: This case is important to be discussed here, as earlier in the article it was stated that the deceased can make a statement by sign and gesture or there are some circumstances that reflect the cause of the death and transaction of the situation collateral to it. In that case, the statement made by the deceased hold strong basis for conviction.
Dying declaration Case laws and landmark Judgments
Lakhan v. State of M.P.[18] in this case supreme court provides that, when the condition is satisfied that the dying declaration made by the deceased is true and can be relied upon, as the declarant is found to be conscious and mentally fit while making the statement, and the statement made by him proven to be voluntarily and no compulsion was there while making the statement and can be put for the sole basis of conviction. In that situation there is no need for corroboration is necessary.
In case of multiple dying declarations consists which consist in the form of irregular interval and contradict each other, dying declaration recorded by the person who is entitled to record like magistrate then there is no doubt and can be found to be reliable. But in circumstances where it was observed that the statement made by the deceased is not voluntarily but due to some force or compulsion, then the court raised suspicion on that dying declaration and Court should re-examine the statement of witness and other facts in order to determine the truth.
In the case of State of Punjab v. Parveen Kumar[19], the Supreme Court set forth some measure to test the veracity in the case when there is more than one dying statement. The court provides that there must be a series of examinations in order to determine the truth. If the statements provide different versions and do not couple with given facts, then the court must opt for other evidence in their record to clarify the things so that truth can be inferred.
In the case of Sudhakar v. State of Madhya Pradesh[20], the Supreme Court while deciding the issue of multiple dying declarations, which varying from other statements and have no series related to each other, this will raise a doubt in the eyes of court to whether the statement should be believed or not, in order to clear the issue the Court has given some directions which help to guide while exercise the judgment by court in such matters, examined.
The Court put forward the point that when multiple dying declarations made by the declarant, if found either contradictory or are at variance and having no nexus to each other to a large extent and narrate another version of the story, then the test of common reasonableness would be applied while examining which dying declaration is corroborated by circumstantial evidence. Further, when the dying declaration was made the condition of the deceased at the time of making of each declaration concerned, medical report of the deceased, truthfulness of statements made by deceased, possibility of deceased being tutored, are some of the points which would guide while exercise of judicial function by court in such matters.
The Supreme Court also observed that the dying declaration is the statement made when a person is at there bed end, as the word dying declaration itself signifies its meaning. A person having a serious apprehension of death and there shall be no chances for his survival. At this point, the court assumed that whatever the statement made by the declarant is purely true as the man will never meet his maker with a lie on his lips and person will speak only truth.
Natha Shankar Mahajan v. State of Maharashtra[21] in this case the supreme court ruled that if there is a doubt about the statement made by the deceased, in that case, the gain will transfer to the accused. As this is the correct Law preposition. Moreover on the other was round if the statement found to be true and reliable ten it can be used solely as the purpose of the convection.
The Supreme Court in the case of Surajdeo Oza v. State of Bihar[22] does not give an affirmative answer to the question and held that merely because the dying declaration is a brief statement it is not to be discarded. On the contrary, the length of the statement itself guarantees the truth.
The Court has to scrutinize the dying declaration carefully and examine each and every sort of situation and must ensure that the declaration is not the result of tottering prompting of imagination and the deceased had the opportunity to observe and identify the accused and was in a fit state while making the dying declaration.
Dying deposition
Dying deposition is almost a dying declaration. The main difference between both is that the dying deposition is always recorded in the presence of a magistrate. Whereas dying declaration can be recorded even by a normal person, doctor and by a police officer.
A deposition is recorded when the lawyer of the accused is present and magistrate record the dying declaration. But dying declaration has no such conditions, but the evidentiary value will be more if the statement is recorded by the magistrate. However, it can be recorded by the doctor or police officer also.
Illustrations
A case where the deceased was given the statement to his father that I inhale the poison because of my heartbreak and the same was conveyed to the police and father of the deceased also said that the deceased was conscious and in a fit state of mind and the same was endorsed by the autopsy report. After that when the police investigate the matter it was found to be true that the cause of his suicide is the girl who used to aid and abet him to commit the suicide. Hence the statement recorded by the normal person(father) has admissible in a court of law. This is the example of dying declaration.
In a case where a woman is burnt by his father-in-law. And the woman was admitted to the hospital by the neighbour and when the police were informed about the matter they came to rely on the statement of the deceased but the doctor tells them that the deceased is not in a position to answer the question. After 2nd and 3rd day when the woman is in better condition and subsequently magistrate was available to record the dying statement and the accused lawyer was also there. The statement is recorded and this is called dying deposition.
Comparison Between Dyeing & deposition declaration
Basis
Dying declaration
Dying deposition
Oath
Here, the oath is not administered.
While here, administering oath is important.
Cross-examination
Here, cross-examination is not allowed.
But here, the witness can be cross-examined by the lawyer.
Recorded by whom
The dying declaration can be recorded by a normal person, doctor, police officer and by the magistrate.
Whereas, it can be recorded by the magistrate in the presence of accused or by his lawyer.
Applicability
It is applicable in India.
There is no such provision of dying deposition.
Value
It has less value.
It superior and has more value than the dying declaration.
Identification through dying declaration
The conviction can be based on the statement made by the deceased, and the identity of the accused must be established by it. It should contain the same parentage and address of the accused. But if there is no corroborative evidence to prove identity, the conviction is possible and this was established by the Court in the case of Pritam Singh v. State of U.P[23]. However, there is no particular form which is dying declaration identified and admissible as evidence in a court of law in a case the Supreme Court held that only the Crux is important or relevant to determine what actually happened. For instance, if someone stabbed a deceased then the crux of this is, who stabbed him and why, and the rest are the complementary things.
Absence of medical statement of fitness
It is only a rule of caution. Normally, the Court places reliance on the medical evidence for reaching the conclusion whether the person making the dying declaration was in a fit state of mind but where the person recording the statement of the deceased stated that the deceased was in a fit state of mind and conscious, the medical opinion will not prevail nor can it be said that there being no certificate of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A certificate from the doctor is essentially the rule of caution. Where the testimony of the magistrate is to the effect that the declarant was fit to make the statement, it can be acted upon without there being a certificate of the doctor provided that the court ultimately held the same to be voluntary and truthful.
When there was no certificate of doctor about the fitness of the deceased making dying declaration before the investigating officer but the doctor was present at the time of making dying declaration and thumb-impression of the deceased was attested by him, holding that there could not have been any attestation of such document was technically held to be too wrong.
Where the eye-witnesses stated that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the mind of the declarant, the dying declaration is not acceptable. A dying declaration may be reliable without obtaining a certificate of endorsement by the doctor.
Statement is not relevant to the cause of the death
The dying declaration is a statement made by a person to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by section 32(1) of the evidence act and unless absolutely necessary to make the statement coherent or complete should not be included in the statement. Where the dying declaration is set to be a long written document and tell about the number of incidents in a narrative form and talk about what happened before the actual resort, such long statement being more in the nature of first information reports than recitals of the cause of death or circumstances resulting in it, are likely to give the impression of their being not genuine or not having made unaided without prompting.
When the dying declaration made by the deceased is not coupled with the transaction of consequences which results in the death of the deceased or the statement made regarding the fact which has no nexus or connection with it or in other words having no remote reference to the death of the deceased, it would not be admissible under Indian evidence act.
In the case of Bhairon Singh v. State of M.P.[24] the body of the deceased lady was found in a well of the village. The cause of the death asphyxia due to drowning. She was married to accused about 10 years before the death of the incident take place. The trial court held that the incident took place accidentally. And the presumption of her dying declaration does not attract section 113-A and 113-B of Indian evidence act and the accused set free under section 304-B and 306 of the IPC.
But later on, the trial court held the accused guilty under section 498-A of IPC and section 3 of the dowry prohibition act,1961 and gives the punishment to accused of rigorous imprisonment for three years along with the fine of Rs. 15000.
Again high court made changes in the judgment and accused convicted under section 498-A of IPC, the changes were the cause of the statement given by her brother that his sister(deceased) told him that the accused used him to force her as he wanted that her brother arranged a job for him and also demanded for dowry for her of Rs 1lakh. On the deposition brother of the deceased stated that the accused by putting a cloth in her mouth(deceased) beating him for dowry.
Medical report
Medical reports are those reports which are provided by the doctor usually in criminal cases, they are admitted as evidence in a court of law when a doctor provides oral evidence while taking the oath. The report includes the mental condition, fitness of the disease whether he is able to give the statement or not. And sometimes forensic and autopsy reports also clarify that the deceased was saying right in his dying declaration. For example, there was a case in which the mother of the deceased, when hearing the cry of her son immediately reached to their room, where the deceased made the dying declaration in front of his mother that he was in love with some girl and she left her and due to this he commits the suicide. The time to reach in his room was estimated by the police in their investigation was about 2 minutes.
Here the question comes that if the mother was really saying the truth about the declaration as there was no one when the deceased was making the statement, the absence of medical fitness will remain in the dark. But the autopsy report conferred that decrease is the condition to survive for 6-8 minutes. So that the mother statement can be admissible in a court of law. In that perspective the role of medical report become crucial and if sometimes, if there is a plotting in dying declaration (which rarely happens as the law presumed that no one meet his maker with a lie on his lips) the report may contract the statement which creates the sense of suspicion and the statement made by the deceased can not be regarded as the sole base for the conviction. But the medical report did not discard the statement on the basis of the report in which it was stated that the nature of injuries sustained by the deceased. Moreover, if the medical report states the fitness of the deceased while taking the statement of the deceased by magistrate then there is no need for a separate test of fitness by the magistrate.
Doctor statement
It is necessary that the dying declaration recorded by a magistrate should be endorsed by the doctor, as it gains more evidentiary value. But there are many situations when the statement is recorded by the doctor as due to circumstantial reasons and unavailability of magistrate. So the statement of doctor is regarded to be true and being a doctor, he understands about the condition of the deceased whether the deceased is able to make dying declaration or not. In the case where a burnt wife had been admitted in the hospital and the doctor who operates her, disclose the fact that the husband of her pour kerosene oil and set ablaze to her. At this point, the doctor records the statement point by point. Later on, it was found that records are also in favour and did not contradict the statement made by the deceased. The court held that the doctor has no other motive to make a false statement and the value of statement recorded by the doctor is admissible. But the statement made by the doctor is proven more relevant when there is an eye witness in order to endorse that particular dying declaration.
Dowry death, wife burning
When there is a situation after the three or four months of the marriage, where the wife is burnt by her husband or husband relatives for dowry purposes or for monetary gain. And in relation to this, she expressing the danger and threat to her life is somehow the expression which depicts the circumstance which leads to the death of the deceased. But when there is a contradiction found in the statement by the deceased, it would raise the presumption of suspicion and decrease its value as evidence. In case where wife by way of plotting set ablaze to her and when she was admitted to hospital, where she made the statement that her husband set on fire to her after some point of time it was discovered in the police investigation that the children of the deceased state that their father will never do this kind of act, moreover they also said that the deceased was tried for committing suicide earlier. And police also found that the relation between the husband and wife is not good. And deceased also think that her husband had some extramarital affair. All the facts show that there was a motive to lie. So the court held the dying declaration to be falsehood and set aside the conviction. And the court has reason to believe, as the person who took the deceased to the hospital was none other than her husband.
Evidentiary value of dying declaration
In the case of K.R Reddy v. Public Prosecutor[25], it was observed by the court that the evidentiary value of dying declaration made by the deceased:
There is no doubt that the dying declaration is admissible in court under section 32(1) of the Indian Evidence Act. and there is no compulsion while making of dying declaration to take an oath, but the truth of the statement can be determined by the cross-examination. The court has to ascertain necessary measures to check the sanctity of the statement made by the deceased. As in India law, it was presumed that the man who is going to die, not meet his maker with a lie on his lips this is because, when the person is at his bed end all the desire and greed of person come to an end so probably there is no motive to lie. After that, the court must be satisfied with the condition that the deceased must be in a fit state of mind while making the statement. After all the measures assured by the court and satisfied that the statement is made voluntarily and true then it will be sufficient to accept the statement to finding conviction even without the corroboration.
(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.
(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;
(iii) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
(iv) A dying declaration stands on the same footing as other pieces of evidence & has to be judged in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.
(v) A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, &, as far as practicable in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory & human character.
Exception of dying declaration
There are many circumstances in which the statement made by the dying person is not admissible in a court of law. These conditions are as follows:
If there is no question for consideration about the cause of death of the deceased. For example, if a person in his declaration state anything which is not remote or having a connection with the cause of death than the statement is not relevant and hence not be admissible.
The declarant must be competent to give a dying declaration, if the declaration is made by the child then the statement will not be admissible in court as it was observed in case of Amar Singh v. State of M.P[27] that without the proof of mental fitness and physical fitness the statement would not be considered reliable.
The statement which is inconsistent has no value and can not be considered as evidentiary in nature.
The statement made by the deceased should be free from any influential pressure and should be made spontaneous.
It is perfectly allowed to the court if they reject any untrue statement which contradicting in nature.
If the statement is incomplete in the sense which means it can not answer the relevant questions which are necessary to found guilty, and on the counterpart, statement deliver nothing so it will not be deemed to consider.
Doctor’s opinion and the medical certificate should with the statement and support that the deceased is capable of understanding what statement he makes.
If the statement is not according to the prosecution. In this regard, the following points should be taken into consideration by the apex court.
While making the statement deceased must be in fit mind of the state.
Should be recorded by the magistrate or by a police officer and person in a case when deceased was so precarious
A dying declaration should be recorded in question-answer form and written in words of the persons exactly who gives the statement.
Dying Declaration should be free and spontaneous
Dying declaration due to compulsion or pressure not be relied upon whereas dying declaration free from any biased relied upon. As it was held in the case of Krishna Lal v. Jagun Nath that the wife was burnt by the husbands-in-law and in her dying declaration she held that she was not burnt by her husbands-in-law and she was believed.
Conclusion
The dying declaration is not specifically mentioned in our penal law under Section 32(1) of IPC. it is the statement made by the person who is going to die, and that statement will be considered as evidence in court, how his death caused and who is the mugger. There are many conditions that relied upon the dying declaration that it should be in an adequate manner as dying declaration is the weapon who convicted the accused and stood as strong evidence. The admissibility of dying declaration accepted in our Indian court because the law presumes that in Leterm Mortem i.e in his last parting words the man will never lie as anyone will meet his maker with a lie on his lips. This is because a man who is going to die, end with all his needs and wants and his interest is no more passionate for self deeds so he seldom lies.
However, the dying declaration is found to be maliciously made then the court has the right to reject the statement. Or there are other situations and circumstances which coupled with dying declaration for its admissibility which discussed above.
The assumption that most people make is that big law firm partners earn a lot of money. I also used to think the same when I started working as a rookie associate in a law firm in Mumbai. I thought, wow, these corporate lawyers and partners must be making a ton of money. So glamorous and all.
Then one day something happened. A secretary by mistake shared a folder with me that she should not have. Inside that folder were Income Tax returns of the partners. Before I realised that these were mistakenly shared with me, I had already seen the numbers, and it could not be unseen.
Anyway, the mistake was soon corrected. But the numbers I saw were totally underwhelming. I, of course, won’t tell you what those numbers were, but that day I decided that being a junior partner in a big law firm wasn’t a motivating financial proposition at all.
This happened a good 8 years back. Based on what I hear from my friends, who are now junior partners in many different law firms, things have not changed much.
It takes immense skill, hard work, sleepless nights, dedication and sacrifices of all kinds – even of health and family, to make a partner in a big (or any) law firm. Well, is it worth the money they make? Not always.
Do not get me wrong, there are some partners who rake in money by the bucketloads. They keep buying properties and find it hard to come up with ways to spend or invest what they are making. It becomes such a serious problem that they need to hire professionals to do it for them!
But those people are only a handful. They are all equity partners with significant stakes and definitely not in the pink of their youth when they get there.
There are way too many big law firm partners without much brand name of their own. They aren’t really doing as well financially. There are lawyers at Tis Hazari and other courts in smaller towns who actually earn a lot more, have much more freedom and have the best asset a lawyer can build: their own brand, which basically means people recall their name with respect.
Some law firms put way too many restrictions on their junior partners in order to prevent them from building their own brand. And it makes good business sense, because such partners can easily walk out with their own clients and most of them totally intend to do so. Law firms have to protect themselves.
That’s the worst outcome for the establishment. Managing Partners of law firms know very well that the tag of a partner in a big law firm is sort of a big deal, and at least those who have worked hard for almost a decade to earn it – really value it. However, if a partner walks away with paying clients, and the credibility that comes with being a former partner at a big law firm, the firm does not only lose talent but revenue and profitability shrink.
Also, many lawyers who have left big firms over the last two decades have managed to start their own shops and have done really well. The market values them. There is a lot of work and a tremendous amount of money to be made. Big law firms aren’t able to pay as much as what a good lawyer with the ability to set up and manage a practice well can earn with his own boutique law firm.
Of course, history is replete with lawyers who struck out on their own after a big law firm stint and eventually returned to big law firms because they didn’t manage to do as well on their own, or because big law firms hired them back when they needed to develop niche practice areas, usually at a much better financial arrangement than what they would have gotten if they stayed in big law firms through and through.
And there are some who utterly failed, although in my experience such people are very few.
The only barrier for the lawyer who wants to run his or her own practice instead of working at a big law firm is this: how do I get my own clients and how can I manage to deliver great quality work?
That said, there are some lawyers who are just amazing at their work, and law firms give them the right incentives to stay on board. For such lawyers, it makes sense to stay in big law firms and just focus on growing their brand and practice within big law firms.
However, this is not the best thing for each and everyone.
I just want you to be aware of the fact that you can run a successful independent practice, or a partnership with a few like minded lawyers, and do better than big law firm partners financially as well.
Usually, people who take a business risk and own their work rather than renting it out, tend to make more money. Risk comes with rewards. The people who own the risk also take the majority of the profits, that’s how our economy is structured.
Also, how much is the risk really? Have you assessed these risks? What skills and knowledge do you need in place to beat those risks?
What would it take to build your own law firm? Or is the right option to build a successful solo practice instead? Do you need partners? What are the practice areas you should focus on? How are you going to find prospective clients and engage with them for the next 20 years? How can you build an organization that will enable you to deliver superlative legal work at a scale?
These problems are worth figuring out.
We have a course on Legal Practice Development and Management, which attacks questions like these, and can help you to find your way thanks to market tested proven methodologies to develop and manage your practice.
Check it out. I promise that simply reading the course page from top to bottom will also be a rewarding experience. Make sure you go through the list of weekly exercises, class topics and syllabus. You will not regret the 15-20 minutes you will spend on this page.
“Mutual fund investments are subject to market risks, please read the offer document carefully before investing”. Does this monotonous monologue sound familiar to you?
This is one of many initiatives undertaken by Central Government of India under the scheme of investor education and protection fund (here-in-after referred to as IEPF)
IEPF is governed by Section 125 of the companies act, 2013. IEPF was set up under section 205 C of the Companies Act 1956 by way of Companies (Amendment Act) 1999 to promote investors awareness and protection of investor interest.
The proceeds from the fund are used for:-
refund of unclaimed dividends, matured deposits, matured debentures.
For Refund of application money due for refund and interest.
Promotion of investors education, awareness and protection.
Payment of disgorged amount to applicants in accordance with disgorgement orders made by the court.
Reimbursement of legal expenses by members, debenture holders or depositors. incurred in pursuing cases sanctioned by a tribunal under sec 37 and 245 of companies act 2013.
Where does IEPF get funds from
Funds are credited to IEPF through various sources. Some of them are illustrated below:-
Grants by Central Government.
Donations by Central and State Governments, Companies and other institutions.
Unpaid dividend account held by Companies transferred to IEPF.
General revenue amount of central government which is unclaimed & unpaid before the commencement of companies amendment act 1999 is transferred to IEPF under subsection 5 of section 205A of companies act 1956.
Amount lying in investor education and protection fund under section 205 c of companies act 1956.
Application money received by companies for allotment of any securities and due for refund.
matured deposits with companies other than banking companies.
Redemption amount of preference shares remaining unpaid or unclaimed for seven or more years and such other amount as may be prescribed.
IEPF Authority
Central Government shall form IEPF authority consisting of not more than seven members that comprises of chairperson (he/she should be secretary minister of corporate affairs), CEO, Executive directors nominated by RBI and SEBI as ex-officio member and other members with more than 15 years of experience in finance, management, accountancy, or law.
IEPF Authority is responsible for the administration of IEPF; educating investors about fair and safe investing; refunds of shares, unclaimed dividends, matured deposits/debentures to investors.
Since its inception, the IEPF Authority has delivered to its mandate of investor education and protection by conducting various awareness program through Partner Institutions & CSC e-governance Services India Ltd, and Ministry of Communications & IT. Several awareness programs were conducted in association with organizations such as ICAI, Institute of cost accountants of India, ICSI, Institute of corporate affairs and National foundation for corporate governance. These initiatives focused on educating about the importance of investing, Primary/Secondary capital markets, information on mutual funds, debentures, equity, company fixed deposits, pension funds, investment policies etc.
Process of transferring funds to IEPF by Companies
When a company has declared a dividend but that has not been claimed/paid within 30 days from the date of declaration, the company shall transfer the amount to an Unpaid Dividend Account registered with a scheduled bank.
A company should publish a statement on its website containing names/addresses/unpaid dividend to be paid to each person within 90 days of transferring the amount to Unpaid Dividend Account.
Default in the transfer of the amount to Unpaid Dividend Account shall attract interest penalty of 12% per annum, and the same will be transferred to the benefit of members in proportion to unpaid amount with each of them.
Any person claiming to be entitled to any money transferred under sub-section (1) to the Unpaid Dividend Account of the company may apply to the company for payment of the money claimed.
Any amount in Unpaid Dividend Account that has not been claimed or paid for a period of seven years from the date of such transfer shall be transferred to Investor education and protection fund. Details of such transfer shall be sent in a statement by the company to IEPF Authority which in turn shall issue a receipt to the company.
A dividend can be claimed by the beneficiary even after seven years in accordance with procedure and submission of documents to IEPF authority. In case an applicant wants to claim a refund for unclaimed money from IEPF, then he/she shall submit IEPF Form no 5 to IEPF authority that is constituted under sub-section 5 of Section 125 of the companies act 2013.
Failure to comply with requirements by the company attracts a penalty of not less than INR 5 Lakhs that may go up to INR 25 Lakhs, also every defaulting officer of the company will be fined anywhere between INR 1 Lakh to INR 5 Lakh.
Procedure on part of shareholder/claimant to claim shares/dividend amounts from IEPF authority
A shareholder is required to open a De-mat account with NSDL/CDSL.
Fill claim form (IEPF Form no 5) and submit the same on the website of IEPF.
SRN will be generated as an acknowledgement for future tracking of the form.
Applicant to send signed copy of claim form, acknowledgement copy, indemnity bond to be executed on a non-judicial stamp paper if the amount of the claim is INR 10,000 or more or on a plain paper if the amount claimed does not exceed INR 10,000.
Advanced stamped receipt with signature of the claimant and two witnesses.
Self- attested copy of PAN card & Aadhar Card.
Proof of entitlement, cancelled cheque, copy of passport, transaction statement showing debit/transfer of shares to IEPF if shares were held in Demat form, original share certificate.
Other procedural requirements include
Share-holder will seek details of dividend and shares from the company.
Company will issue an entitlement letter to the shareholder.
Company to release a verification report post-inspection of required documents.
The shareholder should submit a verification report to IEPF Authority within 15 days of receipt of the claim along with details as mentioned in IEPF Form 1 and IEPF Form 4.
IEPF authority will release the claim post verification by IEPF.
Investor Awareness Program (IAP)
Investor awareness programs are organized by IEPF Authority through various partners in order to create a massive awareness drive throughout rural, semi-urban & urban areas.
Programs are held in association with Professional Institutes (PI), Educational institutes, local trade & business chambers.
Each program conducted by PI shall have 100 or more participants.
Invitation of the program should be sent to MP/MLA/local public representative along with an officer from concerned ROC.
Resource persons (RP) shall conduct programs in district towns and small towns/cities in a district.
A detailed write-up of the program, photographs and attendance sheet should be submitted by RP’s and PI’s to the authority & same shall be uploaded on IEPF portal.
Impact Assessment Report
As per the impact assessment report (2018) prepared by the Department of management studies, IIT Delhi –
More than 93% of the beneficiaries of IAP informed that they understood the content of the program and intend to attend similar programs in future.
More than 80% of beneficiaries of IAP gained knowledge about opening a bank account, using ATM facility, deposit and withdrawal of money and signing bank cheques for payment.
The respondents to the survey conducted by IIT Delhi are more confident in planning their monthly expenses now, have a better understanding on impact of inflation on their savings, have an ability to invest in buying their own land/house/property with their savings, and also are keen to protect future of their family through insurance policies.
Key forms to be submitted to IEPF
Statement of amounts credited to IEPF – IEPF Form – 1.
Statement of unclaimed and unpaid amounts – IEPF Form – 2.
Statement of shares & unclaimed/unpaid dividend that is not transferred to IEPF –IEPF – Form -3.
Statement of shares transferred to IEPF – IEPF Form – 4.
Application to authority for claiming unpaid amounts & shares out of IEPF – IEPF Form5.
Statement of unclaimed/unpaid amounts to be transferred to IEPF – IEPF Form – 6.
All these forms can be downloaded from this website.
Key achievements of formation of IEPF/IEPF Authority
One of the biggest success of IEPF Authority has been to enforce Peerless General Finance and Investment Company Limited to transfer deposits worth INR 1514 Cr to IEPF. This amount was taken by the company by issuing more than 1.49 Cr deposit certificates and include more than INR 1 Cr individual investors. Authority has also launched an online facility to collect primary information from retail investors about their matured deposits which are pending for repayment. The authority has also issued more than 4000 notices to the companies under section 206(4) of the companies act 2013. The funds were pending with the company for the last 15 years. The size of IEPF fund has almost doubled within a year to about INR 4138 Cr. It has certainly been a successful initiative by the government of India.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
This article is written by Suryansh Verma, a 3rd-year student at Dr Ram Manohar Lohiya National Law University, Lucknow. In this article, he discusses the Order 7 Rule 11 of the Code of Civil Procedure, 1908. The article envisages the grounds for rejection of plaint, landmark cases and the sample draft application for the rejection of the plaint.
Background
The plaint is filed for the institution of the suit in the Civil/Commercial Courts. A court dealing with civil matters will be governed by the provisions of the Code. Order VII of the Code of Civil Procedure is envisaged with the provisions of the rejection of the plaint by the Court. The article shall discuss the provisions, the grounds of rejection, the limitation period after rejection within which the plaint needs to be re-filed and also other informative things. This rule is merely a procedural rule which ensures nothing but the proper application of the Court Fees Act 1870.
Order VII Rule 11 of the Code of Civil Procedure elaborates on the rejection of plaints in certain circumstances. It has mentioned certain grounds on the basis of which the plaints are rejected by the courts. One of them is not mentioning the cause of action that the plaintiff seeks against the respondent.
It is necessary to decide the application of rejection of the plaint under Order VII. The defendant cannot be asked to file a written statement without deciding on such an application if there is any. Furthermore, this rule can be applied at any stage of the proceedings. In a case before the Calcutta High Court, Selina Sheehan v. Hafez Mohammad Fateh Nashib, the plaint was rejected even after it was numbered and instituted as a suit.
It is the duty of the Court to examine the plaint thoroughly and decide whether the plaint should be admitted or sent back for making amends to it. However, the plaint is bound to be rejected by the Court in the following circumstances –
If the plaint doesn’t mention a cause of action (Order VII Rule 11(a))
Order 7 rule 11 Cause of Action
Cause of Action has been mentioned under a lot of provisions in the Code of Civil Procedure. It is a set of allegations or facts which make up for the ground of filing a civil suit in the Court. One instance of the mention of Cause of Action is under Order II Rule 2 of the Code. Therein, it has been stated that for the purpose of instituting a suit, the cause of action needs to be explicitly mentioned in the plaint. If it has not been mentioned, then the plaint will be rejected by the Court.
It is the sole reason why a civil suit exists in the first place. It specifies the legal injury which the person who is instituting a suit has suffered. It also has the remedy or relief which the plaintiff is going to ask the Court to grant. The person instituting such suit also needs to prove certain elements i.e. 1. That there existed a duty, 2. The occurrence of a breach of that duty, 3. The cause of such a breach and 4. The damages incurred by the plaintiff. Thus, if the plaint does not allege the facts which are required for furthering the claim of the plaintiff, the plaint shall be dismissed by the Court citing the grounds for such dismissal.
Order II Rule 2 of the Code
The term Cause of Action has been mentioned in Order II Rule 2 wherein it has been stated that no person shall be troubled more than once for the same cause of action. The principle behind this rule is that the plaintiff has to include all the claims at once in the suit which he is instituting. The test for the Courts is that the cases falling under this particular provision of the Code must answer the question that the claim in the new suit is found upon a different cause of action.
However, the plaintiff is at full liberty to omit any part of the claim.
Illustration – Suresh rents a house from Ramesh at a rent of INR 120000 per year. Rent for the whole of the years 2015, 2016 and 2017 is due and is yet to be paid. Ramesh sues Suresh in 2019 for claiming the amount which was due. The suit was in respect of the rent due in 2015. Thus, after this Ramesh cannot sue Suresh afterwards for the rent due for the remaining years.
The causes of action need to be different so that the bar under Order II Rule 2 is not applicable. In Alka Gupta v. Narendar Kumar Gupta, the parties in the case were partners in a partnership firm. The partnership firm used to run an institute. One of the partners sold her undivided share to the other partner where the institute was located. In order to claim the amount of sale, a suit was filed in 2004.
After a decree was passed in the first suit, another suit was filed for production of accounts of the firm from 2000 to 2004 on certain grounds. The partnership had already dissolved in 2004. The trial and the High Court were of the opinion that such suit is hit by the Order but the Supreme Court was of a different opinion.
The Supreme Court said that “The cause of action in the first suit was not paying the price under the agreement of sale dated 29th June 2004 whereas, in the second suit, the cause of action was non-settlement of accounts of the dissolved partnership. Order II Rule 2 finds applicability only when both the suits are based on the same cause of action.”
Joinder of Causes of Action
Several causes of action can be unified into one by the plaintiff against the defendant or several defendants jointly. (Order II Rule 2 of the Code)
Any plaintiffs who are interested in the same legal remedy and have the same cause of action may unite them into one in the same suit. However, if such joinder of causes of action embarrasses or delays the trial of the court, it may order separate trials. (Order II Rule 6 of the Code)
Order II Rule 4 of the Code lays down the situations in which the causes of action will not be joined unless the Court has allowed doing so. Following are the exceptions to the same –
Claims for mesne profit or arrears of rent in respect of the property claimed or any part thereof;
Claims for damages for breach of any contract under which the property or any part thereof is held;
Claims in which the relief sought is based on the same cause of action.
This rule provides for joinder of claims in suits.
A reference to Section 20 of the Code is necessary while discussing case laws in relation to cause of action.
Section 20 states that suits have to be instituted at the place where the cause of action arises, either in part or wholly. Even though the cause of action is a set of facts alleged but it does not contain all the evidence required for proving the allegations.
Notices under Section 80 of the Code are not included in Cause of Action. The production of notice to the Government or public officer is one of the preliminary steps for filing a suit against them.
Misjoinder of Cause of Action
When multiple causes of action are being unified together in the suit which cannot be joined together, there can be no such joinder. All objections concerning the misjoinder of causes of action need to be addressed as early as possible. It is presumed that if an objection is not raised against the misjoinder, this right is deemed to be waived off.
Case Laws
In Subodh Kumar Gupta v. Shrikant Gupta, there was a partnership firm which had its registered office in Bombay and the factory was in Mandsaur. Out of the three partners, two had their residences in Mandsaur whereas one was living in Chandigarh. In Bhilai, an agreement was entered into between the three of them for dissolution of the firm. Rendering of accounts of the firm was also requested because of the alleged misappropriation of the funds of the firm.
A suit was filed by the plaintiff in Chandigarh regarding the same. The Supreme Court in the instant case had held that the Courts at Chandigarh had no jurisdiction in the matter. The cause of action would have arisen at Chandigarh either wholly or partly to confer jurisdiction of the case in the matter. Courts at Bhilai had the jurisdiction instead because of the agreement.
In HCL Info Systems Limited v. Anil Kumar, HCL had its registered office at New Delhi and used to run business in Cochin through its branch. It ran the business the same way it used to by way of branches in Madras and Bombay. Thus, it was held that the courts at Cochin would not have territorial jurisdiction to entertain the case.
In Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., an agreement was entered into between the parties that if any dispute arises, the courts at Delhi will have exclusive jurisdiction. However, the agreement was not signed at Delhi but at some other place, thus, it was held by the Madhya Pradesh High Court that as per Section 20(c) of the Code of Civil Procedure, the party can file a suit at whichever place the cause of action arose either partly or wholly.
Grounds of rejection of the plaint
A plaint can be rejected by the Court if it does not mention a cause of action which is to be taken by the plaintiff against the respondent. It is perceived as an abuse of the process of the Court. Cause of Action has been mentioned at various places in the Code of Civil Procedure. Without a cause of action, a civil suit cannot arise. The cause of action is necessary because it discloses the facts that made the plaintiff take such action. When the plaint is being rejected, the court needs to just look at the plaint and nothing else.
Moreover, a part of the plaint cannot be rejected, the plaint if rejected, has to be rejected as a whole. However, there can be partial striking out of pleadings under Order VI Rule 16 of the Code, but not partial rejection of the plaint.
In Samar Singh v. Kedar Nath Alias K.N. Singh & Ors., an appeal was filed under Section 116-A of the Representation of the People Act, 1951 against the judgment of the Allahabad High Court. The respondent i.e. Kedar Nath won the Lok Sabha Elections from Hapur. The appellant was able to secure only 617 votes in the election. The election petition was rejected under Order VII Rule 11 of the Code of Civil Procedure because it did not disclose any cause of action.
In K. Thakshinamoorthy v. State Bank of India, a revision petition was filed against the order of the learned First Additional Subordinate Judge, Madurai. The Additional Judge had rejected the plaint on the grounds that there was no cause of action mentioned. The defendants sought to get the plaint rejected in that case. Ultimately, the plaint was rejected on the grounds of absence of a cause of action.
In S.M.P. Shipping Services Pvt. Ltd. v. World Tanker Carrier Corporation, the plaint was rejected on the same grounds that there was no cause of action mentioned in the plaint submitted by the plaintiff.
The relief claimed in the plaint is undervalued (Order VII Rule 11(b))
As per Order VII Rule 11(b), if the amount of compensation that is being demanded by the plaintiff is lesser than the requisite, the plaint can be rejected. Such a claim needs to be corrected within the time which is prescribed by the Court. Such rejection amounts to dismissing of the suit. A fresh plaint may be presented under Order 7 Rule 13 of the Code.
For the purpose of rejecting a plaint on this ground, the evaluation involved should be objective in nature. For example – In Meenakshi Sundaram Chettiar v. Venkatachalam Chettiar, the evaluation was of the rent of the leasehold. This is an objective evaluation.
In Commercial Aviation & Travel Company & Ors. v. Vimal Pannalal, it was held by the Hon’ble Supreme Court that while evaluating the value of the relief claim in the plaint, the Court needs to resort to the materials, evidence present. The respondent-plaintiff in paragraph 33 of the plaint had claimed relief estimating from 25 lakhs to 30 lakhs. This was also disputed because there was not an accurate estimate. However, the Court held that it was not unreasonable on the part of the respondent-plaintiff to do so. The appeal before the Supreme Court was dismissed and reasons were cited for the dismissal.
Relief under CPC
Relief also has to be specifically stated in the plaint. Rule 7 of Order VII of the Code of Civil Procedure requires that a plaint needs to contain the relief that the plaintiff claims. It can be anything i.e. damages, an injunction, declaration, appointment of a receiver, etc. If a plaintiff except when allowed by the Court omits any relief to which he is entitled to sue, he will not be granted such relief afterwards. Sometimes, the Court grants relief on a different ground than stated in the plaint. The relief claimed by the plaintiff or the defendant may be a general relief or an alternative relief.
Relief has been stated in the plaint clearly but the paper on which the plaint is written is not properly stamped (Order VII Rule 11(c))
As per Order VII Rule 11(c), a plaint is rejected by the Court if it has been written on a paper which has not been duly stamped and authorized. If the person is not able to make up for the deficiency, he can apply as a pauper as to continue the suit. Order under this rule for rejecting a plaint must only be given after the plaintiff has been given reasonable time to amend the situation.
In a case before the Calcutta High Court, Midnapur Zamindary Co. v. Secretary of State, the Court had required the plaintiff to supply the amended plaint with the duly stamped paper which he failed to do so. It was held by the Court that further, the plaintiff will not be allowed to amend the plaint and the plaintiff was directed to pay an extra amount of Court fees. The plaint was also rejected.
If the suit is barred by any Statute (Order VII Rule 11(d))
As per Order VII Rule 11(d) of the Code, a plaint shall be rejected if the suit is barred by Limitation.
If a suit is barred by the Law of Limitation, the plaint of such a suit can be amended at the hearing. It is the duty of the Court to see whether there is non-disclosure of the cause of action or the plaint is barred under any law.
Wherever it can be shown by the plaintiff that the suit was filed within the time period of limitation, the provisions of this order will not be attracted. The computation of the period of limitation is a mixed question of law and facts.
For example – If a suit is brought against the Government without giving the requisite notice to the same under Section 80 of the Code of Civil Procedure, the plaint for such a suit shall be rejected. Section 80 of the Code requires a notice which needs to be served to the Government or the public officer before instituting of the suit.
In Bachchu v. Secy of State, a suit was brought against the Secretary. This suit was brought without giving prior notice as required by Section 80 of the Code. The plaint was rejected.
Landmark Cases
In Raghwendra Sharan Singh v. Ram Prasanna Singh, the cause of action had arisen when the plaintiff challenged the gift deed after a period of approximately twenty-two years from the date of the execution of the same. The plaintiff in the case has challenged the gift deed with the allegations that the gift deed is a showy one hence not binding.
The Hon’ble Supreme Court after hearing both sides, in view of the facts of the case, held that this suit is unequivocally prohibited by The Law of Limitation. And, the plaint needs to be rejected under Order VII Rule 11 of the Code.
Provisions for Rejection of plaint
Order VII Rule 11(e) requires that a duplicate copy of the plaint along with the original one should be filed for instituting a suit. The plaint is rejected if the plaintiff fails to do.
Furthermore, Order VII Rule 11(f) states that if a plaintiff does not comply with Order VII Rule 9of the Code, the plaint can be rejected.
Rule 9 Order VII of the Code specifies the procedure after the admission of the plaint. The plaintiff needs to attach a list of documents, a number of copies as required by the Court.
Other landmark cases on the rejection of the plaint
It was held in Kalepu Pala Subrahmanyam v. Tiguti Venkata, a revision petition was dismissed by the Andhra Pradesh High Court stating that a plaint cannot be rejected in parts. The plaint needs to be rejected as a whole.
It was held in Bibhas Mohan Mukherjee v. Hari Charan Banerjee, by the Calcutta High Court that an order which is passed for rejecting a plaint is a decree. And an appeal lies against the decree.
It was held in K. ROJA v. U.S. RAYU, by the Hon’ble Supreme Court that an application for rejection of plaint can be filed at any stage. The Court needs to dispose off such an application before the trial starts.
In Sopan Sukhdeo Sable v. Astt. Charity Commr., a suit which had been filed at an earlier stage of recording evidence, another application was filed for delaying the proceedings of the suit, such application is deemed to be rejected.
Under Order VII Rule 11(a) of the Code of Civil Procedure, only the pleadings of the plaintiff are looked into. Neither the written statement nor the averments can be considered for an inquiry under the said order. (Kuldeep Singh Pathania v. Bikram Singh Jarya)
Procedure on rejecting the plaint
Under Order VII Rule 12 of the Code of Civil Procedure, the procedure has been specified after the rejection of a plaint. According to the provisions, the Judge can make an order also recording the reasons for such order.
The language provided in the Code is mandatory and if the court does not make an order regarding the same, the plaint will still be deemed to be on record of the Court. (Parukutty Amma v. Ramaunni)
Extending time
It is upon the Court’s discretion to extend the time for applications under Order VII Rule 11 clauses (b) to(c) of the Code of Civil Procedure. This has been done to ensure that proper Court fees have been paid for filing the suit. Section 148 of the Code of Civil Procedure has given powers to the Court for extending the time to do an action which is prescribed or allowed by the Code of Civil Procedure.
Limitation on an application made under Order VII Rule 11
An application for rejection of plaint has to be filed by the defendant before the proceedings of the trial commences.
Order 7 rule 11 Locus Standi
For filing a suit, the plaintiff needs to have a locus standi. He/She needs to show that some legal right of the person has been violated. Such violation should also result in some injury caused to the person. If no legal right has been violated, the person will not have a locus standi for filing a suit. It is basically the ability of the party to show the Court that there was a sufficient cause of action behind the filing of the suit. Under Order VII Rule 11, the locus standi of the suit depends upon whether any grounds were violated which resulted in rejection of the plaint.
In Sh. Ved Prakash v. 3 S.H.O, the judgment was given by the Delhi District Court. The application was decided under Order VII Rule 11 read along with Section 151 of the Code of Civil Procedure and sought rejection of the plaint.
The plaintiff filed the suit for an injunction by way of which he claimed that he was the co-sharer of 1/6th share recorded in the Revenue Board. On the basis of certain findings, it was averred that the plaintiff had no locus standi or any cause of action for filing the current suit. It was thus held that the plaintiff did not have any cause of action or locus standi to file the case. The suit was dismissed on the grounds of being infructuous.
In Pirthi Singh & Ors. v. Chander Bhan & Anr., a revision petition was filed by the petitioner-defendant in the present case against the order of the Ld. Judge of Junior Division. It was pleaded by the plaintiff that the defendant has misled the Court by stating the wrong facts. Thus, the application was dismissed wherein the Punjab-Harayana High Court stated that there was no illegality in the order passed by the Ld. Judge. And, thus the petitioners had no locus standi to file the case. Thus, such dismissal.
Dismissal of the suit v. Rejection of the plaint
The difference between the dismissal of suit and rejection of plaint is that there no specific grounds on which a suit can be dismissed. If the summons has not been duly served upon the defendant, the suit is liable to be dismissed. Another ground is that if neither party appears on the day of hearing, then the Court can make an order dismissing the suit. Order IX of the Code of Civil Procedure states certain grounds on the basis of which a suit can be dismissed.
On the other hand, rejection of plaint occurs only under Order VII Rule 11 of the Code. The plaint is rejected on the grounds which have been mentioned under the said Order.
Conclusion
The Code of Civil Procedure is an exhaustive statute which covers the whole procedure which needs to be followed by all the Civil Courts in India. The plaint is the first step to filing a suit in the Court. It needs to be drafted with due diligence. It must include all the particulars that have been mentioned in Order VII of the Code.
Sample Application by the Defendant for rejection of the plaint under Order VII Rule 11
IN THE HIGH COURT OF LUCKNOW AT LUCKNOW
(Ordinary Original Civil Jurisdiction)
I.A. No. 768 of 2019
In
C.A. 3746 of 2019
IN THE MATTER OF:
Sujeet Bhaskar…Plaintiff
Versus
Sujata Bhaskar….Defendant
APPLICATION ON BEHALF OF THE RESPONDENT UNDER ORDER VII RULE 11 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE FOR REJECTION OF PLAINT
THE DEFENDANT MOST RESPECTFULLY SHOWETH:
That the plaintiff has filed this suit purportedly for eviction of the defendant and for damages. It is being stated that the plaint is liable to rejection under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908, as the plaint does not disclose within itself the cause of action required to be taken.
That without any prejudice towards the assertions made by the Defendants the instant suit does not have any jurisdiction. Thus, the plaint is liable to be set aside on this ground. The plaint does not disclose the publication of the impugned news articles which are required by law within Lucknow. It is to be noted that the plaint does not contain the name of the person or persons who perpetually “read the news articles on the website, and were shocked at the reports of the same.” which defamed the plaintiff. The plaintiff claims that the defamation occurred in Lucknow.
It is further submitted on behalf of the defendants that besides just reproducing the statements of the Defendant in the news articles on ParaBlog, the Plaintiff does not have evidence to prove the falsity and malice behind the statements so made. The Plaintiff nowhere has disclosed as to why he is claiming that the statements so impugned are untrue and are not based on a fair comment. Thus, it is respectfully being submitted on behalf of the Respondents that merely stating that some statement is defamatory does not render such a statement to be so unless proven.
THAT it is further submitted that the impugned news articles which concern the plaintiff are being justified by the defendant in the nature of ‘Fair Comment’. It is apparent from a bare reading of the written statement also. The Defendant has expressed an undisputed, independent and an academic view that was just based on facts. Such facts were admitted to by the plaintiff. The same has been mentioned in the pleadings which were filed by the plaintiff. It is unequivocal that the comments so made in the news article were based upon facts and a set of true statements in all its entirety. There is no malice on the part of the Defendant towards the Plaintiff. The Defendant has written news articles in praise of the Plaintiff as well.
Referring to the provisions of Order VII Rule 11(a) of the Code of Civil Procedure, a plaint is liable to be rejected when it does not disclose a cause of action in itself. Furthermore, the deliberate making of statements in support of the Plaintiff made by the Defendant is indicative of the fact that the Plaintiff has malafide intentions.
It should be noted that ParaBlog news articles deal exhaustively with the current affairs of the legal field in the country. The authors at ParaBlog aim at providing an informative website its users who can gain knowledge. The articles are read by academicians, researchers and other professionals who want to keep themselves updated with the developments in the field of law. The blog never has in the past, or never in the future will hurt the sentiments of any person via its writings and published articles.
THAT the application for rejection of plain is bonafide and has been made for the ends of justice.
It is further submitted that the question of rejection of plaint has to be ascertained in accordance with the provisions of Order VII Rule 11 which provides that a plaint shall be rejected if no cause of action has been disclosed in the same. In the present suit, the plaint is liable to be rejected on the same ground, as the plaintiff failed to disclose a cause of action.
PRAYER:
Wherefore in the light of the facts and circumstances of the case, the defendant humbly prays before this Hon’ble Court that the Court shall:
Reject the plaint;
Ascertain the costs and order them in favour of the defendant;
Pass another order that this Hon’ble Court deems to be fit in the facts and circumstances of the present case.
It is prayed accordingly.
Name and Signature of the Defendant
Thorugh
LucknowName of the Advocate
Date: June 29, 2019Advocates for the Defendant
Affidavit to be included by the defendant:
IN THE HIGH COURT OF LUCKNOW AT LUCKNOW
(Ordinary Original Civil Jurisdiction)
I.A. No. 768 of 2019
In
C.A. 3746 of 2019
IN THE MATTER OF:
Sujeet Bhaskar…Plaintiff
Versus
Sujata Manchandani…Defendant
Affidavit of Ms Sujata Manchandani, aged about 29 years, D/O of Mr Gurtej Manchandani, R/O M-28, Alpha Street, Gamma Nagar, Beta Pradesh – 226080
I, the above-named deponent, do hereby solemnly affirm and declare as under:
I am the Defendant in the present matter and am well versed with the facts and circumstances of the present case. I am authorised and am competent to swear and depose this affidavit.
I have perused the contents of the accompanying application under Order VII Rule 11 read in consonance with Section 151 of the Code of Civil Procedure and say the same is true to the best of my knowledge and derived from the records maintained by me
I say that adopt the contents of the accompanying applications part and parcel of my present affidavit as the same are not reproduced for the sake of brevity.
I, Sujata Manchandani, the above-named deponent do hereby declare and verify that the contents of para 1 to 3 are true to my best of knowledge and nothing material to this case has been concealed by me and no part of it is false.
DEPONENT
Verified at Lucknow on this 29th of June, 2019
[Sign]
Deponent
Date: 29/06/2019
Sample Reply by the Plaintiff on an application for rejection of the plaint under Order VII Rule 11
IN THE HIGH COURT OF LUCKNOW AT LUCKNOW
(Ordinary Original Civil Jurisdiction)
I.A. No. 768 of 2019
In
C.A. 3746 of 2019
IN THE MATTER OF:
Sujeet Bhaskar …Plaintiff
Versus
Sujata Bhaskar ….Defendant
REPLY ON BEHALF OF THE PLAINTIFF TO THE APPLICATION FILED BY THE DEFENDANT UNDER ORDER VII RULE 11 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908
THE PLAINTIFF MOST RESPECTFULLY SHOWETH:
On prima facie reading of the application, the plaintiff chooses to deny all the statements and averments made by the defendant, except those which are mentioned herein the reply:
That the contents of the paragraph no. 1 of the application are accepted to the extent that the Plaintiff has filed this suit against the Defendant for defamation, permanent injunction, and other reliefs. The other contents of the paragraph are hereby false and are liable to be rejected. Furthermore, it is being specifically denied on behalf of the plaintiffs that the plaint is liable to be rejected in accordance with the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908. It is also denied that the plaint fails to mention a cause of action. It is being submitted that what the defendant perceives as a fair comment has degraded the defamation of the Plaintiff in the eyes of a reasonable and prudent man in the society.
It is being submitted that the contents of paragraph no. 2 are misleading and hence are denied by the plaintiff. It is being denied that the plaint fails to disclose the publication of the two news articles within Lucknow. It is also being denied that the plaint does not disclose who read the articles and expressed shock at the news articles. It is also denied that the plaint is liable to be rejected on this ground. Furthermore, it is being submitted that the news articles were read in Lucknow. It is wrong to say that there was no cause of action or that the Hon’ble Court does not have jurisdiction to entertain the matter. The same way, these news articles were being read widely by the people in Lucknow.
It is being submitted that the contents of paragraph no. 3 are misleading and hence are denied by the plaintiff. It is being denied that the defendant has not merely reproduced the various statements made in the news articles. The Plaintiff does not make any attempts to demonstrate the malice behind the statements. It is thus submitted that the Plaintiff has rightly included the cause of action in the Plaint.
It is further submitted that the contents of paragraph no. 4 of the application are false and hence are being denied by the Plaintiff. It is further being submitted that the views expressed by the Defendant are not purely independent or academic in any way. It is also being submitted that the same comments also do not qualify as a “Fair Comment”. These comments are laced with falsity and are of defamatory value. It is a comment which is vindictive in nature. Such comments cannot be said to have been made in good faith per se. By making such statements, the Defendant has hurt the reputation of the Plaintiff.
It is being submitted that paragraph no. 5 of the application is based on falsity, is misleading, is incorrect and thus, this is being denied by the Plaintiff. It is being denied by the Plaintiff that he has not disclosed the cause of action. It is also denied that the present suit is liable to be set aside on the ground mentioned by the Defendant. It is also being submitted that the Defendant has failed to produce any grounds in the present application. The sole purpose of the Defendant is to delay the proceedings of the Court by filing such frivolous and vexatious applications.
Lastly, it is being submitted on behalf of the plaintiffs that contents mentioned in paragraph no. 6 of the application are also incorrect, misleading and hence are denied. It is being submitted that the plaint was filed with bonafide intention and for the ends of justice. It is also being submitted that harm and prejudice will be caused to the applicant if the application is not allowed.
REPLY TO THE PRAYER:
The Plaintiffs pray before this Hon’ble Court that in accordance with the facts and circumstances of the case as mentioned in the Plaint, and the present reply, that this Hon’ble Court may be pleased to dismiss the present application for rejection of plaint with exemplary costs.
Name and Signature of the Plaintiff
Through
Lucknow
Name of the Advocate
Affidavit to be included by the plaintiff in the reply given:
IN THE HIGH COURT OF LUCKNOW AT LUCKNOW
(Ordinary Original Civil Jurisdiction)
I.A. No. 768 of 2019
In
C.A. 3746 of 2019
IN THE MATTER OF:
Sujeet Bhaskar…Plaintiff
Versus
Sujata Manchandani….Defendant
Affidavit of Mr. Sujeet Bhaskar, aged about 49 years, S/O of Mr. Karanjeet Bhaskar, R/O X-28, Little Winching, Near the Godric Hollow – 226090
I, the above named deponent, do hereby solemnly affirm and declare as under:
I am the Plaintiff in the present matter and am well versed with the facts and circumstances of the present case. I am authorised and am competent to swear and depose this affidavit.
I have perused the contents of the accompanying reply which is being filed by me, has been drafted by my attorney under my instructions.
I have read and understood the contents of the affidavit to the best of my knowledge.
I, Sujeet Bhaskar, the above named deponent do hereby declare and verify that the contents of the para 1 to 6 are true to my best of knowledge and nothing material to this case has been concealed by me and no part of it is false.
DEPONENT
Verified at Godric Hollow on this 29th of June, 2019
[Sign]
Deponent
Date: 29/06/2019
To know more about the theoretical part of Order 7 Rule 11, please Click Here.
Investing in real estate is one of the safest and easiest options available to buyers and investors, with minimum hassle and lesser procedural requirements when compared to other forms of equity. However, this sector too has its own jargons and semantics- what is circle rate of the property, how it will affect your investment, what is market value, what is Khata, etc. This article will specifically deal with what circle rate of the property is, how is it calculated, what is the legal reasoning behind circle rate of property and what are the amendments brought in through budgets towards changes in the circle rate of the property.
Circle rates are the speculative prices at which a commercial property/an apartment/a built-up house is sold or transferred. This rate is set by the state government’s revenue department. The rates are merely speculative and can differ from one locality to another. Although in most cities properties are sold above the circle rate, in some cases, the property might be sold at the prescribed circle rates.
The stamp duty has to be paid on this pre-decided circle rate. In some states, this rate is also called as Ready Reckoner or Guidance Value (eg: Karnataka) or stamp duty value, i.e, the rate on which the stamp duty is to be paid. This circle rate depends on factors such as the market value in the area, infrastructure, facilities available, etc. The Government of Delhi, for example, has divided the city into 8 categories- Category A to H. Category A is the most expensive and posh area and Category B consists of the property with the lowest value.
The market value of a property is the price which a buyer is willing to pay towards a property. It may not be the final price and may fluctuate according to the agreement between the seller and the buyer. Where the supply is low and the demand for a particular area, the prices will be high. Even though the market value and circle rate are inter-dependent and connected, the two have little impact over one another. Usually, the market value is always than the circle rate of the property. This explains two different perceptions of the market i.e., from the point of view of the state authorities and the other explains the expectations of the market. This phenomena also explains why there is a flow of black money in the real estate sector.
There is an apprehension that the real estate transactions might reduce if the circle rate is a line in line with the market value. However, in order to decrease the black money input into the sector and also to increase the rate of tax to the state’s revenue department, it is advisable to revise the circle rates every quarter or six months once.
According to section 50C of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’), if the circle rate of a property is, for instance, 90 lakhs and the market value is 87 lakhs, the buyer has to pay stamp duty on the circle rate i.e., 90 lakhs, even though he bought the property for a lower rate. The seller, on the other hand, should treat the difference between the circle rate and market price (3 lakhs) as ‘income from other sources’ and pay tax. He is liable to calculate the capital gains tax based on the circle rate. However, the taxpayer may approach the Assessing Officer claiming that the fair market value is genuinely lower than the circle rate. The officer may request the valuation officer to conduct the valuation of the said property. If-
The value ascertained is lower than the circle rate, then such value is deemed to be the sale price.
The value ascertained is higher than the circle rate, then the circle rate is deemed to be the sale price.
2016 Amendment
The 2016 budget brought out some necessary changes in the tax implications on circle rate of the property. In a case where the date of agreement fixing the amount of consideration for a transfer of property and date of registration are not the same, then the stamp duty on the date of the agreement may be taken for the purpose of calculating full value consideration. This provision will apply only when the consideration is paid by the way of an account payee cheque or bank draft or online transfer, on or before the date of agreement of transfer of the property.
As per section 56(2)(x) of the Act, if a buyer purchases a property below circle rate, then the difference, if more than Rs 50,000 would be taxable under the head of ‘income from other sources’ under this provision. However, if there is a difference in the circle rate from the date of agreement to the date of registration, then the price on the date of agreement shall be taken as the sale price. This exception shall apply on in cases where the consideration is paid any mode other than cash, on or before the date of the agreement. A reference to the Assessing officer for change in the value of the circle rate can also be made, just as under Section 50C.
This amendment denotes that tax is payable not only by the seller (now through capital gains- Section 50C) but also by the buyer (difference in the circle rate and actual price- taxable as ‘income under other sources, Section 56(2)(x)). There is double taxation- on the buyer and seller.
2018 Amendment
The budget proposed that when there is a variation between the circle rate and the actual rate of the property, and such variation is not more than 5%, then sections 50C and 56(2)(x) would not apply. In simple words, there would be no additional tax on the parties involved. This step becomes important for genuine transactions and thus would reduce the burden on the parties and will no longer be required to go to the valuation officer for every change in the circle rate.
The Madhya Pradesh government on 19-06-19 reduced the guideline rate uniformly across the state by 20%. However, the registration rate in an urban area has increased from 10.3% to 12.5% and in rural areas from 7.3% to 9.5%. The changes do not affect the net revenue to the state. However, this does not give any advantage to the homebuyers since the registration rates have increased.
2. Karnataka
The Department of stamps & Registrations, Karnataka, through its final notification, increased hiked the guidance value from 5% to 25%, with effect from January 1, 2019. The previous hike was effected in March 2017, which ideally should be every 6 months or one year once. Thus, with the increase in the circle rate, homes would be expensive with an increase in the revenue to the State Government.
3. Uttar Pradesh
The Uttar Pradesh government, across Noida and other places have removed the 6% surcharge on properties and 25% surcharge on shopping malls, in order to increase the revenue to the state government. This decision was taken recently in July 2019.
How to Calculate the Circle Rate of Property
State governments assign the circle rates of each property, depending upon the type of property, amenities available, area, etc.
In Karnataka, for example, one can visit the Kaveri Online Services, Department of Stamps and Registrations, Government of Karnataka and find out the valuation of the property by entering the Registration District, SRO office, Area name, Taluk, village and Hobli.
In Tamil Nadu, the guidance value can be calculated by visiting the Registration Department, Government of Tamil Nadu. One can find out the circle rate by selecting a particular zone and street name, along with the village name and the sub-registrar’s office.
AREA
CIRCLE RATE (per sq. Ft)
MARKET RATE (per sq. Ft)
Bangalore (Jalahalli)
2000
2,700-4,000
Mumbai (Worli)
32,293
60,000-62,000
Kolkata (Park Street)
12,000
13,000-18,000
Delhi (Pitampura)
9,883
11,600-13,000
Chennai (Gudavancheri)
2000
3,100-4,000
Source- Capri Global Capital
The stamp duty payable on the circle rate of property depends on various factors such as status of the property (whether old or new), Location of property (urban, rural, metropolitan, suburban etc), Age of owner (discounts are given to senior citizens in some states), gender of owner (some states give concessions to female owners), usage of property (commercial or residential property), type of property (apartment or independent house etc).
Stamp duty can be paid under the non-judicial stamp paper, where the parties will enter into an agreement and consequently within 4 months, it is required to be registered at the sub-registrar’s office. Stamp duty can also be paid under the franking method, where the agreement would be entered into in a plain or a printed paper, and the same is submitted to a bank which processes the documents through a franking machine. Lastly, an e-stamping can also be done and the fees can be paid through RTGS/NEFT online.
CITY
STAMP DUTY RATE
Mumbai
3-6%
Chennai
7%
Bengaluru
5%
Delhi
4-6%
Kolkata
5-7%
Source: Registration Departments of respective state governments and housing.com
Housing.com and Registration Departments of respective state governments.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
This article has been written by Shashwat Pratyush a student of Chanakya National Law University. In this article, he will be discussing Dowry Deaths in India.
Abstract
When a woman enters into a union she has many salubrious expectations. She would like to a happy married life. She would expect to be a mother someday and then expect to be mother-in-law,grand-mother and so on. And deserve to be a dignified status in society. All these are worn out by the cruel hands of dowry-related deaths.
Dowry deaths is violence by the husband and his family with a motive of extortion of gifts and other demanded from time to time against a woman. The unnatural death of recently married woman vital to women’s moment in the Indian society through the meaning of dowry has changed over time but harassment and cruelty have remained the same to some extent. Protection of women from this social evil is the responsibility of the state. Government has enacted many laws regarding the prohibition of dowry like the Dowry Prohibition Act, 1961 and so on. On the recommendation of 21st law commission report certain Penal provisions were inserted. Many educational and awareness programme was run by the government and non- governmental organisation with the intent to the lesser down the rate of dowry death. To deal with this brutal kind of social evil section 304 B Dowry death, Section 498A (Cruelty by Husband or in-laws i.e. domestic violence) 113 B (Presumption as to dowry death) was incorporated in Indian penal laws around 1986 to eradicate the nuisance of dowry death.
Introduction
Marriage as a social institution is recognised as a civilized social order where two individuals, capable of entering into the union, have pledged themselves to the institutional norms and values and promised to each other a very strong bond to sustain and maintain the marital obligation. It works as a root for the continuance of the human race. Despite all the promises made at different occasions of marriage ceremony that the individual incompatibilities and attitudinal differences for non-adjustment or refusal for adjustment may come to an end, but certain circumstances occurred where the husbands and his families demand i.e. Dowry which is not fulfilled and sometimes a perverted sense of revenge occurred.
Dowry means the transfer of parental property at the marriage of a daughter. Dowry is a payment of cash or gifts from the bride’s family to the groom’s family upon marriage. It may include cash, jewellery, electrical appliances, furniture, crockery, utensils, car and other household items that help the newly married couple to start their life journey. Dowry is an ancient custom, and its existence may well anticipate records of it. Dowries continue to be expected in many parts of the world and are sometimes used as a condition of the contract that if not accepted then the wedlock came to an end, particularly in parts of Asia and North Africa. The custom of dowry is deep-rooted in Indian society over the years, it has turned into a social peril, too entrenched and devilish to be tackled by reformers and law-makers. Though the efforts for the eradication of the dowry practise go back to more than a century, it has perhaps become the most alarming social issue during the last two decades or so as manifested by the growing violence against women emerging from matters relating to dowry. It is generally understood that dowry, in its original form, was not based on greed and extortion as it quite often the case today but present a token of love and regard for the bridegroom. The term Varadakshina, mentioned in the Hindu Shastras, was a Dakshina of a purely voluntary nature without which the meritorious act of Kanyadaan would not be complete. The role of the bride’s parents was to provide security and compensation for inheritance rights to the daughter in order to enable her to lead a dignified and harmonious relationship with her husband and his family.
Marriages are made in heaven indeed, but mother-in-law, sister-in-law, husband and other relatives are being actively involved in the dissolution of marriage for the lust of dowry. Dowry death, murder-suicide, and bride burning are burning symptoms of peculiar social ailment and are unfortunate development of our society. During last few decades India has witnessed the dark evils of the dowry system in a more acute form in almost all parts of the country since it is practised by almost every section of society; irrespective of religion, caste or creed to which they belong. It is almost a matter of day-to-day occurrence that not only married women are harassed humiliated, beaten and forced to commit suicide and ill-treated but thousands are even burnt to death because parents are unable to meet dowry demands.
In India, the dowry system puts a great financial burden on the bride’s family. The law-makers, taking the note of seriousness and consequence of the problem legislative measures to plug the loopholes in the law as well as to enact new provisions so as to make the law rational and effective. The Dowry Prohibition Act, the first national legislation to deal with the social evil of dowry, was passed in 1961. The object of this act is to prohibit giving and taking of dowry. The act lays down a number of preventive and punitive provisions but, as could be foreshadowing, the objectives have not been achieved. Though the dowry problem as such may not be the appropriate target of criminal law, the violence connected with a dowry, sometimes fatal, is certainly within the functional domain of criminal law. As a result of speedy rate of dowry-related deaths and failure of dowry legislation, which results in certain substantial and procedural changes in law criminal law as Criminal Law Amendment Acts, 1983 and 1986. In Indian Penal Code, two new offences have been created under section 304-B and 498-A. The offence under section 304-B called as the Dowry death whereas section 498-A called as Husband or relative of husband of a woman subjecting her to cruelty, Code of Criminal Procedure includes section 174 and 176 deals with the investigations and inquiries into the causes of unnatural deaths by police and magistrate respectively and in Indian Evidence act new section 113-B called as presumption in cases of dowry death that the person who is shown to have subjected the woman to cruelty or harassment soon before her death .
Despite the changes in Indian Criminal law reflects serious efforts by legislators to put an end to dowry-related crimes, and although they have been in effect for many years now, they have been largely criticised as being ineffective. While the laws give great powers, they are not effectively enforced by the police or by courts[1]. It takes a lot of time for a case to get it listed in the court and the husband and families acquitted even for murder because women and their families cannot prove beyond a reasonable doubt. There is a criticism of dowry related provisions in India are often misused, particularly section 498-A of IPC because of mechanical arrest by the police. In the case of Preeti gupta & anr. V. State of Jharkhand & anr.[2]Section 498-A was challenged and supreme court regrets about the possible misuse of anti-dowry laws and recommend a detail investigation.
Enactment of legislation related to dowry
The Dowry prohibition act, 1961
The first national legislation related to dowry was enacted as the Dowry Prohibition Act, 1961. The act lays down a certain number of preventive and punitive provisions but, as could be anticipated, the objectives have not been achieved. The failure is not primarily due to a few defects in law but on the part of government also regarding its enforcement but because of the fact that the dowry practise is too well-entrenched among all the cross-sections of the society. The lack of enforcement of government officials is that no action is taken on registered cases as well as people are not aware of the legislation. Though the legislation and judiciary provide continue support still the situation not changed.
In the year 1961 dowry prohibition act was amended twice to widen the meaning of term “dowry” and enhancement of punishment for the various violations of the provisions of the act. Section 2 of the act states that any property or valuable security from one side to another either given or agreed to be given in future directly or indirectly in connection of marriage amounts to dowry. The expression used in the original Act was “as consideration for the marriage of such parties” was interpreted by the court to give a narrow meaning of the term “dowry”. In Inder Sain v. State[3], it was held that “consideration” was restricted to motive or reason, compensation or reward to marriage and would not, therefore, include any property demanded or given subsequent to marriage. The expression “any time after the marriage” has been brought to replace “after marriage” to eliminate a restricted interpretation of the statute. The concepts of gift in Indian marriages are only allowed which are customary in nature, which does not create a financial burden on a family. A list of such presents, along with value and description, is to be prepared and must be signed by the bride and bridegroom.
In case of Sanjay Kumar Jain v. State of Delhi[4] it was said that “The dowry system is a big slur and curse on our society, democracy and the country. It is incomprehensible how such unfortunate and condemnable instances of dowry deaths are frequently occurring in our society. All efforts must be made to combat and curb the increasing menace of dowry death. The legislature was seriously concerned about this unfortunate reality of our society and to curb combat the increasing menace of dowry deaths with a firm hand the Dowry Prohibition Act, 1961 was enacted.
Some stringent penal provisions have been enacted or amended from time to time to stop from taking and demanding dowry. Under section 3 of the act giving and taking of dowry is punishable with a minimum term of 5 years and a fine of Rs 15,000 or value of dowry whichever more. Similarly demanding of dowry is also punishable under section 4 for the term of six months to five years and fine up to Rs 15,000. After a couple of amendment the act tries to curb this social menace. Section 7 provides persons and agencies who may initiate the proceedings (a) police (b) aggrieved person (c) parents and relatives (d) any recognised welfare institution or organisation Section 8 tries to make act harsher by adding offences under the purview of non-bailable and cognizable. Further section 8-A states that burden of proof lies on person who denies offence.
A common rehearse in marriages are that articles and ornaments of bride are immediately taken into possession by husband or his family can transferred to woman or her heirs by virtue of section 6 with period of three months failing of such act will amount to imprisonment from six months to two years and fine from five to ten thousand rupees. Supreme Court in case of Pratibha Rani v. Suraj Kumar[5] held that taking possession of bride articles will amount to criminal breach of trust punishable under section 405 of penal code.
A joint parliamentary committee examining the working of the act in 1982 and gave two reasons for abject failure of act is defective definition of dowry and lack of enforcement instrumentality. Though, definition of dowry has been amended and enforcement provision has been actively worked after the committee’s report of 1982.
Indian Penal Code, 1860
The appropriate target of criminal law not only limited to dowry problems but the violence connected with dowry also comes under the purview of criminal law. Failure of dowry legislation and increase in rate of dowry death led to the Criminal amendment in the year 1983 and 1986 by adding section 304-B and 498-A. In brief, we can say that there are four situations where married woman is subjected to cruelty and harassment leading to the commission of an offence. Firstly, Dowry Death-Section 304-B IPC:- The offence under section 304-B defines “Dowry Death” is the death caused to woman by burns or bodily injury, or under unnatural circumstances within seven years of her marriage ,where it is shown that she was harassed or put to cruelty by husband or his relatives in relation of dowry the punishable with a term of seven years to life imprisonment. The period of seven years would be considered as cut period for reason that seven steps taken by bride and bride groom of the sacred nuptial fire for completion of marriage where one step is considered as one year. Supreme Court in the case of state of Punjab v. Iqbal Singh[6] explained the period of seven years as it is considered to be turbulent one after which the legislature assumed that the couple would have settled down in life.
The term dowry has not been defined in the Indian Penal Code, whereas section 304-B explanation affirmed that dowry shall have the same meaning as defined in section 2(1) oof the Dowry Prohibition Act, 1961.
Essentials of Dowry deaths under section 304-B
Death was caused by burns or bodily injury or otherwise than under normal circumstances.
Death should have occurred within seven years of her marriage.
Woman must have subjected to cruelty or harassment by husband or his relatives.
Cruelty or harassment should be in connection with demand of dowry and soon before death.
In case of Satbir Singh v. State of Haryana[7] the Apex Court held that the prosecution is able to establish the ingredients of section 304-B, IPC the burden of proof of innocence shifts on defence. The provisions under section 304B,IPC are more stringent than that provided under section 498A of the Penal Code . The offence is cognizable, non-bailable and triable by a court of Sessions.
In case of Mustafa Shahadal Shaikh v. State of Maharashtra states that the language used under section 304-B “Soon before death” means no definite period has been mentioned under the Penal Code as well as under section 113-B of Indian Evidence Act. Accordingly, term “Soon before death” determined by Courts depending upon the facts & circumstances of case. However it would imply that interval should not be much between the cruelty or harassment concerned and death in question. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
To curb the practice of dowry death there is an urgent need to take punitive and preventive measures with iron hands. At the same time law must be made more effective and police should be more watchful with respect to these offences. Supreme Court always try to take a note of dowry abuse which results in dowry death. So, in the case of Rajbir v. State of Haryana[8] apex court directed to registrar generals of all high courts to circulate to all trial courts add section 302, IPC to charge of section 304B IPC so that death sentences could be imposed on heinous and barbaric crimes and stated that dowry death cases to be charged both under section 302 and 304B of IPC. After the Apex Court decision, a person convicted of dowry death would be charged under section 302 as well as section 304-B of IPC.
Secondly, Cruelty on woman by Husband or Relatives-Section 498A, IPC: – When her husband or his family member subjects the woman to cruelty or harassment. Cruelty by his husband or relatives has been made punishable with imprisonment up to three years and fine u/s 498-A. The word cruelty means both mental and physical torture. It consists of any wilful conduct likely to drive the woman to commit suicide or to cause danger to her life, limb or health, mental or physical or harassment to coerce her or any other person by making an unlawful demand for dowries such as property or any goods.
In case of Vijeta Gajra v. State of NCT Delhi[9] it was held that foster sister is not “Relative” within the meaning of section 498A, IPC to fix liability for causing cruelty against the complainant.
Section 498A, IPC and Section 4 of the Dowry Prohibition Act do not attract double jeopardy. In case of Inder Raj Malik v. Sunita Malik[10], the Delhi High Court held that a person convicted both under section 4 of Dowry Prohibition Act and section 498A of Indian Penal code does not come under the ambit of double jeopardy under article 20(2) of Indian Constitution. The prohibition of Dowry Prohibition act and Indian Penal Code distinguishes from each other as in earlier enactment on demand of dowry is punishable, cruelty is not necessary where in later enactment presence of cruelty is a necessary element for section 498A of Indian Penal Code. The Delhi High Court has taken a pragmatic approach in the impugned case and said that the word ‘cruelty’ is well defined.
In the case of Arnesh Kumar v. State of Bihar[11] the petitioner approached the Supreme Court by way of special leave petition for grant of anticipatory bail in which he was unsuccessful earlier. Section 498A of IPC was enacted with avowed object to combat the menace of harassment to a woman by husband and his near relatives. Supreme Court said that it is a fact that section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provision that is used as a weapon rather than shields by disgruntled wives, the simple way to harass is to get the husband and his relatives arrested under this provision. In a quiet number of cases old and bed-ridden fathers and mothers of husband, their sister living abroad who never meet with each other will also get arrested so the Apex Court gave following directions before arresting under section 498A of IPC:-
State government to instruct Police not to arrest without a warrant unless feels necessity and fulfilments of all parameters laid under section 41 of Cr.PC
All Police officer shall provide with a check list containing specified sub-clauses under section 41(1)(b)(ii) and must be filed and furnish the reason and material which necessitated the arrest.
The magistrate while authorising the detention of the accused shall peruse the report furnished by the police and after recording its satisfaction may authorize detention.
The decision not to arrest was forwarded to magistrate within two weeks from the date of institution of the case with a copy that arrests not made under offence referred.
When, such person, at any time, fails to comply with terms of notice or unwilling to identify himself then the police may arrest for offence mentioned in the notice.
Thirdly, Intentional Death of women –Section 302 IPC: – If a person intentionally causes woman death then punishable under section 302 IPC.
Fourthly, Abetment of Suicide of Woman- Section 306 IPC:- If husband and his relatives create a situation which led to the suicide of woman within seven years of marriage fall within the ambit of section 306.
Code of Criminal Procedure, 1973
Section 174 and 176 deals with the investigation and enquiries related to the causes of unnatural deaths by police and magistrate respectively. The amendment act of 1983 makes mandatory for police to send the body for post-mortem examination if the death of woman occurred within seven years of marriage in a matter of suicide or any dubious matter. It also empowers executive magistrate to inquiry into the death of a woman in similar circumstances.
Indian Evidence Act, 1872
A new provision, section 113B has been created regarding the burden of proof in dowry death according to which court has to presume that a dowry death was caused by the person who is shown to have subjected the woman to cruelty or harassment soon before her death.
In view of the nature of the dowry offences that are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence necessary for conviction is not easy to get. Accordingly, amendment act 43 of 1986 has inserted section 113B in the evidence act, 1872 to strengthen the prosecution hands by permitting a certain presumption to be raised if certain fundamental facts are established and the unfortunate incident of death has taken place within seven years of marriage.
Section 113B of Indian Evidence act states that if it is shown that soon before the death of a woman such woman subjected to cruelty or harassment for, or in connection with any demand for dowry death under section 304B IPC.
In the case of State of W.B v. Orilal Jaiswal[12] it states that in spite of presumption the standards of proof and defence will remain the same.
Impediments in implementation of the law
Once again the rich Indian legal system has failed to make any appreciable repair in the unfortunate situation in which dowry victims are placed. The fault and infirmities are detectable in almost all the factors involved in the implementation of laws: Social aspects, Police perceptions and attitude and infirmities inherent in the functioning of the medico-legal and judicial system.
Social Factors
Administration of justice in criminal cases is itself a challenging job and it becomes more difficult when minimum social support is not there in society. Generally, there are no witnesses to transaction leading to domestic cruelty or harassment and unnatural death except the family members, some of whom might accomplice and some might not support due to family pressure. More often than not, the neighbours, who might be having some clues or evidence against culprits and unwilling to testify something because of the fear of spoiling the neighbourly relation. They hassles apprehend regarding the police and court proceedings. Worse than the indifferent attitude is the partisan attitude of neighbours favouring the culprits.
Many young women can be saved from cruelty, harassment and unnatural deaths if they are insulated from the source of violence in proper time. Such recourse cannot be done or not possible due to traditional constraints. Despite the ill-treatment, some parents advice their daughters to keep staying with husband and his relatives which sometimes result to the avoidable tragedy.
Police and Law Enforcement
In society, the work of the police is to act as a shield for general mass but in reality, they create fear in mind of the public at large by an act of police. The police are also accused of attitudes, practices and perception which reduces the likelihood of the successful implementation of laws in the present context. The usual allegations which public made at police are: reaches too late on a crime scene, distorting the events in recording the First Information Report, always try to prefer dowry deaths as suicide and carrying the investigation in less proper manner and leisurely fashion. The police treat violence against women as a family affair and always unwilling to register case itself. Some of the lacunas of police can be seen in some Supreme Court Cases like in case of Bhagwant Singh v. Commr. of Police Delhi[13] it is supported by Apex Court that incidence of unnatural deaths is much higher than indicated by police. Police diaries are not kept properly and produced before a magistrate. The investigating officer changed frequently which badly affect the investigation. Se of the shortcomings of the police is attributed to corruption.
Police have their own explanation that there is an unsatisfactory state of affairs. Firstly, inadequate evidence due to independent witnesses. The dying declaration which is a substantial piece of evidence always contradicts with a statement of connected persons. Forensic evidence is also generally helpful it would be better if experts are brought to the victim at sight of occurrence. Inordinate delay in medical reports.
The Judiciary
Usually, on a number of occasions, the Supreme Court expressed anguish and shocking view regarding deaths of young brides. In Virbhan Singh v. State of U.P[14] apex Court said in view of increasing deaths of brides, such dastardly crimes whenever detected and proved then ruthless action and deterrent punishment must be imposed. Supreme Court concern about the acquittal of some alleged culprits but the state cannot approach apex Court in appeal. In Samunder Singh v. State of Rajasthan[15] the court opined that anticipatory bail cannot be given in cases of bride burning and dowry deaths. Some dissatisfaction occurred at trial level itself by the certain assumption of courts like a person with 100% burn not fit for dying declaration. If on behalf of harassment victim some other reported matter the matter not reported which creates a lacuna in Indian legal system.
Conclusion
Dowry death is a social curse which is a burning issue in Indian society. Organized approach by women welfare organizations, police, public servants and judiciary by applying deterrent punishment for dowry deaths culprit. It can be observed that government of India along with Indian judiciary makes co-operative and supportive law to safeguard the life interest and dignity of women and provide further justice to the victim of harassment or cruelty by husband and his relatives. Change in education system led to an improvement in the education status of female and door to door employment service will lesser down dowry deaths. Still, certain corrective measures need to adopt to eradicate or at least curb this social menace of dowry death, but most importantly it needs a public will and commitment to shun away materialistic greed of dowry demands.
In cases to curb the rate of dowry deaths, harassment or cruelty more female police personnel should be inducted so available in a situation relating to unnatural deaths of women. In the interest of proper investigation and justice, the investigation cannot be done below the rank of assistant commissioner. Punishment for abetment of suicide must be raised to up to seven years. A rational and practical approach to the above-mentioned matter will certainly be helpful.
Endnotes
[1] Syed M. Afzal Qadri, Lotika Sarkar & Ahmad Siddique, Ahmad Siddiques criminology & penology (2009).
This article has been written by Siddharth Shukla, a student of Jindal Global Law School.
Introduction:
Right to privacy is one of the most important topics in the contemporary debates. Having gained such an attention in the current scholarship, it has become eminent for carefully analysing the revolutionary Judgement on right to privacy, K.S. Puttaswamy v. U.O.I.,[1](referred as Puttaswamy hereafter) this case has cleared the stance of Indian Constitution on right to privacy. The decision was delivered by nine judge bench of Supreme court, declaring Right to Privacy as a Fundamental right under Article 21 along with the Part III of Indian constitution.
Definition
Comparative Interpretation
Comparative constitutional law allows one state to ameliorate its legal system by understanding the rules and framework of another country.[2] This approach is used for judicial interpretation as well as during the constitutional making.[3] One of most the essential elements of the comparative approach is its manner in which the courts depicts the similarities in the provisions of various constitutions and statutes around the world about various issues in order.[4] As famously quoted by R. H. Graveson “People are bound together by common problems and by the desire to share in the achievements of other nations”[5], it is not wrong to assume that all the countries faces similar problems. In the era of Globalization and modernization, this is one of the most effective as well as efficient interpretation as if countries relies on certain issues that have been previously dealt by other countries it will not only save time of the court but also the costs involved in the decision making. Constitutional design was prime focus of the newly independent culturally diverse nations.[6] Similarly, the role of courts has increased in country which is often known as judicialization. Such “judicialization” and “constitutionalising” were key factors in spread of comparative analysis.[7] With such rising importance of the judiciary in social and political part of the country, many countries were confronted with similar problems. So, these courts started referring foreign law for solutions as some of the newly democratised countries found it easier to incorporate the ideas of other countries with developed jurisprudence.[8]Puttaswamy is an excellent example of judicialization as it has created a new right from interpreting the Indian constitution.
Analysis
In South Africa, the constitution explicitly provides for courts that it “may consider foreign law” while interpreting its Bill of Rights and legitimises comparative constitutional interpretation.[9] However, Indian constitution does not mention anything about the use of foreign case laws. For interpretation of some provisions of Indian Constitution, Indian judiciary has relied on constitutional precedents from U.S.A., Canada, Britain and Australia.[10] Foreign precedents have persuasive value, not binding on the Indian courts[11]. Indian courts have relied on foreign precedents for the provisions of Indian Constitution that were based on foreign constitutions[12]. Now, Article 21 of the Indian constitution 1950[13], is based on the Magna Carta of 1215, the 5th Amendment of the American Constitution Article 40(4) of the constitution of Eire, 1937 and Article XXXI of the Constitution of Japan, 1946[14]. Therefore, Puttaswamy is justified in relying on the American case laws as the provisions of the Indian Constitution were based on the similar ideas and it would be helpful in establishing the true nature as well as building the scope of the right to privacy.
In the judgement of Puttaswamy J. Chandrachud has referred to the development of right to privacy as fundamental right in countries like USA, UK, Canada and South Africa. This section shall be focussing on those parts which deals with the development of right to privacy in USA. Click here
Like India, USA did not contain the aspect of right to privacy explicitly in the constitution, it has been incorporated through judicial reasoning in the various amendments in the American Constitution. The jurisprudence developed from the primary focus on individual’s private property to several aspects of personal life such as conscience, education, abortion, communication and conception. Puttaswamy traces the evolution of right from Boyd v. United States[15], the case where the question of privacy first arose. Continuing the legacy, judiciary finally laid down “reasonable expectation of privacy test” in the famous judgement of Katz v United States[16], the fourth amendment entails the right to privacy if a person expects privacy(subjective) along with such expectation being “reasonable” for the society. Further, in the timeline judiciary in Smith v. Maryland[17], realized that the limitations of Katz rules when such situations arise which cannot be incorporated under fourth amendment. In a nutshell it can be said that the concept of right to privacy was intrinsic to the constitutional enactments within the amendments and the judiciary through these enactments the meaning of right to privacy was derived. Puttaswamy too has shown that right to privacy was embedded in article 21 of the Indian constitution.
Use of comparative politics is justified in the privacy judgement as it is encouraging and instigating the process of self-reflection[18]. It has two benefits. First, a higher requirement is set for judiciary which disagrees with the internationally accepted position. For example, if the court had ruled against the “right for privacy” then it would have to prove its position to a substantial extent for it’s different opinion from the other comparable legal systems. Secondly, It is an efficient and cheapest method to formulate law[19], especially in a country where the process of law making through legislature is too slow in updating the outdated laws with the current internationally accepted position in some key areas.
Naz foundation v. Govt. of NCT of Delhi[20], was a decision that had used comparative analysis. In this judgement the court was confronted with the question of constitutionality of section 377 of Indian Penal Code[21], which prohibited unnatural sex. This case was also cited in Puttaswamy, Though Naz was later overruled in Supreme court, it’s comparative analysis is often acclaimed by scholars of Comparative constitutional law
The decision appears to be immune from the idea of cherry-picking, as it has relied on a vast variety of countries like U.S.A., U.K., Canada, South Africa. Chances of cherry picking is reduced as the development of the right to privacy has been discussed in detail from such countries.
But if we compare this case with the Naz foundation v. Govt. of NCT of Delhi[22], we can infer both the cases have not restricted themselves to only to western dominant judicial systems only. Naz had referred to cases from non-English speaking countries like Nepal and Fiji. In addition to that all the decisions from different nations were weighed equally. On one hand Puttaswamy recognised the trends on privacy in countries like Canada, South Africa, Naz acknowledged the current trend of decriminalization of homosexuality in third world countries like Nepal, Hong Kong, Fiji. In the aspect of referring to non-western jurisdictions, Naz has much wider scope than Puttaswamy case. Naz reference to such countries have broken the myth that comparative analysis is not just limited to one-way transfers only[23].
Definition
Progressive Interpretation
Courts must not accept an interpretation that hurdles the progress of social unification[24]. Such an interpretation must be followed which is in line with the ideas of the Preamble along with part III & IV of the constitution such that it provides for political, social justice and socio-economic empowerment to the weaker sections and preventing any injustice to them[25]. It is correct to assume that the provisions of the constitution has to applied to changing circumstances and context as such they may happen in the course of the advancement of the community[26]. As J. Krishna Iyer famously describes constitution as a mechanism under which the laws have to be created and it is not an Act, “which describes what law is to be”[27]. But while using the method of interpretation the court should not consider the construction which is merely based on the changing popular opinion[28].
Analysis:
The Judgement has made it clear that the right to privacy is “not an elitist construct”. Political and Civil rights are not subservient to the socio-economic rights. This right should be available to the public irrespective of their social class. Autonomy and dignity has been identified as essential to an individual’s privacy and wellbeing. The idea of “dignity” and “liberty” has been construed through the preamble of the constitution aided with Part III. The right to privacy has been distinguished from a privilege. As I have already defined the aspects of progressive interpretation, this interpretation falls well within the ambit of the interpretation. Interests of the weaker section has been specifically catered. The court appears to acclimatise the constitution with the current progress of the society. With the Puttaswamy judgement many pending amendments related to personal autonomy can now be proposed to the legislatures. One such amendment is the amendment related to the Medical Termination of Pregnancy Act 1971[29].(referred to as Act hereafter) Incorporation of Privacy as a fundamental right can have important impact over the issues related to bodily autonomy like abortion. J. Chelameshwar has mentioned in the judgement that the concerns related to privacy arise when the state intervenes into the body of subjects. The question of abortion for women must fall under the gamut of privacy. According to J. Nariman’s opinion the right to abort must be included in the list of “large number of privacy interests”. In India the right for women seeking abortion is conditional on many aspects. A woman must take the opinion of medical practitioners for abortion (for 12 weeks pregnant), The Act does not provide for abortion to a married woman if she is unprepared to have a child. Her personal choice is curtailed even when she is raped by her husband resulting in her pregnancy. There is no legal recourse under these two conditions for a married woman. The Act prohibits abortion for an unmarried woman due to failure of contraception as the Act explicitly mentions failure “of any device or method used by any married woman or her husband.” In addition to that if an unmarried pregnant woman is unable to prove that her pregnancy will be detrimental to her mental or physical health, would have trouble in obtaining a lawful abortion. This aspect of the act is in contravention with the right to privacy judgment. Incorporation of Privacy as a fundamental right can have important impact over the issues related to bodily autonomy like abortion. J. Chelameshwar has mentioned in the judgement that the concerns related to privacy arise when the state intervenes into the body of subjects. The question of abortion for women must fall under the gamut of privacy. According to J. Nariman’s opinion the right to abort must be included in the list of “large number of privacy interests”. A bill with amendments such as increasing the gestation period for women and allowing an unmarried woman is pending since 2014. But until then the right to privacy doctrine must allow women to have abortion, a private choice. Therefore, with the right to privacy being included as a fundamental right an argument in favour of passing the amendment can be put forth to the legislature[30]. Revolutionary decision in Roe v Wade[31], the right was extended to the ninth and fourteenth amendment even though right to privacy was not being explicitly mentioned in the American Constitution. Similarly, the Indian decision can be a cornerstone for issues like abortion, data protection, removal of section 377 from IPC[32].
As mentioned in the definition, popular opinion should not be blindly incorporated while interpreting the constitution. The court have rejected the imposition of majority belief over the sexual minorities. Sexual orientation is recognised as an essential element of privacy, liberty and dignity. Hence, This is the remarkable aspect about the judgement in its use of the progressive interpretation. Here, the court deterred from interpreting the constitution with the popular mindset as it was in detriment for the sexual minority community. If the court had accepted the popular opinion, it would have been a regressive step for these weaker sections of the society.
Conclusion: The right to privacy judgement is a revolutionary decision in the Indian Judiciary. The case has used comparative and progressive interpretation flawlessly. Though there was scope of some improvement such as the court should have also referred to case laws and development of right to privacy from neighbouring countries like Singapore, Nepal etc. The use of progressive interpretation was excellent as it did acknowledge the underprivileged sections of the community.
[2] A. Watson, Comparative Law and Legal Change, The Cambridge Law Journal 37(2) (1978), pp. 313, 317.
[3] Priya Urs, Making Comparative Constitutional Law Work: “Naz Foundation” and the Constitution of India. Accessed 19 April 2018 http://www.jstor.org/stable/pdf/43239676.pdf?refreqid=excelsior:53b15cf262bee636ecf7d74babb02870
[12] For example: Express Newspapers Pvt. Ltd. & Ors vs Union Of India & Ors 1986 AIR 872, 1985 SCR Supl. (3) 382, referred to significant number of U.S.A. case laws as article 19(1)a was based on the 1st amendment of the Constituion of U.S.A.
[18] S. Choudhry , How To Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation (2010), p. 14, available at http://papers.ssrn.com/sol3/pa- pers.cfm?abstract_id=l 673378.
[19] A. Watson , Comparative Law and Legal Change, The Cambridge Law Journal 37(2)(1978), pp. 313,317
[20] Naz Foundation v. Govt. of NCT of Delhi 160 DLT 277
[22]Naz Foundation v. Govt. of NCT of Delhi, 160 D.L.T. 277
[23] Cossman , Migrating Marriages and Comparative Constitutionalism, THE MIGRATION OF CONSTITUTIONAL LAW, Sujit Choudhry ed., p. 209, Cambridge University Press, 2006.
[24] N.S., Bindra, “Interpretation of Statutes”, (10th edition, M.N. Rao and Amita Dhanda)
[25]Ashok Kumar Gupta & Another v State of Uttar Pradesh & others, (1997) 5 SCC 201
[26]Home Builing &Loa Assn v. Blaisdell 190 US 398
[27]Attorney General fo NSW v. Brewery Employees Union of NSW 6 CLR 469
[28]Rex v. Commonwealth Court of Consiliation and Arbitration and Merchant Service Guild 15 CLR 586.
[32] Zeba Siddiqui, “A Matter Of Choice: What the right to privacy judgement means for India’s abortion law” 1 January 2018 http://www.caravanmagazine.in/perspectives/right-to-privacy-judgement-abortion , accessed 20 April 2018.
This article has been written by Anwesa Mohanty, a student of University Law College, Bhubaneswar, Odisha.
Abstract
The development in the modern day trade and business has made the companies to enter into contracts with a large number of people. For the convenience of the company, provisions have been made for drafting standard form contracts. This Article discusses the meaning and rules to be followed while making a standard form contract.
Introduction
Standard form contracts came into existence to solve the complexities involved when one party has to enter in a contract with numerous parties. The standard terms are drafted by one party and the terms are applicable to all the other parties involved.
Meaning
In standard form contracts one party drafts a contract according to the terms and conditions he wants and the other party is deemed to agree to such terms and conditions if he uses the service of the party who drafts the contract. For example, the Airport Authority prints various terms and conditions in the Time table. Such terms are deemed to be the basis of the contract with all the passengers who travel by the flights.
Nature
Any kind of negotiation is not allowed in case of standard form contract. The other party can either enter or not enter into such contract. The party which drafts the contract is in a position of stronger bargaining power and the other party has a weaker bargaining power.
Why should a party opt for standard form of contract?
When a party is to enter into a contract with various persons drafting many contracts is inconvenient. It is convenient to draft a single contract with standard terms for all the other parties.
Extent to which Courts should enforce standard form contracts
The extent to which Courts should enforce standard form contracts is a point of controversy. No doubt, standard form contracts are convenient and promote economic efficiency but at the same time it is inconvenient for the other party. It might cause the other party to accept unjust terms which might also exclude the seller from liability. A standard form contract is mostly accepted by parties as they are rarely read. The terms are mostly written in difficult legal language as a result the buyer does not read all the terms. At times, one part of the terms is in one place and the rest is in another place. So the party does not bother to go and read the other part. There might also be situations in which the buyer has no option other than accepting the terms drafted by the seller. So the extent to which the Courts should enforce standard form contracts is to be decided by the Courts depending on the facts and circumstances of the case.
Rules regarding Standard form Contracts
In these form of contracts, the party who drafts the contract is in a greater bargaining power. It fixes the terms and conditions according to its own convenience without keeping in view the interests of the other party. In order to keep up the interest of the weaker party certain rules were framed. The following are the rules:
There should be a contractual document
There should be certain terms and conditions in the document and the parties are bound by such terms and conditions. In the case of Chapelton V Barry Urban District Council, the Plaintiff hired a chair from the defendant to sit on a beach. He received a ticket from the defendant but did not read. After sitting on the chair, he went through the canvas as a result of which he received personal injuries. He sued the defendant. The defendant pleaded that he was not liable as it was mentioned in the ticket that the council will not be liable if any injury is caused to the people hiring the chair. The Court held that such a ticket was merely a receipt and the defendant will be held liable for the injury of the Plaintiff.
Reasonable notice of the Contractual Terms
The party who has drafted the contract must give reasonable notice to the other binding. When such notice is given the contract becomes binding on both the parties. If reasonable notice has not been given or the method in which notice is given is insufficient, the contract is not a binding on the parties. A reasonable notice can be provided by providing a ticket in which the terms of the contract are mentioned or by obtaining the signature of the party who has not drafted the terms of the contract. In the case of Thornton V Shoe Lane Parking Ltd, the plaintiff parked his car at an automatic Car Parker. He received a ticket according to which the ticket was subject to the conditions displayed in the parking premises. While taking his car out, he received personal injuries due to the negligence of the defendant. The defendant pleaded that he was not liable as this was printed in the ticket. The Court held that it was impracticable for all to read the terms mentioned in the ticket and the terms were also not conveyed to the plaintiff in a proper way. So, the defendant was held liable and had to pay compensation to the Plaintiff.
Notice to be contemporaneous with the Contract
If the contract exempts a party from liability, such notice should be given to the other party before it enters into such contract. Providing of a notice after entering the contract cannot exclude a party from liability. In the Olley V Malborough Court Ltd, a couple hired a room in the defendant’s hotel. There was a notice in the room according to which if any articles of the customer are sold, the hotel shall not be liable for the same. Some articles of the Plaintiff were stolen due to negligence of the defendant. The defendant pleaded exemption from being liable on the basis of the notice. It was held by the Court that the notice was not a part of the contract and the defendant has to pay compensation to the Plaintiff.
No misrepresentation
Any kind of misrepresentation should not be made regarding a standard form contract. Suppose an oral misrepresentation has been made by either of the parties, the contract shall not be a binding. In the case of Curtis V Chemical Cleaning and Dyeing Co, the Plaintiff delivered her wedding dress to the defendant for cleaning. The Plaintiff was explained by the defendant that they shall not be held liable for any kind of damage to beads. On this basis, the Plaintiff signed a receipt. There was a clause on the receipt that the defendant shall not be responsible for any kind of damage caused to clothes while cleaning. This clause was not conveyed by the defendant. When the Plaintiff received her dress it was stained. She sued the defendant and the Court held that the defendant was liable as they had made misrepresentation.
Terms of the contract must be reasonable
In order to enforce a contract, the terms must be reasonable. If the terms are against public policy or are unreasonable the contract cannot be enforced even if it has been printed in a receipt or have been agreed upon by both the parties. In the case of Central Inland Water Transport Corporation Ltd V Brojo Nath, there was a clause in the employment corporation that the employment of a permanent employee can be terminated by giving him a 3 month notice or 3 month salary. The respondent’s employment was terminated and he was provided salary of 3 months. The Court held that such a clause was against public policy and was void under Section 23 of the Indian Contract Act.
Strict Interpretation of the exemption clause
In order to give protection to the parties with weaker bargaining power the Courts at times stick to strict construction of the Contract. The famous case under this rule is Wallis V Pratt. The facts of the case are, the defendant sold ‘English sainfoin’ seeds to the Plaintiff. No warranty regarding growth of seeds or any other matter was provided by the defendant. The defendant had actually supplied an inferior quality of seeds known as ‘giant sainfon’ seeds. It was quite similar to English sainfoin seeds. The difference could be known only after the seeds were sown and crops were ready. The Court held that the defendant had to pay compensation to the plaintiff.
Fundamental Breach of Contract
A watchful eye must be kept on the fact that enforcing the terms of the contract does not cause fundamental breach of contract. In the case of Alexander V Railway Executive the luggage of the Plaintiff was in the custody of the defendant and the Plaintiff received a ticket. In the ticket it was mentioned that the defendant shall not be liable if any loss of luggage is caused. The Plaintiff’s luggage was delivered to another person who was not even required to produce the ticket. The Court held that it was a fundamental breach of contract.
Non-contractual Liability
When there is more than one kind of liability excluding of contractual liability does not negative any other liability. In White V John Warrick and Co Ltd it was held that one might not be liable on the basis of contractual liability but still be liable under the law of torts.
Third party Liability
If 2 parties enter a contract and one of the parties try to exclude his liability by an exemption clause, such a clause would not exempt a stranger to the contract from liability.
Conclusion
These rules have been framed to protect the interests of the weaker party. England has barred exemption from liability by various statutes like The Misrepresentation Act, 1967, Road Traffic Act, 1960, Transport Act, 1962, The Sale of Goods Act, 1979, Unfair Contract Terms Act, 1977 and the Consumer Safety Act, 1978.
Don’t think of the fees, you must engage a Senior Advocate at the High Court,
That’s what my counsel from the Session Court told me when a similar thing happened in one of my own cases, where I was fighting an eviction case against a licensee living in my premises for the last 38 years and one of the Plaintiff’s died during the trial of the suit.
The next thing I knew, my case was abated in total by the Hon’ble Session Court on the ground that the right to sue does not survive for the rest of us (Plaintiffs), since one of the plaintiff’s had died during the trial and we were unable to bring the legal representatives on record of the deceased for reasons unexplainable (family dispute)
Now, no fresh suit could be made against the licensee living on my premises and we were left with no other option than to do a First Appeal at the High Court.
Introduction
There are two aspects to this, one is where all the plaintiffs have died and the other is when one of several plaintiffs has died during the trial.
Let’s start by saying that an accident has occurred or a natural calamity has happened and all the plaintiffs to a suit have died after such a catastrophe, now what will happen ?, since this kind of a scenario is not usual and is unheard of, but many people are unaware of whether the lawsuit filed by the deceased would continue or not.
In such cases, the decision of the court and proceedings of the suit entirely depends on the cause of action of the suit filed by the plaintiffs, isn’t it amusing when we talk of a unified system of law in India , the law itself divides us into so many categories, in most cases depending on the cause of action of the suit, the right to sue survives after the death of the plaintiff/s and on an application U/S 22 R 3 (1) of the Civil Procedure Code, 1908, the legal representatives of the deceased may be brought on record to continue the suit but in some cases, for example , in a case of defamation , assault (as defined in the Indian Penal Code, 1860 (45 of 1860)) or other personal injuries not causing the death of the party; and also in cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory, the cause of action terminates automatically on the death of the plaintiff/s and the case is abetted by the court according to the due procedure of law.
Let me give you an example, in a case of divorce, A sues his wife and during the pendency of the suit A dies, then the cause of action does not survive for his legal representatives.
Another example would be, in a consumer case where the plaintiff files a case for a defective product and the plaintiff dies during the trial then the right to sue ends with the death of the plaintiff.
There are again two aspects to the above-mentioned type of cases, one class is where the decree has not been passed decreeing the suit for damages against the defendant and the second type is where the decree has been passed for awarding damages but the other side/defendant against whom the decree has been passed has gone up in appeal, here the supreme court has held that in the first instance wherein suits no decree has been passed, the right to sue does not survive and the suit abates in view of Section 306 of the Indian Succession Act, 1925. In the second class where a decree of damages is passed, the supreme court has observed that the decree becomes a part of the estate of the deceased plaintiff and therefore the death of the plaintiff during pendency of an appeal filed by the defendant against whom the suit is decreed will not result in abatement. This has been covered by the judgment of the Supreme Court in the case of MelepurathSankunniEzhuthassan Vs. ThekittilGeopalankuty Nair, (1986) 1 SCC 118.
In the same instance, where the plaintiff dies after hearing and before pronouncement of judgment, the suit shall not abate. The same principle will apply in case of death of the plaintiff after passing of preliminary decree and before final decree.
BUT, it is important to note that, if an executor is appointed by the plaintiff/s before their death, to either execute the last Will of the deceased person/s or an administrator is appointed by a competent authority to administer the estate of the deceased person when there is no executor, by an application to the court made by the executor or the administrator, the suit shall proceed at the instance of the executor or the administrator.
According to the above paragraph and conferring with Section 306 of the Indian Succession Act, 1925, it is amply clear that the right to sue dies with the plaintiff in some special cases but since the Indian Succession Act, 1925 only applies to Hindus, Buddhists, Jains, and Sikhs, what happens to the others living in our country?
Well, the Civil Procedure Code, 1908, governs every Indian,so in the instance of the Plaintiff/s belonging to caste other than Hindus, Buddhists, Jains, and Sikhs, in case of their death during trial, they would be governed by the provisions of the Civil Procedure Code, 1908 and in cases for succession, by their respective laws, for example in Muslims, by the Muslim Personal Law (Shariat) Application Act, 1937.
Therefore, if all the plaintiffs to a suit die without leaving behind any legal representatives then the court depending on the type of cause of action has the powers to abate the suit in total and the court may award the defendant the costs which may have been incurred in defending the suit, to be recovered from the estate of the deceased plaintiff or if an administrator or an executor has been appointed before the death of the plaintiff then the suit shall continue at the instance of the administrators or the executor and or if the plaintiff dies leaving behind his legal representative then within the time period prescribed by the Limitation Act, 1963, the Legal Representatives may be brought on record and made a party to the suit for it to continue.
Now, in case where one of the several plaintiffs or a sole plaintiff has died during pendency of the suit, the court has to see whether or not the right to sue survives, except in the cases as mentioned above (defamation, assault (as defined in the Indian Penal Code, 1860 (45 of 1860)) or other personal injuries not causing the death of the party; and also in cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory), if the right to sue survives then the suit can be continued by the heirs or legal representative of the deceased party.
The general rule is that since a deceased person cannot be a party to the legal proceedings, “while the death of a party does not abate a pending action where the cause of action survives, nevertheless the effect of the death is to suspend the action as to the decedent until someone is substituted for the decedent as a party to the proceedings. Until someone is properly substituted as a party after the action is thus suspended, further proceedings in the case are void as to the decedent” until his/her legal representative/s are substituted as party to the suit.
What is abatement and why does it happen
Abatement, in law, means the premature ending of a suit before final adjudication of an action. In other words, it means, discontinuation, cessation or elimination. The commonest grounds for abatement is the pendency of another suit or death of a party.
Other grounds for abatement of action are defects of parties (such as misnomer or incapacity); lack of jurisdiction of the court; dissolution of a corporation; premature commencement of the action; and transfer of a party’s interest in the lawsuit.
Conclusion
Generally, under the civil law or under the common law, a lawsuit was thought to abate automatically on the death of a party, However, it depends on the cause of action of the suit, whether the cause of action abated depending on whether or not the lawsuit was considered personal to parties.
As mentioned above, in most cases an executor or an administrator is substituted in place of the deceased to continue the suits but a lawsuit may not be revived unless the underlying cause of action continues to have a legal existence after the party’s death.
Today most cases do not abate due to the death of the party, there can be multiple reasons for abatement of a suit.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
The area under public lands in India is massive. Due to the unavailability of a comprehensive report on public lands, the exact monetary value is unknown. But fragmentary reports from different sources provide us with an idea. For eg, in Ahmedabad, Gujarat, 32% of the total land is with the Municipal Corporation of Ahmedabad. These lands serve as a major source of income for the government. For eg, around 13 hectares of land in the Bandra Kurla complex was leased out by the Metropolitan Mumbai Regional Development Authority (MMRDA) for roughly ten times its annual infrastructure budget at INR 5000 crores. But unauthorised construction on the public lands is creating huge losses for the government. Let us discuss how the problem of unauthorised construction can be reduced.
What is Public Land
A comprehensive definition of the term “Public Land” is not available anywhere. But all the land that is under the control of the Central Ministries, State governments and other local bodies or other authorities is considered to be public land.
The Government of India, its departments and organisations are the biggest landowners in the country. Land located in prime locations has been held by organisations such as the Major Port Trust, which holds 100.000 hectares of land; Airport Authority of India (AAI) which holds 20,400 hectares of land around airports. According to the Government Land Information System (GLIS), the Indian Railways owns about 43,000 hectares of land, most for any organisation on the GLIS. The Ministry of Defence, citing security concerns, has not completely declared its landholding. But it is deemed to have over 7,00,000 acres of land that are in the cantonment areas.
Forms of Laws Regulating Land in India
It is a well-known fact that India is the world’s 7th largest country in terms of geographical area. But, the laws that govern and regulate this massive landmass is not so common knowledge. Laws such as Transfer of Property Act 1882, Real Estate (Regulation and Easement) Act 2016, Registration Act 1908, Stamp Act 1899, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 etc. affect the use of land in India. But on a general level, these laws can be categorized as the following:
Laws relating to Zoning of Land
Under the Zoning laws, an area is demarcated by bringing out ordinances, which specifies the specific use of land in that area or block. It is a tool for regulating certain areas for a particular use. This creates a functional real-estate market. It can be used as a tool by the government to increase or slow down the development of certain areas.
In a Zoning ordinance, regulation specifications such as lot size, density or bulk, height, Floor Area Ratio (FAR) are mentioned. This allows the government to restrict incompatible lands being located in the vicinity of each other. A Zoning ordinance also specifies such permissions, which will be required, in case the permitted usage of land needs to be changed. For eg: If the owner wants to convert his residential property into commercial, he will be required to procure permission before doing so.
Laws relating to the Subdivision of Land
Under the Subdivision laws, information such as plot size, layouts, a process for using private land for public purposes and street improvements are included. The main difference between the Zoning laws and Subdivision laws is that the latter concerns itself with the use of land for the residential purpose for the major part. The Subdivision laws are a great tool for restricting the Suburbanisation near heavily populated towns.
Laws relating to Building Regulation
Building regulations as a term is self-explanatory. These are the laws that regulate the way a building is to be constructed. It prescribes the height limits, position, style of architecture etc. for a structure in a particular zone. It also prescribes different regulations for buildings built for different purposes. This helps the government agencies to differentiate between buildings on the basis of the purpose for which they are developed.
The laws on Building regulation also regulate the maintenance requirements of a building. This helps in preventing the deterioration of the real estate in the area.
Laws relating to Rent Control
The laws on Rent control were enacted to bring uniformity to the rent laws in different parts of the country. It has brought about a certain standard according to which the relationship between the landlord and the tenant is to be governed.
The Rent control laws are a great tool to bring under control the inappropriate demands of the landlords as well as protecting them from unsavoury tenants at the same time.
Laws relating to Taxes
The municipal corporation levies taxes on the property. There is no comprehensive system which governs property tax in India. Different states and Union Territories charge different property tax as per the local laws.
One of the main benefits of using tax as a tool for regulating land use is the prevention of accumulation of large chunks of a property with few peoples in the society.
What is Unauthorised Construction
Before starting construction work on any property, there are various permits that are required to be obtained from the government, such as, Land Clearances, Zonal Clearances, Building Approval etc. You also need to show your title to the land on which the structure is to be built. A structure without proper clearances, or, a structure built in contravention of the prescribed norms, is not a legal structure. This process of constructing an illegal structure is called unauthorised construction. They are liable to be demolished by the government authorities.
Forms of Unauthorised Construction
Unauthorised Construction on Private Land
This happens, when the construction is done on land or property by the legal owner of the said land or property, but in contravention of any of the provisions of law. It could be unauthorised in instances such as:
The person doing the construction didn’t get the required permissions from the government.
The person doing the construction flouts the prescribed limits. For eg: A builder, who has permission to build a 4 storey building, builds two additional floors on top of the prescribed 4 stories. Here, he has exceeded the limits that were prescribed to him. The top two floors of the building would amount to unauthorised construction and will be illegal.
The person doing the construction does not follow the guidelines prescribed by the government for the building’s structure-type.
Unauthorised Construction on Public Land
This happens, when the construction is being done on that land, the ownership of which does not belong with the person doing the construction, but lies with the government. This happens mainly due to the social factors that are prevalent in a country such as poverty, unemployment, large population etc.
Unauthorised Construction in India
The problem of housing is a major problem in India. The country has been fighting these issues since Independence. The housing has become unaffordable in urban centers for the majority of the population due to rising costs. A large chunk of our population is still below the poverty line. This results in a lot of unauthorised construction. Some people get involved in the practice of unauthorised construction to save money involved in meeting with different compliance requirements while others do it because of poverty, unemployment and other social constructs. This has led to a situation where unauthorised construction has acquired a monstrous proportion.
The Courts in India have repeatedly emphasised on the importance of planned development of cities in our country. They have always maintained a stern attitude towards unauthorised construction, terming it a ‘menace for our society’. The Courts have repeatedly given orders to demolish these unauthorised and illegal structures.
In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, the Supreme Court of India, commenting on the issue of unauthorised construction, said that unauthorised construction affects the right to the enjoyment of the property by persons residing in that area. The Court reiterated that the areas are planned according to the requirements of the residents. By carrying arbitrary acts of illegal constructions, this planning is undermined.
In Pratibha Coop. Housing Society Ltd v. State of Maharashtra, the Supreme Court said that constructing unauthorised structures never pays off. It is against the interest of the society, as they are in contravention of the rules and regulations that are made for the benefit of the society at large. The citizens are required to follow these rules for their own benefits.
In Friends Colony Development Committee v. State of Orissa, the Supreme Court commented on the dangers that are involved in violating the sanctioned building plans. The court said that the builders deviate from the sanctioned plans at the peril of the occupants of the premises constructed as well as other inhabitants of the city. The Court also mentioned the environment and ecological threats that are posed by such structures. The Court opined that the real losers in such cases are the unwary purchasers, who, in search of a roof over their head, have to face the consequences of demolition. The builder safely walks away after pocketing vast sums of money.
The Court again emphasised the importance of planned development. Stating the importance of Zoning and planning, the Court said that, though such activities are ‘highly complex’, butthey are based on “scientific research, study and experience leading to the rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder.”
How to Stop Unauthorised Construction on Public Land in India
The most common misconception regarding unauthorised construction in India is, that the Police has the authority to put a stop to it. Since the Police are responsible for the law and order in general, it is normal to assume that they are the one who should be approached for curbing the menace of unauthorised construction. But it is far from the truth. The only authority the Police has in these matters is, to report the incidents to competent authorities and wait for their orders. Only on the receipt of such orders can the police take action against unauthorised construction.
Complaining to Civic Bodies
The Civic bodies, such as the Delhi Municipal Corporation (DMC) in Delhi and the Brihanmumbai Municipal Corporation (BMC) in Mumbai, are the government agencies which are responsible for the planning, maintenance as well as the effective running of the cities. A certificate of permission from these civic bodies is required before starting the construction of any structure. The onus of stopping the unauthorised construction also belongs to these civic bodies. It is their duty to make sure that the laws are complied with. If a certain structure is being constructed or the permission to construct a structure is sought, which is in contravention of law, the civic authorities are under obligation to refuse permission in such cases.
The Supreme Court of India, in Friends Colony Development Committee v. State of Orissa, commented on the responsibilities of these civic authorities and showed its displeasure over how the menace of unauthorised construction is handled by these organisations. The Court also chided the local authorities who have inspectors and engineers working in these organisations. The Court said that it is the duty of these builders and engineers to keep an eye on the building activities and take prompt actions where illegal construction is going on. The Court said that either they do not take action on time or they themselves connive with the defaulting builders for illegitimate considerations.
Different municipalities across the country are governed by their own different laws and bye-laws. For eg: the DMC is governed by the Delhi Municipal Corporation Act, 1957, the BMC is governed by Mumbai Municipal Corporations Act, 1888. The sections concerning the unauthorised construction in Delhi are Sections 344, 347 and 349 respectively. In Mumbai, the sections dealing with the unauthorised construction are Sections 351, 354, 347, and 381 of the abovementioned acts.
If someone, including the Police, has information regarding any unauthorised construction, they are supposed to contact designated officers of their concerned municipality and ask them to take steps against the person carrying out illegal construction. To stop the unauthorised construction, the concerned Municipal Corporation is notified. The corporation will then send a notice to the person carrying on such construction asking him to reply, within the stipulated time, about the complaint of unauthorised construction made against him. If no reply is given by the person, then the municipal corporation takes further steps to demolish the structure. For details on how to report and get the illegal property sealed in Delhi, click here.
Filing Suit in the Court
More often than not, the complaints made to the civic bodies go unheard. The reasons for this can be unaccountability, lack of empathy towards duty or the rampant corruption that is prevalent in these civic bodies. The number of unauthorised structures that have been demolished and the emphatic reiteration of the need to continue the sealing drive in Delhi is just one example of how negligent the municipal corporation is towards the work they are doing. In such an environment, it becomes impossible for a citizen to get relief from the civic authorities. That’s where the Indian Courts step in.
The Judiciary in India is the most respected pillar of our Constitution. It has come to the aid of the citizens time and again and has been a point of comfort against all that is wrong with Indian society today. As discussed above, the Courts in India have always maintained that no structure in contravention of law shall be permitted to stand and must be demolished. It has even asked the governments to stop regularising the unauthorised construction in the area.
The Public Premises (Eviction of Unauthorised Occupants) Act, 1971
Sections 5A, 5B, and 5C of the Act deals with stopping of the unauthorised construction of structures by the estate officer. Section 5 of this act further talks about the eviction of unauthorised occupants living/occupying in these structures. The Act further deals with the property left on such premises and the costs that the occupier is liable to pay for incidental damages.
Conclusion
The Indian economy is growing at a fast pace. In order to cope with the demand of the sprawling population, it is required that the planned blueprint be followed to the last letter. The abomination of unauthorised construction can be a threat to the development of our society in the long run. It is the need of the hour that unauthorised construction not just be stopped, but such existing structures be removed as well.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
Arbitrability of the dispute is the first issue that needs to be addressed before submitting a dispute to Arbitration, to ascertain procedural maintainability. The Arbitration and Conciliation Act, 1996 does not specify which categories of civil and commercial disputes cannot be arbitrated but empowers arbitral tribunal to decide upon the jurisdiction as the Kompetennz-Kompetenz.
Jurisprudence of Arbitrability
A) Definition of Arbitrability
For a dispute to be arbitrable, there must be arbitration agreement, the dispute must be covered by the said arbitration agreement and dispute must not be exclusively reserved for court for adjudication. Inherently, the question of deciding to submit a dispute to arbitration is a procedural one. It means to decide a forum for dispute resolution subject to the national laws. As currently the law relating to arbitrarily is res Integra, the jurisprudence of arbitrability is still evolving. The Supreme Court in two landmark judgments, Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd and Aiyyasamy v.Paramasivan & Ors showed reluctance in allowing private dispute resolution, where there is an element of public policy involved for instance insolvency, inheritance, criminal cases, consumer disputes, succession, testamentary matters, anti-trust, etc. The Bombay High Court highlighted that arbitrability or non-arbitrability cannot be ascertained by reference to the text of the statute alone but must be determined concerning the nature of the claim made by the parties.
A conjoint reading of section 9 of the Civil Procedure Code, 1908(CPC) along with section 2(3), 8, 11, 16, 34(2)(b) and 48(2) of the Arbitration Act implies the following:
a) All civil court shall entertain all civil suits, unless impliedly and expressed barred;
b) Arbitration Act does not lay down categories of disputes which cannot be subjected to Arbitration;
c) If there is a valid arbitration agreement, judicial authorities will not intervene;
d) The validity of arbitration agreement can be decided by the Arbitral Tribunal as per section 16 of the Act;
e) And lastly, if any non-arbitrable subject is arbitrated upon, such Arbitral award could be set aside as clarified by sections 34(2)(b) and 48(2) of the Act.
The court is required to distinguish, between the arbitrable and non-arbitrable disputes based on two considerations:
a) To ensure that the matters of public importance are debated and decided by public fora;
b) Encourage the litigants who chose to arbitrate rather than litigate within the policy framework of National laws.
B) Understanding Facets of Arbitrability of Disputes
The Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd have laid down a test of right in rem and personum i.e. rights against particular persons (in personam) are arbitrable but those against the world at large (in rem) are not. However, it is a flexible rule.
Exception to the Arbitrability
According to section 34(2)(b) and Section 48(2) of the Arbitration Act, there are three instances of exception:
(i) Award was induced by fraud or corruption; or
(ii) The award is in contravention with the fundamental policy of Indian law; or
(iii) Award conflicts with the most basic notions of morality or justice.
Therefore there are certain disputes which are reserved exclusively for adjudication in Court and Tribunal.
C) Jurisdiction of Courts Vis a Vis Arbitral Tribunal
It is the legislature which endows jurisdiction upon on forum. Some of the disputes are purposely kept outside the purview of arbitral tribunal by the legislature on account of functional set up of the Arbitral Tribunal, sovereign function, welfare statutes such as the Consumer Protection Act, 1986, the Real Estate (Regulation and Development, 2016), Rent Control legislations, Industrial Dispute Act, 1947, inalienable rights, Ergma Ommens effect.
Criminal offences
They do not have economic values and they fall within the domain of the sovereign function, hence non-arbitrable.
Matrimonial Disputes and Guardianship Matters
These disputes do not have economic value, matter such as divorce, custody of a child, maintenance is right in rem, therefore non-arbitrable.
Insolvency and Bankruptcy
Not all matters relating to insolvency are non-arbitrable. The dispute between the parties i.e. the debtor and the creditor in personam and can be settled by arbitration.It is at the stage of enforcement or distribution of assets that the proceedings have an erga omnes effect.
Testamentary Succession and Intestate Succession
The relief sought will not affect the parties involved alone, but will have erga omneseffect. A duty cast upon the court to preserve the original will in probate cases. Thus, such claims would be non-arbitrable.
A Supreme Court bench reaffirmed thenon-arbitrability disputes relating to tenancy and eviction inHimangni Enterprises v Kamaljeet Singh Ahluwalia which was already resolved in Natraj Studios (P) Limited v Navrang Studios and Booz Allen & Hamilton Inc v SBI Home Finance Limited.
Intellectual Property Matters
All IPR disputes which arise from a commercial relationship between the parties and have an inter partes effect would become arbitrable as they would be claims of economic value.
Winding Up
Incorporation and winding up is the exclusive domain of the sovereign hence excluded from arbitration.
Oppression and Mismanagement
These claims which economic value, are arbitrable however not if they have erga omnes effect.
Anti-trust
The Supreme Court in Vimal Shahheld that the disputes relating to trusts, trustees, and beneficiaries arising out of the trust deed and/or the Trusts Act are not capable of being adjudicated by an arbitrator despite the existence ofan arbitration agreement in the Trust Deed since the beneficiaries are not signatories to the arbitration agreement. However, the court has erred in applying the Booze Allen Test, as the parties were only selecting better forum and not contracting out of the statue.
Competition Law
The Competition Act, 2002 provides for different kinds of disputes, while some can be brought by third parties, or any person, consumer or association, certain remedies are limited to an “aggrieved party”.
Fraud
The courts have made distinctions between a serious issue of fraud and a mere allegation of fraud while deciding the categories of disputes as non-arbitrable. A serious issue of fraud has been held to be non-arbitrable. The Supreme Court in “A. Ayyasamy vs. A. Paramasivam & Ors.” held that mere allegation of fraud will not make the disputes between the parties cannot be settled by the arbitration agreement. If there are serious allegations of fraud, then only the Courts hold such disputes as non-arbitrable. Cases of foreign-seated arbitration the law is fairly settled, as such matters can be referred for arbitration u/s S. 45 of the Arbitration Act, 1996.
Consumer Dispute
InAftab Singh vEmaar MGF Land Limited & Anr, the full bench National Consumer Disputes Redressal Commission upheld the idea of in-arbitrability of consumer disputes reaffirming the ratio laid down in National Seeds Corporation Limited v. M. Madhusudhan Reddy. The consumer courts came into existence because there was an imbalance in the bargaining power between a consumer and the corporation which cannot be excluded by the arbitration agreement.
Conclusion
India wants to be a pro-arbitration, therefore it must find a way to respect the consent of the parties that want to resolve disputes through arbitration at the same them balance it with fundamental national laws and it’s public policy exception.
Reference
Modani, K. and Desai, V. (2017). STATUTORY REMEDY VS. ARBITRATION: WHAT SURVIVES? INTERPLAY BETWEEN SPECIAL STATUTES AND THE ARBITRATION ACT ON APPLICABILITY OF NON-OBSTANTE CLAUSES. [ebook] Nishith Desai Associates. Available at: http://www.nishithdesai.com/information/about-us/about-nishith-desai-associates.html [Accessed 14 Aug. 2019].
Singh, V. (2017). Certain Categories Of Disputes To Be Non-Arbitrable – Litigation, Mediation & Arbitration – India. [online] Mondaq.com. Available at: here.
Meshram, N. (2018). Arbitrability of Competition Law Issues: An Indian Perspective. [online] TheRMLNLU Law Review Blog. Available at: https://rmlnlulawreview.com/2018/02/01/arbitrability-of-competition-law-issues-an-indian-perspective/ [Accessed 15 Aug. 2019].
Rab, A. (2019). DEFINING THE CONTOURS OF THE PUBLIC POLICY EXCEPTION – A NEW TEST FOR ARBITRABILITY IN INDIA. INDIAN JOURNAL OF ARBITRATION LAW, VOLUME 7(ISSUE 2), pp.161-180.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
This article is written by Soma-mohanty of KIIT School of Law, Bhubaneswar. In this article, she has mentioned about essentials, amendments, exceptions and case laws of Section 498A of IPC
498A IPC Definition
In the early 1980s, it was seen that women were suppressed, exploited and subjected to cruelty. As there were no laws subjected to cruelty towards women, it gave wings to the society. Every disease requires medication for recovery, and finally, the medication for cruelty towards the recessive sex in the society was found as “ Feminist Movement”. It led to the enactment of the Criminal Law (Second Amendment) Act, 1983 (46 of 1983) which amended:
The Indian Penal Code, 1860
Code of Criminal Procedure, 1973
The Indian Evidence Act, 1872
The Dowry Prohibition Act, 1961
These amendments were the pillars of safeguard for women by insertion of S.498A in 1983.
But it has been seen that this provision has been misused, in case of Sushil Kumar Sharma v. Union of India and others[1] the constitutional validity of S. 498A was questioned. It was subjected to harassment and mental trauma suffered by the husband and his relatives due to the instances where the complaints are not bonafide and have been filed with an oblique motive. But this provision is for people to get justice and it can’t be unconstitutional and at the same time, it doesn’t provide a license to unscrupulous persons. So it’s the duty of the law-makers to look into the matter so that the rights of both parties are protected and the culprit is being punished.
498A IPC Jurisdiction
The Supreme Court on 9th April 2019 delivered the judgment that a woman can file a case against her husband or in-laws subjected to dowry harassment under Section 498A of IPC at any place she is sheltered.
But the trail is to be taken place under the jurisdiction of the court where the crime has taken place.
498A IPC Punishment
shall be punished with imprisonment for a term which may extend to three years or
shall also be liable to fine.
Or the person can be convicted of both imprisonment as well as fine
498A IPC Bailable or Not
The offense under this Section of IPC is a cognizable and non-bailable offense.
In the case of Arnesh Kumar v. State of Bihar and another, it was held by the Court that arrest brings shame, diminishes freedom and leaves mental wounds forever. It also stated that police had no furnished ideas its lesson which is implied and personified in the Criminal Procedure Code [2] Taking it into sight,the Court, drew a distinction between the power to arrest and justification for the exercise of it. Section 41 lays down the provision when police may arrest without warrant.
According to the latest amendment, the situations where police can arrest without a warrant are as follows:
(1) There is no requirement of an order from a Magistrate and even without a warrant, any police officer can arrest any person:
Any person who commits a cognizable offense, in the presence of a police officer
When a reasonable complaint had been raised against any person or the information collected is sufficient, or suspicion of a cognizable offense performed has been raised which is punishable with a term of imprisonment for less than seven years and it might extend to seven years, with or without fine, if the conditions stated are satisfied:
If the facts of the complaint, information, or suspicion are sufficient for the police officer to believe that the said offense has been committed by the person
When the police officer is satisfied on the ground that such arrest is necessary:
for prevention of such person from committing the offense any further
the investigation of the offense to be proper and accurate
prohibition of the person from washing off the evidence of the offense or tampering with evidence
The person should be prohibited from making any incentive, threat or promise to any person familiar with the facts of the case so as to prevent him from disclosing such facts before the Court or to the police officer
The presence of the person who is not arrested till in the Court is required whenever summoned and the date can not be ensured, and recording while making such arrest shall be recorded by the police and the reasons for writing should be specified. In case the arrest of the person is not required according to the provisions under this following, then the reason should be specified, why the arrest was not done in the form of writing.
A situation where a police officer has reasonable reason to believe on the basis of the information that the offense committed is a cognizable offense in nature and punishment of it is may extend more than seven years, with or without fine and even death sentence can be pronounced and such person has committed the offense stated.
Under this code or by the order given by the state government , any person who has been ?
If any person is found of having possession of anything, which is suspected to be stolen property under reasonable ground and the person who is suspected of having committed an offense with an association to such thing under reasonable circumstances.
If any person causes hindrance in the way of a police officer while he is executing his duty or any person who has fled or attempts to flee.
When a person is reasonably suspected of being truant from any of the Armed Forces of the Union, or
If the act is done at any place out of India but if committed in India, would have been considered as an offense, when there has been a reasonable
A person who is a released prisoner and commits a breach of any rules made under sub-section (5) of section 356
A person for whose arrest any summons has been made it may be written or oral, has been received from another police officer, provided that the summons specifies the arrest of a person and the offence or any other cause which would lead to the arrest to be made and it permits to arrest the person lawfully without a warrant by the officer who issued the summons.
(2) If any person who is not concerned in a non-cognizable offense or against whom a complaint has been filed or strong information has been received or a reasonable suspicion exists he has been concerned, shall be arrested exception provided i.e it may be under a warrant or order of a Judicial Magistrate.
498A IPC Anticipatory Bail
The rising misuse of section 498A under 406, has caused alarm in the eyes of the Supreme Court. The false accusation leads to prosecution against the family members and thus hampering their reputation in society.
Thus anticipatory bail is provided under these circumstances:
All the ornaments of the complainant in possession of her husband such as gold or silver ornaments should be returned back. And the accused has to deposit a sum of money, in the name of the complainant.[3]
The petitioner is bound to join the investigation, when called upon and should not threaten the witnesses.[4]
If the accused agrees to pay the maintenance amount to the complainant.[5]
If the affair filled is indistinct. The complaint given is false in nature and the restrainment of things as dowry is vague.[6]
Cruelty
The term cruelty has not yet been defined in the statute, knowingly. It has been done to give freedom to the judges to decide the case according to the situation and changing social and moral values.
“Cruelty” can be both physical as well as mental cruelty.[7]
Factors that amount to cruelty is always a question of fact.
“Cruelty” in this section does not have a justified meaning because it is subjected to provide security to women from the evil and to ensure she lives with dignity in her matrimonial place.[8]
Cruelty is one of the essentials required to constitute offence under 498A of IPC. it should be shown that the actual amount of cruelty which the women was subject to is enough to build the offence under this section.
Classification of offense
Offense under section 498A is cognizable which means that the police have the power to arrest without warrant or any other law according to the circumstances.
Its is non-bailable in nature which means that only the court has the power to grant bail.
Who may file the complaint
By the aggrieved wife or
By her father, mother, brother, sister
When the court grants leave, to any person related to her by blood, marriage or adoption.
Husband
The word “husband” means a person who enters into a marital relationship that is legal in the eyes of law and under the feigned status of husband subjects the woman to cruelty which falls under Section 498-A. There is no prohibition that defines the word “husband”, in circumstances where persons who contract marriages avowed and cohabit with such woman, in the exercise of their role as “husband” is not a ground to be excluded from the purview of section 498A of IPC.[9]
Second Wife
In the judgment given by the Supreme Court, it was held that a complaint under Section 498A of IPC can be filed even by the second wife.
When the former marriage of a person is hidden to a woman with whom second marriage is contracted, then she would be entitled to complain against her husband under Sections 494 and 495 of IPC
A. Subash Babu vs. State of A.P. and Ors.[10]
Women in live in relationship
A woman in a live-in relationship can’t file a complaint under this section.[11]
Cognizance by court
Under section 198A of CrPC, the court is bound not to take cognizance of an offence punishable under section 498A of IPC.
Except in cases where the police report is filed by the aggrieved wife or by her father, mother ,brother, sister or with the leave of the court, by any person related to her by blood ,marriage or adoption.
Cruelty and harassment
Relative of husband
-It is the essential ingredient to prove the offense under this section. The word “relative” has not been defined by taking reference of the judgments. It is seen that “relatives” means father, mother, sister, brother of the husband to be prosecuted under this section.
-Here relative means people who are connected by blood, marriage or adoption.
-It is the essential ingredient to prove the offense under this section[12]
Past events of cruelty
-In the case of Kaliyaperumal and Ors. Vs State of Tamil Nadu, it was seen that “soon before” was essential to constitute the offense under cruelty.
-It is necessary to show that she was subjected to cruelty soon before the incident, to prove it
-The period under “soon before” is to be determined by the court under the circumstances of the incident and the facts.
Section 498A and dowry demand
When a woman is subjected to harassment by her in-laws because of the fact that she was not able to fulfill the demand of money or property made by her in-laws or husband, then her husband or in-laws would be convicted under the Section 498A of IPC . This section deals with harassment subjected to demand of dowry.
Inder Raj Malik v Sunita malik
-In this case, the judgment was delivered by the Delhi High Court.
-It clearly justified that a person can be convicted of both section 498A of IPC as well as Section 4 of the Dowry Prohibition and the situation of double jeopardy is not being created under Article 20(1) of the Constitution.
Vijender Sharma v state
-The learned ASJ stated that as there were attempts to set the complainant on fire and this was the second time, anticipatory bail was requested.
-Thus, the plea was rejected.
-But as the accused was ready to reconcile and return the possessions of the complainant and also had deposited the specified sum of money.
-But the complainant never showed up in the proceedings.
-Thus on this ground, anticipatory bail was granted
Dr Sunil Kumar v state
-The controversy arose only after the expiry of the period of more than 6 years from the date of marriage.
-The reason for the dispute between the parties was probably due to the suspicion that the deceased had an illicit relationship.
– There was no demand of dowry and ill-treatment earlier.
– It was very vague that after such a long period of time the appellants suddenly started demanding and ill-treating the deceased to the extent that she did commit suicide.
– Thus, the allegations remained unnatural and improbable.
Section 498A and protection of women from Domestic Violence Act,2005
It is seen that the number of cases of women being subjected to harassment or cruelty by her husband or in-laws are increasing, due to which the trials are delayed. So in this situation where the case status is pending under Section 498A of IPC, before the Criminal Court and the allegation made is not vague, then the appellant can seek relief under Sections 18,19, 20, 21, 22 of the Domestic Violence Act, 2015 [13]
The Domestic Violence Act, 2015, aims to protect women from domestic violence by providing remedy and Section 498A of IPC aims to protect the woman from the harassment and cruelty that she is subjected to by her in-laws. Thus, these two provisions provide remedies for women from violence. They only difference between the Domestic Violence Act, 2015 and Section 498A of IPC is that Section 498A of IPC provides criminal prosecution as a remedy and the Domestic Violence Act, 2015 provides civil suits as remedy.
And they even can seek interim relief under Section 23 of the Domestic Violence Act, 2015
498A IPC Divorce
If the complaint under Section 498A of IPC and Sections 3 & 4 of the Dowry Prohibition Act,1961 is filed after a long period of time from the divorce date, then it can’t be considered.
In the case of Mohammad Miyan v State of UP, it was seen that the wife had filed FIR against her husband and his relatives under Sections 498A, 323, 325, 504 and 506 of the Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act,1961. The complainant had stated the fact that she has been divorced for more than 4years.
And the proceeding was quashed.
498A IPC Misuse
Every law is inserted to cure suffering and to check if people are subjected to social evil. But we often misuse the laws, which amounts to the constitutional validity. This section was inserted so that a woman can live with dignity in her matrimonial place. But some of them file fake affair to put their in-laws in trouble. It is even seen that the judges start assuming the accused to be criminal before the starting of the proceedings. This happens due to certain environmental circumstances as well as personal experience. They put themselves in the situation while giving the verdict. In society as women are suffering a lot, everyone starts believing them and often they misuse the privileges. In recent cases it is seen that the provisions under Section 498A are being misused.
In Sushil Kumar v Union of India & Ors, it was seen that
-The complaint was filed with the intention to harass in-laws.
-As this offense has been made non-bailable, the families are put into trouble by the police as well as the agencies to avail of anticipatory bail.
-The proceedings always start with the presumption that the accused is guilty.
-Such acts are causing legal terrorism.
-But this doesn’t amount to the questioning of the constitutional validity of law because of a mere abuse of a statutory provision.
-Moreover presumption shall be done until the contrary argument is proved.
-Thus the contention was raised to formulate “guidelines” to protect the innocent people.
IPC 498A Misuse Punishment
In Arnesh Kumar v State of Bihar [14] judgment that was delivered was to make provision to ensure that the police officers do not arrest the accused, without any strong proof and Magistrates do not detain them casually. The following provisions are:
All the State Governments were ordered to instruct the police officers not to arrest the accused immediately. They are directed to go through the parameters of the situation and think about what should be done and proceed accordingly.
A checklist containing specified sub-clauses under Section 41(1) (b) (ii) is to be provided to the police officers.
Before forwarding the accused to the Magistrate, the police officers are required to forward the checklist that is filled and also justify the reasons as well as necessities that demanded an arrest in the situation.
Then the Magistrate is required to go through the furnished report of police officers. He has to state that he is satisfied with the following statements and it authorizes detention.
In case a situation arises where the police officers did not arrest the accused within two weeks from the date of the institution of the case, then the report should be forwarded by the Superintendent of the Police of the District to the Magistrate for the purpose of reasons to be recorded in form of writing.
The accused has to appear before the court within two weeks from the date of institution of the case under Section 41A of CrPC but it may be extended by the Superintendent of the Police of the District to the Magistrate if the record writing is in process.
If the following guidelines are not being followed by the police officer then departmental action is to be taken against him and he would be liable to be punished for contempt of court that would be instituted before High Court with territorial jurisdiction into consideration.
If the Judicial Magistrate directs detention without recording reasons then he would be subjected to departmental action by the High Court with territorial jurisdiction into consideration.
In Rajesh Kumar v State of UP [15] in the case, the judgment was based on directions to prevent the misuse of Section 498A.It further modified the guidelines in Social Action Forum for Manav Adhikar v. Union of India[16]. The followings are:
The District Legal Services Authorities of every district are directed to constitute one or more Family Welfare Committees. It shall comprise of three members.
The working of these committees is to be reviewed at least once a year by the chairman of the committee that is the District and Session Judge.
The members of the committee are to inspect the complaints filed under Section 498A of IPC, received by the police officers or Magistrate. The members can communicate with the parties and it can be any mode of communication.
These members are not allowed to be witnesses.
The report by the members is to be submitted to the authority under whom it was filed within the span of one month from the date the complaint was filed.
The committee is free to give their opinion regarding it.
No arrest is to be done until the report is submitted by the committee.
Training is to be provided by the Legal Services Authority to the members of the committee.
The members of the committee are subjected to the honorarium.
A designated officer is to be appointed to investigate complaints under Section 498A of IPC.
Disposition of the proceedings including the closure of the criminal case relating to matrimonial case incase of settlement is done. It should be opened to the District and Session Judge or any other competent authority.
The case can also be decided on the same day when the bail application is filed with at least one clear day’s notice to the public prosecutor.
Impounding of passports or insurance of Red Corner Notice should not be a notice when the person is not residing in India.
These provisions are not applicable to the offenses involving corporeal physical injury or death.
Because of the increasing vague complaints by women to hamper the mental state of her in-laws as well as husband, the court takes a step back before pronouncing the judgment to check if the innocent is not been punished. Thus, bail is granted on the principle of “ei incumbit probation qui dicit, non qui negta”, which means that one is considered innocent unless proven to be guilty.
Grounds considered by court while granting the bail in recent judgments
Parag Bansal & Ors. vs State.
-In this case, it was seen that the complainant was a well educated and professional advocate, thus being aware of all the provisions she furnished her allegation according to it.
-But all the statements were found to be false.
-It was even seen that the accused has always appeared in court on being called. And was thus granted bail
Nitesh Arora vs State Govt. Of N.C.T.Delhi
–In this case, the petitioner seeks permission to travel to the USA for the assignment. And his visa was about to expire and it would get renewed once he reaches the USA.
-Thus he was granted anticipatory bail and was asked to appear before the court after he reaches India.
Chances of getting Anticipatory bail in case of 498A/406
Pavitra Uraon & Ors v State of Chattisgarh
-In this case, it was seen that the complaint was not happy in her marital life and was not wanting to reside with her husband and his parents.
-Thus allegation made by her was false.
-The complaint filed was found to be vague.
-There was no prima facie in the complaint under Section 498A of IPC.
-Thus under these circumstances, he has provided bail.
498A IPC Compoundable or Not
The offense under Section 498A being very serious in nature is not compoundable because it is not included under Section 320 of CrPC. Though it has been clearly mentioned that it is not compoundable, some High Courts have provided an exception, in cases where the parties have reconciled and if husband and wife have started staying together.Then the court can use its power under Section 482 of CrPC to make it compoundable.
But the Bombay High Court raised the question of how can a non-compoundable under Section 320 of considered as compoundable.[17]
In the case of BS Joshi v State of Haryana[18], the Supreme Court held that when both the parties approach the court to quash the criminal proceedings filed under Section 498A of IPC, then the High Court can consider it as compoundable and quash the proceeding.
498A IPC Recent Judgements
Rashmi Chopra v State of UP
FACTS:
-In this case, it was seen that Nayan Chopra, son of Rashmi Chopra and Rajesh Chopra got married to Vanshika Bobal, daughter of the respondent. Then they moved to the USA, and after two years of marriage, Nayan filed for divorce in the Circuit Court for the County of Kalamazoo Family Division, Michigan, USA.
-Rashmi’s father went to meet Nayan’s father, where he was demanding a huge sum of money and after that Rashmi’s father was subjected to harsh treatment by him with two more people
-There was a demand for a huge sum of money.
-Thus allegations against all the appellants were made under Section 498A and Sections 3 & 4of Dowry Prohibition Act.
-Then they were sent to Mediation Centre running under the District Legal Services Authority for counseling by the Magistrate. But it did not work.
– An application under Section 482 of Cr.P.C. was filed in the High Court praying for quashing the complaint and proceedings by the appellant
-The High Court refused to hear it as there was no mediation.
ARGUMENTS BY APPELLANTS:
-According to arguments both of them were divorced before the date of summon
-The prima facie of the complaint does not show any offense under Section 498A of IPC.
-The complaint was not filed by the victim.3
Judgment
– There is no provision that when a woman is subjected to cruelty, then the complaint has to be filed necessarily by the woman who is concerned.
– The complaint that was filed by the respondent, who was the father of Vanshika the victim cannot be considered to be maintainable on the ground provided.
– Thus, the contention submitted on behalf of the counsel for the appellant that complaint filed by the respondent was not maintainable.
-Thus, the accused was to be convicted under Sections 323, 504 and 506 of I.P.C. against Rajesh Chopra who was the accused.
VIEW:
According to me, the judgment delivered is rationalized.
As they were divorced, there was no existence of the marriage, which is an essential element of section 498A of IPC.
Thus the victim can not be convicted under this section.
In this judgment, the High Court was correct rejecting the plea under Section 482 of CrPC.
As per the Supreme Court, the offense can be compoundable only when there is mediation. But in this case, there was no mediation between the two parties.
Social action forum for Manav Adhikar v UOI
Case no. : WRIT PETITION (CIVIL) NO. 73 OF 2015
Petitioner: Social Action Forum for Manav Adhikar and another
Respondent: Union of India Ministry of Law and Justice and others
Soliciting directions to the codefendant, the petition under Art 32 of the Constitution of India was filed so that there would be uniform guidelines in the processing. Proper steps should be taken to go through the incidents if the FIR is filed in the state’s procedure. And if the appointed committees are looking into the matter effectively. Matters including their prevention, investigation, prosecution, and rehabilitation of the victims and their children at the Central, State and District levels are well organized.
For easy lodge of FIR under Section 498A of IPC by the women subjected to cruelty, prayer was made to issue a writ of mandamus to the respondents.
For that there should be a uniform policy of registration of FIR under Section 498A IPC in association with the law of the land.
The main motive behind this petition was to protect the social purpose behind Sec 498-A which was being exploited by the provisions of various qualifications and restrictions suggested by various courts including the decisions in recent cases . The Supreme Court has issued directions to prevent the misuse of Sec 498-A by the malice intention of women. Thus this matters require investigation to check the legitimacy of the complaint. After the judgement in Rajesh sharma v state of UP new guidelines were inserted which led to the formation of Family Welfare Committees to look into complaint filed under Sec 498-A. According to the direction of court and arrest shall be directed unless the Committee’s report has been issued.
The District and Sessions Judge or any other senior Judicial Officer has to be informed of any settlement made by both the parties to dispose of the proceedings including closing of the criminal case if dispute relating to matrimonial discord.
Arguments by the petitioners
The motive and objectives behind this Section 498A of IPC are being exploited.
There are no uniform rules and regulations to review the case.
There have been facts stating that the provision under Section 498A of IPC is being misused. But it’s not enough to prove the existence of the fake complaint. Thus it does not have the right to take away the basis.
The mechanisms that monitor the incidents are not working effectively.
That provision is to prevent women who make a false statement to put her in-laws in trouble
But those who are really victimized do not get the proper cure to it.
Arguments by the respondents
This Section has been used as a weapon rather than shield by the women.
Some women out of anger try to take revenge on their in-laws
This arrest provision allows the police and other organizations to put the accused into trouble.
Judgment
No court has the authority to direct the legislature to make any law.
It is not possible in the part of the court to look into the workings of the committees appointed.
It can only look at the report submitted and through this, it can know if the report is false in nature.
The Court also observed that the duties of the Welfare Committees and further action are beyond the Code.
Thus the investigating officers were instructed to act according to the guidelines given in the case of Joginder Kumar v. State of U.P and others, D.K Basu v. State of W.B, Lalita Kumari and Arnesh Kumar v. State of Bihar and another.
The changes in guidelines in case of Rajesh Sharma was:
-Family Welfare Committees were established, was not in accordance with the statutory framework.
-Even if the settlement between the parties is done, still they can approach the High Court.
-Director-General of Police of each state are directed to ensure if the investigating officers are executing their work properly and training is provided to them.
-When bail is entertained in this case, the recovery of dowry materials should not be the only object to be considered.
View
According to the judgment of this case, there was the maintenance of balance between the original provision of Section 498A that is to provide justice to the accused and to check if the innocent is not being punished.
Rajesh Sharma v State of UP
Case Number: CRIMINAL APPEAL NO. 1265 OF 2017
Petitioner: Rajesh Sharma & Ors.
Respondent: State of U.P. & Anr.
Date of judgment: 27th July 2017
Bench: Shri A.S. Nadkarni and Shri V.V. Giri
Fact
-It was seen that the complaint has raised the issue that she was subjected to and dowry demand.
-But the main contention raised was “to check the tendency to rope in all family members to settle a matrimonial dispute”.
Judgment
–The District Legal Services Authorities of every district was directed to constitute one or more Family Welfare Committees. It shall comprise of three members.
The working of these committees is to be reviewed at least once a year by the chairman of the committee that is the District and Session Judge.
The members of the committee are to inspect the complaints filed under Section 498A of IPC, received by the police officers or Magistrate. The members can communicate with the parties and it can be any mode of communication.
These members are not allowed to be witnesses.
The report by the members is to be submitted to the authority under whom it was filed within the span of one month from the date the complaint was filed.
The committee is free to give their opinion regarding it.
No arrest is to be done until the report is submitted by the committee.
Training is to be provided by the Legal Services Authority to the members of the committee.
The members of the committee are subjected to the honorarium.
A designated officer is to be appointed to investigate complaints under Section 498A of IPC.
Disposition of the proceedings including the closure of the criminal case relating to matrimonial case incase of settlement is done. It should be opened to the District and Session Judge or any other competent authority.
The case can also be decided on the same day when the bail application is filed with at least one clear day’s notice to the public prosecutor.
Impounding of passports or insurance of Red Corner Notice shouldn’t be a notice , when the person is not residing in India.
These provisions are not applicable to the offenses involving corporeal physical injury or death.
View:
I would appreciate the judgment because this would protect the innocent from getting through the proceedings.
K.V. Prakash babu v state of Karnataka
Case no. : CRIMINAL APPEAL NO(S). 1138-1139
Petitioner: K.V Prakash Babu
Respondent: State of Karnataka
Bench: CJI Deepak Mishra
Date of judgment: 22nd November 2016
Facts
-The complainant was the father of the deceased.
-In this husband of the deceased had extra-marital affair due to which she was not able to tolerate it and ended up her life.
Judgment
-Her husband can not be convicted under the Section 498A of IPC because it has no provision for adultery and it would be immoral
-And she was going through mental cruelty on the basis of the rumor.
-Presumptions under this situation can’t construct cruelty.
View
-To construct an offense under every section, one needs to prove the essentials of it.
-In this Section, adultery was performed which is considered to be cheating and it is not one of the essentials.
-And the deceased constructed the facts on the basis of rumors which would be considered as presumption.
Mohammad Miya v state of up
Case no. : Criminal Appeal no. 1048 of 2018
Petitioner: Mohammad Miya
Respondent: State of UP
Date of judgment: 21st august, 2018
Facts
-The complainant filed that her mother-in-law caught hold of her hair and was subjected to cruelty
-She was subjected to a fist blow by her husband.
-Her sister-in-law was also involved with her mother-in-law in hair-pulling.
-She has also stated the fact that she has been divorced for more than four years.
Judgment:
-The allegation of her sister-in-law pulling her hair was found vague because both of them were present during the situation and it is not possible to consider, as it is not mentioned in particular.
View
-The judgment of the court is to be appreciated because judgment can not be delivered in accordance with the presumption.
Heera Lal v State of Rajasthan
Case no. : Criminal Appeal NO. 790/2017
Petitioner: Heera Lal
Respondent: State of Rajasthan
Date of judgment: 24th April, 2017
Bench: Rohinton Fali Nariman, Mohan M. Shantanagoudar
Facts
-In this case, the women who committed suicide was subjected to harassment by her in-laws
-She was exhausted when her husband’s parents came to stay along with her.
-So out of frustration because of the action of her in-laws she did pour kerosene on her and did burn herself.
Judgment
-As from all the facts presented it was seen that the harassment subjected to her was not that serious of an offense to constitute cruelty
View
-The judgment was not appropriate. Cruelty is subjected to both physical as well as mental cruelty.
-In this case, she was tortured mentally and amounts to cruelty.
This article is written by Lakshay Kumar, a second-year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University and Ayushma Sharma of Faculty of Law, Aligarh Muslim University. In this article, they have covered the whole topic of Divorce system in India and how do people of various religions seek divorce according to their own religion.
In case a couple wants a divorce then they have to follow the following steps:
The couple will have to hire a lawyer first, so that he can provide them with all the details.
A petition will be filed in the court by the lawyer.
A copy of the petition will be then sent to the spouse.
The spouse could either agree to divorce or contest against it.
The completion of the procedure will depend on the circumstances of the case.
In case of divorce by mutual consent, the parties have to prove that they were living separately for more than one year.
A period of six months is given to the parties to reconsider their divorce.
After the expiry of the period of six months, if the parties are still of the opinion that they want a divorce, then, the court can give the divorce decree.
What are the various documents required to file a petition for contested divorce?
The documents required for the filing of divorce petition for a contested divorce are:
Address proof of husband.
Address proof of wife.
Marriage certificate.
Four passport size photographs of both husband and wife.
Evidence should be there which proves that both the husband and wife have been living separately.
Evidence proving that the attempts were made to reconcile but were not successful.
Income tax statements of the last two-three years.
Details of the profession and present remuneration of the petitioner.
Information regarding the family background of both the parties.
Details of the property owned by the petitioner.
Lawyer’s fee one expects to pay for divorce cases in India
Generally, the charges for filing a divorce case is not too much, however, the lawyer who engages to fight a divorce suit might charge for the services he has given. The lowest cost to fight a divorce suit is around ten thousand and the maximum might go is around ten lakhs.
Contents of Divorce Petition
The Procedure for filing a divorce case in India is regulated by the Code of Civil Procedure,1908. The procedure of initiating a divorce case starts by filing a petition for seeking divorce either by the husband or wife, and then, it is accompanied by an affidavit from both the parties. The petition for seeking divorce must state the following details:
Name of the parties.
Date and place of the marriage.
Status and domicile of the parties.
A permanent destination where the parties cohabited.
Place where the parties last resided together.
Name of the child (if any) along with his or her birth certificate.
The grounds for seeking divorce or separation.
The parties have to give a written statement giving a guarantee that they are not deceiving the court.
If the court is satisfied with the petition and the evidence presented, the court can pass the decree for granting a mutual divorce to the couple.
Grounds for Dissolution of Marriage
According to Section 10 of the Indian Divorce Act, 1869 after the solemnization of marriage the District Court can, based on the petition filed by either the husband or wife, can dissolve the marriage on the ground that the respondent :
Has committed adultery.
Has converted his religion and is no longer a Christian.
Has been of unsound mind for two years continuously before the filing of the petition.
Has been diagnosed with leprosy for a period of at least two years before the filing of the petition. Though this clause has now been omitted by the Personal Laws (Amendment) Act, 2019.
Has been suffering from some venereal communicable disease for not less than two years.
Has not been heard of for the past seven years from the persons who would have heard of the respondent if he had been alive.
Has refused to consummate the marriage.
Has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent.
Has deserted the petitioners for at least two years immediately preceding the presentation of petition.
Has treated the petitioner with such cruelty that it created a reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the respondent.
Dismissal of Petition
The court has the jurisdiction to dismiss any petition of divorce if it feels that divorce cannot be granted. The grounds on which a petition of divorce can be dismissed are mentioned below:
If the court finds no evidence to support the argument presented in the petition filed by the petitioner or the petitioner is unable to prove the case.
If the court finds no evidence for establishing that the husband has committed the offence of adultery, or that during the marriage the petitioner was aware that the defendant was living under such type of marriage, or if the petitioner has condoned the adultery that has been complained of.
If the court finds that the petitioner has filed the petition just to make an illegal case against the respondent or that the petitioner wanted to deceive any of the said respondents.
Decree for Dissolving the Marriage
It is up to the court to decide whether to pass a decree for dissolving the marriage. If the court finds that enough pieces of evidence have been presented to pass a decree for dissolving the marriage, then, the court will pass the decree but if the court is not satisfied with the evidence then it will not pass a decree. The court will not pass a decree for dissolving the marriage under the following grounds:
If the court finds that the petitioner is himself been guilty of adultery.
If the court finds that the petitioner has shown an unreasonable delay in prosecuting the defendant or has not made enough efforts to approach the court to seek a remedy.
In case the petitioner has shown cruelty towards the other party during the marriage.
In case the petitioner has deserted wilfully or separated himself without any reasonable cause.
Verification is done by the High Court
In case of every decree passed by the District Court either in favour of the petitioner or respondent, the decree so passed has to be verified by the High Court of that state. The High Court has full authority to examine the decree passed and if the bench of the High Court consists of 3 judges then the decision of the majority would prevail, and if there are two judges then, in that case, the judgement of the senior judge would be taken into consideration. High Court also has the power to direct the concerned authority to collect additional evidence or examine the proofs again. The result of the enquiry held would be communicated by the District Judge to the High Court and the High Court, after examining the enquiry, would pass the order of dissolving the marriage.
Petition for Decree of Nullity
The husband or wife can approach the High Court or the District Court to seek divorce by declaring their marriage null and void. After looking at the petition the concerned Court may pass an order declaring the marriage null and void under the following situations:
The respondent was present at the time of marriage and the institution of the suit.
Both the couples are within their restrictions of consanguinity and affinity.
The Court may also issue a decree of nullity if it finds that at the time of marriage either of the parties was a lunatic.
If the husband or wife after solemnization of their marriage was living with their former husband or wife.
The Court has also been given an additional power to declare the marriage null and void, in case the consent to the marriage from either of the parties was obtained by fraud or force.
Easy way to get a divorce in India
If people think that the easiest way to get a divorce in India does not involve law or through out of court settlement, then, there is no such way. To get a valid divorce law has been involved. So, amongst all those divorce laws that have been provided with the most straightforward procedure, the easiest one is according to Section 13B of the Hindu Marriage Act, 1955. As already mentioned, it is the provision of divorce sought with mutual consent. It is really important that parties have some agreements on issues because it helps the court in carrying out the divorce procedure at a much faster pace, also both the parties suffer from less emotional trauma. Having understanding on issues makes the procedure less complicated which in other circumstances is much more complicated since everything is decided by the court. There is no such provision that guarantees that the procedure for the decree of divorce will be completed within this time limit. In some cases, it will take less time than the time taken in other cases. But the one thing that helps to get a divorce in an easy and less complicated way is the understanding of the parties on issues like, child custody, child support, alimony, etc.
Types of Divorce Petition
Divorce with mutual consent
When both the husband and wife mutually consent to end their marriage, then, in that case, the married couple can seek a divorce from the courts. However, the court will not automatically dissolve the marriage. So that the petition for divorce is accepted, it is necessary to show that the couple has been living separately for over a year or two.
Sometimes, a petition for divorce may be applied not because there is some problem between the husband and wife, but because of some financial problems and the couple is not able to sustain their livelihood. In such cases, the couple can seek divorce with mutual consent.
There are three aspects between a husband and a wife when they are seeking divorce:
The first aspect is about the minimum and the maximum amount of time which the couple need from each other.
The second aspect is about the matter of child custody. When a divorce is taking place by mutual consent it is up to the couple to decide as to who will take custody of the child. The custody can be joint or exclusive, as per the understanding of the parties.
The third aspect is related to property as to how much share of the property will husband get and what is the wife’s share in the property.
Various laws have different periods specified for the completion of procedure of divorce. According to Section 13B of the Hindu Marriage Act,1955, to initiate the divorce proceedings it is necessary that both the husband and wife must be living separately for a minimum period of one year. However, for the Christians, the period is different. According to Section 10A of the Divorce Act, 1869, the couple should be living separately for a minimum period of two years. Living separately does not mean that the couple has to live at two different locations. They can be living together yet it is sufficient to prove that they were not living like husband and wife.
Divorce without mutual consent
The divorce without mutual consent can be sought on the following grounds:
Cruelty
Cruelty may be both physical or mental, if one of the patients feels that the conduct of the other party towards him or her is likely to cause some mental or physical injury, then, it serves as a sufficient cause to seek divorce.
Adultery
In India, earlier, adultery was a criminal offence but in a recent Supreme Court judgement adultery has been decriminalised. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery. Generally, in most cases it is committed by the husbands rather than the wives.
Desertion
If one of the parties deserts the other one without giving any reasonable reason, then, it is a good reason to obtain a divorce from the other. However, the person who abandons the other spouse must have the intention to desert and have the proof for it as well. Under Hindu law, the dissertation must have lasted for at least two years, but under Christian law, there is no such time limit and a petition of divorce can be filed just by claiming that the other spouse has committed desertion.
Conversion
Converting to another religion by a spouse is another reason to claim divorce from the other. This does not require any minimum time that has to be passed before claiming for divorce.
Mental Disorder
If the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder then, in that case, divorce can be sought. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.
Presumption of Death
If the spouse has not been heard of being alive for a minimum period of 7 years, then, in that case, the spouse who has not heard any news regarding his or her spouse being alive can seek divorce as the courts presume that the other spouse is dead.
Renunciation of the World
If the spouse decides to renounce the world and obtains a holy order, then, the aggrieved spouse can file for divorce. However, this renunciation must be absolute and incontestable.
Hindu Law
The Hindu Marriage Act, 1955 was enacted with the purpose of providing a uniform law in case of marriage to all the Sections of Hindus and others. It codified the marriage law between Hindus and introduced provisions related to divorce and separation.
Section 2 of the Act tells about the applicability of the Act. According to it, the Act is applicable to all the Sections of Hindu (Vaishaiva, a Lingayat or a follower of the Brahmo, Prarthana, Arya Samaj) and to any person who is a Sikh, Buddhist, or Jain by religion (in accordance with Article 44 of the Constitution of India). It is also applicable to all those persons who are the permanent residents of India and are not Muslims, Jews, Christians, or Parsis by religion.
Sikh divorce laws in India
Sikh marriages are called ‘Anand Karaj’ which means blissful union or joyful union. Even though the Hindu Marriage Act, 1955 is applicable to the Sikhs yet they have their own personal law governing marriage of their religion, i.e., Anand Marriage Act, 1909. It was introduced in 1908, in Imperial Legislative Council.
Initially, the Sikhs had to register their marriages under the Hindu Marriage Act,1955 since the Act of 1909 did not contain a provision related to registration of Sikh marriage. But in the year 2012, Anand Marriage (Amendment) Act, 2012 was enacted under which the Sikhs could now register their marriages. So now, Sikhs don’t have to register their marriage under any other Act after registering under the Anand Marriage (Amendment) Act, 2012.
Jain divorce laws in India
The divorce law for Jains is governed by the Hindu Marriage Act, 1955. They don’t have any separate law of their own to govern their marriage and divorce cases.
Buddhist divorce laws in India
The provisions related to divorce for Jains have been covered under the Hindu Marriage Act, 1955. Buddhists have been demanding for separate law relating to marriage and divorce, especially since marriage between two Buddhists couples (according to the Buddhists rituals) was declared void. So far, no step has been taken towards the fulfilment of their demands. But the Government of Maharashtra proposed a draft for Boudha (Buddhist) Marriage Act which mentions the solemnization of Buddhist marriage as per the Buddhist rituals. However, it does not include any rule regarding divorce. Therefore, the divorce provisions for Buddhist marriage is still governed by the Hindu Marriage Act, 1955.
Section 13 of the Hindu Marriage Act, 1955
Section 13 (1)
This provision stated the grounds on which petition for divorce can be filed. Section 13(1) of the Hindu Marriage Act, 1955 allows a husband or a wife to file a petition for divorce, if the other party has committed the following acts after the solemnization of marriage:
Adultery – In India, earlier adultery was a criminal offence but in a recent Supreme Court judgement adultery has been decriminalised. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery. Generally, in most cases it is committed by the husbands rather than the wives.
Conversion – Conversion to another religion by a spouse is another reason to claim divorce from the other. This does not require any minimum period that has to be passed before claiming for divorce.
Unsound Mind – If the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder, then, in that case, divorce can be sought, provided that the said unsoundness of mind should of a period not less than three years. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.
Leprosy – If the spouse has been suffering from some virulent and incurable form of leprosy, then, the aggrieved can seek divorce. This clause has been omitted by Personal Laws (Amendment) Laws, 2019.
If the spouse, from the last three years from the date of filing of the petition, has been suffering from any communicable venereal disease, then, in that case, the aggrieved can get a divorce.
Renunciation of death – If the spouse decides to renounce the world and obtains a holy order, then, the aggrieved spouse can file for divorce. However, this renunciation must be absolute and incontestable.
Presumption of death – If the spouse has not been heard of being alive for a minimum period of 7 years, then, in that case, the spouse who has not heard any news regarding his or her spouse being alive can seek divorce as the courts presume that the other spouse is dead.
Cohabitation – If there has been no cohabitation between the parties after the passing of the decree of judicial separation.
Restitution of conjugal rights – If the spouse has failed to comply with the decree of restitution of conjugal rights since the passing of such decree.
Section 13 (2)
Section 13(2) of the Act provides additional grounds on which a wife can obtain the decree of divorce:
Bigamy
According to Section 11 of the Hindu Marriage Act, 1955, a marriage is null and void ab-initio if at the time of the marriage either of the parties had a living spouse. For this provision to be applicable it is necessary to prove that-
Bigamy is both a matrimonial as well as a criminal offence. In 2009, the Law Commission suggested to make bigamy as a cognizable offence. So, bigamy is a cognizable, compoundable and bailable offence.
Section 17 of the Act of 1955 provides for the punishment of bigamy. It states that a marriage solemnized will be considered void if either of the parties had a living husband or wife, and Section 494 and Section 495 of the Indian Penal Code will be applied accordingly.
The Supreme Court in K. Neelaveni v. State Insp. of Police & Ors.,[1] held that for a case of bigamy under criminal law it is not necessary to prove the commission of the offence because it is for the trial court to determine the authenticity of the allegations made.
Rape, sodomy or bestiality
Section 13(2)(ii) of the Hindu Marriage Act, 1955 states that a wife can file a petition for divorce on the ground of rape, sodomy, and bestiality. These three terms have not been mentioned anywhere in the Act of 1955.
The term ‘rape’ has been defined under Section 375 of the Indian Penal Code. It can be defined as sexual intercourse with a girl or a woman without her consent. The punishment for rape is mentioned in Section 376 of IPC. The other two grounds, i.e., ‘bestiality’ and ‘sodomy’ are referred to as the unnatural offences and are dealt under Section 377 of the IPC. According to the courts, ‘sodomy’ refers to as the son corral copulation with the member of the same sex or opposite sex. Bestiality means sexual intercourse by a human being, against the order of nature, with any man, woman, or an animal. Even the slightest misconduct on the part of the man can make him liable. Thus, if the husband has committed any of these acts, then, the wife can file for divorce.
Failure of maintenance by the husband
As per Section 13(2)(iii) of the Act, a wife can obtain a decree of divorce if in a case within the ambit of Section 18 of the Hindu Adoption and Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 an order has been passed according to which the husband has to provide maintenance to his wife in spite of the fact that she has been living apart and there has been no cohabitation between the parties from the date on which the decree was passed.
The main requirements for the application of this provision are:
The petition for obtaining the decree of divorce should have been filed by the wife.
No resumption of cohabitation has been there between the parties for one year or more since the order of maintenance has been passed.
Option of puberty
As per Section 13(2)(iv) of the Act if the marriage is solemnized before the bride attains the age of 15 years then she can repudiate the marriage before she attains the age of majority, irrespective of the fact that the marriage was consummated or not. This clause 2 was added by the Marriage Laws (Amendment) Act, 1976.
In Bathula Iylaiah v. Bathula Devamma, [2] the Court admitted the application for repudiation of the marriage even when the repudiation was done by the girl after she attained the age of majority. The petitioner didn’t know about the enactment of the Amendment Act of 1976, so as soon as she came to know about she filed for the repudiation of the marriage. The court on the basis of the reasonable explanation of delay decided to admit the petition.
Special Marriage Act
The Special Marriage Act was enacted in the year 1954. It replaced the old Act III of 1872. Its purpose is to provide special marriage to all the persons living in India as well as the Indians living in foreign countries irrespective of the religion of either of the parties. The three main objectives because of which this Act was enacted to replace the Act III, 1872 are:
To provide a special form of marriage in certain circumstances.
To provide a process in case of divorce.
To provide registration in such special marriages.
Conditions for marriage
Following are the conditions that are required to be fulfilled to ensure a valid marriage takes place:
Both the parties must have attained the age of majority, i.e., 18 in the case of girls and 21 in case of boys.
Both the parties must not be involved in any other valid substituting marriage.
The parties should be of sound mind to make sure that they give valid consent to the marriage.
The parties should not have a relationship that is prohibited.
Section 27 of the Act
As per Section 27 of the Act, a petition can be filed by either a wife or a husband on the ground that the respondent:
Has committed adultery since the solemnization of marriage.
Has abandoned the petitioners for at least three years immediately before the filing of the petition without giving any reasonable reason.
Has treated the petitioner with cruelty since the solemnization of marriage.
Has been of unsound mind for a constant period of three years immediately after the filing of the petition.
Has been suffering from some communicable venereal disease for not less than three years immediately before the filing of the petition, the disease not being contracted from the petitioner.
Has been suffering from leprosy for a period not less than three years immediately before the filing of the petition, the disease not being contracted from the petitioner. But Personal Laws (Amendment) Act, 2019 has now omitted this clause.
Has not been heard of as being alive for the past seven years, even from the people who would have naturally heard of the respondent as being alive.
Has not continued the cohabitation for a period of two or more years after the passing of a decree for judicial separation against the respondent.
Has failed to comply with the restitution of conjugal rights for a term of two or more years after the passing of the decree against the respondent.
And by the wife on the ground that her husband is guilty of rape, sodomy, or bestiality since the solemnization.
Parsi Law
Under Parsi law, a person may seek divorce under the following three grounds:
If the marriage is not able to be performed due to some natural cause then, in that case, any of the spouses can seek for divorce and ask the court to pass a decree of nullity to make the marriage null and void.
Under Parsi law a person may seek divorce on the following grounds mentioned below:
If after the marriage has been solemnised and the other partner does not consummate willfully then, in that case, the other spouse has a right to seek divorce under the Parsi law.
The defendant at the time of marriage was mentally ill and his or her mental illness continues habitually till the time the suit was filed.
The defendant at the time of marriage was pregnant with another person’s child.
One thing to be noted is that divorce would be not granted to the person based on the above grounds, unless:
The plaintiff at the time of marriage was unaware of the fact alleged.
The suit has been filed within two years from the date of marriage.
The marital intercourse did not take place after the plaintiff came to know about the fact.
Christian Law
Christians, in India are governed by the Indian Divorce Act,1869 when it comes to divorce, according to this act, divorce proceedings can be initiated either by the husband or by the wife through filing a petition. After the divorce between the parties, various other problems like who will take custody of the child, or how will the property be divided, or who will get what, it is all covered under the Indian Divorce Act,1869.
Types of a petition under Divorce law
There are mainly 2 types of divorce petition as per the Indian Divorce Act,1869 which the Christians can claim:
The first petition is known as the no-fault petition which is sometimes equated to divorce through mutual consent.
The second petition is known as fault liability petition under which either of the spouses can file for divorce on the grounds specified under the Act.
Divorce through mutual Consent
A Christian couple can claim divorce through mutual consent. For claiming divorce through mutual consent it is necessary that the couple must be living separately for at least 2 years. They have to prove that they have not been living as husband and wife. The issue of child custody, the maintenance of the child and the division of the property should be settled mutually.
Divorce without mutual consent
When a divorce takes place at the instance of one party without the consent of the other party, then, that divorce is said to be a divorce without mutual consent.
A Petition filed by the husband
A husband may seek to file a divorce petition in a District Court or a High Court claiming that his wife has committed adultery after the marriage was approved. The marriages of Christians are governed by the Christian Marriage Act,1872.
A Petition filed by the wife
A wife may also file a petition for divorce under the following grounds:
If the husband has changed his religion from Christianity to some other religion.
If the husband has committed bigamy.
In case the husband has performed bigamy along with adultery.
In case he has committed rape or bestiality.
In case the husband has committed adultery along with showing cruelty towards his wife.
Muslim Law
Dissolution of Muslim Marriages Act,1939
As stated above Muslims are governed by the Dissolution of the Muslim Marriage Act,1939. However, the judicial way to seek a divorce, under Islamic Law, apart from a judicial way is through Extra-Judicial way. Under the Islamic law, divorce is only permitted when both the husband and wife are unable to live together.
Muslim women do not have any right to seek divorce unless their husbands have delegated this right to them. They can seek divorce on the grounds of false charges made under adultery, impotence and insanity of the husband.
Section 2 (dissolution of muslim marriages act) Talaaq
When the whereabouts of the husband is not known to the wife for a minimum of four years
When the husband is missing for four years and there is no news about him either to his wife or all the persons who would have known about him, then, in that case, the wife can approach the court and ask the court to pass the order to dissolve the marriage. After this the court will ask the wife to make a list of all the people who are the legal heirs of the husband. If the court is satisfied with the answer, then, in that case, the court will issue a decree in favour of the wife for dissolving the marriage which will come into force only after six months. If the husband returns home before six months then the court will set aside the decree passed by it and the marriage will not be dissolved.
When the husband has failed to provide for maintenance for two years
It is a legal obligation of every husband to provide maintenance to his wife for a minimum of two years, if he fails to do so, then, this would entitle the wife to seek divorce because the husband failed to perform his legal obligation. The husband may not be able to maintain his wife mainly because of two reasons, first, he might have neglected her and secondly, he does not have enough money to maintain her, though in both cases the wife would be entitled to claim divorce from his spouse. However, this remedy is available only when the wife has performed her part of the obligation which she had to do. If she was unable to perform her part of obligation and she leaves home, then, in that case, she can not claim divorce from the court.
When the husband has been sentenced to jail for a minimum period of seven years
The period when the wife can seek divorce under this situation starts when the decision of the final court has been given and the appeal filed has expired.
When the husband has not performed his marital obligation for three years
Marital obligation has not been defined anywhere in this Act. However, under this Act marital obligation can be equated with the conjugal obligation that the husband has to perform. If the husband is not able to perform his conjugal obligation, then, in that case, the wife can seek the divorce on the ground of non-performance of conjugal rights.
Impotency
The wife can seek divorce if she can prove that the husband is impotent or was impotent at the time of marriage and till continues to be impotent. In that case, the court will give the husband a period of one year to prove his potency, but only on an application filed by him. In Gul Mohd Khan v Hasina,[4] the wife applied for divorce claiming that her husband is impotent, later on, the husband within the specified period, filed an application to prove his potency. The court granted him one year to prove his potency.
Any kind of venereal disease or when the husband is insane for a period of two years
Under this situation, the wife is only allowed to seek divorce if the disease or insanity is incurable. If the disease is a disease in the sex organ and is curable, then, the wife can not apply for divorce. If the disease has been caused to the husband because of the activities of the wife, even then, she is entitled to claim divorce from her husband.
If the girl was given by the father to another guardian before the age of 18
If the girl was given to other guardians before the age of, then also, the wife can ask for divorce provided that the marriage was not consummated.
When the husband treats his wife with cruelty
Under this Act, various acts have been put under the basis of cruelty such as:
If the husband habitually conducts assault upon his wife and makes her life miserable, it is not necessary that cruelty may be imposed only physically.
If the husband associates with women having ill-repute or lives an infamous life.
If the husband forces his wife to live an immoral life.
If the husband disposes of the property of the wife and stops her to have access to it, then it would be treated as cruelty.
If the husband obstructs his wife in the observance of her religious duties and practices.
If the husband has more than one wife and does not treat her in accordance with the rules of the Holy Quran.
The Act only lays down a limited set of acts that could be termed as cruelty, the courts over time have expanded the meaning of cruelty and in various cases, they have given a different meaning to it, so now, every kind of cruelty is included under the Act.
In Abookbacker v. Mamu Koya, [5] the husband used to force his wife to wear a sari and come with him to watch a movie, but the wife refused as it was against her religion and she filed a suit of divorce. However, the Court held that the husband’s conduct can not be regarded as cruelty as just departing from the orthodox way of clothing standard is not un-Islamic.
In Itawari v. Asghari, [6] the Allahabad High Court held that the Indian Law do not recognise any kind of Muslim cruelty or Hindu cruelty, the concept of cruelty is based on universal and humanitarian grounds. Any act of the husband that is to cause harm physically or mentally to the wife would be treated as cruel behaviour towards the wife.
Conditions of a valid talaq
There are four conditions of a valid talaq under Muslim law:
Capacity
Only persons who have attained the age of majority and of sound mind can pronounce talaq. No person who has not attained the age of majority or is of unsound mind can pronounce talaq. This means that a minor husband cannot pronounce talaq, in case of the minor husband the qazi and the Maulvi will decide the fate of the marriage. Also, no other person on behalf of the legally entitled person can pronounce talaq.
Free consent
Except under Hanifa school of law, the talaq pronounced by husband should be done by free consent. However, under Hanifa School of thought, even if the husband pronounces talaq to which his consent is not free, then, in that case also talaq pronounced by him would be valid.
Formalities
Under Shia law, talaq may be given either orally or it may be in some written form, there are no express words which need to be spoken to constitute a valid talaq. A simple clear desire by the husband to not continue the marriage will constitute a valid divorce.
Express words
It is necessary that the husband clearly indicates his will to give talaq, if the husband does not clearly specify his intention to dissolve the marriage then it must be proven that he wants to dissolve the marriage.
Modes of Divorce under Muslim Law
There are two modes of Divorce through which a marriage can be dissolved under Muslim law:
The extra-judicial way to seek divorce which includes divorce by the husband through Talaq-e-Sunnat,Talaq-i-biddat, ila and zihar. Apart from that, it also includes divorce given by wife through talaq-i-tafweez and lian. The third is through a mutual agreement, i.e., khula and mubarat.
There are two expressways by which the husband can give talaq to his wife:
Talaq-e-Sunnat
Talaq-i-biddat
Talaq-e-Sunnat is further divided into two types, namely:
Talaq-i-ahasan
Talaq-i-hasan
Talaq-e-Sunnat
Talaq-i-Sunnat is considered to be following the sayings of prophet Muhammad. The two subclasses of Talaq-e-Sunnat are
Taalq-i-ahasan
Taalq-i-ahasan is a single pronouncement of talaq which is made by the husband during the period of tuhar. This kind of method is approached when the wife is free from menstruation. This type of divorce applies only to the oral pronouncement of divorce and not written. The advantage of this kind of divorce is that it can be revoked at any time before the completion of the period of iddat and therefore, thoughtless divorce can be stopped if made.
Taalq-i-hasan
Under this form of talaq, the husband has to pronounce talaq at subsequent intervals during three successive tuhars. For example, if the wife is going through the period of tuhar and she has not had any sexual intercourse, then, if the husband pronounces talaq then it is the first pronouncement. Similarly, when the wife enters into the second period of purity, and before sexual intercourse the husband pronounces talaq it would be the second pronouncement of talaq, and if the husband pronounces talaq for the third time before sexual intercourse then, in that case, the marriage would be dissolved.
talaq-i-Biddat
This form of divorce includes pronouncement of talaq three times in one go either in one sentence or in three. This type of divorce is condemned by various Islamic jurists as it is not considered to be an appropriate form of pronouncing talaq because it can not be revoked.
Ila and Zihar- Other forms of divorce by a husband
Ila
Under Ila, the husband takes an oath not to engage in sexual intercourse for four months and after the expiry of four months the marriage is dissolved. If the husband engages in sexual intercourse within these four months then that marriage would not be dissolved. If after cohabitation the wife wants to have a divorce, then she can claim it through only by the way of judicial separation. However, when there is no cohabitation after four months the wife can simply approach the court for enforcing the conjugal rights that the husband has to fulfil.
Zihar
In this form of divorce, the husband compares his wife with another woman like his mother and sister, after making such a statement does not cohabitate with his which results in the dissolution of the marriage.
Divorce by wife
Talaq-i-Tafweez
Talaq-i-tafweez or delegated divorce is a form of divorce that is delegated to the wife by her husband. This power may be given temporary or permanently. When this power is given temporary then, in that case, the power delegated cannot be revoked but if the power is given then, in that case, the power delegated can be revoked. This kind of divorce is a kind of weapon in the hands of the wives so that they can relieve themselves from the clutches of their husbands without any judicial intervention.
Lian
When the husband makes false charges of unchastity or adultery against his wife then results in degrading the character of the wife which guarantees the wife to seek a divorce from his husband. However, this right is only available when an aggressively false charges of adultery and has been against the wife. In Nurjahan v. Kazim Ali,[3] it has been held by the Calcutta High Court that when the wife says something bad about the husband or shows bad behaviour towards him and in response the husband says some bad things to the wife, then, it would not entitle the wife to claim divorce under Lian.
Divorce by mutual consent
Divorce law In India takes how long?
The period taken for a divorce procedure to complete depends upon the facts and circumstances of the case. It can take from 8 months to 2 years or more. This procedure is not easy to complete because it’s just not a legal process, it is an emotional process as well. The parties go through mixed feelings while they fight for their case, and also, it’s not the only the parties who are suffering but their families are affected too, especially children.
Mutual consent divorce takes less time
If a divorce petition is filed with the mutual consent of both parties, then, it is likely to take less time. Since in this case, the parties just have to prove that they have been living separately for more than one year or more and have no intention to reconcile, it doesn’t involve many disputes. The court has to see if the required conditions are fulfilled, and if the parties are still not interested to continue their marriage then it can grant divorce decree to the parties.
A Contested divorce takes a longer period
Since in this case, the parties don’t agree with each other on at least one major issue, they have to face trials for all unresolved issues. Normally, it takes more than one year to get the divorce.
Factors affecting the time taken to take a divorce
The time taken to get a divorce is affected by:
The fulfilment of required conditions to file a divorce.
If the divorce filed is fault-based or no-fault based.
(fault-based – where neither of the parties takes the blame for breaking up the marriage
no-fault based – where one of the parties it to be blamed for ruining the marriage)
If the divorce filed is contested on or based on mutual consent of the parties.
If there are any assets or properties of the parties that are to be assessed to calculate their worth.
If the local Family Court has a backlog of issues.
What is alimony?
When both the husband and wife are married then there are certain duties that each one of them has to perform, after divorce these duties do not come to an end. When either of the spouses is dependant on the other spouse(in most cases it is wife) then, in that case, the wife can claim maintenance from the husband for her living or her children and even in the case of an indigent parent. In cases of maintenance, the court looks into various factors before giving any maintenance such as the earnings of the husband or his ability to reclaim his property assets and liability in case he has to give some part of the property to his wife.
Alimony in mutual divorce
When the parties obtain a divorce by mutual consent the question of payment of alimony is solved on the basis of understanding and agreement between the contesting parties. The decision of who will pay who depends on the mutual understanding of the parties. The court on the basis of their agreement will pass the order, thus, binding the parties.
Alimony calculator
The spousal support, also known as alimony, is assessed on the basis of the following:
Petitioner’s gross yearly income.
Petitioner’s net yearly income.
Gross yearly income of the spouse.
Net yearly income of the spouse.
A sum paid by both the contesting parties in child support for their children.
Length of the marriage.
Formulas used in calculating Alimony
Following are the formulas through which alimony can be calculated:
AAML Formula
Judge Ginsburg Formula
Texas Formula
Santa Clara County Formula (California)
Rough-cut ⅓-⅓-⅓ Rule of Thumb Formula
Maricopa County Formula (Arizona)
NY Formula
Johnson County Bar Association Formula (Kansas)
Factors
It is not necessary for all the courts to use the above-mentioned formulas. Many courts decide the spousal support and the period till which it would be paid or received based on a list of factors. This list of factors can include the length of the marriage, educational qualification of the spouse, the age of the spouse, whether either of the spouses had an extra-marital affair and income of both the contesting parties.
Payment terms
The part can either receive the amount in a lump sum or monthly instalments. Previously, i.e., before 2019, the spouse who was supposed to pay the alimony could reduce support payments from their tax returns while the spouse who received the amount had to pay the tax. But after 1st January 2019, the payer can no longer reduce the support systems and the receiver has to pay nothing.
This is a landmark judgment case in which the Supreme Court held that the six months period, i.e., the cooling-off period is not mandatory under the Section 13B (2) of the Hindu Marriage Act,1955. The Court held that the provision of the cooling-off period is a directory provision and can be waived off under certain circumstances. In this case, the parties were living separately for 8 years and with mutual consent decided to apply for divorce. The parties pleaded for the waiving off the provision of the cooling-off period given under Section 13B (2) of the Act since they had been living separately for the past 8 years and there was no chance of reconciliation. The Court also held that the courts have the liberty to exercise their discretion of waiving off this provision depending on the facts of the case.
The Court stated that the courts while deciding the matter under this aspect can consider the following points before giving judgment:
That the period of six months mentioned in Section 13B (2) in addition to the period mentioned in Section 13B (1) has been over before the first motion of the petition.
That there is no chance of reconciliation between the parties.
That the parties based on their mutual understanding have settled the issues like alimony, child custody, or any other issue.
That the application for waiver of the cooling-off period is submitted after the first week of the first motion specifying the reasons for the same.
That the cooling-off period would only increase their agony.
That if the above conditions are satisfied the court can choose to waive the period
That the period mentioned in Section13B(2) is not mandatory but directory and the courts have full discretion to decide the matter on the basis of the facts and circumstances of the case. Also, such proceedings can be carried out through video conferencing.
In this case, a divisional bench consisting of Pankaj Mittal and Rajiv Joshi, JJ. admitted an appeal filed by a wife against a decree of divorce by mutual consent. The wife filed an appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 stating that her consent, in the divorce by mutual consent, was taken under undue influence. The main issue that arose was whether an appeal would lie before a High Court under Section 19 of the Family Courts Act,1984 against the Section 13B of the Hindu Marriage Act, 1955?
The Court admitted the appeal while referring to Sureshta Devi v. Om Prakash [7] case, and held that it is the responsibility of the Courts, before deciding the case, to satisfy that the consent obtained under divorce by mutual consent was obtained voluntarily. Therefore, it can be concluded that when consent, in divorce by mutual consent, is disputable then an appeal can lie against it before the higher courts.
In this case, the petitioner (husband) filed a petition to obtain divorce decree on the ground of cruelty. In return, the respondent (wife) filed for restitution of conjugal rights and claimed for interim maintenance. The Family Court, based on an email sent by the wife containing a letter written by husband declaring his medical problem, decided that the husband has to pay the maintenance amount. Later on, an appeal was filed by the husband against the judgment of the Family Court. The Madras High Court held that just because a letter was sent by the husband doesn’t mean that he is at fault, he might have considered it as important information that his wife should know about. Also, no matter what claims are made by the parties the Courts should keep in mind that at this point, emotions of the parties are subjective and they are at loggerheads. Therefore, the courts should take the decision accordingly. The Madras High Court, thus, reduced the amount of maintenance which was decided earlier in accordance with his salary.
What are the factors that help in deciding the alimony amount?
The alimony amount is decided while taking into consideration various factors, one such factor is the duration of the marriage, if the marriage has lasted for a decade then, the alimony amount would be generally high. Other important factors that are kept in consideration are as follows:
The age of the person who is entitled to receive the alimony amount or the concerned spouse.
Financial conditions of the person who will be giving the maintenance amount.
Health conditions of both the spouses.
The parent who retains custody of his or her child is not entitled to pay higher alimony and that parent would be entitled to receive a greater alimony amount in case he or she is on the other end and have the custody of a minor child.
Settlement of Property
In marriage, both the husband and wife have equal rights over the, even if the property is owned by one of the spouses. If the spouse has custody of a child, then, the claim of the parent having custody of the child in the property becomes much stronger. Until the proceedings of divorce are over both spouses have an equal right to stay on that property.
Therefore, a marriage under Hindu law would be declared void and will give the concerned spouse a chance to claim divorce if the other spouse contravenes any of the following acts:
Bigamy
Neither of the parties should have a spouse living at the time of marriage. If any of the spouses indulges in bigamy, then, the marriage will automatically be annulled without any formality.
Sapinda Relations
In the case of sapinda relations, one person is a lineal ascendant of the other within the limits of spinda. Sapinda, here, means the relation which extends up to three generations of line ascents on the mother’s side and father’s side it extends as far as the fifth generation in the line of ascents.
In other words, a marriage between an ancestor and a descendant or any close relatives, under this situation as well, the marriage would be annulled.
Persons falling within degrees of prohibited relationships
Prohibited relations are those relations in which people are related by blood or marriage. A marriage cannot be considered as a valid marriage in which the parties fall within the prohibited relationships. Such prohibitions are based on:
Consanguinity – blood-relationship including half blood
Affinity – relationship by marriage
This prohibited degree of relationship extends to marital as well as non-marital offspring. Therefore, marriage between uncle and niece or between an aunt and nephew are the marriages that would be declared void.
Voidable marriages
Voidable marriages are not annulled automatically. But the process of annulment is started by one of the parties if they think that there was no intention to enter into a civil contract by the other party at the time of marriage either because of some mental disorder or because of intoxication.
Effects of divorce
After a divorce, a family that was once happy does not remain happy anymore. All the members of the family suffer from different levels of emotions. The divorced couple goes through a very emotional phase where they not only have to take care of themselves but their children as well.
In divorce cases, somehow the couple manages to understand the situation since it was their decision only. But, the children who always had the idea of a happy family living under the same roof, when come to know about the divorce don’t take it well. In some cases, the children are able to get themselves together and move on with their lives but in other cases, children have to suffer in the long term. The couple faces emotional problems, financial issues, the situation of less happiness, etc. The children go through educational, psychological, emotional and behavioural problems. It has been seen that children from divorced families are more likely to show such problems than children from non-divorced family.
Child Custody in India
In case, the married couple has children, then, the issue of their custody is, generally, dependent upon one consideration, i.e., what is best for the child. In the case of mutual divorce, the custody of the child is also decided mutually. However, in the case of a contested divorce, the court will look into various factors before deciding to which parent the child is to be handed over. Many people think that mothers have a strong case when it comes to child custody, however, the courts decide it by considering what is best for the child. Sometimes there are situations when the custody is given to the mothers and fathers have to provide financial help to them. The principle on which the custody of the child is decided is ‘best interests of the child’.
Types for Child Custody
There are five types of child custody in India. They are:
Sole Custody
In sole custody a parent has full custody in all matters concerning the child. It rarely happens that a court awards sole custody to either of the parents. It happens only in cases where one of the parents is deemed to be unfit or incapable of raising the child, like in cases where a parent is a drug addict or alcoholic.
Sole custody is further divided into two kinds:
Sole Legal Custody
The parent has the authority to make decisions that are related to the child’s well being, like, his education, his medical expenses, etc.
Sole Physical Custody
The parent has the right to keep the child with him under his supervision subjected to reasonable visitation by the other parent.
Legal Custody
In this case, the parent has the right to manage the child’s affairs which are related to his welfare for a long period. Mostly, legal custody is given both to the mother and the father unless the Court is satisfied that one of the parents is not fit to take care of the child.
It covers two aspects:
Sole Legal Custody
It has been already discussed above under sole custody.
Joint Legal Custody
In this case, both the parents have equal right to deal with their child’s affairs.
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Physical Custody
Under this head, a child has to live with the parent to whom the court has awarded the physical custody. The parent has to take care of day to day needs of the child. The non-custodial parent is allocated visiting period in which he has the right to spend some time with the child. It has two aspects:
Physical + Joint Legal Custody
Though the child will live the parent who has been awarded the physical custody, the legal custody is shared between both the parents which means that both of them have equal right to take part in their child’s life.
Physical + Sole Legal Custody
According to this heading, one parent is given physical custody as well as sole legal custody. This type of custody is mainly given in cases where the other parent is deemed not to be fit for taking care of the child. Though the other parent is still allowed to visit the child but the period will be less than that in case of joint legal custody.
Joint Custody
Here, both parents are given the custody of the child. They have equal rights over the child’s well being. It includes:
Joint Legal + Joint Physical Custody
The child under joint physical custody lives with both parents as per the arrangement decided. The parents will cooperatively make decisions for their child.
Joint Legal + Sole Physical Custody
The parents with mutual understanding take decisions relating to the welfare of the child but only one has the sole physical custody.
Grandparent visitation and custody
If both parents are not fit to ensure the well-being of their child then the court can give the child’s custody to the grandparents of the child, believing that they are the best guardians. The awarding of this custody depends upon the circumstances of the case. In some cases, visitation is also allowed to them when it is seen that the child is benefitted from his relationship with the grandparents.
Under normal circumstances, the natural guardian is the father. While in other cases it is the mother who assumes the role as the guardian of the child.
If the court thinks that giving the custody of the child to the father will not serve the best interest of the child, then he can not claim any indefeasible right. Custody of the child can shift from one person to another keeping in mind the welfare of the child.
Custody of the child in Parsi law
Under the Guardian and Wards Act,1890, when it comes to the custody of the child no religious tradition or custom would be looked at as far as the welfare of the child is concerned. The court will only look into the factors that would help in the overall development of the child, and whosoever parent is able to provide that overall development would be given the custody of the child.
Custody of the child under Christian law
The Indian Divorce Act,1925 along with the Guardian and Wards Act,1890 governs the rules regarding the custody of the child during the divorce proceedings or after the divorce. The court may pass any order as it may deem fit in the best interest of the child. Apart from this, the Divorce Act, 1869 also confers the court not only to decide matters relating to the custody of Christian child but also to decide the custody dispute of any other child.
Custody of Child under Muslim law
The custody of a Muslim child is also governed by the Guardian and the Wards Act,1890. In Muslim law custody of the child is known as Hizanat which means infant care. The rules of custody are as follows:
If the child is below seven years then the custody of the child will remain with the mother only.
If the child is a girl then until she attains her puberty she would be living with her mother.
If the mother of the girl child is dead or she is not in a position to take care of the child, then, the custody of the child will pass on to the maternal relations of the child.
If there are no maternal relations then the last option available is that of the father or male relative.
When the child has attained the age of seven in the case of the boy and in case of girl when she has attained the age of majority, then, the custody of the child passes on to their legal guardian, i.e., the father.
The custody of the child can also be transferred from the mother if she lives with another man, or she is indulging in some immoral activities or she is living at a distance which is far away from the husband’s residence.
How to file for child custody?
The laws that govern child custody cases in India are as follows:
An application for the custody of the child can be filed in a Family Court or in the jurisdiction of the Court where the minor lives.
General considerations before the court while the custody of the child in a case
One of the most important aspects in divorce cases is the custody of children in the hands of the parent who is more capable of ensuring the welfare of the child than the respondent.
The other aspects that the court considers before deciding the custody of a child are as follows:
Who is more close to the child, mother or father?
If keeping the child away from the other will have an adverse effect on the well-being of the child.
Educational qualification of both the parents and their immediate family.
The financial position of the spouses, separately.
The opinion of the child, his wishes, if he is capable enough to form his own.
Overall conduct of the parties
Child custody during divorce proceedings
Now the question arises, what happens to the custody of the child before the divorce is finalized?
Generally, during the proceedings of divorce both the parents with their mutual consent, decide amongst themselves regarding the custody of the child. If the parents agree to share the custody of the child, then, they can either live in the same house or if a parent moves out then they can take turns to keep the child with themselves. The custody of the child before the finalizing of divorce is at the discretion of the parents.
In other circumstances, the parents can agree to keep the child with one parent if the other parent decides to move out of the house and does not have the means to support the necessities of the child because of some issues. Another option is also there, where the parties, in case of no agreement, can ask the court to issue a ‘temporary custody order’ of the child till the divorce proceedings are finished. After the parties have filed the petition they can then file a motion for temporary custody, if haven’t decided about the custody. The proceedings for the temporary custody will initiate early as an emergency case and then, after the hearing of the case the court will decide the custody of the child which will be effective until the divorce is finalized.
Annulment of marriages
The process of annulment of marriage is the same as it is in divorce, however, the grounds under which a marriage is annulled are different than that of divorce. Some of the grounds of annulment are as follows:
Fraud by one of the spouses.
Pregnancy of the wife with another man’s child apart from the husband.
Impotency of any of the spouse before and till the case has been filed.
Judicial Separation
Judicial Separation is a legal separation of the husband and wife through a petition filed in the court either by the husband or the wife. In case of judicial separation, the couple will be considered to be married but they would be living separately and none of the couples would be allowed to get re-married. In case of judicial separation, the couple can seek a decree on the grounds of adultery or cruelty without any reasonable excuse for two years. This decree would be treated like a divorce under the Indian Divorce Act, 1869. The application for seeking a judicial separation would be presented to the District Court or the High Court and on satisfying
itself, the Court may give the directions of judicial separation.
Separated Wife
In the case of Judicial Separation, the wife who wishes to get separated would be considered to be an unmarried woman, in case she enters into a contract or suffers an injury or is sued or is suing someone in civil proceedings. The husband cannot be made liable for any act or any contract entered into by the wife during the time of separation.
In every case of judicial separation, the wife would be considered to be separated from the date of issue of the decree till the time the separation continues.
The separated wife would be personally liable for any matter concerning the property she had acquired during the time of separation, the husband cannot be made liable for any contract entered into by the separated wife during the time of separation.
Difference between Judicial Separation and Divorce
Both Judicial Separation and Divorce have a very thin line of difference although many people think that both are the same. However, both these concepts have differences among them as well such as:
The first difference is that you can file a petition of judicial separation at any time before marriage, but the petition of divorce could be filed only after one year of completion of their marriage.
The process of judicial separation is much faster and not time-consuming as there is only one stage that is the stage of the passing of a decree for separation. However, in the case of Divorce, there are two stages before the court passes its order, i.e., the stage of reconciliation and after that stage, if the parties still want to get separated then the court passes the order of divorce.
Judicial Separation can also be said as a temporary suspension of marriage, both parties remain to be called as husband and wife, but under divorce, there is a complete end to the marriage, after divorce, they no longer be called as husband and wife.
After the passing of the decree of judicial separation although the couple is separated, they can not remarry, but in divorce, after the decree of divorce is passed both the parties cease to be husband and wife and therefore, are separated and can opt to get married again.
In order to get a decree of judicial separation passed, it is sufficient that the husband committed adultery, whereas in order to get a decree of divorce to be passed it is essential that one of the parties was living in an adulterous relationship.
When a couple is judicially separated it is possible that they might get together again as it is only a temporary separation of their marriage. However, in divorce once the order of divorce is passed there is no looking back and there is no chance of reconciliation.
Restitution of Conjugal rights
In restitution of conjugal rights, the partner of the aggrieved party withdraws himself from the aggrieved party without any valid reason or giving any explanation for taking such a decision. In such situations, the aggrieved party can move to the Family Court to claim for restitution of conjugal rights. It doesn’t mean that the Court can force the other party to get back with the party that moved such petition. It is a paper decree meaning thereby, that the decree will be enforced by attaching the properties of the judgment debtor. But if this decree is not honoured within one year then it becomes a ground of divorce.
Legal rights of women after divorce
In India most women are dependent on their husbands for survival after their marriage, especially in the rural areas. Therefore, the big question arises that what all rights do woman has, after she has been separated from her husband or when she has obtained a divorce. This question becomes even bigger when apart from sustaining herself, a mother has to sustain her child as well, therefore, it is necessary to discuss some of the rights that women are provided with.
There are mainly three kinds of rights that women can claim after divorce namely:
Maintenance rights of women.
Child custody rights of women.
Right to the property of the husband after divorce.
Maintenance Rights of Women
Maintenance means the amount of money that a husband is supposed to give it to his wife after divorce. The main objective of giving maintenance is to provide financial security. The law presumes that after divorce it is very difficult for the wife to accumulate finances immediately after divorce and therefore, for immediate relief of the wife, the husband has to provide financial help to his wife. But this maintenance help is only available to the legally entitled wife. According to the Code of Criminal Procedure, if both the husband and wife are living separately by mutual consent then the wife cannot claim the maintenance amount from her husband, but if the petition is filed for divorce and a decree has been passed for that effect, then, the husband is bound to pay the maintenance amount to the wife. What amount is to be paid is at the court’s discretion and the court after examining the financial condition of both the couples decide what amount of money is to be paid.
Is maintenance possible before divorce
When a divorce petition is filed the court looks whether the woman is working or not, if a woman is working, then she is not entitled to maintenance before divorce but she can live in the residence of the husband before divorce and does not have any right in the husband’s property during his lifetime.
Maintenance rights under Hindu law
Under Hindu law, women living separately can also claim maintenance. A married woman who is not seeking divorce but living separately from her husband can claim maintenance under Hindu Adoption and Marriage Act, 1956. Sometimes a wife due to personal reasons does not opts for divorce but can choose to not live without her husband. Under such circumstances, she suffers mental as well as physical injuries. In that situation, the Hindu law provides interim relief to the wife by giving her maintenance to fulfil her immediate needs.
Limitation of maintenance under Hindu law
However, under Hindu law, there is a certain limitation period which is imposed on the women seeking maintenance such as:
If the woman has an adulterous relationship with any other man during her entire marriage lifetime, then, she is not entitled to claim maintenance under the Hindu law.
If the wife has converted to another religion then, in that case, she ceases to be a Hindu and therefore, can not claim maintenance under this Act.
If the marriage between the couple did not take place according to the Hindu norms and tradition, then, there cannot be any claim for maintenance.
Right under the husband’s property
A married woman has an equal share in the husband’s property after his death. But, if there is divorce, then, the women would be entitled to at least half of the husband’s property as this would be treated as maintenance given to the wife for fulfilling her basic needs.
Maintenance rights under Parsi law
Under Parsi law it is important to understand how a woman can claim maintenance from her husband. She can claim it either by bringing a criminal or civil suit before the court. However, it is not necessary to look into the religion if the complaint is brought as a criminal complaint, but the religion of the party would be taken into consideration if the nature of the complaint is civil.
Refusal by the husband to give maintenance
Under the Parsi law, if the husband fails to provide o neglects to provide his wife with the maintenance fee, then, the married woman can approach the court for non-performance of the duty. If even after the order of the court the husband does not provide maintenance, then, he shall be liable for punishment for at least one year. Under the Parsi Marriage and Divorce Act,1936, a married woman has the right to claim both the pendent alimony as well as the permanent alimony.
Maintenance amount
The maintenance amount under Parsi law, that a married woman can claim should not exceed one-fifth of the husband’s income. While deciding the maintenance amount various other things are taken into consideration such as the total income of the husband, how much assets does he own and what is the current financial status of the husband. Apart from this, the actions of the parties involved are also taken into consideration. It is the duty of the husband to keep on providing financial help to the wife until she remains unchaste.
Right of the married women in the Ancestral property
According to the Indian Succession Act, 1925, after the death of the husband, the wife would be entitled to at least one-third of ancestral property. If there are no descendants, then the wife would be entitled to at least half of the property of the husband.
Maintenance Rights under Christians
Under Christian law as well maintenance can be claimed under both the criminal and civil courts. Similar to the Parsi law, if a complaint is brought under criminal courts then the religion of the courts would not be taken into consideration. But if the maintenance claim is brought to the civil courts, then, the religion of the petitioner would be taken into consideration.
The situation of women after divorce
A married Christian cannot claim back the amount of alimony from her husband after the divorce if she has not applied for maintenance in the court. This provision is mentioned in Section 37 of the Indian Divorce Act,1869.
What happens when the husband refuses to give maintenance
In case the husband refuses to give maintenance to his wife or neglects her, the wife can approach the court of law and in that case, the court after being satisfied with the wife’s argument may order the husband to pay the amount of maintenance to the wife as soon as possible.
The total amount of maintenance should not be more than one-fifth of the husband’s average income. In case the husband is facing some financial crisis, he can delay the payment, say, once every two months, but this is only allowed when the court approves it. The court can also ask the husband to pay the maintenance amount to the trustee of the wife on her behalf.
Right to ancestral property
Under the Indian Succession Act,1925, the wife after the death of the husband is entitled to one-third of ancestral property and in case, there is no descendant the wife would be entitled to at least half of the property of the husband.
Maintenance rights under Muslim law
Muslim Women(Protection of Rights and Divorce) Act,1986 protects the women and contains the provisions regarding the divorce of Muslim couples. The act makes it mandatory for the Muslim husband to provide alimony to his wife after the divorce.
How does the Act protect the rights of the women after divorce
After the famous Shah Bano case, the courts have made it mandatory for the husbands to provide the maintenance amount to the wife, even after the expiration of iddat period. If after the death of the husband if the wife observes the iddat period in which she does not marry another man, she is entitled to claim maintenance amount from the relatives of the husband. If the relatives are not able to provide the maintenance amount then the court can order the state wakf board to pay the amount to the wife. The Muslim Women(Protection of Rights and Divorce) Act,1986 is retrospective in nature.
Property rights of the women in Islam
After the famous Shah Banu case, the Supreme Court ruled that it is the responsibility of the husband to give maintenance to his wife even after the period of iddat. As far as the rights of the women are concerned in terms of the property, the Muslim woman has equal access to the property of the husband before the divorce. After the Divorce the woman is entitled to have some degree of control and right over the property of the husband.
Legal Rights of Man After Divorce
In India, generally males are blamed for divorce and all the burden falls on the husbands to maintain their wives after the divorce. However, Indian law also grants protection to the males even after the divorce. There are various provisions that deal with the protection of the rights of the males during and after the divorce. Some of the regulations protecting the interest of the husbands after and during divorce are mentioned below.
There is a presumption that only wives can approach the courts for seeking divorce, however, men also have the right to approach the court of law for seeking divorce under the following grounds :
Cruelty- under this provision if the wife shows very disrespectful behaviour and insults the husband on the habitual basis or does character assassination of the husband or shows cruelty towards their husbands, then, in that case, the husbands can seek a divorce.
Desertion- if the wife leaves the husband without any reasonable cause for at least 2 years, then, in that case, the husband can obtain a divorce from his wife.
Adultery- adultery is generally associated with the male but not many people know that adultery can also be used as a reason for seeking a divorce from wife. So, if any woman already legally married commits adultery, then, the husband has a right to enforce a divorce proceeding against him.
Conversion- It is expected of the spouses that they would convert into any religion after marriage. If one of the parties convert his or her religion, even the wife, then, the husband can use it as a ground to seek divorce.
Renunciation of the world- there might occur a situation when the wife may not be heard of being alive for seven years, then, the law presumes that the wife is dead and therefore, the husband can approach the court to seek divorce.
Mental disorder- if the wife is suffering from any kind of disease or mental malfunctioning which is incurable or if she can not perform the normal duties that a wife is supposed to perform, then in that case, husband can approach the court of law for dissolving the marriage.
If the wife is suffering from any kind of venereal disease or any kind of communicable disease like HIV or AIDS which is again incurable then, in that case, the husband can seek divorce.
False allegations- if the wife has made false allegations against the husband regarding his character or which defames him then in that case the husband can also file a petition to seek divorce.
Refusal to grant maintenance
Apart from the above-mentioned rules, a husband can also refuse to grant maintenance to his wife on the following mentioned grounds:
The first ground under which a husband can refuse to grant maintenance is when his wife has deserted him.
The second ground under which a husband can refuse to grant maintenance is when the wife herself has committed adultery.
If the wife gets married after the divorce, then, the former husband is not bound to pay the maintenance money to her wife.
In the case of interim maintenance, the husband can refuse to pay the money to his wife if the wife is well off to maintain herself and is in a good financial condition. Alimony money is only payable when the wife is financially weak and not able to sustain even her basic needs.
Another right that is reserved with the husbands is that if the wife claims compensation under the pretext that her husband indulges in domestic violence and she is not able to prove it, then, the husband is not entitled to pay the money.
Right of the Husband to have the child’s custody
The biggest right that a husband has is that of the equal right in order to claim the custody of the child. It is a myth that when courts take up the cases regarding the custody of the child they are biased towards the mothers, which is not actually true. Yes, during the initial years of the child the importance of mother was more than the father but that does not mean that fathers are totally excluded from not taking the custody of their children. After the initial years of the child, when he or she is not dependent on the mother for the necessities, the father can file a fresh petition in the court seeking the custody of the child, then, in that situation the court will examine the financial condition of both the parents, and will also look as with whom the child would be more comfortable living with. In other words, the court will have to decide by looking into the fact as to who will provide better welfare to the child, and if the father is able to prove, then, he will get the custody of the child.
Advice to men seeking Divorce
Going through a divorce in India is not an easy task, the process of divorce is not only long but it has an everlasting impact on the mental conditions of the couple, including men. The society we live in generally does not appreciate divorce and if it is not done mutually it has an even worse impact. In India, there is a myth that men are primarily responsible for the divorce and therefore, it becomes all the more important for the males to go through a poised and not very disturbing divorce, some of the advice that can help them to manage their divorce suits mentioned below:
Consulting a good lawyer- as it is said to be a good lawyer makes you win even a bad case, so instead of saving your money and appointing a bad lawyer it is always advisable to consult and look for the good and genuine lawyers who would want to help you make you win your case.
Disown all the joint account as during a divorce it is possible that wives might take away a good amount of money as they are still legally married to their husbands. All this money could be channelised in the right direction.
It is always advised that everything should be divided among the couples after they have agreed mutually, in India most of the divorce cases take a long time because there is no settlement or communication as to how much property should be divided and who will get what.
Avoid indulging in any relationship during the period of divorce, it is very essential to maintain a good image in front of the court so that the husbands can escape a harsh punishment which the court might impose as the allegations made in divorce cases are very heinous and can dent the image of the person very badly.
Generally, men find it difficult to control their emotions and they use such words that the tide is completely tilted in favour of the opposite party, therefore, it must be dealt with utmost importance that no abusive language is used.
The last advice which men can take while they are going through this phase of their lives is that they should always maintain a record of communication with anyone that is the wife or their relatives, as during the case all these communications might be helpful. The communication need not be only orally, it could be through letters, emails, through phones etc.
Changes introduced by Hindu Marriage (Amendment) Act, 1976 in the Hindu Marriage Act,1955
The changes introduced by the Hindu Marriage (Amendment) Act, 1976:
All the grounds on which ‘judicial separation’ was available were made available to a Hindu to obtain a decree of divorce on the ground of desertion and cruelty. The meaning of ‘desertion’ was widened that it would include ‘willful neglect’ in its definition. Therefore, in a case where a wife is being neglected by her husband she could seek divorce on the ground of desertion.
Initially, a single act of adultery or infidelity could not be used as the sole ground of divorce. The petitioner had to prove that he or she was living in adultery’ to obtain a divorce from the spouse. But after the enactment of the amendment, a single act of adultery was sufficient to get a decree of divorce.
A new clause was introduced through which a wife could successfully obtain a decree or order of maintenance under any law, under the altered Act.
The provision of ‘divorce by mutual consent’ was also introduced through this Amendment. According to this, the parties had to wait for six months after filing the petition to obtain a decree of divorce.
Grounds for nullity of marriage was also introduced, like, recurring attacks of insanity, mental disorders, unfitness for marriage or ability to procreate children, etc.
In fact, even a situation where there was a misrepresentation of fact on behalf of either side of the party could be used as a ground for nullity of marriage. Through this Amendment broadened the scope of ‘insanity’.
In the case of marriage of a minor girl, she was given an option to repudiate the marriage before attaining the age of eighteen years.
It provided power to the courts of the area where the petitioner lives to deal with matrimonial petition cases where the respondent has not been heard of for the past seven years or is living in some foreign country.
To provide speedy trial of cases a new provision was added that provided for resolving of petitions within six months of filing petition or three months in case of appeals.
Section 15 of the Act of 1955 provided that a divorcee had to wait for one year before remarrying. This provision was removed.
The interim period between Judicial Separation and divorce was decreased to a period of one year (which was originally two years) and appeals from interim orders were abolished.
Under the Act of 1955, the couples had to wait for about three before they could file a petition for divorce before the Family Court. The period was reduced to one year, so now, the couples had to wait for one year before filing a petition. This change saved them from marital agony.
A new provision was added, Section 9 which provides an opportunity to the respondent to give ‘reasonable excuse’ for his ‘withdrawal from society’.
Provisions determining the legitimacy of children born out a voidable marriage were introduced. Also, in case any child is born out of a valid marriage he would be considered as a legitimate child irrespective of the fact that the marriage, after filing the petition, has been declared null and void, or a decree of nullity has been granted against the marriage. This was provided under Section 16 of the Act.
It was also directed that from now onwards, every matrimonial proceeding was to be conducted in camera.
The scope of Section 19 was also widened. It stated that a matrimonial petition could be presented a District Court within the limits of whose original jurisdiction:
Where the marriage was solemnized.
Where the respondent lived at the time of filing of the petition.
Where the couple last resided together.
Where the petitioner resides at the time of filing the petition.
New Sections were added to Section 21 of the Act. Those were, Section 21A, 21B and 21C. These Sections provided for speedy trial cases as mentioned above and also, regulated transfer and disposal of the petition when presented in difficult courts.
The Court was given the liberty to refer matters of reconciliation to a third-party provided that it was done in just and proper cases. The court, in such cases, either on the basis of the parties statements or its grant adjournment for a reasonable period could not go beyond a period of 15 days.
In cases where the respondent could prove the fault of the petitioner regarding adultery, cruelty or desertion he or she has a right to make counterclaims for a decree of divorce or judicial separation under Section 23 of the Act, which was added through the Amendment of 1976.
Marriage Laws Amendment Bill, 2010
The Marriage Laws Amendment was a bill introduced to amend two main laws in case of marriage, i.e., Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. It was first introduced in Rajya Sabha in 2010. Later on, it was by the upper house in the year 2013. But Lok Sabha did not pass the resolution. The main purpose of this Bill of 2010 was to make it ‘women-friendly’. Some of the changes that were introduced in the Bill are as follows:
It introduced a new ground of divorce, i.e., irretrievable breakdown.
It includes a provision of providing sufficient compensation to the wife and children from the husband’s immovable property.
A Section 13(f) was also added which empowers the courts to provide compensation amount to the wife and the children from the husband’s inherited and inheritable property once the marriage comes to an end (legally).
However, the new ministry has decided to introduce it once again. A draft on the basis of the Marriage Laws Amendment Bill, 2010 has been prepared after some inter-ministerial consultation.
Chapter II – it omitted Section 10(1)(iv) of Divorce Act, 1869 which talks about leprosy as a ground of divorce.
Chapter III – clause (iv) of Section 2 of the Dissolution of Muslim Act, 1939, the words ‘leprosy are’ was omitted.
Chapter IV – Under Section 27(1)(g) of the Special Marriage Act, 1954 was omitted which states ‘leprosy’ as a ground of divorce.
Chapter V – it omitted ‘leprosy’ as a ground of divorce under Section 13(1)(iv) of the Hindu Marriage Act, 1955.
Chapter v – clause (c) of sub-clause (2) of Section 18 which states that a wife is entitled to get maintenance from her husband for her lifetime in case her husband is suffering from a virulent form of leprosy under Hindu Adoptions and Maintenance Act, 1956 was omitted.
The Supreme Court, in this case, explained what does ‘living separately’ exactly means. The Court held that the expression ‘living separately’ means not living like a husband and wife. It has no relation to the place of living. If the couple is living under the same roof but doesn’t carry out their matrimonial duties, then, it is considered as if they are living separately.
In this case, the Court observed that once spouse gives consent to abide by the undertaking in the First motion for dissolution of marriage under Section 13B (1), then, later on, he or she cannot resile from such an undertaking based on some agreement between the parties. If the spouse decides to resile, then, it would amount to a breach of such undertaking, thus, attracting contempt proceedings.
In this case, the Court held that the while deciding matters the courts must satisfy itself that the consent given by the parties must be voluntary one. If the party to the matter is absent in the proceeding (after a period of six months in divorce by mutual consent) then, presuming the consent on behalf of the party is not the correct method just because both the parties were signatories to the first motion under the Section 13 B of the Act.
Extra-marital affairs (Adultery)
Adultery as a matrimonial offence under Hindu Law
Section 13(1)(i) in Hindu Marriage Act, 1955 states that if any party to the marriage after the solemnization of marriage has voluntary sexual intercourse with any person other than the aggrieved party, then, a petition for divorce can be filed before the Family Court on the ground of adultery. Before the commencement of Marriage Laws (Amendment) Act, 1976 single act of adultery on the part of one party was the valid ground for judicial separation not divorce, for divorce the other party had to be ‘living in adultery’. But now, a single act of adultery has a ground of divorce.
“If an unrelated person is found along with a young wife, after midnight in her bedroom in actual physical juxtaposition, unless there is some explanation forthcoming for that, which is compatible with an innocent interpretation, the interference, that a court of law can draw is that the two must be committing an act of adultery together.”
Therefore, it can be said that in the case of Adultery it is necessary to prove that there was some sexual activity involved. Anything which shows that it might have been something apart from sexual intercourse does not make it an act of adultery. The onus probandi (burden of proving) always lies on the petitioner.
Adultery as a matrimonial offence under the Muslim Law
As per Section 2(viii)(b) of the Muslim Marriages Act, if a Muslim man associates himself with a woman who does not have a good reputation, or leads an infamous life then it amounts to cruelty to the wife. It can be considered equal to adultery.
The concept of Lian under the Islamic law where it is used as a ground of dissolution of marriage by the wife against her husband, the Allahabad High Court in Zafar Hussain v. Ummat Ur Rahman, [14] held that this right is available to only those wives who are not guilty of adultery and not to those guilty of adultery. In another case of Abbas v. Rabia,[15] the Allahabad High Court held when a man frames a false case by accusing his wife of committing adultery, though it was he who committed the act will serve as a sufficient cause to seek divorce on the grounds of divorce.
In case a wife has the offence of adultery, then, the husband can divorce her by executing triple-talaq and he can do so without giving any explanation for his actions.
Adultery as a matrimonial offence under Christian law
According to Section 10(1)(i) of the Divorce Act, 1869, (amended in 2001) if any party to the marriage has committed adultery then the aggrieved party has the option of filing a petition for divorce on the grounds of adultery. However, initially, the husband could file for adultery against his wife but in case of wife she had to mention other grounds of divorce along with adultery, like desertion.
In Ammim E.J. And Etc. v. Union of India, [16] the Kerala High Court observed that the ground of adultery was discriminatory one on the basis of sex since it was more favourable to men than to women. Hence, it was violative of Article 15 of the Indian Constitution, therefore, the words ‘coupled with’ were struck down.
Adultery as a matrimonial offence under the Parsi law
Section 32(d) of the Parsi Marriage and Divorce Act, 1936 allows any married person to file for divorce against his or her spouse on the grounds of adultery. Though the Section provides a limitation of two years from the date when the petitioner comes to know of such adultery.
Adultery as a matrimonial offence in Jewish law
The High Court of Bombay in Mozelle Robin Soloman v. Lt. Col. R.J. Soloman, [17] held that the wife under Jewish law can file for divorce from her husband on the grounds of cruelty and adultery. Jewish law considers adultery as a criminal offence. In another case, it was held that when a Jew man marries another woman then, too, it will be considered as adultery.
The Code of Criminal Procedure, 1973 (CrPC)
Some of the provisions related to the Extra-marital affairs under CrPC, 1973 are as follows:
Section 125(4) – If the wife is herself guilty of adultery then she cannot claim maintenance from her husband.
Section 125(5) – If the judgment has already been given regarding the maintenance to the wife, and later on, it is found that she has committed adultery, then, the order to give maintenance will be cancelled.
Section 220(4)(b) – The person who has committed adultery with someone else’s wife by breaking into that married couple’s house, then, he will be charged separately under Section 454 and 497 of the Indian Penal Code.
Yes, Divorce is the most traumatic event in the life of every married couple, no one wants to go through this period, but when this period of life confronts no one can escape from it. Therefore, it becomes essential to know what are our rights and duties, when a divorce suit is filed, etc. The above article examines the various ways through which couples can seek divorce and the further matter like the maintenance or custody of the child and property sharing disputes that are to be handled. Women are the worst sufferers in such cases, as in India many women are dependent on their husbands for financial support. So, the article also analyses the regulations governing the rights of women after divorce. In India it is often thought that men do not suffer as they are the main culprits behind divorce but in many cases we can see that those men are also suffering from the pain of divorce, they have to go through the mental torture, financial burden and the most important is the humiliation from the society. Therefore, in the end, the article focuses on the rights that men can avail after divorce and the advice that they should consider before seeking divorce.
Arbitration is one of the forms of Alternate Dispute Resolution or commonly known as ADR. This comes under the head of non-litigation, the form of proceedings of a dispute conducted outside the court of law. ADR has many types, like:
Arbitration
Conciliation
Negotiation
Mediation
These forms of dispute resolution methods are generally used between two parties who are bound by any form of a contract. When any such dispute occurs, and the parties are bound to each other by any form of a contract, the first method through which the parties try to resolve is through ADR mechanism. In all of the above-mentioned types of ADR, arbitration is the most common form used in India.
Arbitration is typically used between private entities, although nowadays even government entities prefer it. The basis of arbitration is an arbitration agreement between the parties. There are two types of Arbitration,
Ad-hoc
Wherein the parties set their own rules of the procedure. This form is only effective when the parties act in co-operation with each other. This form is also a cost-effective method.
Institutional
Wherein the parties appoint an authority to set the rules, appoint an arbitrator, etc. Generally, this form is sought when the parties do not act in co-operation with each other. This form generally has high administration fees.
Arbitration Award
Once both the parties are done with their arguments, production of evidence, cross-examination etc., of their respective sides, the final part of the procedure is the pronouncement of the award. When it comes to arbitration, the final judgment is called an award rather than a judgment. The judgment would be in favour of one party. Decree-holder is the party in whose favour the award is pronounced, and the other party is known as the judgment-debtor. The judgment-debtor has an option to challenge the arbitral award in the court. In case the court rejects the challenge, the party can go further for an appeal.
Sec. 34 of The Arbitration and Conciliation Act covers the grounds of challenging the arbitral award. To challenge an arbitral award, one has to file an application for setting aside the arbitral award under Sec. 34 of the Act for domestic awards, and Sec. 48 of the Act for foreign awards. However, after a party files an application to set aside the award in the court, it may reject or accept the application. In case the court accepts the application, it cannot review the merits of the case and is also cannot recheck the evidence. The court generally only accepts the challenge in case the application falls under any of the grounds in Sec. 34 of the Act.
Sec. 35 and Sec. 36 describe the finality and execution of the arbitral award. Therefore, the award is binding on both the parties. In case any of the parties is not satisfied with the award, such party may challenge the award in accordance with Sec. 34 of the Act.
According to Sec. 34, in order to challenge the award, the challenging party has to file the application within 3 months from the date of the award. A further extension of 30 days may be allowed by the court if it is satisfied that there was a sufficient cause for the delay.
Grounds or Provisions related to setting aside of Arbitration Awards
Sec. 34 of the Act deals with the setting aside of the arbitral award. In order to set aside an arbitral award, one needs to file an application in the court. Such an application by the party may be accepted or rejected by the court. This provision of challenging is different than the process of appeal. Appealing is generally done when a court pronounces a judgment, which is encompassed in Sec. 37 of the Act in case of the arbitration procedure. When the arbitral tribunal gives an award, it is different from the judgment which a court generally gives. Hence, Sec. 34 differs from Sec. 37. The court generally accepts an application of challenge only if it falls under any of the grounds mentioned in Sec. 34, not otherwise. Therefore, filing a bogus application might not be entertained by the Court. The section clearly gives the grounds so as to reduce unwanted or bogus applications, and in turn to reduce the burden of the court.
Therefore, a party can file an application under Sec. 34(2), on the following grounds:
Incapacity of a party.
Agreement not valid.
No notice to the other party.
Subject matter beyond the scope of the arbitration agreement.
Composition of Tribunal not as per the agreement.
Subject matter not under the arbitration law.
Award in conflict with the public policy of India.
Before filing an application in the court to set aside the award, the party filing the application has to furnish a notice of such filing to the opposite party. Thereafter, on receipt of any such application under this section, the court may adjourn such proceedings in order for the arbitral tribunal to function. Such adjournment may be done on the request of a party or if the court deems fit. Any application under this section must be disposed off by the court within one year of the date of the notice, furnished to the opposite party.
(I) Incapacity of the parties
In case any of the parties is of unsound mind or is minor, then such persons are not bound to act in accordance with any agreement or contract. Therefore, the agreement itself becomes void and passing any award in such case can be set aside by the court. However, such persons have an option to apply for the appointment of a guardian, under Sec. 9(1). Hence, a party can file an application in the court in case the party was in any incapacity and yet the tribunal passed an award without considering this fact.
If the contract is invalid, then the arbitration agreement will also be held to be invalid. All the essential elements of a contract have to fulfil in order for it to become enforceable. An invalid contract renders an arbitration clause also as invalid[1].
(III) No notice to the other party
Sec. 24(2) of the Act provides for the provision to serve a prior notice to the other party regarding the commencement of the proceedings or of invocation of the arbitral clause of the agreement. Therefore, in case any party to the proceeding does not serve prior notice of such commencement of the proceedings, then the party affected may challenge the award in the court[2].
(IV) Subject matter beyond the scope of Arbitration Agreement
While formulating an agreement, the parties define as to what all can be covered in the subject matter and what are the disputes that are covered under the arbitration agreement. Therefore, only those subject matters can be referred to an arbitral tribunal to resolve the dispute, not any other. However, if the tribunal acts ultra vires to the agreement and goes beyond the scope to give the award, the party affected may file an application in the court, challenging such award[3].
(V) Composition of the Tribunal not as per the Agreement
In case the Arbitrator is not appointed as per the agreed terms of the agreement, or the venue decided before by the parties has not been followed or any other procedural aspect that was decided prior in the agreement by the parties has not been followed through, then such affected party to the agreement may challenge the award in the court to set aside the award. In case the arbitrator has acted beyond his powers in giving the arbitral award, then he/she may be made liable for misconduct[4].
(VI) Subject matter not under the Arbitration law
There are certain matters that are not arbitral in nature. These matters have been explicitly excluded from the Act and are barred from bringing under the purview of arbitration. Only those matters are arbitral that are of private nature. Therefore matters like matrimonial, criminal, insolvency or any other public matters are excluded from arbitration subject matter[5].
(VII) Award in conflict with the Public Policy of India
This ground has further three more explanations, which was added in the 2015 amendment.
Award through fraud or corruption.
In contravention to fundamental policy of India.
In conflict with morality or justice.
These explanations were further added to reduce the bogus filings in the court. Parties who could not file an application to set aside under any of the above grounds would file under this ground and the court would accept. To remove any such loophole, the legislation further defined “public policy”.
Further, the court also accepts those applications if it finds out that the award is vitiated by patent illegality, i.e., the award appears wrong on the face of it. This is only applicable for domestic awards and not to foreign awards.
Conclusion
The ADR mechanism saves time as well as saves a lot of money too. In India however, only Arbitration proceedings and Conciliation proceedings are codified. Other methods like Mediation and Negotiation have not yet been codified, although India has recently become a signatory to the Singapore Convention on Mediation, which means that India will soon have a binding law on mediation too. The President of India has also recently assented to the Arbitration Amendment Bill of 2019. This will bring major changes to the Act, making it more effective and reducing the bogus filing of cases in the court.
Furthermore, Sec. 34 of the Act emphasizes that there should be a minimal judicial intervention in the arbitral proceedings, which helps speedy disposal of cases in arbitration. The main motive of arbitration is the speedy disposal of cases. And filing an application or asking for judicial intervention at every stage of the arbitral proceeding diminishes that very objective. This was also stated in the case of M/S Emkay Global Financial Services Ltd. v. Girdhar Sondhi[6].
The above-mentioned grounds help to keep a check in the filing of applications for setting aside the awards. The court does not take into account any other reasons or grounds other than the ones mentioned in Sec. 34. These are some of the grounds that the court takes into consideration while accepting or rejecting an application to set aside an arbitral award.
While any interim measure is sought for or an application for challenging the arbitral award is filed, it is always best to keep in mind that no bogus or unnecessary filing is done so as to save the time of both the parties. The objective of the legislation is to help such private parties to get back to business without being affected by any form of contractual disputes which generally takes years in courts. Hence, these grounds serve the objective of arbitration in the best possible way.
References
State of U.P v. Allied Constructions [(2003) 7 SCC 396]
Dulal Podda v. Executive Engineer, Dona Canal Division [(2004) 1 SCC 73]
State of Rajasthan v. Nav Bharat Construction Co. [AIR 2005 SC 4430]
ONGC Ltd. v. Saw Pipe Ltd. [AIR 2003 SC 2629]
PNB Finance Ltd. v. Shital Prasad Jain
Civil Appeal No. 8367 of 2018
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
This article is written by Ayushma Sharma of Faculty of Law, Aligarh Muslim University in which she has discussed the Role of Insurance Regulatory and Development Authority of India (IRDA).
Introduction
IRDA Full Form
Insurance Regulatory and Development Authority of India, commonly known as, IRDA, is the supreme authority that authorizes the insurance business in India. It was established by the Insurance Regulatory and Development Authority of India Act, 1999 after the declaration made by the former President of India, Pranab Mukherjee, on Insurance Laws (Amendment) Ordinance of 2014.
Establishment of IRDA
The Insurance Regulatory and Development Authority of India was established on the recommendations made by the Malhotra Committee in its report. This committee was headed by Mr. R.N. Malhotra (retired Governor of the Reserve Bank of India). It was finally set up at New Delhi on April 2000, but later on, it was shifted to Hyderabad, Telangana in 2001. The main recommendation made by this committee was to allow the entrance of private sector companies and foreign promoters and independent regulatory authority for the Insurance sector in India.
Objectives of IRDA
Following are the objectives of the IRDA:
To carry forward the interests of the policyholders.
To uphold the development of the Insurance industry.
To ensure speedy resolution of claims.
To prevent frauds and malpractices.
To ensure fair conduct on the part of the financial market and transparency when dealing with insurance.
And together they are supposed to work as a team, work cooperatively and not individually.
These members are to be appointed by the Government of India from amongst the persons exhibiting qualities that would be useful to the Authority like, exceptional knowledge in the field of life insurance, financial markets, economics, law, accountancy, general insurance. They should have good experience in these fields, too. Though, the chairman and each of the five full-time members are expected to have knowledge and experience in life insurance, general insurance, or actuarial science respectively. The current chairman of the Authority is Subhash Chandra Khuntia. He was appointed in 2018.
It has the right to sue the other party on its name. It can also be sued in its name. Also, if any of the members dies or resigns, the Authority will continue to work.
Powers of IRDA / IRDA Functions
As per Section 14 of the Insurance Regulatory and Development of Authority Act, 1999 the Authority has to ensure the regulation, development and promotion of the insurance business and reinsurance business. Following are the other powers, duties and functions of the Authority:
To avail the applicant a certificate of registration, renewal, modification, withdrawal, suspension or cancellation of such registration.
To protect the interests of the policy holders in cases related to assigning and nomination of policy holders, understanding of insurance claims, insurable interests, surrendering of the value of the policy and other terms and conditions of the insurance contract.
To specify the necessary qualifications, code of conduct and practical training for intermediary or insurance intermediaries and agents.
Explaining the required code of conduct to the surveyors and loss assessors.
To ensure that the proficiency and efficiency of the conduct of the business of insurance.
To encourage and regulate the relationship between the professional organisations and the insurance and reinsurance businesses.
To levy charge to carry out the purpose of the Act.
To call for the information, undertaking an inspection of, conducting enquiries and investigations including the audit of insurers, intermediaries, insurance intermediaries and other organisations connected with the insurance business.
To control and regulate the rates, benefits, terms and conditions which are offered to the insurer in respect of general insurance business that is not controlled and regulated by the Tariff Advisory Committee under Section 64U of the Insurance Act of 1938 (4 of 1938).
To specify the manner in which the books are to be maintained and the way in which the statement of accounts shall be rendered by insurers and other insurance companies.
To maintain the investment funds by the insurance companies.
To regulate the maintenance of margin solvency.
Deciding the disputes between the insurers and the intermediaries of insurance intermediaries.
Administering the functioning of the Tariff Advisory Committee.
To set down the percentage premium income of the insurer of finance schemes for promoting and regulating the professional organisations.
To protect the interests of the policyholders in cases related to assigning and nomination of policyholders.
To set out the percentage of life insurance business and general insurance business to be taken forward by the insurer in the rural or social sector.
Exercising other powers as may be prescribed.
Chairman of IRDA
The Chairman of the Insurance Regulatory and Development of Authority of India is appointed by the collegium (consisting of three members) in consultation with the President of India. The present (as of August 2019) Chairman of the Insurance Regulatory and Development of Authority of India is Subhash Chandra Khuntia. He was appointed in 2018. The Government had short-listed eight candidates for the appointment.
As per the Insurance Regulatory and Development of Authority Act, 1999, the salary of a Chairman of the Insurance Regulatory and Development of Authority of India is Rs. 4.5 lakh per month. He holds office for a term of five years, according to Section 5 Insurance Regulatory and Development of Authority Act, 1999.
Role of IRDA
The role of IRDA includes:
To ensure interests and fair treatment to the insurance policy holders.
To ensure the development of the insurance industry or sector and to impart benefits to people and long-term funds to increase the growth of the economy.
To promote and apply high standards of integrity, fair dealing, the ability of all those companies that it administers.
To ensure clarity and accuracy while contracting with the insurance policyholders. The Authority has to ensure that true information has been rendered regarding products and services. Also, to make policyholders aware of the different plans and policies that are being implemented by the Insurance sector.
To provide speedy trials in case of disputes and to prevent fraud or any other misconduct.
To initiate new standards where they are needed or where there is lack of such standards.
To promote self-regulation in daily activities with the necessary regulations
IRDA Effect
Effects of Insurance Regulatory and Development Authority are as follows:
Effects over-regulation of Insurance Sector
IRDA has a huge impact on the Insurance sector of India. The Authority has to keep a close check on the Insurance sector to ensure that the interests of the policyholders remain intact. It regulates every activity of the insurance sector.
Effects over Policyholders Interests Protection
The main purpose of this Authority is to protect the interests of the policyholders and it has kept up with its purpose.
Effects over Awareness to Insurance
The IRDA, in order to ensure that the interests of the policyholders are protected, has to make sure that policyholders are aware of all the latest policies and plans of the Authority that would benefit them.
Effects over Insurance Market
There is a great transformation in the market due to the effects of the Insurance Regulatory and Development Authority be it with respect to marketing, insurance products, competitions and customer awareness.
Effects over Development of Insurance Product
In order to ensure the growth of the insurance market, IRDA has to introduce new methods that would help in increasing its efficiency. The development of Unit-Linked Insurance Plans is the result of privatization of the insurance sector, a step taken by the Insurance Regulatory and Development Authority of India.
Effects over Competition in the Insurance Sector
Initially, when there was no privatisation there was no competition. The different companies in the Insurance sector had to compete amongst themselves. But, after the advent of privatization of the Insurance sector the competition has increased, now it means international competition. It has increased the level of competition.
Effects over Government Responsibility
It is because of the Insurance Regulatory and Development Authority (IRDA) that the government is doing everything possible to ensure uniformity, accountability and responsibility in the Insurance sector.
Effects over Banks and Post Offices
Insurance has resulted in giving security against any kind of uncertainties or risks, so the Insurance sector has become a popular medium for savings and investments. Thus, the Insurance Regulatory and Development Authority has helped in diverting the flow of funds from banks and post offices to the insurance industry.
Effects over individual Life’s
Now, because of the awareness created by the Insurance Regulatory and Development Authority and the policies introduced by it has resulted in a great impact on the life of an individual.
Effects over Share Market
Since the Insurance Regulatory and Development Authority has introduced Unit-Linked Insurance plans (an insurance plan in which the policyholders get investment and insurance in a single plan) more and more people are trying out the plan. Therefore, with the help of insurance products can now be raised more easily for the companies and has attached many persons indirectly with the activities of the share market.
Effects over the Economy of India
Insurance Regulatory and Development Authority effects over the economic development of the country because money invested by the investors or the individuals in various types of insurance products has channelized the funds of a country for a non-economic activity to economic activity and has made available to the government of a country in order to implement the various developmental activities in the country.
IRDA Complaint
In case the insurer is not happy with the workings of the insurance, then he can seek redressal by following the steps mentioned below:
Step 1 – file your complaint in writing and attach the required documents
Step 2 – take a written acknowledgement of your complaint with the date
The insurance company is supposed to resolve the problem of the applicant within 15 days from the date of filing the complaint. In case, the applicant is not satisfied with the redressal, then, in that case, he can approach the Grievance Redressal Officer of its branch or any other office that he can deal with.
Send an email to complaint@irda.gov.in to approach the Grievance Redressal Cell of the Consumer Affairs Department of IRDA.
By using an Integrated Grievance Management System the applicant can register and track the complaint at www.igms.irda.gov.in.
The applicant can then send a letter or fax to the Insurance Regulatory and Development Authority with the complaint.
IRDA Guidelines
Click Above
IRDA Guideline and Rules for Health and Mediclaim Insurance
India has seen a high rise in the growth of the health insurance sector for the past few years. The reason behind this growth can be considered as an increase in the awareness amongst the people regarding the importance of health and insurance and also, rise in the disposable income of the people. The main purpose of the insurance of the health industry is not only to sell health insurance policies but also to effective and speedy remedy in case of any necessity. But some complaints have been made by the customers about denial by the insurance companies on perky grounds. Therefore, the Authority decided to introduce reforms that would help people in making successful claims and getting the appropriate remedies.
New Rules to standardize Health Insurance Sector by IRDA
The Insurance Regulatory and Development Authority of India aims at increasing the efficiency and protecting the interests of the policyholders. To avoid any kind of misunderstanding the Authority has decided to introduce guidelines. This also helped in standardizing the health insurance policies. The guidelines include some provisions that are necessary to be fulfilled by every health insurance policy and the policyholders.
The guidelines introduced by the IRDA aims to reduce fraudulent cases and provide contentment to the policyholders. Normally, the policyholders don’t trust the insurance policies, so the Authority tried to work on this aspect, too. It has tried to increase the level of trust between the policyholder and the insurer. Through this the policy seekers will be able to understand different clauses which in turn help them in investing in only those policies which will satisfy their requirements.
Below mentioned is the link that will provide you with all the guidelines of the issued by the Insurance Regulatory and Development Authority of India.
According to section 26 of the Insurance Regulatory and Development Authority of India Act, 1999, the Authority after consulting the Insurance Advisory Committee can introduce some new regulations under the Act which will help in achieving the objectives of the Act. The Authority make regulations in the following matters:
The time and place of the meetings and the manner in which they are to be held.
In the provisions mentioned in section 10(4) of the Act.
The conditions of service of officers and other employees.
The powers entrusted in the hands of the committees of the members under section 23(2).
In any other matter that requires new rules.
Insurance Regulatory and Development Authority of India (IRDA) Act, 1999
Section 5 – Tenure of office of chairperson and the other members.
The Chairperson and all the whole- time members shall remain in office for a term of five years from the date on which they first entered their office. Also, they will be eligible for re-appointment. The Chairperson can not remain in the office after they have attained the age of sixty-five years and the whole-time members shall not hold the office once they have the age of sixty-two years. The part-time members can hold their position for a term not more than five years from the date on which he entered his office.
Any member of the Authority can be removed from his office if:
He has been declared as insolvent.
He has lost his ability to work mentally or physically.
He has committed any offence which in Central Government’s opinion involves moral turpitude.
He has developed any financial interest which in turn will jeopardize his position in the office.
He has used his position in such a way that it is no longer in the interest of the public.
Though the removal of a member under the 4th and 5th point mentioned above cannot be done unless the accused person has been given an opportunity to explain his conduct.
Section 9 – Administrative powers of the Chairperson.
The Chairperson will have the powers related to general superintendence and direction in respect of all the administrative matters of the Authority.
Section 13 – Transfer of assets, liabilities, etc., of Interim Insurance Regulatory Authority
On the appointed day:
All the assets and the liabilities of the Insurance Regulatory Authority will be transferred to the Authority. The assets of the Interim Insurance Regulatory Authority will include assets like movable and immovable property, rights and powers, cash balances, deposits, interests that arises out of the property possessed by the Interim Insurance Regulatory Authority, and all the books and documents. The liabilities in such cases will include all kinds of debts and any kind of liability.
Irrespective of the fact mentioned in the above point, all the activities that involved the participation of the Interim Insurance Regulatory Authority and were related to the Insurance Authority will be deemed as having been constituted and engaged by the Authority.
All the amount of money that was due to the Interim Insurance Regulatory Authority exactly before such an appointed day will be presumed to be due to the Authority.
All those legal proceedings (either by or against the Interim Insurance Regulatory Authority) that were supposed to be constituted before that day will be continued or constituted by or against the Authority.
According to this provision, a fund will be constituted which will be known as ‘the Insurance Regulatory and Development Authority of India Fund’. This fund will be credited to:
All the government grants, fees that the Authority receives.
The amount received by the Authority from the sources agreed by the Government.
The percentage of the minimum premium income that the insurers receive.
The fund constituted will be used for meeting the salaries, allowances, and remuneration of all the members of the Authority and also, to meet the expenses incurred by the Authority to fulfil its daily functions.
The Authority will have to maintain accounts and annual statements in accordance with the guidelines prescribed by the Government.
The accounts and the annual statements of the Authority will be maintained by the Comptroller and Auditor General of India. If any expense is incurred by the Comptroller and Auditor General in maintaining such accounts then, the Authority will have to pay the Comptroller and Auditor General.
Any person appointed by the Comptroller and Auditor General of India concerning the maintenance of the accounts and annual statements of the Authority will have the same rights and privileges as that of the Comptroller and Auditor General. These rights include the right to demand the production of books of accounts, connected vouchers, and other relevant documents and papers.
The audit report prepared by the Comptroller and Auditor General of India and the other person appointed by him will be forwarded annually to the Central Government. The Government, in turn, will present it before each House of the Parliament.
Section 18 – Powers of the Central Government to issue Directions.
The Central Government can issue directions to the Insurance Regulatory Authority on matters related to questions of policy. Such directions will bind the Authority to act according to the Government’s directions. But, all this will happen only when the Authority will also be given the chance to present its views before the Government before the directions are issued.
Whether a question is one of the policies or not, will be decided by the Central Government.
Section 19 – Powers of Central Government to supersede the Authority.
In case of any fault on the part of the Authority, the Government has the right to intervene in the matter. If not satisfied by the functioning of the Authority the Government will appoint a person to act as the Controller of Insurance under section 2B of the Insurance Act, 1938 (Act 4 of 1938). But before appointing Controller of Insurance the government will have a reasonable amount of time to the Authority to make corrections in its functioning.
But first, the Government will issue a notification of superseding the Authority. Though the Government can only supersede for a period specified in the notification and this period shall not be more than six months.
If the Central Government realises that the Authority is not able to discharge its functions properly like it was supposed to perform.
If because of the functioning of the Authority the financial condition or the administration of the Authority has suffered.
If the circumstances are such that it becomes necessary for the Government to intervene to ensure public interest.
Section 20 – Furnishing of Returns, etc. to the Central government.
The Authority will have to furnish all those documents, returns, statements and other particulars that the Government demands from the Authority.
The Authority will provide the Government a report consisting of all the activities it performs, expenses incurred, assets formed, cash generated, promotion and development of the insurance business during the previous financial year. The accounts should be correct. This report is to be submitted within nine months after the close of every financial year.
The copies of the report submitted by the Authority to the Government will have to present before each House of the Parliament by the Government.
Section 22 – Protection of Action taken in Good Faith.
If any action is taken by the Authority or the Central Government in good faith under the provisions of the Act, then, no suit can be filed against them. But if any step is taken which is not in accordance with the provisions of the Act, and is against some person, then, the person has the right to file a suit against the Authority or the Central Government.
This provision entitles the Central government to make rules regarding the provisions of the Act. These provisions include salaries and allowances payable to the members of the Authority, the format of the annual statements accounts prepared by the Authority, powers that may be exercised by the Authority in accordance with Section 7(2) of the Act, etc.
Insurance is an important aspect of the economy which requires changes from time to time according to the needs of the people. An individual should be aware of the opportunities that are available to him in the form of health and life insurances. The Insurance Regulatory and Development Authority of India plays a significant role in ensuring that the interests of the policyholders remain secured. Though competition has increased with necessary changes, the objectives of the insurers and policyholders can be achieved.
The article is wriiten by Shruti Singh. The author has enumerated the provisions of imprisonment specified under the relevant sections of IPC, CrPC and Indian Constitution.
Imprisonment
Imprisonment is the word which means taking away the freedom of prisoners when they are punished by a court of law. They are locked up in prison and all the rights are taken away they are not given any rights which are under Article 21 or 32 of the Constitution of India. They have to stay in jail till the end of the imprisonment given by the court of law before that they are not allowed to be released from the jail.
Types of Imprisonment
Mandatory imprisonment- When any person commits a crime it becomes mandatory to give him/her punishment for that crime because if the person who commits crime are left with no punishment he will become dangerous to society it harms whole public. This is the reason criminals are not kept free after he commits any crime they have to face imprisonment.
Maximum sentences- The person who commits crime they got life imprisonment and the duration of life imprisonment is decided by a court of law. The minimum life imprisonment is 14 years but it can extend upto 30 years of life imprisonment.
Minimum life imprisonment- The minimum life imprisonment is for 14 years. It is decided by the Supreme Court of India.
False imprisonment- Many times people unlawfully caught by the police and get imprisonment because of false crime.
Life imprisonment means the whole life in prison. Prisoners has to end up their life in prison. They have no other options of release. According to the Supreme Court life imprisonment means jail term for the prisoner for entire life.
There will be no release before fourteen or twenty years of life imprisonment.
The prisoner has no such right as to release.
The period of life imprisonment cannot be reduced. It cannot be less than 14 years.
Under what cases life imprisonment can be granted under IPC?
The report is based on the punishment of imprisonment for life in the Indian Penal Code. Itdeals with the sentence of imprisonment for life which is rigorous or simple. The State Government has clarified the law on imprisonment for life in this report. This report is made by the Law Commision of India for the clarification of law. According to this report, the offences under Indian Penal Code have come into effect in the year 1956 on 1st of january. And the Code of Criminal Procedure came into Existence in the year 1955. After this report two old laws were replaced namely punishment of transportation for life.
Punishment: when any person commits a crime, they are punished by a court of law then put in the jail that deprives them of all their freedom and removes them from their society. Punishment may change the person into a good person and return their fundamental freedoms and also give them a chance to live in society freely with their family members. Sometimes it also provides them work so they again, don’t commit a crime. So punishment is important for the criminals.
Deterrence: deterrence is another type of punishment for the offenders so that they don’t repeat their crime again because punishment teaches values to the offender and give them an opportunity to change themselves and transform them into a law-abiding citizen.
Public protection: when any person commits big crime like murder or rape, they have to face life imprisonment as ordered by the judge. This is the only reason we can protect the public from these criminals.
Rehabilitation: rehabilitation means when a prisoner is ready to accept the crime he has committed and take some necessary steps to change themselves in that case the government chooses to give them an opportunity, in prison itself, to change.
No other choice: after committing crime prisoner have no choice of release they have to face imprisonment.
The details of the petitioner about the period of the sentence was given in paragraph 1 which petitioner has undergone till 31.05.2012
If we want to deal with the issue of the case in the right way and reach to the conclusion of the case.
Here are some of the questions to discuss through which we can deal with the case in the right manner.
Whether life imprisonment means entire natural life or 20 years of life imprisonment?
Whether a life convict can be released automatically after completion of twenty years without any orders from the state, including the jail authorities?
When I went through the provisions of the law, I reached the conclusion that life imprisonment means imprisonment for life and it does not automatically come to an end without any order from the competent authority.
Some more related cases with a similar matter came up for consideration before a division bench of this court.
The writ petition is filed under Article 32 of the Indian Constitution. The petitioner was found guilty of murder. And previously he has already got imprisonment for life for 21 years. In this petitioner claimed that life imprisonment should be equivalent to 20 years and further subject to remission admissible under law.
Life imprisonment in India
Under article 72 and 161 CrPC life imprisonment means the entire life in prison which is guaranteed under the Code of Criminal Procedure. The minimum duration of life imprisonment is of 14 years and also commuted the death sentence to the prisoner.
Judicial precedents on duration of Life imprisonment
This case is based on the power of remission act under article 72 and 161. Revisiting the law on remission – The Hindu. In this case the Constitutional Validity of Section 433-A of the Criminal Procedure court, 1973 was upheld. Petitioner has filed a case alleging the provisions of Article 14, 20(1), 72, and 161 of the Constitution of India.Landmark judgment
On the date of 25.5.1991 Rajiv Gandhi with his former Prime Minister of India faced a terrorist attack with a human bomb. There were more than 15 persons and 9 policemen including 43 persons get severely injured by this terrorist attack. When the investigation started, police officials found some footprints of the criminals. Criminals are caught after the testing of footprints and they are punished under Terrorist and Disruptive activities act, Indian Penal code, Explosive Substances Act, Arms Act, Passport Act, Foreigners Act and the Indian Wireless Telegraphy act. 26 persons has to face the criminal trial and others are commited suicide because of threat of trial. The court has 288 witness against those terrorists during the trial. All the terrorist has to face death sentence.
The boy named Atif Mustafa get kidnapped intentionally and the kidnappers murdered him and disposed of his body to protect themselves from the criminal trial. M.D Safique is already in the court trial. During the court trial court find about his second crime of kidnapping a boy with his three friends. Court find them and convicted them for the offense of kidnapping which is punishable under section 364a ,120b ipc.
Kehar Singh filed a petition against his conviction and death sentence because of the murder. But on the 14th of october his brother presented a petition to the president of India, Smt. Indira Gandhi for the grant to pardon the death sentence by proving his innocence.
The apex court held that, when we refer to the punishment provided for the offense under 376A or 376D while prescribing life imprisonment as the maximum punishment that can be imposed, it is specifically stipulated that such life imprisonment would mean for the remainder of that period.
The Hon’ble SC held that a sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life.
Double Life Imprisonment in India
Like everyone human being has one life, as prisoners has also one life to live so prisoners cannot serve consecutive sentences of life imprisonment. But according to Supreme court constitutional bench life sentence would be twice or thrice of the heinous crimes like rape murder, etc. The court said that multiple life imprisonment will be served consecutively. Chief Justice of India has interpreted the law that in multiple imprisonment prisoners would be anomalous and irrational.
In a first, rare double-death and double-life sentence for man who raped, murdered 2-year-old girl.
In Nagpur city the 21 year old man raped her 2 year niece and murdered her. The case was filed in the Bombay high court. The sentence was the first of its kind, given under Section 376A of the Indian Penal Code, under an amendment made in light of the gruesome Nirbhaya rape case in delhi( 2012 Delhi gang rape). The Nagpur bench confirmed the rare double-death and double-life sentence to the 21 year old man. In the Divison Bench, comprising Justice Bhushan Gavai and Justice Prasanna Varale confirmed the verdict of a Yavatmal sessions court sentencing Shatrughan Masaram to death for raping and murdering his two year child.
This is the thirty-nine report of the law commission on the subject of life imprisonment for life under the Indian penal code. Some time ago the Ministry of Home Affairs asked question to the Law Commission of India about the punishment of life imprisonment in India. This question was asked because the State governments wanted clarification on this subject matter and because IPC and CrPC were under revision.
What is in the Constitution?
In the Constitution of India it is now mentioned that the sentence of life imprisonment will be of 14 years. In any crime culprit will be punished according to their crime and it will be decided by the court that punishment will be given to which culprit. For the serious crime like murder and rape, culprit will get life imprisonment or death sentence in any manner. There will be no pardon of life imprisonment and death sentences.
This decision is taken in the year 2012 by the Supreme Court of India and life imprisonment is not limited it can extend upto 25 years. Culprits cannot claim regarding their release from the prison and neither their family or friends. Constitution of India mentioned rules and regulations regarding life imprisonment
Life imprisonment is 14, 20 or 25 years.
It can extend upto whole life.
Life imprisonment can go till the end of life.
After the life imprisonment culprit has to face all the circumstances in the jail.
They cannot claim about their release.
Life imprisonment cannot be pardon.
There are some reasons behind 14 years of life imprisonment.
Under section 432 and 433 of the CrPC it is mentioned about the 14 years of life imprisonment. This is a very serious misconception about 14 years of life imprisonment in India. Because life imprisonment is not limited to 14 years. It can extend as much as the action of the prisoner. Life imprisonment is dependent on the action of the prisoner. Life imprisonment can be reduced if the prisoner proves themselves in prison. Death sentence can also be pardoned in the case of prisoner’s action and reaction noticed in the prison. Otherwise there life becomes hell in prison if they don’t act nicely in the prison. The convict can be released, first they have to fulfill some of the conditions of the prisons.
List of offenses liable for Life Imprisonment
SL. No
Section
Offense
Punishment
1
121
Waging, abetting against the government of india.
Life imprisonment and death sentence.
2
132
Abetment is committed in other consequences.
Death and life sentence for 10 years or fine
3
194
False evidence shown in the court during the court proceedings.
Death sentence, life imprisonment and fine can be charged as decided by the court.
4
302
Murder is mentioned in this article.
Death sentence, life imprisonment.
5
6
7
303
364A
396
Dacoity in murder or more number of murders are caused.
Death sentence or life imprisonment or fine.
Indian Penal code has 34 sections which talks about the offences which are punishable with imprisonment of life or death sentence or fine. For this offence there is no maximum limit for the imprisonment.
Punishment has no uniformity. It get changed, according to the crime caused. It can extend for whole life. It could be of 7 years, 10 years, 14, 20, 25, 30 or for whole life till death. Here I mentioned some more offenses:
SL. No
Section
Offense
1
121-A
Planning of committing crime is also an offence.
2
122
Use of armed war illegally without the permission of Government of India is a punishable offence.
3
125
Using of war in asiatic war against Government of India
4
130
Prisoner try to Aiding or trying to rescue from the prison or try harbour any prisoner is an offence.
5
131
Trying to distract or seduce any soldier or airman from his duty is a punishable offence.
6
194
Showing false evidence in the court for the procure evidence of the capital offence.
7
222
If any person tries to omit any public servant who is under sentence or lawfully committed.
8
225
Try to obstruct or resist lawfully any other person is an offence.
9
232
If Indian coins are counterfeited is an offence. .
10
238
Importing or exporting counterfeits of Indian coin is an offence.
11
255
Government coins cannot be counterfeited.
12
311
Being a wrong thing of any crime is also considered as an offence.
13
313
Abortion or misscarriage is a serious offence.
14
314
If someone killed any woman for the misscarriage.
15
326
Cause damage by the weapons to any other person intentionally.
How many years is a Life Imprisonment
Years are not fixed for life imprisonment. It is for whole life also. Because of Life imprisonment prisoner can get death penalty if he or she has committed henious crimes like rape and murder. For this type of crime Supreme court said prisoners will get double-prisonment. There is no uniformity in the life imprisonment. Life imprisonment is for 14 years. It may also last for 25 years. It depends on the type of crime committed by the prisoner. Prisoner has no right of the release. This is a very big misconception in Indian law that Life imprisonment can only of 14 years it can extend by noticing the action of the prisoner in the prison. It can be reduced if prisoner proves themselves guilty of not doing the crime. Its minimum limit is 14 years.
This case is based on the years of life imprisonment. Prisons Act, 1894, Prisons Rule, 1958, Rajasthan Prisons Rule, 1958 and Rajasthan Prisoners Release on Parole Rules, 1958 has some different statutes and rules different from the provisions of CrPC, IPC and Constitution of India. There are different sections of IPC like section 53, section 57, section 511 in which different types of life imprisonment are defined. And in the section 432 and 433, CrPC suspension and remission is defined. The government imposes power of remission in certain cases. Power of remission is mentioned in the section 433 and 432 in the CrPC.
The editor of the Statesman newspaper copyright the words of the leading article of Earl of Lytton. Because of this plaintiff Subhash chandra Bose sues the defendant on this issue.
But in the month of october Local government of Bengal has got the power from the Governor-General to arrest the person who believed to be guilty of the crime and arrest them and lodged in the jail.
What can be the reason for the release of prisoners?
There are many reasons when prisoners can get release:
When any person wrongly caught for any crime then he can get release.
If any person change themselves and prove themselves in front of police that they will not commit any other crimes then he can get release.
If any women in the period of life imprisonment get pregnant or she has any other reproductive problem then she can be released.
Before 14 years no prisoners get released.
Comparison with other countries
jurisdiction
Life imprisonment
Minimum duration
Maximum duration
Indefinite sentence
Mandatory sentence
Other crimes
Under age crminals
pardon
Death penalty
Australia
yes
Terrorism-22 years life imprisonment. For
Murderof a police officer-25 years of life imprisonment.
none
yes
yes
By governor
No
Austria
yes
15 years
none
yes
Genocide
Murder, drug dealing, nazi activism, etc
Under 16 years of age- 10 years
16-17-15 years
18-20- 20 years
By president
No
Belgium
yes
15 years
none
No
None
Murder
Under 12- no punishment
12-15- detained till the age of 20
16-17- 30 years
Parole by conditional release, commission or pardon by king
No
Brazil
no
Depends on the sentence
12 and 30 years
No
None
No life imprisonment sentence
No
No
Only in times of war
Impact of Life Imprisonment
Effects of prison:
Prisoners has a very bad effect of the prison in their life. Prison’s main aim is to cure the criminals and make them a good person so they can live in the particular society with normal people with full freedom. Prisons have their own culture, rules and regulations. Prisoners has to follow the rules and regulations of the prisons and they have no choice in their life. They always have a fear of deterioration.
They lack personal choices and they have to work according to the prisons rules. They have to dedicate their lives to the prison. But some people in the prison get completely changed or unscathed by the prison experience. As we see prisons are very painful, and incarcerated persons suffer very long-term imprisonment and because of that are affected with a lot of pain, deprivation, etc.
Effect of prison in children
Thousands of children are, every day, locked up in the prison due to different reasons. They are locked up with adults. In some of the prisons youth get the quality education in the prison to make him a good person and can be relieved from the prison after a short period of time. This type of prisons are also called as schools.
Health facilities are also provided to the children in the prison. They are cared for in the prison in every manner possible. Many youths are facing solitary confinement for only 22 to 24 hours. This punishment is very harsh on children because they have to face physical injuries, emotional trauma and many more things.
The death penalty for young offender is banned by the Supreme Court of India. Because below the age of 18 youth are immature, irresponsible. This is very important for young prisoners to be treated nicely and help them to improve themselves with feelings of happiness and joy. If they are not treated well, they can face severe mental trauma. It can also affect their life very badly.
This case is related to Protection of Children Act and THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN. In this case there were two boys named Raju and Ashish who are bullies and goondas of the area. They ever-tested and molested the daughter of defendant. Then the brother of the girl came at the scene and tried to protect her but Raju and Ashish pushed both of them into the pool.
Effect of prisons in women
According to the Criminal Justice System women are supported in the prison. They are treated well in prison. Female prison population in India is 53%. They are increasing day by day. The reason for the increase in women’s population in prison is, they get involved in drug trade. The women who belongs from lower community they generally get involved in drug trade because of shortage of money, shortage of food etc.. They don’t have houses to live so they have to get involved in this trade forcefully because of their families. This trade destroy the life of a woman because of this their children get harmed.
Difference between Women and Men Prisoners
Woman in prison
Men in prison
Women’s prison- 84%
Men’s prison- 76%
2. Offences- theft, involved in drug trade.
Offences- robbery, sexual offences, fraud, drugs, and motoring offences
3. 80% theft because of shoplifting.
Because of many reasons.
4. 28% woman’s crimes were financially motivated.
20% of men.
5. Sentenced woman- 22%
Sentenced men- 12%
6. TV licence evasion accounted-36%
Men- 6%
Psychological effects
The prison was originally designed to allow prisoners to rediscover themselves like conscience and better voice through conversion. Unfortunately, it was later discovered that it is a form of torture because it ended up causing many prisoners adverse psychological effects such as:
Delusion
Dissatisfaction with life
Claustrophobia
Depression
Feeling of panic
And on many instances madness
Stress
Denial
Nightmares and the inability to sleep
Phobias
Substance abuse
Criminal activity
And some forms of self-destructive behavior
Guilt
Shame
Suicidal tendencies
Other effects are
Depend on institutional structure and contingencies
Interpersonal distrust and suspicion
Emotional over-control, alienation, and psychological distancing
Social withdrawal and isolation.
Incorporation of exploitative norms of prison culture.
Diminished sense of self-worth and personal value.
Post-traumatic stress reactions are shown in the prisoner during the pain of prison.
Advantages and Disadvantages of Life Imprisonment
Advantages
If a person commits a crime like rape or murder, it gives a very serious impact on the life of victim or victim’s family because of this their lives get destroyed. So accused get life imprisonment or death sentence.
Capital punishment means if legallly someone is killing someone then as a punishment takeing the life of the person is not valid.
Life imprisonment gives a chance to the criminals to realize their mistakes so their life imprisonment or death sentence can be pardoned or remitted.
Prisons give chance to prisoner to study and explore themselves in good works they provide them employment so they can change the prisoner to release them from the prison.
Prisons for youth is very favorable. They try to help them with all the facilities and guidelines to improve them and support them so they can live in the particular society with normal people.
Prisons provide good food and health facilities and many more facilities to the prisoners to change themselves or to live a happy life.
Many prisoners get released of their change and they are allowed to live in the particular society and with a job, so they can earn something for their own lives and change their life and their family’s life.
Disadvantages
Life imprisonment cannot be given to prisoner for capital punishment as they are not only responsible for the crime. This is the biggest mistake it can make the prisoners’ life hell.
Capital punishment is the way in which we can pass some messages to the normal individual.
Capital punishment help to remove dangerous criminals from society making it a safer place for the people.
Life imprisonment can help people from the discrimination which they are facing in the society due to their crime, which should be corrected by giving capital punishment to murderers.
Life Imprisonment vs Death Penalty
Life imprisonment
Death penalty
Life imprisonment is not so harsh because it also help prisoners to change themselves, it is not so cruel like death sentence.
Death penalty is defined as the death sentence which is given to the prisoner for their crime.
2. Life imprisonment gives chance to prisoners to change themselves by providing them with schools and colleges in the school to explore themselves and they are also provided with health facilities, etc. and also help them to keep in touch with their families.
Death penalty is very cruel and harsh to prisoners it doesnt give any chance to proove themselves if they are given death sentence by the court.
3. It gives chance to prisoners so they can realise their mistake and get to know what bad things are done. They get a chance to correct their mistake during life imprisonment.
In death penalty the prisoner only get death sentence. In case if their family members or friends get a chance to prove them right then death sentence can be pardon.
Remission of Sentence in India
Power of remission is defined in the section 432 and 433 of Criminal Code of Procedure. Life imprisonment is subjected to Statutory Powers of Remission. If punishment is given with the executive process then remission can be premature release in a sentence of life imprisonment. Because of the Power of Remission Act punishment which is decided by the judiciary has the very serious. It can disturb the constitutional balance as well as separation of powers.
Power of remission is important when we have to review the premature release. Under section 302 of Indian Penal Code prisoners can file a writ petition against Jail Authorities. If Jail Authorities for placing their case in front of State Advisory Boards for shortening their life imprisonment.
Life imprisonment without the possibility of release.
Supreme court gives the decision of death penalty or life imprisonment without the possibility of release. Prisoners has to face lime imprisonment for life. They have no chance of release. They have to spend their whole life in the prison.
Pardoning Power of the President
President of India is the head of the state. And the powers of the president is always termed as an extraordinary power which includes grant of pardon. The constitution of India also grants the power of pardon to the President of India. The power of pardon is mentioned in Article 72 of the Indian Constitution.
Rules of pardon the death sentence:
If punishment is given by the court martial the president has the power to pardon or commute the sentence of any person.
The offences which is committed which is related to law or it belongs to the executive power of the union.
President can pardon death sentence.
Pardoning Power of the Governor
Meaning of discretionary power
Discretionary means “freedom to act according to one’s judgment”. Governor has the power of discretion means he has the power or right to take decisions freely. He can exercise his power in his own individual judgement without the advice of the council of ministers.
Discretionary power is divided into two parts:
Specific Discretionary Powers: in this Governor uses his specific powers to take the decisions of certain case. Certain responsibilities are provided to governor for the discretionary power. He is not bound to anyone. He doesn’t have to ask anyone for the decision. Powers can only be used in time of legal requirement.
Circumstantial Discretionary Power: many times the power of the Governor become circumstantial. Governor is not questionable in any manner if he doesn’t take decisions in the time of discretion. Governor decision is final in his discretion.
Prison conditions in India
In some major cities of the country that we visit, and probably we see some, unlucky faces who gets arrested and tortured, or worse, by the hands of the police. In many countries entirely there is lack of protections for civil liberties available in India. Though, some in linking in advance that we would find extensive police abuse of detainees. It is not yet discovered about the conditions of prisons and jails, to which detainees are sent after the police are done with them.
If incarceration is meant to punish, life inside the prisons will be worse. Though prisons are supposed to be leveling institutions in which the variables that affect the conditions of confinement are expected to be the criminal records of their inmates and their behavior in prison, other factors play a part in many countries. But India and Pakistan have retained colonial-era regulations that explicitly counter the concept of prison as a leveler.
The management of prisons falls exclusively under the domain of the State Government, as per the seventh schedule of the constitution. In every state, the prison administrative machinery works under the chief of prisons who is a senior ranking IPS officer. Indian prisons face three long-standing structural constraints, overcrowding, thanks to a high percentage of undertrials in the prison population, understaffing and underfunding. The inevitable outcome is subhuman living conditions, poor hygiene, and violent clashes between the inmates and jail authorities.
Overcrowded prisons, with an occupancy ratio of 14% more than the capacity in India.
More than two-thirds of the inmates are undertrials.
Chhattisgarh and Delhi are among the top two in the list of crime with an occupancy ratio is double than the capacity.
Overcrowded –
Meghalaya – 77.9%
Uttar Pradesh – 68.8%
Madhya Pradesh – 39.8%
In absolute numbers, UP had the highest number of undertrials (62,669), in comparison to Bihar (23,424) and Maharastra (21,667).
In Bihar, 82% of prisoners were undertrials, which is highest among the states.
Sixty-seven per cent of the people in Indian jails are undertrials falsely, they get falsely detained in prisons during trial, investigation or inquiry but not convicted of any crime in a court of law.
The share of the prison population in trial or sentencing in India is extremely high in comparison to international standards,
11% in the UK
20% in the USA
29% in FRANCE.
More than 25% of undertrials in 16 out of 36 states and union territories have been detained for more than one year in 2014.
Jammu and Kashmir – 54%
Goa – 50%
Gujrat – 42%
UP (18,214)
According to NCRB records:
2.82 lakh inmates are undertrials, in which 55% are Muslims, Dalits, and Tribals.
Muslims, Dalits and Tribals communities form a population of 39% with a share of 14.2%, 16.6% and 8.6% of the population respectively, according to the 2011 census.
The Muslims community share of convicts is 15.8%, slightly above in the population, but their share among undertrials is 20.9% which is far higher
The scheduled castes and scheduled tribes convicts have a population of 20.9% and 13.7% respectively, which is fairly higher.
The legal profession is very elitist. There is little doubt in it.
Legacy is a big thing in law from what I have seen. Recently someone I was talking to pointed out how most of the current sitting judges in the Supreme Court are mostly related to former judges, governors etc. It is also more common for lawyers with elite pedigree to become a public prosecutor, standing counsel, advocate general, attorney general or bag any such other plum government posting. It’s no different in private practice or law firms.
Why does that happen?
Those from elite background get easy access to law schools with very high fees and entry barrier. They can pay full fee and go abroad to get degrees from prestigious universities where others would require scholarship to get to. Their early career jobs and legal training are often superior than what most others would ever get thanks to their access and privilege. It is easier for them to get cases when they go independent thanks to a readily available, supportive, pre-existing referral network.
And they continue to get the support of that inherited network lifelong, as they keep growing, come across obstacles, unless they screw up in some major way.
Do all the elite kids do well in life?
All parents with riches and access, however, know that those things do not always guarantee success for their children. Despite all the resources, some children of such families show the penchant for ruining their careers and lives. You will see a lot of law graduates with influential and illustrious family backgrounds who have failed to make any mark at all and barely manages to survive in the profession.
Then there are the others from such families, who take what they get, and look forward to growing even bigger. Surely, their launchpad is much higher than the rest. They do have a huge advantage and a headstart over the rest.
So what happens to those who are not from such a background?
Where does this leave the rest of the people, who do not come from money or such influence? This is a question I had to grapple with early on in my life as a law student, as I suppose many of you also have.
The answer I have discovered is simple. The people in power and elite positions will like us to believe that their advantage over us is absolute, that there is no way we can overcome the gaping chasm between our world and theirs. If we believe that the purpose of elitism is fulfilled.
If I went to NLS Bangalore I may like to think that I am so superior that students from other law colleges will never make a better lawyer than me. Someone studying law at Harvard would want to believe that those who go to non-ivy league law colleges will never measure up to a Harvard law graduate in their lives.
However, the realities of life soon catch up. There is no such absolutely superiority or advantage that can assure anyone superior success for the rest of their lives.
It is not that students of NLUs always do better than students of other colleges. Or that alumni of Harvard always do better than those of non-ivy league law colleges.
I will tell you a story. I was travelling through the UK when I was in college. I was staying with a Scottish family, and over dinner they were asking me questions about my career. I was telling them how I presented a paper on space law and ballistic missiles at the International Aeronautical Congress at Glasgow. I also told them about my career plans, that involved starting up a technology company. I also shared how London law firms hire law graduates from my college routinely.
They were shocked. They were used to thinking of India as a poor, backward country. And there I was, an Indian, talking about things they do not imagine themselves doing. London law firms go across the world to hire Indian lawyers and bring them to London? Their worldview shifted.
The world order was that white people living in UK are the elite, and they will have more success, riches, access in the world. But that is elitism, and it does not remain true. The equilibrium of the world is such that we soon get past elitism, provided the non-elite keeps climbing.
It is not easy to sustain elitism where the non-elite wants to go up the ladder. This is the most critical thing to understand about elitism.
How to be immune to elitism
Elitism is just a belief system. When faced with evidence that non-elite people bring more to the table, the belief system soon falls apart.
China was a poor country too, but today Europe is overrun by the Chinese, and many old school, iconic businesses are being bought up by Chinese investors. Often the Chinese immigrants are replacing the native families in so called elite neighbourhoods because of their superior purchasing power. This is also very common in big cities in the USA. It is hard to say that they are non-elite these days.
So things can turn around. The elite makes a play to stay elite, and consolidate power and resources in their favour. However, those who are not elite have to come up the ladders, and they often gain a lot of momentum and strength along the way, because the process demands that.
The act of continuous self-development, improvement of your craft and connectedness with your communities, and the ability to tell your story gives you immunity against elitism.
Remember, just like there are elitist sentiments in the society, there are also anti-elitist sentiments too!
If you are striving to climb to the top, here are some things you could learn from the elite.
If you are not part of that club, you need to pay attention to what keeps the elite in their vantage position.
I deserve good things
The most important is the belief system that you deserve the best and that nothing can stop you from going to the top. The elite believes that good things and success belongs to them, by birthright. It is a tragedy if they cannot get it.
On the contrary, the rest is often taught not to think too big. I was told to keep my dreams small, to not strive for too much, because it’s risky! That programming can be extremely damaging.
If you do not think that you deserve the best in life, that you can even get there, you are least likely to strive for it. And therefore, you are also the least!likely to ever fulfill your true potential. If you can learn one thing from the elite, let this be a lesson. Your belief system that is operating deep inside our brain is often the most important factor when it comes to success. So you better develop a belief system that supports growth rather than prevent it!
We are in this together
The other striking feature of the elite that they stick together. They have allies, they have network, they have favours they can call upon. Most people are not comfortable when it comes to doing favours, asking for a favour, or returning a favour. That is not how the elite operate! This is the 2nd thing I want you to learn. Incessantly invest in a professional and personal network, hang out with people you are proud of, and create communities. That is how you can get the same power as the elite has!
We have not arrived, we just have a lead that we need to protect
The third thing I want you to learn is that no success is final. The elite knows it, and have to continuously work to stay at the top. It is said that money never rests. Neither do the elite, if they remain at the top. History is of course full of stories of the elite that took their place for granted and therefore soon became redundant.
Taking your position for granted is disastrous. When you begin to do the right things in life, such as developing powerful habits with respect to money, work, discipline, integrity, reputation and networking, you will start to see some amazing results. Many people at this point then reverse their habits. We have arrived, so we can now take it easy!
Look at the elite, and you will see some who rest and those who don’t. And see what happens to them. Fortune does not take a lot of time to turn the tables! Bad and unpredictable things happen even to the elite all the time! Only those who stay on their toes at all times and continuously up their game manage to survive!
What would it look like if you did that too?
Take pride in where you come from
The elite is proud just because they were born in a certain family, a certain kind of circumstances. The rest often think that because their circumstances were less fortunate, they need to hide where they came from!
Absolutely not. Your story and journey, even if you came from a difficult situation, shows your strength and qualities. You story is something that you must own and be proud of. Only that can give you the strength that you need to get to the top.
Your one big advantage – your struggle
If you are not elite, but taking on the elite to get to the top, remember that your biggest asset is your struggle. It is not the worst thing about being non-elite, it is the best thing. You will struggle, strive, grapple, deal with problems and obstacles that do not exist into the world of the elite people. And this will make you stronger, cannier, more pragmatic and a formidable challenger.
Your struggle does not make you weak, unless you give up. It makes you stronger and prepares you for the ultimate win.
So how are you planning to take on the elitism in the legal industry?
How are you preparing yourself to be counted among the best?
What are your strengths and weaknesses?
What factors will work in your favour, and what will work against you?
What are the abilities and skills you are developing that will make it very hard to write you off?
What will be the reason you will ultimately win?
I hope you spend some time thinking about these things.
All the best!
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