This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. In this article, he covers “Proceedings for maintenance of wives, children and parents” and tries to discuss all the Sections of the Code of Criminal Procedure, 1973 related to it.
Introduction
The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX of the Code of Criminal Procedure deals with provisions for maintenance of wives, children and parents. ‘Maintenance’ in general meaning is keeping something in good condition. ‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly to a former wife, husband or partner, especially when they have had children together. It is the duty of every person to maintain his wife, children and aged parents, who are not able to live on their own.
Scope and objective of Proceedings
Scope and objectives of proceedings for maintenance of wives, children and parents are the following:
The proceedings are not punishable in nature. The main objective of Chapter IX of Cr.PC is not to punish a person who is not maintaining those whom he is bound to maintain.
The main objective is to prevent homelessness by way of procedure to provide a speedy remedy to those who are in pain.
It does not make any distinction between persons belonging to different religions or castes.
It has no relation to the personal laws of parties.
Order for maintenance of wives, children and parents
Section 125 of Cr.PC deals with “Order of maintenance of wives, children and parents”. In this Section, it is given the name of parties who are entitled to get maintenance, essential ingredients to claim and get maintenance and order of the first-class magistrate.
In the case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court delivered a judgement favouring maintenance given to an aggrieved divorced Muslim woman.
Who can claim and get maintenance?
Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”. According to Section 125(1), the following persons can claim and get maintenance:
Wife from his husband,
Legitimate or illegitimate minor child from his father,
Legitimate or illegitimate minor child (physical or mental abnormality) from his father, and
Father or mother from his son or daughter.
Wife
In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it includes even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition of maintenance under Section 125 of the Cr.PC.
In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the Supreme Court held that marriage of women in accordance with Hindu rites with a man having a living spouse is completely nullity in the eye of law and she is not entitled to benefit under Section 125 of the Cr.PC.
Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of Cr.PC.
Daughter
If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get maintenance from her father and if she is married, then she is also entitled to get maintenance from his father but the magistrate has to be satisfied that her husband has not essential and sufficient means for the maintenance of his minor wife. In the case of Shahbuddin v State of UP, a minor daughter attaining majority during the pendency of the application for maintenance was held entitled to maintenance up to the date of majority.
Legitimate or illegitimate abnormal child who has attained majority
If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then the father of that child has to maintain him and he can claim maintenance on this ground of abnormality.
Father or mother
Natural father and mother can claim maintenance.
Mother includes adoptive mother, she can claim maintenance from adoptive son.
Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated by pleading that the father failed to fulfil his parental obligation.
A childless stepmother can claim maintenance.
In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay High Court has held that the father or mother can claim maintenance under Section 125(1)(d) if he or she is unable to maintain himself or herself. But it is also important that if parents claim maintenance to their children, children must have sufficient means to maintain their parents and yet neglects or refuses to maintain the father or mother.
Essential conditions for granting maintenance
There are some essential conditions which should be fulfilled for claiming and granting maintenance:
Sufficient means for maintenance are available.
Neglect or refusal to maintain after the demand for maintenance.
The person claiming maintenance must be unable to maintain himself/herself.
Quantum of maintenance depends on the standard of living.
Sufficient means to maintain the person
If any person has sufficient means for maintenance, then it is his duty to maintain his wives, children and parents. If sufficient means are not available, then it will be a perfect and valid defence for people who are legally bound for maintenance of wife, children and parents.
Neglect or refusal to maintain
Any person neglects or refuses to maintain his wives, children and parents in malafide intention or in any type of egoistic behaviour on the demand for maintenance by them.
The person who claims maintenance must be unable to maintain himself/herself
It is a very important condition for granting maintenance that a person who is claiming maintenance must be unable to maintain himself/herself. For example- If a wife is earning well, then she can not claim maintenance under this Section. In the case of Abdulmunaf v Salima, it was held that the wife who is hale and healthy and is sufficiently educated to earn for herself but refuses to earn from own and claim maintenance from her husband will be entitled to claim maintenance but that her refusal to earn under the circumstances would disentitle her to get complete amount of maintenance.
Special provision for maintenance of minor married girl
If the husband of a minor daughter does not have sufficient means to maintain her, then it is the duty of her father to give maintenance. In these circumstances, married minor daughter is entitled to get maintenance from the father. In the case of Alok Banerjee v Atoshi Banerjee, a person who is unable to maintain themselves.
Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of maintenance depends on the standard of living. For example- If any issues raised in a rich family, then demand for maintenance will be more as compared to poor family according to their standard of living in a prior life.
In simple words, the Court should also make sure that whether maintenance granted is justified according to the status of a family or not?
Jurisdiction of Magistrates to deal with maintenance proceedings
According to Section 125(1)(d), If any person neglects or refuses to maintain his wife, children or parents, then a Magistrate of the First Class can order such person to make a monthly allowance for the maintenance of his wife, children or parents, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the direction of magistrate.
If a minor female child is unmarried, then the magistrate can order to make such allowance, until she attains her majority. In case a minor child is married and the magistrate is satisfied that the husband of such minor female child is not possessed of sufficient means, then the magistrate can order father of the minor female child to make such an allowance for maintenance. When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate can order such person to make a monthly allowance for the interim maintenance of his wife, children or parents and the expenses of such proceeding which the Magistrate considers reasonable. An application for the monthly allowance for the interim maintenance and expenses of proceeding should be disposed within sixty days from the date of the notice of the application to such person.
According to Section 125(2), If a court order for such allowance for maintenance or interim maintenance and expenses of the proceeding, then it should be payable from the date of the order or if so ordered, then it shall be payable from the date of application for maintenance and expenses of proceedings. According to Section 125(3), If any person fails to comply with the order without sufficient cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the person again fails after the execution of the warrant, then the punishment of imprisonment for a term which may extend to one month or until payment of sooner made is awarded.
Click Above
Procedure for maintenance
Section 126 of Cr.PC deals with “Procedure for maintenance”. This Section says the following:
Proceeding under Section 125 may be taken in the following district:
Where he is, or
Where he or his wife resides, or
Where he last resided with his wife or mother of an illegitimate child.
Evidence to be taken in the presence of a person against whom maintenance is to be ordered.
If a person is wilfully avoiding summons, then ex-parte evidence is taken in that case.
Alteration in allowance
Alteration in allowance means an order to increase, decrease or remove/cancel the allowance which was ordered by the Magistrate under Section 125.
According to Section 127(1), if a magistrate ordered to give allowance for maintenance under Section 125 according to the conditions of parties at that time, but if the present conditions of parties have changed, then he can also order to alter the allowance. For example-
Husband had a well-settled job and means for maintenance, on this basis the Court has ordered him to maintain his wife and to allowance under Section 125. But in the present condition, the husband has no job and means for maintenance. Then, the Court can alter the allowance and can reduce the amount of allowance.
If a wife was not having any job or she was unable to maintain herself and she got the order of allowance under Section 125. But after some months, she is well settled and she has the means to maintain herself. In this case, the Court can order to remove or cancel allowance.
According to Section 127(2), Magistrate shall cancel or revoke any order given under Section 125 by him, if it appears that it should be cancelled in consequences of any decision of the competent Civil Court. For example- If Magistrate has ordered to give allowance to wife after divorce but Civil Court has ordered to live together. Then, Magistrate has to revoke his order which was given under Section 125.
According to Section 127(3), where an order has been made in favour of women under Section 125, then the magistrate can cancel the order in the following case:
If a woman is remarried after divorce.
If a woman has taken allowance under any personal laws after divorce.
If a woman has voluntary leave her right to maintenance.
According to Section 127(4), the Civil Court shall take into account the sum which has been paid to such person as monthly allowance for maintenance and interim maintenance under Section 125 at the time of making any decree for the recovery of any maintenance or dowry.
Enforcement of order of maintenance
Section 128 deals with “Enforcement of order of maintenance”. According to this Section, the following are the conditions for enforcement of the order of maintenance:
Copy of order under Section 125 is given to that person free of cost in whose favour it is made. In case the order is in favour of children, then the copy of the order will be given to the guardian of children.
If any Magistrate has made an order under Section 125, then any Magistrate of India can enforce this order where that person lives who have to give maintenance.
The Magistrate has to satisfy two conditions before enforcement of order:
Identity of parties, and
Proof of non-payment of allowances.
Conclusion
Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the divorced wife, children and aged parents. It is made to protect them from unusual livelihood. Maintenance is the duty of everyone who has sufficient means for the same. In this chapter of Cr.PC, there are various provisions given related to maintenance like who is entitled to maintenance, essential conditions for granting maintenance, Procedure of maintenance, Alteration of the previous order, Enforcement of order of maintenance etc.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is authored by Miran Ahmed who is a student of BBA.LLB(H) at Amity Law School, Kolkata; and deals with the distribution of assets under the Code of Civil Procedure.
Introduction
The Civil Procedure Code, 1908 is a procedural law related to the administration of civil proceedings in India. It lists the procedure for the distribution of assets by a Court for cases involving one party or more, on deciding which assets are available for rateable distribution and which are not; and the method of distribution of assets in such cases. The individuals holding a decree can participate in the assets of the judgement-debtor. In cases where multiple parties hold a decree, the judgement for co-plaintiffs is passed as a whole but the execution of decree can be done in a matter of attachment and sale. There is a special provision in the Civil Procedure Code that deals with the execution of decree when there are multiple parties involved.
Nature, scope and objective
The distribution of assets involves evaluation of the market value of assets, analysation of the share of individuals entitled to the assets, granting a decree to the individuals entitled to the assets by passing judgement and executing the decree to divide the assets among the entitled individuals.
For example, ‘X’ and ‘Y’ are co-plaintiffs and become decree-holders after the judgement is granted which entitles them to the assets. Let us say for the purpose of the execution of decree since ‘X’ is entitled to half of the assets in the suit related to property, whereas ‘Y’ is entitled to only a quarter. The execution of such property shall be done according to respective shares of individuals in a matter of the sale. And whatever the amount be received after selling off that property, for the purpose of execution of such decree, ‘X’ will get exactly half the amount whereas ‘Y’ will get exactly one fourth the amount. This process of distribution is called distribution of assets for civil suits and the provisions regarding the same are provided under Section 73 of the Code of Civil Procedure, 1908.
The object of Section 73, which provides for the distribution of proceeds of execution sale rateable amongst the decree-holders, is to provide a cheap and expeditious remedy for the execution of money decree held against the same judgment-debtor by adjusting the claims of rival decree-holders without the necessity for separate proceedings. The special provision was provided to ensure all the decree-holders had an equal footing in the property or assets they were entitled to, for the purpose of execution. And that each decree-holder secured their share of the assets lawfully. There are two prime objectives of the special provision under Section 73, which are:
It helps prevent an unnecessary multiplicity of proceedings when dealing with multiple parties holding a decree or claim to be entitled to a share in the assets.
To ensure a lawful and equitable distribution of assets among all decree-holders by providing an equal footing to them.
Conditions
The following conditions must be met to entitle a decree-holder to participate in the assets of a judgement-debtor and are essential for the application of Section 73:
An application must be made to the Court which holds the assets by the decree-holder claiming to share in the rateable distribution;
Such an application should have been made before the receipt of assets held by the Court;
Only the assets held by the Court can be claimed in rateable distribution;
Both the attaching creditor and the decree-holder claiming to participate in the assets should hold the decree for payment of money;
Such decree should have been obtained against the same judgement-debtor.
In the case of Bharat Paint Mart V. Bhagwati Devi, 1961, it was held that the essential conditions of Section 73 must be met for its application as stated above.
The holder of a decree against two or more persons applies for a rateable distribution of the assets realized from the property of one person, the application is one for the execution of the decree against the same judgement-debtor. Also, a decree against a partner and a decree against him in his individual capacity are decreed against the same judgement-debtor. But a decree against a firm and a decree against a partner in his individual capacity are not against the same judgement-debtor.
In the case of Boban V. Sajith Kumar, 2003, the Kerala High Court reiterated that the application for execution of decree must be filed to the Court before the assets came into the custody of the said Court.
Separate Application
Section 73 does not require a separate application for rateable distribution and there cannot be any objection to include a prayer for distribution of assets in an application which is, in fact, the execution of the decree itself This can be observed in the case of M/s. Suraj Lal V. P.R.K Sugar Works,1960 by the Allahabad High Court and Shamsunder and Co. V. Sunnilal Vesaji, 2001 by the Mysore High Court, where the decree-holder had his decree under execution before the Court received the assets and was entitled to claim rateable distribution. Section 73 has nothing in it that warrants the decree-holder to make a separate application for rateable distribution.
Assets available for rateable distribution
Section 73 provides for a case where the assets are held by a court, and multiple individuals have made an application to the court for the execution of decrees and payment of money before the receipt of assets. And have not obtained the assets after deduction of the cost of realization. Such assets will be rateaby distributed among all persons entitled to the property provided if any property is sold subject to mortgage or charge; the mortgagee shall not be entitled to share in any surplus arising from the sale. And any property liable to be sold in execution of decree subject to mortgage or charge may be ordered by the Court to be sold free from mortgage or charge with consent of the mortgagee, giving him the same interest in the proceeds of the sale as he had in the property sold.
With regard to the distribution of the proceeds of the sale, Section 73(1)(c) provides, “Where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceedings of sale shall be applied in the following way:
Firstly, in defraying the expenses of the sale;
Secondly, in discharging the amount due under the decree;
Thirdly, in discharging the interest and principal money due on subsequent incumbrances (if any); and
Fourthly, rateably among the holders of decrees for the payment of money against the judgment-debtor, who have, prior to the sale of the property, applied to the court which passed the decree ordering such sale for the execution of such decrees, and have not obtained satisfaction thereof?”
In M. Jambanna V. K. Honnappa, it was held that the learned judge was wrong in denying the claim to rateable distribution as the application was filed before the receipt of assets by the Court as required by the rules under Section 73.
In Kotak & Co. V. State of U.P, 1987, it was held by the Supreme Court that the application claiming rateable distribution must have been made to the Court holding the assets before the assets were received by the Court.
Cost of Realization
The cost of realization of assets by the Court is deducted from the total value of the asset before the decree is executed and the asset is then distributed to the entitled individuals. The cost is borne by the decree-holder as the process of realization of the asset is done for the decree-holder or the individual entitled to the asset.
Mode of Distribution
The distribution of rateable assets is done by sale if two or more parties are involved. A property entitled to two individuals is sold by the Court and the cost of realization is deducted from the total sale value of the property. The remaining amount is then divided between the two parties based on the share they are entitled to and distributed.
Section 73(2) states that when all or any assets liable to be rateably distributed are paid to a person not entitled to receive the same, the person entitled may sue such a person and compel him to refund the assets.
In the case of Suryarao v. Chalamayya (AIR (34) 1947 Madras 339), a person not entitled to rateable distribution was wrongfully paid a portion of the assets. A court cannot be deprived of its jurisdiction to pass orders reversing its own orders to meet the ends of justice.
In the case of Laxmi Narain V. Firm Ram Kumar, 1970, the Court had erroneously disbursed the entire assets to one of the decree-holders when the request for rateable distribution of the other decree-holder was pending consideration. The decree-holder who received the entire amount was asked to refund the rateable amount to the excluded decree-holder.
The priority of Government Debts
During the execution of a decree, the priority shall be given to Government debts during the distribution of assets. In the case of Excise And Taxation Officer V. Gauri Mal Butail Trust, 1959, it was mentioned that “The Common Law doctrine, that if the debts due to the Crown are of equal degree to the debts due to a private citizen, then the crown must have priority against the private citizen, is a part of the law of this country.”
Determination of claim
The application of claim by decree-holders is analysed to determine the share of the entitled parties. And the rightful execution of a decree is done to ensure equitable distribution of assets under law. The determination of claim is essential to establish the debt to the government which takes precedence over other debts.
In this case, a revision petition was filed by the Income Tax Officer of Madura South praying that out of some money in the custody of that court in the course of the execution of a decree obtained by the present petitioner, the arrears of income-tax due by the assessee might be paid in the first instance. It was to be determined whether the debt to the Government takes priority and if the Income Tax Officer’s petition to a civil court was sustainable. The decision was that the debt to the Government took priority and a remedy given by a statute for the recovery of a debt due to the Government in no way takes away the right of the Government to invoke other methods if it thinks fit.
Appeal
Section 108 mentions the procedure of appeals and appellate jurisdiction. The order of execution of a decree cannot be appealed and therefore any order under Section 73 for the purpose of distribution of assets is not appealable. This was not the case prior to the Amendment Act of 1976 as it was made appealable.
However, Section 144 discussed the application for restitution where a decree or order is reversed in any appeal, revision or other proceeding or set aside or modified in any suit instituted for that purpose; the Court that passed the decree shall cause restitution to be made to any party entitled to such restitution. The Court may make any orders which may include the order of refund of costs and payment of interest, damages, compensation and mesne profits. The Court which passed the order includes:
The Court of the first instance where the decree is varied or reversed in the exercise of appellate or revision jurisdiction.
Where the decree has been set aside by a separate suit, also in the Court of the first instance.
Where the Court of the first instance has ceased to exist or ceased to have jurisdiction to execute it.
Revision
Section 115 discussed the procedure with regards to the revision of cases. The High Court may call for the record of any case which has been decided by a subordinate court and in which no appeal lies if the Court appears
To have exercised a jurisdiction not vested in it by law,
To have failed to exercise a jurisdiction vested in it by law,
To have acted in exercise of its jurisdiction illegally or with irregularity.
The High Court shall not reverse or vary any order deciding an issue in the course of a suit except where the order made in favour of the party applying for revision would have disposed of the suit. The High Court shall not reverse an order against which an appeal lies in the High Court or subordinate court. Also, the revision shall not operate as a stay of suit or other proceedings before the Court except where the suit or other proceedings is stayed by the High Court.
In the case of Dhirendrarao Krishna V. Virbhadrappa, a revision application is observed when a review is requested allowing rateable distribution of the proceeds of a sale in execution at the suit of the applicant. But the application is turned down the judge.
Conclusion
The provisions for distribution of assets provides a fair claim for each decree-holder. The Civil Procedure Code is of superior judicial quality than what is generally available under other statutes. It is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws under this code should be so construed as to render justice wherever reasonably possible. The judge is entrusted exclusively with the administration of justice to the best of his ability under the provisions of the law.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. This article gives an overview of the Limitation Act, 1963.
Introduction
The law of limitation finds its root in the maxims “Interest Reipublicae Ut Sit Finis Litium” which means that in the interest of the state as a whole there should be a limit to litigation and “vigilantibus non dormientibus Jura subveniunt” which means the law will assist only those who are vigilant with their rights and not those who sleep upon it. The law of limitation specifies the statutory time frame within which a person may initiate a legal proceeding or a legal action can be brought. If a suit is filed after the expiry of the time prescribed it will be barred by the Limitation. It means that a suit brought before the Court after the expiry of the time within which a legal proceeding should’ve been initiated will be restricted.
History of the Act
The law of limitation developed in stages and finally took the shape of the Limitation Act of 1963. Prior to 1859, there was no law of limitation applicable to the whole of India. It was only in 1859 that a law relating to limitation (Act XIV of 1859) was enacted that was applicable to all the Courts. The Limitation Act was subsequently repealed in the years 1871, 1877, 1908. The Limitation Act, 1908 was repealed by the Third Law Commission and the Limitation Act of 1963 came into force. The 1908 Act referred only to foreign contracts whereas the 1963 Act talked about contracts entered into the territory of Jammu and Kashmir or in a foreign country.
Object of the Act
The Law of limitation prescribes a time period within which a right can be enforced in a Court of Law. The time period for various suits has been provided in the schedule of the Act. The main purpose of this Act is to prevent litigation from being dragged for a long time and quick disposal of cases which leads to effective litigation. As per the Jammu and Kashmir Reorganisation Act, 2019, provisions of the Limitation Act will now apply to the whole of India. The Limitation Act, 1963 contains provisions relating to the computation of time for the period of limitation, condonation of delay, etc. The Limitation Act contains 32 sections and 137 articles and the articles are divided into 10 parts.
Whether the Act is exhaustive?
The Limitation Act is exhaustive with respect to all matters expressly dealt in it. It cannot be extended by analogy. Ordinarily, the Act applies only to civil cases except in the matter expressly and specifically provided for that purpose.
Retrospective Operation
In BK Education Services Private Limited v. Parag Gupta and Associates, the Supreme Court clarified that since the law of limitation is procedural in nature, it will be applied retrospectively. The Supreme Court in Thirumalai Chemicals Ltd v. Union of India observed that statutes of limitation are retrospective so far as they apply to all legal proceedings brought after their operations for enforcing causes of action accrued earlier. InExcise and Taxation v. M/S Frigoglass India Private Ltd, the Punjab and Haryana High Court ruled that It is well-settled that the law of limitation is a procedural law and operates retrospectively unless it has been provided differently in the amending statute. In other words, unless there is a contrary intention manifested by express or necessary implication of the legislation itself, procedural law is generally retrospective law.
Limitation Bars Remedy
Section 3 lays down the general rule that if any suit, appeal or application is brought before the Court after the expiry of the prescribed time then the court shall dismiss such suit, appeal or application as time-barred. The law of limitation only bars the judicial remedy and does not extinguish the right. In other words, It means that the statute of limitation prescribes only the period within which legal proceedings have to be initiated. It does not restrict any period for setting up a defence to such actions. Hence, the original right to suit is not barred. However, Section 27 is an exception to this rule.
The Supreme Court in Punjab National Bank and Ors v. Surendra Prasad Sinhaheld that the rules of limitation are not meant to destroy the rights of the parties. Section 3 only bars the remedy but does not destroy the right which the remedy relates to.
In case of Against the Judgement in As 15/1996 v. K.J Anthony, the Court held that a defendant in a suit can put forward any defence though such defence may not be enforceable in the court, for being barred by limitation.
The law of limitation does not restrict the defendant if he raises a legitimate plea in his defence even though the suit is time-barred. It was held in Rullia Ram Hakim Rai v. Fateh Singh, the bar of limitation does not stand in the way of defence. It only bars action and it is only its recovery that is time-barred. There is no provision that prohibits or prevents a debtor from clearing his time-barred outstandings.
The Supreme Court observed in Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi, the Limitation Act takes away the plaintiff’s remedy to enforce his rights by bringing an action in a court of law, but it does not place any restriction on the defendant to put forward his defence though such defence is barred by limitation and is unenforceable in the Court.
Application to courts
Under Section 3(c), an application by a notice of motion in a High Court can be made when the application is presented to the proper officer of that court. If the period prescribed for any application expires on the day on which the court is closed, the application shall be made on the day on which the court reopens as per Section 4.
Plea of limitation: Duty of Court
The Court is under an obligation to dismiss a suit if it is filed beyond the time prescribed by the Limitation Act. The provisions of Section 3 are mandatory and the Court will not proceed with the suit if it is barred by time. Under Section 3 of the Act, it is clearly mentioned that every suit instituted, appeal preferred and the application made after the prescribed period shall be dismissed. Even though limitation has not been set up as a defence.
It was held in Craft Centre v. Koncherry Coir Factories, it is the duty of the plaintiff to convince the Court that his suit is within time. If it is out of time and the plaintiff relies on any acknowledgments in order to save the limitations then he has to plead them or prove, if denied. The Court further held that, provision of Section 3 is absolute and mandatory and if a suit is barred by the time the court is under a duty to dismiss the suit even at the appellate stage though the issue of limitation may not have been raised. It was held in ICICI Bank Ltd v. Trishla Apparels Pvt Ltd that there is no doubt that the court is duty-bound to dismiss the suit in a case if it is barred by time even though no such plea has been taken by the opposite party.
In Mukund Ltd v. Mumbai International Airport, it was ruled that it is explicitly clear that when a suit is barred by limitation, the Court is precluded from proceeding on the merits of the contentions and in fact is obliged to dismiss the suit.
Starting point of Limitation
The time from which period of limitation begins to run depends upon the subject matter of the case and a specific starting point of such period is provided extensively by the Schedule in the Act. It generally starts from the date when the summons or notice is served, or the date on which the decree or judgment is passed, or the date on which the event that forms the basis of the suit takes place. The Supreme Court in Trustee’s Port Bombay v. The Premier Automobile held that the starting point of limitation is the accrual of the cause of action.
Expiry Period of Limitation When Court is Closed
When a court is closed on a certain day and the period of limitation expires on that day, then any suit, appeal or application shall be taken up to the Court on the day on which it reopens. This means that a party is prevented not by his own fault but because of the Court being closed on that day. Section 4 of the Limitation Act provides that when the period of limitation is prescribed for any suit, appeal or application and such period expires on a day when the Court is closed, such suit, appeal or application shall be instituted, preferred or made on the day on which the Court reopens. The explanation to this section mentions that within the meaning of this Section a Court shall be deemed to be closed on any day if during any part of the normal working of the Court it remains closed on that day.
For instance, if a Court reopens on 1st January and the time for filing the appeal expires on 30th December (the day on which the Court remains closed) then the appeal can be preferred on the 1st of January when the Court reopens.
Condonation of Delay
Condonation of delay means that extension of time given in certain cases provided there is sufficient cause for such delay. Section 5 talks about the extension of the prescribed period in certain cases. It provides that if the appellant or the applicant satisfies the court that he had sufficient cause to not prefer the appeal or application within that period, such appeal or application can be admitted after the prescribed time. This Section further mentions that an application made under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). The explanation states that in ascertaining or computing the period prescribed when the applicant or appellant has been misled by any order, practice or judgment of the High Court. It will be a sufficient cause within the meaning of this section.
However, If a party does not show any cogent ground for delay then the application, suit or appeal will be rejected by the court.
In the case of State of Kerala v. K. T. Shaduli Yussuff, the court held, whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the circumstances of a particular case.
Sufficient Cause
Sufficient cause means that there should be adequate reasons or reasonable ground for the court to believe that the applicant was prevented from being proceeding with the application in a Court of Law.
In State (NCT of Delhi) v. Ahmed Jaan,it was said thatthe expression “sufficient cause” should receive a liberal construction. In Balwant Singh (Dead) v. Jagdish Singh & Ors, the Supreme Court held that it is obligatory upon the applicant to show sufficient cause because of which he was prevented from continuing to prosecute the proceeding in the suit. In this case, there was a delay of 778 days in filing the application for bringing the legal representatives on record.
In Ornate Traders Private Limited v. Mumbai, the Bombay High Court ruled that where there is sufficient cause shown and the application for condonation of delay has moved bonafidely, the court would usually condone the delay but where the delay has not been explained at all and there is an inordinate delay in addition to negligence and carelessness, the discretion of the court would normally be against the applicant.
The Bombay High Court in Brij Indar Singh v. Kansi Ramobserved that the true guide for the Court while exercising jurisdiction under Section 5 is whether the litigant acted with sensible and reasonable diligence in prosecuting the appeal.
Whether an applicant has given a sufficient cause or not depends upon the discretion of the court and the circumstances of each case. For instance, a Court can condone the delay on medical grounds.
In this case, an appeal was preferred by the State of Jammu and Kashmir against the decision of enhancing the compensation in the matter of acquisition of land for a public purpose, raising important questions with regard to principles of valuation. An appeal for condonation of delay was filed but was dismissed by the High Court as time-barred because it was four days late. The State later appealed to the Supreme Court by special leave.
Held
The Supreme Court allowed the appeal and ruled that the expression ‘sufficient cause’ under Section 5 is adequately elastic to enable the Court to do substantial justice to parties. The order of the High Court dismissing the appeal as time-barred was set aside and the matter was remitted back to the High Court to dispose of the appeal on merit after affording a reasonable opportunity of hearing to both sides.
The Supreme Court also laid down certain principles to be followed by the Court while interpreting the matter relating to condonation of delay:
Normally a litigant does not get the benefit by lodging a late appeal;
Refusal to condone delay might result in a meritorious matter being thrown out;
Delay must be explained in a pragmatic matter;
A litigant does not stand to benefit by resorting to delay but in fact, he is at serious risk;
It must be understood that the judiciary is resected not because of its power to legalize injustice on technical grounds but because it is capable of removing injustice.
Delay by Government
Under Section 25, where a property belonging to the Government over which access and use of light or any way or watercourse or the use of any water, have been peaceably and openly enjoyed as an easement and as of a right by any person claiming title thereto, without any interruption for thirty years, the right to such access and use of light or air, or way or waterway, or use of their easement shall be absolute and indefeasible, In case of a private property it is twenty years.
Exclusion of Time
Section 12 to Section 15 deals with the exclusion of time under the Limitation Act. Section 12 talks about the time that has to be excluded for computing time of limitation in legal proceedings. Sub-section (1) says that the day on which the cause of action arises that day shall be excluded while computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned.
The following time has to be excluded from computing the period of limitation:
The day on which the period of limitation for any suit, appeal or application has been reckoned.
In case of an appeal or an application for leave to appeal/revision/review of a judgment:
i) The day on which the judgment complained of was pronounced.
ii) Necessary time taken for obtaining a copy of the decree, sentence, order appealed from or sought to be revised or reviewed.
In case of decree or order is appealed from or sought to be revised or reviewed or an application for leave to appeal from a decree:
i) Time requisite for obtaining a copy of the judgment
In case of application to set aside an award:
i) Time requisite for obtaining a copy of the award
Explanation to this Section states that in computing the time necessary for obtaining a copy of the decree or order the time taken by the court to prepare the decree or order before an application for a copy of the decree or order is made shall not be excluded.
Under Section 13, where an application for leave to sue or appeal as a pauper (indigent) has been made and rejected, the time spent by the applicant in prosecuting in good faith shall be excluded.
Under Section 14, if a party is proceeding in good faith in a court without jurisdiction any suit or application the time spent by the party should be prosecuting another civil proceeding with due diligence and that prosecution shall be in good faith shall be excluded.
Under Section 15, the following time shall be excluded:
The day of the issuance and withdrawal of the stay order or injunction.
In case where a previous consent or sanction of the government is required – the time spent on obtaining the consent or sanction.
In case of proceedings for winding up of a company- the time during which the receiver or liquidator was appointed.
In case of a suit for possession by a purchaser at a sale in execution of decree- the time during which proceeding to set aside sale has been prosecuted.
The time during which the defendant is absent from India and under territory outside India under the administration of the Central Government.
Postponement of Limitation
Postponement of limitation means extending the period of limitation. Section 16 to 23 of the Act deals with the postponement of limitation.
In the following cases the period of limitation will not begin to run:
Under Section 16: Firstly, where a person having the right to sue or make an application has died before the right accrues or right accrues only on the death of that person- the period of limitation will be computed from the time when there is a legal representative who is capable of instituting. Secondly, where a person against whom the right to sue or make an application would have accrued dies or would have accrued on his death, limitation will start when there will be a legal representative of the deceased.
Under Section 17: Where the suit or application is based upon fraud, mistake or concealment by fraud- the period of limitation will not start unless the plaintiff or applicant has discovered the fraud, concealment or mistake.
Under Section 18: In case of an acknowledgment of liability in respect of any property or right-a-fresh period of limitation will be computed from the time acknowledgment was signed.
Under Section 19: where payment on account of a debt or of interest on legacy- a fresh period of limitation will be computed when payment was made.
Section 20: Section 20 is only a further explanation of section 18 and section 19. It says that under a disability the expression ‘agent duly authorised’ will include the lawful guardian, committee, manager or agent duly authorised by such guardian, committee or manager.
Section 21: Where a new plaintiff or defendant is added or substituted after the institution of suit- the suit will be deemed to be instituted when he was so made the party. However, if the new plaintiff or defendant was added due to a mistake in good faith and the Court is satisfied, the suit shall be deemed to have been instituted on an earlier date.
Under Section 22: Where there is a continuing breach of contract or tort – a fresh period of limitation will start at the moment when the breach or tort continues.
Under Section 23: In case of suits for compensation for acts not actionable without special damage- limitation period will start from the time when the injury occurs.
Extinguishment of Right
General Rule that the law of limitation only bars the remedy but does not bar the right itself. Section 27 is an exception to this rule. It talks about adverse possession. Adverse possession means someone who is in the possession of another’s land for an extended period of time can claim a legal title over it. In other words, the title of the property will vest with the person who resides in or is in possession of the land or property for a long period. If the rightful owner sleeps over his right, then the right of the owner will be extinguished and the possessor of the property will confer a good title over it. Section 27 is not limited to physical possession but also includes de jure possession. As per the wordings of this Section, it applies and is limited only to suits for possession of the property.
Void Order: Limitation
An order that exceeds the jurisdiction of the court is void or voidable and can be taken up in any proceeding in any court where the validity of the order comes into question.
In Sukhdev Raj v. State of Punjab, the court held that even for void orders if the suit is filed then the period of limitation prescribed by the schedule appended to the Limitation Act is applicable.
The Court in Devi Swarup v. Smt Veena Nirwaniruled that it is a well-settled proposition that even void orders have to be challenged so that the same can be declared as void. Even a void order continues to have effect till the same is declared non-est.
In State of Punjab and Ors v. Gurdev Singh, where the question arose whether for avoiding an ultra vires order of dismissal, an employee is required to approach a court within the prescribed time by the law of limitation. The argument was based upon the proposition that to challenge a void order, there is no limitation period prescribed and the aggrieved person can approach the Court at any time. The Apex Court held that to say that a suit is not governed by the law of limitation runs afoul to the Limitation Act. The statute of limitations was intended to provide a time limit for all suits conceivable.
Case Law: Exception: Union Carbide Corporation. v. Union of India (1991)
This case involved Union Carbide (India) Ltd (UCIL) which was a subsidiary of the Union Carbide Corporation (UCC), New York. One of the world’s largest disaster occurred on the fateful night of 2nd and 3rd December 1984. Methyl Isocyanide Gas (MIC) considered the most toxic chemical in industrial use leaked from the tanks used for its storage in the Union Carbide Company at Bhopal causing the death of thousands of people.
An Act was passed by the Central Government on 23 March 1985 named the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 to authorise the Central Government to ensure that the claims arising out of or in connection to Bhopal Gas Tragedy are dealt with effectively, swiftly and to the best advantage of the claimant and for matters related to it.
The Union of India in the exercise of its power conferred by the Act instituted an action on behalf of the victims for the award of compensation before the US District Court, Southern District of New York.
Justice Keenan of the Federal District Court dismissed the case as forum non conveniens with the condition that Union Carbide shall consent to the jurisdiction of the Indian court and shall waive the defence based upon the statute of limitations.
The Bhopal District Court made an order for payment of compensation of rupees 350 crores as interim compensation. This award was challenged in the High Court and the compensation amount reduced to rupees 250 crores. Later, both the UCC and the Union of India appealed by special leave against the order of the High Court. The Supreme Court recorded settlement of claims in the suit for U.S. Dollar 470 million and for the termination of the civil and criminal proceeding. Soon petitions were filed in the Supreme Court challenging the constitutional validity of the Act. The judgment, in this case, was pronounced on 22 December 1989 upholding the validity of the Act.
The Bhopal Act under Section 8 provides that if a claim is registered under the provisions of this Act then the provisions of the Limitation Act shall be excluded. Section 8 states that in computing, under the Limitation Act,1963 or any other law for the time being in force, the period of limitation for the purpose of instituting a suit or other proceeding for the enforcement of the claim, any period after the date on which such claim is registered under, and in accordance with, the provisions of the Scheme shall be excluded.
Further, by virtue of Section 11, the Bhopal Act has an overriding effect over any other law inconsistent with this Act. Section 11 states that the provisions of this Act and of any Scheme framed thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.
Hence, the Union Carbide case serves as an exception to the Limitation Act for it excludes the Limitation Act,1963 from the purview of the Bhopal Act, 1985.
Conclusion
The law of limitation prescribes the time within which a person can enforce his legal right. This Act keeps a check on the cases so that they are not dragged for over a long time. This Act also recognizes the fact that there are situations when persons instituting a suit or preferring an appeal for a genuine cause are unable to institute a suit within the time prescribed in the Act and the same criteria cannot be applied to every situation.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) from School of law, SASTRA. This is an exhaustive article which deals with the various salient features of the Indian Constitution.
Introduction
The Constitution of India is a very dynamic creation of our lawmakers. The Constitution of India as we all know is a supreme law of the country and every citizen of our country has to abide by the constitution.
The Lengthiest Constitution of the World
The Indian Constitution is one of the lengthiest constitutions in the world and it is also very detailed. There are 12 schedules and 448 articles in our Constitution. The Indian Constitution has incorporated various articles by taking inspiration from the various constitutions around the world. As we all know, India is a very diverse country and it was necessary to draft a long Constitution incorporating various provisions in order to accommodate various differences. The parent document for drafting the Indian Constitution was the Government of India Act 1935, and that document itself was very lengthy. The Constitution makers found it necessary to incorporate various provisions to provide special attention to States like Assam, Mizoram, and Nagaland. Various provisions were also incorporated to uplift the Scheduled Castes and Scheduled Tribes.
Establishment of a Sovereign, Socialist, Secular, Democratic Republic
The Preamble of our Constitution provides India to be a Sovereign, Socialist, Secular, Democratic and Republic Country. There are also various other terms in the Preamble which ensure equality and protect people. The various other terms are Justice, Liberty, Equality, and Fraternity.
SOVEREIGNTY
The term Sovereignty was incorporated in the Preamble to provide supreme power to the Government. The term Sovereignty is the backbone of our Indian Constitution that protects the authority of the people. Sovereignty is an essential factor of every State. The term “sovereignty” as applied to states implies ‘Supreme, absolute, and uncontrollable power by which any state is governed, and which resides within itself, whether residing in a single individual or a number of individuals, or in the whole body of the people’. The Sovereignty in India is of two types:
Internal Sovereignty- The States have the power to govern themselves and make laws in certain matters.
External Sovereignty- The Government is the supreme authority and can acquire or cede any part of the territory for proper reasons.
SECULARISM
It is mandatory to incorporate this term to promote peace between various communities in our country. Secularism promotes the development and unity of various religions. The term “Secular” was added by the 42nd amendment in the Preamble. In the case of S.R Bommai v Union Of India, it was held that “in matters of State, religion has no place” and also said that secularism is one of the basic features of the Constitution. In the famous case of Indira Nehru Gandhi vs Shri Raj Narain & Anr, held that the State shall not discriminate against any citizen on the grounds of religion.
DEMOCRACY
Democracy is an ancient concept that is followed by many south Indian rulers from time immemorial. Democracy provides people with the power to govern. The representative form of the Government is suitable for governing our country due to the huge population. In the case of Mohan Lal Tripathi vs District Magistrate, the meaning of the term “Democracy” was discussed and according to the case it was held that “Democracy is a concept, a political philosophy an ideal which is practised by many nations that is culturally advanced and politically mature via resorting to governance by representatives of the people elected directly or indirectly”. The main reason for incorporating democracy is to provide freedom to the people to choose their own representatives and to save them from the tyrant leaders.
SOCIALIST
The system of socialism promotes equality among people and ensures the welfare of people. The term “Socialist” was incorporated by the 42nd amendment. The term Socialist was discussed in the case of Samantha v State of Andhra Pradesh, and according to the case,” the term socialist is used to lessen the inequalities in income and status and to provide equality of opportunity and facilities”. Many leaders were interested in the concept of socialism, especially Jawaharlal Nehru was very much interested in this concept as he was inspired by the Russian Revolution. There were also other famous leaders like Jay Prakash Narayan who helped in the development of this concept. The concept of Socialism expels capitalism which is considered a threat to the economy. There were developments in economic policies to promote the concepts of Socialism.
REPUBLIC
The concept of “Republic” was borrowed from the Constitution of France. The term republic provides the people power to elect their own representatives. The term republic is the basis of our constitution as it ensures there would be no hereditary rulers and also ensures that the election would be happening in our country. The President of India is an elected head of the State for a fixed tenure.
JUSTICE
The Preamble of the Constitution of India guarantees three types of justice to its citizens like:
Social Justice- The concept of social justice promotes equal treatment of citizens and promotes the rule of law. This term ensures that there would be no discrimination among the citizens on different grounds. The fundamental rights also provided in Part 3 of our Constitution also ensures social justice.
Economic Justice- The concept of economic justice avoids discrimination between genders, provides equal opportunity to work, and ensures the equal distribution of wealth.
Political Justice- This term provides all citizens to participate in the political proceedings.
LIBERTY AND FRATERNITY
The term Liberty and Fraternity is provided in the Preamble of the Indian Constitution. The term liberty and fraternity was used in the French revolution.
Parliamentary form of Government
The Bicameral Legislature system is followed in our country. The Unicameral legislature system is followed in countries like Norway. The law making procedure is easy in the unicameral legislature but the bicameral legislature is effective as there would be a lot of discussions and deliberations before making legislation. Articles 74 and Article 75 is concerned with the Parliamentary system at the centre and Article 163 and Article 164 is concerned with the Parliamentary system at the states. Article 74 of the Indian Constitution provides that there should be a Council of Ministers with the Prime Minister and Council of Minister can aid and advise the President. Article 75 of the Indian Constitution deals with the other provisions relating to the appointment of Ministers.
Parliamentary v. Presidential System
The Presidential form of Government is followed in countries like the United States of America. The President is the head of the State in the Presidential System of Government. The Parliamentary system is preferred over the Presidential system as it ensures the equal distribution of power and also power is not within the hands of a single person. The drafters of our constitution did not prefer the presidential system as the executive and legislatures would become independent of each other. The makers felt that this would be an issue afterwards.
A unique blend of rigidity and flexibility
The Indian Constitution is neither rigid nor flexible, this is also one of the reasons for its length. The famous example of the rigid constitution is the Constitution of the U.S., and it is known as a rigid constitution as the amendment process is very difficult. The Indian Constitution is not very difficult to amend, as the Constitution of The U.S.A.It has gone through 103 amendments so far but there are certain steps to be satisfied before bringing in the amendment. Thus the Indian Constitution is a unique blend of rigidity and flexibility.
Fundamental Rights
Part III of the Indian Constitution deals with fundamental rights.
Article 14
Article 14 of the Indian Constitution guarantees the right to equality. Article 14 is applicable not only to citizens but also to corporations and foreigners. According to this Article, it is the duty of the state not to deny any person equality before the eyes of the law and to provide them equal protection of laws within the territory of India. The term “Equal protection of laws” was discussed in the case of St.Stephen’s college vs. The University of Delhi, according to this case it was said that the state has to provide equal protection of laws to every citizen and non-citizen in this territory and no one should be denied such protection. In the case of Chiranjit lal Chowdri vs Union of India, it was said that “there is no doubt that Article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down.” The concept of the rule of law is incorporated in this Article. The concept of rule of law was developed by Dicey. According to Dicey, there are three main aspects of this rule of law,
Equality before the law.
Absence of arbitrary power and discrimination.
The importance is given to the rights of the individual.
Article 14 allows differentiation in certain situations when there is an intelligible differentia, that there should be a proper reason for differentiating. The differentia which has been applied in the classification should have an essential connection with the objective which is sought to be achieved by the classification. Article 14 does not permit any class legislation. The classification should be reasonable and the persons in the same situation cannot be treated differently. For example, the persons who are under 18 years of age are incompetent to vote is a reasonable differentiation. In a famous case, it was mentioned that the prisoners from India and prisoners from Europe who are in Indian Jails convicted for the same crime must be treated in the same manner.
Article 15
Article 15 prohibits discrimination on the grounds of caste, race, religion, sex and place of birth. According to this article, there should not be any discrimination in:
Accessing shops, public places, hotels and other public places of entertainment.
The use of places of public resort-like wells and shops that are maintained wholly or partly out of State funds or dedicated to the use of the general public.
There are certain exceptions to this Article provided in clauses 15(3) and 15(4). They are:
The State can make special laws for women and children and those provisions should be for their betterment;
This Article will not prevent the state anyway from making special provisions for the advancement of any socially or educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
The Hon’ble Supreme Court, in the case of G.M. Southern Railways v. Rangachari, held that Article 15(4) of the Indian Constitution to be an exception to Article 15(1) and nothing provided in the Article15(1) will affect the State from making any special laws for the improvement of backward classes of citizens. In the case of Dasaratha Rama Rao vs State of Andhra Pradesh,it was held that Article 15 is a particular application of the general right of equality provided for in Article 14. The concept of gender equality provided under Article 15 was also discussed in a case like Vishaka vs the State of Rajasthan.
Click Above
Article 16
Article 16 of the Indian Constitution guarantees equality of opportunity in matters of public employment. In the case of J.K v Triloki Nath Khosa, it was held that even though Article 16 provides equality of opportunity, the state can prescribe all the necessary qualifications and tests that are necessary for providing employment. In the case of M.R.Balaji vs Mysore, the Court put a 50% limit on reservations in almost all states except Tamil Nadu and Rajasthan.
Article 16(4) is a very important provision that allows the state to make reservations of appointments for the development of backward classes if they are not adequately represented by the services of the state. The case of Devadasan v Union of Indiais a landmark judgment which discussed the scope of this Article. In this case, the validity of the “carry forward rule” made by the government that is used to regulate the reservation of employment was discussed. The Supreme Court held that the carry forward rule is not valid as reservation exceeds over 50 percent because of this carry forward rule and it affects the other classes of society.
Abolition of Untouchability is the arch of the Constitution to make the preamble meaningful and to integrate the Dalits in the national main-stream;
The practice of untouchability is the root cause for social segregation, denial of opportunities for Dalits in the educational, economic and cultural pursuits;
All customs, usages, practices directly or indirectly recognizing or encouraging the practice of untouchability in any form is void, as it is opposed to public policy;
The new Act “The Protection of civil rights 1955” was brought out and it was said that the Act is an instrument to enhance the civil, social, cultural, economic and constitutional rights of the Dalits in addition to the rights provided in the Constitutional provisions.
Article 18
Article 18 of the Indian Constitution abolishes the titles. According to this Article, no Indian citizen can accept the titles from any foreign states. The provision was brought out to prevent discrimination. The awards like Bharat Ratna and Padma Vibhushan awarded by the Indian Government do not come under the titles so they can be accepted. The aristocratic classes like Khan Bahadurs created by the British were abolished under this Article.
Article 19
Article 19 of the Indian Constitution guarantees various freedom like:
Freedom of speech and expression;
To assemble peaceably and without arms;
To form associations or unions or co-operative societies;
To move freely throughout the territory of India;
To reside and settle in any part of the territory of India;
To practice any profession, or to carry on any occupation, trade or business.
The freedom of speech under Article 19(1)(a) includes the right to express one’s opinions on any issue through various ways like pictures and films. It includes the freedom of communication and the right to provide or publish opinions and this right is subject to reasonable restrictions being imposed under Article 19(2). In the case ofRomesh Thapar vs the State of Madras, it was held that freedom of expression also includes the freedom of publication and propagation. In the case of Government of India v. Cricket Association of Bengal, it was held that freedom of speech and expression also includes the right to acquire information. There are also certain reasonable restrictions provided for the freedom of speech and expression guaranteed under Article 19(1). Article 19(2) provides those restrictions. They are,
The statements made should not be defamatory.
The statements should not affect the interest of sovereignty and integrity of India.
The statements should not affect any friendly relations with the foreign states.
The statements should not affect public offence, decency and morality.
The statements should not be in relation to the contempt of court.
Article 20
Article 20 provides protection in respect of conviction for offences. According to this Article:
No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act considered as an offence, should not be subjected to a penalty which is greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
No person shall be prosecuted and punished for the same offence more than once.(Double jeopardy).
No person accused of any offence shall be compelled to be a witness against himself(Self-incrimination).
Article 20(1) provides protection against ex post facto laws or retroactive laws. According to this provision, no person can be punished for any offence that was not considered as an offence when it was committed, and no person can be awarded greater punishment. In the case of State Bank of India vs T.J Paul, an employee working in Bank Of Cochin was served with charge sheet but the bank was amalgamated with the State Bank of India after a certain time, and it was held that the person cannot be convicted with the rules of State Bank and only the rules of Bank of Cochin is applicable to him.
Article 20(2) provides the doctrine of double jeopardy which means no person can be prosecuted and convicted twice for the same offence. This principle is related to a legal maxim “Nemo debet bis vexari” which means no person can be put twice in peril for the same offence.
Article 20(3) provides protection against self-incrimination and no accused can be compelled to be a witness against himself.
Article 21
Article 21 of the Indian Constitution guarantees the protection of life and liberty. Article 21 is an important right that protects citizens and non-citizens. In the case of Maneka Gandhi vs Union of India, it was stated that Article 21 also includes the right to live with human dignity. In the casePeoples Union for Democratic Rights v. Union of India, famously known as Asiad Workers Case, it was held that non-payment of minimum wages to the workers employed affects their right to life and their human dignity and it is violative of Article 21. In the case ofState of Maharastra vs Public Concern for Governance trust,it was held that the right to maintain a good reputation also comes under the ambit of Article 21. In the case of Hussainara Khatoon vs the State of Bihar, the right to a speedy trial also comes under the ambit of Article 21.
Article 21A
Article 21A guarantees the right to free and compulsory education to children aged 6 to 14 years. This provision was added in the year 2002 by the Eighty-sixth amendment.
Article 22
Article 22 provides protection against detention in certain cases. According to this Article:
No person who is arrested shall be detained in custody without being informed of the grounds for his arrest.
No person arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice.
Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
Article 23
Article 23 provides the prohibition of traffic in human beings and forced labour. Human trafficking is the illegal trade of humans for the purposes of forced labour and sexual slavery. In the Asiad workers case, it was held that the persons working with low wages also come under the ambit of forced labor. The offences mentioned in Article 23 have been laid out in various enactments the Bonded Labour Abolition Act of 1976 and the Child Labour (Prohibition and Regulation) Act 1986. In the case of State of Gujarat and Anr vs Honorable court of Gujarat, it was held that Article 23 must be always provided with a purposive interpretation.
Article 24
Article 24 prohibits the employment of children below fourteen years of age in factories, mines or any other hazardous form of employment. This provision is also enforced under various legislations like the Factories Act as it is necessary to protect young children from exploitation and to provide them with proper education.
Article 25
Article 25 provides the Freedom of conscience and free profession, practice and propagation of religion. The concept of the secular state provided under the Preamble is supported by this Article. In the case of Javed vs the State of Haryana, while discussing the marriage practices like polygamy it was mentioned that what was protected under Article 25 was the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not an integral part of religion and monogamy was a reform within the power of the State under Article 25.The Supreme Court in M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors. held that management of the temple primarily is a secular act, even though the State cannot interfere with the freedom of a person to profess, practice and propagate his religion, the secular matters can only be controlled by the State.
Article 26
Article 26 provides the freedom to manage its own religious affairs. The various rights provided under the article are:
to establish and maintain institutions for religious and charitable purposes;
to manage its own affairs in matters of religion;
to own and acquire movable and immovable property;
to administer such property in accordance with the law.
In the case of Sri Adi Visheshwara of Kashi Vishwanath Temple’s case, the Supreme Court held that right to manage the temple or endowment is not integral to religion or religious practice and it is known that administration, management and governance of the religious institution or endowments are secular activities and State could regulate them by appropriate legislation.
Article 27
Article 27 guarantees the freedom as to payment of taxes for promotion of any particular religion.
Article 28
Article 28 guarantees the freedom as to attendance at religious instruction or religious worship in certain educational institutions. According to this section, any person attending any educational institution that is recognized by the State or receiving aid out of State funds cannot be forced to be a part in any religious instruction that may be provided in such an institution and cannot be forced to attend any religious worship that may be conducted in such institution or in any premises attached without the consent of that person.
Article 29
Article 29 protects the interest of minorities. The minorities who have a distinct language, script or culture of their own have all rights to protect their identity. The minorities cannot be denied admission in any educational institution that is maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Article 30
Article 30 provides minorities with the right to establish their own educational institutions and the State shall not discriminate against any such minority institution while providing grants.
Article 31A
Article 31A of the Indian constitution guarantees the person, right to have a property and no person shall be deprived of this right.
Article 32
Article 32 guarantees the right to constitutional remedies. There are various constitutional remedies allowed under this Article in the form of writs. If there is any violation of fundamental rights, the aggravated person can approach the Supreme Court under the rights provided by this Article. The rights provided under this Article cannot be suspended. The Constitution of India under Article 32 confers power on the Supreme court to issue direction, award or writs. There are five types of writs, that is appropriate to provide relief and for enforcing fundamental rights.
Habeas corpus- The term habeas corpus literally means “bring the body”.This writ prevents unlawful detention without any justification. The persons who are affected can file an application in the Supreme Court under Article 32 and the court after verifying all the documents will issue a writ of Habeas corpus which will mandate the authorities to produce the persons before the Court.
Mandamus- The term Mandamus means “We command”. The Court issues mandamus to any public authority and commands them to do their duty or sometimes mandamus is issued in order to refrain them from doing certain acts which they are not authorized to do.
Prohibition- The writ of Prohibition is issued by the Supreme Court in order to prohibit or stop the proceedings in the inferior courts when the matter does not come under their jurisdiction.
Quo warranto- The term Quo warranto means ‘What is your authority?’ and as the name suggests this writ is issued to question the authority of the officer doing certain acts.
Certiorari- The term Certiorari means to “to certify” and this writ is issued when there is any illegality in the judgments passed by the inferior courts.
Directive Principles of State Policy
Part IV of the Indian Constitution deals with the Directive Principles of State Policy. It is the duty of every State to apply these principles while making any new legislation. The Directive Principles of State Policy is similar to the ‘Instrument of Instructions’ that is in the Government of India Act 1935. They are basically instructions to the legislature and executive that has to be followed while framing new legislation by the State. There are various directive principles like,
The State shall promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
The state should ensure that the citizens should have adequate means of livelihood.
The state should make sure that the ownership and control of material resources are equally distributed among citizens.
The state should provide equal pay for equal work irrespective of gender.
The state must also take care of the operation of the economic system and should make sure it does not lead to concentration of wealth.
The State shall provide free legal aid shall secure that the operation of the legal system in order to promote justice.
The State shall take steps to organise village panchayats and should encourage self-governance in villages.
The State shall make provision for providing just and humane conditions of work and for maternity relief.
The State shall develop the educational and economic interests of the weaker sections of the people like the Scheduled Castes and the Scheduled Tribes, and can save them from social injustice and all kinds of exploitation.
The State shall regard the raising of the level of nutrition and the standard of living of its people in order to bring improvement in public health.
The State shall bring out new scientific developments in the field of agriculture and animal husbandry.
A Federation with a strong centralising tendency
The famous salient feature of our Indian Constitution is that it is a federation with a strong centralising tendency. The constitution of India is neither federal nor unitary. The reasons for calling the Indian Government unitary is that,
The division of powers is not equal. The centre has more powers than the state that is evident from the fact that the Union list contains more matters than the State list.
The federations like the U.S.A have rights to frame their own constitution, which is not possible in India as the entire country follows the Single constitution.
During the time of emergency, the states come under the control of the Centre.
There is a single system of Courts which enforces both the Central and State laws.
There is no equal representation of States in the houses of Parliament which is not the same in federations like the U.S.A.
The Indian Constitution is considered as federal for various reasons like:
There is a written Constitution which is an essential feature of every country following the federal system.
The supremacy of the constitution is always protected.
Thus the Indian Constitution can be described as quasi-federal or a federation with a strong centralizing tendency.
Adult suffrage
The concept of Adult suffrage allows every citizen of our country who is above eighteen years has the right to vote in the elections. Any adult who is eligible to vote should not be discriminated on any basis like gender, caste and religion. This provision was added in the sixty-first amendment which is also known as the Constitution Act, 1988. The accepted age for voting was twenty-one before this amendment afterwards it was changed to 18 years of age. Article 326 of the Indian Constitution guarantees this right. There are also certain disqualifications provided under Article like:
Non-residence;
Unsound mind;
Criminals who are indulged in the corrupt and illegal practice.
The persons with these disqualifications are not accepted as a registered voter and they are not allowed to cast votes in the election.
An Independent Judiciary
The Judiciary ensures the proper functioning of the constitution and the enforcement of various provisions of the Constitution. The Constitution makers ensured that Judiciary has to be independent so that it will not be biased. The Supreme court is considered as the watchdog of democracy. There are various provisions in the Article which ensures the independence of the judiciary,
The appointment of Judges is independent and there is no involvement of any executive authorities;
The tenure of Judges is secured;
The removal of judges from the tenure must be also based on the constitutional provisions.
A Secular State
The term Secular State means that there is no separate religion for the State and every religion is respected equally in the State. The Preamble of the Indian Constitution itself states that India has to be a secular state. The Fundamental rights provide the citizens’ freedom to follow their own religion and religious practices and no one can be forced to follow any religion. The proposal of developing a uniform civil code is also provided in the directive principles of State policy in order to resolve the differences between various religions, though it is not implemented still. Article 26 also provides the right to manage their own religion in order to prevent any intrusion. The Supreme Court has also held that various religious denominations like Anandmargi though they are not considered as separate religion will also enjoy protection under Article 26.
Single Citizenship
There is no separate citizenship for the States and the Centre like in various federal countries like the U.S.A. There is single citizenship provided to our citizens. Part 2 of the Indian Constitution, i.e. Article 5 to Article 11 of the Indian Constitution deals with citizenship. The Citizenship Act, 1955 which was amended recently in 2019 also deals with citizenship. Single citizenship allows the persons to enjoy equal rights in various aspects across the country. According to Article 5, it is clearly mentioned that the persons will be considered as citizens of the territory of India, which ensures that there would be only single citizenship. The citizenship of Indians is largely determined by the principle of jus sanguinis ( i.e. the citizenship is based on the citizenship of the parents).
Fundamental Duties
Article 51A of the Indian Constitution provides various fundamental duties. There are no specific provisions to enforce fundamental duties in the Courts like the fundamental rights but it is also necessary to follow the fundamental duties. In the case of AIIMS Student Union vs AIIMS, it was held that the fundamental duties are equally important as the fundamental rights. There are various duties provided to a citizen like:
To respect the Constitution and its ideals and to abide by the provisions of the Constitution.
To cherish and follow the noble ideals which inspired our national struggle for freedom.
To value the rich heritage of our country.
To defend our country when there is a necessity and to render national service when called upon.
To protect the environment and carry out measures to improve them.
To safeguard the public property.
To promote harmony and the spirit of a common brotherhood.
Landmark Judgements on Fundamental Duties
In the case of Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, the court banned all the mining activities in the Mussoorie hills as it was affecting the environment and ecological balance, as it is one the fundamental duty provided in Article 51 A.
In the case of Mumbai Kamgar Sabha v. Abdulbhai, where the court held that if the constitutionality of the Act is challenged then the fundamental duties under Article 51 A can be taken into consideration.
In the case of Ram Prasad v. State of Uttar Pradesh, the fundamental duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity provided under Article 51A was discussed.
Judicial Review
The concept of judicial review is an essential feature of the Constitution which helps the constitution to work properly. The judiciary is considered to be the guardian of the constitution, thus it is the duty of the judiciary to check the actions that are violative of various articles in the Constitution. The actions of various organs of the government like executive and legislature can be questioned by the judiciary using the judicial review. The judicial review is an important check and balances in the separation of powers. The court that is authorized with the power of judicial review can invalidate any act that is violative of the various basic features of the Constitution. Article 32 and Article 136 of the Indian Constitution are the articles related to the Judicial review in the Supreme Court. Article 226 and Article 227 are related to the judicial review in the High Court. The scope of judicial review is limited to three grounds:
Unreasonableness and irrationality;
Illegality;
Procedural impropriety.
It is also a settled principle that there should be no judicial review in policy matters, that the policy decision taken by the State or its authorities is beyond the scope of judicial review unless the decision is found to be arbitrary, unreasonable or it is in contravention of the statutory provisions or if it violates the rights of individuals guaranteed under the statute. The policy decision cannot be in contravention of the statutory provisions because if the Legislature in its knowledge provides for a particular right, the authority making a decision regarding the policy cannot nullify the same. The same principle was also stated in the case of Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation. In this case, it was said that the court will not interfere in the matter of administrative action or changes.
Landmark Judgements on Judicial Review
In the case of Marbury v. Madison, the U.S Supreme Court in the year 1803 declared that the legislative actions can also be questioned by the judiciary even though there is no separate provision in the constitution of the U.S.A providing the power of judicial review.
In the case of Kesavananda Bharati vs. the State of Kerala, even though the court after agreeing that the Parliament is not restricted to amend the Constitution, also put a caveat of the doctrine of the basic structure. The Court observed that the constitutional amendments have to be made only after considering the basic structure of the Constitution.
In the case of A.K. Gopalan v. the State of Madras, it was held that the law of preventive detention is subject to such limited judicial review.
In the case of State of Madras v. V.G. Row, while discussing the importance of judicial review held that judicial review, itself is a limitation on the supremacy of the legislature, and it is a fundamental part of our constitutional scheme and it is the duty of the court to declare an enactment void if is in contravention to the provisions of the Constitution.
In the case of Binoy Viswam v. Union of India, the scope of judicial review of the legislative action was discussed in detail.
In the case of Shayara Bano v. Union of India, it was said that the Judicial review must be exercised with insight into social values and to supplement the changing social needs.
In the case of L.Chandra Kumar v. Union of India held that the power of judicial review of the High Court under Article 226 could not be excluded even by a Constitutional Amendment.
The Indian Constitution has a lot of salient features which makes it special. The lawmakers have taken all the factors into consideration and have tried to accommodate all the differences in our Country. The Constitution and various rights provided in the Constitution acts as a guardian to our citizens.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
What would be the path and intensity of a tornado?
Edward Lorenz, a scientist, made an insane discovery. Even the flapping of the wings of a butterfly that occurred several weeks prior can greatly influence the ultimate outcome of how and where the tornado forms, how far it travels and how soon it ceases to exist.
Ridiculous, right?
Let me quote from a celebrated scientific paper:
“one flap of a sea gull‘s wings would be enough to alter the course of the weather forever. The controversy has not yet been settled, but the most recent evidence seems to favor the seagulls.”
The concept, no matter how hard to believe, found a scientific basis over time and eventually came to be a part of an area of mathematical study known as Chaos Theory.
In 1972, the American Association for Advancement of Science organized a lecture by Edward Lorenz with the title: Does the flap of a butterfly’s wings in Brazil set off a tornado in Texas?
A butterfly certainly cannot cause a tornado by flapping its wings, no matter how hard it does so. However, that flapping may make a small difference to the initial conditions that lead to the formation of a tornado.
Our actions, no matter how small, always matter. You have no idea how it will influence the overall dynamics of where things are headed into the future.
And that is why, we must keep going in the direction that we want to move, no matter how small the action is!
In the television series Lucifer, an angel called Uriel has been depicted. Uriel has the superpower that he can study any pattern, and then gently nudge something to cause the final outcome that he wants. He can cause a car crash or homicide by running into a pedestrian or shooing off a dog, which then sets off a chain of events that lead to the final intended outcome.
Have you ever experienced the butterfly effect in your life?
In 2009, I was sitting in my college library doing some research on a computer for my project when someone came and sat next to me. 1 year later, that incident led me to work on a legal risk management project for L&T, dealing with a 300 cr power distribution digitalization project while I was still a law student in the 4th year!
That let me and my collaborators giving a lecture to L&T officers in a Vashi facility, where for the first time I experienced how badly managers and executives want to learn the practical aspects of the law.
That led me to conceptualize a course while traveling from Mumbai to Kolkata by train, which then my partner Abhyuday convinced our erstwhile VC of NUJS who gave us a chance to present the idea before the entire faculty. It took us a year to get started on that project thereafter as we had to dot many i’s and cross many t’s.
And that is how I got into online legal education after quitting my job.
How did I learn to sell? That was another butterfly effect. I was invited by IMS to give a speech at a school in Kolkata about law as a career. I didn’t have the confidence, so I told a friend to take the money and do the gig. I went along anyway. After seeing her performance, I was quite dissatisfied. I took the mic after her and started interacting with the students.
My friend got the money, but I got a new direction in life. I was told that I have a natural talent in public speaking by the IMS folks. Several of the students present signed up for IMS law entrance coaching. That was the beginning of my career in sales! I learned that sales is not some sleazy thing to do, but a way to guide and inspire people, and I did a lot of it thereafter.
I attended a startup event for the first time when I read about it on my Facebook page. I went there on a hunch, with no idea as to what are startups or what to expect from the event. Once I reached, I saw a guy speaking about a data protection software company he was building.
3 months later, he was a paying client, giving me work for drafting and negotiating contracts. I got to see from close quarters how he was building his startup and copied many of the things I learned there when I started building my own startup.
10 years later, he is still a good friend who calls me every time he needs some legal advice. And attending that event led me to become a volunteer in it eventually. It helped me to network with top entrepreneurs, build close connections with many of them, which led to work worth many lakhs over the years.
Reading a good book has a butterfly effect.
Every student who joins us and loves our courses set a butterfly effect in motion.
That is how we got some of the biggest companies in the world coming to a small startup like us for cutting edge legal courses.
Doing a bad thing, or being lazy at a certain moment has butterfly effects too. Who knows what opportunities I have missed in life due to momentary weaknesses or laziness on a certain day?
That is how reputation is built. Every single satisfied learner and every dissatisfied learner have a huge impact on our business, and we run our courses with that awareness at all times. That is why we hire our best people in operations, whereas other edtech companies tend to think that spending on customer success or operations is a waste of money.
For us, if you buy one course from us, and then do not buy another, that means we failed, because clearly you didn’t benefit enough from the first course to want to invest in another, or refer another person like you to us, or think how we can help your organization or local bar. That’s a great loss of opportunity.
I invite you to think of your career as a series of butterfly effects too.
No action is too small. Every good or bad action has long term, unimaginable ripple effects.
Reading one article, helping one friend, speaking up for one person who needs your help can forever change your destiny in the long run, thanks to the butterfly effect.
We do not know which exact actions will have the best effects, so we must take lots of action, aimed at good outcomes, and send those ripples out into the universe. We must take as many good actions as we can and intend that these will eventually lead to a tornado of success.
If you join a course from LawSikho, I assure you that you will be doing those good deeds and sending those ripple effects into the universe every day of the coming year, because LawSikho is like that. It is a force of goodness. Every assignment you will do, every class you will attend, and every person you will meet through our courses will set in motion amazing butterfly effects the outcome of which none of us can imagine today.
The only thing I assure you is that if you participate in the program fully, your life will not be the same again. We have seen it happen with so many students, that we firmly believe in this phenomenon today.
Try it risk-free for 30 days. Here is our refund policy.
You have 24 hours approx to enroll in the following courses:
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. In this article, he covers “Offences Relating to Religion” and tries to discuss all the Sections of the Indian Penal Code surrounding it.
“If I were a dictator, religion and state would be separate. I swear by my religion. I will die for it. But it is my personal affair. The State has nothing to do it. The State would look after your secular welfare, health, communications, foreign relations, currency and so on, but not your and my religion. That is everybody’s personal concern.” -Mahatma Gandhi
Introduction
India is a secular country and the principle of secularism falls in line with the Preamble of the Constitution along with Article 25, Article 26, Article 27, Article 28, Article 29 and Article 30 of the Indian Constitution. The Constitution of India grants freedom of religion. The Indian Penal Code discusses the provisions for offences relating to religion. In the case of Kutti Chanami Moothan v. Ranapattar (1978) 19 Cri LJ 960, it was held that ‘It is the main principle of good government that everyone should be offered to proclaim his own religion and that no man should be suffered to insult the religion of another.’
Chapter XV (Of Offences Relating To Religion) of the Indian Penal Code contains five Sections- Section 295, Section 295A, Section 296, Section 297 and Section 298. The offences relating to religion can be broadly classified into three categories:
Defilement of places of worship or objects of great respect (Section 295 and 297).
Outraging or wounding the religious feelings of persons (Section 295A and 298).
Disturbing religious assemblies (Section 296).
Defilement of Places of Worship or objects of Great Respect (veneration)
According to Section 295 of the IPC, “any person who destroys, damages or defiles any worship place, or any object declared as holy object by any class of persons with the intention of insulting the religious sentiments of any other class or with the knowledge that any of the class is likely to consider such destruction or defamation as an insult to their religion, shall be guilty and punishable with imprisonment of mentioned term which may extend to two years, or with fine, or with both.”
In simple words, if any act is done by a person which results in defamation and destruction of any worship place or object (which is declared as sacred by any religion) with a sole intention of insulting their religion, then that person shall be held liable under the Section 295 and shall be punishable with imprisonment, or with fine, or both.
Section 295 enforces people to respect the religious beliefs of persons of any religion. According to Section 297 of the IPC, “If a person (with an intention of destroying the religious feelings of any person, or hurt the religious feelings of any person, or with the knowledge that the feelings of any person are probably to be hurt or destroyed, or with the knowledge that the religion of any person is probably to be insulted) commits any trespass in any worship place or place of sculpture, or any place set aside from the performance of funeral rites or as a repository for the remains of the dead, or offers any shame to any human body, or causes disturbance to any persons assembled for the performance of funeral ceremonies, then that person shall be held liable under the IPC and he shall be punished with imprisonment of term, mentioned in description which may extend to one year, or with fine, or with both.”
In simple words, Section 297 deals with punishment to people (with the intention to hurt religious feelings of another) who commit a trespass in any worship place, or in sepulture, or burial, or place set apart for burial rites.
Ingredients of Section 295 and 297
In order to understand the concept of Section 295 and 297 more clearly, we have to know the essential ingredients of these Sections. The essential ingredients of Section 295 and 297 are:
Intention or Knowledge.
Destruction, damage or defilement of:
A Worship place, or
Veneration place.
An object declared as a sacred object.
Trespass into:
Worship place, or
Sepulture place, or
A place of performing funeral rites or depository of remains of the dead.
Intention or Knowledge
It is an important ingredient to make anyone liable for the offence under Section 295 of IPC. It is very important that the person has the intention to destroy, damage or defile a place of worship or an object (declared as a holy object by any religion). Without any malafide intention to hurt religious feelings, a person cannot be held liable under Section 295. Mere defilement of a place of worship is not offensive under these Sections. The intention to insult is assessed by the facts and circumstances of the case.
If ‘A’ belongs to Hindu religion and he removed some old building materials of a mosque that were in rotten condition and in disuse; ‘A’ would be held not liable under Section 295 and 297 of IPC because he had no intention to insult any religion. He had no knowledge that his actions will cause hurt to any religion.
‘A’ belongs to Mohammedan religion and he throws a lit cigarette on the Viman (a holy object of Hindu religion), it cannot be claimed to be an unintentional act. Such action will be offensive under IPC. Sexual intercourse inside a mosque or a temple is an offence under Section 297 of the IPC.
Destruction, Damage or Defilement
These words should be understood in the sense of making property dirty, unclean or foul. It does not mean only physically or materially damaging the property but it is also something, that would affect the pure state of the place. The word ‘defilement’ does not mean only physical destruction but also situations where a place of worship or holy object of worship coated ritually or in an impure manner.
Place or Object to be Sacred
It is an essential ingredient of this Section that the destruction caused must be of a place of worship or holy place. As a general rule, temples, churches, mosques, synagogues, kyaungs are considered holy places by virtue of them being places of worship. In the case of Joseph v. State of Kerala, a hut was used as a worship place by people of a specific religion. ‘A’ took possession by court order and took down the images of the Hindu Gods and was charged under Section 295. The High Court held that ‘A’ has the right to do whatever he has done and he had not intended to hurt the religious beliefs and holy object and hence, he was held not guilty. Religious books like the Bible, the Koran, the Granth, the Gita etc. are held to be sacred even though they are not worshipped per se.
Trespass into a place of worship or place of sepulture
According to Section 297, a person is liable when he trespasses (not need to criminal trespass) into a place of worship or of sepulture. The word ‘trespass’ in this Section means an unjustifiable intrusion upon a property that is in the control of another. Sexual intercourse within a place of worship would make liable under this Section.
Indignity to Human corpse (body) and Disturbing and defaming Funeral Rites
Any type of contempt to a human corpse disturbing the performance of funeral rites is a criminal offence under Section 297. ‘Disturbance’ means any type of active intrusion to the funeral ceremonies. In the case of Basir-ul-Huq v. State of West Bengal, the mother of ‘A’ died. He, along with others, took the body to the cremation grounds. In the meantime, the accused filed a complaint to the police stating that ‘A’ had throttled his mother to death. After that, he came with police on cremation grounds and disturbed the ceremonies. But, it was found that the death of A’s mother had occurred naturally. ‘A’ filed a complaint against accused under Section 297. The accused was held guilty and was sentenced to three months of rigorous imprisonment.
Section 295A deals with ‘Intentional and spiteful activities, intended to outrage religious beliefs of any class by insulting its religion or religious beliefs’. According to this Section, any person, with the spiteful intention of insulting the religious feelings of any class of citizens of India with words (spoken, written or by visible presentation or by other methods) insults or attempts to insult the religion or the religious feelings of any class, shall be held liable and punished with imprisonment of either mentioned term which may extend to three years, or with fine, or with both.
Section 298 deals with ‘Uttering, words, etc with deliberate intent to injure the religious beliefs of any person.’ According to this Section, any person (with the deliberate intention of insulting the religious feelings of any other person) who does the following activities shall be punished with imprisonment for a mentioned term in the description which may extend to one year, or with fine, or with both:
Utters any word or makes any sound which is in hearing of that person.
Makes any gesture which is in the sight of that person.
Ingredients of Section 295A and 298
These sections of the Indian Penal Code deals with the act done deliberately with an intent to insult any religious feelings or sentiments.
Section 295A deals with actions intended to insult religious feelings or sentiments of a particular class, whereas Section 298 deals with punishment of those actions (verbal or visible) that intend to insult religious feelings of another.
Disturbing Religious Assemblies
Section 296 deals with ‘Disturbing religious assembly.’ Any person who voluntarily causes disturbance to any assembly (which is lawfully engaged in the performance of worship), or religious ceremonies shall be liable in this Section and punished with imprisonment of either mentioned term which may extend to one year, or with fine, or with both.
Ingredients of Section 296
Essential ingredients of this Section are:
A lawful assembly which is engaged in the performance of religious worship or ceremony.
Such assembly and ceremony should be lawful.
Any types of disturbance are caused by an accused.
Activities of accused must be voluntary.
This Section gives special protection to assembly worship. It does not extend over individual worship. An assembly of religion is regarded as lawful unless it interferes with the ordinary use of the streets by the public.
Conclusion
India is a secular country and every Indian has a ‘right to religion’ given in our Indian Constitution. Chapter XV (Section 295 to 298) of the Indian Penal Code deals with offences and punishment of offences relating to religion. No one can insult anyone’s religious beliefs and any holy object of any religion. If anyone does so, punishment is mentioned in the Indian Penal Code. Offences relating to religion are broadly classified into three main categories: Defilement of places and holy objects of any religion, insulting any religious feelings and disturbing religious assemblies and religious ceremonies. In this way, the protection of religious rights is arranged in Indian laws.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. This article talks about Section 144 and Section 11 of the Civil Procedure Code, 1908 which talks about Restitution and Res Judicata.
Introduction
The expression ‘Restitution’ is not defined under the Civil Procedure Code. Restitution in relation to Civil procedure code means giving back or restoring to the person who is entitled to the benefit from the other party who has wrongly received such benefit under an erroneous decree or order of the court. Res judicata is a Latin term that denotes ‘matter already adjudged by the court cannot be raised again’. These doctrines are not new concepts and are only given statutory recognition under Section 144 and Section 11 of CPC. When a party has filed an application for restitution and it has been dismissed by the Court, res judicata becomes applicable.
Meaning
Restitution in the literal term means to put back or restore anything which has been taken from another in an unfair manner. In other words, the return or restoration of something which has been lost or stolen to the rightful owner of that thing. The Merriam Webster dictionary defines restitution as a legal action serving to cause restoration of a previous state.
Doctrine of restitution
The doctrine of restitution implies to brings the aggrieved party to the original position where the benefit of the erroneous judgment of the court is received by the other party who was not entitled to such benefit. Restitution is not a new concept and Section 144 merely gives statutory recognition to this principle. Section 144 of CPC deals with the application for restitution.
Section 144 states that:
When a decree or order of the Court has been:
varied/reversed in any appeal, revision or other proceedings;
is set aside/ modified in any suit instituted for that purpose.
The Court that passed the decree/order will grant restitution on receiving an application of the party entitled to the benefit
The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Dasheld thatthe party who received the benefit of the erroneous judgment is by law under an obligation to make restitution to the other party for his loss.
The same view was reiterated by the court in the case of Binayak Swain vs Ramesh Chandra Panigrahi, the doctrine of restitution means that, on reversal of a decree or order, an obligation is imposed by law on the party who has received the benefit of the erroneous decree to make restitution to the other party for his loss. This obligation automatically arises when the decree or order is reversed or modified by the Court. It necessarily carries with it the right of restitution for all the things that have been done under the erroneous decree. The Court while making restitution is under a duty to restore the parties, as far as possible, at the time when the erroneous action of the Court displaced them.
The Apex Court in the case of Union Carbide Corporation v. Union of Indiaheld that restitution is a principle of equity and is subject to the Court’s discretion. Section 144 of CPC doesn’t grant any new substantive right to the party not already obtaining under the general law. The Court is obliged to ensure that no one goes back with a feeling that he was impaired by an act which he did on the faith of the Court’s order.
Actus curiae neminem gravabit
The Latin maxim actus curiae neminem gravabit means the act of court should not affect anyone and is founded upon the principle of equity. The Court is obliged to ensure that no one is endured by its order and it should not pass any order to the prejudice of any person. The apex court reiterated the maxim of actus curiae neminem gravabit in the case of Odisha Forest Development Corporation v. M/s Anupam Traders.
Conditions
In applying for restitution, the following conditions must be fulfilled:
The decree/order must have been varied or reversed in any appeal, revision or is set aside or modified.
The party in respect of the reversed or modified decree/order must be entitled to benefit by way of restitution or otherwise.
The relief claimed by the party must be properly consequential of the variation, reversal, setting aside or modification of the decree/order.
The Orissa High Court inBanchhanidhi Das vs Bhanu Sahuanilaid down certain principles to be followed for the application of restitution:
There should be an erroneous judgment passed by the court.
The party to the record must have received the benefit of the erroneous judgment.
The party applying for restitution must show that as a consequence of the erroneous judgment or decree, a party received the benefit.
The erroneous judgment or decree must have been reversed in appeal.
Who may apply?
A person may apply for restitution who:
Was a party to the order or decree being varied, reversed, set aside, or modified.
Is entitled to any benefit by way of restitution or otherwise in respect of the order or decree being varied, reversed, set aside, or modified.
Against whom restitution may be granted?
The court may grant restitution against the party who has wrongly received the benefit under the erroneous decree or order of the court. The party receiving the benefit is under an obligation to make restitution to the party for what he has lost.
Who may grant restitution?
The court which has passed the original decree or order may grant restitution on an application being made to it by the party who is entitled to benefit from such reversed or varied decree or order.
What remedies court can grant?
The court under Section 144 can make any orders as a consequence of a decree or order being varied, reversed, modified, set aside for the refund of costs and for payment of interest, damages, compensation, and mesne profit.
Nature of proceeding
The nature of proceeding under Section 144 is execution proceedings. The process to get an order or decree into effect is called as execution proceedings.
Extent of restitution
Section 144 is not exhaustive but inclusive. Even if a matter does not fall within the scope of Section 144, the court has the power to grant restitution on its discretion.
Inherent power to grant restitution
Under Section 151, a court has an inherent power to make such order as may be necessary for meeting the ends of justice or to prevent the abuse of the process of Court other than the power to grant restitution under Section 144. The power of the court to grant restitution is not confined only to the Section 144, the court has an inherent power to grant the remedy of restitution where Section 144 does not apply. There are different circumstances in which the court can order to restore the status quo ante (previously existing state of affairs)meet the ends of justice.
It was held in K.N. Krishnappa vs T.R. Gopalkrishna Setty that under Section 151 C.P.C, the inherent powers of the Court can be invoked for restoring the parties to the position in which they were, prior to the execution.
Bar of Suit
Section 144(2) bars a separate suit instituted for obtaining any remedy if restitution or other relief could be obtained by making an application under Section 144(1).
The principle of Res Judicata finds its root to the expression “Res Judicata Pro Veritate Accipitur” which means a thing adjudged is received as truth. Res Judicata means when a competent court has already adjudged a matter, that matter cannot be raised again or re-opened by the same parties on the same cause of action. The main purpose of res judicata is to bring finality to a judgment in the original or appellate stage. It is based upon the principle of public policy that there should be a limit to litigation and that no man should be vexed twice for the same cause.
Essential elements of Res Judicata:
Parties to the former suit shall be parties to the subsequent suit.
The court adjudicating the matter must have jurisdiction over the subject matter of the dispute.
The judgment or order shall be final.
The judgment or order must have been on merits.
Under Section 11 of CPC, the principle of Res Judicata has been given statutory recognition. It provides that once a matter has been heard and finally decided by a court competent to hear and decide such matter then the parties cannot reopen the same matter in a subsequent suit. However, in case the matter in the previous and subsequent suit does not relate to the same parties or the same matter the provisions of this section will not be applicable.
Essentials of Section 11 of CPC
No court shall try any suit or issue in which:
The matter directly and substantially in issue in a former suit is directly and substantially the same matter in a subsequent suit;
Litigation in the subsequent suit between the same parties in the former suit;
Litigation in the subsequent suit must be for the same title in the former suit.
The court should be competent to try such subsequent suit or the suit in which the issue has been subsequently raised;
The court in which subsequent suit is initiated is one which has heard and finally decided the matter directly and substantially in issue in the former suit.
Explanation I provides that “former suit” means a suit that has been decided prior to the suit in question.
Explanation II provides that the competence of a court has to be determined irrespective of any of the provisions with respect to the right of appeal from the decision of that court.
Explanation III says that the matter referred to in the former suit under Section 11 should be alleged by one party and denied or admitted by the other either expressly or impliedly.
Explanation IV talks about constructive res judicata which is a subset of res judicata. Constructive res judicata means any claim which should or ought to have been raised in a previous proceeding (already decided) cannot be raised in a subsequent proceeding. Explanation IV provides that any matter which might and ought to have been made a ground of defense or attack shall be deemed to have been a matter directly and substantially in issue in such a suit.
Explanation V provides that for the purpose of Section 11, any relief claimed in the plaint which has not been expressly granted by the decree will be deemed to have been refused.
Explanation VI refers to a case where persons litigating in a bonafide manner, claims a private right or public right, in common for himself and others, every person interested in such right shall be deemed to be claimed under the person litigating.
Explanation VII: This explanation was added by Act 104 of 1976. It provides that Section 11 will now apply to execution proceedings.
Explanation VIII provides that where a competent court of limited jurisdiction has heard and finally decided an issue, it shall operate as res judicata in a subsequent suit, even though the court of limited jurisdiction was not competent to try the subsequent suit or an issue subsequently raised.
Court of limited jurisdiction: It was held inPuthen Veettil Devoki vs Puthen Veettil Kunhi, a court of limited jurisdiction means any courts other than the ordinary Civil Court. Courts of limited jurisdiction would include Insolvency Courts, Land Acquisition Court, Revenue Courts, etc. They try specific matters and are therefore said to be Courts of limited jurisdiction. The decisions of these courts operate as a res judicata in the subsequent suits on the general principles of res judicata and not because of S.11.
Bar of suit
Res judicata serves as an estoppel upon a previously decided judgment. Under Section 11, the trial of any issue or suit is barred which has been already heard and decided in the former suit.
Appeal
Res judicata does not prevent the process of appeals as they are part of the same lawsuit and are not a new suit. In Bhanu Kumar Jain v. Archana Kumar, the Supreme Court observed that it is a well-settled law that the principle of res judicata applies in different stages of the same proceedings.
Effect of the order being implemented
In Bai Chanchal v. Bai Suraj, the court held that If the suit which has been instituted is one in which the matter directly or substantially in issue in a former suit between the same parties, etc, then according to section 11, the court shall not try any such suit. Once the order has been made in a suit it will be considered as res judicata.
Conclusion
The principles of Restitution and Res Judicata ensures that the resources of the court are not unnecessarily wasted and that litigation is not dragged for a long time. If a similar issue or matter is re-opened over and over, there will be no end to litigation. It also puts an obligation upon the court to ensure that no litigant has suffered any loss by its act or omission
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Ayush Verma, 2nd year student at RMLNLU, Lucknow. The article discusses the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019 which provides for registration of unauthorized colonies in NCT, and the procedure for such registration.
Introduction
The parliament had passed the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Bill, 2019 on 4th December 2019. The Bill received the assent of the President on 11th December and has taken the form of an Act. It seeks to provide property rights to the residents living in unauthorized colonies spread over 175 sq km in the National Capital Territory (hereinafter referred to as NCT) by securing the rights of ownership or transfer or mortgage in favour of the residents of such colonies. The rights of ownership or transfer or mortgage to the people living in these colonies shall be granted on the basis of Power of Attorney, Agreement to Sale, Will, possession letter or any other documents including Payment documents. Any resident of an unauthorised colony in possession of the above mentioned documents will be eligible for getting ownership rights through conveyance deed or authorization slip.
These provisions are applicable to colonies whose residents belong to low income groups and excludes affluent colonies. 69 affluent colonies have been identified by DDA which are excluded from the applicability of the provision. There are certain other areas of land like land falling in Yamuna plain, in way of high-tension lines etc where the Act is not applicable.
Background
The Ministry of Housing and Urban Affairs (MoHUA) submitted a proposal to the Union Cabinet; based on the report of the Committee headed by the Lieutenant Governor of Delhi for conferring of ownership rights or transfer or mortgage of property in unauthorized colonies of Delhi. The Cabinet approved the proposal on 23rd October 2019; and accordingly, the Regulations for granting such rights to the people living in unauthorized colonies were notified on 29th October 2019.
Need for such Regularisation
In 1962, some 2 lakhs people were living in 110 unauthorized colonies that were built in contravention to the zoning regulations, but owing to migration and other factors, the number of such colonies have increased to 1797 at present. Many of these colonies lack basic necessities like waste management, proper roads, parks, water supply, sewerage lines and parking lots. People who buy properties in these colonies do not pay taxes which results in a lack of developmental facilities for these people.
There is a lack of development in these colonies due to the non-availability of loans. To construct a house or for a mortgage, residents have to rely on loans from non-banking financial institutions or loan mafias. These institutions charge a high rate of interest which cannot be afforded by a large number of people. Nationalised banks do not forward loans to people residing in these colonies for construction or mortgage as the property is considered illegal due to unauthorization.
Ownership of such properties has been transferred several times through registered or non-registered or notarised power of Attorney, Agreement to Sale, Will, Possession letter and other payment documents and, stamp duty on these multiple transactions has neither been assessed nor paid.
Owing to the judgment of the Supreme Court in the case of Suraj Lamp & Industries (P) Ltd. v. State of Haryana & others where it was held that Agreement to Sale, Power of Attorney or Will transactions are not “transfers” or “sales”, such transactions cannot be treated as valid or complete transfers or conveyances and they can continue to be treated as existing agreement of sale. It lastly held that such types of transactions do not convey any title nor create any interest in any immovable property. It iterated that immovable property can legally or lawfully transferred through a deed of conveyance.
Keeping in view the above specified problems that are being faced by the people living in unauthorized colonies, it was necessary to grant rights of ownership or mortgage or transfer to the residents of such colonies.
Regularisation of such colonies will open doors for development and planned urbanisation.
Beneficiaries
The Act is going to benefit around 40 lakh people (nearly 30 percent of the population of Delhi) who are residing in 1731 unauthorized colonies in NCT as mentioned in the Regulations of National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) 2019 notified on 29.10.2019. Generally, properties in the form of land or buildings are held through Power of Attorney, Will, Agreement to Sale, Payment and Possession documents. These properties have not been registered by Registration Authorities; therefore, residents living in such lands or buildings do not have proper title documents for claiming their ownership over such properties; as a result, banks and other financial institutions do not provide credit facilities for said properties.
Excluded Categories
There are certain areas of land that are excluded from the applicability of the Act. These are:
Land falling in reserved or notified forests,
Land identified as protected or prohibited area by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958),
Land falling in Zone-O of MPD-2021,
Land falling in Yamuna Flood Plain,
Land falling in right of way of existing roads,
Land falling in Master Plan Roads,
Land under the right of way of high tension lines,
Land falling in ridge area of Delhi,
Land reserved or protected under any other law for the time being in force, and
Affluent unauthorized colonies; decided on the basis of plot sizes, location of unauthorized colonies, level of development and other social, economic & physical infrastructure in such colonies. There are 69 affluent colonies that have been identified and notified by DDA which are given here.
Resident: For the purposes of the Act, ‘resident’ means any person with the physical possession of a property on the basis of a registered Sale Deed or Power of Attorney, Agreement to Sale, Possession letter or any other documents providing evidence of payment in respect of a property in unauthorized colonies. It also includes their legal heirs but not a tenant, licensee or permissive user.
Unauthorized Colonies: It means a colony or development comprising of an adjoining area, where permission for approval of layout or building plans has not been obtained; and further, has been identified for regularisation in pursuance to the notification number S.O. 683(E), dated the 24-03-2008 of the Delhi Development Authority, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 24-03- 2008.
Centre for Policy Research in a research study, defined, unauthorised colony as a settlement built in contravention of zoning regulations, made either in violation of Delhi’s master plans or on ‘illegally’ subdivided agricultural land. It gave two distinguishing features for a land to be called as unauthorized: these areas have been subdivided into plots illegally, and; the buyers of plots in these colonies possess documents that prove some form of tenure, which may be characterised as ‘semi-legal’.
Key Highlights of the Act
The cost to be paid for getting ownership is based on the two types of land: gram sabha and private land, which ranges from Rs. 14.55 per sq mtr to a maximum of Rs. 4837 per sq mtr. The charges are to be conferred based on the plot size; 0.5 percent charges for area less than 100 sq mtr, 1 percent for 100 to 250 sq mtr and 2.5 percent for area more than 250 sq mtr, of the circle rate of the highest category of locality of the residential area surrounding the unauthorized colony.
The registration of property in these colonies shall be done either in the name of woman head of the family or co-jointly with the male member.
The Income tax department has also asked to exempt these residents from any tax liability under Section 56(2)(x) of the Income Tax Act that may arise in such a regularization process. The legislation allows levy of stamp duty and registration charges on the amount given in the conveyance deed or authorization slip issued by DDA (Delhi Development Authority) and payment of stamp duty and registration charges on any transactions of sale made prior to the last transaction.
Charges in the case of colonies situated on private land will be half of the charges for government land.
The residents shall have the option to pay the charges in three installments. Those who are paying the charges in one installment shall immediately be granted the rights of ownership or mortgage or transfer of the property. Whereas, in the case of residents opting for paying in installments, the ownership, transfer or mortgage rights shall be conferred when the two-third of the total payable charge has been deposited, and such rights shall become permanent on the full and final payment of the entire amount.
In case of separate floors, the stamp duty shall be calculated on the basis of plot size and then shared among the claimants of such land equally.
Procedure for Online Application
Delhi Development Authority has opened a portal on 16th December where residents need to apply for citizenship rights. It has also enrolled agencies for fixing geo-coordinates and help desks for assisting the applicants.
Applicants have to register and apply on the portal by providing basic information and uploading necessary documents.
On the request of the applicant, enrolled agencies will visit, prepare and upload the geo-coordinates and key-plan on the DDA portal.
Basic information of the applicant and the property applied will appear on the DDA portal for filing objections, if any.
DDA team will make a visit for physical verification of the property.
If any deficiency is found during inspection or in the application, a deficiency memo acknowledging such problems will be communicated to the applicant who may reply to such deficiencies point-wise on the portal.
The approving authority shall examine the application, inspection memos, and objection if made, and reply to District Magistrates, who may approve or reject the application. Where a person has filed objections, he shall be heard before deciding the matter as summary proceedings.
The applicant shall have to pay the charges that are shown on the portal through online payment or online challan. Charges are different for built-up property and vacant land.
The conveyance deed or authorization slip will be issued by DDA after verification of all the original documents.
Where the application has been rejected or a dispute has arisen, the applicant may submit a representation to the DDA, which has to be decided within 90 days of receipt of the representation.
Information to be provided in the Application Form
Details of the property;
Details of the land on which property is situated;
Details of the Owners of Property (If there is Joint Ownership, Applicant may add owner);
The applicant will automatically be picked as an Owner;
Floor(s) for which the application is made (Application will be saved as a draft at every step).
Required Documents
Latest GPA / Latest Ownership Document;
Agreement to Sale;
Will;
Document evidencing Payment;
Possession Document;
Previous Chain of Documents in Serial order;
Documentary Proof of Construction before 01.01.2015 (In case of Built-Up properties);
Property Tax Mutation Document, if any;
Electricity Bill;
Other Ownership Documents.
All the instructions related to the filing of application form can be accessed here.
Challenges faced by the Act
There are chances where multiple people would be claiming for ownership of a single land, because, in some plots, multiple people have built their properties.
Another challenge is Resident Welfare Associations demanding DDA to include areas outside the built up area in its boundary map areas because vacant lands inside built up area being is authorised but not otherwise.
No information is available for dealing with houses that have been constructed violating structural safety.
Conclusion
People residing in unauthorised colonies of Delhi have suffered a lot from decades due to their low socio-economic status, and the unauthorization of their colonies has added to their misery. So there was a need to bring an Act for regularisation of these colonies and granting ownership rights to such people. The recent Act has been brought to achieve the same. Now, the things that need to be assured is tackling the challenges that the Act faces and proper utilisation of the provision.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Yamini Jain, a student of III year BA LLB at ILS Law College, Pune, and it provides a detailed analysis of ‘Abuse of Dominance: pricing practices’ along with relevant case laws.
Introduction
‘Dominance’ in Competition Law is the position of strength enjoyed by an undertaking which enables it to operate independently of competitive pressure in the relevant market and also to appreciably affect the relevant market, competitors and consumers by its actions.
Actions of an incumbent firm to exploit its position of dominance by charging higher prices, etc; and
Actions of an incumbent in a dominant position to protect its position of dominance by placing barriers for potential entrants in the relevant market.
This article shall illuminate upon the abusive pricing practices prohibited under the aforesaid provisions of the Competition Policy.
Cost concepts
An analysis of the pricing practices indulged into by a dominant undertaking to determine its abusive nature requires consideration of its costs. A price may contravene Article 102 where the prices charged & costs incurred differ excessively; where such discrimination lacks a cost-justification; or it may be unlawful where prices charged are below costs. Hence, it is essential to understand these cost concepts to determine such abusive practices.
Fixed costs and sunk costs
‘Fixed’ costs are independent of output, ie., they do not vary with the quantity of output produced, whereas a cost is ‘sunk’ (over a given period of time) if it has been irrevocably committed (as of a given time point) and cannot be recovered. It has to be understood that all sunk costs are fixed but not all fixed costs are sunk, and hence they’ve been regarded as distinct concepts by economists[1].
Marginal cost
Marginal cost is the additional cost incurred in the production of one extra unit of a commodity/service, and is derived from the variable cost of production, provided that the fixed costs remain static when output changes. It enables an organization to determine its attainment of the economies of scale so as to optimize the production and overall operations.
Variable costs
Variable costs are directly associated with the volume of production of goods/services, and can be calculated by multiplying the quantity of output by the variable cost of output per unit.
Avoidable costs
Avoidable costs are those incurred only when a product or activity is continued and its discontinuance will eliminate/reduce these costs, or those that have not been committed & can be recovered. These costs include some fixed and variable costs but omit common costs.
Average variable cost (AVC)
AVC is the variable cost per unit of output, and varies from average total cost in the long-run but not in the short-run. Hence, it assists a firm in deciding whether it should continue its operations in the short-run.
Average avoidable cost (AAC)
AAC is an average of the costs that could’ve been avoided if a company wouldn’t have produced a particular quantity of extra output, and since it includes some fixed costs, it may be higher than a firm’s AVC.
Long-run incremental cost (LRIC)
LRIC models provide for the cost of a whole service/defined increment on the basis of forward-looking costs incurred by an efficient operator, and aid in the decisions of future investments.
Long-run average incremental cost (LRAIC)
LRAIC is the average of all the costs, fixed & variable, that are incurred in the production of a particular good/service. In cases concerning activities protected by a legal monopoly, a presumption of predation prevails whence the prices are below LRAIC.
Average total cost (ATC)
ATC is an average of all fixed & variable costs including common costs, or the total cost per unit of output incurred when a company engages in short-run production.
Stand-alone cost
Stand-alone cost refers to the cost incurred in the production of a single product so that there would be no common costs as a result of other activities.
Exploitative pricing practices
Competition Law critically analyses the exploitative pricing practices indulged into via formation of a cartel to restrict output; excessive (supra-competitive) pricing; or concerted practices of oligopolists, etc.
Arguments against direct control
The opinion that competition authorities ought to take direct steps under these provisions to control exploitative pricing consists of certain persuasive arguments against direct control of prices that include:
If normal market forces have their way, in the absence of barriers, large profits gained by the monopolists should act as an incentive to attract entrants, as in the long-run such profits would be self-defeating. Acceptance of such a view ought to be accompanied with equanimity periods, where the market would eventually correct itself, and the intervention of competition authorities would cause undesirable distortion.
There exist formidable difficulties as regards the determination of exploitative prices and their standards of assessment. Comparison of a monopolist’s price with a hypothetical ‘competitive price’ is as intuitive as a scientific matter, whereas the establishment of ‘reasonable’ price by the addition of a suitable profit margin to the actual cost of producing goods is fraught with various difficulties, such as what constitutes relevant costs, etc.
A monopolist should be enabled to charge monopolistic prices to earn sufficiently large profits in view of carrying out expensive research work. Alternatively, an opinion of no objections against a monopolist gaining at the consumers’ expense is argued relying on the welfare loss attributable to the restrictions on output imposed by a firm with market power, or a loss to consumer welfare.
Further, despite the arguments, even if direct control is accepted, a difficulty arises in the casting of a legal rule condemning exploitative pricing to enable a firm to predetermine its position as regards its legality.
Complexity also arises as regards the crafting of pro-competitive remedies to deal with excessive pricing abuses.
Finally, while a competition authority is required to possess necessary information for price regulation, which it may lack; it is even more difficult for the Court to determine the accurate level of prices.
Alternative to direct control
In consideration of these problems, the competition authorities resort to deploying their resources against exclusionary practices rather than establishing themselves as price regulators. It is suggested that in cases where a competition authority observes a particular raise in the prices than expected in competitive conditions, it should consider conducting a ‘sectoral review’ via available powers in order to discover the causal features of such a raise in the market.
Approach in the EU and the UK
In dealing with the matter of high prices, the European Commission has relied upon a legislative mechanism rather than enforcement under Article 102; whereas the UK has established a system of ex-ante regulation of prices via its sectoral regulators. Though it can be seen that neither the EU nor the UK have the appetite of investigating high prices under these statutory provisions, yet in various cases, there have been investigations in both jurisdictions.
EU Law
What is an excessive price?
Article 102 of TFEU provides that abuse by a dominant undertaking shall include directly/indirectly imposing unfair purchase/selling prices or other unfair trading conditions.
Determining whether prices are excessive
Cost or price analysis
In the United Brands case, the Court stated that a price is excessive if it has no reasonable relation to its economic value. The issue to be determined is whether the difference between the actual costs incurred and prices charged is excessive and, if affirmative, to consider whether such price is inherently unfair or whence compared to other competing products.
Comparison of a dominant firm’s prices
In the Deutsche Post AGcase, the Court determined abuse via an alternative benchmark by comparing the dominant firm’s prices in cross-border mail with its domestic tariff. It has been held in another case that a simple ‘cost-plus’ approach was insufficient to establish the existence of abuse since it is also essential to analyze the economic value of the service provided.
Yardstick competition
In the Bodson case, the Court described the technique of yardstick competition that is comparing the performance of one undertaking with that of the other ones. It stated that such a comparison could provide a basis for assessing the fairness of the prices charged.
Excessive or disproportionate costs should be ignored
In Ministère Public v Jean-Louis Tournier, before the Court of Justice, it was stated that excessive/disproportionate costs shouldn’t be taken into account while determining the reasonableness of prices.
Determining whether excessive prices are abusive
According to the test laid down in the United Brands case, a price is abusive if the price-cost margin is excessive and is unfairly high compared to other prices.
Further objections to excessive pricing
Excessive pricing that impedes parallel imports and exports
Various applications and interpretations of Article 102 TFEU have been found in certain decisions of the Court (discussed below) as regards the harm that excessive pricing poses to the single market.
Excessive pricing that is exclusionary
The aim of the Commission’s enforcement activity in relation to exclusionary conduct is to ensure that dominant undertakings do not impair effective competition by foreclosing their competition in an anti-competitive way, thus adversely affecting consumer welfare in the form of excessive pricing or reduction of consumer choice. Factors relevant for such an assessment are:
Position of the dominant undertaking;
Conditions of the relevant market;
Position of the dominant undertaking’s competitors;
Position of the customers/input suppliers;
The extent of the allegedly abusive conduct;
Possible evidence of actual foreclosure; and
Direct evidence of any exclusionary strategy.
Excessive pricing and aftermarkets
Under economics, it cannot necessarily be assumed that the primary and secondary markets are always discrete. Where a situation of whole-life costing appears in the primary market, excessive prices in the secondary market may act as a competitive constraint to the initial decision of purchasing a primary product, and hence, the existence of a separate aftermarket may be examined while analysing these factors:
Price & life-time of the primary product;
Transparency of the prices for the secondary product; and
The proportion of the price of the secondary product to the value of the primary one.
Buyer power – exclusively low prices
InCICCE v Commission of the European Communities, it was highlighted that similar to excessive pricing, extraction of an unfairly low price demanded by a dominant undertaking on the buying side of the market can also be abusive.
UK Law
Section 18(2)(a) of the Competition Act, 1998 specifically states that an unfair purchase/selling price may constitute an abuse of dominance.
Findings of excessive prices
Napp Pharmaceuticals – Abuse of dominance was held upon the operation of a discriminatory discount policy, predatory price-cutting and excessive pricing based upon the margin between costs and prices;
Pfizer & Flynn Pharma– The Competition Appellate Tribunal (CAT) set out the framework of the approach to be adopted in cases of this kind;
A range of possible analyses should be considered to establish a benchmark price/range that’d pertain under conditions of normal competition;
This price/range should be compared with other competitive prices to determine if they’re excessive;
If such differential is found to be excessive, consideration should be made as regards its unfairness;
If unfair, an assessment of the economic value of the product along with the issue of its reasonable relation to other prices should be considered in order to determine whether the dominant undertaking is reaping unusual benefits of such transactions; and
The Office of Fair Trading (OFT) states that charging of excessively low prices may constitute abuse of dominance only under exceptional circumstances. In a case, the OFT concurred that paying of excessively low prices by offering a commission that failed to cover the costs incurred by another while it was not incumbent upon the company to cover such costs, did not amount to an abuse of dominance.
Rebates that have Effects similar to exclusive dealing agreements
Overview
Pricing practices are known to have effects similar to that of exclusive purchasing agreements that may horizontally foreclose competitors of the dominant firm. A preliminary introduction to the concept includes:
Rebates, discounts & bonuses take many forms. In Intel v. Commission, a distinction was made between three types of rebates:
Quantity rebates;
Exclusivity rebates; and
Third category rebates.
The prohibition of both exclusivity & third-category rebates is directly associated with the law prohibiting exclusive dealing agreements by dominant undertakings.
Rebates may be unlawful but not on the basis of their price-cost analysis, rather on exclusive dealing.
The law that forbids exclusionary rebates is based on Article 102 wholly.
EU Law
Quantity and other permissible rebates
Quantity rebates are directly linked to the volume of sales to a customer and are presumptively lawful. In the Hoffmann case, the Court accepted that not all discounts should be deemed abusive, whereas in the Intel case it was held that quantity rebates reflect gains in efficiency & economies of scale made by a dominant firm. Rebates are permissible for prompt payments or to customers for rendering services, except when they’re loyalty payments for exclusivity.
Exclusivity rebates and similar practice
The basic rule
In Hoffmann La Roche, the Court held the entering into exclusive dealing agreements with some customers and offering exclusivity rebates to others to be unlawful & abusive, and hence equated the two concepts.
Recently, in the Intel case, the ECJ has clarified that:
A dominant firm should be able to produce evidence that its usage of exclusivity rebates is not capable of foreclosing competition, upon which the Commission shall analyze the same having regard to:
the extent of the firm’s dominant position;
the share of the market covered by the arrangement;
the conditions of granting rebates along with their duration and amount; and
the existence of a potential strategy aimed at excluding at least as-efficient competitors.
Even if found to be foreclosing competition, it is defensible on the ground of objective justification.
Meaning of Exclusivity rebates
Prior to the ECJ’s decision in the Intel case, it was a popular notion that exclusivity rebates are per se abusive and require customers to obtain most of their necessities from the dominant supplier. But the ECJ has swept this aside while stating that “not every exclusionary effect is necessarily detrimental to competition”, thereby shifting this concept from a form-based assessment to economic analysis[2].
Factors that are not relevant to establishing whether exclusivity rebates infringe Article 102 of TFEU
The factors considered irrelevant to establish an infringement of Article 102 via exclusivity rebates were illuminated in the Intel case:
Evidence of actual foreclosure effects – only necessary to adduce evidence as regards the dominant firm’s incapability of foreclosure.
Amount of the rebate;
The short duration of the supply contracts and the right to terminate at short notice;
The (small) portion of the market concerned in the relevant conduct – there is no ‘appreciable effect’/’de minimis criterion’ in respect of Article 102;
The rebates granted in response to customer’s requests & buying power;
The rebates cover only an insignificant proportion of the customer’s total requirement & apply only to a certain segment of the customer’s demand.
The AEC test, which was initially disregarded by the General Court in this case, was later accepted by the ECJ on appeal.
Objective justification
A dominant undertaking is entitled to argue that a loyalty/exclusivity rebate is objectively justified and proportionate, while the onus of proving this lies upon that firm.
Third category rebates
Rebates of this kind are neither quantity nor exclusivity rebates, but have an effect similar to the latter, and maybe unlawful depending upon an appraisal of all the circumstances of the case. It is essential in such cases to determine whether the rebate has a ‘loyalty-inducing/fidelity-building’ effect, and if so, whether that rebate could have an anticompetitive foreclosure effect.
Two steps involved in assessing third category rebates
Relying on its judgment in Michelin I, the ECJ in BA v. Commission, stated that the determination of whether a third category rebate is abusive shall be assessed in two steps:
Determine whether those rebates can produce an exclusionary effect; and
Examine whether there exists an objective economic justification for the discounts & bonuses granted.
Relevant factors for the assessment of the effects of third category rebates
Setting individualised targets
A rebate may have an exclusionary effect where a dominant undertaking sets a volume target according to the particular customer that could, practically, be met only if the customer acted as if there was a condition of exclusivity.
Length of the period by reference to which rebates are calculated
The longer the reference period, the more loyalty-inducing the quantity rebate system, since at the end of a longer period, customers are under a greater pressure to reach their target to avail the benefits of such rebates.
Rebate is calculated by reference to the whole of the turnover
In the BA case, an individualised bonus scheme was discovered similar to that of ‘rollback/retrospective’ rebates, wherein the loyalty-inducing effect is a powerful one. Hence, in a state of uncertainty as to the extent of the rise in the profit margin with the dominant undertaking, the customer would have a strong incentive to remain in a static position and not deflect to other competitors.
Lack of transparency in a system of rebates
Being an exacerbating factor, it makes the finding of abuse more likely. Contrarily, if a rebate is loyalty-inducing & abusive, it cannot be saved by the fact that it’s transparent.
Objective justification
Objective justifications have their roots in the two-stage test of its conduct being necessary or that it produces substantial efficiencies. The question of whether such conduct is objectively necessary & proportionate must be determined on the factors external to the dominant undertaking, whereas on for efficiencies, the following conditions must be fulfilled:
They are likely to be realised as a result of the conduct;
Conduct is indispensable to the realisation of those efficiencies;
They outweigh any likely negative effects on competition & consumer welfare in the affected markets; and
Conduct does not eliminate effective competition.
The Commission’s Guidance on Article 102 Enforcement Priorities
The Commission, in the Guidance Article, discusses the issue of its intervention in relation to conditional rebates, that are granted as a reward for certain purchasing behaviour and can have foreclosure effects on competition. In assessing this, the Commission considers that:
Price < AAC – rebate is generally capable of foreclosing as-efficient competitors;
Price between AAC & LRAIC – other relevant factors should be taken into account to determine the possibility of anti-competitive foreclosure;
Price > LRAIC – the rebate is generally not capable of anti-competitive foreclosure.
UK Law
In Napp Pharmaceuticals, the OFT held it to be ‘abuse of dominance’ whence large discounts were being offered to the hospitals while charging excessive prices to the community patients since it considered Napp’s intention to be of eliminating competitors and its reaction to its competitors was held to be unreasonable & disproportionate. Further, on appeal, the CAT found its discounts to be less than the costs, and hence, held such prices to be predatory.
Several cases concerning rebates have been closed since significant consumer detriment was unlikely and they were no longer an administrative priority.
Bundling
EU Law
Rebates having a tying effect
Tying and bundling are closely connected practices and encompass those whereby an undertaking supplies the tying product ensuring that the customer also obtains the tied product along with it. In Michelin II, the Commission found that a bonus scheme enabling the firm to leverage its position in the market to preserve its position in the neighbouring market amounts to an abuse of dominance.
‘Across-the-board’ rebates
In Hoffmann, the ECJ condemned ‘across-the-board’ rebates since it dissuaded customers from obtaining its requirements from other as-efficient suppliers, and hence deemed such rebates to be in infringement of Article 102(2)(d). An incremental price below LRAIC suggests that an as-efficient competitor may be foreclosed from the market.
Delivered pricing as a tie-in
In the instant case, it was held that by reserving an ancillary market of delivery for itself as part of its activity in a neighbouring but separate market of sale, the firm had abused its dominant position beyond any objective justification.
Bundling
A firm may sell two/more products together as a bundle and charge more attractive prices for the bundle than for the constituent parts of it. It may have the same effect as a tie-in agreement.
UK Law
In BSkyB, it was illustrated that the behaviour of a dominant firm should be considered abusive only when it actually has/possibly can have an anti-competitive effect.
Predatory pricing
Introduction
Predatory price-cutting occurs when a dominant firm, in lieu of disciplining existing competitors or foreclosing new entrants, excessively reduces its prices to a loss-making level, and upon achieving this it raises its prices again thereby causing consumer harm, and hence infringes the provisions prohibiting abuse of dominance. The law on predatory pricing has to tread a fine line between not condemning competitive responses and prohibiting unreasonable exclusionary conduct of the dominant firm.
Areeda and Turner Test
Areeda & Turner test is an economic test for the determination of predatory pricing and suggests that a price below the dominant firm’s AVC should be deemed to be predatory. It relies exclusively on a cost-price analysis and focuses on short-run rather than long-run efficiency.
EU Law
The rule in AKZO v Commission and subsequent cases
Predatory pricing was first considered in theAkzo case, and a rule was laid down by the ECJ to determine predation while rejecting the Areeda-Turner test:
Price > ATC – not guilty of predation under the rule laid down in Akzo but the rule on selective price-cutting laid in Compagnie Maritime should be considered;
AVC < Price < ATC – guilty of predation if they’re part of a plan to eliminate a competitor;
Price < AVC – presumed to be acting abusively, rebuttable over objective justification.
The Akzo test was reaffirmed in the cases of Tetra Pak II& France Telecom, and further developed in the Post Danmarkcase, wherein the Court held that pricing below ATC but above AVC is not per se anti-competitive and the point to be considered is whether the pricing policy, without objective justification, produces an actual/likely exclusionary effect to the detriment of competition and thereby of consumers’ interests.
Intention to eliminate competition
Areeda-Turner test was argued upon its strictness, stating that pricing above AVC could be exclusionary in some circumstances, especially where there is proof of such intent. However, a rule requiring evidence of intention to eliminate would be reasonable where it has an objective quality based in economics.
Is it necessary to show the possibility of recoupment?
The US law prohibits predatory pricing only if it can be shown that the predator has the ability to recoup any losses incurred. The EU Courts have not adopted a requirement of recoupment under Article 102. It affirmed this in the France Telecom case, by stating that proof of the possibility of recoupment of losses suffered by a dominant firm via price-cutting cannot constitute a precondition for establishing that such a pricing-policy is abusive. However, the Commission is not precluded from finding that this is a relevant factor in assessing abusive pricing practices.
Defences
There are three kinds of objective justifications available as defences against predatory pricing:
Meeting competition;
Objective necessity and efficiency; and
Product introductions, obsolete inventory and industry downturn.
Are the standards of AVC and ATC always appropriate?
A complex factor in the application of cost-based rules to determine predation is that AVC & ATC standards may not always be appropriate since in some industries fixed costs are very high while variable costs are very low. Consequently, the Commission suggested the use of LRIC models instead, which comes with arguments of its own. Hence, a ‘combinatorial approach’ of LRIC along with the stand-alone costs may be used. The first decision using this model was made in the case of Deutsche Post.
The Commission’s approach to predation in its Guidance on Article 102 Enforcement Priorities
The Commission states that a dominant firm engages in predatory conduct via deliberately incurring losses or foregoing profits in the short-run and causes anti-competitive foreclosure. Its view is that a price below AAC is a clear indicator of profit sacrifice, although avoidable losses would also have to be taken into account. It adds that only prices below LRAIC are capable of foreclosing as-efficient competitors and that disciplining a rival to prevent competition in the market may suffice.
Predatory price cutting and cross-subsidisation
Cross-subsidisation may facilitate abusive pricing practices such as predation & selective price-cutting, and hence, it has to be determined whether cross-subsidisation is inherently abusive. It appears, in principle, that the existing rules on abusive pricing practices are sufficient to control the conduct of the dominant firms, consequently, the adoption of a rule forbidding cross-subsidy itself is unnecessary.
Selective price-cutting but not below cost
This contentious issue arises when a dominant firm cuts prices selectively, but not below the costs, to customers that might desert the competitor while leaving the prices at a higher level for other customers. This might amount to unlawful discrimination contrary to Article 102(2)(c).
Eurofix-Bauco/Hilti
The Commission found the defendant guilty of abusing its dominance in a number of ways, such as bundling; quantity discounts to some customers; selective price-cutting; etc. It held that the pricing abuses, in this case, did not hinge on whether the prices were below cost, but on the issue of Hilti’s reliance on its dominance to offer discriminatory prices to its competitors’ customers to damage the other’s business.
Irish Sugar v Commission
The General Court annulled the finding of the Commission that Irish Sugar had applied selectively low prices to potential customers of a competitor infringing Article 102, on factual grounds; however, it upheld the finding that Irish Sugar had been guilty of granting selective rebates to particular customers.
Compagnie Maritime Belge v Commission
It was held that the policy adopted by Belge was one of selective price-cutting intended to eliminate the competitor and that Article 102 was infringed. Non- discriminatory price cuts by a dominant undertaking which do not entail below-cost sales shouldn’t usually be regarded as being anti-competitive. However, the judgment made it clear that selective price-cutting is capable of being abusive in its own right.
Post Danmark
Confirms that selective price-cutting by a dominant firm is cannot be presumed unlawful without a detailed cost-based analysis of its capability of foreclosing competition.
Departs from a central need to show anticompetitive intent, and underlines the importance of assessing the real risks of foreclosure of an as-efficient competitor.
Objective justifications on necessities and efficiencies.
UK Law
Napp Pharmaceutical
It was held that Napp was a super-dominant undertaking and had abused its dominance by charging prices below costs (AVC) to particular customers to ward-off a competitor, and hence, it was unnecessary to determine if this was done under a plan to eliminate competition.
The Aberdeen Journals case
This case laid down several important points as regards the cost-based rules:
The rules are not an end in themselves and shouldn’t be applied mechanistically;
Significance of the time period over which costs are to be calculated;
Recognition of objective justifications under certain circumstances.
Intention – in the absence of exceptional circumstances, the longer a dominant firm charges below costs, the easier it will be to draw an inference of intent to eliminate competition.
English Welsh & Scottish Railway
In this case, the Office of Rail Regulation found that EW&S had abused its dominant position in a number of ways, including predatory pricing.
Cardiff Bus
In this case, OFT concurred that Cardiff Bus engaged in predatory conduct intending to eliminate certain rival competitors from the market, but did not impose any fine because of its small turnovers. Subsequently, those companies sued Cardiff bus for damages.
Cases where predatory pricing was not established
The Association of British Travel Agents and British Airways plc– OFT concluded that BA was not guilty of abusing its dominant position by reducing the commission it paid to travel agents for the sale of tickets for its flights since there existed an objective justification for this price differential.
Complaint against BT’s pricing of digital cordless phones – OFCOM held that BT was not dominant. However, it also conducted an extensive analysis of whether it’d have been guilty of predation if it was in a dominant position, and concluded that this was not so.
A margin squeeze occurs when there is such a narrow margin between an integrated provider’s price for selling essential inputs to a rival and its downstream price that the rival cannot survive or effectively compete.
EU Law
Is the accused undertaking operating on an upstream and a downstream market?
The accused undertaking “squeezes” the margin between the price it charges for the input in vertically integrated markets, i.e., the upstream & downstream market, along with the price that its downstream operations charge to its own customers, so as to affect the efficiency of competition.
Does the accused undertaking hold a dominant position in the upstream market?
A vertically integrated undertaking that holds a ‘dominant position in the upstream market’ may cause price squeeze by:
increasing the price for the upstream product;
decreasing the price for downstream products; or
doing both concurrently.
In reference to this, a dominant undertaking may restrict competition in the relevant market via transferring its market power over the upstream products to the downstream market.
Do the dominant firm’s upstream and downstream prices allow an undertaking as efficient as the dominant firm to compete on the downstream market?
In Konkurrensverket v TeliaSonera, the Court while rejecting the test laid down in Deutsche Telekom, held that considering the exclusionary effect a margin squeeze may create for as-efficient competitors, in the absence of any objective justification, it is in itself capable of constituting an abuse within the meaning of Article 102 TFEU. Further, it stated that the insufficient margin created by the dominant firm between its upstream and downstream products is the essence of this infringement.
Is the margin squeeze capable of producing anti-competitive effects?
In Telefónica S.A. and Telefónica de Espaħa S:A:U: v. Commission, the Court stressed that Article 102 applies only to a margin squeeze that has exclusionary/anticompetitive effects, by stating that during the assessment of abuse the conduct of the dominant firm has to be considered. It held that the Deutsche Telekom case, considering margin squeeze as abusive conduct in itself, was to be regarded as a clear precedent to margin squeeze cases. Moreover, notwithstanding any legislation, if the dominator has the scope to adjust even its retail prices alone, the margin squeeze runs the risk of being considered abusive under Article 102 TFEU
Is there an objective justification for the margin squeeze?
greater effectiveness must be achieved as a direct result of the reviewed conduct;
the conduct is necessary to achieve greater efficiency;
consumers benefit from increased efficiency;
competition has not been eliminated in a substantial part of the market.
The Commission’s decisional practice
In its Guidance, the Commission discussed its approach to margin squeeze alongside refusal to supply, by stating that it shall generally rely on LRAIC of the dominant firm’s downstream operations to determine foreclosure of as-efficient competitors and that it may use the LRAIC of a downstream competitor whence it is not possible to allocate the costs of a vertically-integrated dominant firm. It has taken action in relation to ‘margin squeezing’ in various cases, such as Napier Brown- British Sugar, Deutsche Telekom and Telefónica.
UK Law
Findings of unlawful margin squeeze
In Genzyme Ltd., the CAT upheld a finding of margin squeeze against the dominant firm who squeezed the margin available to a competitor in a downstream market and found it guilty of abusing its dominance.
In Albion Water/Dŵr Cymrua judgment of the CAT was upheld, overturning a non- infringement decision by OFWAT, and finding that Dŵr Cymru was guilty of margin squeezing.
Rejections of complaints about margin squeezes
In BSkyB, after an extensive economic analysis, it was concluded that there were insufficient grounds for believing that its conduct was abusive, as was highlighted in many other investigations conducted by the OFCOM.
Price discrimination
The meaning of Price discrimination
Price discrimination arises when customers in variant market segments are charged dissimilar prices for the same good/service, for reasons unrelated to costs. It is effective only if customers cannot profitably resell the goods or services to others.
EU Law
Article 102(2)(c) provides that the application of dissimilar conditions to equivalent transactions leading to foreclosure of competition amounts to abuse.
Does the accused undertaking have a dominant position?
Infringement of Article 102 can occur only if the accused undertaking is in a position of dominance in the upstream market, whereas its presence in the downstream market is unnecessary.
Has the dominant undertaking entered into equivalent transactions with other trading parties?
Article 102 does not necessitate all trading partners to avail the benefit of the same prices but requires examination of differential treatment where the compared transactions are ‘equivalent’, that may be determined via factors such as the nature of the product and the costs of supply.
Is the dominant undertaking guilty of applying dissimilar conditions to equivalent transactions?
The dominant undertaking must have applied dissimilar conditions to equivalent transactions with other trading parties to constitute an offence of abuse of dominance under Article 102.
Could the discrimination place other trading parties at a competitive disadvantage?
Article 102(2)(c) specifically requires that the infliction of ‘competitive disadvantage’ be a component of the abusive conduct. In British Airways, the Court explicitly stated that it’s necessary to ascertain that the discriminatory behaviour in question tends to distort the competitive relation, either amongst the suppliers or amidst the customers.
Is there an objective justification for the discrimination?
A dominant firm may take a defence of objective justification as it is believed that differential pricing may increase a dominant firm’s output and enable customers to obtain a product which they might not be able to afford otherwise.
UK Law
In the EW&S case, the ORR held the firm to be guilty of abusive dominance in a number of ways, including price discrimination between customers. Whereas, in BSkyB, the OFTEL concluded that any discrimination on the dominant firm’s part as regards the promotion of its broadband services did not have a material effect on competition.
Pricing practices that are harmful to the single market
The EU Law condemns pricing practices of dominant firms that are harmful to the single market.
Excessive pricing that impedes parallel imports and exports
High prices charged to prevent parallel imports infringe Article 102. In the BL case, the Court while condemning the disproportionate pricing, found that the purpose of excessive pricing was to impede parallel imports into the UK, which should be accounted for via single-market considerations.
Geographic price discrimination
Geographical price discrimination was condemned in the case of Tetra Pak II, wherein the relevant geographic market was the whole EU and yet considerably variable prices were charged amongst different States, which was possible because of its policy of market compartmentalisation maintained by virtue of its other abusive practices.
Rebates that impede imports and exports
Rebates and similar practices that have the effect of impeding imports & exports are condemned by the EU law. The decision in Irish Sugar was prompted by single-market considerations wherein border rebates were held unlawful, and the importance of the competitive influence on one national market from neighbouring markets was highlighted as the very essence of an internal market.
Conclusion
Competition law has been extensively relied upon in cases of abusive pricing practices. Hence, in the modern era, it is suggested that the antitrust authorities, instead of aiming at direct regulation of prices, etc., focus on the preservation of structures & conditions whereby market forces constrain price and increase output, and hence, that the Commission uses its powers with great parsimony while the Courts set high standards of proof.
References
Wang, X. Henry, and Bill Z. Yang. “Fixed and Sunk Costs Revisited.” The Journal of Economic Education, vol. 32, no. 2, 2001, pp. 178–185. JSTOR, www.jstor.org/stable/1183493.
RICHARD WHISH & DAVID BAILEY, COMPETITION LAW, (8th ed.).
United Brands v Commission [1978] ECR 207, [1978] 1 CMLR 429.
Deutsche Post AG v Commission, OJ [2001] L 331/40, [2002] 4 CMLR 598.
Scandlines Sverige AB v Port of Helsingborg, COMP/A.36.568/D3.
Corinne Bodson v Pompes funèbres des régions libérées SA, [1988] ECR 2479, [1989] 4 CMLR 984.
Ministère public v Jean-Louis Tournier, [1989] ECR 2521, [1991] 4 CMLR 248.
CICCE v Commission of the European Communities, [1985] ECR 1105, [1986] 1 CMLR 486.
Napp Pharmaceutical Holdings Ltd & Subsidiaries v. Director General of Fair Trading, [2001] UKCLR 597.
Thames Water Utilities Ltd/Bath House and Albion Yard v. Director General of Water Services, [2006] CAT 7.
The Association of British Travel Agents and British Airways plc., [2003] UKCLR 136.
Intel Corp. v European Commission, Case C-413/14 P.
Hoffmann-La Roche & Co. AG v Commission of the European Communities.
NV Nederlandsche Banden Industrie Michelin v Commission of the European Communities.
British Airways plc v Commission of the European Communities, ECR 2007 I-02331.
Manufacture française des pneumatiques Michelin v Commission of the European Communities, ECR 2003 II-04071.
Napier Brown – British Sugar, OJ L 284, 19.10.1988, p. 41–59.
BSkyB v. EDS, [2010] EWHC 86 (TCC).
AKZO Chemie BV v Commission of the European Communities, ECR 1991 I-03359.
Tetra Pak International SA v Commission of the European Communities, ECR 1996 I-05951.
Post Danmark A/S v Konkurrencerådet, (C-209/10).
Eurofix Bauco v. Hilti, OJ [1988] L 65/19, [1989] 4 CMLR 677.
Irish Sugar plc v Commission of the European Communities, OJ [1997] L 258/1, [1997] 5 CMLR 666.
Compagnie Maritime Belge SA v Commission of the European Communities, [1995] 5 CMLR 198.
Aberdeen Journals Ltd. v. OFT, [2001] UKCLR 856.
EW&S Railway Ltd, [2007] UKCLR 937.
2 Travel v. Cardiff Bus, [2012] CAT 19.
Konkurrensverket v TeliaSonera, [2011] ECR I- 000.
Telefónica S.A. and Telefónica de Espaħa S:A:U: v. Commission, Case T-336/07.
Genzyme Ltd v. OFT, [2003] UKCLR 950.
Dŵr Cymru Cyfyngedig v Water Services Regulation Authority [2008] EWCA Civ 536, [2008] UKCLR 457.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
It’s not just end of a year, today we say goodbye to an entire decade. Today is the last day of teenage for the twenty first century. From tomorrow, it will be twenty plus!
I am sure we are all going to party tonight. And reflect back at the decade we are leaving behind.
It would perhaps take a few years to understand what this decade was all about.
For India, 90s were about economic liberalisation, globalization, rise of engineering and IT, the first computers and ridiculous Bollywood movies we fell in love with.
90s was the decade when love marriage began to become the aspirational thing.
00s, or the Naughts, inconvenient to pronounce and write, was the decade of India’s rise in the global platform. Economic growth accelerated, politics was stable and predictable. What really stood out was the rise of social media and ubiquitous smartphones. Still, we had no idea yet how profoundly these things will change our lives and our country.
That was the decade that made smartphone and broadband connections the catalyst of change. That was the decade that gave us the first batch of internet startups that went on to become forces to reckon with.
So what was the 10s/teens all about?
The decade when we bought more smartphones than the number of citizens in the country? The decade when mobile internet became more accessible than public toilets? The decade of T20s? The year when Indians became comfortable with Tinder and began watching more YouTube than TV? The decade when videos took over communication and social media? The decade in which we had a chance to stop global warming but we failed?
Hard to say what it was for the entire country. Do let me know your thoughts. What defined the passing decade for you?
I can tell you what it was for me personally though.
It was the decade of dreaming, and working really hard. It was the decade when I said I am ready to toil, learn and invest for rewards that would be deferred.
It was a decade of good decisions. Some bad decisions too, which were quickly corrected.
It was the decade of my life that saw the maximum hustle and the decade in which I finally got some mastery over myself!
This was the decade in which I took charge of my life.
It was the decade in which I learnt to be an entrepreneur, and saw cycles of booms and busts.
What was it for you?
I can’t wait for the next decade, because I have been investing in it already, having started many years back! I look forward to see my investments grow.
What are my investments?
My health. My mind.
My business – LawSikho.
My relationships.
Above all, my ability to make a difference to my community.
What are you looking forward to?
I can predict the next decade, based on what investments has been made in the current one.
Your next decade will be decided by what you have been doing in the current one.
You have a few hours left, make some good investments before you begin the next decade.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Mehar Verma, a 3rd year law student from Jindal Global Law School. In this article, the author talks about the essential steps to ensure accused’s presence at the trial through issue of summons, warrants and proclamation.
Introduction
Every person, including an accused in a criminal case, has the right to be heard and the right to appear before the Court. A fair trial is the one where the accused is allowed to be present at the case and to ensure the attendance of the accused, the Court is required to issue a notice to all the accused in the suit through summons or warrants. If the accused still do not appear, then the Court can issue a proclamation. If the Court issues a summons under the Criminal Procedure Code to ‘A’, informing him about the charges against him and asking to appear before a court. If he fails to do so, the court will issue a warrant, asking a third person to procure ‘A’ to the Court. If ‘A’ absconds or voluntarily conceals himself, the Court will issue a notice of proclamation against ‘A’ and attach the property of ‘A’.
Importance of presence of accused at trial
The presence of the accused at trial is the fundamental principle of criminal procedure which ensures that the fundamental rights of the accused are not abridged. The accused’s presence not only helps in establishing the factual circumstances but also ensures that the accused has an effective right to defence. The physical presence of the accused at the trial allows him to participate in a meaningful and informed manner, right to present his case, right to cross-examine the witnesses and the right to be understood. Thus for the conduct of a fair trial, all proceedings of a trial should take place in front of the accused or his counsel and ex parte decisions should not be made in criminal proceedings. In the spirit of fair trial and ensuring the rights of the accused are not hampered, under Section 238 of the Criminal Procedure Code, the Magistrate must provide with all the necessary documents, including a copy of the charge sheet, statements of the witnesses and all other documents about the investigation to the accused. Section 273 of the Criminal Procedure Code provides that all evidence or other proceedings of the trial shall be taken in the presence of the accused or his pleader. Further Section 317 of the Code states that a Magistrate can proceed with the trial, without the presence of the accused only if it is necessary to do so in the interest of justice.
In Mohd. Hussain @ Julfikar v The State of Delhi, the accused was allowed to cross-examine only one witness, whereas there were fifty-six witnesses in total. The court held that the accused’s conviction must be set aside as it is not a fair trial and a person accused of a serious charge should not be denied to attend the proceedings.
Steps to procure the presence of the accused
As the presence of accused and hearing of both parties, is the essence of a free trial, an entire chapter of the Code deals with the process of ensuring attendance of all the defendants by serving a summons, warrant or proclamation, and attachment of property. After taking cognizance of an offence, the Magistrate has to decide whether a summons or a warrant should be issued for the attendance of the accused.
Summons of arrest
Summons is an order given by the court asking a person to appear before the court in criminal matters.
Form of summons
Section 61 of the Code provides the form of summons. Every summon shall:
Be in writing;
A duplicate copy should be made;
It should be signed by the presiding officer of such court or any other officer as may be prescribed by the High Court;
Have the seal of the court.
Form 1, of Schedule 2 of the Code provides the format of the summons and it contains the name of the accused, address of the accused, date of issuing the summons, the signature of the Magistrate and seal of the Court.
Summons how served
Section 62 of the Code provides the procedure of servicIng the summons. Clause (1) of the Section says that every summons shall be served by a police officer or any officer of the court, or other public servants, subject to the rules of the State Government in question.
Clause (2) of the Section states that the copy of summons should be served personally to the person summoned, if possible.
Clause (3) of the Section states that every person on whom a summons is served shall sign on the back of the duplicate copy if it is required by the serving officer.
Services of summons on corporate bodies and societies
As per Section 63 of the Code, summons on corporate bodies and societies may be effected by serving it to the secretary, local manager or any other principal officer of the corporation. The summons can be served through a letter or post addressed to the chief officer of the corporation in India. In such cases, the service of the summons is completed when the letters arrive in the ordinary course of the post.
In this section ‘corporation’ does not include a society registered under the Societies Registration Act, 1860, rather it only includes an incorporated company or other corporate bodies.
Service of summons when person serving cannot be found
Section 64 of the Code states that in cases where the person cannot be found even after due diligence, a copy of the summons can be served to an adult male member of his family residing with him. The Section also provides that if the serving officer feels necessary, he can get the duplicate copies signed.
Service on Government servant
Section 66 provides that in cases where the person summoned is a government servant, the court shall send a duplicate of the summons to the head of the office in which such person is employed. Thereafter, the head officer shall serve it upon the person summoned following the conditions laid down in Section 62 of the Code and shall return it to the Court under his signature. The signature of the accused serves as evidence.
Proof of service in such cases when serving officer is not present
The court requires proof of service of summons. Section 68 provides that in cases where the summons was issued outside the local jurisdiction of the Court, and in cases where the person who served the summons is not available at the hearing, in such cases an affidavit stating that the summons was made is to be presented before the Court. The affidavit and a duplicate of the summons are admissible evidence and the statements made in the affidavit are deemed to be true unless the contrary is proved.
In cases where the summons are not complied with or if the offences are extremely serious, the court can issue a warrant. A warrant is an order given by the court to a third party, usually a police officer to procure a person before the Court. A warrant can be bailable as well non-bailable.
Form and contents of a warrant of arrest
Section 70 of the Code provides the form of warrant of arrest and duration. Every warrant of arrest shall:
Be in writing;
Be signed by the presiding officer;
Shall have the seal of the court.
The warrant shall remain in force until it is canceled by the Court that executed it.
Form 2 of Schedule 2 of the Code provides the format of issuing a warrant, it should contain the name and designation of the person or persons who execute the warrant, name, and address of the accused, date of issuing the warrant, the signature of the Magistrate and the seal of the Court.
Modes of execution of a warrant of arrest
Under Section 72 of the Code, a warrant of arrest is usually executed by a police officer. However, if immediate action is required and there are no police officers available at that point, the Court may direct any other person to execute the warrant.
This Section also provides that when a warrant is directed to more than one officer or person, then the warrant can be executed by anyone of them or all of them.
The procedure of arrest of a person with a warrant
The procedure for arrest of a person with a warrant is dealt with in Section 80 of the Code. When a warrant is issued outside the local jurisdiction of the court, the person shall be taken before the Magistrate or District Superintendent or Commissioner of original jurisdiction. However, if the place of arrest is within 30 km of the court which issued the warrant, then the person arrested would be taken to the court issuing the warrant itself. For example, the Metropolitan Magistrate of Delhi issues an arrest warrant of a person in Sonipat. However, the accused resides at the border of Delhi- Sonipat and his residence is within 30 kms from the Metropolitan Magistrate, then, in this case, the accused will be taken before the Metropolitan Magistrate of Delhi and not the Magistrate of Sonipat.
The procedure by Magistrate after the arrest
The person arrested has the right to appear before a Magistrate within 24 hours of arrest. Section 81 of the Code enumerates that if the offence is bailable and the person arrested is willing to give bail as required by the Magistrate, District Superintendent or Commissioner or if there has been a direction to endorse security on the warrant and the person arrested is willing to give such security, District Superintendent or Commissioner shall take such security or bail and forward a bond to the Court.
If the offence is non-bailable, the Chief Judicial Magistrate or the Sessions Judge may grant bail to the person arrested based on the information and documents procured before the Court.
Proclamation and attachment of the property
Proclamation means giving a final chance to the person to appear before the Court himself and is made when a person avoids warrants or absconds. A person is served with a proclamation notice at his residence or last known address giving him 30 days to appear before the Court and if he fails to do so, he has declared a proclaimed offender. Such a person may be arrested by any police officer in the country and his property may also be attached and sold.
Proclamation for person absconding
Clause (1) of Section 82 states that when a person absconds or is intentionally hiding so that a warrant cannot be executed, the Court may issue a written proclamation against such person, requiring them to appear at a specified time and place within 30 days of issue of such proclamation.
Clause (2) of the Section provides the procedure of publishing the proclamation:
It must be publically read in a place visible in the town or village where the person ordinarily resides;
It shall be attached to some part of the house in which the person ordinarily resides;
A copy of the proclamation is attached in the court house;
The proclamation may also be published in a daily newspaper if the Court thinks the same is necessary.
A statement in writing given by the Court is considered as admissible evidence that the proclamation was made. The statement contains that the requirement of this Section have been complied with and the date on which the proclamation was made.
Attachment of property of person absconding
Under Section 83, if the Court believes that the person against whom proclamation is issued, is going to dispose of his property or is going to remove the property from the local jurisdiction of the Court, the Court may order attachment of such property along with the issue of the proclamation.
If the property ordered to be attached is a movable property, the attachment under this section shall be made:
by seizure;
by appointing a receiver;
by an order in writing prohibiting the delivery of such property to the proclaimed person;
by any or all of the above orders.
If the property in question is immovable and where the land paying revenue is made to the State Government, the property is attached through the collector of the district and in all other cases, the attachment shall be made:
By taking possession;
By appointing a receiver;
By prohibiting payment of rent to the proclaimed person;
By any or all of the above orders.
If the property attached is perishable in nature of includes live-stock, the Court can order immediate sale.
Claims and objections to attachment
According to Section 84 of the Code, if an objection is made by any person except the person proclaimed within 6 months of attachment of the property, claiming that he has an interest in the property attached, the Court is required to inquire about the claim or objection made.
The suit for such objection or claim can be made in the Court which issued the attachment or in the Court which made the attachment, if different.
Any person whose claim or objection is disallowed can appeal within one year from the date of such order.
Release, sale, and restoration of attached property
According to Section 85 of the Code, if the proclaimed person appears before the Court before the expiration of 30 days, the property attached is to be released.
If the proclaimed person does not appear, the attached property is at the disposal of the State Government. However, the Government cannot sell the property before the expiration of 6 months from the date of attachment unless the property is perishable and it is in the best interest of the owner to sell the property.
If within two years, the person who was proclaimed voluntarily comes before the court and proves that he did not abscond, rather he did not have any notice of proclamation made, the attached property is to be released and if it has already been sold, then the sale proceeds be delivered to him.
Conclusion
The Criminal Procedure Code gives due importance to the presence of accused at trial and thus an entire chapter of the Code deals with attendance of the accused. The court can issue summons asking a person to appear before the Court in the prescribed form. The summons is made in writing and a duplicate copy is to be signed and sealed by the Court. The summons can be served by any public officer of the Court or other public servants as may be prescribed by the State Government.
In cases where the summons are not complied with or serious offences, the court issues a warrant in the prescribed form. Just like summons, the warrant is also made in writing, sealed and signed by the Court.
If the accused tries to absconds and avoids warrants, the Court can issue a proclamation, giving a person a final chance to appear before the Court. If the Court seems necessary it can also attach the property of the person proclaimed.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Disha Mohanty of National Law University and Judicial Academy, Assam. The article goes on to provide a detailed study of the kinds of void agreements and a brief idea of English law and its connection with Indian principles.
Introduction
Contracts and agreements are by far the most widely used legal devices and to some extent also govern most of our social relationships. However, those agreements which are legally enforceable can be termed as contracts whilst those which are unenforceable by law are called void agreements. These agreements are generally those which are concerned with immoral elements or go against the public policies of the state. Section 2(g) of the Indian Contract Act, 1872 defines void agreements. Further, Sections 24 to 30 and 56 of the Act specify the particular kinds of agreements/contracts which are void. Since a void agreement is meaningless in the eyes of law, it does not cause any change in the position or relationship of the contracts.
Agreements in which a part of consideration or object is unlawful
This is mentioned in Section 24 of the Act. The basic essence of this statement is that if the consideration, as a whole or in part is unlawful or if the end product of the agreement is illegal then the agreement is declared void. The contract would, however, be considered valid after deleting the unlawful clauses. For example, if there is an agreement between A and B for the exchange of drugs and medicinal herbs for ₹5000, then the agreement stands void even though the consideration of the agreement is legal. This is because the object of the agreement is illegal. But in this case, if we remove the drugs from the object then the agreement would be termed valid.
Moreover, if transaction which arises out of an unlawful act is such that if they are separated from the illegal part, then they would count as a valid agreement, then those transactions hold value in the eyes of law irrespective of the illegality of the agreement [1].
Agreements without consideration
Section 2(d) of the Indian Contract Act, 1872, states, consideration may be furnished by ‘the promisee or any other person’ as long as it is ‘at the desire of the promisor’. In the case of Currie v. Misa, the court defined valuable consideration as “in the sense of the law may consist either in some right, interest, forbearance, detriment, loss or responsibility given, suffered or undertaken by the other”. Section 25 of the Act mentions that all agreements devoid of consideration would be declared void unless they fall into the following categories:
If the agreement is made out of natural love and affection
This is the first exception mentioned under Section 25(1). In Rajlukhy Dabee v Bhootnath Mookerjee [2], the Hon’ble court had held that “A written and registered agreement which is based on natural love and affection between kins is enforceable without consideration”. Examples of this involve a daughter taking care of her father [3], a brother giving away property to his siblings, etc. Essentials of an agreement like this involve [4]:
The agreement made out of natural love and affection;
The agreement is registered;
The agreement is in writing;
Parties are in close relation to one another.
The person has already done something voluntarily for the promisor
This is mentioned in Section 25(2) of the Act. Under this, the promisor performs the act in order to compensate the promisee either wholly or partially for some previously performed voluntary act of the promisee. For example, if there’s a contract between A and B where A’s expenses are taken care of by B for taking care of his son, then, it must be noted that the service provided wasn’t voluntary as B was legally bound to support his infant son. As per this exception, the promise must be to compensate a person who has himself done something for the promisor and not to a person who has done nothing for the promisor [5].
Restraint of marriage
Section 26 of the Act mentions that all agreements in restraint, either partial or full, of a marriage except that with a minor, would be void. For example, if Ria’s father provides Amit with some incentives only to prevent him from marrying his daughter, then such an agreement would stand void in the eyes of the law, provided the parties involved are not minors. In the case of Shrawan Kumar v. Nirmala, the plaintiff held that the defendant had promised to marry him and therefore her present marriage should be injuncted by the court. This petition was dismissed by the Allahabad High Court on the grounds of restraint of marriage. The philosophy behind this law is the fact that marriage is a sacred social institution and nothing should be allowed to interfere with it or restrict it, until and unless it involves minors. Therefore, an agreement in restraint of marriage of adults is void whereas the same in the case of the minor would not be held void. But this clause doesn’t apply in case of remarriage. In the case of remarriage, any penalty imposed upon the widow wouldn’t be counted as a restraint. This was held in the case of Rao Rani v. Gulab Rani, where it was held that the widow will have to forego her property rights.
This is dealt with under Section 27 of the Act. The freedom to practice any form of trade and occupation is a fundamental right guaranteed by the Constitution of India under Article 19(1). Hence, any agreement in restraint of trade and occupation would be deemed as void. The restraint can be both partial and complete. This was brought out in the case of Madhub Chander v. Raj Coomar, where the defendant had proposed to pay the plaintiff a certain amount of money if the latter agreed to shut down his shop in a particular locality. However, upon shutting down his shop, the plaintiff was denied payment by the defendant. The court here, ruled that the defendant did not own any money to the plaintiff since the agreement was void (as it was in restraint of trade), even though it imposed partial restraint i.e. extended to only a particular locality.
However, there are two exceptions to this rule:
The foundation for delegitimizing an agreement in restraint of trade lies the historical backdrop of contention between free markets and the opportunity of agreements. Guaranteeing freedom to the agreement would mean legitimizing agreements in limitation of trade, which would bring about parties consenting to check competition. Under the common law, the present position is taken from the case of Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd. In the said case, Thorsten Nordenfelt was a producer of firearms in Sweden and England. Thorsten sold his business to an organization, which at that point moved the business to Maxim Nordenfelt. Then, Thorsten went into a concurrence with Maxim that he would not take part in the assembling of weapons for a period of 25 years, other than what he produces for the benefit of the organization. Afterward, Thorsten broke his promise asserting that the understanding was not enforceable as it was in restriction of trade. The decision of the court was in support of Thorsten. In common law, a reasonability test is pursued. An agreement in restriction of trade is legitimate, if:
There is a substantial interest that the party forcing the restriction is attempting to secure.
The restriction is no more than what is important to secure this interest.
Restriction isn’t in opposition to public interest.
General principle in India and England similar?
The general principles in India and England regarding void agreements is more or less the same which is basically that all restraints on trade, whether partial or whole, are void. The only point of difference arises in the fact that in England, the decision on validity of restriction is taken on the basis of reasonableness while in India restrictions would be valid only if they fall within the category of the already stated statutory or judicial exceptions. Therefore, there aren’t any wide dissimilarities between the two laws. The English law tends to be more flexible as the clause of “reasonableness” helps to constantly change its ambit. As LORD WILBERFORCE remarked in Esso Petroleum Co Ltd v. Harper’s Garage (Stourport) Ltd “the classification (of agreements in restraint of trade) must remain fluid and the categories can never be closed”.
Exceptions to Section 27
Section 27 is basically based on public policy and applies to various cases in varying degrees. In the case of Brahmaputra tea co ltd v. Scarth, it was held by the court that any restraint through which a person binds himself or herself won’t be void and would be covered under the exceptions to Section 27. These statutory and judicial exceptions are discussed below.
Statutory exceptions
Sale of Goodwill
According to this, a person who buys the business goodwill of another person is thereby privileged to impose certain restrictions on the business activities of the latter. The restrictions include preventing the seller from carrying out similar business within local limits only. This is done to protect the rights of the purchaser [6]. However, the restraint should be reasonable according to the nature of the business under consideration. In the case of Chandra v. Parsullah [7], the plaintiff and defendant both had the business of running buses between Pune and Mahabaleswar. To avoid competition, the plaintiff bought the defendant’s business along with its goodwill and made a contract whereby the defendant would not be allowed to carry on business in the same locality. However, there was a breach of contract on the part of the defendant. When brought to the court, the court ruled in favor of the plaintiff since the agreement was valid under Section 27.
There are three provisions of the partnership act that provide for restriction of business. They are [8]:
Section 11, which states that none of the partners would carry on any business till the continuity of the business.
Section 36, which provides the remaining partners to prevent the outgoing partner from opening any business similar to theirs’ in the same locality subject to certain restrictions.
Section 54, which prevents all the partners from engaging in any business of similar kind after dissolution of the firm/business.
Firm Daulat Ram vs. Firm Dharm Chand, where two ice factory owners constituting a partnership agreed that only one factory will be worked at a time and its profits distributed among them. The restraint was held to be justified [9].
Under judicial interpretation
Trade combinations
Trade Combination basically refers to the agreements that a set of homogenous traders come up with to keep a check on the market. For example, if there is a group of sugar sellers in a locality, then they might come up with specific agreements regarding fixed prices, quality of goods, controlling dealers, etc. in the name of market regulation of the locality and to avoid unhealthy competition. Such agreements have been declared void by the courts since there is a deprivation of trade liberty.
In the case of Kores Mfg Co Ltd v. Kulok Mfg Ltd, the two sugar mill employees had come to an agreement wherein either of them wouldn’t employ a person who had been working in the other person’s factory in the past 5 years, to protect trade secrets and other confidential information. The court had held this agreement to be void since the ban was applicable to all employees irrespective of their skills and positions held.
The Allahabad High Court, in the case of SB Fraser & Co. v. Bombay Ice Manufacturing Co. Ltd., observed the following, “The rules of an association of traders and weigh men provided that members shall not deal with outsiders, the penalty for breach being fine and expulsion. The legality of the association was attacked on the ground that its object and methods were unlawful as it aimed at the creation of a monopoly by shutting out all competition and was a defiance of the spirit of Section 23 and 27”. [10]
Thus, any agreement placing restrictions upon a trader regarding his choice of mode of business shall be held void.
Solus or exclusively dealing agreements
This refers to trading agreements whereby the manufacturer strikes a deal with the consumer that he/she would purchase items only from him for a fixed period of time. However, if the manufacturer produces any surplus quantity, he/she is allowed to sell it to anybody. “As long as the negative stipulation is nothing but an ordinary incident of or ancillary to the positive covenant, there is hardly anything obnoxious to Section 27. But the court may not countenance the agreement particularly where the buyers intend to corner or monopolise the commodity so that he may resell at his own price or where he binds the seller for an unreasonable period of time.”[11] This was brought out in Sheikh Kallu vs Ramsaran Bhagat.
The doctrine does not apply to ordinary commercial contracts for the regulation and promotion of trade during the existence of the contract provided that any prevention of work outside the contract viewed as a whole is directed towards absorption of the party’s services and not their sterilisation. Sole agencies are a normal and necessary incident of commerce, and those who desire the benefit of sole agency must themselves the opportunity of other agencies.
Where a contract is reasonable and fair at the beginning, but circumstances have arisen which show that it is being enforced by one party in a manner which is prejudicial to the interest of others, the courts will hold the agreement to be unenforceable. Though not void or invalid. This opinion has been expressed by the court of appeal in Shell UK Ltd v Lostock Garages Ltd.
Restraint on employees
Restraint during employment: While an employee is engaged in a business, he/she is not allowed to work for any other business which is in direct competition with his employer. This is done for the protection of trade secrets, customer details, plans, etc. This was established in Charlesworth v. Macdonald.
Restraint after termination of employment: An agreement to restrain a servant from competing with his employer after the termination of employment may not be allowed by the courts. This was pronounced in Brahmaputra Tea Co v E. Scarth, where an attempt was made to restrain a servant from competing for five years after the period of service.
Conclusion
After thoroughly analysing the major sections related to void agreements, it can easily be deduced that the agreements which have been declared void and the exceptions to them, are done only to protect the rights and interests of the public at large. The restrictions assume paramount importance as agreements and contracts are the most commonly used legal tools and directly or indirectly, affect most of our social relations.
References
BOI Finance Ltd. v Custodian (1997) 10 SCC 488
Rajkukhy Dabee v Bhootnath Mookerjee (1900) 4 Cal WN 488.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Shruti Singh, 2nd year Law student from Hidayatullah National Law University, Raipur. The Article analyses various case laws under Article 12 and tries to draw a conclusion as to the interpretation of this article.
Introduction to Fundamental Rights
Fundamental Rights are the basic human rights guaranteed to every citizen in the country irrespective of religion, race, region, caste or gender. Fundamental Rights are mentioned in Part III of the Constitution of India. It is also known as the Magna Carta of the Constitution. Magna Carta (1215)- It is one of the first documents on human rights that has ever existed in the world. Magna Carta Libertatum, commonly called Magna Carta is a charter of rights agreed by King John of England for its people to protect them from unauthorized and unwarranted action of the state.
These rights are so essential in nature that most countries of the world have recognized and accepted them. The name fundamental is ascribed to them as these rights are so basic that it cannot be taken away from any human being. These rights help in the social, political and economic development of citizens of the country. Example: Article 19(1)(g) of the constitution provides the right to practice any profession, occupation, trade or business to every citizen without unreasonable restrictions. Imagine a situation where this freedom was not existing, there would be an environment of chaos as the state might abuse their power and put unreasonable restrictions on it. The purpose behind having fundamental rights is the need to have a just society that is based on reason and law. Rule by one man may lead to resentment on the minds of the citizens of the country. In the case where this man decides to abuse his authority, the citizens will have no power in the absence of fundamental rights. This is the rationale behind the theory of separation of powers, given by Montesquieu and the same has been recognized in our constitution in Article 50. Therefore, it is important to have a set of rights that protects individuals from abusive power. For valid enforcement of these rights, the constitution hasArticle 32 which is also known as the heart and soul of the constitution. If the fundamental rights are violated, every citizen has the right to approach the Supreme Court. And the Supreme Court is bound by it as Article 32 in itself is a fundamental right.
The fact that fundamental rights are something that can be enforced only against a state and not against any private individuals, make it important to determine which all bodies are included in it. Therefore, it becomes essential to ascertain which all bodies fall under the purview of state under Article 12 to determine liability.
Meaning and Concept of State
A state for a layman is a nation or territory which is a politically organized community under one government. The word “State” comes from the Latin word ‘status’ meaning “condition of a country”. But the state has a much larger meaning in the constitution, it includes the Legislature and Executive of nation and states, local or other authorities and all instrumentalities of state in the territory of India. A state ensures that individuals in the country are protected from the arbitrary power of the state, as there are enough ordinary laws that protect an individual against private actions.
Article 12 has been defined in the Indian Constitution as:
In this part, unless the context otherwise requires, ‘the State’ includes:
The Government and the Parliament of India;
The Government and the Legislature of each of States;
Local Authorities; or
Other Authorities;
Within the territory of India or under the control of the Government of India.
Government and Parliament of Union
Parliament- Parliament is the supreme law-making body of the government of India. India has a bicameral Legislature. It is composed of the President, the Rajya Sabha (Council of states or Upper House) and the Lok Sabha (House of Commons or lower house).
Executive- The role of the executive is to implement the laws and policies made by the Legislature in the country. It also holds the responsibility for the governance of the state. The executive executes and enforces the laws.
Legislature- The legislature enacts laws for the people of the nation. It depicts the will of the state which is given legal authority and force. After a lot of deliberations and discussions, the laws are made to satisfy the needs of the people. It is an assembly of people who are directly or indirectly elected by the people.
Government- An organized group of people governing the state forms the government. In common usage, often the party which forms the majority in the Lower House is denoted by the term government. But governments include all its organs i.e., Legislature, Executive and Judiciary. Generally, governments have a constitution from which they derive their power and function accordingly.
Government and Legislature of State
The State Legislature includes legislative assemblies in the states and union territories. It consists of State Legislative Assemblies (Vidhan Sabha) and State Councils (Vidhan Parishad). Most states in India follow the unicameral legislature, as there are only legislative assemblies. Only 7 states have their state councils, which is a permanent body.
Local Authorities
The term “Local Authorities” includes authorities like Municipalities, Panchayats, District Boards, Improvement Trusts, Port Trusts, Mining Settlement Boards, etc. In different judicial decisions, different authorities have been declared as local authorities and included in that list. For example in Rashid Ahmed vs. Municipal Board, Kairanais one of the early cases in which municipality was held to be a local authority under Article 12. Even all Panchayats, Municipalities and cooperative societies mentioned in Part IX, IX- A and IX- B respectively will also be included in this category.
Mohammed Yamin Vs. Town Area Committee (1952)
The term local authority has not been defined in any act or the constitution. In Mohammed Yamin vs. Town Area Committee the term “local authorities” was defined. It was also held by the Supreme Court that ‘Municipality’ is a state under Article 12.
Union of India Vs. RC Jain (1981)
InUnion of India vs. RC Jain, certain tests were laid down to determine which all authorities can fall under the head of “local authorities”:
It has a separate legal existence;
It functions in a defined area;
Has the power to raise funds on its own;
It enjoys autonomy(self-rule); and
It is entrusted by statute with functions which are usually entrusted to municipalities.
Other Authorities
Article 12 encompasses all other authorities which do not fall in the first three categories. The term Other authorities is neither defined in the Constitution nor in the General Clauses Act, 1897 (definition clause). This term has been so far interpreted widely through various judgments and now includes many authorities in it. Local authorities mean all the local self-government who has the power to make laws and is considered as an instrumentality of the state. It is explained through various cases states below. There is no strict rule to decide which all bodies are included in this category. Still, some cases have laid down tests or guidelines in their judgments.
University of Madras Vs. Shanta Bai (1954)
Restrictive Interpretation-InUniversity of Madras vs. Shanta Bai, the Madras Court formulated the principle of “ejusdem generis” which meant that all things of like nature are included in that thing and this also means that bodies exercising governmental or sovereign function would only be covered under other authorities. In this case, an appeal was made by the University of Madras and the point in question was whether the directions issued by the university to the affiliated colleges of not admitting girl students without obtaining the permission of the Syndicate were valid. The situation of the case was, a new college named as Mahatma Gandhi Memorial College was established in the town of Udipi in 1929. While granting affiliation, permission was granted by the syndicate for the admission of only 10 girl students in the junior intermediate class as a transitory measure for that year and directed that in future no women students will be admitted without the special sanction of the syndicate. The appellant Shantha Bai applied for admission in the college, but her application was rejected by the College on the reason that girl students would not be admitted to the college. After this, she filed a petition under Article 32, a writ of mandamus against the Principal of the College to admit her to the Intermediate course. The High Court gave the decision in her favor and held that the directions given by the university were in contravention to her fundamental rights. It was discriminatory on the ground of sex. Against the decision of the High Court, an appeal was made by the University in the Supreme Court. The Supreme Court held that the University of Madras is not a state within the meaning of state given inArticle 12of the Constitution and that its regulations are not in violation of enacted inArticle 15(1) as it was not discriminatory on the ground of sex.
Click Above
Srimati Ujjam Bai Vs. State of UP (1962)
Liberal Interpretation- In Ujjam Bai vs. State of UP, the Court rejected the principle given in the University of Madras’s case which is ejusdem generis. The Supreme Court rejected the restrictive interpretation of “other authorities” and held ejusdem generis to be inapplicable. The court observed that to apply the ejusdem generis rule, there should be a different category to the heads running through the bodies already specifies. In Article 12, the bodies have no common genus.
Rajasthan Electricity Board Vs. Mohan Lal (1967)
InRajasthan Electricity Board vs. Mohan Lal, the Supreme Court held that the term “other authorities” under Article 12 should include all authorities created by the Constitution and other statutes which are empowered by law. The statutory authority does not need to be engaged in performing governmental or sovereign functions, the court also observed that the Rajasthan Electricity Board, in the instant case had the power to give directions, the disobedience of which was punishable as an offence. This case overruled the judgment given in the University of Madras vs. Shanta Bai which excludes ‘Universities’ from the definition of state.
Sukhdev Singh Vs. Bhagatram (1975)
The primary question lying before the court, in this case, was whether ONGC (Oil and Natural Gas Corporation), IFC (International Finance Corporation) and LIC (Life Insurance Corporation of India) created by an act came under the purview of “state” under Article 12. The court held all the three to be state following the decision given in Rajasthan Electricity Board vs Mohan Lal. These three bodies were held to be state as they were created by a statute and had the statutory power to make binding rules and regulations, and were subject to pervasive governmental control. Statutory corporations are agencies or instrumentalities of the state for carrying on trade or business which on the other hand would have been carried out by the state departments. Hence, it must be seen whether a body is acting as an agency or instrumentality of the state.
Sabhajit Tiwari Vs Union of India (1975)
Thiscasewas decided on the same day on which Sukhdev Singh’s case was decided. In fact, the decision was given by the same bench. The question raised, in this case, was whether the Council of Industrial and Scientific Research which was only registered in Societies Registration Act, 1898 would come within the definition of “State” under Article 12. It was held that the said body was not a ‘state’ as it was registered under a statute and not performing essential state functions and was not functioning under the pervasive control of the government. In Sukhdev Singh’s case, the court held that the corporation was a state as they were created by a statute and performing important state functions and had pervasive control of the government.
U.P State Warehousing Corporation Vs. Vijay Narayan (1980)
In the following case, the respondent was an employee of a statutory body. There were charges of theft and misappropriation levelled against him. He was dismissed from service without giving the chance of being heard. He filed a writ of certiorari under Article 226 in the High Court. This writ was rejected by the Single Bench. The Divisional Bench of the High Court allowed the writ on the ground that the Corporation which was required to act in a quasi-judicial manner failed to give a chance of being heard to the dismissed employee and that therefore the order of dismissal was bad. It was held by the Supreme Court that Uttar Pradesh State Warehousing Corporation is a state because it was well established under an Act. It was held to be an instrumentality of the state as its control and ownership were with the state.
Ramana Dayaram Shetty Vs. The International Airport Authority of India (1979)
International Airport Authority is a corporate body constituted under the International Airport Authority Act, 43 of 1971.
It issued a notice on 3rd January 1977 for inviting Registered IInd class Hotelier having at least 5 years of experience for putting up and running an IInd class Restaurant and two bars at Bombay Airport for a period of 3 years.
There were Six tenders received in response to a notice by the airport authority.
Out of the six tenders received, the tender of only the 4th respondent was entertained as it was complete and offered the highest amount of license fee. All other tenders were rejected because they were incomplete.
The first respondent got prepared everything for the purpose of running the restraint and snack bars.
But, since the 4th respondent did not satisfy the description of the second class hotelier having 5 years experience as stated in the tender notice, the first respondent in addition to this called upon the evidence by the 4th respondent proving that they are not the second class hoteliers.
Later on a stranger, Ramana Dayaram Shetty who didn’t submit any tender filed a Writ Petition in the High Court of Bombay by challenging their decision of accepting the tender of the 4th respondents. But, unfortunately his petition was also rejected and then he made an appeal to the division bench of the High Court against the order rejecting the writ petition but that too was rejected.
Some rules and tests were given by the Supreme Court, in this case, to determine whether a body is a state under Article 12 or not:
The financial assistance given by the State and magnitude of such that;
Any other kind of assistance whether of the usual kind or extraordinary;
Control of management and policies of the corporation by the State (Nature and Extent of Control);
The State conferred or State protected monopoly status;
The functions carried out by the corporation, whether public functions closely related to governmental functions, would ascertain whether a corporation is an instrumentality or agency of the State or not and;
If one of the departments of the body is transferred to the government.
The Supreme Court held that the International Airport Authorities were undoubtedly an instrumentality or agency of the Central Government and falls within the definition of ‘State’ under Article 12. The Court went on to conclude that just as Government acting through its officers, is subject to constitutional and public law limitations, similarly Government acting through an agency is subject to the same level of restrictions. Therefore, the International Airport Authority of India is subject to limitations or restrictions in the Constitution and other public laws.
Som Prakash Rekhi Vs. Union of India (1981)
InSom Prakash Rekhi vs. Union of India, the question was whether a statutory company Indian Petroleum Corporation is a state under Article 12 or not. In this case, the pension of the employees were arbitrarily reduced which was later acquired by the Central Government. It was observed that merely because a legal corporation has a legal personality of its own, it does not mean that the corporation is not an agent or instrumentality of the state if it is subject to governmental control for all important matters. A public authority is a body that performs public functions and which performs duties and carries out its transactions for the benefit of the state. Therefore the said body was held to be ‘state’.
Ajay Hasia Vs. Khalid Mujib Sehravardi & Ors. (1981)
InAjay Hasia Vs. Khalid Mujib, a writ petition was filed under Article 32 challenging the admission made to Regional Engineering Colleges, Srinagar for the academic year 1979-80. The College was established, administered and managed by a Society which was registered under the Jammu and Kashmir Registration of Societies Act, 1898. The Board of Governors, under the Act, laid down the procedure for the admission of students to various courses in the college by a Resolution. The admission procedure to the said colleges requires a student to give a written test of 100 marks and an oral examination which was of 50 marks. The petitioners in the writ petitions applied for admission to the B.E. course for 1st semester in one or the other branch of engineering and they appeared in the written test and after that had to appear for the oral examinations. In the case of petitioners, the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average. When the admissions to the seats were announced, the petitioners discovered that even though they secured very decent marks in the written examination, but on the other hand were not able to get into college because the marks awarded to them in the oral examination were very low as compared to an average marks and candidates who had much fewer marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination. They managed to secure admission in preference to the petitioners. The first thing to ascertain was whether a college that was established by a registered society is a state under Article 12 or not. The Society was held to be state as it was an agent of the state. A Constitution Bench of this Court, while approving the tests laid down in the case observed that these tests are not final or conclusive in nature. It is also to be noted that it cannot include every autonomous body which has some connection with the government.
Pradeep Kumar Biswas Vs. the Indian Institute of Chemical Biology & Ors. (2002)
Thiscaseacts as a precedent for all further cases that raises a question on the interpretation of ‘other authorities’ under Article 12. It clears the point to a large extent. This case overruled Ajay Hasia’s case and held that there is no strict rule that registered societies having any connection with the government, in every case to be considered as a state. The case has to be judged by the facts and circumstances of the case. In Sabhajit Tiwari’s case, CSIR was held not to a state. The immediate cause for such reconsideration is a writ application filed by the petitioners in the Calcutta High Court challenging the termination of their services by the respondent No.1 which is a unit of CSIR.
The questions involved in this case were:
(i) whether CSIR was an instrumentality of state within the meaning of Article 12, and
(ii) if the answer to the above question is yes, whether the Supreme Court should reverse the decision to the contrary in the Sabhajit Tewary case, which had stood for a long period now.
It was held that CSIR is an instrumentality of the state and will be amenable to writ jurisdiction under Article 12. The decision given in Sabhajit Tiwari’s case was reversed and held that the Supreme Court erred while pronouncing its judgment in the case. Even if the government gives such large finances and the control is deep, it is considered as other authority under Article 12.
Dr. Janet Jeyapaul Vs. SRM University (2015)
In thiscase, the question was whether SRM university which is a Deemed University comes under the meaning of “state”. SRM University, which is engaged in imparting higher education in various subjects and which by notification was considered as a Deemed University under the UGC (University Grants Commission) Act, 1956. The petitioner (an employee of the SRM University), appealed for writ jurisdiction in the High Court of Madras under Article 226 challenging the notice issued by the SRM University terminating her services. The High Court held that SRM University was not a state and therefore no writ petition lies. But the Supreme Court, held it to be a state as the University was engaged in imparting education which was a public function. SRM University is a deemed University under the UGC Act, all the provisions of the UGC Act are made applicable to the SRM University which, inter alia, provides for effective discharge of the public function namely education for the benefit of the public at large.
Whether BCCI a state?
The point of the matter is whether BCCI is a state or not has come time and again in front of the court. The Court through its different cases has adjudged that BCCi is not a state.
Zee Telefilms Vs. Union of India (2005)
In Zee Telefilms Vs. Union of India, the issue was whether Board is a state under Article 12. It was held that taking Ajay Hasia and Pradeep’s case into consideration and according to the rules provided in these cases to determine whether a body is a state or not, BCCI is not a state.
BCCI vs Cricket Association of Bihar & Ors. (2016)
It was further ascertained in this case, that BCCI is not a state. This Court held that even the Board of Control for Cricket in India was not “State” within the meaning of Article 12, it was amenable to the writ jurisdiction of the Court underArticle 226 of the Constitution of India as it was discharging important public functions. Still, the aggrieved party cannot come under Article 32.
Is Judiciary a state?
Naresh Sridhar Mirajkar vs. State of Maharashtra (1966)
In Naresh Sridhar Mirajkar vs State of Maharashtra, this question first came to the Supreme Court. The Supreme Court has not expressed any determination on this subject. It only observed that if the court decides that the court is a state, then writ can not be issued under Article 32 (Constitutional Remedies) against its orders or judgments as such orders or judgments violate the fundamental rights of citizens.
A.R Antulay Vs. R.S Nayak (1988)
Later, in this case, the constitutional bench with a majority in 7 Judges of the Supreme Court held that the court could not give such orders and directions which violates the fundamental rights of the citizens, i.e, the court may also be included, in the state under Article 12 but the condition will remain reversed unless the decision given in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 case is reversed.
By far from different cases it has been deduced that the judiciary is considered as a state while it is performing legislative and executive functions e.g., Appointment of Judges of Supreme and High Court and is not a state while performing its judicial functions.
Territory of India
The territory of India includes:
The territories of all the states;
The Union Territories specified in the 1st Schedule of the Constitution;
Other acquired territory by the state.
It has been held that the territory of India for the purpose of Article 12 means the territory of India as defined in Article 1(3) of the Constitution.
Control of the Government of India
The control under Article 12 that the government exercises over the body is not necessarily to be absolute. It merely implies that there should be some amount of control of the government. It is not always true that if a body is a ‘statutory body’. Both statutory, as well as other bodies, can be considered as a state if they get financial resources from the government to an extent and it exercises deep and pervasive control over it.
Conclusion
The interpretation of Article 12 becomes very important as fundamental rights can be enforced only against the state. Who is a ‘state’ is determined by the provisions of Article 12. The judiciary tries to include more and more bodies under the purview of the state so that more people can enforce their fundamental rights against it. The interpretation of “other authorities” has seen a drastic change. The scope of Article 12 is increasing day by day to provide justice to people whose fundamental rights are violated. Its only purpose is to provide remedy to people who come under this article.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
Apart from the festive environment around, it was hard for me to understand why the first day of the year was so significant. Why was the first day of the year celebrated?
If I asked the elders, I rarely got a satisfactory answer.
The only answer which I probably got was from my mother and it was that if you have a great first day you will have a good year too.
This led me to develop a superstition that your rest of the year is most likely to be like the first day of the year.
So we tried hard to make it perfect.
Do not lie.
Study for the designated hours.
Eat good food (sometimes we went for a picnic).
Wear new clothes (this we did on the Bengali New year only).
Begin new and important work on the new year (more of this when I grew up).
So there was a lot of intention to start the year powerfully.
Just like the morning is an important time that sets the mood and tone for the day, so is the first day of the year.
And the first week I would say. You can build up momentum during this time.
Once you have the momentum in your favor, a lot of hard things become a lot easier.
That is the magic of a new beginning. We all deserve a fresh start.
Sometimes, the ending of a year, and a decade lets you mentally wipe the slate keen and look forward with a fresh perspective. That is the gift of a new year.
And every new day for that matter.
Fresh starts are very valuable.
Why is new year important for you? What does it signify for you? Why do you celebrate New Year?
What is the best way to start the new year as per you? Don’t forget to share your thoughts with me.
If you want to start your new year powerfully, you can do so by investing in learning and development. Here are some crazy good courses you can enroll in, in order to build up the momentum of career growth in 2020:
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by M.S. Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) from School of law, SASTRA. This is an exhaustive article which deals with the various modes of execution under the Code of Civil Procedure.
Introduction
The rules regarding execution can be applied to decrees. The relief is sought out after executing the decrees. The execution of decrees is an essential step in all the proceedings. The process should be carried out carefully so that proper relief can be provided for the affected person and the process must make the proceedings effective and fast. Order XXI of the Code of Civil Procedure deals with the execution of decrees and orders.
Choice of the mode of execution
There are various modes of execution that is acceptable according to Section 51 of the Code of Criminal Procedure. According to this section, the various modes of execution of a decree are:
Delivery of any property which is specifically mentioned in the decree;
Attachment and sale of property;
Sale without an attachment of property;
The arrest of the judgment debtor;
Detention of the judgment debtor;
Appointment of a receiver.
Section 47 of the Code of Civil Procedure provides certain questions to be determined by the Court before executing the decree. The Court has to determine all questions arising between the parties to the suit, like:
Execution of decree;
The satisfaction of decree;
Discharge of the decree;
The Court can also determine whether the person is representative of a party or not.
The application of execution has to be filed by the decree-holder and the application can either be an oral application or written application.
Simultaneous execution
Order XXI Rule 21of the Code of Civil Procedure deals with the simultaneous execution. According to this rule, the court in its discretion may refuse execution against the person and property of the judgment-debtor at the same time.
Discretion of court
Section 38 of the Code of Civil Procedure provides that there are two courts which are competent to execute the decree, they are:
The Court which has passed it;
The Court where it is sent for execution.
Section 39 of the Code of Civil Procedure provides the rules regarding the transfer of decree to other Courts for execution. According to this Section, the Court can transfer the decree to another Court of competent jurisdiction after the application of decree-holders for various reasons like:
The person against whom the decree is passed resides or carries out business within the local limits of the jurisdiction of other Courts.
The property of the person is not within the jurisdiction of the Court passing the decree, then the execution order can be transferred to other courts that are competent.
If the decree has provided directions to sell the property or deliver the property that is not situated within the jurisdiction of the court, then the execution order can be transferred.
The Court will also take other valid reasons into consideration other than these reasons.
The Court on its own motion can transfer the execution order to subordinate courts or other courts of competent jurisdiction. Order XXI Rule 6 provides various procedures that have to be followed when the court desires to transfer the decree to the other court for execution. When there is a transfer, then the documents relating to the case like a copy of decree and certificate for the satisfaction of the decree should be sent to the latter Court as mentioned in Rule 6. Section 40 of the Code of Civil Procedure allows the Court to transfer the case to competent Courts in another State. Section 42 of the Code of Civil Procedure provides the Court where the decree is transferred for execution will have the same powers as if the decree was passed by that Court.
Modes of executing decrees
There are various ways to execute a decree, the Court has to follow the appropriate rules provided in Order 21 while executing a decree. According to Order XXI Rule 10, an application has to be filed in the Court by the decree-holder if he desires to execute it.
Delivery of property
Delivery of property is one of the most famous modes of executing a treaty. According to Order XXI Rule 79, it is said that when the property that is sold is a movable property of which actual seizure has been made, it shall be delivered to the purchaser. Rule 35 of the Order XXI discusses the rules regarding the decree of immovable property. According to this rule,
When the decree is for the delivery of immovable property, the property can be delivered to the person to whom it has been adjudged or to the representative of that person;
This delivery has to be made after removing any person bound by the decree who refuses to vacate the property;
When the decree is for the joint possession of the immovable property, the possession shall be delivered after affixing the copy of the warrant in a place that is visible;
When the person in possession is not providing free access to the property, then the Court can remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession after giving proper warning to the women in that property.
Attachment and sale of property
Section 60 of the Code of Civil Procedure provides the list of properties which are liable to attachment and sale in execution of the decree. The list which is liable to be attached for enforcement of decree according to this Section is:
Land;
Houses or other buildings;
Goods and Money;
Banknotes and cheques;
Bill of exchanges and promissory notes;
Hundis;
Government Securities, bonds and other securities for money;
Debts;
Shares in the corporation;
All other saleable property that belongs to the judgment-debtor which can be movable or immovable.
Section 61 of the Code of Civil Procedure provides a partial exemption of agricultural produce.
Order XXI, Rule 3 of the Code of Civil Procedure provides that if the immovable property is located in more than the local limits of the jurisdiction of one or more courts, then one of the Court can sell and attach the property. According to Order XXI, Rule 13, there has to be certain information in the application for attachment of immovable property. According to Order XXI, Rule 31, the decree for the specific movable property can be executed by:
Seizure of the property if it is practicable;
Delivery of the property to the person whom it has been adjudged;
The detention of judgment-debtor in the civil prison.
Rule 41 of the Order XXI provides power to provide orders to the Court to examine the property of judgment debtor. The court may provide orders to the judgment debtor or officers in the case of firms to submit the relevant books and documents for examination. The value of the property is assessed in order to examine whether it would be sufficient for satisfying the decree. The judgment debtor, the officer in the case of corporations and any other relevant person can be orally examined. According to Section 64 of the Code of Civil Procedure, any private alienation or transfer of property after the attachment, then the transfer would be considered as void. Section 74 of the Code of Civil Procedure provides power to arrest the judgment-debtor if they have obstructed or restricted the decree-holder from obtaining possession of any immovable property. The judgment debtor can be detained in prison for thirty days by the order of the Court.
Arrest and detention
Section 55 of the Code of Civil Procedure deals with various rules regarding the arrest and detention. According to this Section,
The judgment-debtor can be arrested at any time of the day and can be brought before the Court.
The detention of the Judgment debtor should be in civil prison.
No officer can enter the dwelling-house after sunset and before sunrise for making an arrest.
The officer should release the judgment debtor once the amount is paid.
Rule 37 of the Order XXI in the Code of Civil Procedure provides discretionary power to the judgment debtor to show cause against detention in prison. According to this rule:
Where the application is made for the execution of the decree for the payment of money by the arrest and detention of a judgment-debtor in the civil prison, then the Court provides an opportunity to the judgment debtor to show cause why he should not be sent to the civil prison.
The Court provides notice to the judgment debtor to appear before the court on a specified date and provide show cause.
The Court will also not provide the notice in certain situations, for example, if the court feels it would delay the process of execution or the judgment debtor might abscond within that time.
According to Rule 38, the warrant for the arrest of the judgment debtor will direct the officer authorised for execution to produce him in the Court within a reasonable time. Rule 39 of Order XXI is an important provision that deals with the subsistence allowance. The decree-holder has to pay a certain sum that is fixed by the Court for the maintenance of the judgment debtor in the civil prison from the time of his arrest until he can be brought before the Court. No judgment debtor can be arrested if the decree-holder has not paid the subsistence allowance. Section 56 of the Code of Civil Procedure provides protection to women and according to this Section, women cannot be arrested in the execution of the decree for money. The scale for the monthly allowance is fixed under Section 57 of the Code of Civil Procedure or else Court can fix an amount that it thinks is sufficient. The payment has to be made in advance to the authorized officer in the beginning and the officer of prison in the later stage. The sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison and it shall be deemed to be costs in the suit. Rule 40 provides various proceedings that have to be followed after the appearance of judgment debtor after providing the notice. Section 58 of the Code of Civil Procedure deals with the rules regarding the detention and release. According to this section, the judgment-debtor can be detained in the civil prison:
For a period not exceeding three months- When the decree amount is more than a thousand rupees;
For a period not exceeding six weeks- When the decree amount is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees.
Section 59 of the Code of Civil procedure provides the judgment debtor can be released on the grounds of illness.
Order XL of the Code of Civil Procedures contains various provisions relating to the appointment of a receiver. The Court will also fix appropriate remuneration for the services provided by the receiver. The Court can appoint an impartial person known as a receiver before or after the decree for:
Management and protection of the property;
The collection of the rents and profits;
The application and disposal of rents and profits;
The execution of documents;
The Court also provides other powers than the above-mentioned power if it thinks fit.
There are various duties of a receiver that is provided in this Order like:
Furnishing any security asked by the Court;
Submission of accounts at periods that he is appointed and in such form as the Court directs;
Being responsible for any loss that has occurred to the property by the wilful default or gross negligence of the receiver;
Paying the amount due to him as the Court directs.
The Court can also sometimes attach and sell the property of the receiver in order to recover the loss occurred because of him and can give the remaining amount to the receiver after compensating the loss. The Collector can also be appointed as a receiver when the property is land that is paying revenue to the Government or the land in which the revenue has been assigned or redeemed, the Court can appoint a Collector as the receiver with their consent.
Partition
Rule 18 of the Order XX of the Code of Civil Procedure deals with the decree in the suit for partition of property. When the Court passes the decree for partition of any movable or immovable property and if there is any difficulty in partition the Court can pass a preliminary decree which clearly demarcates the different rights of the property. When the decree of partition relates to the estate assessed to the payment of revenue to the Government, the partition can be made by the Collector or any other gazetted officer who is subordinate to the Collector and the gazetted officer has to be appointed by the Collector themselves.
Cross-decrees and cross-claims
Rule 18 of the Order XXI provides rules regarding the execution in cases of cross-decrees. The application of cross decrees can be executed by the Court at the same time when the applications are made to a Court in separate suits for the payment of two sums of money passed between the same parties in various situations; like, if the two sums are equal, then the satisfaction shall be entered upon both decrees. There are also situations if the two sums are unequal then it can be executed only by the holder of the decree for the larger sum and for the amount which remains after deducting the smaller sum. This cannot be applied when the decree-holder in one of the suits is the judgment-debtor in the other and each party files the same character in both the suits. For example, if A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in that case then the decree can be executed at the same time and can be satisfied as the amount is equal.
Rule 19 of the Order XXI provides rules regarding the execution in cases of cross-claims. It is considered as a cross-claim when the application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other. There can be satisfied when the amount is equal or if the amount is unequal execution may be only carried out with the person entitled to the higher claim.
Payment of money
Order XXI Rule 1 provides the various methods of paying the money under the decree. According to this rule:
The money can be paid by deposit into the Court who is competent to execute the decree;
The money can be sent to the Court by money order or by bank deposit;
The money can also be paid outside the Court to the decree-holder by the method decided before in writing;
The Court can also direct other methods in the decree.
If the money has been paid by postal money order or through a bank, there are various details that have to be mentioned like the number of the original suits, the details of the parties; like, their name, how the money remitted is to be adjusted and name and address of the payer. Order XXI Rule 2 provides various rules relating to decree-holder payment out of Court. The Judgment-debtor has to inform the Court about any payments that are made outside the Court. Rule 30 provides that the decree for payment of money can be executed by the detention of judgment-debtor in prison or by attachment and sale of his property. Rule 32 of the Order XXI provides ways to enforce the decree for specific performance of a contract. The decree for specific performance of a contract if wilfully disobeyed by any parties can be enforced by the detention of judgment-debtor in the civil prison, or by the attachment of property of the judgment debtor, or by both methods. The same procedure has to be followed for the cross-decrees and cross-claims in the mortgage suits.
Injunction
Rule 32 of the Order XXI provides ways to enforce the decree for an injunction. The decree can be executed by the detention of judgment holders in the civil prison or by attachment of property, sometimes both of the processes are carried out to enforce the decree for an injunction. This procedure has to be followed if the person willfully disobeys the decree.
Restitution of conjugal rights
Rule 32 of the Order XXI provides ways to enforce the decree for restitution of conjugal rights. The decree for restitution of conjugal rights if wilfully disobeyed by any parties can be enforced by attachment of the property.
Rule 33 of the Order XXI deals with the execution of conjugal rights against the husband and according to this rule, the judgment debtor has to make periodical payments to the decree-holder if the decree is not obeyed within a specified time. The Court can modify the rules regarding the periodic payments from time to time and in certain situations, it can also suspend the payment. Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.
Execution of document
Rule 34 of the Order XXI deals with the various procedures that have to be followed for the execution of the document. According to this rule,
When the judgment debtor disobeys the decree of execution of documents, the decree-holder has to prepare a draft of the document and has to present it before the Court;
The Court will present the draft to judgment debtor for him to raise any objects if any present and also Court will fix a particular time within which the judgment debtor can make his objection;
The Court shall make orders to approve or alter the draft after receiving objections from the judgment holder;
The decree-holder shall deliver a copy of the draft to the Court after making any alterations as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force;
The Judge or such officer as may be appointed in this behalf shall execute the document so delivered;
The Court or officer authorized by the Court has to register the document if the registration of the document is required by the law. If the registration is not required but still the decree-holder wishes to register the document the Court has to make necessary orders;
The Court may make orders regarding the expenses of the registration.
Endorsement of the negotiable instrument
Rule 51 deals with the endorsement of a negotiable instrument. According to this rule, the attachment of the negotiable instrument can be completed by the actual seizure of the instrument if it is not deposited in a Court and it is not in the custody of a public officer. The negotiable instrument should be brought into Court and is kept in the custody of Court until further orders of the Court.
Attachment of rent, mesne profits, etc.
According to Rule 42, where a decree directs for an inquiry regarding the rent or mesne profits or any other matter, then the property of the judgment-debtor may be attached for the amount due similar to the case of an ordinary decree for the payment of money.
Attachment of debt, share and other property that is not in possession of Judgment debtor
The attachment of the debt that is not in the possession of the judgment debtor can be made by a written order prohibiting:
In the case of the debt, the credit or from recovering the debt and the debtor is prohibited from making payment until the further order of the Court;
In the case of the share, the person in whose name the share can be prohibited from transferring the same or receiving any dividend;
In the case of the other movable property, the person in possession is prohibited to give the same from giving it over to the judgment-debtor.
Liability of surety
Section 145 of the Code of Civil Procedure provides rules regarding the enforcement of liability of surety. According to this Section, any person who has provided security or has given a guarantee for the performance of the decree or any part of the decree, for the restitution of any property that is taken in execution of the decree and for payment of any money in the decree is considered as the surety. The surety is liable in the same manner as he is personally liable and his property that is attached can also be sold for recovering the loss of decree-holder. The surety is also considered as a party to the suit according to Section 47 of the Code of Civil Procedure.
Enforcement of decree against the legal representative
Section 52 of the Code of Civil Procedure deals with the enforcement of decree against the legal representative. The legal representative of a deceased can also be considered as a party in certain situations. According to this Section, when the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. Section 53 of the Code of Civil Procedure deals with the liability of the ancestral property. According to this Section, the ancestral property in respect of which the decree is passed is considered as the property of the deceased if it is in possession with the son or any other descendant who is responsible for payment of debt under the Hindu law.
Decree against corporation
According to Rule 76, where the property to be sold is a negotiable instrument or a share in a corporation, the Court instead of providing directions for the sale to be made in public auction can authorize a broker to sell such an instrument or share. Rule 32(2) of the Order XXI provides that the decree of injunction or specific performance passed against the corporation, then the decree may be enforced by the attachment of the property of the corporation or by the detention of the directors or important officers of the corporation in the civil prison.
Decree against firm
Rule 50 provides various provisions relating to the execution of a decree against the firm. According to this rule, When the decree is granted against a firm the execution may be granted against,
Any property of the partnership;
Against any person who is adjudged to be the partner of the firm;
Any person who is considered as a partner and is individually served with the summons and has failed to appear.
Attachment of decree
Rule 53 of Order XXI deals with the attachment of a decree. According to this rule when the property to be attached is a decree, then the attachment can be made by the order of Court which passed the decree. There are certain situations when the decree is passed by other Court and the order is sent to another Court for enforcement then the court which passes the decree has to provide a notice to the latter Court. The Court after the application of the decree-holder sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice to the judgment-debtor who is bound by the decree that is attached.
Payment of icons or currency notes
Rule 56 of Order XXI of the Code of Civil Procedure deals with the provisions where the property attached is current coin or currency notes, the Court at any time during the continuance of the attachment, can direct that such coin or notes, or a part thereof if it is sufficient to satisfy the decree, to be paid over to the party entitled under the decree.
Conclusion
There are various methods of execution of a decree under the Code of Civil Procedure. It is the duty of the Court to assess the facts of each and every case and provide appropriate relief to the decree-holder without any delay. The Court has to follow the procedures which are provided under the Orders of the Code of Civil Procedure before executing a decree and choosing the appropriate mode of execution.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
So today is the day! We are finally announcing the winner of our Blog Writing Competition of 3rd week of December 2019 (From 16th December 2019 To 22nd December 2019)
We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing!
And now we’d like to congratulate our top 5 contestants who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.
Click here to see all of the contest entries. Click here to see our previous week’s winners.
Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.
The contestants have to claim their prize money by sending their account details at uzair@ipleaders.in within 1 month (30 days) of the date of declaration of results and not afterwards. Certificates will be sent on the email address given by the contestant while submitting the article. For any other queries feel free to contact Uzair at 8439572315 LawSikho credits can be claimed within three months from the date of declaration of the results (after which credits will expire).
Congratulations all the participants!
Regards,
Team LawSikho
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. In this article, he covers the “Inherent powers of the court” and tries to explain its provisions and Sections of the Civil Procedure Code, 1908 related to it.
Introduction
Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable, essential or characteristic attribute. Inherent powers of courts are those powers which may be applied by the court to perform full and complete justice between the parties before it. It is the duty of the Courts to serve justice in every case, whether given in this code or not, brings with it the important power to do justice in the absence of a definite or separate provision. This power is said to be the inherent power that is maintained by the court, though not conferred. Section 151 of the Civil Procedure Code deals with the inherent powers of the court.
Provisions of Section 148 to 153B of CPC
The law relating to inherent powers of Court is mentioned in Section 148 to Section 153A of the Civil Procedure Code, which deals with the exercise of powers in different situations. Following are the provisions of Inherent powers of Courts:
Section 151 protects the inherent powers of the courts; and
Section 152, 153 and Section 153A deals with amendments in judgments, decrees or orders or in separate proceedings.
Enlargement of time
Section 148 of the CPC states that where any term is fixed or awarded by the Court for the doing of any act provided by CPC, it is the discretionary power of the Court that Court may enlarge such period from time to time, even though the term originally fixed or awarded may have departed.
In simple words, when a term is fixed by the court for the doing of any act, the Court has the power to extend such period up to 30 days. This power is exercisable in the deficiency of any specific provision to the contrary which reduces or rejects or withholds the period. The power is limited to the extension of the time fixed by it and is of a discretionary nature.
Payment of court fees
According to Section 149 of CPC, “Where the entire or a portion of any fee commanded for any certificate by the law for the time being in force relating to court-fees has not been met, the Court may, in its discretion, at any step, permit the person by whom such fee is payable, to pay the whole or part as the case may be, of such court-fee; and upon such payment, the document, in regard of which such fee is payable, shall have the same force and result as if such fee had been paid in the initial situation.”
It permits the court to allow a party to make up for the lack of court fees due on a complaint or notice of appeal etc., even after the expiry of the limitation period for filing of the lawsuit or appeal, etc. Payment of the expected court fee is compulsory for any document imputable with court-fee to be presented in the court. If the necessary court fee is paid within the time set by the court, it cannot be negotiated as time-barred. Such payment made within the time fixed by the court retrospectively validates a faulty document. The power of the court is discretionary and must be exercised only in the importance of justice.
Transfer of business
According to Section 150 of CPC, “Save as otherwise granted, where the business of any Court is assigned to any other Court, the Court to which the business is so assigned shall have the same authority and shall make the same duties as those sequentially presented and forced by or under this Code upon the Court from which the business was so assigned.”
For example- When the business of a court A is transferred to any other court B, the court B will exercise the same power or perform the same duties given or commanded by CPC upon the transfer court.
Section 151 of CPC
Section 151 deals with “Saving of inherent powers of Court.” This Section states that ‘Nothing in CPC shall be considered to restrict or otherwise affect the inherent power of the Court to make such orders as may be important for the ends of justice or to limit abuse of the method of the Court.’ It is not obligatory for the court to wait for the law made by parliament or order from the higher judiciary. Court has discretionary or inherent power to make such order which is not given in terms of laws for the security of justice or to check misuse of the method of the Court.
The scope of exercising of Section 151 of CPC can be represented by some cases as follows:
The court may recheck its orders and resolve errors;
Issuance of provisional sanctions when the case is not included by order 39 or to place alongside an ‘ex parte’ order;
Illegal orders or orders passed without jurisdiction can be set-aside;
Subsequent events in the case can be taken into consideration by the court;
Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;
The court can erase remarks made against a Judge; and
The court can improve the suit and re-hear on merit or re-examine its order.
Ends of justice
In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice” was explained. It was held in this case that “ends of justice are formal words and not the only well-mannered form in juristic methodology and justice is the pursuance and end of all law. But these words do not mean vague and general notions of justice according to the laws of the land.”
The Court is allowed to exercise these inherent powers in cases like- to recheck its own order and correct its error, to pass injunction in case not included by Order 39, and an ex parte order against the party, etc.
Abuse of process of the court
Section 151 of the CPC provides for the exercise of inherent powers to check the infringement of the process of the court. The abuse of power may be for the example of a party or at the example of the court itself. Abuse of the powers of the court which happens in unfairness to party needs to get relief on the ground that the act of a court shall not prejudice anyone. When a party practices fraud on the court or on a party to a proceeding, the remedies have to be provided on the basis of inherent power.
The word ‘abuse’ is said to occur when a Court uses a method in doing something that it is never expected to do is the perpetrator of the said abuse and there is a failure of justice. The injustice so done to the party must be given relief on the basis of the doctrine of actus curiae neminem gravabit(an act of the court shall prejudice no one). A party to a case will become the perpetrator of the abuse in cases when the said party does acts like obtaining benefits by functioning fraud on the Court or a party to the proceedings, prompting the multiplicity of proceedings, etc.
Amendment of judgments, decrees, orders, and other records
Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.” According to Section 152 of CPC, Court has the power to change (either by own actions or on the application of any of the parties) written or arithmetical mistakes in judgments, decrees or orders or faults arising from an unexpected lapse or imperfection.
Section 153 deals with the “General authority to amend.” This Section empowers the court to amend any fault and error in any proceedings in suits and all required improvements shall be made for the purpose of arranging raised issues or depending on such proceeding.
Section 152 and 153 of the CPC makes it clear that the court may set correct any blunders in their experiences at any time.
Power to amend decree or order where an appeal is summarily dismissed and place of the trial to be deemed to be open Court are defined under Section 153A and 153B of CPC,1908.
Limitation
The exercise of inherent powers carries with it certain barriers such as:
They can be applied only in the deficiency of particular provisions in the Code;
They cannot be applied in dispute with what has been expressly given in the code;
They can be applied in rare or exceptional cases;
While operating the powers, the court has to follow the method shown by the legislature;
Courts can neither exercise jurisdiction nor entrust in them by law;
To abide by the principle of Res Judicata i.e., not to open the issues which have already been decided finally;
To pick a mediator to make an award afresh;
Substantive rights of the parties shall not be taken away;
To limit a party from taking proceedings in a court of law; and
To set apart an order which was valid at the moment of its issuance.
Summary of Provisions of Inherent powers of Courts
A summary of Section 148 to Section 153B is that the powers of the court are quite deep and extensive for the scope of:
Reducing litigation;
Evade multiplicity of proceedings; and
To supply full and complete justice between the parties.
Suggestions
It may be recommended that rules put down by the courts in the application of inherent powers concurrently with the restraints and limitations on the application of the power be arranged in the form of rules to be made by the Supreme Court and be made desirable to the courts for their leadership. The rules may also provide to deal with different circumstances unprovided for which arises in future.
Conclusion
Inherent powers are the power of court which are helpful in minimizing litigation, avoid multiplicity of proceedings and to render complete justice between two parties. Section 148 to 153B of CPC discusses the provisions of the Inherent powers of the Court. These provisions discuss the enlargement of time, payment of court fees, transfer of the business of one court to another court, end of justice, abuse of process of the court, amendment of judgement, decree, orders, and records, etc.
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 skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad. In this article, the landmark judgment of the case Justice K.S. Puttaswamy (Retd.) and anr. V. Union of India has been discussed.
Introduction
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India is a landmark case and the judgment was given by the Hon’ble Supreme Court of India. The judgment given in the case by the Bench gave a new perspective to the Right to Privacy of the citizens. It was held that the Right to Privacy is a Fundamental Right under Articles 14, 19 and 21 of the Indian Constitution.
The Hon’ble Court upheld the Aadhaar Act and stuck down the provision of the Act which was unconstitutional. It was held by the Court that the Right to Privacy of the citizens has to be protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. The Court explicitly overruled the previous landmark judgments of the Supreme Court Kharak Singh vs State of UP and M.P Sharma vs Satish Chandra in which it was held that Right to Privacy is not a Fundamental Right of the citizens under the Indian Constitution.
Summary of Facts
‘Unique Identification for BPL Families’ was a project which was initiated by the Government of India. A Committee was set up for the project. The creation of a Unique Identification database was suggested by the Committee for the said project. The project was decided to be set up in three phases.
In January 2009, the Planning Commission of India passed a notification on UIDAI (Unique Identification Authority of India). In 2010, the National Identification Authority of India Bill was passed by the Commission. Retired Justice K S Puttaswamy and Mr. Parvesh Sharma in November 2012 filed a PIL Writ Petition in the Supreme Court challenging the validity of Aadhaar.
The scheme was challenged as it was violative of Fundamental Rights. The scheme violated the right to privacy under Article 21 of the Indian citizens. After filing this writ petition, a series of orders were passed. The Aadhaar Act was passed in 2016. The petitioners then filed another writ petition challenging the vires of the Act. This writ petition was then merged with the previous one and was treated as one writ petition.
Jairam Ramesh who was the Former Union minister and Congress leader moved Supreme Court in May 2017. He challenged the decision to treat the Aadhaar Bill as a money bill.
On 24th August 2017, the Supreme Court ruled that the right to privacy is a Fundamental Right under Article 21 of the Indian Constitution. On 17th January 2018, the hearing of Aadhaar Case was started in Supreme Court. The Supreme Court on 25th April 2018 questioned the Centre on linking the Aadhaar with mobile. On 26th September 2018, the Supreme Court held Aadhaar card to be valid but struck down certain provisions such as mandatory linking of Aadhaar with mobile, bank accounts and school admissions.
Identification of Parties
Petitioner- Justice K.S.Puttaswamy (Retd).
Respondent- Union of India.
Bench- Justice D. Misra, Justice D.Y. Chandrachud, Justice A Bhushan, Justice AM Khanwilkar, Justice A Sikri.
Issues before the Court
Whether the Aadhaar Project has a propensity to create a surveillance state and is thus unconstitutional based on this ground?
Whether the Aadhaar Project violates the right to privacy of the citizens and is unconstitutional based on this ground?
Whether Section 7 and 8 of the Aadhaar Act also includes children?
Whether the following provisions and Regulations of the Aadhaar Act are unconstitutional:
Whether the Aadhaar Act can be treated as a ‘Money Bill’ within the meaning of Article 110 of the Indian Constitution?
Whether Section 139AA of the Income Tax Act, 1961 violates the right to privacy of the citizens under the Indian Constitution?
Whether Rule 9(a) of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereafter, which mandate linking of Aadhaar with bank accounts, are valid under the Indian Constitution?
Whether Circular dated March 23, 2017, issued by the Department of Telecommunications which mandates the linking of the mobile number of the citizens with Aadhaar is illegal and unconstitutional?
Whether certain actions which were taken by the respondents are in contravention of the interim orders passed by the Court?
The petitioners contended that the planning of the Aadhaar Act by its very virtue is probabilistic in nature. The Act aims to extend subsidies, benefits, and services to society. It is possible that rather than providing these benefits, subsidies, and services to the section of society for which these are meant, it may end up excluding them from receiving such beneficiaries.
The main arguments were that the Act may take away the rights and liberties of the citizens of the country which are guaranteed to them under the Indian Constitution. Strict implementation of the Aadhaar Act can be a serious problem as it is contrary to the Fundamental Rights which are given in the Indian Constitution to the citizens of the country.
The Aadhaar was in contravention to the Constitution and had the potential to enable an intrusive state to become a surveillance state (a state in which the Government has the ability to monitor the activities of its citizens) based on the information that would be collected from each individual by creating a joint electronic mesh.
It was contended that the Right to Privacy of the citizens was being violated. Right to Privacy is an integral part of Article 21 of the Indian Constitution i.e. Right to life and liberty. The Act imposes restrictions that are not provided under Article 19 as reasonable restrictions. If any restriction is imposed then it is important that it satisfies the requirements of Article 14 and 19 of the Indian Constitution. It is also important that the law which imposes such a restriction must be fair, just and reasonable.
In the present case, the restrictions which are imposed by the Government through the Aadhaar Act do not fall under reasonable restrictions and are arbitrary and unreasonable. There isn’t any reasonable classification as there is no nexus between the classification of society made by the Act and the objective which the Act strives to achieve. The information which was sought from the citizens violated the integrity of the citizens. The object of the Act was not in nexus with the information which was sought to be collected by the citizens. The Act also made a classification of citizens based on religion. Classification based on religion did not only discriminate citizens but also forced them to reveal their religion which is violative ofArticle 25of the Indian Constitution. Further, the Act also made Aadhaar Cards compulsory for availing certain benefits that were offered by the Government to the citizens under the Act. The compulsion of Aadhaar Cards will also enable the Government to put the citizens under its surveillance and this would amount to a violation of the Right to privacy under Article 21 of the Constitution. Violation of the Right to privacy is a very serious violation of the Right to life as it encroaches upon the life and dignity of the citizens which is the basic right guaranteed under the Constitution.
Most of the counsel who appeared for different petitioners agreed that as far as allotment of Aadhaar number for unique identification of the residents is considered there was no question of dispute.
The arguments which were made by some famous lawyers against the Aadhaar Act were as follows:
Shyam Divan
Shyam Divan was the first counsel who started with the petitioner’s arguments. He challenged the Aadhaar Act, 2016. He contended that as per the Indian Constitution the State is bound to provide benefits to its citizens by way of subsidies and services. The Aadhaar Act makes these benefits conditional for the citizens which the State is bound to provide to its citizens. To avail such benefits the Aadhaar Act needs the citizens to give their biometric and demographic information. Section 7 of the Act was challenged on this ground by Shyam Divan.
The Aadhaar Act enabled the Government to track the citizens which violated their right to privacy and hence was unconstitutional. The UIDAI gives the power to the State to cancel the number of the citizens which is provided in their Aadhaar and such an act of the State would not have any redressal mechanism.
Kapil Sibal
The main contention of Kapil Sibal was that when Right to Privacy was made a Fundamental Right under Article 21 of the Constitution then the personal information of the citizens which the Act seeks to receive should not be allowed. The Act takes away the right to make a choice from the citizens as according to the Act it is mandatory for the citizens to reveal the information to the State which the Act needs them to in order to avail the benefits and subsidies provided by the Government as without Aadhaar authentication the citizens will be denied of those Government beneficiaries. The Aadhaar Act takes away the informational privacy from the citizens which have been recognized as the Right to Privacy.
It was contended by him that the collection of information from the citizens violates Article 21 of the Constitution.
Arvind Datar
It was contended by Arvind Datar that the Aadhaar Act is unconstitutional as it can’t be treated as a money bill. Linking of the bank accounts with Aadhaar violates the rights of the citizens as they are not left with a choice to operate their bank accounts without linking it with the unique ID and hence, it is violative of Article 14 and 21 of the Constitution. Further, the State did even give an explanation to the citizens for linking their bank accounts with Aadhaar. A reason to do so was needed to be given by the State in order to explain the object which the State intends to achieve by doing so. The right to make a choice is a right that has been recognized as a Fundamental Right under the Right to privacy. The Aadhaar Act takes away the right to make a choice by the citizens and thus, violates the Fundamental Right of the citizens under Article 21 of the Constitution.
The Act also violates the principle of proportionality under Article 14 of the Constitution as having an Aadhaar will give a valid identity to a person and whosoever fails to do so will not be considered to have a valid identity.
He argued that Section 139AA of Income Tax Act which makes it compulsory for citizens to link their Aadhaar with their bank accounts is violative of the Right to Privacy under Article 21 of the Constitution and is needed to be reconsidered.
P Chidambaram
It was contended by P Chidambaram that the Aadhaar Act was in no way a money bill and so it should not be treated as one. He stated that a bill to qualify to be a money bill needs to go through strict criteria that have been set and if the bill passes such criteria only then it can be treated as a money bill. He also stated that all the money bills need to go through the Rajya Sabha and then it is passed to the President for his assent. The President has the power to send back the money bill for reconsideration which has been passed by the Rajya Sabha if he feels that some corrections are needed to be made in it.
Hence, the provisions of the Aadhaar Act which fails to fulfill the criteria of a money bill cannot be considered to be passed and so the entire law is void and needs to be struck down.
Respondents
It was stated by the respondents in the affidavit that their intention behind introducing the Act was to ensure that all the citizens who are eligible for the benefits and subsidies by the Government receive such benefits and subsidies and aren’t deprived of it.
It was also rebutted by the respondents that the Aadhaar Act does not ask for any information which can violate a person’s Right to Privacy. It was submitted by the respondents that the Act barely asks for any personal information from the citizens which can enable State surveillance on them. The respondents further stated that the demographic information which the Act seeks to ask from the citizens include name, date of birth, gender, address, mobile number and email address of the citizens. Providing mobile number and email address to the State was left on the option of the citizens and these two are required only for transmitting relevant information to the AMH and for providing One Time Password (OTP) for their authentication. The information which the Act seeks to receive from the citizens is in the public domain. It was also stated by the respondents that the Act under Section 2(k) specifically provides that the regulations cannot ask for the information like race, religion, caste, tribe, ethnicity, language, income, records of entitlement or medical history from the citizens and hence, any sensitive information can’t be asked from the citizens through this Act. In light of the Section stated above the scope of obtaining any additional demographic information is very limited and even the biometric information which the Act seeks to obtain from the citizens is limited to their fingerprints and an iris scan.
This specific exclusion, in the context, ensures that the scope of including additional demographic information is very narrow and limited. Such biometric information is very commonly obtained all over the world in order to identify a person. The argument of the respondent was, thus, that the information which Aadhaar Act seeks to obtain is non-invasive and non-intrusive identity information.
The comprehensive reports on data protection and informational privacy were prepared by the Planning Commission of India under the Chairmanship of Retd. Justice A.P. Shah. the report included five salient features that aimed to protect the privacy of citizens.
The framework suggested by the Planning Commission was based on the following five salient features:
technological neutrality and interoperability with international standards;
multi-dimensional privacy;
horizontal applicability to state and non-state entities;
conformity with privacy principles; and
a co-regulatory enforcement regime.
On 31st July 2017, the Central Government constituted a committee to review data protection norms in the country and make recommendations which was chaired by Retd. Justice B N Srikrishna, former Judge of the Supreme Court of India. The Committee had recently released its report and the first draft of the Personal Data Protection Bill, 2018. It comprehensively addresses the process of personal data. It includes information like where such data has been collected, disclosed, shared or otherwise processed within the territory of India. The provisions and principles of Europe’s General Data Protection Regulation (EUGDPR) and EU data protection jurisprudence were used for the purpose of framing the bill.
The traditional concepts of the data controller in which the entity processes the data and the person whose data is being collected known as data subject was replaced by the Draft Bill. The new concept introduced by the Draft Bill was ‘data fiduciary and dad principal’. The new concept aimed to establish a trust-based relationship between the entity and the person whose data is being collected.
The Draft bill and the report includes the rights and obligations of the data fiduciary and data controller respectively. These rights include the right to access and correction, the right to data portability and the right to be forgotten – a right to prevent or restrict disclosure of personal data by a fiduciary. The consent plays a crucial role as it has been given an important status in the draft data protection law. Thus, for the purpose of the process of processing the personal details of the citizens, it plays a significant role.
It was stated by the respondents that Aadhaar works as an identity card which is used by around 92 crore people for accessing various social schemes or availing benefits which are provided by the Government to its citizens. It is a document which widely is being used by the citizens and restricting it would create a problem for the citizens. Aadhaar is a document that can help the Government in detecting and eliminating the duplication and impersonation in muster rolls and beneficiary lists. It also helps the workers underMGNREGAand pensioners to withdraw their wages and pensions every month.
The respondents also rebutted the privacy contention stating that the data which is obtained by the Act is secure as it is encrypted at its source and all the biometrics of the citizens are stored by the Government in the Government of India’s servers. The Government of India’s servers has a security standard which is one of the best in the world. The duplication of cards or fake cards for availing the benefits which are provided by the Government can be avoided with the help of Aadhaar number which asked from the citizens. Aadhaar will also be able to help in reducing the involvement of middlemen who try to drain off a part of the Government’s subsidy which is made available for a particular section of the society. Government subsidies are mainly concerned with goods and services like food grains, fertilizers, water, electricity, education, healthcare. The Government usually provides these goods and services at a lower price than the market price. To make this initiative work efficiently Aadhaar can be used. Aadhaar can be used to ensure timely and direct payment to the sections of society for which subsidies are made available by the Government and prevent leakage of money. This step can save thousands of crores of rupees which are lost in leakage. The Government have identified crores of duplicate ration cards, Aadhaar can ensure that the benefits and subsidies which are mean for certain sections of society actually reaches them.
The objective behind the provision which is included by the Government for the citizens to quote their Aadhaar number while applying for PAN card and for filing Income Tax returns is to identify the tax evaders by linking their PAN card with Aadhaar. Mandatory linking of PAN card with Aadhaar can curb tax evaders and also ensure that one person owns only one PAN card. Making Aadhaar mandatory can identify the fraudulent practices which are going on in the country and curb it to a large extent. Unique Identification Authority of India can even permanently or temporarily deactivate an individual’s number which has been provided in the Aadhaar.
Judgment
The Aadhaar Act was held to be valid by the Supreme Court. The Hon’ble Court stated that sufficient security measures have been taken by the Government in order to keep the data safe which the citizens have been asked to reveal for Aadhaar. A five-judge bench led by CJI Dipak Misra decided the case. The Bench asked the Government to take measures to provide more security in order to protect the data obtained by the people. It was also stated by the Court that the information which has been obtained by Aadhaar should not be released to the commercial banks, payment banks, and e-wallet companies. E-wallet companies like Paytm asked their customers to get their KYC done by using their Aadhaar cards. It was held by the Court that such information of Aadhaar should not be released to them. It was also stated by Bench that telecom companies cannot seek details of Aadhaar from their customers when they buy a new sim card and even schools shall not ask students to provide their Aadhaar number for appearing in board exams or for admissions.
The Supreme Court upheld the validity of Aadhaar and made it mandatory for availing the benefits and subsidies of the Government. The Act ensures that the benefits and subsidies of the Government are received by the people for whom it is meant. The Court held Section 57 of the Act to be unconstitutional and was, therefore, struck down.
The court held that Aadhaar card shall be made mandatory for availing the welfare schemes, benefits, and subsidies that are provided by the Government as it empowers the poor and ensures that the benefits and subsidies are received by the sections of society for which it was meant. Section 57 of the Aadhaar Act was held to be unconstitutional and was struck down. The Supreme Court held that children would not be denied the benefits of any Government scheme if they do not have an Aadhaar card. The Bench of the Supreme Court also struck down the national security exception under the Aadhaar Act.
The Court also explained the difference between an identity card and Aadhaar. Aadhaar has a unique identification and hence can’t be duplicated like other identity cards. Further, the Court also stated that the objective of Aadhaar is to give identity and empower the poor of the society by making sure that they are able to avail the benefits and subsidies which are provided by the Government for them. Therefore, the Aadhaar has been made compulsory for availing the Government welfare schemes.
Conclusion
The Aadhaar Act was launched with the purpose to give identity and empowerment to the marginalized section of the society. It provides a unique identification number to the citizens of India. The Aadhaar number is unique and therefore, it can’t be duplicated. The unique identification ensures that the benefits and subsidies of the Government are availed by the section of society for which it is meant. Aadhaar can prevent unfair practices and leakage of thousands of crores of money. Many privacy rights questions were also raised in the case. The question of dignity of citizens, informational self-determination and consent formed the basis for the privacy rights claims.
The right to Privacy formed an important part of the case. A five-judge bench of the Hon’ble Supreme Court on 26th September 2018, delivered a judgment in favor of respondents. The validity of Aadhaar was upheld by the Court after striking down various clauses and Sections of the Act which were contrary to the Constitution and violated the rights of the citizens. Justice A K Sikri who wrote the majority of the judges declared the Aadhaar Act to be valid after striking down Section 33(2) and Section 57 of the Act. Various questions were raised by the petitioners on issues like the Right to Privacy of the citizens and the possibility of state surveillance as well as the possibility of breach of information which was collected by the Government for Aadhaar cards of the citizens. The questions of the petitioners have mitigated the claim of UIDAI that their system is one of the best in the world and secured enough to keep the information of the citizens safe. The Court held the Aadhaar Act to be Constitutionally valid as the Act was under reasonable restrictions of the Constitution.
The majority of the honorable Bench also stated that the right of choice of the citizens to avail the Aadhaar card will not be protected by upholding the Aadhaar Act. The citizens will not be left with a choice as Aadhaar will be mandatory for availing the subsidies and benefits of the Government and if a citizen is excluded from availing the subsidies and benefits of the Government due to lack of Aadhaar or authentication problem it can result in the violation of the dignity of the citizen. The Bench also said that linking of Aadhaar to PAN card is not important as there isn’t any constitutional rationale behind it. Upholding of Aadhaar can possibly result in the violation of the Right to Privacy even after striking down Section 33(2) and Section 57 of the Act. In order to protect the Right to Privacy of the citizens the Court clearly ruled out the possibility for private entities to use the authentication mechanism or for asking Aadhaar details by the citizens. The step taken by the Court was to protect the Right to Privacy of the citizens and it clearly showed that the Right to Privacy is indeed a Fundamental Right.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
Suicide is a lethal violence, which poses a serious public mental health problem across the globe. Suicide can be understood as an intentional tendency of an individual to take one’s own life. According to WHO’s report, approx one million people die every year because of suicide and suicide has been classified as one of the main reason for death. Different nations have different notion on suicide, for some it might be a disease, for some it might be immoral or some may consider it as a crime. Therefore, it becomes impossible to have any one theory which defines the complex act of suicide without any flaws or difficulties. Throughout the history, suicide has been evolved with a surprisingly wide variety of reactions—confusion, dismissal, glorification, empathy, anger, moral or religious condemnation, but despite all this the topic of suicide is never uncontroversial. As of now the concept of suicide is controversial, be it from sociological aspect, constitutional aspect or religious or moral aspect. With the evolution of time, suicide has now become a multidisciplinary scientific study, where each of its disciples gives about a deep insight into the topic. Modernization, a social and economic process consists of three co-related processes of industrialization, urbanization and secularization, which influences general population suicide rates.Modernization, along with these processes, can corrode the relationship that an individual shares with the society and lead to questioning of religion and weakening of faith. Religion impacts suicides. Several times religious preaching and religious commitment acts as a protective layer in prevention of suicides. Apart from discussing on religious and sociological aspect, the researcher will discuss suicide with respect to India, laws regulating suicide and measures of government and other organizations to prevent suicide in India.
Introduction
Suicide is violence, a lethal one. It poses a serious threat on the metal health of the public of any nation. With the passage of time, the suicide rates are increasing overwhelming, thus, leading the scholars to ponder upon the question as to what are the causes of suicide, what are the factors that enable person to commit suicide, etc. Relying upon the WHO report, around one million people die every year worldwide, because of suicide. Suicide has now become a major cause of death among the people, especially for people, below 25 years of age. With the evolution of new era, it become difficult to clearly define as to what suicide actually means, because now suicide can be viewed from different lenses. For the researcher, the most effectively understandable definition of suicide is the one given by Shneidman in his book, ‘Definition of Suicide’ as “a conscious act of self-induced decimation, best understood as a multi faceted dejection in a needful individual who defines an issue for which the suicide is perceived as the best solution.”
Sociological interpretation of suicide
The two most common views on suicide were from sociological perspective by Durkheim and from psychological perspective by Sigmund Freud. Durkheim, in his book ‘Suicide’ identifies different kinds of suicide, the social element present in suicide and the practical consequences of suicide. Before the theory of Durkheim, there were many thinkers like, Quetelete, Morselli, to name few, who analyzed the large data on suicide who found the suicide data stable over years. For these thinkers, the idea of suicide was itself problematic. Masaryk (though preceded Durkheim) was the one who focused upon the modernization era as an explanation for raising rates of suicide. Tarde identified one main cause of suicide, the various kinds of imitative behavior, which acts as a primary driver of all types of social interactions. Today, this theory is widely known as social learning theory, where humans tend to imitate the behavior of others who are in their proximate social environment.
Suicide is often termed as the expression of individual’s personality traits. However, Durkheim tried to demonstrate that the concept of suicide is far beyond from the manifestation of individual’s traits and related it more to the social structure of any society. Different social constraints will differently affect suicidal tendencies. Durkheim’s whole theory on suicide is based on three major assumptions namely:
“The first is the belief in the idea that the era of modernization procreates alienation/ isolation and self-centeredness.
The second is the assumption that women, as being the most socially integrated in family, are the most protected against suicide.
Thirdly, social integration is assumed to be socially protective.”
For Durkheim, his whole theory on suicide can be understood in two folds, namely, integration ad regulation. By Integration, he referred social cohesiveness, which provides the best protection against the suicidal tendencies. People living in well integrated societies generally have support not only from their families but also from their society. Therefore, Durkheim concluded that there exist an inverse relationship between suicide rates and degree of integration. Moving ahead with regulation part, Durkheim said regulation here refers to the continuous monitoring, guidance of society to an individual and this guidance comes from social cohesiveness. Without such guidance, people’s desires will exceed, as a result of which, they might suffer from dejection and failure.
Post the Durkheim’s era, the sociologists, however didn’t discarded the social integration concept as being their touchstone. Later on, the development of sociology of suicide basically draws acuity from psychoanalytic theory and postulate that the aggression- frustration model perfectly describes the sociological aspect of suicide. This model assert that both suicide and homicide are two sides of the same coin as both of them resulted from violent aggression. When the violence is directed towards others, it leads to homicide and when it is directed towards oneself, it leads to suicide.
In the further development of sociology of suicide, almost about a decade later, Gibbs and Martin brought out a new theory, status integration theory, which postulate that the social role ( sex, age, marital status, etc.) that an individual play in a society, determines the suicidal tendencies of that individual. And in society, where people experience a soaring level of role conflict, suicide rates increased.
Click Above
Suicide from Religious Perspective
Religion affects suicide rates in a significant way. Religion in a many ways acts as a protective shield against the self-harming act of suicide. The act of suicide had been criticized and documented since the time immemorial. Criticism of suicide can be traced back to the ancient Greeks, where many of the Greek philosophers had criticized suicide. For Aristotle, suicide is considered to be a crime against oneself and against the nation. Plato discussed about suicide in ‘Laws’, where he asserted that suicide is a disgraceful act and its delinquent should be buried, subjected to certain exceptions: when any the person is subjected to fatal illness or in case where his reputation has been brutally inflicted, then the act of suicide can be held as justifiable. Socrates in ‘Phaedo’ expressed his utter disregard to the view that suicide is permissible. He postulated that the act of suicide had always been disgraceful as through it we tend to release ourselves (our soul) from our bodies, which has been placed by God as a form of punishment.
Christianity and Suicide
Up to fifth century, the Christian perspective on suicide had been stable. Despite suicide being committed by several persons, Christianity was silent upon the concept of suicide. Later in fifth century St. Augustine argued that the act of suicide violated the 6th commandment of Bible which says that one should not kill. And accordingly suicide should come within its ambit as suicide involve killing of oneself. Later on, St. Thomas Aquinas, a Catholic theologian, took Augustine’s theory to a new level. He explained suicide as an offense, offense against oneself, neighbor and against God. He claimed that suicide violates our duty towards God because God has given us life as a gift and in taking our lives through suicide we take away His right to determine the duration of our mortal presence.
Hinduism and Suicide
Hinduism, one of the oldest religions in the world, is somewhat ambivalent in the matter of suicide. This is because Hindus believe in the theory of Karma and Rebirth. One example that can be given to prove this is the practice of Sati, by women, which in itself is suicide. It is agreed that as of now Sati is not legal, but the fact that it had been practiced by Hindus cannot be ignored. Compared to other religions, we can say that Hinduism has tolerance for suicide.
Islam and Suicide
The Holy Quran, in Surah 4, verses 29 and 30, strictly forbids self-harm or self-killing, and laid out perpetual punishment for suicide as individual burning in the hell. The Quran largely emphasizes on the sanctity of life and on accomplishing the human purpose, with which he enters in the world along with maintaining stability, patience and faithfulness in all situations. Despite being the second-most populous religion in the world, the research on suicidal rates in Islam is very limited. However, this limited research suggested that there might be lower rate of suicides in Islam.
Suicide from Legal Point (with reference to India)
Over 1 lakh people died every year because of suicide India and attempted suicides are 20 times more than the successful one. The two questions which always used to be debatable are: firstly, whether Suicide (Section 309 of IPC) should be decriminalized in India. Secondly, whether right to life (u/a 21 of the Constitution) also include right to die. Moving ahead with the first question, India owed its law on suicide in the IPC to the British men, who introduced the section 309 in the Indian Penal Code, during their reign. Indian judiciary from time to time discussed the validity of Section 309 of the IPC.
Supreme Court for the first time in the history of Indian judiciary discussed the validity of Section 309 of the IPC, in P.Ratinam in 1994, it was held that Section 309 of IPC violates Article 21 and therefore it needed to be blotted out from the statutes. The court further held that it is brutal and irrational to punish someone who has already been a sufferer of his fate. But, soon after in Gian Kaur in 1996, the Court with five judge bench, overruled the earlier judgment and held that right to life includes ‘right to life with dignity’ and may also extend to ‘death with dignity’ but kept away unnatural extinction of life from its ambit.
There were arguments in favour of decriminalization of attempt to suicide and vice versa. The people in favour the decriminalization contented that Section 309 is discriminatory as it will make the sufferer further suffer, the continuance of such penalization is an anachronism contemptible of human society like ours, the state itself is liable for suicidal attempt as it is the duty of the state to save its citizens from such plights, etc. However the people against decriminalization contented that, God is the creator and only He has the right to decide the duration of life of any person, and law for such social evil can act as a deterrence against such attempts.
In the present scenario, Supreme Court in its historic verdict completely struck down Section 309 of the IPC and tried to link right to life with the right to die. The court held that right to life also includes the right to decide whether to continue living or not. Further, Parliament passes act to be known as Mental Healthcare Act, 2017 (No. 10 of 2017) and as per section 115(1) of the said act, “any person attempt to commit suicide shall be presumed to have severe mental stress and shall not be tried and punished, with an exception to Section 309 of IPC.” It was widely accepted that more than 90% of those who attempted suicide or has been successful in that are mentally ill. Therefore, Indian Parliament has designed the said act accordingly. Section 115(2) of Mental Healthcare Act, 2017 mandates the government to provide care, support, treatment and rehabilitation to a person who is having severe mental stress and had attempted suicide, in order to reduce the chances of recurrence.
Conclusion
Since the ages, suicide had become multifaceted phenomena and had been treated as a taboo in the society. The researcher here concludes that a global response to suicide is the need of the hour. It should not be treated as an evil in the society rather it should be considered as growing mental health problem, which can be reduced. Moving ahead with the question how suicides can be prevented. It is widely believed that suicides cannot be prevented for the reason that its essential factors are either social or environmental and which for any nation, is difficult to control. People often see suicide as a one-time solution to a transitory problem. If we talk about India, there is an urgent need to develop measures to prevent suicides. But, the presence of other issues, like poverty, healthcare problems, malnutrition, etc programs for prevention of suicides are generally given less priority. However, following are the measures which we can adopt to prevent a significant amount of suicides:
We need to develop a supportive environment by educating them, developing a feeling of social cohesion or sense of belongingness, strengthening their local beliefs and rituals, etc. so that we can empower our citizens.
Develop institutions at various levels, which will work for the improvement in mental health of the survivors of suicide.
Promoting psychiatry as another innovative field for one’s career, as we know that there are very less number of psychiatrists in India, as compared to its vast population.
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
“Workers of the world unite; you have nothing to lose but your chains.”
-Karl Marx
Article 19 (1)(c) which reads as:
To form associations or unions [cooperative societies] and to strike peacefully.
While as Article 19(4) reads as:
Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause and the strike undertaken under said sub-clause shall be reasonable and brought in notice to the employer.
The Constitution of India has very well taken care of the rights of its citizens. Using this Mother Statute, various legislations are passed to protect the socio-economic, religious, political and cultural values of the society. But all of these rights come with their duties. The more powerful the right is, more will be the underlying duties. Part III of the Indian Constitution embodies these powerful privileges called as Fundamental Rights. One of these fundamental rights as enshrined in Article 19(1)(c) states that citizens of India have the right to freedom to form associations or unions [cooperative societies]. But in a large democratic society like India with a huge number of economic transactions and well developed industrial sector, it is very much required to bring about policies for the welfare of people engaged as mentioned in Article 38 of the Constitution. When we talk about the corporate sector including private and public companies, industries etc., the people working there should be given the priority and their reasonable demands should be satisfied such as issues related to minimum wages, working hours, health and hygiene, etc. Article 19(1)(c) may be able to provide them the right to form association and trade unions, but it is not enough. Sometimes, the circumstances require the workers to go one step beyond and start strike by stopping the work to push the employer to get the demands fulfilled.
The word ‘strike’ means a cessation of work or a concerted refusal to work based on common understating by the employees of any industry to get their demands fulfilled. Today, almost all the nations whether socialist, democratic or capitalistic, provide right to strike to its workers. But it should be used as a weapon of last resort. If misused, it can undermine the industrial functioning and ultimate loss to the economy of the country.
Right to Strike is not a fundamental right in India. It was only after the enactment of Industrial Disputes Act in 1947 that the right to strike was recognized in India as a statutory right. Section 22(1)(a) of the Act states that employees can go for the strike in case of breach of contract provided a prior notice is given to the employer within 6 weeks of such strike. It also includes government employees. The said right is not freely given in the statute. There are certain conditions, which only if satisfied can the workers go on strike. The right is an important weapon in the hands of workers for seeking redressal and safeguarding their liberties. There was a general presumption that employer is always at dominating position and there may the chance of him imposing cruel terms and condition of service on the employees. So, the need was of a tool for collective bargaining. As the Supreme Court has said that good relations between employer and employee and collective bargaining are the essential objectives of Industrial Disputes Act, 1947.
Article 19(1)(c) gives the right to form association and trade unions. If there is no right to strike, the right to form associations will be hollow. Then why such right is given at first place. The Indian judiciary through the series of judicial decisions emphasized on the legality or illegality of strike, but didn’t impose a ban on the right to strike. The Apex Court held that the membership of trade union if sufficient is able to bargain. But such bargaining power is highly reduced when no right to strike is given to the workers.
International Labour Organization mandates that a right to organize and collective bargaining shall be given to the employees. Although, there are no express provisions on the right to strike. But ILO Committee of experts has highly regarded this right as indispensable and an integral part of the right to organize. India has implemented and promoted almost all the principles embodied in these two conventions except the right to strike. Universal Declaration of Human Rights, 1948 provides for the protection of workers’ interests. They have the right to form trade unions and associations. And the right to strike is a sequel of their constitutional privilege to form association. International Covenant of Economic, Social and Cultural Rights, 1966 also provides for the recognition of the right to strike with the condition that it is in conformity with the law of the member states.
The English judiciary has been very amenable towards the right to strike. They have recognized the said right as justiciable one. Lord Denning held that strike is the last remedy and that it has emerged as an inherent right of the worker which forms the essence of collective bargaining.
Even in the US, the National Labor Relations Act, 1935 provides the right to strike to bargain for better wages and working conditions, health and hygiene etc. However, no such recognition has been given to the aforesaid right in India. It is just a statutory right.
Click Above
Right to Strike
The word ‘strike’ comes from ‘strican to go’ which means to quit, hit or impress in case of a trade dispute. It is the most effective and final resort in the hands of workers to secure economic justice. This meaning of strike has undergone various changes across the world and most of the nations have given the right to strike to the workers. The right to strike is a statutory right in India guaranteed under Section 22(1)(a) of the Industrial Disputes Act, 1957. The section provides that in case of breach of contract in public utility service, the workers can go for the strike with a prior notice to be given to the employer within 6 weeks of such strike. Right to strike is a very important tool in the hands of workers. It helps the workers to negotiate for the better working environment and proper wages etc. Right to strike is the very essence of collective bargaining.
Section 22(1)(a) provides various conditions to be satisfied before going for such strike. The Supreme Court has said that workers have the right to go on peaceful strike. But the demands they claim should be legitimate. Justice Krishna Iyer and PN Bhagwati in a case held that strike can be illegal or legal one and even the illegal strike can sometimes be justified. It is the principle of social justice and well recognized by industrial jurisprudence. It is available to the employees as their legal right also and they can go for the peaceful strike to negotiate for their demands with the employer. It is Collective bargaining and the right to strike go hand in hand. Industrial Disputes Act has differentiated between legal and illegal strikes. So, it can be said that upon compliance of all requirements as mentioned in §22 and 23, a strike can be legal and justified one.
Although, it has been given importance by the foreign nations and international laws, but India still hasn’t provided fundamental status to this right. The judiciary has failed to consider the dynamic structure and evolution of right to strike.
Indian Judiciary on Right to Strike
Indian judiciary has recognized the right to strike both as a legal and statutory right. Strike in an integral part of wage bargaining in the industrial economy. Some limited right to strike was given by the Trade Union Act, 1926. And it was finally made a statutory right under §22 of the Industrial Disputes Act, 1947. Article 19(10)(c) of the Constitution gives freedom to the citizens to form associations and trade unions. But right to strike in an ancillary right. If not given, the right to form associations will be hollow and illusory. While recognizing the objectives of IDA of 1947, Apex Court said that strike is a weapon available to workers to force their employer to fulfill workers’ demands. It is a legitimate and indispensable weapon available to the employees and can be used in case of urgency. It will be unreasonable to make the workers to wait for notice in that case. In the case of Crompton Greaves Ltd. v Its Workmen, the Supreme Court held that strike is a legal weapon available to workers. Whether the strike is justified or not will depend upon the facts and circumstances of each case. Court has also said that sometimes even an illegal strike can be justified. In the case of Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan, the court held that peaceful strikes can be conducted by the workers to force the employer to fulfill their demands. Justice Ahmadi in the case of B.R. Singh v Union of India, held that it is very essential for the trade union to have sufficient membership which can be secured through agitation methods such as strike, go slow etc. He further held that strike is an inherent right which protects the liberty of workers. It a recent decision of Supreme Court on this matter, it was held that the right to strike is a legal right and not fundamental right. It went further on to hold that if such right is made fundamental in nature, it will undermine the economic structure of the country.
International Law on Right to Strike
International Labour Organization mandates that a right to organize and collective bargaining shall be given to the employees. Although, there are no express provisions on the right to strike. But ILO Committee of experts has regarded this right indispensable and an integral part of the right to organize. India has implemented and promoted almost all the principles embodied in these two conventions except the right to strike. The preamble of ILO has emphasized on the right to strike as an essence of collective bargaining.
Universal Declaration of Human Rights, 1948 provides for the protection of workers’ interests. They have the right to form trade unions and associations. And the right to strike is a sequel of their constitutional privilege to form association. International Covenant of Economic, Social and Cultural Rights, 1966 also provides for the recognition of the right to strike with the condition that it is in conformity with the law of the member states.
Even in the US, the National Labor Relations Act, 1935 provides the right to strike to bargain for better wages and working conditions, health and hygiene etc. The US Supreme Court has even read this right under the 14th Amendment of the US Constitution. The English judiciary has been very amenable towards the right to strike. They have recognized the said right as justiciable one. Lord Denning held that strike is the last remedy and that it has emerged as an inherent right of the worker which forms the essence of collective bargaining. Article 253 of the Constitution gives powers to the Parliament to ratify the international conventions, treaties, etc. India has even ratified an obligation to accept international law regarding workers but it has still failed to recognize the right to strike as a fundamental right in India.
Strike as a Fundamental Right
No fundamental right status has been given to the right to strike. It is still a legal and statutory right. Article 51(c) of the Indian Constitution says that the state shall have to respect for international law and treaties and Article 253 of the Constitution says that such international laws and treaties should be ratified by the Indian parliament. All the international laws and conventions such as the International Labour Organization and Universal Declaration of Human Rights, 1948 has adopted in its very basic structure the right to strike. Although it is the essence of collective bargaining which all the international conventions regarding workers talk about but no heed has been paid to these conventions by India. Even the judiciary has failed to consider the dynamic transformation of right to strike. There is a dire need of right to strike to be given as a fundamental right. Because the right to form associations and trade unions will have no effect if right to strike is not given as a fundamental right. Such rights will become hollow and illusory. Right to strike is very important in the modern economic transactions. It is the ultimate weapon in the hands of the workers to get their demands satisfied from the employer.
Giving fundamental States to the right to strike will not only improve the economic structure of the country but will also improve the economic well-being of workers, proper wages, health and hygiene etc. In the modern civilised world, right to strike should be inalienable and inherent right to be given to the workers.
The argument that the strike can lead to economic laws by virtue of dysfunctioning of the industries can be negated by the fact that if the right to strike is not given as a fundamental right, it will anyway disrupt the economic structure. The membership of the trade unions and associations will decrease resulting in economic losses to industries and eventually to the country.
Recommendations
In the case of Apparel Export Promotion Council vs A.K. Chopra, Supreme Court held that international covenants such as ICESCR etc are like an obligation on India to be fulfilled. It is the duty of the courts to interpret and incorporate the principles of these covenants in their judgements. The international laws clearly ask for the strike as a fundamental right of the workers. ILO, UDHR and ICESCR have in its basic structure adopted this right. India except right to strike, has adopted almost all the principles of these conventions. The need is to look at the industrial adjudication in India. In order to increase the membership of trade unions and associations formed in these industries, the collective bargaining forms a vital part which even judiciary has recognized. But such collective bargaining is only possible if the right to strike is made as a fundamental right under Article 19(1)(c). The restriction can also be attached to such right such as the strike to be peaceful and legal etc.
It is a very important weapon for the employees which will help them to negotiate for their demands with employer. It will also reduce the employer-employee domination in the industries. There are still a large number of industries in India especially in the rural areas which don’t provide even minimum wages to the workers. The working environment is also in dismal state and exploitation is the ultimate result. In these circumstances, strike becomes the ultimate remedy to these workers.
The right to strike also has some social aspects. The workers come from families. They have to earn for better livelihood. If not adequate wages are provided to them, it will harm their livelihood. If there is no concern for their health and hygiene, it will impact their social needs. Also mentioned in Part IV of the Constitution, it is the duty of the State to provide better working environment to workers. It can be concluded that in a country like India, strike should be made the fundamental right so that its industrial and economic sector flourish.
Conclusion
In a large democratic society like India with a huge number of economic transactions and well developed industrial sector, it is very much required to bring about policies for the welfare of people engaged as mentioned in Article 38 of the Constitution. Article 19(1)(c) may be able to provide them the right to form association and trade unions, but it is not enough. Sometimes, the circumstances require the workers to go one step beyond and start strike by stopping the work to push the employer to get the demands fulfilled. Right to strike is a statutory right in India guaranteed by Section 22 of the Industrial Disputes Act, 1947. There are certain conditions, which only if satisfied can the workers go on to strike. The right is an important weapon in the hands of workers for seeking redressal and safeguarding their liberties. The international laws mandates strike to be given as a fundamental right to workers. ILO, UDHR and ICESCR have in its basic structure adopted this right. India except right to strike, has adopted almost all the principles of these conventions. The need is to look at the industrial adjudication in India. Collective bargaining is the essence of trade unions and associations but it is only possible if right to strike is given the fundamental right status. Considering the dismal conditions of industries, employer domination, minimum wage issues and social aspects of the strike, it casts a legal and constitutional obligation on the State to made strike as a fundamental right under Article 19(1)(c).
Bibliography
Constitution and Other Laws
Industrial Disputes Act, No. 14 of 1947 (India).
Trade Union Act, 1926 (India).
Constitution of India.
Constitution of the United States.
National Labor Relations Act, 1935 (US).
International Laws and Conventions
International Labour Organization, 1919, Convention No. 87, 98.
International Covenant of Economic, Social and Cultural Rights (ICESCR), 1966, Article 7, 8(1).
Universal Declaration of Human Rights, 1948.
Indian and Foreign Cases
Apparel Export Promotion Council vs A.K. Chopra AIR 1999 SC 625 (India).
B.R. Singh & Ors. Etc. v Union of India 1989 SCR Supl. (1) 257, ¶9 (India).
Workmen of Dimakuchi Tea Estate v Management of Dimakuchi Tea Estate AIR 1958 SC 353 21 (India).
Morgan v Rice 3 All E.R. 1008 (H.L.) (UK).
Gujarat Steel Tubes Ltd. v Gujarat Steel Tubes Majdoor AIR 1980 SC 1896 (India).\
All India Bank Employees Association v National Industrial Tribunal and others AIR 1962 SC 171 (India).
Management of Kairbetta Estate, Kotagiri v Rajamanickan AIR 1960 SC 893 (India).
Management of Chandramalai Estate, Ernakulam v Its Workmen & Anr. AIR 1960 SC 902 (India).
Crompton Greeves Ltd. v Its Workmen AIR 1978 SC 1489 (India).
Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan 1987 (15) DRJ 212 (India).
TK Rangarajan v State of Tamil Nadu 2003(6) SCALE 84 (India).
Kameshwar Prasad v. Territory of Bihar AIR 1962 SC 1166 (India).
Books
Dr. VG Goswami, Law of Industrial Relations in India, 2 CENTRAL LAW AGENCY 212 (9th Ed. 2011).
Journal and Web Articles
A.G. Noorani, A Legitimate Right, 20 FRONTLINE 3 (2003).
Alex Gourevitch, The Right to Strike: A Radical View, 1 AMERICAN POLITICAL SCIENCE REVIEW 5 (2018).
Blake Emerson, Nature and Scope of Right to Strike, 49 THE YALE LAW JOURNAL 521 (1940).
Marc. J Bloch, Public Employees’ Right to Strike, 69 CLEVELAND STATE LAW REVIEW 394 (1969).
Rajesh Tyagi, The Supreme Court Pronouncement and the Right to Strike, REVOLUTIONARYDEMOCRACY (Oct. 23, 2019 16:33), https://www.revolutionarydemocracy.org/rdv9n2/strike.htm.
Vijay M. Gawas, Right to Strike under Industrial Disputes Act, 1947 and other laws, 4 INTERNATIONAL JOURNAL OF LAW 28 (2018).
Seth Kupferberg, Political Strikes, Labor Law and Democratic Rights, 71 VIRGINIA LAW REVIEW 686 (1985).
Mallikarjun Sharma, Right to Strike, 46 INDIAN LAW INSTT. 523 (2004).
Reports
Journal of National Human Rights Commission, India, 11 Vol. 7, p. (2008).
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
